Case Summary - Pamela Shakera Langham v. State

The State charged Pamela Langham with possession of cocaine and a jury found her guilty. Police developed information from a confidential informant that Langham’s residence was “a place where drugs were trafficked, were being sold” and the specific drug was cocaine, crack cocaine. The confidential informant also gave information that another individual, Charlie Collins, was “operating a crack cocaine distribution business out of the house” and he “had a girlfriend, a live-in girlfriend or someone that was living there at the time with him that was involved.” The confidential informant only identified the woman as a black female.

The detective used this information to get a search warrant and led a police raid on the house. There they found Collins and Langham (who is a black female) together in the main bedroom of the house. They found trace amounts of cocaine in several places, an electronic scale, and white powder in a safe owned by Langham. Langham testified that the safe belonged to her, but denied that Collins was a drug dealer and that she made runs for him. On rebuttal, one of the other residents in the house testified that there were drugs being dealt out of the house and that Langham had been in close proximity to them seeing them being cut and dealt. However, he also had a prior statutory rape conviction that had been reduced to a misdemeanor. [The fact that Price had to note this fact when they didn't even perform a harm analysis kind of suggested the fix was in.]

The court of appeals affirmed holding that the out-of-court statement was not testimonial as contemplated by Crawford. The court also held that “the error would not be reversible because beyond a reasonable doubt the error did not contribute to the conviction or punishment.” The evidence was legally and factually sufficient even in the absence of the statements of the confidential informant. [Here's a link to the court of appeals case information if you're interested.]

The CCA reversed. Judge Price, joined by Judges Meyers, Womack, Johnson, Holcomb, and Cochran, first set out that testimonial statements are statements that an objective witness would reasonably believe would be available for use at a later trial. Such statements are not made to enable police to meet an ongoing emergency, but rather to establish or prove past events potentially relevant to a later criminal prosecution. Additionally, the Sixth Circuit had held that out-of-court statements by a confidential informant to the police asserting that the accused commited the charged conduct are testimonial if they are offered for the truth of the matter asserted.

Price went on to take issue with the court of appeals characterization that primary purpose of the statements was not to provide testimony but to provide information to the police to obtain a search warrant. “Primary” according to Judge Price was the correct word for the lowly Eastland court of appeals to use if they meant “first in time.” However, the Supreme Court, according to the majority, thinks “primary” means first in importance. Given this new definition, the “primary purpose” of the statements was to pave the way for a potential criminal prosecution.

Moreover, the statements were not offered as mere “background” to explain why the detective came to investigate that particular residence. Even though the statement wasn’t offered for the truth, it had the potential to be used by the jury for the truth. The statements regarding Langham’s general “involvement” in the drug manufacture and sale going on at the house was greater than necessary to explain why the police decided to investigate the house. Additionally, the prosecution clearly made “substantive” use of the informant’s statements in final argument.
Finally, the majority remanded the case back to the court of appeals for a new harm analysis because they apparently only found the evidence harmless because the evidence was legally and factually sufficient. The question is not whether the evidence supported the evidence, it’s whether the constitutional error was a likely contributing factor to the deliberations.

Presiding judge Keller, joined by Judges Keasler and Hervey, dissented to lament her inability to find the “greater and more damning detail” that kept the out-of-court statements from being considered background information not offered for the truth. She also felt that if the court of appeals harm analysis was flawed, the CCA should’ve done the harm analysis itself. Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, dissented to note that the majority failed to consider the fact that the statements were not asserting that the defendant committed the conduct charged in the indictment. This was a possession case not a distribution case. However, assuming the statements were “testimonial,” Hervey went on to make the excellent point that if the statements were truly “background” evidence not offered for the truth of the matter asserted, then it didn’t matter how damning the details were because they did not violate the Confrontation Clause. If they were too damning, the trial court should’ve given a limiting instruction. Moreover, any error in admitting the statements was harmless. [Here's a link to the CCA case information if you're interested.]

Commentary: Judge Hervey pretty much nails the problem with this holding on the head. If the statements are not offered for the truth they can be ridiculously detailed and still not violate the Confrontation Clause. The more reasonable position for the majority to take would’ve been that the statements were, in fact, offered for the truth rather up some quasi-could-be-considered-for-the-truth rationale to explain why they violate the Confrontation Clause. The majority’s chosen approach could lead to more confusion later as courts try to figure out what amounts to enough detail to make a statement not offered for the truth constitutionally violative.