Today the CCA handed down published opinions in the following cases:
PD-1205-08, State v. Robert Leahy Powell: The CCA upheld the seizure of two safes that were not described in a search warrant even though the scope of the warrant would have necessarily authorized a search inside the safes for forged checks. While the warrant didn’t specifically list the safes as property to be seized, the safes were described in the warrant affidavit. Judge Womack concurred along with Judges Johnson and Cochran, but declined to join Part II of the majority’s opinion which contained dicta regarding the applicability of the federal exclusionary rule. Judge Price, dissented to take issue with the determination that the affidavit actually contained enough reference to the seized safes to warrant the seizure, and to criticize the majority’s discussion of the federal exclusionary rule in Part II of the opinion. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.
PD-0307-09, Ronald Lee Wilson v. State: The CCA held that a police officer’s use of a fabricated fingerprint report in violation of §37.09 of the Penal Code to persuade a defendant to confess requires the suppression of a suspect’s confession under the Texas exclusionary rule found in Article 38.23. Judge Meyers dissented because he did not think the officer violated §37.09 because the defendant’s confession to the offense meant the report was not really fabricated. Bless his heart. Judge Keasler, joined by Judge Hervey and Presiding Judge Keller, dissented because the Wilson had failed to argue a violation of §37.09 at the trial court, so the error was not properly preserved. Finally, Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, dissented because the officer’s violation of §37.09 did not violate any of Wilson’s personal rights so he had no standing to complain. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.
PD-1780-08, Pamela Shareka Langham v. State: The CCA held that admission of hearsay statements from a confidential informant that a police officer used to get a search warrant violated the Confrontation Clause. Presiding Judge Keller, joined by Judges Keasler and Hervey, dissented because she did not believe the statements provided great, incriminating detail and that the CCA should have performed the harm analysis itself rather than remand the case. Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, also dissented because the out-of-court statements were not “testimonial” because they referred to conduct for which the defendant was never charged. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. Here's a link to a more detailed summary.
PD-1137-09, Ex parte Levi Alexas King: In light of its recent decision in Ex parte Doster, the CCA dismissed this appeal of a pre-trial writ of habeas corpus because pre-trial habeas is not the appropriate vehicle to consider a denial of a motion to dismiss based upon a violation of the Interstate Agreement on Detainers. Here’s a link to the court of appeals case information. Here’s a link to the court of appeals opinion. No additional summary will follow.
PD-0245-09 & PD-0246-09, Safety National Casualty Corp v. State: Based on a historical evaluation of Article 44.44 and the Court’s own history, the CCA held that the civil filing fee statutes do not apply to bond-forfeiture cases so the appellant does not have to pay them in bond-forfeiture cases on appeal. Presiding Judge Keller, joined by Judge Johnson, concurred to add that in 1879 the original statute for appealing bond forfeitures did not contemplate filing fees. Judge Meyers also concurred to note the distinction between court rules (which come from an entity that has no revenue generating or taxing authority) and statues (which come from an entity that does). Judge Holcomb, along with Judge Womack, dissented to argue that civil filing fees are appropriate in bond forfeiture appeals. Here’s a link to the court of appeals case information, and here’s another one. Here’s a link to the court of appeals opinion, and here’s a copy of it.
Wednesday, March 3, 2010
Case Summary - Robert Leahy Powell v. State
Police developed information that Robert Leahy Powell and another person named Leia McGee were making forged checks in their home. The detective prepared an affidavit for a search warrant that included information that Powell and McGee’s house contained materials for making forged checks and that Powell and McGee had given forged checks to a friend to purchase a safe at Home Depot that was kept at the home. The affidavit also contained information that Powell and McGee had drugs in their house as well. The form of the affidavit also had a section that described the property “concealed and kept in violation of the laws of Texas.” This section of the affidavit listed among other things “checks and materials to make forged checks, but did not list the safes. The police executed the warrant and seized the two safes so that a locksmith could drill out the safes the next day. The police found methamphetamine in one of the safes, and the State charged Powell with possession of methamphetamine.
Powell filed a motion to suppress arguing that the State could’ve searched the safes at the scene pursuant to the warrant, taking them to another location amounted to a seizure outside the scope of the warrant. While courts have recognized that police may take some items from the scene that are not listed in the warrant in those circumstances where it is too difficult to perform a search at the scene, the State did not argue this at the trial level. The trial court suppressed the evidence and the State appealed, and the court of appeals affirmed. [Here’s a link to the court of appeals case information if you are interested.]
The CCA reversed, holding that the reference in the affidavit to the safe purchased with the forged check was sufficient to authorize the seizure of both safes. Judge Hervey, joined by Judges Keasler, Womack, Meyers, Holcomb, Cochran, Johnson, and Presiding Judge Keller, explained that the reference to the safe in the warrant was specific enough to prevent the police from engaging in a general search of the premises. Judge Hervey, joined only by Judges Keasler, Meyers, Holcomb, and Presiding Judge Keller, also went on to opine (in Part II of the opinion) that the “massive” remedy of exclusion of the evidence of the methamphetamine was not required in this case because ultimately only Powell’s possessory interests in his safe was violated, not his privacy interests.
Judge Womack, joined by Judges Johnson and Cochran, concurred with the opinion to the extent that it held the safe was properly described in the warrant, but declined to join them regarding their discussion of the federal exclusionary rule. Judge Price dissented because he felt that the reference to the safe was not sufficient enough to actually describe the safe to be seized. According to Price, it was not a sufficient description because it wasn’t even enough to tell the police which of the two safes to seize, it was not a sufficient description. Moreover, Price not have even reached the question of whether the exclusionary rule should apply because the majority had held that the seizure was authorized by the warrant making the issue of the application of the exclusionary rule irrelevant. Judges Womack, Johnson, and Cochran, also would not reach the issue of the applicability of the exclusionary rule for the very same reasons. [Here’s a link to the CCA case information if you’re interested.]
Commentary: The State really dodged a bullet with this one. They clearly wanted to hold that the difficulty with opening a safe created an exigent circumstance that would’ve allowed them to remove the safe to another location to search it. But the State never argued it, and as the appealing party, that really put the State in a bad position. Moreover, the State conceded that the property was not adequately described in the warrant. Fortunately for the State, the CCA did not accept this concession. Frankly, I would’ve been hard pressed to criticize them had they taken those opportunities to simply affirm. Well, except for the fact that Illinois v. Gates does make clear that you aren’t supposed to read search warrants in a hyper-technical fashion. There’s a strong presumption in favor of warrants, so the fact that police took their evidence to a neutral magistrate before conducting a search certainly deserved some consideration. And Powell did not have any privacy interest in the inside of the safe because the warrant would’ve allowed them to search inside it for the forged checks. So really the argument is more about form than substance. There’s a mention of a safe in one place but not in the specific place in the affidavit that lists what items are supposed to be at the location. I suppose that’s why eight judges had no problem upholding this search.
A wise friend of mine has pointed out that this case appears to be a kissing cousin of State v. Matthew Ryan Dobbs. [Here’s a link to the post when the issue was granted.] I don’t know why these two cases weren’t decided at the same time as both were State’s appeals from searches based on warrants where the search may have exceeded the scope of the warrant. I suppose the resolution of Powell suggests why they weren’t decided together. The CCA ultimately didn’t think that the seizure in Powell exceeded the scope of the warrant because the safes were described in the warrant. In Dobbs, however, the Court may be tinkering with the plain view exception to the warrant requirement. I suppose that both cases could be seen as searches that exceed the scope of the warrant, but then Dobbs doesn’t really need to address the issue of whether White v. State is still good law. [Note, the issue in Dobbs is essentially whether there’s still a requirement that it be immediately apparent on sight that contraband is contraband for police to be able to seize when they find it in plain view.] Exit question: Does that mean Powell helps or hurts Dobbs?
Powell filed a motion to suppress arguing that the State could’ve searched the safes at the scene pursuant to the warrant, taking them to another location amounted to a seizure outside the scope of the warrant. While courts have recognized that police may take some items from the scene that are not listed in the warrant in those circumstances where it is too difficult to perform a search at the scene, the State did not argue this at the trial level. The trial court suppressed the evidence and the State appealed, and the court of appeals affirmed. [Here’s a link to the court of appeals case information if you are interested.]
The CCA reversed, holding that the reference in the affidavit to the safe purchased with the forged check was sufficient to authorize the seizure of both safes. Judge Hervey, joined by Judges Keasler, Womack, Meyers, Holcomb, Cochran, Johnson, and Presiding Judge Keller, explained that the reference to the safe in the warrant was specific enough to prevent the police from engaging in a general search of the premises. Judge Hervey, joined only by Judges Keasler, Meyers, Holcomb, and Presiding Judge Keller, also went on to opine (in Part II of the opinion) that the “massive” remedy of exclusion of the evidence of the methamphetamine was not required in this case because ultimately only Powell’s possessory interests in his safe was violated, not his privacy interests.
Judge Womack, joined by Judges Johnson and Cochran, concurred with the opinion to the extent that it held the safe was properly described in the warrant, but declined to join them regarding their discussion of the federal exclusionary rule. Judge Price dissented because he felt that the reference to the safe was not sufficient enough to actually describe the safe to be seized. According to Price, it was not a sufficient description because it wasn’t even enough to tell the police which of the two safes to seize, it was not a sufficient description. Moreover, Price not have even reached the question of whether the exclusionary rule should apply because the majority had held that the seizure was authorized by the warrant making the issue of the application of the exclusionary rule irrelevant. Judges Womack, Johnson, and Cochran, also would not reach the issue of the applicability of the exclusionary rule for the very same reasons. [Here’s a link to the CCA case information if you’re interested.]
Commentary: The State really dodged a bullet with this one. They clearly wanted to hold that the difficulty with opening a safe created an exigent circumstance that would’ve allowed them to remove the safe to another location to search it. But the State never argued it, and as the appealing party, that really put the State in a bad position. Moreover, the State conceded that the property was not adequately described in the warrant. Fortunately for the State, the CCA did not accept this concession. Frankly, I would’ve been hard pressed to criticize them had they taken those opportunities to simply affirm. Well, except for the fact that Illinois v. Gates does make clear that you aren’t supposed to read search warrants in a hyper-technical fashion. There’s a strong presumption in favor of warrants, so the fact that police took their evidence to a neutral magistrate before conducting a search certainly deserved some consideration. And Powell did not have any privacy interest in the inside of the safe because the warrant would’ve allowed them to search inside it for the forged checks. So really the argument is more about form than substance. There’s a mention of a safe in one place but not in the specific place in the affidavit that lists what items are supposed to be at the location. I suppose that’s why eight judges had no problem upholding this search.
A wise friend of mine has pointed out that this case appears to be a kissing cousin of State v. Matthew Ryan Dobbs. [Here’s a link to the post when the issue was granted.] I don’t know why these two cases weren’t decided at the same time as both were State’s appeals from searches based on warrants where the search may have exceeded the scope of the warrant. I suppose the resolution of Powell suggests why they weren’t decided together. The CCA ultimately didn’t think that the seizure in Powell exceeded the scope of the warrant because the safes were described in the warrant. In Dobbs, however, the Court may be tinkering with the plain view exception to the warrant requirement. I suppose that both cases could be seen as searches that exceed the scope of the warrant, but then Dobbs doesn’t really need to address the issue of whether White v. State is still good law. [Note, the issue in Dobbs is essentially whether there’s still a requirement that it be immediately apparent on sight that contraband is contraband for police to be able to seize when they find it in plain view.] Exit question: Does that mean Powell helps or hurts Dobbs?
Case Summary - Ronald Lee Wilson v. State
Police discovered the body of a murdered man with a magazine clip for a pistol found near the body. When police received information implicating Wilson in the murder, they arrested him on unrelated misdemeanor warrants. During the interrogation, the detective fabricated a forensic lab report to convince Wilson to respond to his questioning. The report stated that Wilson’s fingerprints were found on the magazine clip retrieved from the crime scene even though no legible prints were found on the clip. Wilson initially denied committing the murder, but the officer showed him the report and repeatedly emphasized it as evidence of Wilson’s guilt. “Let me remind you, I’ve got that report. Those guys are experts. They’re like DNA experts. They’re like experts. What they say is the truth, and we got you.” Thereafter, Wilson admitted that he had shot the victim.
Wilson moved to suppress the confession arguing that the detective’s conduct violated §37.10 of the Penal Code, therefore the Texas exclusionary rule in article 38.23 of the Code of Criminal Procedure barred admission of his confession. The trial court denied the motion to suppress, ruling that the confession was admissible. In the court of appeals, Wilson argued that the confession was inadmissible for a number of reasons, including violation of §37.09 of the Penal Code. The State did not object to the failure to raise this argument at the trial court in the court of appeals. The court of appeals reversed, holding that the detective had violated §37.09 of the Penal Code so the confession should be suppressed under article 38.23. [Here’s a link to the court of appeals case information if you’re interested.]
A five-judge majority affirmed the court of appeals. Judge Cochran, joined by Judges Price, Womack, Johnson, and Holcomb, first explained that the State had never complained that Wilson failed to raise his §37.09 argument in the trial court although it could have done so in the petition for discretionary review. Thus, there was no issue before them concerning the propriety of the court of appeal’s reliance upon §37.09, tampering with evidence, as opposed to §37.10, tampering with a governmental record, in resolving Wilson’s Texas exclusionary statute claim.
Judge Cochran went on to reject the State’s argument that §37.09 is not a crime related to gathering, creating, or destroying evidence. The State argued that the statute is designed to prevent individuals from defrauding the government. However, according to the majority, the terms of the statute prohibit police officers from using fabricated documents to affect the course of their investigation. Thus, in the majority’s view, using a fabricated document to get a confession is “exactly the type of law violation that the Texas Legislature intended to prohibit when it enacted article 38.23 . . . violation of §37.09 (or §37.10) to obtain a confession or other evidence is at the core of conduct proscribed by the Texas exclusionary statute.
Moreover, while the United States Supreme Court and the CCA have long stated that police may used “trickery and deception” during an interrogation, using false documents is not “just another form of trickery” because it carries a risk that the falsified document may find its way into the court system and possibly be mistaken for a real report. The majority acknowledged that an undercover officer commits a controlled buy he is in possession of a controlled substance, but Judge Cochran then went on to explain that the Legislature specifically exempted officers from criminal liability for that offense.
Finally, Judge Cochran detailed that the detective violated §37.09 of the Penal Code. The detective never testified that he thought his conduct was reasonable in believing that presenting a dummy report was lawful, but even if he had, a “good faith” or “pure motive” violation of Texas penal laws concerning the acquisition of evidence does not render article 38.23 inapplicable to the evidence obtained as a result of that violation. The detective’s subjective belief that his conduct was lawful or reasonable would not render the Texas exclusionary statute inapplicable to his violation of section 37.09. [cough, cough, 9.21, cough, cough]
Judge Meyers dissented because he did not believe the detective had violated the law. The detective created a report that indicated the latent prints belonged to the defendant when the prints were, in reality, inconclusive. However, his guess as to the ownership of the prints turned out to be right because the defendant confessed to the crime. No one joined him in his opinion.
Judge Keasler, joined by Judge Hervey and Presiding Judge Keller, dissented because the issue had not been preserved and the court of appeals was obligated to address preservation regardless of the State’s failure to complain about it. Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, dissented to note Wilson’s lack of standing to challenge the alleged illegality. According to Hervey, a defendant lacks standing to complain that evidence was illegally obtained for state exclusionary rule purposes unless the defendant’s personal or property rights are illegally violated in the obtainment of evidence against him. Deciding that Wilson has no standing would also make it unnecessary to put the detective in the same league as police officers who use throw-down guns and manufacture evidence to frame innocent people. It would also prevent them from proclaiming the detective guilty of a third-degree felony offense that the detective had no opportunity to defend himself against at the suppression hearing.
Commentary: I hate to say this, but this opinion actually reads like a court of appeals opinion that the CCA would normally reverse. Because the trial court denied the motion to suppress, the court of appeals and the CCA were supposed to look for ways to uphold the case so long as it was correct under any theory of law. Reversing a case based upon a violation of a penal statute that was never argued to the trial court seems to run counter to that perspective. Pointing out that the detective never said he thought his conduct was lawful really fails to give proper deference to the trial court’s implicit findings of fact. The fact that he did what he did and explained it with candor would seem to give rise to the reasonable inference in the trial court that he reasonably believed his conduct was lawful. And at any rate his silence on the issue doesn’t suggest he intended to violate the law.
That’s not to say that the concerns about falsifying documents in interrogation are inconsequential. Judge Cochran is right about the danger that such documents might end up being mistaken for the Real McCoy. But the appropriate inquiry there should be whether the use of the false document exceeded the limits placed on the use of trickery or deception in securing a confession. Does the use of such a document make it more likely that the confession was false or unreliable? That’s the question the Court should’ve been asking. I guess the problem for them was that there wasn’t a way for them to get there so they chose this way instead.
I’m kind of ambivalent about the standing argument. I mean, I see it. The violation of the law really didn’t implicate Wilson’s personal or property rights. Part and parcel to this is the idea that the evidence obtained (the confession) did not exist prior to the illegality (the use of the report). However, it does seem counter-intuitive to suggest that a defendant lacks standing to challenge the admission of his own confession. The disconnect may be that challenges to confessions are generally thought of as challenges to voluntariness rather than as invasions of privacy so “standing” isn’t really used with confessions. Maybe it is, I haven’t researched it out a lot, but I couldn’t find anything applying standing to confessions. But I’m not using WestlawNext so that’s probably my problem.
Or maybe the real problem I have is with the seemingly bright line rule regarding exceptions to the exclusionary rule. According to the majority, controlled drug buys don’t run afoul of article 38.23 because there’s an exception built into the statute for police officers to possess controlled substances. However, no such exception was written into §37.09, so this conduct violates article 38.23. Well, um, in Miles v. State, Judge Cochran seemed pretty keen on the idea that the justifications in the front of the Penal Code should also be considered in an article 38.23 analysis.
In Miles, the CCA endorsed the idea that violations of traffic laws by ordinary citizens trying to stop a drunk driver would be okay if they reasonably believed the conduct was authorized by law. They came up with the rule that a police officer could do it, so an ordinary citizen should be able to as well without running afoul of article 38.23. In several footnotes they noted the potential applicability of statutory justifications for the conduct such as “public duty” (§9.21) and “necessity” (§9.22). But these justifications aren’t even considered in Wilson? Given that the Court acknowledges that some small amount of trickery and deception can be used to persuade a defendant to confess without running afoul of the Constitution, it does seem at least arguable that the officer reasonably believed his conduct was authorized by law. [Interestingly, Judge Price and Johnson concurred in Miles to argue . . . wait for it . . . standing. However, they both joined the majority in Wilson.]
I guess that’s why I think they should’ve squarely addressed whether the use of the document rendered the confession involuntary rather than dick around with the already way-too-confusing article 38.23. And hey, they could probably have used the same preservation-of-error slight-of-hand to address it if the defendant failed to do so in the trial court. I think that would’ve resulted in a much cleaner opinion. As it stands now, I don’t think this opinion provides any more of a clear over-arching principle that helps practitioners easily understand which law violations run afoul of article 38.23. We’re still stuck taking each law at a time. And it creates a skin-tag in the law of preservation of error that they'll have to keep explaining.
Wilson moved to suppress the confession arguing that the detective’s conduct violated §37.10 of the Penal Code, therefore the Texas exclusionary rule in article 38.23 of the Code of Criminal Procedure barred admission of his confession. The trial court denied the motion to suppress, ruling that the confession was admissible. In the court of appeals, Wilson argued that the confession was inadmissible for a number of reasons, including violation of §37.09 of the Penal Code. The State did not object to the failure to raise this argument at the trial court in the court of appeals. The court of appeals reversed, holding that the detective had violated §37.09 of the Penal Code so the confession should be suppressed under article 38.23. [Here’s a link to the court of appeals case information if you’re interested.]
A five-judge majority affirmed the court of appeals. Judge Cochran, joined by Judges Price, Womack, Johnson, and Holcomb, first explained that the State had never complained that Wilson failed to raise his §37.09 argument in the trial court although it could have done so in the petition for discretionary review. Thus, there was no issue before them concerning the propriety of the court of appeal’s reliance upon §37.09, tampering with evidence, as opposed to §37.10, tampering with a governmental record, in resolving Wilson’s Texas exclusionary statute claim.
Judge Cochran went on to reject the State’s argument that §37.09 is not a crime related to gathering, creating, or destroying evidence. The State argued that the statute is designed to prevent individuals from defrauding the government. However, according to the majority, the terms of the statute prohibit police officers from using fabricated documents to affect the course of their investigation. Thus, in the majority’s view, using a fabricated document to get a confession is “exactly the type of law violation that the Texas Legislature intended to prohibit when it enacted article 38.23 . . . violation of §37.09 (or §37.10) to obtain a confession or other evidence is at the core of conduct proscribed by the Texas exclusionary statute.
Moreover, while the United States Supreme Court and the CCA have long stated that police may used “trickery and deception” during an interrogation, using false documents is not “just another form of trickery” because it carries a risk that the falsified document may find its way into the court system and possibly be mistaken for a real report. The majority acknowledged that an undercover officer commits a controlled buy he is in possession of a controlled substance, but Judge Cochran then went on to explain that the Legislature specifically exempted officers from criminal liability for that offense.
Finally, Judge Cochran detailed that the detective violated §37.09 of the Penal Code. The detective never testified that he thought his conduct was reasonable in believing that presenting a dummy report was lawful, but even if he had, a “good faith” or “pure motive” violation of Texas penal laws concerning the acquisition of evidence does not render article 38.23 inapplicable to the evidence obtained as a result of that violation. The detective’s subjective belief that his conduct was lawful or reasonable would not render the Texas exclusionary statute inapplicable to his violation of section 37.09. [cough, cough, 9.21, cough, cough]
Judge Meyers dissented because he did not believe the detective had violated the law. The detective created a report that indicated the latent prints belonged to the defendant when the prints were, in reality, inconclusive. However, his guess as to the ownership of the prints turned out to be right because the defendant confessed to the crime. No one joined him in his opinion.
Judge Keasler, joined by Judge Hervey and Presiding Judge Keller, dissented because the issue had not been preserved and the court of appeals was obligated to address preservation regardless of the State’s failure to complain about it. Judge Hervey, joined by Judge Keasler and Presiding Judge Keller, dissented to note Wilson’s lack of standing to challenge the alleged illegality. According to Hervey, a defendant lacks standing to complain that evidence was illegally obtained for state exclusionary rule purposes unless the defendant’s personal or property rights are illegally violated in the obtainment of evidence against him. Deciding that Wilson has no standing would also make it unnecessary to put the detective in the same league as police officers who use throw-down guns and manufacture evidence to frame innocent people. It would also prevent them from proclaiming the detective guilty of a third-degree felony offense that the detective had no opportunity to defend himself against at the suppression hearing.
Commentary: I hate to say this, but this opinion actually reads like a court of appeals opinion that the CCA would normally reverse. Because the trial court denied the motion to suppress, the court of appeals and the CCA were supposed to look for ways to uphold the case so long as it was correct under any theory of law. Reversing a case based upon a violation of a penal statute that was never argued to the trial court seems to run counter to that perspective. Pointing out that the detective never said he thought his conduct was lawful really fails to give proper deference to the trial court’s implicit findings of fact. The fact that he did what he did and explained it with candor would seem to give rise to the reasonable inference in the trial court that he reasonably believed his conduct was lawful. And at any rate his silence on the issue doesn’t suggest he intended to violate the law.
That’s not to say that the concerns about falsifying documents in interrogation are inconsequential. Judge Cochran is right about the danger that such documents might end up being mistaken for the Real McCoy. But the appropriate inquiry there should be whether the use of the false document exceeded the limits placed on the use of trickery or deception in securing a confession. Does the use of such a document make it more likely that the confession was false or unreliable? That’s the question the Court should’ve been asking. I guess the problem for them was that there wasn’t a way for them to get there so they chose this way instead.
I’m kind of ambivalent about the standing argument. I mean, I see it. The violation of the law really didn’t implicate Wilson’s personal or property rights. Part and parcel to this is the idea that the evidence obtained (the confession) did not exist prior to the illegality (the use of the report). However, it does seem counter-intuitive to suggest that a defendant lacks standing to challenge the admission of his own confession. The disconnect may be that challenges to confessions are generally thought of as challenges to voluntariness rather than as invasions of privacy so “standing” isn’t really used with confessions. Maybe it is, I haven’t researched it out a lot, but I couldn’t find anything applying standing to confessions. But I’m not using WestlawNext so that’s probably my problem.
Or maybe the real problem I have is with the seemingly bright line rule regarding exceptions to the exclusionary rule. According to the majority, controlled drug buys don’t run afoul of article 38.23 because there’s an exception built into the statute for police officers to possess controlled substances. However, no such exception was written into §37.09, so this conduct violates article 38.23. Well, um, in Miles v. State, Judge Cochran seemed pretty keen on the idea that the justifications in the front of the Penal Code should also be considered in an article 38.23 analysis.
In Miles, the CCA endorsed the idea that violations of traffic laws by ordinary citizens trying to stop a drunk driver would be okay if they reasonably believed the conduct was authorized by law. They came up with the rule that a police officer could do it, so an ordinary citizen should be able to as well without running afoul of article 38.23. In several footnotes they noted the potential applicability of statutory justifications for the conduct such as “public duty” (§9.21) and “necessity” (§9.22). But these justifications aren’t even considered in Wilson? Given that the Court acknowledges that some small amount of trickery and deception can be used to persuade a defendant to confess without running afoul of the Constitution, it does seem at least arguable that the officer reasonably believed his conduct was authorized by law. [Interestingly, Judge Price and Johnson concurred in Miles to argue . . . wait for it . . . standing. However, they both joined the majority in Wilson.]
I guess that’s why I think they should’ve squarely addressed whether the use of the document rendered the confession involuntary rather than dick around with the already way-too-confusing article 38.23. And hey, they could probably have used the same preservation-of-error slight-of-hand to address it if the defendant failed to do so in the trial court. I think that would’ve resulted in a much cleaner opinion. As it stands now, I don’t think this opinion provides any more of a clear over-arching principle that helps practitioners easily understand which law violations run afoul of article 38.23. We’re still stuck taking each law at a time. And it creates a skin-tag in the law of preservation of error that they'll have to keep explaining.
Labels:
38.23,
confessions,
standing,
tampering with evidence
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.
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.
Monday, March 1, 2010
Rule 79.2 vs. Ex parte Hood
I'll admit the more cynical side of my nature initially found appealing the idea that the CCA recently granted relief in Ex parte Hood as some form of damage control measure to protect Judge Holland (and maybe themselves). In today's political climate distrust of elected officials is par for the course, even comforting. And hey, it sells papers or motivates traffic, or whatever the kids are saying these days. And it all makes sense if you attribute ill motives to everyone. I mean, why would Judge Johnson and Judge Womack who voted with the majority in September to dismiss Hood's more salacious claims, but then "switch" their votes last week to grant relief based upon the jury charge error issue? However, on closer inspection, the jury charge issue the CCA addressed in this most recent (and published) Hood case is actually something they've been wrestling with since 2007.
In 2007, the United States Supreme Court decided Abdul-Kabir v. Quarterman and Brewer v. Quarterman. The CCA first considered these cases in 2008 when they decided Ex parte Moreno. Basically, the CCA examined Rule 79.2 of the Texas Rules of Appellate Procedure and used it to re-examine on their own Moreno's previously denied habeas corpus claim. Well, not really on their own, Moreno had written a nice suggestion that the Court reconsider the issue on its own, but maybe they had the idea before they got the suggestion. Chicken? Egg? Pork, the other white meat?
What was the issue they reconsidered? Moreno had claimed on his original writ that the jury instructions did not allow the jury to give full effect to his mitigation evidence. See, Moreno's case was tried before Penry I , so the special instructions were unconstitutional. Problem was, nobody knew it at the time. And what were the cases that gave the CCA pause in Moreno? The 2007 decisions by the United States Supreme Court in Abdul-Kabir and Brewer (and Tennard and Smith I and Smith II). As the Court wrote in that case:
Of course, the CCA couldn't do what they did in Moreno in Hood. Why? Well, Judge Keasler pointed out in his dissent in Hood, Hood had never raised this Penry claim in his original writ, so they couldn't use Rule 79.2 to reconsider it. In other words, there was no Penry claim to reconsider. What to do? What to do?
Basically you do what Judge Cochran snd the majority did (and what the Supreme Court should've done after they held the instructions unconstitutional), you hold that Abdul-Kabir and Brewer announced new law that was previously unavailable to the applicant. This would allow an applicant to circumvent the procedural bar against subsequent writs. That's right, this opinion doesn't just benefit Hood, it allows other defendants with Penry jury instruction claims some room to bring those claims even if they should've known about Penry at the time they filed their writs. Now those death row defendants may be able to claim that their Penry claim was previously unavailable to them until 2007 (or 2004 when Tennard was decided, and this also assumes the case wasn't already remanded for a new punishment hearing at some point). Pretty broad brush to paint with if they were only looking to help one guy.
Putting aside whether the juice was worth the squeeze, I'm kind of irritated that the Court couldn't just get there faster. If this is the end game, don't waste time dicking around with Rule 79.2. When they recognized the power to use Rule 79.2 to address these claims they pinky swore they would only used that rule in the most dire circumstances. But they didn't give any guidance on what those circumstances might be. [I expressed my frustration with that aspect of Moreno before.] Now, the CCA's come up with a new way to allow defendants to address these Penry claims, namely saying that the previous claims were unavailable because Abdul-Kabir announced new law so the claims were previously unavailable. So we now have two new ways to get around the prohibition against subsequent writsfor such claims. I hope this means that Rule 79.2 becomes more vestigial again, but I doubt it.
Unlike Judge Keasler, I don't think the holding in Hood opens any floodgates beyond the select death penalty cases tried before Penry II, though I understand his concern. The Court didn't interpret the writ statute in a way that broadened it, they just identified these cases as those that fit within an existing exception. However, just as we were left without guidance on when Rule 79.2 suggests a need for reconsideration on the Court's own motion, so too are we left with no guidance on what types of cases may warrant a holding that a previous claim was unavailable. Do we look to whether relief is assured in federal court? Do we see if we can find an analogous "conundrum"? As Geoff Downes and John Wetton say, only time will tell. But I can't help but feel that the majority was only focused upon the Penry jury issues, and that number of cases is necessarily decreasing over time. Hopefully this means the loophole will eventually close on its own. Maybe the political stuff played into the decision-making, but I wouldn't know. I'm not The Shadow, I can't peer into the soul of man. But judging by the trajectory of the cases leading up to Hood, it is entirely possible that the majority reached this recent conclusion in Hood in an earnest effort to untangle the mess left by the Supreme Court's Penry jurisprudence. It just happened to do so in a case that sounds like it should be a movie of the week. I'll leave it to more insightful people to decide whether that's merely coincidence.
In 2007, the United States Supreme Court decided Abdul-Kabir v. Quarterman and Brewer v. Quarterman. The CCA first considered these cases in 2008 when they decided Ex parte Moreno. Basically, the CCA examined Rule 79.2 of the Texas Rules of Appellate Procedure and used it to re-examine on their own Moreno's previously denied habeas corpus claim. Well, not really on their own, Moreno had written a nice suggestion that the Court reconsider the issue on its own, but maybe they had the idea before they got the suggestion. Chicken? Egg? Pork, the other white meat?
What was the issue they reconsidered? Moreno had claimed on his original writ that the jury instructions did not allow the jury to give full effect to his mitigation evidence. See, Moreno's case was tried before Penry I , so the special instructions were unconstitutional. Problem was, nobody knew it at the time. And what were the cases that gave the CCA pause in Moreno? The 2007 decisions by the United States Supreme Court in Abdul-Kabir and Brewer (and Tennard and Smith I and Smith II). As the Court wrote in that case:
"We can no longer maintain that evidence of a troubled childhood is adequately encompassed within the statutory special issues. Both Abdul-Kabir and (especially Brewer expressly state that Supreme Court precedent has long rejected the notion that a jury can meaningfully express its reasoned moral response to evidence of a troubled or disruptive childhood within the narrow confines of the special issues."[I even noted when the Court decided Ex parte Hathorn in April 2009 that the Court would probably be looking to reconsider similarly situated cases and possibly give them similar treatment.]
Of course, the CCA couldn't do what they did in Moreno in Hood. Why? Well, Judge Keasler pointed out in his dissent in Hood, Hood had never raised this Penry claim in his original writ, so they couldn't use Rule 79.2 to reconsider it. In other words, there was no Penry claim to reconsider. What to do? What to do?
Basically you do what Judge Cochran snd the majority did (and what the Supreme Court should've done after they held the instructions unconstitutional), you hold that Abdul-Kabir and Brewer announced new law that was previously unavailable to the applicant. This would allow an applicant to circumvent the procedural bar against subsequent writs. That's right, this opinion doesn't just benefit Hood, it allows other defendants with Penry jury instruction claims some room to bring those claims even if they should've known about Penry at the time they filed their writs. Now those death row defendants may be able to claim that their Penry claim was previously unavailable to them until 2007 (or 2004 when Tennard was decided, and this also assumes the case wasn't already remanded for a new punishment hearing at some point). Pretty broad brush to paint with if they were only looking to help one guy.
Putting aside whether the juice was worth the squeeze, I'm kind of irritated that the Court couldn't just get there faster. If this is the end game, don't waste time dicking around with Rule 79.2. When they recognized the power to use Rule 79.2 to address these claims they pinky swore they would only used that rule in the most dire circumstances. But they didn't give any guidance on what those circumstances might be. [I expressed my frustration with that aspect of Moreno before.] Now, the CCA's come up with a new way to allow defendants to address these Penry claims, namely saying that the previous claims were unavailable because Abdul-Kabir announced new law so the claims were previously unavailable. So we now have two new ways to get around the prohibition against subsequent writsfor such claims. I hope this means that Rule 79.2 becomes more vestigial again, but I doubt it.
Unlike Judge Keasler, I don't think the holding in Hood opens any floodgates beyond the select death penalty cases tried before Penry II, though I understand his concern. The Court didn't interpret the writ statute in a way that broadened it, they just identified these cases as those that fit within an existing exception. However, just as we were left without guidance on when Rule 79.2 suggests a need for reconsideration on the Court's own motion, so too are we left with no guidance on what types of cases may warrant a holding that a previous claim was unavailable. Do we look to whether relief is assured in federal court? Do we see if we can find an analogous "conundrum"? As Geoff Downes and John Wetton say, only time will tell. But I can't help but feel that the majority was only focused upon the Penry jury issues, and that number of cases is necessarily decreasing over time. Hopefully this means the loophole will eventually close on its own. Maybe the political stuff played into the decision-making, but I wouldn't know. I'm not The Shadow, I can't peer into the soul of man. But judging by the trajectory of the cases leading up to Hood, it is entirely possible that the majority reached this recent conclusion in Hood in an earnest effort to untangle the mess left by the Supreme Court's Penry jurisprudence. It just happened to do so in a case that sounds like it should be a movie of the week. I'll leave it to more insightful people to decide whether that's merely coincidence.
Labels:
79.2,
abdul-kabir,
penry I,
penry II
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