Attenuating the Taint

In Brown v. Illinois, 422 U.S. 590 (1975), the U.S. Supreme Court identified three factors that courts should consider when determining whether the taint of an unlawful arrest was attenuated prior to obtaining a confession:

     1. The temporal proximity of the arrest and the confession;
     2. The presence of intervening circumstances; and
     3. The purpose and flagrancy of the official misconduct (in making the arrest).

In State v. Mazuca, the Texas Court of Criminal Appeals considered the proper application of the “attenuation of taint doctrine,” not to a confession, as in Brown, but to contraband that is seized immediately following an unconstitutional detention or arrest.  The question presented was this:

Will the discovery of an outstanding arrest warrant in the relatively few moments that ensue between the illegal stop and the seizure of the contraband invariably serve as an intervening event sufficient to purge the taint of the primary illegality?

In Mazuca, an El Paso police officer stopped the car in which appellee was a passenger because the officer believed he saw white light (rather than red) emitting from the tail lights.  Photos at trial would later prove that the tail lights were indeed red and that the car was not in violation of the Texas Transportation Code.  During the stop, the officer requested to see appellee’s driver’s license, and quickly learned that appellee had outstanding warrants.  During the course of the stop (after learning about the warrants) the officer seized both ecstasy and marijuana from appellee.  Appellee moved to suppress the contraband as the fruits of an illegal search.  The trial court granted the motion, making, inter alia, the following findings of fact and conclusions of law:

1. The driver of the Mustang did not violate Section 547.322 of the Transportation Code on December 11, 2008.
2. The Police Officers did not have probable cause or reasonable suspicion to perform a traffic stop on that date.
3. The arrest warrants of the Defendant did not purge the taint of the illegal stop due to the flagrancy of the police action, the close temporal proximity and the fact that no Miranda warnings were read.

The 8th Court of Appeals (El Paso) affirmed.  The CCA considered the Supreme Court precedent, as well as the Texas Court of Appeals opinions in coming up with the rule below:

When police find and seize physical evidence shortly after an illegal stop, in the absence of the discovery of an outstanding arrest warrant in between, that physical evidence should ordinarily be suppressed, even if the police misconduct is not highly purposeful or flagrantly abusive of Fourth Amendment rights. Under this scenario, temporal proximity is the paramount factor. But when an outstanding arrest warrant is discovered between the illegal stop and the seizure of physical evidence, the importance of the temporal proximity factor decreases. Under this scenario, the intervening circumstance is a necessary but never, by itself, wholly determinative factor in the attenuation calculation, and the purposefulness and/or flagrancy of the police misconduct, vel non, becomes of vital importance.

While the rule sounds simple enough, the CCA’s application of the rule to the facts of the case is a bit troubling.  The CCA reversed the Court of Appeals, and held that…

[T]he behavior of the arresting officers, although clearly unlawful at the outset, was not so particularly purposeful and flagrant that the discovery of the appellee’s outstanding arrest warrants may not serve to break the causal connection between the illegal stop and the discovery of the ecstasy in the appellee’s pants pocket, thus purging the primary taint.  We hold that the trial court erred to conclude otherwise.

This opinion was a tease.  I read all 29 pages expecting a certain outcome and then the CCA (by a 5-4 vote) pulled the rug out from under me in the final two paragraphs.  Apparently, I wasn’t the only one that felt this way.  Here’s what Judge Meyers had to say in his dissenting opinion:

The result fashioned by the majority opens the door for police to ignore the probable cause requirement and make traffic stops without adequate grounds for doing so.  The majority’s analysis of the weight of the Brown factors may be correct, but the result discounts the trial court’s findings as to the credibility of the officers.

Judge Johnson dissented as well, writing:

I would hold that the court of appeals correctly recognized that, without the highly improper traffic stop, the officers could not have learned appellee’s name, found active warrants, or searched him and recovered contraband, all fruits of the poisonous tree.  We, like the court of appeals, should “afford almost total deference to a trial court’s determination of historical facts that are supported by the record, particularly when such findings are based on an evaluation of witnesses’ credibility and demeanor” and affirm its suppression of the evidence that was obtained because of the improper traffic stop.  I respectfully dissent.

While it is beneficial for the CCA to create precedent where none previously existed, if it cannot apply that precedent to the facts of the case correctly, what good is it?

CCA Holds: Medical Care Defense Not Limited to Medical Personnel

Texas Penal Code Section 22.021(a) provides that a person commits aggravated sexual assault if the person intentionally or knowingly causes the penetration “by any means” of the anus or sexual organ of a child younger than 14 years of age. Section 22.021(d) provides that “it is a defense to prosecution…that the conduct [constituting the offense] consisted of medical care for the child and did not include any contact between the anus or sexual organ of the child and mouth, anus, or sexual organ of the actor[.]

During the trial of Walter Cornet, for the alleged aggravated sexual assault of his eight year-old step-daughter, the defendant sought to use the medical care defense. The defendant alleged that after his step-daughter complained to him that her older brothers had had sex with her, he, acting as a parent, conducted an examination of her genitals (anus and labia) using his fingers. The trial court refused to instruct the jury on the medical care defense. The defendant was convicted.

On appeal to the 8th District Court of Appeals (El Paso), the Court affirmed the conviction and held that:

the [medical care] defense “is not meant to apply…in cases…when the parent suspects his child has been sexually abused and proceeds, without any medical education, training, or experience, to examine the area.”

The Texas Court of Criminal Appeals accepted appellant’s petition for discretionary review to settle the issue. Can a parent, untrained in the medical field, claim the medical care defense, under Section 22.021(d) of the Texas Penal Code? The CCA said YES and overturned the 8th Court’s decision.

Writing for a 5-4 majority (on this issue only), Judge Price explained:

The text of the statute makes it abundantly clear that it is the nature of the “conduct,” not the occupation of the actor, that characterized the availability of the defense. Nowhere in [Section 22.021(d)] is there any mention or suggestion that the availability of the defense is limited to health-care professionals; and for this Court of read such a restriction into the defense would impermissibly “add or detract from [the] statute.”

The CCA remanded the case to the lower court to conduct a harm analysis.

Judge Cochran dissented. She states that “[w]hen asserting a ‘medical care’ defense, the defendant bears the burden of offering some evidence that his conduct was, in fact, a legitimate, accepted medical methodology.” She goes on to note that:

[i]f this [procedure performed by appellant] meets any common-sense description of accepted or acceptable medical care, the children of Texas are in big trouble. Never mind that there was not a scintilla of evidence that appellant had any medical training, medical expertise, or that this “home exam” methodology was accepted by any medical provider anywhere as an acceptable one. There is no legal defense to sexual assault for a step-father, fried, priest, or big brother to “check-out” the situation by penetrating the anus and genitals of a child because that child had told him that she had had sex with anyone.

Judge Cochran believes that appellant’s defense fails as a matter of law.

Confrontation of an Available Witness That Cannot Remember

What happens when a witness cannot remember facts to which she previously testified before the grand jury? Can the State simply read her grand jury testimony into evidence as past recollection recorded even though the Defendant was not present to cross-examine her during that hearing? Normally, I would say yes, but I’m not talking about a witness that cannot remember one fact or another.  I'm talking about a witness that cannot remember ANYTHING about which she testified before the grand jury.  To me, that changes the game a bit.

The CCA recently considered this issue in Woodall v. State. I say they “considered" it – actually the Court was careful not to provide a definite holding on the matter. Instead, it punted the case on procedural (waiver) grounds. Nonetheless, the CCA did provide some dicta that is a helpful insight into its thinking.

We believe that, under the facts of this case, memory loss did not render [the witness] “absent” for Confrontation Clause purposes…The Supreme Court has generally rejected the notion that a present and testifying witness is nevertheless absent for confrontation purposes if the witness suffer from memory loss.

Curiously, the CCA cites only pre-Crawford cases. For example, citing a 1970 Supreme Court case, the CCA quoted the concurring opinion of Justice Harlan, in which he opined that

a witness’s lack of memory should have no Sixth Amendment Consequence.

However, the legal landscape has drastically changed since the time of Justice Harlan’s opinion. I doubt Scalia would agree with such reasoning today. Then again, as a strict constructionist, maybe he would.  If the witness is available at trial, even if she cannot remember anything, is that enough to satisfy the 6th Amendment? I would argue NO, but perhaps I’m wrong. Either way, we will not find out with the Woodall case, because the CCA passed on the ultimate issue.

Bringing a Dog to Cat Fight, Makes it a Dog Fight

Gerardo Lujan was convicted of possession of cocaine after the El Paso police discovered cocaine hidden in the passenger side of his vehicle. Lujan had been stopped at a police checkpoint that was set up to stop every vehicle on both sides of the road to check for driver’s licenses and insurance. Curiously, the officers also had with them a drug-sniffing dog to detect and alert if any of the detained persons possessed drugs or had drugs in their vehicle.

Following Lujan’s conviction, the 8th District Court of Appeals (El Paso) reversed the conviction, holding that the “license and insurance checkpoint” was actually a subterfuge for general criminal enforcement. The 8th Court focused on the holding of the U.S. Supreme Court in City of Indianapolis v. Edmond, 531 U.S. 32 (2000), wherein the Court noted that it has “never approved a checkpoint program whose primary purpose was to detect evidence of ordinary criminal wrongdoing.”

The State appealed the 8th Court’s reversal to the Court of Criminal Appeals. The CCA agreed with the legal standard articulated by the 8th Court, but disagreed in its analysis. Originally prepared by Judge Holcomb before his retirement, the opinion states:

If the primary purpose of the checkpoint is lawful – a license check as opposed to general law enforcement – police can act on other information that arises at the stop. The checkpoint’s primary purpose of license and insurance verification does not prohibit the police from considering other unrelated offenses that they discover during the stop.

The CCA went on to hold that the checkpoint was not unreasonable, despite the presence of a drug-sniffing dog, the fact that the officers conducting the checkpoint were part of the drug-interdiction team, and the fact that the checkpoint was set up on a stretch of road known for drug smuggling.

Disagreeing with the CCA’s conclusion regarding the lawfulness of the checkpoint, Judge Johnson concurred “because [she] thinks that the drugs would have been discovered without the dog’s alert.” She point out, however, that:

if the checkpoint were truly for only licenses and insurance, the dog would be a valuable resource wasted and better used at a location where its specialized skills were in demand. I agree with the court of appeals that the checkpoint was a subterfuge for general criminal enforcement.

Judge Meyers dissented, stating that bringing a drug-sniffing dog to a license and insurance checkpoint

was akin to bringing a gun to a knife fight, and from then on, it was officially a gun fight. Based on the facts of this case, I disagree with the majority and would conclude that the primary purpose of the checkpoint was the ‘uncover evidence of ordinary criminal wrongdoing,’ in contravention of the Fourth Amendment.

In this case, it appears the Fourth Amendment was trumped by the doctrine of “the ends justify the means.”

Two Bites at the Apple for Indecency with a Child?

Ex Parter Amador - Tex. Crim. App. (Oct. 13, 2010)

Appellant pled guilty to and was convicted of indecent exposure after he was seen pleasuring himself in a public playground in El Paso.  Apparently not satisfied with the outcome of the first case, the State later attempted to prosecute him a second time for his actions, but this time under the offense of indecency with a child by exposure.  Appellant complained that the second indictment violated Double Jeopardy as he had already been convicted of an LIO for this same conduct.  Although the trial court and 8^th District Court of Appeals did not agree with him, the Texas Court of Criminal Appeals came to his rescue.

Writing for the 5-4 majority, Judge Holcomb explained:

[D]ouble jeopardy prohibits the State from obtaining a conviction for an offense when the defendant has previously been convicted of a lesser-included offense of that offense…The Supreme Court has clearly stated that “the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense.”

The question then became whether the Indecent exposure under Section 21.08 is actually an LIO of Indecency with a child by exposure under Section 21.11(a)(2)(A).  The CCA has previously held, in Briceno v. State, 580 S.W.2d 842 (Tex. Crim. App. 1979), that it is.  The majority took this opportunity to reaffirm that holding, stating:

Indecency with a child by exposure is simply an aggravated version of indecent exposure inasmuch as, while the offense of indecent exposure requires the presence of a person who “will be offended or alarmed” by the defendant’s act, the offense of indecency with a child by exposure, by not having any such requirement, holds the defendant culpable even if the person (the child) towards whom the exposure is directed is not “offended or alarmed” by the defendant’s act.

Judge Cochran joined the majority, but also drafted a short (and particularly humorous) concurring opinion, wherein she emphasized:

A defendant cannot be convicted of indecent exposure for “wagging his weenie” at 9:00 a.m. in the local park and then later be prosecuted for that very same act of “wagging his weenie” by charging him with indecency with a child by exposure.  

She went on to use the phrase “wagging his weenie” two additional times in her opinion.  Perhaps the result of a dare or a lost bet?  Don’t ask me.

In a 21-page dissent, Presiding Judge Keller, joined by Judges Keasler and Hervey would hold that

an indecent –exposure charge can be based upon the same exposure that gave rise to indecency-with-a-child counts so long as the defendant was reckless with respect to the presence of at least one person other than the child victims.

Judge Womack also dissented, but did not join Presiding Judge Keller’s opinion.  The majority reminds the dissenters that even thought the State can charge the defendant with the greater and lesser-included offense, the defendant cannot be convicted of and sentenced for both.  Presiding Judge Keller and the band of dissenters want two bites at the apple, even though the U.S. Constitution and the Supreme Court say you only get one.

Takeaway:  The rule, as announced in 1979 in Briceno, remains – Indecent exposure is an LIO of Indecency with a child by exposure under the Texas Penal Code.  A defendant cannot be convicted of and sentenced for both if the underlying conduct is the same.

Police Coerce Suspect to Confess But Court Refuses to Instruct Jury Accordingly

Contreras v. State - a long opinion, but a great read.

Let me set the scene.  A baby is dead.  Appellant was the only person babysitting when the baby died.  The police invite Appellant to make a statement. They give him his Miranda warnings and he waives.  Appellant states that the baby fell off the couch, but was alive and well when he put her to bed.  The medical examiner then conducts an autopsy and discovers what appears to be severe chest wounds caused by blunt force trauma.  The police then invite Appellant to make another statement.  They, once again, read him his Miranda warnings...this is where the story diverges.

According to the detective, during the second interview, "appellant never invoked any of his rights." Additionally, "no threats or promises were made to appellant, nor did the officers threaten any members of appellant’s family."  The Appellant then confessed to murdering the baby.

 On the contrary, Appellant testified that the detectives "kept yelling and jumping in, banging his hand on the desk" and "getting in Appellant's face."  Appellant further testified that they threatened to blame the entire thing on Appellant's wife if he did not confess, saying "C'mon, you're not going to let your wife go to jail for something you did" and "Well, if it wasn't you, then your wife must have done it."  Appellant, who wasn't under arrest at the time, then asked to speak with his family members and the detectives declined to let him go.  Appellant then said, "I need to speak with an attorney," to which the detectives responded thusly:

Come on, Saul. You’re just being selfish. We can’t let you do that. If you do that, then we won’t be able to talk to the Assistant D.A.’s on your behalf. We know you have a clean record. We know you’re a good guy. With your clean record, you’ll probably get a bond and be out by Monday, and then you can straighten all this out.

Finally, Appellant testified, the officers' tactics caused him to confess:

Like I said, I was tired, exhausted. I didn’t want my wife to go to jail. I didn’t want them to take our kids away. I wanted to get out of that room. I wanted to talk to my family, and they weren’t letting me do that until I said what they were saying.

Despite the conflicting nature of the testimony, the trial court refused to provide an appropriate instruction to the jury pursuant to Article 38.23 of the Texas Code of Criminal Procedure, which provides, in relevant part:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

The Texas Court of Criminal Appeals instructs that "the trial court has a duty to give an article 38.23 instruction sua sponte (on its own) if 3 requirements are met:

1. Evidence heard by the jury raises an issue of fact (true in this case); 
2. The evidence on that fact is affirmatively contested (true again); and
3. The contested factual issue is material to the lawfulness of the challenged conduct in obtaining the statement claimed to be involuntary (bingo).

Accurately citing this standard, the lower court (8th Court of Appeals - El Paso) simply said that it was undisputed that Appellant received Miranda warnings and completely disregarded the other alleged egregious conduct by the detectives. 

Not willing to sweep such unconsionable interrogation tactics under the rug, the CCA reversed the judgment of the lower court, holding that the evidence did raise a fact issue regarding whether a threat to arrest and prosecute Appellant's wife rendered his confession involuntary under due process and that the trial judge should have so instructed the jury under article 38.23.  The only problem now is that the CCA remanded the case back to the 8th Court for a harm analysis, so we can bet that this conviction will stand - a shallow and temporary victory for the Appellant in the interim.

An interesting side note - Presiding Judge Keller went off on a bit of a tangent on page 26 of the opinion regarding the logical disconnect between a Miranda challenge and a constitutional challenge under article 38.23.  Not exactly germane to the case, but interesting nonetheless.

Pre-Trial Motion to Quash Indictment is a Facial Challenge

When a defendant challenges the indictment at a pretrial hearing, the only inquiry may be into whether the indictment, on its face, met the pleading requirements.A trial court may not determine the sufficiency of evidence to support or defeat any of the elements of the charged crime alleged in the indictment at a pretrial hearing.

State v. Reyes, 8th District Court of Appeals (El Paso), reported 24 Feb 2010.

Can an Accomplice be Prosecuted for "Aiding & Abetting" if the Principal is Acquitted?

YES. In Texas, "collateral estoppel" does not bar an accomplice's trial. Simply put, "collateral estoppel" means that when an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated by the same parties in any future lawsuit arising from the same event or condition. In the criminal arena, collateral estoppel is embodied within the double-jeopardy clause of the 5th Amendment and only concerns the relitigation of specific factual determinations between the same parties.

When multiple actors (a principal and his accomplices) are tried in separate trials for the same offense(s), double jeopardy and collateral estoppel are not implicated. This is primarily because the parties to each case are different. While it seems illogical that the law allows an accomplice to stand trial after a jury has acquitted the principal actor, it can (and does) happen. I mean, how can someone be prosecuted for aiding and abetting a person who is found "not guilty" of the ultimate crime? A silly question is seems. Here's what the 8th District Court of Appeals (El Paso) recently put together on the subject:

Does Collateral Estoppel Bar Accomplice's Trial?

Standefer v. United States, 447 U.S. 10, 100 S.Ct. 1999, 64 L.Ed.2d 689 (1980), is the controlling case on whether an accomplice may be tried for the same offense after the principal was acquitted. In that case, Standefer was accused of aiding and abetting a revenue official in accepting compensation beyond that authorized by law. Id. at 11-12. After the revenue official was acquitted of accepting unlawful payments, Standefer moved to dismiss the charges, arguing, on principles of collateral estoppel, that because the principal was acquitted, he could not be convicted of aiding and abetting that principal. Id. at 13. In rejecting this argument, the Supreme Court traced the origins of aiding and abetting, and found that there was "a clear intent to permit the conviction of accessories to federal criminal offenses despite the prior acquittal of the actual perpetrator of the offense." Id. at 19. The Court further noted that collateral estoppel would not bar the accomplice's trial because through lenity, compromise, or mistake the jury might have reached an irrational result in the prior trial, which was not subject to review at the government's instigation. Id. at 21-23. Although "symmetry of results may be intellectually satisfying, it is not required;" thus, the acquittal of a principal does not bar the conviction of an accomplice. Id. at 25.

The Court of Criminal Appeals likewise rejected a similar complaint in Ex parte Thompson, 179 S.W.3d 549 (Tex. Crim. App. 2005). There, Thompson contended that he was factually innocent of capital murder when a different jury found the principal guilty of only felony murder. Id. at 551-52. In rejecting the argument, the Court noted that it "is well-established that one accomplice may be found guilty of a different, more serious offense than other accomplices," and that the acquittal of the principal does not prevent conviction of his accomplice, regardless of whether the acquittal of the principal occurs before or after the accomplice's trial. Id. at 553-54.

See full text of State v. Cotto, (29 Jan 2010) HERE.