Revisiting Michigan v. Bryant

Back in February, we alerted you to the Supreme Court decision in Michigan v. Bryant regarding testimonial v. non-testimonial statements.  I wanted to re-post on this case and take a deeper look at what has changed as a result of the Supreme Court’s opinion.

The Bryant court came up with a new test to evaluate what types of statements made to law enforcement are testimonial.  Before Bryant, Crawford basically stated that statements made during interrogations qualified as testimonial.  But, Crawford was just the tip of the iceberg.  After Crawford, the Court in Davis v. Washington specifically addressed statements made to officers to enable them to respond to an ongoing emergency.  The Court held that those statements are non-testimonial.  The problem was that the Court in Crawford and Davis failed to give us a clear test to determine what types of statements would be non-testimonial.

Finally, the Court decided Bryant, giving us a test. Under the Bryant test, courts must consider three factors:

1) The circumstances of the encounter;

2) The questions and statements of the participants; and

3) The primary purpose of the interrogation as viewed by reasonable participants at the time.

The case was consistent with Crawford.  Analyzing the facts in Crawford, we can see that a 911 call reporting an ongoing assault would still be held non-custodial under the Bryant test.  The circumstances of the encounter was that there was an ongoing emergency taking place, the questions and statements of the participants were specifically in relation to the 911 call and the primary purpose of the 911 call was to report an emergency.  The Bryant court ultimately held that if the primary purpose of the statement is not for the purpose of creating a substitute for trial testimony, then the Confrontation Clause does not apply.

For all practical purposes, Crawford seemed to give a blanket exception for all 911 calls as being non-testimonial.  By giving us a test, the Supreme Court left each statement to be evaluated on a case-by-case basis.  Could a 911 call be considered testimonial?  If evaluated under the Bryant test, and the right circumstances exist, we think it could be.  This argument could have been made even after the Crawford decision came down, but it may be easier to point the court to the Bryant test when arguing that statements made were subject to the confrontation clause – even if there is an emergency situation taking place.

Michigan v. Bryant, 131 S. Ct. 1143 (2011)
Crawford v. Washington, 541 U.S. 36 (2004)
Davis v. Washington, 547 U.S. 813 (2006)

Dying Declaration Non-Testimonial Says the Supreme Court

Today, the Supreme Court ruled that dying declarations (classified in this case as "excited utterances") made to police officers and identifying the suspect, were admissible despite the fact that the witness did not later testify at trial.  The Court labeled the man's statements "non-testimonial" for purposes of the Confrontation Clause (and the Crawford case).  To read more about it, see CNN coverage HERE.

Read the Court's opinion in Michigan v. Bryant HERE.

Justice Scalia did not mince words in his dissent:

Today's tale -- a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose -- is so transparently false that professing to believe it demeans this institution.

Mineola Swingers Cases "Rife with Error"

Last week the 14th District Court of Appeals (Houston) released three opinions in the "Mineola Swingers" cases.  These cases involved three co-defendants who were convicted of child sexual abuse and organized crime for teaching children how to engage in sexual conduct and then taking the children to perform sexual acts publicly in front of a Swingers club.  Sick, I know.  So thought the trial court, because, as the 14th Court points out:

the trial court adopted ad hoc evidentiary rules that operated to assist the State in proving its case, while impeding [the defendant's] ability to defend himself.

Of the three cases released last week, Mayo v. State was modified and affirmed, while Kelly v. State and Pittman v. State were reversed and remanded.  Some of the pertinent reasons for each decision are contained below.

Mayo v. State -- Appellate decision hinged not on the evidence adduced at trial or the State's method of proving the case, but rather on a jury instruction and the a cumulation of sentences issue.  In giving a venue instruction regarding the sufficiency of proof, the trial court relied on previaling Texas caselaw rather than statute.  The CCA, however, held in 2003 that "Texas courts are forbidden from instructing the jury on any presumption or evidentiary sufficiency rule that does not have a statutory basis."  Brown v. State, 122 S.W.3d 794 (Tex. Crim. App. 2003).  The appellate court found this error to be harmless.  What the appellate court did not find harmless, however, was the trial court's ordering of appellant's convictions for child sexual abuse and organized crime to run consecutively.  Noting that "Texas Penal Code section 3.03 unambiguously provides that only offenses specifically enumerated in subsection (b) may be ordered to run consecutively" and "organized crime is not one of the enumerated offenses,"  the appellate court modified the judgment to reflect "that appellant's life sentence for engaging in organized criminal activity shall run concurrently with her two consecutive twenty-year sentences for sexual performance of a child."

Kelly v. State -- To summarize this case in a few lines, the appellate court stated:

Although the evidence is legally sufficient to support appellat's conviction, the record is rife with error.  Many of these errors did affect appellant's substantial rights.  Therefore we reverse and remand for a new trial.

Of appellant's 43 issues presented on appeal, here are some of the highlights for which the Court reversed the case:

• The trial court denied the defendant the opportunity to present a meaningful defense by preventing him from pursuing the trial theory that the child victims' foster parents, who had recently been accused of child sexual abuse in CA, coached the victims to lie against the defendant in order to shift the blame from the foster parents.
• The trial court improperly allowed the State to introduce evidence that the 2 co-defendants were convicted and sentenced to life in prison for their involvement in the sex sting.
• The trial court allowed a mountain of hearsay statements of the outcry witness through an investigator who recounted the statements as fact even though he was not present for any of the statements.
• The State's witness on "child grooming" was not an expert and should not have been allowed to testify as such.

These errors (and more) contributed to the Court's reversing and remanding the case for a new trial.  Perhaps next time around the trial court will simply conduct the trial within the confines of acceptable trial practice and evidentiary rules, because, as the Court noticed, "the evidence [was] legally sufficient to support appellant's conviction."  I'm sure the Court could have engaged in some mental gymnastics to uphold this conviction, but it decided to require a cleaner record from the trial court.  Either way, this decision signals small shift toward maintaining a legal and respectable justice system in Texas.

Pittman v. State -- The Court reversed and remanded due to the trial court's abuse of discretion in allowing the State to introduce numerous extraneous offenses (drug use, sexual acts with other children, etc.) which were highly prejudicial when appellant was charged with sexual abuse of only one child.  In reversing the conviction, the Court stated:

Had the State tried appellant only for the offense with which he was charged, aggravated sexual assault of a child, it might have convicted him of that offense. Unfortunately, in this case, the trial court permitted the State to try appellant for being a criminal generally, rather than for the offense for which he was indicted. In fact, he was tried for being the worst sort of criminal: a child predator who engages in an organized and ongoing scheme with other pedophiles to sexually abuse young children.

It appears the State has some work left to do in these cases.

Waco Court of Appeals Gets One Wrong!

If you will indulge me, this post is a bit of a rant.

In a recent case, In the Matter of J.W., a Juvenile, the 10^th Court of Appeals (Waco) appears to have made a critical blunder in its reasoning and application of Texas Rule of Evidence 803(5) – the hearsay exception for past recollection recorded.

I missed this case when the opinion was handed down on Dec 30, 2009, but was alerted to it here.  I usually only monitor the criminal decisions and this one (being reported on the civil side) slipped through the cracks.

The case involved the written and signed statement of a witness to a law enforcement officer.  The witness implicates the defendant in her statement, providing an eye-witness account of the crime.  As she signed the statement the officer asked if the statement was true and the witnesses responded affirmatively.

However, between the time that the witness gave the statement and the date of trial, the witness was in a bad car accident which caused amnesia. As a result, she could not recall the events contained in the statement and could not even recall making a statement at all.  She could, however, identify her signature at the conclusion of the statement.

At trial the government sought to read into evidence the written statement of the eye-witness to the officer under Texas Rule of Evidence 803(5) as past recollection recorded.  TRE 803(5) provides:

A memorandum or record concerning a matter about which a witness once had personal knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly, unless the circumstances of preparation cast doubt on the document’s trustworthiness.  If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.   

The trial court allowed the statement to be read into evidence over defense objection and the juvenile defendant was convicted.  On appeal, the 10^th Court of Appeals properly identified the four predicate elements for the use of a recorded recollection:
     

1. the witness must have firsthand knowledge of the event,
2. the written statement must be an original memorandum made at or near the time of the event while the witness had a clear and accurate memory of it,
3. the witness must lack a present recollection of the event, and
4. the witness must vouch for the accuracy of the written memorandum.

 Johnson v. State, 967 S.W.2d 410 (Tex. Crim. App. 1996).  From the nature of the written statement and the testimony of the officer who took the statement, the first 3 prongs were clearly satisfied. However, the 4^th prong is the substance of the question presented to the appellate court.  In order to satisfy the 4^th prong, the State relied on the officer's testimony that the eye-witness declarant told him the statement was true when she wrote it.  While realizing that “ideally this evidence (voucher of the accuracy of the statement) would come from the declarant,” the Court held that “under the circumstances of this case (where the declarant cannot remember anything due to amnesia), we cannot say the trial court abused its discretion.” My question to the Court, the counsel involved, and anyone who reads this case is: 

WHAT ABOUT THE 6^TH AMENDMENT?  Does this juvenile defendant not have the right to confront the witness against her?  This eye-witness statement implicating the defendant is surely “testimonial” under Crawford.  And as a testimonial statement, the defendant has a right to cross-examine the declarant.  This declarant, while physically present at trial, was “unavailable” in a legal sense because she could not provide testimony about the facts and circumstances surrounding her statement.  More importantly, her statement could not be subjected to the “crucible of cross-examination.” 

To illustrate the critical error in this case – assume for a moment that the declarant was actually the one who committed the offense and in an effort to shift the blame, she gave a completely false statement implicating the defendant.  Normally that is something that will come to light during cross-examination (if not sooner).  However, in this case, the declarant does not remember anything about the incident, much less whether she gave an accurate account of the incident.   

In reaching its erroneous conclusion, the Waco Court of Appeals relied heavily on Johnson v. State, a case which was decided before the Supreme Court decision in Crawford v. Washington changed the landscape for confrontation clause analysis.  Before Crawford, courts used the Ohio v. Roberts (indicia of reliability) framework when considering the admissibility of hearsay statements.  I believe that a fair reading of Johnson alone dictates that this case be overturned, but had the Court considered both Crawford and Johnson in its analysis, it would have surely reached a different conclusion. 

I sincerely hope that the Supreme Court of Texas takes a look at this case.  Maybe it is ultimately a “waiver” issue because it doesn’t appear that the 6^th amendment argument was made during trial.  I hope not, because in my opinion the Waco Court of Appeals got it wrong and this case should be overturned.