January/February 2012 SDR - Voice for the Defense Vol. 41, No. 1

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Thursday, February 9th, 2012

Voice for the Defense Volume 41, No. 1 Edition

Editors: Tim Crooks, Kathleen Nacozy, Chris Cheatham

Supreme Court

The police failure to give Dixon his Miranda rights during the forgery interrogation was acceptable because his later confession to murder was properly warned and voluntary. Bobby v. Dixon, No. 10-1540 (U.S. Nov. 7, 2011)

        On November 4, 1993, in a chance encounter at the police station, a detective issued Miranda warnings to Dixon and asked him about Hammer’s disappearance; Dixon declined to answer questions without his lawyer present. While investigating the disappearance, police discovered that Dixon forged Hammer’s signature. On November 9th, police arrested Dixon for forgery. That day, police intermittently interrogated Dixon. Prior to the interrogation, the police decided not to give Dixon Miranda warnings for fear that Dixon would again refuse to speak with them. Dixon asserted his right to have an attorney present, but police continued to question Dixon without an attorney. Dixon admitted to the forgery but said he had no knowledge of Hammer’s disappearance. Later that day, police found Hammer’s body. Prior to subsequent police questioning, Dixon stated that he heard the police found a body and said, “I talked to my attorney, and I want to tell you what happened.” The police read Dixon his Miranda rights, obtained a signed waiver of those rights, and spoke with Dixon for half an hour. Then, using a tape recorder, police again advised Dixon of his Miranda rights; Dixon confessed to kidnapping, robbing, and murdering Hammer. At trial, he was convicted of forgery, kidnapping, robbery, and murder, and sentenced to death.

        The Sixth Circuit held that the police should have terminated the forgery interrogation when Dixon requested counsel. The court also held that the police’s planned refusal to read Dixon his Miranda rights during the first session of his interrogation for murder was unconstitutional.

        The Supreme Court rejected the Sixth Circuit’s description of the police’s technique as “question first, warn later,” mainly because Dixon did not repeat a vital earlier admission during the second murder interrogation; in other words, the first, unwarned interrogation did not directly enable a confession during the second session. The Court held, generally, that this “two-step interrogation process” did not unconstitutionally interfere with the effectiveness of Miranda warnings.

Under 28 U.S.C. § 2254(d)(1), “clearly established Federal law” is limited to Supreme Court decisions as of the time of the relevant state-court adjudication on the merits. Greene v. Fisher, No. 10-637 (U.S. Nov. 8, 2011)

        While Greene was appealing his conviction for murder, robbery, and conspiracy, Gray v. Maryland, 523 U.S. 185 (1998), held that it is unconstitutional for prosecutors to use redacted statements like those of Greene’s codefendants. Greene asked a Pennsylvania district court to vacate his conviction under the habeas corpus process. Habeas relief is allowed only when a state court violates “clearly established Federal law.” The district court held that Greene could not rely on Gray because that decision was not clearly established when the Pennsylvania Supreme Court affirmed his conviction; the Third Circuit affirmed.

        The Supreme Court affirmed the Third Circuit. Since the Pennsylvania Superior Court’s decision predated Gray by three months, Gray was not “clearly established Federal law” that would allow the federal court to grant Greene’s habeas corpus application. The Court observed that Greene missed two opportunities to obtain relief under Gray. Greene could have filed a petition for writ of certiorari after the Pennsylvania Supreme Court dismissed his appeal, which would have likely produced a remand in light of Gray. Greene also could have asserted Gray in a petition for post-conviction relief.

Fifth Circuit

A deportable alien’s supervised release term begins when he is released from the custody of the Federal Bureau of Prisons (having discharged his prison sen­tence) to the custody of Immigration and Customs Enforce­ment to await deportation. United States v. Garcia-Rodriguez, 640 F.3d 129 (5th Cir. 2011)

In drug case, court did not err in admitting evidence of a drug lab at D’s house at an earlier time; the evidence was not extrinsic evidence governed by Fed. R. Evid. 404(b), but was evidence “intrinsic” to the crime charged because it was inextricably intertwined with evi­dence about the crime charged. United States v. Flores, 640 F.3d 638 (5th Cir. 2011)

        Furthermore, district court did not err in applying an enhancement for obstruction of justice under USSG § 3C1.1 in sentencing two defendants who testified at trial; the court did not clearly err in finding that defendants perjured themselves in material assertions that were not worthy of credence in light of the weight of the physical evidence, and that were flatly contradicted by other witnesses and the ultimate finding of the jury. However, the Fifth Circuit found erroneous the aggravating role enhancement (USSG § 3B1.1(c)) applied to one defendant because the presentence report (PSR) facts on which it rested differed in several material respects from the evidence at trial; because the Fifth Circuit could not tell whether the district court would have applied the enhancement had the PSR correctly summarized the trial evidence, the error was not harmless. The Fifth Circuit vacated D’s sentence and remanded for resentencing.

In attempted manslaughter case (committed while D was in prison on another charge), the Louisiana court did not unreasonably apply Supreme Court law in re­ject­ing D’s claim that his post-incident questioning by prison officials violated Miranda; the questioning was conducted by the prison staff, using the prison’s routine immediate post-fight procedure. Wilson v. Cain, 641 F.3d 96 (5th Cir. 2011)

Death-sentenced Mississippi D was not entitled to a certificate of appealability on his claim that his trial attorneys provided ineffective assistance by failing to investigate, discover, and introduce readily available mitigating evidence concerning D’s background and mental condition; this could have been a reasonable strategy designed to keep out unfavorable information. Mitchell v. Epps, 641 F.3d 134 (5th Cir. 2011)

The press and public have a First Amendment right of access to sentencing hearings; the district court should have given the press and public notice and an op­por­tunity to be heard before closing the sentencing proceeding. Hearst Newspapers, L.L.C. v. Cardenas-Guillen, 641 F.3d 168 (5th Cir. 2011)

        Newspaper’s appeal of district court’s order closing the sentencing of a drug cartel leader was not moot, even though the sentencing had already occurred. This is a prominent newspaper that seeks to cover major cases, and it is reasonable to expect that courts will close other criminal proceedings to the newspaper in future cases; at the same time, these issues often evade review due to the short duration of criminal trials.

Where a defendant makes a post-arrest statement that is sufficiently incomplete with respect to a trial statement on the same subject matter as to be arguably inconsistent, comment upon the omissions is permitted. Puckett v. Epps, 641 F.3d 657 (5th Cir. 2011)

        With respect to D’s claim of improper use of post-arrest silence in violation of Doyle v. Ohio, 426 U.S. 610 (1976), the Fifth Circuit held that this claim was not procedurally barred; however, on the merits, the state court did not unreasonably apply Doyle and its progeny in rejecting D’s claim. Doyle does not apply to cross-examination that merely inquires into prior inconsistent statements.

Title II of the Americans with Disabilities Act validly abrogates a state’s Eleventh Amendment sovereign im­munity where the alleged misconduct also constitutes a violation of the Fourteenth Amendment. Hale v. King, 642 F.3d 492 (5th Cir. 2011), on denial of reh’g to 624 F.3d 178 (5th Cir. 2010)

        However, the Fifth Circuit held that as a threshold matter, plaintiff prisoner raising claims of inadequate medical care had not alleged valid claims under Title II. The Fifth Circuit remanded the case to allow the plaintiff (who had been proceeding pro se in the district court) an opportunity to amend his claims to remedy the deficiencies and bring them within Title II.

The government breached its plea agreement with D by using D’s immunized statements to advocate for the presentence report’s Guideline calculation; this was inconsistent with any reasonable understanding of the plea agreement, and none of the government’s jus­ti­fi­cations were availing. United States v. Harper, 643 F.3d 135 (5th Cir. 2011)

        The Fifth Circuit vacated the sentence and remanded for resentencing before a different judge.

D received adequate Fed. R. Evid. 902(11) notice—six months, written notice—of phone records admitted at trial. United States v. Olguin, 643 F.3d 384 (5th Cir. 2011)

        Furthermore, court did not violate one defendant’s Confrontation Clause rights by admitting phone records; the phone calls did not implicate the defendant who complained about their admission, and a defendant’s confrontation right is triggered only by a witness testifying against him. Additionally, the calls qualified as co-conspirator statements, which are not testimonial for purposes of the Sixth Amendment; the speakers’ identities were sufficiently authenticated; and any error in the admission of these calls was harmless to the complaining defendant, since the calls did not implicate him.

        Agreeing with all other circuits, the Fifth Circuit held that the Comprehensive Forfeiture Act, 21 U.S.C. § 853, permits the imposition of personal money judgments against defendants. Nor did court err in entering judgment against the two challenging defendants for the full proceeds of the conspiracy. Finally, the court did not err in deciding that the “proceeds” of the conspiracy meant gross receipts, not just net profits; United States v. Santos, 553 U.S. 507 (2008), does not compel a net-profits interpretation in cases involving drug trafficking.

Regarding laundered money from the sale of drugs and other contraband, Congress used “proceeds” in 18 U.S.C. § 1956 to mean gross receipts rather than net profits, regardless of any potential merger problem. Wilson v. Roy, 643 F.3d 433 (5th Cir. 2011)

        D was not entitled to relief on his habeas petition (brought under 28 U.S.C. § 2241 pursuant to the savings clause of 28 U.S.C. § 2255) claiming that his money laundering conviction was defective under United States v. Santos, 553 U.S. 507 (2011). Garland v. Roy, 615 F.3d 391 (5th Cir. 2010), did establish that Santos applies retroactively, so D satisfied this requirement for relief under the savings clause. However, unlike in Garland, Santos did not establish here that D was convicted of a nonexistent offense; viewing Justice Stevens’ concurrence in Santos as the controlling law, the Fifth Circuit held that because D was convicted of laundering money derived from the sale of contraband, Santos did not undermine his conviction. Thus, D could not satisfy the requirement that he may have been convicted of a nonexistent offense.

District court did not err in denying federal habeas cor­pus relief to D convicted of armed robbery in Texas state court; the failure at D’s trial to redact the ar­rest­ing officer’s affirmation of belief that D was the rob­ber, from a warrant admitted into evidence, did not render D’s trial so fundamentally unfair as to violate due process. Gonzales v. Thaler, 643 F.3d 425 (5th Cir. 2011)

        The Fifth Circuit was not persuaded that the statements in the warrant affidavit were a crucial, critical, highly significant factor upon which the jury based its verdict. The Fifth Circuit noted that its denial of habeas relief was not an endorsement that the evidence was overwhelming; the evidence consisted primarily of cross-racial identifications, which studies have demonstrated to be particularly unreliable.

Illegal alien’s conviction for possession of a firearm, in violation of 18 U.S.C. § 922(g)(5), did not violate the Second Amendment; “the people” in the Second Amendment does not include illegal aliens. United States v. Portillo-Muñoz, 643 F.3d 437 (5th Cir. 2011)

The federal court correctly reviewed the state court’s decision de novo where state pretrial detainee charged with second-degree murder raised, in a federal habeas petition under 28 U.S.C. § 2241, a double-jeopardy challenge to being retried after the declaration of a mistrial in his first trial. Martinez v. Caldwell, 644 F.3d 238 (5th Cir. 2011)

        The deference required by 28 U.S.C. § 2254(d) does not apply to habeas petitions brought by pretrial detainees under § 2241. However, on the merits, the federal district court erred in granting federal habeas relief precluding D’s retrial; where a case ends in a mistrial at defendant’s behest, or with defendant’s consent, the Double Jeopardy Clause bars retrial only if the prosecution or the court intended to goad defendant into requesting a retrial. Here, the record read as a whole did not support the district court’s conclusion that the presiding trial judge purposefully withheld his knowledge of how the jury was split (9 to 3 in favor of acquittal) to goad the defense into requesting a mistrial based on the jury’s deadlock. The Fifth Circuit vacated the district court’s order granting relief and denied D’s habeas petition.

Court of Criminal Appeals

Under the totality-of-the-circumstances standard, this search-warrant affidavit was insufficient to show PC because there could have been a 25-hour gap between the time officer stopped D and the time he obtained a search warrant for blood; the affidavit should have referenced the gap between the last moment of driving and the moment the magistrate signed the warrant. Crider v. State, 352 S.W.3d 704 (Tex.Crim.App. 2011)

By testifying that he did not commit the robbery, D expressly denied responsibility; the State was entitled to comment on that denial of responsibility. Randolph v. State, No. 0404-10 (Tex.Crim.App. Nov. 23, 2011)

        D testified to an alibi defense at the guilt phase of his aggravated robbery trial, but did not testify at the punishment phase. In her final punishment argument, the prosecutor stated that D was not worthy of probation because he had not taken responsibility for the crime.

Ex parte Williams, No. 50,662-03 (Tex.Crim.App. Nov. 23, 2011)

        CCA dismissed this application for writ of habeas corpus, claiming that applicant failed to satisfy Tex. Code Crim. Proc. art 11.071, § 5(a), and quoting Supreme Court case law: “[W]e have never held that prisoners have a constitutional right to counsel when mounting collateral attacks upon their convictions[.]”

Appellant was tried for possession of Penalty Group 1 codeine; the evidence presented at trial was insufficient to support a conviction for that offense. Miles v. State, No. 1709-08 (Tex.Crim.App. Dec. 7, 2011)

        On appeal, the parties disagreed about the particular offense for which appellant was tried. This disagreement stemmed from the failure of the indictment and jury charge to include an essential element that would distinguish among the three possession-of-codeine offenses in the Health and Safety Code. The hypothetically correct jury charge required the State to prove the essential element of Penalty Group 1 that the codeine was “not listed in Penalty Group 3 or 4.” To prove this element, the State could show that (1) the concentration of the codeine was more than 1.8 grams of codeine per 100 milliliters, or (2) the codeine was not combined with active nonnarcotic ingredients in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone.The evidence at trial showed only the mere presence of promethazine; a rational juror could not infer whether the promethazine was or was not in recognized therapeutic amounts or in sufficient proportion to confer on the compound valuable medicinal qualities other than those possessed by the codeine alone. Because there was insufficient evidence as to an essential element of the particular offense for which appellant was tried, CCA concluded that appellant’s conviction violates due process. COA erred in failing to identify the offense, and then in failing to measure the sufficiency of the evidence against the essential elements of that offense.

Contrary to appellant’s claim, the trial record showed the legitimacy of “grooming” children for sexual mo­les­ta­tion as a legitimate subject of expert testimony. Morris v. State, No. 0796-10 (Tex.Crim.App. Dec. 7, 2011)

A trial court is required to make an inquiry into the reasonableness of a witness’s assertion of the Fifth Amendment privilege against self-incrimination. Walters v. State, Nos. 0064-11 & 0065-11 (Tex.Crim.App. Dec. 7, 2011)

        CCA overruled Ross v. State, 486 S.W.2d 327 (Tex.Cr.App. 1972), which held that if a witness asserted her Fifth Amendment privilege against self-incrimination on the advice of counsel, “[n]oth­ing further [is] required of the court.” CCA agreed with appellant and found that this is contrary to U.S. Supreme Court case law. CCA agreed with the State, however, that the trial court did make the requisite inquiry in compliance with Supreme Court decisions. A hearing was held outside the presence of the jury at which the State proffered the witness’ expected testimony and at which the witness’ attorney explained that the witness feared incriminating herself in the face of evidence indicating that she may have encouraged the crime. This is about as much of an inquiry as was possible while protecting the witness’ right against self-incrimination and her privileged conversation with her attorney. COA’s judgment affirming appellant’s conviction was correct because the trial court’s inquiry into the reasonableness of the witness’ invocation of her Fifth Amendment privilege was sufficient to establish the risk of incrimination.

Court of Appeals

D was in custody during interview, even though officer informed D that he was not a suspect and that he was free to leave; each time D expressed a desire to go to the hospital or home, officer indicated that he could not go until the police were “finished.” McCulley v. State, 352 S.W.3d 107 (Tex.App.—Fort Worth 2011)

        D’s questions about whether he could go to the hospital or home were insufficient to “terminate” the interview; thus, his post-Miranda statements were admissible. “[N]one of these statements constitute an unambiguous and unequivocal invocation of the right to remain silent or otherwise terminate the interview. . . . In fact, when [D] ultimately told [officer], ‘I just want to go to sleep,’ [officer] did not simply ignore the statement and continue questioning. Instead, [officer] sought to clarify [D’s] wishes before continuing the interview.” In addition, officer “acknowledged that [D] was not wearing shoes. . . . [And of­fi­cer] maintained that for the majority of the nearly four-and-a-half-hour interview, [D] was free to leave at any time but that to leave would have required [officer’s] assistance because ‘it’s . . . kind of a sneaky way out.’ When asked directly how [D] would have left the police station, [officer] said, ‘I would have to had shown him the way out.’”

Passenger’s answer to officer’s question asking where driver was traveling from gave rise to RS (when coupled with the below factors) because the passenger answered officer’s question in great detail while the driver re­mained silent, even though officer was speaking through the passenger window. Baxter v. State, No. 02-10-00364-CR (Tex.App.—Fort Worth Aug. 31, 2011)

        Also, driver had a scared look on his face; passenger had no identification; in response to whether passenger used drugs, passenger said “no” but immediately revised her answer to not “in a long time”; and “the car initially swerved and accelerated.”

Emergency exception to warrant requirement deemed inapplicable because, at the time of the search, the victim’s body was outside the home rather than in­side; after initial protective sweep of home, it was unnecessary for officers to re-enter. And because D had been removed from the scene, “[D] was not in a position to deny consent.” Tollefson v. State, 352 S.W.3d 816 (Tex.App.—San Antonio 2011)

        Automobile exception did not apply to travel trailer. Even though D’s trailer was subject to government regulation, “we hold his trailer was not readily mobile. [D’s] trailer did not have an ignition switch; the only way it could become mobile would be to hitch it to another vehicle, and it was still attached to the utilities at the time of the search.”

In the context of failure to stop and render aid, D had reason to know that the other driver needed medical attention, even though the other driver’s car was merely “struck from the rear while traveling at a speed of approximately forty miles per hour” and even though it “did not roll or strike any other object before coming to rest.” Henry v. State, No. 06-11-00010-CR (Tex.App.—Texarkana Sep. 6, 2011)

        “Here, the record indicates the force of the impact caused [other driver’s] car to spin out of control. . . . [Officer] described the damage to [victim’s] car as severe, rendering the car inoperable. The incident report described the accident as ‘a major accident.’ The crash caused the air bag in [the] vehicle to deploy, and photographs depict significant damage to the front driver’s side of the vehicle. Among the debris at the accident scene was the front license plate of [D’s] vehicle. It was apparent to [officer] that [other driver] was in need of medical treatment at the accident scene, and she was taken by ambulance to the hospital, and was treated for her injuries.”

Even without knowing the time span between the accident and officer’s arrival, evidence was sufficient to show D had been driving while intoxicated because of officer’s testimony indicating that the truck had been recently driven: the hood was still warm, the inside was warmer than the outside. Warren v. State, No. 01-10-00047-CR (Tex.App.—Houston [1st Dist] Sep. 8, 2011)

D unsuccessfully argued that the inconsistent testimony of two officers rendered evidence insufficient that D was intoxicated while operating vehicle. Ruiz v. State, No. 04-10-00722-CR (Tex.App.—San Antonio Sep. 14, 2011)

        “[D] contends the evidence is legally insufficient to support the jury’s verdict . . . because there is a glaring inconsistency between [Officer 1’s] testimony and [Officer 2’s] testimony. [Officer 1] did not smell alcohol on [D] while [Officer 2] did. Additionally, [Officer 1] stated that [D] had a minor cut on his forehead, yet [Officer 2] observed no obvious indication of injury. [D] asserts that the inconsistent testimony of two trained law enforcement officers testifying on behalf of the State creates reasonable doubt. [D] maintains that the evidence of intoxication was weak, and that his explanation for the accident—that he swerved to avoid a deer—was plausible. We disagree that the evidence is legally insufficient to support the jury’s verdict.”