Weekly Case Summaries: June 17, 2011

Supreme Court of the United States

J.D.B. v. North Carolina (5-4)

06/16/11 : Cite No. 09-11121

Issue:

Is the age of a child subject to police questioning relevant to the custody analysis of Miranda?

Holding (Sotomayor):

Yes. "So long as the child's age was known to the officer at the time of police questioning, or would have been objectively apparent to a reasonable officer, its inclusion in the custody analysis is consistent with the objective nature of that test." Read Opinion.

Dissent (Alito, w/ Roberts, Scalia, & Thomas):

As a result of the Court's new approach, other factors such as intelligence during the interview will now, no doubt, need special consideration and "bit by bit, Miranda will lose the clarity and ease of application that has long been viewed as one of its chief justifications."

Commentary:

This case represents a departure from the objectively reasonable test that has so far governed Miranda analysis. For those of you who hoped that Sotomayor's experience as a prosecutor would influence her criminal law thinking, sorry for your loss. The best way to avoid becoming mired in this sort of litigation is to teach your law enforcement to deliver the anti-Miranda warnings when attempting noncustodial interrogation with a juvenile: (1) You are not under arrest; (2) You are free to return to class/your room at any time; (3) Do you understand and want to answer some questions?

Davis v. United States (7-2)

06/16/11 : Cite No. 09-11328

Issue:

Does the 4th Amendment exclusionary rule apply when the police conduct a search in compliance with binding precedent that is later overruled?

Holding:

No, because suppression would not deter police misconduct and would be expensive in terms of truth and safety. Read Opinion.

Dissent (Breyer, w/ Ginsburg):

The majority has created a new "good faith" exception that is incompatible with the court's retroactivity cases.

Commentary:

This case doesn't directly change Texas law because of the statutory exclusionary rule in the Code of Criminal Procedure. However, Texas prosecutors, by focusing on article 38.23's language, should use this case to press for a grammatical interpretation of the word "obtained" to mean that suppression applies only in cases in which the unlawful search or seizure violated the law at the time of the search or seizure. For those of you dealing with a defendant arguing for retroactive application of a Gant issue, this might be a good case to use.

Court of Criminal Appeals

Bowen v. State

06/15/11 : Cite Nos. AP-76,519 & 76,520

Issue:

When counsel for the defense was also representing a confidential informant for the State in an unrelated matter, did the trial court improperly disqualify the defendants' attorney in their capital murder trial?

Holding:

Yes. Both defendants had written waivers for any potential conflict and the defense had a strategy that did not treat the informant as a hostile witness. Additionally, the trial court did not have a showing of actual conflict but rather was concerned about a public perception of fairness. Read Opinion.

Commentary:

With this opinion, the CCA makes it virtually impossible to disqualify defense counsel in a case if the defendant is willing to waive the conflict. Prediction: during trial, this perceived conflict will develop into an actual conflict, leading to a mistrial or reversal on direct appeal. What a waste. Note: the same lawyer is also representing the husband and wife in a capital murder prosecution.

Lopez v. State

06/15/11 : Cite No. PD-0481-10

Issue:

Was the defendant's attorney ineffective when he failed to object to testimony from three outcry witnesses rather than limiting it to one under CCP art. 38.072?

Holding:

No. The defendant's trial strategy may have called for allowing the testimony and there may have been a tactical or strategic decision to allow the three outcry witnesses. The defendant failed to show the reasons for these choices and was not able to show that his representation fell below an objective standard of reasonableness. Read Opinion.

Commentary:

Nothing new in this opinion. Ineffective assistance of counsel claims are rarely successful on direct appeal because there is rarely a record reflecting the strategic thinking of the defense counsel. The court of appeals should have known better.

State v. Chupik

06/15/11 : Cite No. PD-0960-10

Issue:

In a State's appeal from a pretrial order granting a motion to suppress evidence, is it required for the record to reflect the suppressed evidence for an appellate court to consider a State's interlocutory appeal under Article 44.01(a)(5)?

Holding:

No. It is sufficient that the prosecuting attorney certifies that the suppressed evidence is of substantial importance in the case. Read Opinion.

Concurrence:

Judge Johnson comments on the applicability of Johnson v. State to this set of facts. Read Concurrence.

Dissent:

Judge Price points out that any ruling of the court of appeals on the legality of the trial court's ruling would be advisory because the record does not reveal any suppression of concrete evidence. Further, Judge Price mentions that the court of appeals rejected the State's appeal on an alternative basis. Read Dissent.

Commentary:

This case is a principled reading of the specific language in the statute granting the State the right to appeal a ruling in a motion to suppress evidence. Thank goodness, or prosecutors would forever be litigating the relative value of the evidence suppressed rather than the correctness of the decision to suppress.

Gear v. State

06/15/11 : Cite No. PD-1069-10

Issue:

Was the evidence legally sufficient to find the defendant guilty of attempted burglary of a habitation?

Holding:

Yes. The evidence included the victim finding the defendant, recently unemployed with only a dollar in his pocket, coming through a broken window, looking startled to find someone home, then running off. A fact-finder could reasonably find beyond a reasonable doubt that the defendant intended to commit theft inside the complainant's home. Read Opinion.

Dissent:

Judge Cochran agrees that the defendant lied and was a trespasser, but there was not enough evidence that he intended to commit theft, assault, or some felony once inside the home. Read Dissent.

Commentary:

The majority applies common sense to the inferences that conclude the burglar was there to steal. Judge Cochran offers a surprising resistance to such common sense application of how people really behave.

Limon v. State

06/15/11 : Cite No. PD-1320-10

Issue:

Did the 13-year-old boy have apparent authority to consent to police entry into the home at two a.m.?

Holding:

Yes. Several factors support the officer having a reasonable belief that the boy had the authority without the need to verify that authority, specifically the manner in which the boy answered the door, that consent was for mere entry and not for a search, the time of the entry, and the officer's public safety function. Read Opinion.

Dissent:

Judge Meyers states that nobody gives a teenager the actual authority to allow strangers into their home and that this opinion ignores reality. Quoting the Supreme Court, "There comes a point where this Court should not be ignorant as judges of what we know as men." Read Dissent.

Commentary:

Teenagers who answer the door of a home don't have actual authority to allow a person to enter that home? That would be news to a lot of parents of teenagers. Perhaps it has been many years since Judge Meyers had a teenager in the home. Perhaps drug dealers will start posting on their doors: Teenagers answering this door have no authority to allow anyone to enter this home. Yeah, that would make sense.

Phillips v. State

06/15/11 : Cite No. PD-1402-09

Issue:

When the State errs and the defendant's prosecution was barred by the statute of limitations, must the defendant preserve the issue for appeal?

Holding:

No. An absolute statute-of-limitations bar is not forfeited by the failure to raise it in the trial court. Read Opinion.

Dissent:

Presiding Judge Keller states that there is no ex post facto violation in this case and as such the defendant has forfeited his complaint. Read Dissent.

Commentary:

Perhaps Judge Keller has something of a technical point in her dissent. But wouldn't the CCA get to the same result through an ineffective assistance of counsel claim? What possible strategy could a defense attorney have for failing to raise a winning statute of limitation defense?

Young v. State

06/15/11 : Cite No. PD-1030-10

Issue:

Was there an error in the jury charge when it allowed the jury to find the defendant guilty for a failure to report as a sex offender but did not require a unanimous finding for the manner and means where the failure could have been either before or after the defendant changed his address?

Holding:

No. The jury charge properly set out a single "failure to report" offense with two distinct manners and means. Read Opinion.

Commentary:

This opinion resolves a question that has been raised in lots of cases. There are a million ways to violate the sex offender registration law. But they all amount to a single violation with various manner and means.

Texas Courts of Appeals

Foster, Leal, & Broden v. TDCJ – 3rd COA

06/10/11 : Cite No. 03-00191-CV

Issue:

Did the trial court correctly deny the defendants' claims that TDCJ's new execution procedure, implemented March 15, 2011, was void because the department failed to follow the Administrative Procedure Act's notice-and-comment rulemaking procedure?

Holding:

Yes. Sovereign immunity deprived the district court of subject-matter jurisdiction so it could not grant the requested injunctive relief. Read Opinion.

Commentary:

Yet another basis for delay of execution through civil litigation is extinguished. What will they think of next?

Haagensen v. State – 6th COA

06/10/11 : Cite No. 06-10-00198-CR

Issue:

When the State enhances a drug offense by alleging a drug-free zone, must it also allege that the daycare center was licensed, certified, or registered to qualify it as a school?

Holding:

Yes, because the daycare center is an element of the offense, the State must allege and prove that it met the definition of a school (i.e., the facility provided care for more than 12 children and is licensed, certified, or registered). Moreover, it is unlikely that a church-operated school operates without a license; therefore, the evidence is sufficient. Read Opinion.

Dissent:

While it may be true that the daycare center was licensed, the State failed to prove it.

Commentary:

The dissent makes a strong case for insufficient evidence as to whether the daycare center was licensed, certified or registered. The majority opinion, by saying that it refuses to accept the inference that a school would operate without being licensed, certified or registered, doesn't make a very convincing case for affirmative proof of that element. Next time, the prosecutor should be asking someone more directly whether the daycare center is licensed, certified or registered. 

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