Weekly Case Summaries: July 3, 2009

United States Supreme Court

Melendez-Diaz v. Massachusetts

06/25/09 : Cite No. 07-591 : Confrontation Clause

Issue

Are business records such as laboratory reports by chemists admissible over a defendant's Confrontation Clause objection if the reports were created to establish or prove some fact at trial?

Holding

No. The State's introduction of affidavits detailing a laboratory analysis of seized drugs without calling the chemist who analyzed the drugs violated of the defendant's Sixth Amendment right to confrontation. Laboratory reports by chemists are subject to the rule in Crawford. States, however, may adopt notice-and-demand statutes-and the Court specifically cited CCP Art. 38.41-to deal with the non-testifying chemist issue.
Read opinion.

Concurrence

Justice Thomas noted that he would continue to adhere to his position that "the Confrontation Clause is implicated by extrajudicial statements only insofar as they are contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions."

Dissent

Justice Kennedy wrote that analysts who conduct routine scientific tests are not the kind of conventional witnesses to whom the Confrontation Clause refers.

Commentary

This decision may be shocking for some states but not for Texas. We had already adopted an approach approved by the SCOTUS: filing an affidavit of the chemist and demanding that the defense object before trial to obtain a live witness. And, frankly, it hasn't been burdensome to subpoena a chemist and present live testimony. Justice Kennedy's dissent seems overwrought with fear. And, given all the problems that have surfaced with labs, it's probably a good idea to have the occasional cross-examination of such an expert.

Safford Unified School District #1 et al. v. Redding

06/25/09 : Cite No. 08-479 : Fourth Amendment Search

Issue

Did a middle-school student have a Fourth Amendment right to privacy when she was subjected to a search of her bra and underpants by school officials who were acting on reasonable suspicion that the student brought forbidden prescription and over-the-counter drugs to school?

Holding

Yes. There was no reason to suspect that the over-the-counter and prescription drugs presented a danger or were concealed in the student's underwear. Despite the school personnel's report that they did not see anything during the search, a strip search and its Fourth Amendment consequences are not defined by who was looking or how much may or may not have been seen.
Read opinion.

Dissent

Justice Stevens would affirm the appellate court's finding of qualified immunity for the school personnel.

Concurrence and Dissent

Justice Ginsburg agreed that the search violated the student's Fourth Amendment right, but also would rule that the Court's previous opinion in New Jersey v. T. L. O., 469 U. S. 325 (1985), provided clearly established law for the current case.

Commentary

This opinion is not very helpful to the average school administrator. While it concludes that this particular search was wrong, it implies that such a search would be OK only if (1) the drugs were more dangerous or (2) there was specific information to believe the drugs were hidden in clothing. Those are odd facts for making the search reasonable. Probable cause for a search the body of a person for drugs has always been sufficient if there was reason to believe the person possessed drugs. An officer, for example, can search anywhere in a car or on a person for drugs if there is probable cause to believe the person possesses drugs. This opinion seems to require more because the target is a child in a school. And, what is a "dangerous" drug? LSD, cocaine, heroin, and meth would presumably fall into the dangerous category. But what about various types of prescription drugs? Justice Thomas, in dissent, predicts that kids will read this opinion and start hiding drugs in their underwear. He is probably right.

Texas Court of Criminal Appeals

Russeau v. State

07/01/09 : Cite No. AP-74,466 : Future Danger

Issue

During the defendant's sentencing for capital murder, was the death penalty incorrectly assessed based on the jury's finding of future danger?

Holding

No. The State presented 62 witnesses and numerous exhibits to present evidence to the jury of the defendant's extremely dangerous behavior. The defendant had a documented history of committing felonies from the age of 17, including numerous counts of attempted burglary, felony theft, burglary of a habitation, possession, and engaging in organized criminal activity. He was a known drug abuser. While incarcerated in the county jail and in the prison system, he committed numerous serious conduct rule infractions. He committed capital murder by burglarizing a 75-year-old man's auto repair shop and then killing him by crushing his skull with a blunt instrument.
Read opinion.

Commentary

This was a retrial on punishment only. The State presented an overwhelming case for the death penalty. Defense didn't have much to present in mitigation.

Montoya v. State

07/01/09 : Cite No. PD-0239-08 : Competency

Issue

Should the trial court have sua sponte raised the issue of the defendant's competency to stand trial for possession of cocaine when she exhibited momentary confusion during the plea hearing and testimony indicated past impairment possibly due to end-stage liver disease?

Holding

No. The trial court correctly used the bona fide doubt standard for determining whether there should be an inquiry into the defendant's competency. The defendant did not exhibit any truly bizarre behavior and did not have a recent history of severe mental illness or at least moderate mental retardation.
Read opinion.

Commentary

This case officially confirms that an amendment to the Code of Criminal Procedure (which was cleaning up the structure of the competency statute) did not alter the standard for considering during trial whether a defendant has exhibited sufficient evidence of incompetency to justify stopping everything for a competency exam. The bona fide standard survives. That is good, because before trial the need for such an evaluation is triggered if there is any evidence of incompetency.

Nguyen v. State

07/01/09 : Cite No. PD-0888-08 : Motion to Suppress

Issue

Should the trial court have suppressed the defendant's oral statement claiming that he owned his friend's drugs when the investigating officer failed to warn the defendant of all of his rights under CCP art. 38.22 §3 during a traffic stop and roadside interrogation?

Holding

Yes. There is no statutory exception in art. 38.22 for statements that constitute a crime committed after law enforcement officials violated that provision in attempting to obtain evidence of a previously committed crime. The Court rejects the State's argument that art. 38.23 requires that evidence of a crime committed before illegal conduct be suppressed, but evidence of a crime committed after the illegal conduct is not subject to suppression.
Read opinion.

Dissent

Judge Johnson wrote that the defendant had been appropriately informed of his rights and that knowing them he reinitiated contact with the police, under coercion only by his co-defendant. Presiding Judge Keller and Judges Holcomb and Cochran also dissented, but without written opinion.
Read dissent.

Commentary

OK, so the officer didn't properly read all the statutory warnings. His bad. He should read from a card. Still, note that all of the conversations between the two co-defendants in the back seat of the patrol car are nonetheless admissible as admissions of party-opponents that are not the result of custodial interrogation. Nguyen may well have said sufficient incriminating things to get convicted. Frankly, the officer probably should have let the two continue to argue in the back seat without interrupting with interrogation.

Sakil v. State

07/01/09 : Cite No. PD-0971-08 : Voluntary-Intoxication Instruction

Issue

Did the trial court correctly include a requested voluntary-intoxication instruction in the jury charge during the defendant's trial for assault?

Holding

Yes. The defendant readily disclosed his own drug use, with defense counsel going so far as to suggest a link between the drug use and the defendant's symptoms at the time of the assault. The victim testified that the defendant was restless on the day of the assault and that he believed someone was following him and someone was after him. A psychiatrist testified that the defendant had a drug-use history including the abuse of amphetamines, marihuana, alcohol, and heroin and explained that a person abusing amphetamines becomes paranoid and hyper-vigilant.
Read opinion.

Commentary

Thank goodness for PDR. The court of appeals really misconstrued the voluntary intoxication law, going so far as to suggest that the charge created some presumption that the State had proved a mental state. What? Fortunately, the CCA very clearly says that evidence that could be used to infer intoxication justifies the charge, and the charge does not hurt a defendant's presumption of innocence.

Moore v. State

07/01/09 : Cite No. PD-1340-08 : Plea Bargain

Issue

Did the trial court exceed its authority by adding conditions to the State's plea bargain agreement with the defendant for manufacture of methamphetamine, including a requirement that the defendant appear in court on a future sentencing date?

Holding

Yes. The trial court's actions turned the plea into an open plea of guilt when he subsequently violated the conditions imposed on him. However, the defendant failed to object to the new conditions during the sentencing hearing and never asked to withdraw his plea so the plea stands.
Read opinion.

Commentary

An unexpected result. The trial court did get involved in plea bargaining, adding a new condition to the agreement before resetting for sentencing. But, the defendant failed to object and waived his right to complain. Anyone see an ineffective assistance of counsel writ coming down the pike?

Menefee v. State

07/01/09 : Cite No. PD-1530-08 : Guilty Plea

Issue

During the defendant's open plea to possession of cocaine with intent to deliver, was his sworn response of "guilty" sufficient to satisfy CCP art. 1.15?

Holding

No. When the defendant answered the trial court's question, "As to that charge in the indictment as we've just covered, how do you plead, guilty or not guilty?" by responding "Guilty, Your Honor," he was only entering his plea, not confessing the truth or correctness of the indictment.
Read opinion.

Concurrence

Judge Womack wrote that the State did not satisfy the statute as construed because the prosecutor failed to introduce real evidence or stipulated evidence and failed to ask the defendant to judicially confess.
Read concurrence.

Concurrence

Judge Cochran agreed that this presented a case of trial error and found it hard to imagine how a typographical omission could affect the defendant's substantial rights under the current harmless error rule.
Read concurrence.

Dissent

Presiding Judge Keller would dismiss the petition as improvidently granted. She wrote that the certification of appeal indicated it was not a plea-agreement case and the defendant did have a right to appeal. This certification was refuted by the record and the defendant expressly waived his right to appeal. Under Dears v. State, the certification of appeal was defective.
Read dissent.

Commentary

Note that the defendant could only appeal the issue because it was an open plea. If there had been a plea bargain that was followed by the judge, the right to appeal would have been lost unless the trial judge gave permission to appeal. (In a lone dissent, Presiding Judge Keller says that the defendant waived his right to appeal.) Nonetheless, this case shows why the better practice is to have the defendant sign a written judicial confession and orally confess under oath during the plea process. For forms and details on the process, see The Perfect Plea.

Texas Courts of Appeals

Wenger v. State - 2nd COA

06/25/09 : Cite No. 2-07-282-CR : File-sharing Evidence

Issue

In the defendant's trial for promotion and possession of child pornography through a peer-to-peer file sharing network, did the trial court correctly admit evidence of the defendant's "shared" folder to prove that he was aware of the nature of the files he shared with other users?

Holding

Yes. The admission of the "shared" folder showed that the defendant both intentionally and knowingly permitted other users to access his files, which contained child pornography.
Read opinion.

Commentary

A good case to read about how child pornography can be accessed and distributed through modern technology. Note: the investigator should not be reading Miranda warnings to a suspect if he is not in custody and is free to leave. Miranda applies to CUSTODIAL interrogation only.

Scott v. State - 4th COA

06/24/09 : Cite Nos. 04-08-00501-CR & 04-08-00502-CR : Harassment

Issue

Is the harassment statute unconstitutionally vague?

Holding

Yes. The provisions of Penal Code 42.07 §(a)(4) and (7) are too broad to determine whether the defendant's actions in leaving a series of late-night voicemail messages while intoxicated for his ex-wife violated the statute. The Court noted that similar language in an earlier version of Texas' stalking statute was held unconstitutional in Long v. State, 931 S.W.2d 285 (Tex. Crim. App. 1996).
Read opinion.

Commentary

From the moment this statute was passed, it faced this constitutional hurdle because of the inclusion of the phrase "annoy, alarm or embarrass". The CCA had already nixed that vague phrase as ambiguous in previous penal laws. PDR is likely.

Patterson v. State - 7th COA

06/23/09 : Cite No. 07-08-0485-CR : Motion to Suppress

Issue

Where the defendant was charged with possessing a controlled substance in a drug-free zone, should the trial court have granted his motion to suppress evidence obtained during the stop where the officer mistakenly thought the defendant had committed only a local traffic violation?

Holding

No. While the defendant did not violate the Amarillo Municipal Code, he did violate Transportation Code §§552.006(a) and (b). The stop was justified by the officer's reasonable belief or probable cause to think the defendant committed a violation, not whether the defendant actually violated the municipal code in question.
Read opinion.

Commentary

Did you know that you should be facing traffic when walking on a road without a sidewalk? So much to learn if you are a drug dealer.

Elliott v. State - 10th COA

06/24/09 : Cite No. 10-08-00179-CR : Necessity and Self-Defense

Issue

In the defendant's trial for intercepting a telephone conversation by recording it without the other parties' consent, was the trial court correct when it denied her requested instructions on self-defense and necessity?

Holding

Yes. There is no evidence that the defendant needed to record the telephone calls between her soon to be ex-husband and his son in order to avoid imminent harm. Her general fear of being physically harmed was not enough to trigger self-defense.
Read opinion.

Commentary

Well, the defense was creative in arguing that they had to make secret recordings for protection against harm. But, too tenuous to be justified.

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