Transcript Capital Murder 2006

Recent Decisions
Appellate Training/Capital Specific
A Program For The Defense
The Center For American And International Law
November 12, 2010
Scope
Pages
The Paper
• All published decisions from the Court of
Criminal Appeals in 2010.
• And some others.
97
The powerpoint
www.markstevenslaw.com
Recent Power Point Presentations
The talk
• “Helpful cases.”
• Not just death penalty cases.
27
• For appellate lawyers.
Motions, Etc
We will ask and answer
three big questions this
morning.
1.
Is Death Different In The
Texas Court of Criminal
Appeals?
2.
What is a reasonable price for the
District Attorney to pay for expert
testimony that:
• was “not particularly powerful, certain,
or strong;”
• was “effectively rebutted and refuted”
by the opposing expert; and
• had “no substantial or injurious effect”
on the jury’s verdict?
3.
Is The
“Orderly Administration Of Justice”
Different Than
Simple Justice?
Campbell v. State,
2010 WL 3655949
4-5
(Tex. Crim. App. 2010)
• 99 years TDCJ; pro se MNT timely placed in
prison mailbox – within 30 days of sentencing.
• MNT received by trial court 12 days later - two
days late; appeal dismissed.
• State: “strict application of filing deadlines . . .
will preserve the orderly administration of
justice.”
“the orderly administration of justice”
Simple Justice
“Substantial Justice”
“the orderly administration of justice”
Campbell v. State,
2010 WL 3655949
4-5
(Tex. Crim. App. 2010)
• 99 years TDCJ; pro se MNT timely placed in
prison mailbox – within 30 days of sentencing.
• MNT received by trial court 12 days later - two
days late; appeal dismissed.
• State: “strict application of filing deadlines . . .
will preserve the orderly administration of
justice.”
“the orderly administration of justice”
“We hold that the pleadings of pro se inmates shall
be deemed filed at the time they are delivered to
prison authorities for forwarding to the court clerk.”
Some Capital Cases
Is Death Different?
Campbell was not a death penalty
case.
Estrada v. State, 313 S.W.3d 274 (Tex.
Crim. App. 2010)
18-19
• defense witness testified that defendant sentenced to life
without parole could never earn higher than G-3 status.
• A.P. Merillat testified that such defendant could do better
after 10 years.
• Merillat’s “incorrect” testimony about TDCJ’s
classification rules concerning persons sentenced to life
without parole warranted a new punishment hearing.
• no duty to object because he could not reasonably be
expected to have known that the testimony was false at
the time that it was made.
• and the state has a duty to correct false testimony when
it comes to its attention.
Defendant wins a new
punishment hearing.
Ex parte Hood, 304 S.W.3d 397
(Tex. Crim. App. 2010)
13-14
“This is all very awkward.”
• To win in state court, Texas death row inmates must
argue that Tennard and Smith announced new law.
Defendant
wins
a new
punishment
hearing
• To •win
in federal
court,
death
row inmates
must
show
that
thealready
Texas courts
clearly
•“we
have
held . misapplied
. . that Tennard,
established
Smith, et law.
al. did announce new law. . . .”
• No•logical
waysituated
this lawlitigants
can simultaneously
be both
“Similarly
bringing similar
“newly
available
for state-court
claims
should law”
be treated
similarly.”purposes and
“clearly established law” for federal-court purposes.
Ex parte Thomas, 2010 WL 1240296 (Tex. Crim.
App. 2010)
(not designated for publication)
14-15
• Per curiam majority rejects post-Tennard, Penry
claim, holding simply that “mitigating evidence
presented
bythe
applicant
does
rise tonew
theera
level
“is this
beginning
of not
a whole
of of
the sort
of evidence
this in
Court
has
said is writ
not
opaque
Delphicthat
denials
postTennard
encompassed
within theinprevious
applications
our statestatutory
court?” special
issues.”
• Judge Cochran, joined by Judges Price, Johnson,
and Holcomb, point out that the normal procedure
in the past has been to remand these cases to the
trial court, and that “[s]imilarly situated litigants
should be treated similarly.”
Some things to talk to your clients about . . .
Davis v. State, 2010 WL 3766661
(Tex. Crim. App. 2010)
• Evidence that defendant became a Satanist,
drew Satanic pictures, kept Satanic books,
and etched a pentagram on his chest were
admissible to show probability of future
dangerousness.
• Bad jokes defendant told his brother over the
jailhouse phone were disrespectful of women
and were admissible at punishment.
10
Lizcano v. State, 2010 WL 1817772 (Tex.
Crim. App. 2010)(not designated for
publication)
17-18
Lagrone also applies to psychological
examinations to determine mental
retardation.
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
• brutal murder of three
• history of violence against
women
• Diagnosed hostile to
women and a sociopath
at age 15
• stabbed himself in Marine
Corp; lifelong
maladjustment
• weird, evil grin at
hearings in 1998 and in
2008
• “mercurial moods”
• pictures of young, scantily
clad girls, and romantic
cards and pictures from a
female pen pal
10-12
• not a single disciplinary
report in 18 years at TDC
• good behavior with other
inmates at TDC
• 60 years old and in poor
health
• honorably discharged
Marine; Vietnam vet
• Mark Cunningham –
violence risk assessment:
in the lowest risk group
for violence in prison
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
10-12
• second special issue question a normative one that
specifies “no particular level of risk or probability of violence”
• “ensures that no defendant, regardless of how heinous his
capital crime, will be sentenced to death unless the jury
finds that he poses a real threat of future violence.”
• “focuses upon the character for violence of the particular
individual, not merely the quantity or quality of the
institutional restraints put on that person.”
• “ample evidence . . . that appellant had not experienced a
conversion on the road to Damascus; rather, he had the
same character for violence at age 60 that he did at ages
15, 19, and 40, despite his spotless prison record.”
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
•
•
•
•
•
10-12
Dr. Coons’s testimony was “insufficiently reliable” and
therefore inadmissible under Rule 702
Although psychiatric testimony may help the jury to
determine future dangerousness, the proponent bears the
burden of establishing admissibility under Rule 702.
Court can’t tell what principles of forensic psychiatry
Coons “relied upon because he cited no books, articles,
journals, or even other forensic psychiatrists who practice
in this area.”
no objective source material to substantiate Coons's
methodology as one that is appropriate in the practice of
forensic psychiatry.
Coons agreed that his methodology is idiosyncratic.
Coons’s assertion that his testimony relied on and utilized
principles in psychiatry was “simply the ipse dixit of the
witness.”
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
10-12
Coons’s factors were common-sensical, but:
– Are they accepted as valid by the scientific
community?
– Have they been “empirically validated as
appropriate ones by forensic psychiatrists?”
– Have the predictions “been verified as accurate
over time?”
– Are Coons’s intuitively-appealing factors “actually
accurate predictors of future behavior?”
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
10-12
• “the prosecution did not satisfy its burden of
showing the scientific reliability of Dr. Coons's
methodology for predicting future
dangerousness by clear and convincing
evidence during the Daubert / Kelly
gatekeeping hearing in this particular case.”
Does Coons need a new day
job?
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
10-12
The error, though, is harmless.
• ample other evidence of future dangerousness;
• other psychiatric evidence admitted, without objection;
• Coons's opinion “not particularly powerful, certain, or
strong” . . . coming after an extremely long and
convoluted hypothetical was simply that “there is a
probability that” appellant would be a continuing threat to
society by committing criminal acts of violence;
• Coons was “barely mentioned” in final argument.
• Dr. Coons's testimony was effectively rebutted and
refuted by Dr. Cunningham.
Coble’s Tombstone
My expert effectively
rebutted and refuted
Dr. Coons
and they still killed
me.
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
10-12
The error, though, is harmless.
• ample other evidence of future dangerousness;
• other psychiatric evidence admitted, without objection;
• Coons's opinion “not particularly powerful, certain, or
strong” . . . coming after an extremely long and
convoluted hypothetical was simply that “there is a
probability that” appellant would be a continuing threat to
society by committing criminal acts of violence;
• Coons was “barely mentioned” in final argument.
• Dr. Coons's testimony was effectively rebutted and
refuted by Dr. Cunningham.
• did not affect Coble’s substantial rights to fair trial
• no substantial or injurious effect or influence on verdict
What is a reasonable price for
the District Attorney to pay for
expert testimony that is “not
particularly powerful, certain, or
strong,” that was “effectively
rebutted and refuted” by the
opposing expert, and that had
“no substantial or injurious effect”
on the jury’s verdict?
What price harmless testimony?
Texas Open Records Act
Request
Dear Mr. Segrest,
“I respectfully request a
statement as to the
total amount of money
paid by the State of
Texas . . . to Richard
Coons, M.D., . . . in the
State of Texas v. Billy
Wayne Coble. . . .”
What price harmless testimony?
$12,600.00
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
10-12
• “In point of error five, appellant asserts that
this type of evidence fails to meet the
heightened reliability requirement of the
Eighth Amendment, but the United States
Supreme Court, in Barefoot v. Estelle,
rejected this argument, and we are required
to follow binding precedent from that court
on federal constitutional issues.”
Constitutionalize your objections
Is Death Different In The
Texas Court of Criminal
Appeals?
• Is a death-sentenced defendant more likely
to win in the court of criminal appeals?
• Equally likely?
• Less likely?
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
10-12
Did we have it exactly backwards all these years: is
there in fact “lessened reliability” in capital cases?
• Rejecting the defense’s claim that A.P. Merillat’s
testimony was inadmissible because it did not
satisfy the “heightened reliability” requirement.
• “Indeed, some state and federal courts have
suggested that the Confrontation Clause, the Rules
of Evidence, and the rule against hearsay do not
apply with full force in capital murder sentencing
trials. We express no opinion on that matter, but
we reject appellant's Eighth Amendment claim.”
Is Grammar and Syntax
Good Or Bad?
It’s good, obviously.
Jefferson v. State, 189 S.W.3d 305
(Tex. Crim. App. 2006)(unanimity)
• Judge Cochran, concurring: “must return to eighthgrade grammar to determine what elements the jury
must unanimously find beyond a reasonable doubt.”
Jones v. State, 2010 WL 3766654
(Tex. Crim. App. 2010)
• Double jeopardy
But it might be bad.
State v. McLain, 310 S.W.3d 180 (Tex.
App.–Amarillo 2010, pet. granted)
60-61
Does an appellate court violate the
prohibition on "hypertechnical"
review of a warrant affidavit when it
strictly applies rules of grammar
and syntax in its analysis?
Davis v. State, 313 S.W.3d 317
(Tex. Crim. App. 2010)
22
• Interrogation must cease when the
defendant makes an unequivocal request
for an attorney.
Davis said: “I should have an attorney.”
“We hold that appellant's statement was not,
under the circumstances presented here, a
clear request for counsel.”
So much for eighth-grade grammar!
Sufficiency After Brooks
Factual Sufficiency (“To The Dustbin”)
68-70
Tex. Const. Art. V, § 6
Court of Appeals’s decisions “shall be conclusive on all questions
of fact brought before them on appeal. . . .”
Clewis v. State, 922 S.W. 2d 126 (Tex. Crim. App. 1996)
• Factual sufficiency is different than legal sufficiency.
• requires that all evidence be viewed, not in the light most
favorable to the prosecution
• the verdict must be set aside “if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong
and unjust.”
Vodochodsky v. State, 158 S.W. 3d 502 (Tex. Crim. App. 2005)
• evidence was legally sufficient, but factually insufficient to prove
that defendant acted as a party to capital murder.
Brooks v. State, 2010 WL 3894613
(Tex. Crim. App. 2010)
68-70
• Clewis always had detractors.
• Factual and legal sufficiency found “barely
distinguishable.” Rollerson v. State, 227 S.W.3d
718, 724 (Tex. Crim. App. 2007).
• Judge Hervey, joined by three others, says “two
Vodochodsky
v. State,
158 S.W.
3d 502 (Tex.
Crim. App.
standards
have
become
essentially
the same
2005)
standard
and that there is no meaningful distinction
(evidence was legally sufficient, but factually insufficient to
between
that would
justify
retaining
both.
prove thatthem
defendant
acted as
a party
to capitalthem
murder)
• Judge Cochran concurs, consigning “factual
sufficiency review in criminal cases to the dustbin of
history.”
Brooks v. State, 2010 WL 3894613
(Tex. Crim. App. 2010)
68-70
Judge Hervey says:
“a rigorous and proper application of
the Jackson v. Virginia legalsufficiency standard is as exacting a
standard as any factual-sufficiency
standard”
Is it?
Winfrey v. State, 2010 WL 3655928
(Tex. Crim. App. 2010)
70-71
Dog Scent Lineups To The Dustbin
Is there hope after Brooks?
• “‘[t]he infallible dog, however, is a creature
of legal fiction.’”
• dog scent evidence here was obviously
“compelling” both to the jury and to the
court of appeals.
• “strong suspicion,” though, is not enough.
Padilla v. State, 2010 WL 3894785
(Tex. Crim. App. 2010)
Just don’t get your hopes too high.
71-72
Experts
Coble v. State, 2010 WL 3984713
(Tex. Crim. App. 2010)
37
Is Merillat’s testimony about the opportunities
prisoners have for violence in TDCJ inadmissible
because it is within the comprehension of the
average juror?
No.
• “It is only when the expert offers no appreciable
aid that his testimony fails to meet the Rule 702
standard. The question under Rule 702 is not
whether the jurors know something about this
subject, but whether the expert can expand their
understanding in a relevant way.”
Asberry v. State, 2009 WL 3646083 (Tex. App.–
Waco 2009, pet. granted)
37-38
(not designated for publication)
• The court of appeals affirmed the trial court’s
denial of Asberry’s motions to appoint
investigator and DNA expert because he did
not attach affidavits.
Asberry’s PDR was granted.
• Does an indigent have to attach affidavits to
his motion in order for the trial court to approve
funding for an investigator and DNA expert?
Morris v. State, 2010 WL 2224651 (Tex. App.– Eastland
2010, pet. granted)(not designated for publication)
Did the court of appeals err when it held
that “purportedly expert testimony about
‘grooming’ was admissible where there
was no showing that the study of
‘grooming’ was a legitimate field of
expertise.”
Lizcano v. State, 2010 WL 1817772 (Tex. Crim.
App. 2010)
38
(not designated for publication)
Trial court did not err ordering defense to
disclose facts and data underlying
opinion more than 10 days before
expert testified.
Jury Selection
The oldest case pending PDR
What do you do when a policeman, assistant
district attorney, or someone who will
almost certainly be against you if seated as
a juror insists they can be fair and impartial
and your challenge for cause is denied?
Smith v. Phillips, 455 U.S. 209
(1982)(O’Connor, J. concurring)
• “actual employee of the
prosecuting agency”;
• “close relative” of participant;
• “witness or somehow involved”
Uranga v. State, 247 S.W.3d 375 (Tex. App.
– Texarkana 2008, pet. granted)
75
• That’s my front yard (said the juror) that the
defendant is destroying.
• Repeated assurances from the juror that he could
be fair - “notwithstanding his victim status” - was good
enough for the trial court.
• And for the Texarkana Court of Appeals.
PDR Granted
“Does the implied bias doctrine apply in a case, like
Mr. Uranga's, where it is revealed during punishment
that one of the jurors was the victim of the defendant's
alleged extraneous conduct?”
Cardenas v. State, 2010 WL 4483494
(Tex. Crim. App. 2010)
• “Could you honestly ever fairly consider
on an aggravated sexual assault of a child
as little as five years in prison and give
probation as an appropriate
punishment[?]” is not an improper
commitment question.
• The trial court erroneously denied
Cardenas’s challenges for cause against
those venirepersons who answered that
question, “no.”
Davis v. State, 315 S.W.3d 908
(Tex. App.-Houston [14 Dist.] 2010, pet. granted)
Trial court disallowed this question:
“Let's talk about factors in assessing the sentence in a case of
aggravated robbery with a deadly weapon, what factors
do y'all think are important?”
Court of Appeals Affirmed:
•
Improper (“open-ended”) commitment question.
•
Cf. Standefer: “What circumstances in your opinion
warrant the imposition of the death penalty?”
Defendant’s PDR granted to determine:
1. What in the hell is an open-ended commitment question?
2. “The Court of Appeals erred in holding that a proper voir
dire question was an improper commitment question
under Standefer.”
Some Other Interesting
Issues
Leonard v. State, 315 S.W.3d 578
(Tex. App.–Eastland 2010, pet. granted)
56-57
Can a trial court revoke probation
because the defendant failed a
polygraph he was required to take
during sex offender treatment?
Life without parole for juvenile murderers?
66-67
• Death is not an option for persons under 18.
• Life without parole is not an option for persons under 18
who do not kill.
• After September 1, 2009, juveniles certified for capital
murder cannot be sentenced to life without parole.
What about those certified before September 1, 2009?
Meadoux v. State, 2009 WL 4667406 (Tex. App.-San
Antonio 2009, pet. granted)
Forcey v. State, 2010 WL 2010942 (Tex. App.–Waco 2010,
pet. granted)
Ex parte Chamberlain, 306 S.W.3d 328
(Tex. App.–Fort Worth 2009, pet. granted)
67-68
Did the Court of Appeals err in holding that the
lifetime registration requirement imposed on
appellant did not violate substantive due
process because there is a statutory
mechanism by which the appellant can seek to
be excused from further registration?
Ex parte Covey, 2010 WL 1253224 (Tex. Crim. App.
2010)(not designated for publication)(trial
counsel ineffective for not conducting “basic
legal research” regarding § 62.404)
Sanchez v. State, 2010 WL 3894640
(Tex. Crim. App. 2010)
48-50
Manner And Means Unknown To The Grand Jury
•
•
•
•
The Hicks Rule:
State must either prove a prima facie case that the manner
and means was unknown to grand jury, or
That the grand jury used due diligence in determining the
manner and means.
The Hicks Rule Is No Longer Viable. Now:
Defense may challenge pre-trial, to insure that the manner
and means is in fact unknown; and,
After the evidence is closed, but before the jury is charged,
the defense may raise the issue again, to determine if the
manner and means is known, unknown, or unknowable.
Properly, a rule of notice, not sufficiency of the evidence.
Sanchez v. State, 2010 WL 3894640
48-50
(Tex. Crim. App. 2010)
• The manner and means here were “unknowable.”
That is, a known choice of several options, as
opposed to no evidence and no options. All the
evidence was presented, and, according to the
medical examiner, it was impossible to know whether
the victim was asphyxiated by strangulation, by a
stun gun, or by both.
• The jury charge here was erroneous, since the
manner and means was not “unknown;” it was either
by strangulation, or by a stun gun.
• The error was harmless, though, since the evidence
was sufficient to convict Sanchez for either using a
stun gun, or for strangling the complainant.
Morales v. State, 2010 WL 1965889
(Tex. App.-Dallas 2010, pet. granted)
(not designated for publication)
Defendant’s PDR granted to determine:
1. Whether the 2007 amendment to the selfdefense statute eliminated the duty to
retreat in a self defense case.
2. The trial court erred in failing to charge the
jury on the statutory presumption that the
Appellant's belief that deadly force was
immediately necessary is "presumed to be
reasonable" under certain circumstances.
Must 11.07 writ be sworn to by
44
defendant?
Ex parte Rendon, 2010 WL 2006764 (Tex.
Crim. App. 2009)(not designated for
publication)
• No, according to articles 11.12 & 11.13 of the
Code of Criminal Procedure.
• Do these provisions conflict with article 11.14
and Texas Rule of Appellate Procedure
73.1(d)?
Ex parte Harrington, 310 S.W.3d 452
(Tex. Crim. App. 2010)
44-45
Habeas relief under article 11.07 is available to one
who has discharged his prison sentence, but who
continues to suffer from adverse consequences
collateral to that conviction.
• Defendant lost job and other suitable employment
opportunities.
• one “seeking habeas relief should allege with
specificity the facts establishing his confinement-the
details of his physical custody or the nature of
collateral consequences he suffers-lest his
application be dismissed for lack of jurisdiction.”
Ex parte Sinegar, 2010 WL 4320399
(Tex. Crim. App. 2010)
Recusal rules apply in habeas
proceedings.
Jennings v. State, 302 S.W.3d 306
(Tex. Crim. App. 2010)
50
Verdict Options
• Not guilty of burglary/aggravated assault.
• Guilty of burglary/aggravated assault.
• Guilty of burglary/assault (lesser included)
No verdict form to find defendant not guilty of
burglary/assault
No objection from the defense.
• Court of Appeals held that the failure to object waived
error.
• The Court of Criminal Appeals reversed.
The verdict form is a part of the jury charge, and the failure
to submit a “not guilty” verdict form is analyzed under
Almanza.