CRIMINAL LAW TRENDS
Attorney at Law
Board Certified in Criminal Law
Chair of the State Bar Commission for Lawyer Discipline
1306 Nueces Street
Austin, Texas 78701
Presented at the Texas Center for the Judiciary
Winter Regional Conference
TABLE OF CONTENTS
Criminal Law Trends in Voir Dire ...........................................................p.
Evidentiary Issues in Criminal Law, Confrontation Issues ....................................p.
Crawford v. Washington .......................................................................................p.
NGO v. State
Criminal Law Trends
Standefer v. State, 59 S.W.3d 177 (Tex. Cr. App. 2001) concluded that the trial court had the authority to prohibit "improper commitment questions". The difficult questions then began to arise as to what was an improper commitment. The first issue is to determine if the question is a commitment question. The court stated "a question is a commitment question if one or more of the possible answers is that the prospective juror would resolve or refrain from resolving an issue in the case on the basis of one or more facts contained in the question. The next inquiry is whether it is improper. The court in Standefer stated" for a commitment question to be proper, on of the possible answers to that question must give rise to a valid challenge for cause.".
Standefer's question was "would you presume someone guilty if he or she refused a breath test on their refusal alone?". This was held to be an improper commitment question because it seeks to bind the juror to a particular set of facts and those facts do not lead to a valid challenge for cause. The court discusses other types of voir dire questions. "If the victim is a nun, could you be fair and impartial?" is held by the court to be a proper question. However, the question: "could you consider probation in a case where the victim is a nun?" is an improper commitment.
To be proper, then a commitment question must contain only those facts necessary to test whether a prospective juror is challengeable for cause. The proper question then is whether in a murder case the jury can consider probation, if probation is within the range of punishment.
The Supreme Court of Texas adopted Standefer in civil cases in Hyundai Motor Co. v. Vasquez, 189 S.W.3d 743 (2006). There the Court reasoned that "questions that are not intended to discover bias against the law or prejudice for or against the defendant, but rather seek only to determine how jurors would respond to the anticipated evidence and commit them to a specific verdict based on that evidence are not proper". A question that asks jurors to judge the weight to be given an operative fact will not reveal whether jurors have potential external biases or prejudices that improperly skew their view of case facts.
The trial judge must have discretion to exclude questions that seek to gauge the weight a juror will place on specific evidence. Depending on the circumstances, a trial judge may choose to hear jurors' responses before deciding whether an inquiry pries into potential prejudices or potential verdicts, but if the question reaches for the latter, a trial court does not abuse its discretion in refusing to allow it. The trial court in this case reasonably could have concluded that the substance of the proposed question did not present a basis for disqualifying a juror for cause, and instead sought to test the weight jurors would place on the relevant fact that the child in this case was not wearing a seat belt at the time of the accident. Thus, the trial judge did not abuse her discretion in refusing to allow it. The question was an attempt to learn how the juror felt about the child who was injured, not wearing a seat belt.
2006 cases that attempt to clarify the rules are Wingo v. State 189 S.W.3d 270 (Tex. Cr. App. 2006) and Lee v. State, 2006 WL 1408448 decided May 24, 2006. Wingo involved the prosecutor wanting to ask the prospective jurors if they believed it was wrong to put false information in a police report. The offense was tampering with a government record and the defendant was a police officer. The court of criminal appeals held that this was not a commitment question because it does not commit them to resolve an issue of fact in a certain way. Rather the question was inquiring into the general beliefs as to the wrongness of the conduct that the law made a crime. This was asking whether they agree that the commission of such a crime is wrong. The court then went on to say that they are not approving the question, they are just holding that the trial court did not abuse its discretion in allowing the question.
Lee v. State, involves the prosecution question of whether a juror can convict based on the testimony of one witness. The hypothetical put forward was of a 14 year old jogger who was touched on the breath or genitals as she ran near the beach. The prosecutor then asked, "assume for me that you do believe her testimony beyond a reasonable doubt, you do believe her, and it meets all the elements of the charge, indecency with a child by contact, assume for me that you do believe her beyond a reasonable doubt, could you convict that hypothetical defendant of that charge or would you require some other witness or some other evidence?"
This language used was appropriate even under the Castillo limitation. Castillo held that a juror could not be excused if that juror would personally require more than one witness to find the evidence sufficient to convict beyond a reasonable doubt. This goes beyond the question in Castillo which just asked if the juror could convict on the testimony of one witness alone. This commitment question would give rise to a valid challenge for cause.
The inquiry for the Court then is whether the question is a commitment question and secondly whether the question would lead to a valid challenge for cause.
One of the most important evidentiary developments in the area of criminal law is the series of cases decided by the Supreme Court that overruled Ohio v. Roberts, 100 S.Ct. 2531(1980) which allowed hearsay to be admissible even if the defendant was denied the right to confront the declarant. Ohio v. Roberts, looked primarily to the Rules of Evidence to determine that a hearsay exception was permissible under the Constitution, if it was a "firmly rooted" hearsay exception, met standards of reliability and the state could prove necessity. However, in 2004 the Supreme Court overruled Roberts in Crawford v. Washington, 124 S.Ct.1354 (2004) holding that if a statement was "testimonial" it violates the defendant's 6 th amendment right of confrontation, unless the declarant is unavailable and the defendant has had a prior opportunity to cross examine the witness.
In Crawford the state used the declaration against interest hearsay exception to admit Crawford's wife's statement to the police against him in his trial for murder. She had made the statement at the station house while being considered a possible suspect herself. She then became unavailable due to the spousal privilege. The Court did not define what is and what is not to be considered as testimonial. The lower courts then left to decide what qualified under Crawford as testimonial which would not be admissible even though it may meet the evidentiary requirements for admissible hearsay under the Rule of Evidence.
What is testimonial?
Wall v. State, 184 S.W.3d 730(Tex. Crim.App. 2006), affirmed the lower court finding that statements made by a homeless man in the emergency room to a deputy about his injuries, were testimonial. The statements had been admitted at trial when the man did not testify in the defendant's aggravated assault trial. The trial court had admitted the statements as excited utterances. But the court of appeals and the court of criminal appeals, both agreed that the statements were "testimonial" and violated the defendant's right to confrontation under Crawford v. Washington. The statements were testimonial because a reasonable person would have appreciated the fact that the officers were conducting a criminal investigation and collecting evidence for a prospective prosecution. The court found that the error did not contribute to the conviction, but reversed the case for the lower court to determine if the error impacted the punishment stage of the trial.
Kearney v. State, 181 S.W.3d 438 (Tex. App. Waco 2005) held that the tape recording of a 911 call to police was not "testimonial" and did not violate Crawford. Wilson v. State,151 S.W.3d 694(Ft. Worth 2004) held that the girlfriend's statement to police when she was inquiring about her car, which the Defendant has just wrecked, were excited utterances and nontestimonial and therefore admissible.
Key v. State, 173 S.W.3d 72 (Tex.App-Tyler 2005) held that excited utterances at the scene of a domestic dispute were not testimonial and not covered by Crawford. The Court held that declarations from individuals who recently endured physical abuse with no time for reflection or deliberation, are likely to be truthful and such are not made in contemplation of use in a future trial. Key's assertion that all excited utterances are not testimonial has been disavowed by Spence v. State 162 S.W.3d 877(Tex. App.-Hou (14 Dist.) 2005) and Wall, supra.
Mason v. State, 173 S.W.3d 105 (Tex. App.-Dallas 2005) held statements by the victim who does not testify at trial, made to a police officer are testimonial and not admissible. The police responded to a 911 call. Upon arriving at the scene they spook to the complainant who was crying and upset. In response to questions about why she called the police, the complainant told the police her boyfriend assaulted her. Because the complainant's out-of-court statements were are result of interrogation, and even if they were not, they were testimonial because they were statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. The case was reversed and the PDR was refused.
Samarron v. State 150 S.W.3d 701 (Tex. App. S.A. 2004) reversed admission of a excited utterance hearsay statement due to Crawford. The witness had been taken to the police station to give a formal written statement and later failed to appear to testify at trial. The statement was held to be testimonial and inadmissible unless the witness was unavailable and the defendant had had a prior opportunity to cross-examine him. Since Samarron did not have an opportunity to cross-examine prior to trial, his rights under the confrontation Clause were violated.
In Davis v. State, 169 S.W.3d 660 (Tex. App. Austin 2005) the police were dispatched to a domestic disturbance. The victim told the police that the defendant tried to kill her by choking her and strangling her with a rope. The victim did not testify at the aggravated assault trial of the defendant. The defendant testified. The 3 rd Court of Appeals held that if the person obtaining the statement is a governmental employee or police officer carrying out an investigation or prosecutional function, the statement is "testimonial". Merely because a declarant is excited, the statements made do not lose their character as testimonial statements subject to the Confrontation Clause. Davis found the line difficult to draw and side stepped the issue by addressing whether the defendant was harmed. The defendant testified corroborating much of the out of court statements and so the Court found the introduction of the out of court statements by the victim, to be harmless. On April 12, 2006 petition for discretionary review was granted by the Court of Criminal Appeals.
The Supreme Court on June 19 th , 2006 decided to give the lower court some guidance on this very difficult issue. Davis v. Washington,126 S.Ct. 2266(2006) is actually two cases decided together which illuminate what is testimonial and therefore in violation of the 6 th amendment right to confront and cross examine the witness in a criminal trial. The Davis case involves the admission of the 911 tape recording. Ms. McCottry called the police to report that she was being assaulted by her boyfriend, Mr. Davis. She did not testify at his trial but the court admitted the 911 recording over the defendant's 6 th amendment objection. The Supreme Court held that the 911 tape recording was not "testimonial". She was speaking of events as they were actually happening and she was facing an ongoing emergency. The court held that the primary purpose of her call was to enable police assistance to meet her ongoing emergency. The Court held that statements were nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
The Court notes in Davis that emergency assistance can evolve into testimonial statements once the purpose of the call has been achieved. The Supreme court instructs trial courts that they should redact or exclude the portions of any statement that have become testimonial. Since the jury in Davis did not hear the complete 911 call the Supreme Court stated that they are only deciding whether the early statements identifying Davis as her assailant were testimonial and they hold that they are not.
The second case decided and cited in Davis v. Washington, is Hammon v. Indiana. In Hammon the police responded to a domestic disturbance. Upon arriving, the police note that Ms. Hammon was alone on the front porch appearing somewhat frightened. She first told them that nothing was the matter. Later during the investigation, she signed an affidavit and told the officers that her husband has shoved her to the floor, hit her in the chest and threw her down. Though subpoenaed she failed to appear at trial and the affidavit and police testimony was admitted over the defendant's 6 th amendment objections as excited utterances. The testifying officer acknowledged that there was no emergency in progress and no immediate threat to Ms. Hammon. The officer's interrogation was part of an investigation into possible criminal past conduct. The fact that the statement was given at the crime scene is immaterial. The purpose of the questioning in another room was to investigate a possible crime. Such statements under official interrogation are an obvious substitute for live testimony as they do precisely what a witness does on direct examination, and therefore they are inherently testimonial.
The next area left open by the Supreme Court is the "forfeiture by wrongdoing". The Court recognized that when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. The rule of forfeiture by wrongdoing extinguishes confrontation claims. Under the federal Rules of Evidence the standard is proof by a preponderance of the evidence standard. The Supreme Court held that absent a finding of forfeiture by wrongdoing, the Sixth Amendment operates to exclude Ms. Hammon's affidavit.
JURY CHARGE ISSUES
NON UNANIMOUS VERDICTS
In 2005 the Court of Criminal Appeals recognized that a disjunctive jury charge on separate offenses with only one verdict form, could lead to a jury finding a defendant guilty without the jury being unanimous as the crime. Ngo v. State, 175 S.W.3d 738 (Tex. Cr. App. 2005). The Court held that non-unanimous verdicts violate the Texas Constitution Article I, Section 19, Article V, Section 13 and The Texas Code of Criminal procedure Article 36.29(a). Ngo involved the crime of credit card abuse. The charge allowed the jury to believe that the defendant had "stolen the credit card", or received the card knowing it was stolen", or "fraudulently presented the stolen credit card". There was only one jury verdict form finding the defendant guilty of credit card abuse. Judge Cockran wrote a proposed jury charge in the Ngo case in which she said the problem could be cured by simply adding "now, if you unanimously find" and then list the possibilities in the disjunctive. Without the word unanimously being included in the disjunctive jury charge, the Court held that some of the jurors could have believed he had stolen it, while others believed that he received it knowing it was stolen and still other members of the jury could have believed that he fraudulently presented the stolen credit card.
The State charged all three offenses in three separate paragraphs within a single count of one indictment. It sought one conviction for the commission of one credit card abuse offense by proving any of three different criminal acts, occurring at three different times, and in three different ways. The State contended this was just the "manner and means" of committing the offense. The court held that the phrase "manner or means" describes how the defendant committed the specific statutory criminal act. It does not mean that the State can rely upon a laundry list of different criminal acts and let the individual jurors take their pick on which each believes the defendant committed.
The State also argued that the defendant waived the objection because he failed to request an election. The Court finds that the defendant could have requested an election but was not required to do so. The jury was required to be unanimous on a specific criminal act that the defendant committed.
Applying this to child abuse cases has been particularly difficult. Many of theses cases rely on the testimony of children who relate many instances of abuse without reference to a specific date. The Court in Ngo relies on Frances v. State, 36 S.W.3d 122 (Tex. Cr. App. 2000) which held a disjunctive jury charge allowing a conviction on sexual contact by touching the breast or genitals violated the requirement of a unanimous verdict. When the state rests after having presented a multitude of incidents, on a timely request by the defendant, the trial court must order the state to elect. Failure to require the state to elect upon request results in constitutional error as it denied the defendant a unanimous verdict. Phillips v. State, 193 S.W.3d 904 (Tex. Cr. App. 2006).
Vick v. State, 991 S.W.2d 830 (Tex. Cr. App. 1999) recognized that penetration of a child's mouth is a different and distinct offense from a different type of penetration. To charge different crimes in the disjunctive with one verdict form is error. Carty v. State, 178 S.W.3d 297 (Tex. App.-Hou[1st Dist.]2005).
In Mathonican v. State, 194 S.W.3d 59(Tex. App.-Texarkana 2006) the Court held that a disjunctive jury instruction on sexual assault that set for three specific acts as alleged in 3 paragraphs of the indictment allowed conviction on less than a unanimous verdict. These act constituted separate and distinct offenses rather than one offense.
Charging the jury disjunctively on alternative theories, or the manner and means of committing the offense does not run a foul of the unanimity requirement. However, charging disjunctively on separate offense does unless the jury was instructed that it must agree unanimously that the defendant committed one of the acts.
Since 1997 Article 3.04 of the Texas Penal Code has allowed the joinder of separate indictments in the same prosecution of multiple child sex offenses. Therefore the prosecutor can avoid the above problems by seeking separate indictments for each separate crime and then moving under Article 3.02 for joinder in a single trial.
The three areas in criminal law that will be important to trial courts in future cases are Voir Dire, Confrontation issues and the Jury Charge. The upcoming criminal law trends for trial courts in Voir Dire is deciding if a question is an improper commitment question and therefore impermissible. The criminal law trend in the evidence presented at trial is going to be whether hearsay statements are "testimonial" and therefore in violation of the confrontation clause of the 6 th amendment. Courts are going to be called upon to decide when an emergency ends and interrogation that is investigating the crime begins. The Supreme Court left open the issue of some parts of the 911 tapes being in violation of Crawford once the emergency has ended. Also the courts will be called upon the decide if the defendant has had a hand in the disappearance of the witness. The criminal law trend in jury charges, is that the trial court is going to have to craft the charge so that it does not allow the jury to return a non unanimous verdict based on one jury verdict form when separate offenses are plead disjunctively.