News and Insights

What happens when a witness cannot remember facts to which she previously testified before the grand jury?

Can the State simply read her grand jury testimony into evidence as past recollection recorded even though the Defendant was not present to cross-examine her during that hearing? Normally, I would say yes, but I’m not talking about a witness that cannot remember one fact or another.  I'm talking about a witness that cannot remember ANYTHING about which she testified before the grand jury.  To me, that changes the game a bit.

The CCA recently considered this issue in Woodall v. State. I say they “considered" it – actually the Court was careful not to provide a definite holding on the matter. Instead, it punted the case on procedural (waiver) grounds. Nonetheless, the CCA did provide some dicta that is a helpful insight into its thinking.

We believe that, under the facts of this case, memory loss did not render [the witness] “absent” for Confrontation Clause purposes…The Supreme Court has generally rejected the notion that a present and testifying witness is nevertheless absent for confrontation purposes if the witness suffer from memory loss.

Curiously, the CCA cites only pre-Crawford cases. For example, citing a 1970 Supreme Court case, the CCA quoted the concurring opinion of Justice Harlan, in which he opined that

a witness’s lack of memory should have no Sixth Amendment Consequence.

However, the legal landscape has drastically changed since the time of Justice Harlan’s opinion. I doubt Scalia would agree with such reasoning today. Then again, as a strict constructionist, maybe he would.  If the witness is available at trial, even if she cannot remember anything, is that enough to satisfy the 6th Amendment? I would argue NO, but perhaps I’m wrong. Either way, we will not find out with the Woodall case, because the CCA passed on the ultimate issue.

In a felony DWI case, Gaal v. State, the defendant was set to plead guilty. When the time came for him to plead, however, he refused. The trial judge stated, “All right. We’re supposed to have a plea here today. It appears that [the defendant] does not want to plea. For the record, I will not accept any plea bargain in this matter, unless it’s for the maximum term of ten years.”

The defendant later filed a motion to recuse the trial judge, contending that his statement that he would not accept a plea deal for less than the maximum, showed that he could not be fair and impartial. Another judge, at a recusal hearing, denied the request. On appeal, the 2nd District Court of Appeals (Fort Worth) held that appellant was denied due process by the trial judge’s statements and that the judge should have been recused.

The Court of Criminal Appeals now holds that the lower court got it all wrong. The CCA characterizes the trial judge’s statement not as a denial of due process.

The trial judge’s comment could quite logically and reasonably have been a short-hand rendition of a statement that it was time for the defendant to quit shilly-shallying because he has twice rejected favorable plea bargains…and was continuing to drink in violation of his bond conditions.

The CCA goes on:

A reasonable person, based on the totality of the circumstances, would translate the judge’s statements as, “I’m not going to reset this case for any more plea negotiations; we’re going to trial.”

And as the Court points out, a “defendant does not have an absolute right to enter into a plea bargain” and “the trial judge doesn’t have to take a plea bargain.”

Is there really such a thing as a Consensual Police Encounter that ends with an arrest?

In Castleberry, the defendant and a friend were walking behind an Uncle Julio’s restaurant in Dallas. They were not engaged in and did not appear likely to engage in criminal conduct. A Dallas police officer approached them and asked for identification. The defendant reached for his waistband. The police officer then ordered appellant to place his hands in the air. The defendant grabbed a baggy of cocaine from his waistband and tossed it on the ground. The trial court suppressed the cocaine, reasoning that the officer did not have “reasonable suspicion” to justify the stop. The 5th District Court of Appeals agreed.

The CCA, on the other hand, held that the lower courts applied the wrong legal standard and characterized the stop as a consensual police encounter. Writing for the majority, Judge Keasler, stated:

Even if the officer did not tell the citizen that the request for identification or information may be ignored, the fact that a citizen complied with the request does not negate the consensual nature of the encounter…We conclude that a reasonable person in [the defendant’s] position would have felt free to decline [the officer’s] request for identification and information.

The obvious question then becomes, what would the CCA preferred the defendant to do? “No, thanks officer, I prefer not to provide any identification or tell you what I am doing. Thank you. Have a nice night.” Had the appellant said that, there is no doubt the court would now be using his noncompliance to justify a more intrusive search. There is absolutely no way for the defendant to win here.

The opinion goes on to suggest police officers (even when they are in uniform) are just like any average citizen.

Because an officer is just as free as anyone to question, and request identification from, a fellow citizen, [the officer’s]conduct shows that the interaction was a consensual encounter.

Ultimately, the CCA reasons that because the defendant could have been reaching for a weapon when he reached into his waistband, the officer’s further pat-down search was justified under Terry.

The CCA concludes:

The Court of Appeals failed to separate [the encounter] into two distinct parts: (1) [The officer’s] initial approach of [the defendant], which was a consensual encounter; and (2) [The defendant’s] act of reaching for his waistband, which provided [the officer] with reasonable suspicion to detain and frisk [the defendant]. We therefore reverse the court of appeals’s judgment, hold the seized contraband to be admissible, and remand the cause to the trial court.

Today, the Supreme Court ruled that dying declaration (classified in this case as "excited utterances") made to police officers and identifying the suspect, were admissible despite the fact that the witness did not later testify at trial.  The Court labeled the man's statements "non-testimonial" for purposes of the Confrontation Clause (and the Crawford case).  To read more about it, see CNN coverage HERE.

Read the Court's opinion in Michigan v. Bryant.

Justice Scalia did not mince words in his dissent:

Today's tale -- a story of five officers conducting successive examinations of a dying man with the primary purpose, not of obtaining and preserving his testimony regarding his killer, but of protecting him, them, and others from a murderer somewhere on the loose -- is so transparently false that professing to believe it demeans this institution.

It Takes Two to Tango | Can a Person be convicted for Conspiring With a Government Informant?

United States v. Delgado, U.S. Courts of Appeals for the 5th Circuit (Federal)

In this U.S. v. Delgado, the Defendant-Appellant, Maria Aide Delgado, was convicted of

1. possession of marijuana with the intent to distribute and
2. conspiracy to commit the same offense.

She was sentenced to a concurrent term of 100 months imprisonment for each conviction. Delgado appealed, complaining that she shouldn't be convicted for Conspiracy if she was Conspiring With a Government Informant.

The Federal 5th Circuit Court of Appeals dismissed a conspiracy charge in the indictment because the government failed to introduce sufficient evidence to establish that the Appellant entered into a conspiracy with anyone other than a government informant. While it takes at least two people to form a conspiracy, an agreement must exist among co-conspirators who actually intend to carry out the agreed upon criminal plan. A defendant cannot be criminally liable for conspiring solely with an undercover government agent or a government informant, therefore, evidence of any agreement Delgado had with the government informant cannot support a conspiracy conviction.