Wednesday, February 20, 2008

New Case- Confrontation Clause in Texas

February 2008

 Criminal Practice
Confrontation Clause

• Because nothing indicated that an emergency situation was still in progress, Lalania Hollimon’s statements to Deputy Sheriff Stephen Chapman concerning the details of the assault were testimonial in nature. Therefore, the admission of those details into evidence violated the confrontation clause.

Vinson v. State, Court of Criminal Appeals, Nos.
PD-1540-06 and 1541-06, 1-17-2008.

FACTS: On Dec. 6,2004, Harris County Deputy Sheriff Stephen Chapman responded to a report by a 911 dispatch operator of a possible emergency at the apartment belonging to Lalania Hollimon and Raymond Earl Vinson.
The 911 operator told Chapman that a hang-up call had been made and that when the operator returned the interrupted call, a male answered and responded that there was no emergency. The operator, however, heard a disturbance in the background and somebody yelling for police assistance.
When Chapman arrived at the scene, Hollimon answered the door and appeared to be bleeding and in pain from recently inflicted injuries. Chapman asked here what had happened, and Hollimon responded that her boyfriend had assaulted her. These statements constituted the first portion of Hollimon’s statements. Vinson did not contest the admissibility of Hollimon’s first statement.
Hollimon then identified her assailant as “Vinson” and recounted the details of the assault, claiming that her assailant had knocked the phone out of her hand when she called 911. Vinson asserted that Hollimon’s second statement was testimonial for confrontation clause purposes.
During the questioning, Vinson came into the room and demanded that Hollimon “tell [the deputy] the truth” and “don’t let them take me to jail.” Chapman noted that Vinson was “very excited,” shirtless and sweating profusely. Chapman secured Vinson by placing him in the back of his patrol car and then resumed questioning Hollimon.
Authorities charged Vinson by information with assault of a household member and interference with an emergency phone call. At trial, Chapman recounted the statements made to him by Hollimon, because Hollimon was unavailable as a witness. Vinson objected to the portion of Chapman’s testimony that related Hollimon’s identification of the man in the room as “Vinson,” as well as her detailed description of the assault and interference with an emergency call,, on the basis that all of this testimony violated the confrontation clause and the holding of the U.S. Supreme Court’s 2004 decision Crawford v. Washington.
The trial court overruled Vinson’s objection but allowed Vinson a running objection to Chapman’s testimony. The trial court ultimately convicted Vinson of both offenses, assessing punishment for each offense at confinement in jail for 365 days and a fine of $500, with the jail time to run concurrently.
On appeal to the 1st Court of Appeals, Vinson asserted, inter alia, that the trial court had erred in allowing Hollimon’s statements into evidence through Chapman’s testimony because doing so violated the confrontation clause of the Sixth Amendment. The 1st Court found that, the statements in question were nontestimonial and therefore properly admitted.
Consequently, the 1st Court affirmed that judgment of the trial court. The CCA granted Vinson’s petition for discretionary review.
HOLDING: Affirmed in part, reversed in part.
The confrontation clause of the Sixth Amendment, the CCA stated, guarantees that “[I]n all criminal prosecutions the accused shall enjoy the right . . . to be confronted with the witnesses against him.”
In Crawford, the Supreme Court held that the confrontation clause forbids admission of testimonial statements of a witness who does not appear at trial unless he is unavailable to testify and the defendant had a prior opportunity for cross examination.”
The CA noted that Vinson did not have a previous opportunity to cross-examine Hollimon. Therefore, the admissibility of Hollimon’s statements through Chapman’s testimony hinged on the determination of whether the statements were testimonial or nontestimonial.
Statements are nontestimonial, the CCA stated, 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, the CCA stated, when the circumstances objectively indicated 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 found that up until the point that Vinson was placed in the patrol car, including the episode where Hollimon identified her attacker as Vinson, the trial court could rationally have concluded that any interrogation was nontestimonial.
Likewise, Chapman placed Vinson in the squad car before interviewing Hollimon about the details of the assault. Because Vinson was not present during the recounting of the assault, and no other factors indicated that an emergency situation was still in progress, Hollimon’s statements to Chapman concerning the details of the assault were testimonial in nature and thus inadmissible under Crawford. Therefore, the admission of those details into evidence through the vehicle of Chapman’s testimony violated the confrontation clause.

Read more!

DWI Technical Supervisor Testimony-David Burrows

Technincal Supervisor Testimony

April 14, 2005

having been duly sworn, was examined and testified as follows:

Q. Okay, Kristi, let's see. What we've got here is John Doe was supposedly pulled over at 4:13 p.m. and then we have a breath test at 17:23 p.m. Can you tell us what his probable breath alcohol concentration was at 4:13 when he was pulled over?
A. Um, all I can say is he could have been higher, could have been lower, or could have been the same.

Q. Okay. Now, recently, the technical supervisors in Dallas were unable to appear at ALR hearings and canceled several trials at Crowley. Can you tell us why that was?
A. Yes.

Q. Why?
A. We had -- on March 5th we had a subject who provided a specimen on one of our intoxilyzers and gave a false negative result.

Q. A false negative. Can you describe that?
A. Yes, he provided a specimen and blew zeroes. He was immediately taken out of that room. He was given a portable breath test where he indicated a .16. The operator then took him into another room and gave him another breath test where he blew a .16 on that intoxilyzer.

Q. Did you get to the bottom of that?
A. Yes, we did.

Q. What was the problem?
A. The instrument was giving a false negative result. It is possible, given certain -- I'm trying to think of the word I'm looking for. Certain circumstances that can occur with the intoxilyzer, it is possible for someone to blow very lightly into the instrument. The instrument's flow sensor was set extremely low and there's a one-way valve that was sticking to where his sample never made it into the sample chamber to be analyzed by the intoxilyzer.

Q. Okay. Why did you have to shut down the whole breath testing program because of that one thing --
A. Okay.

Q. -- one defective instrument?
A. Um, well, because we couldn't explain it at first. So then we're thinking that the intoxilyzer is just magically producing its results. We couldn't say at first that it was the zero that was the problem. It could have been the one six. So there are -- we didn't know. We couldn't explain it; therefore, we didn't know exactly which instrument was the problem. And you can see where that could be bad if it's magically just producing a .16 and he's really a zero. That's a problem.

Q. Okay. And, now, was this instrument owned by Dallas?
A. Yes, Dallas PD.

Q. Was it one of the ENs?
A. Yes.

Q. Okay. So you are having some problems with the ENs, aren't you?
A. No, not at this time.

Q. Okay. Now, you had one, I remember, that you didn't have the heating element that went all the way the length of the breath test sample chamber; is that correct?
A. That's -- all of them have to be checked for that when they come in to make sure they are coming from the factory wrapped correctly. That's not a major issue. That's something that is easily corrected by us.

Q. Okay. And then you have had some software issues with the EN; is that correct?
A. We -- we continue to have software issues with both the EN and the 68, the older 68 model.

Q. And have they told you now that you can't produce maintenance records with these instruments?
A. Um, it's not that they told us. It's that they have forced us to change data management systems to their DPS system and I can no longer generate those type of records.

Q. With all the intoxilyzers or with just the ENs?
A. With all of them.

Q. Okay. Do you have maintenance records pertaining to this instrument?
A. I don't have maintenance records, per se, but what I brought with me to show that the instrument was operating correctly, I brought the actual -- I brought copies of the actual test records that we generated at the time of our on-site inspections.

Q. Can I see those?
A. Most certainly.

Q. Okay. So these are just copies of records; is that correct?
A. Yes, that's correct.

Q. If I offer these into evidence, you can reconstruct these --
A. Oh, yes.

Q. -- is that correct?
A. Yes.

Q. So if I have this DX-3, consisting of, 2, 3, 4 pages, these are records that were generated in your capacity as technical supervisor; is that correct?
A. I may not have specifically generated those records, but one of my co-workers did.

MR. BOYD: Okay. I'll go ahead and offer DX-3, consisting of four pages.
MR. OGLESBY: No objection.
THE COURT: DX-3 is admitted.

Q. (By Mr. Boyd) Now, the intoxilyzer instrument that was used to test Mr. Doe, that is not an EN, is it?
A. I don't have that in front of me. Read me the serial number.

Q. 2227?
A. No, that is not an EN.

Q. That's an older instrument; is that correct?
A. Yes, that's correct.

Q. Now, I think you said in your technical supervisor affidavit, form DIC-56, that the times that this instrument was checked before and after, I believe, were 10-26-04, and then 11-15-04. Okay. Is that because this instrument would have been taken out of service on 11-15, do you think?
A. That was not indicated on the records that I brought with me, so, no.

Q. So it says the dates, one after 10-27-04 --
A. Yes.

Q. -- the instrument was checked, 10-26-04?
A. Yes.

Q. And 11-15-04?
A. Yes.

Q. So that wasn't the 30 days following 10-27. Why was it only checked for a period of a couple of weeks after this test?
A. Um, I don't really have the exact answer for that. One -- what I can say is we're required to check them once every calendar month and we kind of squeeze it in when we can do them during the calendar months. So I would say whoever checked it afterwards possibly could only get out there a few weeks after it had initially been checked.

Q. Can you describe what it was about the change to the DPS protocol that doesn't allow you to get maintenance records for these machines now?
A. You are asking me about programing of software that I have no idea about. All I can -- all I can really say is we are the larger area. We generate the most data for the state. They don't want to keep the vast amounts of data that we keep; therefore, they would not allow those fields to be kept and these queries to be generated in the new software, because DPS doesn't want to keep them.

Q. So how long do they allow you to keep them?
A. Well, now we're into a situation where we are having to figure out other ways to provide this information by hand. That's why I brought the actual test records from the time. I just can't print out that nice pretty report I used to bring before. That feature is not available at this time on the software.

Q. Was the machine that produced the spurious results, was that an EN?
A. Yes, it was.

Q. Okay. And you don't have any idea how the software calculates the number that comes out that says .108 or .10 or, you know, .4, or whatever it is, do you?
A. I can tell you the theory behind it. I cannot tell you its mathematical calculations it goes through.

Q. That's, what, a trade secret by CMI?
A. That's correct.

Q. And they don't allow you or the Scientific Director or anybody to know that, do they?
A. That's correct.

Q. Okay. And in this case, is it possible, given the data that you have, the time of the stop, and the breath test result, that Mr. Doe could have been under .08 at the time of the stop?
A. Not based upon that information. I will require more information.

Q. Okay.
MR. BOYD: I'll pass the witness.

[End of Testimony]

I, NANCY BREWER, Certified Court Reporter, do hereby certify that the foregoing pages constitute a full, true, and accurate transcript of the proceedings held, as they were transcribed from audio tapes, to the best of my ability.
SUBSCRIBED to by me on this the 2nd day of May, 2005.

My Commission Expires 12-31-2006

Read more!