Nomathemba Y. Sitawisha v. State ( 2015 )


Menu:
  •                                                                             ACCEPTED
    01-14-00848-CR
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    7/31/2015 7:51:09 AM
    CHRISTOPHER PRINE
    CLERK
    NO. 01-14-00848-CR
    IN THE COURT OF APPEALS
    FOR THE FIRST DISTRICT OF TEXAS             FILED IN
    1st COURT OF APPEALS
    HOUSTON, TEXAS
    7/31/2015 7:51:09 AM
    NOMATHEMBA Y. SITAWISHA           CHRISTOPHER A. PRINE
    Appellant                          Clerk
    v.
    THE STATE OF TEXAS
    Appellee
    On Appeal from Cause Number 1870305
    County Criminal Court at Law No. 4
    Honorable John Clinton, Presiding
    BRIEF FOR APPELLANT
    ORAL ARGUMENT REQUESTED            ALEXANDER BUNIN
    Chief Public Defender
    Harris County, Texas
    CHERI DUNCAN
    Assistant Public Defender
    Texas Bar No. 06210500
    ELIZABETH SAKAI
    Legal Intern
    1201 Franklin, 13th Floor
    Houston, Texas 77002
    Phone: (713) 368-0016
    Fax: (713) 368-9278
    cheri.duncan@pdo.hctx.net
    Counsel for Appellant
    i
    IDENTITY OF PARTIES AND COUNSEL
    APPELLANT:                            Nomathemba Y. Sitawisha
    TRIAL PROSECUTOR:                     Casey Little
    Assistant District Attorney
    Harris County, Texas
    1201 Franklin
    Houston, Texas 77002
    DEFENSE COUNSEL AT TRIAL:             None
    PRESIDING JUDGE:                      The Hon. John Clinton
    Harris County Criminal
    Court at Law No. 4
    1201 Franklin
    Houston, Texas 77002
    COUNSEL ON APPEAL FOR APPELLANT:      Cheri Duncan
    Assistant Public Defender
    Harris County, TX
    1201 Franklin, 13th Floor
    Houston, TX 77002
    ii
    TABLE OF CONTENTS
    IDENTITY OF PARTIES AND COUNSEL ...................................................................................ii
    TABLE OF CONTENTS .............................................................................................................iii
    INDEX OF AUTHORITIES ....................................................................................................... iv
    STATEMENT OF THE CASE ..................................................................................................... 1
    ISSUE PRESENTED
    Did the trial court commit constitutional error when it failed to advise
    Appellant, who was on trial for driving while intoxicated with a blood
    alcohol level of more than .15, that she had a right to request funds for
    an expert? ..................................................................................................................... 1
    STATEMENT OF FACTS............................................................................................................ 1
    SUMMARY OF THE ARGUMENT .............................................................................................. 1
    ARGUMENT ............................................................................................................................. 4
    A. Standard of review ...................................................................................................... 4
    B. The right to a reasonably necessary expert is as fundamental to a fair trial as the
    right to counsel. ........................................................................................................... 5
    C. Ms. Sitawisha’s blood alcohol concentration level was an element of the offense
    for which she was tried, not merely an enhancement. Therefore, it was a
    material issue................................................................................................................ 6
    D. The lack of an expert deprived Ms. Sitawisha of the means to establish a
    reasonable doubt about her level of intoxication. ................................................... 7
    E. The State had a duty to provide Ms. Sitawisha with funds for an expert
    witness. Without Ake funds, she did not have the basic tools for an
    adequate defense. ........................................................................................................ 9
    iii
    F. Because an expert’s assistance was an essential tool of defense in Ms.
    Sitawisha’s case, the trial court should have admonished her about her Ake
    rights during the Faretta hearing. ............................................................................. 10
    CONCLUSION ........................................................................................................................ 11
    PRAYER .................................................................................................................................. 12
    CERTIFICATE OF SERVICE .................................................................................................... 12
    CERTIFICATE OF COMPLIANCE ........................................................................................... 13
    iv
    INDEX OF AUTHORITIES
    Cases
    Ake v. Oklahoma, 
    470 U.S. 68
    (1985) ............................................................................ 2,5-10
    Calton v. State, 
    176 S.W.3d 231
    (Tex. Crim. App. 2005) ..................................................... 7
    Connecticut v. Wang, 
    92 A.3d 2220
    (Conn. 2014) .................................................................. 9
    Faretta v. California, 
    422 U.S. 806
    (1975) ..................................................................... 2, 8, 10
    Johnson v. State, 
    760 S.W.2d 277
    (Tex. Crim. App. 1988) ................................................. 10
    Miranda v. Arizona, 
    384 U.S. 436
    (1966) ............................................................................. 11
    Navarro v. State, __ S.W.3d __, 
    2015 WL 4103565
    (Tex. App. – Houston [14th Dist.],
    July 7, 2015, no pet. h.) .................................................................................................... 7
    Patterson v. Illinois, 
    487 U.S. 285
    (1988) ............................................................................... 10
    Potier v. State, 
    68 S.W.3d 657
    (Tex. Crim. App. 2002)
    Rey v. State, 
    897 S.W.2d 333
    (Tex. Crim. App. 1995) ......................................................... 5
    Tuggle v. Netherland, 
    516 U.S. 10
    (1995)(per curiam) ........................................................... 9
    United States v. Agurs, 
    427 U.S. 97
    (1976) ............................................................................. 7
    Constitution
    U.S. CONSTIT. AMEND. V ....................................................................................................... 6
    U.S. CONSTIT. AMEND. VI ..................................................................................................... 6
    U.S. CONSTIT. AMEND. XIV .................................................................................................. 6
    v
    Statutes and Rules
    TEX. PENAL CODE § 49.04 ............................................................................................ 1, 6, 7
    TEX. R. APP. PROC. 44.2 ........................................................................................................ 4
    Books
    RICHARD ALPERT, DWI INVESTIGATION & PROSECUTION (2005) ................................. 8
    vi
    STATEMENT OF THE CASE
    On October 1, 2014, a Harris County jury found Nomathemba Y. Sitawisha
    guilty of driving while intoxicated with a blood alcohol concentration level of more
    than .015. The jury set punishment at 105 days in jail and a $2,500 fine. Judgment was
    entered on the same day (CR at 64). Also on October 1, 2014, Ms. Sitawisha filed a
    notice of appeal (CR at 67). No motion for new trial was filed.
    ISSUE PRESENTED
    Did the trial court commit constitutional error when it failed to
    advise Appellant, who was on trial for driving while intoxicated
    with a blood alcohol level of more than .15, that she had a right to
    request funds for an expert?
    STATEMENT OF FACTS
    Nomathemba Y. Sitawisha was charged with driving while intoxicated with a
    blood alcohol concentration of more than 0.15 at the time of the analysis, a Class A
    misdemeanor under TEX. PENAL CODE § 49.04(d) (CR at 7 ).
    Ms. Sitawisha had been arrested after a couple driving along a freeway access
    road saw a red sports car jump a curb and nearly strike their vehicle (4 RR at 14). At
    trial, the wife testified that the driver of that vehicle appeared to be under the
    influence of something (4 RR at 19). The red car crashed into a light pole, and the
    couple called 911 and stayed with it until police arrived. Jersey City police officer Jared
    Taylor testified that when he got to the scene, Ms. Sitawisha was sitting in the red
    1
    car’s driver’s seat and he could smell alcohol on her (4 RR at 39). He believed she had
    lost her mental and physical faculties (4 RR at 41).
    When she was unable to hire counsel at a fee she could afford, Ms. Sitawisha
    chose to proceed pro se. The trial court conducted a Faretta hearing to ascertain
    whether she was knowingly and voluntarily waiving her right to an attorney. The judge
    specifically informed her during the hearing that she was entitled to have appointed
    counsel if she could not afford to hire her own lawyer. He then confirmed that she
    understood that right and intended to waive it (2 RR at 4). Ms. Sitawisha also executed
    a written waiver of her right to counsel that included the admonishments (CR at 46).
    At trial, Harris County Sheriff’s Deputy Michael Allbritten testified that when
    Ms. Sitawisha would not consent to a breath or blood test, he obtained a warrant for a
    blood sample (5 RR at 75). Amanda Leicht, who drew the blood, also testified, and
    the blood draw kit was admitted into evidence without objection as State’s Exhibit 10
    (5 RR at 119). A crime lab toxicologist, Andre Salazar, testified that his analysis of the
    blood showed an alcohol content of .21. The toxicology lab report was admitted into
    evidence without objection as State’s Exhibit 12 (5 RR at 171).
    Although the alleged blood alcohol concentration level was an element of the
    state’s case, the judge did not inform Ms. Sitawisha of her right under Ake to request
    funds for an expert to evaluate the results of her blood test, to advise her about how
    to challenge the test, and/or to testify for the defense at trial. The blood test results
    were critical because they were the sole evidence supporting the jury’s affirmative
    2
    finding on the special issue that asked whether Appellant’s blood alcohol level was
    greater than .15.
    Representing herself, Ms. Sitawisha, who is a college student, cross-examined
    each of the witnesses and tried to create an issue about her intoxication level through
    her questioning. She also asked the court to call the toxicology lab’s analytical
    operations manager, Dr. Fessessework Guale (whom the state had not subpoenaed),
    so she could question her about the blood test. In response to her request, the judge
    said, “If you wanted to bring your own expert in, you could’ve done that. Sit down.”
    (5 RR at 208). This was the only time the court admonished Ms. Sitawisha about her
    right to an expert, and even then, the judge did not include an admonishment about
    her Ake right to funds to retain one.
    The state brought Dr. Guale to court the next day. Though Ms. Sitawisha
    made an effort to challenge the test results through Dr. Guale, she did not have the
    expertise – either in the techniques of cross-examination or in blood alcohol analysis
    – to raise an issue about the test (6 RR at 6). She was no match for the state’s
    witnesses.
    SUMMARY OF THE ARGUMENT
    A defendant in a criminal case has a right to funds for an expert if she
    demonstrates that the expert is reasonably necessary. The Supreme Court considers
    this right, which is grounded in due process notions of fundamental fairness, to be a
    structural right, like the right to counsel.
    3
    A defendant who chooses to waive the right to counsel does not automatically
    waive her right to an expert. Because this is a structural issue, a trial judge should: 1)
    admonish a pro se defendant about the dangers and pitfalls of proceeding without an
    expert (at least in cases in which it is clear from the pleadings that one is reasonably
    necessary); 2) advise the pro se defendant of her Ake right to funds; and 3) determine
    whether she is knowingly waiving the right, as Faretta requires for waivers of counsel.
    Ms. Sitawisha’s blood alcohol concentration level was an element of the offense
    with which the state charged her. Therefore, it was reasonably necessary for the state
    to provide her with an expert to assist her in countering the state’s experts and
    evidence on that element. Because she could not have known about her right to funds
    for an expert, she could not have knowingly and voluntarily waived it.
    The trial judge’s failure to give Ms. Sitawisha the opportunity to hire an expert
    made her trial fundamentally unfair. The error was not harmless beyond a reasonable
    doubt. Her conviction should be reversed.
    ARGUMENT
    Ms. Sitawisha was both indigent and pro se. Due process required the trial
    court to ensure that she understood her right to expert assistance, as well as her right
    to assistance of counsel.
    A.    Standard of review
    This case should be reviewed under constitutional error standard of TEX. R.
    APP. PROC. 44.2(a): the court must reverse a judgment unless it determines beyond a
    4
    reasonable doubt that the error did not contribute to the conviction or punishment.
    See Rey v. State, 
    897 S.W.2d 333
    , 345 (Tex. Crim. App. 1995) (Failure to provide a
    pathologist for an indigent defendant was structural error). See, also, Potier v. State, 
    68 S.W.3d 657
    , 664-65 (Tex. Crim. App. 2002) (The effect of denying a defendant his
    theory of the case is of constitutional dimension).
    B.    The right to a reasonably necessary expert is as fundamental to a fair
    trial as the right to counsel.
    The Due Process Clause of the Fourteenth Amendment requires the state to
    make sure that an indigent defendant has “access to the raw materials integral to the
    building of an effective defense.” Ake v. Oklahoma, 
    470 U.S. 68
    , 76 (1985). Access
    includes the right to public funds to pay for an expert’s assistance, once the defendant
    makes a threshold showing that the assistance is reasonably necessary for the
    preparation and presentation of an adequate defense. See 
    id. at 74
    (The Constitution
    requires the state to provide a psychiatric expert to a defendant who cannot afford
    one, when the evidence is reasonably necessary).
    The Court in Ake recognized the importance of being able to respond to a
    state expert’s testimony with one’s own expert. In such cases, due process requires: 1)
    access to an expert’s examination and testing; 2) expert testimony; and 3) expert
    assistance during the sentencing phase. 
    Id. at 83.
    Ms. Sitawisha received none of these.
    Further, the trial court did not inquire whether she intended to waive her right to
    expert assistance as she had waived her right to counsel.
    5
    Expert assistance was, in fact, reasonably necessary for Ms. Sitawisha to defend
    against the state’s allegation that her blood alcohol level exceeded .15 at the time of
    the incident (CR at 7). Without her own expert, she had no way to respond to the
    state’s expert testimony about the testing of her blood. This made her trial
    fundamentally unfair, according to Ake.
    C.        Ms. Sitawisha’s blood alcohol concentration level was an element of the
    offense for which she was tried, not merely an enhancement. Therefore,
    it was a material issue.
    Due process requires the state to prove each element of the offense beyond a
    reasonable doubt. U.S. CONSTIT. AMEND. V (due process)1; U.S. CONSTIT. AMEND. VI
    (right to compulsory process, right to confront witnesses). See, also, Swearingen v. State,
    
    101 S.W.3d 89
    , 95 (Tex. Crim. App. 2003).
    In the Texas Penal Code, driving with an alcohol concentration level of .15 or
    greater is a separate offense from ordinary driving while intoxicated, and the alcohol
    concentration level is an essential element. See TEXAS PENAL CODE § 49.04:
    (a)    A person commits an offense if the person is intoxicated while operating
    a motor vehicle in a public place.
    (b)    Except as provided by Subsections (c) and (d) and Section 49.09, an
    offense under this section is a Class B misdemeanor, with a minimum
    term of confinement of 72 hours.
    …
    (d)    If it is shown on the trial of an offense under this section that an analysis
    of a specimen of the person’s blood, breath, or urine showed an alcohol
    1
    As applied to the states by U.S. CONSTIT. AMEND. XIV.
    6
    concentration level of 0.15 or more at the time the analysis was
    performed, the offense is a Class A misdemeanor.
    In contrast to an element, an enhancement does not change the degree of an
    offense. See Calton v. State, 
    176 S.W.3d 231
    , 233 (Tex. Crim. App. 2005). A blood
    alcohol concentration of .15 or greater, however, does increase the degree of the
    offense. See TEX. PENAL CODE § 
    49.04(d), supra
    . For this reason, “(i)t is … an
    element of a separate offense because it represents a specific type of forbidden
    conduct – operating a motor vehicle while having an especially high concentration of
    alcohol in the body.” Navarro v. State, __ S.W.3d __, 
    2015 WL 4103565
    at *6 (Tex.
    App. – Houston [14th Dist.] July 7, 2015, no pet. h.).
    The allegation that Ms. Sitawisha’s blood alcohol concentration exceeded .15
    increased the offense level of the driving while intoxicated charge, according to
    Section 49.04(d). Therefore, the allegation represented an element of a separate
    offense. This makes it was a material issue within the meaning of Ake, and due
    process required the court to provide her with expert assistance or give her the
    opportunity to waive such assistance.
    D.    The lack of an expert deprived Ms. Sitawisha of the means to establish a
    reasonable doubt about her level of intoxication.
    Evidence also is material, within the meaning of Ake, if its omission would
    create “a reasonable doubt that did not otherwise exist....” United States v. Agurs, 
    427 U.S. 97
    , 112 (1976). As a pro se defendant, Ms. Sitawisha could not raise a reasonable
    doubt about the blood test without expert assistance.
    7
    Blood test evidence is subject to attack on a number of grounds. The test itself
    can be attacked on at least three fronts: the collection of the specimen, the storage of
    the specimen before testing, and the test itself. See RICHARD ALPERT, DWI
    INVESTIGATION & PROSECUTION 56 (2005). Even the most experienced defense
    lawyers often need to retain serology, toxicology or similar experts in blood test cases.
    Experts can provide independent testing, advice before and during trial, assistance
    with preparing for cross-examining the state’s experts, and their own testimony to
    rebut the state’s experts. If this assistance is necessary even for a seasoned trial lawyer,
    it surely is even more so for a layperson representing herself.
    The State called Andre Salazar to testify about the blood test analysis he
    performed, and the result (5 RR at 145). Ms. Sitawisha cross-examined him (5 RR at
    172), but she had no expert to help her understand the science and to prepare an
    effective cross-examination. She also had no expert to testify and perhaps create a
    reasonable doubt about the test or the results.
    In Ms. Sitawisha’s case, the blood testing process and its results were significant
    fact issues. An admonishment and colloquy about this fundamental right easily could
    have been included during the Faretta hearing. However, the trial judge did not include
    it (2 RR at 6). Therefore, Ms. Sitawisha had no opportunity to make a knowing and
    intelligent waiver of her right to an expert or to demonstrate her need for funds under
    Ake.
    8
    E.    The State had a duty to provide Ms. Sitawisha with funds for an expert
    witness. Without Ake funds, she did not have the basic tools for an
    adequate defense.
    Although it appears to be a question of first impression in Texas, the
    Connecticut Supreme Court has decided that a pro se defendant is entitled to funds to
    hire an expert to the same extent as a defendant represented by counsel. In Connecticut
    v. Wang, the primary issue was whether an indigent defendant who has waived the
    right to counsel is constitutionally entitled to reasonably necessary expert or
    investigative services at public expense. Connecticut v. Wang, 
    92 A.3d 220
    , 236 (2014).
    The court held: “An indigent defendant's right to access the tools of an adequate
    defense should not depend on whether he is self-represented or represented by
    appointed counsel. …The due process principle of fundamental fairness requires that
    a state afford an indigent self-represented defendant a fair opportunity to present his
    defense by assuring him access to the basic tools of an adequate defense.” 
    Wang, 92 A.3d at 237
    .
    In this case, the Ake error prevented Ms. Sitawisha from developing her own
    blood test evidence to rebut the state’s evidence and to present her defense. As a
    result, the state’s evidence went unchallenged, which may have unfairly increased its
    persuasiveness in the eyes of the jury. See Tuggle v. Netherland, 
    516 U.S. 10
    , 13
    (1995)(per curiam)(reversing for failure to fund psychiatric expert in capital case as
    required by Ake).
    9
    F.        Because an expert’s assistance was an essential tool of defense in Ms.
    Sitawisha’s case, the trial court should have admonished her about her
    Ake rights during the Faretta hearing.
    A defendant should be made aware “of the dangers and disadvantages of self-
    representation, so that the record will establish that ‘he knows what he is doing and
    his choice is made with eyes open.’ ” Faretta v. California, 
    422 U.S. 806
    , 835 (1975)
    (citations omitted, emphasis added). Construing Faretta, the Texas Court of Criminal
    Appeals has said that a defendant’s “eyes should be open to the fact that, while self-
    representation is undoubtedly his right, he is about to embark on a risky course.”
    Johnson v. State, 
    760 S.W.2d 277
    , 278-9 (Tex. Crim. App. 1988) (citations omitted).
    At trial, counsel is required to help even the most gifted layman adhere to the
    rules of procedure and evidence, comprehend the subtleties of voir dire, examine and
    cross-examine witnesses effectively, object to improper prosecution questions, and
    much more. See Patterson v. Illinois, 
    487 U.S. 285
    , 299 (1988). Further, expert assistance
    is necessary for even the most gifted attorneys, in cases involving scientific or other
    expert evidence. Such assistance is even more important for a defendant who
    proceeds to trial without counsel.
    As a pro se defendant, Ms. Sitawisha should have been admonished about her
    Ake rights, and asked if she wanted to waive those rights as she waived her right to
    counsel. The judge’s failure to take these simple steps made the trial fundamentally
    unfair.
    10
    Just as due process requires a trial court to “rigorously” convey the pitfalls of
    proceeding to trial without counsel (see 
    Patterson, supra
    ), so must it require warnings of
    the pitfalls of proceeding without expert assistance, at least in cases in which the
    indictment makes it obvious that the evidence is material. The trial court also should
    be required to advise a defendant of her right to request funds for an expert, just as
    she must be advised that an attorney will be provided at state expense if she is unable
    to afford one. See Miranda v. Arizona, 
    384 U.S. 436
    (1966).
    CONCLUSION
    The right to self-representation does not exclude the right to expert assistance.
    If the state relies on expert testimony to prove an element of the crime, as it did here,
    then the defendant is entitled to her own expert for preparation and trial, upon a
    showing of reasonable necessity. Under Ake, the state has a constitutional duty to
    provide funds for an expert in such cases. Because this is a question of structural
    error, and because a pro se defendant cannot knowingly waive the right to funds for
    an expert if she is unaware of that right, the trial court should admonish the defendant
    and determine if her waiver of an expert, like her waiver of counsel, is knowing and
    voluntary. The trial court’s failure to admonish Ms. Sitawisha and make funds for an
    expert available to her violated her right to due process and made her trial
    fundamentally unfair.
    11
    PRAYER
    For these reasons, Ms. Sitawisha respectfully requests the Court to reverse her
    conviction and remand this case back to the trial court.
    Respectfully submitted,
    Alexander Bunin
    Chief Public Defender
    Harris County Texas
    /s/ Cheri Duncan
    ______________________________
    Cheri Duncan
    Assistant Public Defender
    Texas Bar No. 06210500
    Elizabeth Sakai
    Legal Intern
    1201 Franklin, 13th floor
    Houston Texas 77002
    (713) 368-0016 telephone
    (713) 437-4318 e-fax
    cheri.duncan@pdo.hctx.net
    CERTIFICATE OF SERVICE
    I certify that a copy of this brief was served electronically on the Harris County
    District Attorney’s Office on July 31, 2015.
    /s/ Cheri Duncan
    __________________________________
    Cheri Duncan
    12
    CERTIFICATE OF COMPLIANCE
    I certify that this brief complies with Rule 9.2, TEX. R. APP. PROC. It was prepared on
    a computer using 14-point Garamond type. It contains 2,796 words.
    /s/ Cheri Duncan
    ____________________________________
    Cheri Duncan
    13