Chamberlain, Anthony ( 2015 )

PD-0760-15
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 7/29/2015 12:12:09 PM
Accepted 7/30/2015 2:25:45 PM
ABEL ACOSTA
NO. PD-0760-15 CLERK
IN THE
COURT OF CRIMINAL APPEALS
OF TEXAS
AT AUSTIN
_________________________
ANTHONY CHAMBERLAIN,
Appellant
v.
July 30, 2015
THE STATE OF TEXAS,
Appellee
_________________________
On appeal in Cause No. F12-63564-M
from the 194TH Judicial District Court
Of Dallas County, Texas
And on Petition for Discretionary Review from
the Fifth District of Texas at Dallas
In Cause No. 05-13-01213-CR
_________________________
APPELLANT’S PETITION FOR DISCRETIONARY REVIEW
_________________________
Counsel of Record:
Lynn Richardson Nanette Hendrickson
Chief Public Defender Assistant Public Defender
Dallas County Public Defender’s Office
Katherine A. Drew State Bar Number: 24081423
Chief, Appellate Division 133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-399
(214) 653-3550 (telephone)
(214) 653-3539 (fax)
ATTORNEYS FOR PETITIONER/APPELLANT
TABLE OF CONTENTS
INDEX OF AUTHORITIES ................................................................................... iii
STATEMENT REGARDING ORAL ARGUMENT ............................................... 2
STATEMENT OF THE CASE ................................................................................. 2
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE .................... 3
STATEMENT OF FACTS ........................................................................................ 3
GROUND FOR REVIEW ......................................................................................... 3
Whether the Court of Appeals erred in holding the trial court did
not abuse its discretion by admitting Amy Shuemaker’s prior
inconsistent statement.
ARGUMENT ............................................................................................................. 4
FACTS ............................................................................................................. 4
APPLICABLE LAW ....................................................................................... 6
THE COURT OF APPEALS’ HOLDING IS INCORRECT ......................... 6
CONCLUSION ............................................................................................... 9
PRAYER FOR RELIEF ..........................................................................................10
CERTIFICATE OF SERVICE ................................................................................10
CERTIFICATE OF COMPLIANCE .......................................................................10
ii
INDEX OF AUTHORITIES
Cases
Chamberlain v. State,
No. 05-13-01213-CR, 2015 Tex. App. LEXIS 5310 (Tex. App.—Dallas May
27, 2015) ............................................................................................... 3, 7, 8, 9
Hughes v. State,
4 S.W.3d 1 (Tex. Crim. App. 1999) ......................................................... 4, 6, 7
Kelly v. State,
60 S.W.3d 299 (Tex. App.—Dallas 2001, no pet.) ..........................................7
Rules
TEX. R. APP. P. 68.4 (i) .........................................................................................3
Tex. R. Evid. 403 ..............................................................................................6, 7
Tex. R. Evid. 607 ..................................................................................................6
iii
LIST OF PARTIES
TRIAL COURT JUDGE
Pat McDowell, Judge, sitting for Ernest White, Presiding Judge
APPELLANT
Anthony Chamberlain
APPELLANT’S ATTORNEYS
AT TRIAL
J. Daniel Oliphant, State Bar No. 00797173
ON APPEAL
Nanette Hendrickson, State Bar No. 24081423
Assistant Public Defenders
Dallas County Public Defender’s Office
133 N. Riverfront Blvd., LB 2
Dallas, Texas 75207-4399
STATE’S ATTORNEYS
AT TRIAL
Brooke Grona-Robb, State Bar No. 24027356
Terrance Downs, State Bar No. 24071598
ON APPEAL
Alexis E. Hernandez, State Bar No. 24055658
Assistant District Attorneys
Dallas County District Attorney’s Office
Frank Crowley Courts Building
133 N. Riverfront Blvd., LB-19
Dallas, Texas 75207-4399
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TO THE HONORABLE COURT OF CRIMINAL APPEALS:
Anthony Chamberlain, Appellant, respectfully presents to this
Honorable Court his Petition for Discretionary Review of the Fifth District
Court of Appeals’ Opinion affirming the trial court’s judgment.
STATEMENT REGARDING ORAL ARGUMENT
Appellant requests oral argument because this case presents a question
of law on issues having statewide impact and possible reoccurrence. Oral
argument may be helpful to the members of this Court in the resolution of
the issues presented.
STATEMENT OF THE CASE
Appellant was charged by indictment with the offense of possession
of a controlled substance between four and two hundred grams with the
intent to deliver. (CR: 8).The indictment also included two enhancement
paragraphs alleging prior convictions for possession of a controlled
substance over four grams with intent to deliver and possession of a
controlled substance over one gram. (CR: 8). Appellant pled not guilty to the
primary charge in the indictment. (RR3: 8). A jury trial was held, and the
jury found Appellant guilty of the offense. (RR4: 85). After a hearing on
punishment, the court assessed punishment at thirty years. (RR5: 46).
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Judgment was entered by the trial court on August 16, 2013. (CR: 48). A
notice of appeal was timely filed. (CR: 46).
STATEMENT OF THE PROCEDURAL HISTORY OF THE CASE
On May 27, 2015, in an unpublished opinion authored by Justice
Schenk, the Court of Appeals for the Fifth District of Texas affirmed the
trial court’s judgment. Chamberlain v. State, No. 05-13-01213-CR, 2015
Tex. App. LEXIS 5310, * 26 (Tex. App.—Dallas May 27, 2015). This Court
granted an extension of time to file a Petition for Discretionary Review,
which is timely if filed on or before July 27, 2015.
STATEMENT OF FACTS
The facts of this case, which are extensive, are adequately recited in
the Court of Appeal’s opinion, which is attached to this Petition as required
by TEX. R. APP. P. 68.4 (i).
Suffice it to say that Appellant was charged with and convicted of
possession of a controlled substance between four and two hundred grams
with the intent to deliver. (CR: 48; RR4: 85).
GROUND FOR REVIEW
Whether the Court of Appeals erred in holding the trial court did not
abuse its discretion by admitting Amy Shuemaker’s prior inconsistent
statement.
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ARGUMENT
The Court of Appeals incorrectly applied the rule in determining
whether a prior inconsistent statement is admitted “under the guise of
impeachment to introduce inadmissible evidence.” Hughes v. State, 4
S.W.3d 1, 3-4 (Tex. Crim. App. 1999).
FACTS
Amie Shuemaker (Shuemaker) was called to testify by the State.
(RR3: 195). Shuemaker testified she was sitting in the back seat of the
minivan when they were pulled over by the police. (RR3: 196). Shuemaker
also stated that she was not there testifying because she wanted to. (RR3:
195). Shuemaker was asked to tell the jury about what happened in the van
when they were pulled over to which she repeatedly replied she did not
know or did not remember. (RR3: 196, 197, 198, 200, 201, 203, 204).
Eventually, Shuemaker refused to answer the prosecutor’s questions and
said she “d[idn’t] have anything else to say to [her].” (RR3: 202).
The prosecutor asked Shuemaker if she remembered writing a
statement for the police. (RR3: 198). Shuemaker said she did not. (RR3:
198). When asked if she recognized a copy of a statement the prosecutor
showed her, Shuemaker replied “I recognize that you said that’s the one I
wrote the day this happened.” (RR3: 198). She acknowledged that the
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handwriting on the statement “could be” hers. (RR3: 199). However, she did
not remember writing it. (RR3: 199).
The prosecutor’s main goal was to establish Appellant as the owner of
the drugs found in the vehicle underneath Shuemaker’s seat. (RR3: 200).
The prosecutor told Shuemaker “the main thing I need to know is whether or
not the brown—the black satchel that contained the methamphetamine came
from Mr. Chamberlain.” (RR3: 200). Shuemaker responded that she did not
know. (RR3: 200).
Eventually, the State called Detective Conway to the stand to offer
Shuemaker’s prior written statement into evidence. (RR4: 6). Appellant
objected to the admission of Shuemaker’s prior inconsistent statement based
on the lack of foundation presented by the prosecutor, hearsay, relevance,
and if admitted, that the statement’s prejudicial effect outweighed the
probative value. (RR4: 5-6). The trial court overruled the objection. (RR4:
8). Shuemaker’s statement was admitted which stated that the “dope that
was found was not [hers] it was Anthony Chamberlains.” (State’s Exhibit 9).
The statement goes on to say, “Please do not let anyone know I have said
these things or I will deny all of this I have kids & I do not want anything to
happen to them.” (State’s Exhibit 9).
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APPLICABLE LAW
Any party may use a witness’ prior inconsistent statement to impeach
her credibility. See Tex. R. Evid. 607; Hughes v. State, 4 S.W.3d 1, 5 (Tex.
Crim. App. 1999). A party may not use a prior inconsistent statement as a
subterfuge for admitting evidence that would otherwise be inadmissible. Id.
A party’s knowledge that a witness will testify unfavorably is one factor a
trial court must consider when determining admissibility under Rule 403.
Id.; Tex. R. Evid. 403.
Rule 403 states that even when evidence is relevant, it may still be
excluded if its probative value is outweighed by “unfair prejudice, confusion
of the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence.” Tex. R. Evid. 403. Evidence
must be excluded “under Rule 403’s balancing test because the State profits
from the witness’ testimony only if the jury misuses the evidence by
considering it for its truth. Consequently, any probative value the
impeachment testimony may have is substantially outweighed by its
prejudicial effect.” Id
THE COURT OF APPEALS’ HOLDING IS INCORRECT
The Court of Appeals’ decision is in conflict with the holding of this
Court.
6
In applying the Rule 403 balancing test, the Court of Appeals failed to
correctly determine if the State deliberately put Shuemaker on the stand to
elicit previously inadmissible testimony in the form of her written statement.
The Court of Appeals relied heavily on the prosecutor’s self-serving
statement to the trial court that it felt its witness would “reluctantly testify
consistent with the statement.” Chamberlain, Tex. App. LEXIS at *15-16. In
support of this reliance, the Court of Appeals cited its reasoning in Kelly v.
State. Id. (citing Kelly v. State, 60 S.W.3d 299, 302 (Tex. App.—Dallas
2001, no pet.)). Kelly interpreted Hughes v. State wherein this Court
reasoned that the State’s knowledge is key to the analysis and to merely
suspect the witness might turn is not enough. Kelly, 60 S.W.3d at
302(explaining Hughes, 4 S.W.3d at 5). However, contrary to the Court of
Appeals opinion in the case at bar, the State had much more than mere
suspicion that Shuemaker would not testify according to her written
statement. On Shuemaker’s written statement, she stated unequivocally that
she would lie if later asked about the contents of the statement. The Court of
Appeals did not analyze the State’s knowledge of Shuemaker’s testimony by
considering all of the facts surrounding it, but merely accepted as fact the
State’s self-serving assertion of its knowledge.
7
The purpose of the analysis is to prevent the State from receiving the
benefit of otherwise inadmissible evidence under the pretense of an
uncooperative witness. Therefore, the reviewing court should analyze the
facts known to the State at the time the witness testifies. In the present case,
the State knew Shuemaker would lie when she testified because she
specifically said so in her written statement. This was born out when
Shuemaker testified. When the State broached the subject of where in the
front seat the drugs came from Shuemaker immediately “refused to answer
questions, became argumentative, and stated she did not want to answer
questions.” Chamberlain, Tex. App. LEXIS at *16. The Court of Appeals
did not consider Shuemaker’s assertion in her written statement when
determining the State’s knowledge regarding her testimony. Therefore, the
Court of Appeals misapplied this Court’s standard regarding whether the
State had knowledge of the witnesses’ recantation.
The Court of Appeals also found that the State elicited some favorable
testimony from Shuemaker, which weighed in favor of using her prior
statement. According to the Court of Appeals, “Shuemaker testified that she
was in the back seat of the van when it was pulled over by the police. She
also testified that the black case started in the front seat, was handed to her,
and she threw it in the back.” Id.
8
The Court of Appeals reasoned that this one statement was
“favorable” to the State, “thus supporting a finding by the trial court that the
State did not call Shuemaker for the primary purpose of eliciting otherwise
inadmissible testimony.” Id. However, the purpose of Shuemaker’s
testimony was to prove that the drugs found under her seat in the vehicle
originated, specifically, with Appellant. Indeed, the prosecutor told
Shuemaker during questioning “the main thing I need to know is whether or
not the brown—the black satchel that contained the methamphetamine came
from Mr. Chamberlain.” (RR3: 200). Therefore, the testimony was only
favorable, or probative, for the State if it proved Appellant’s knowledge, or
actual possession, of the methamphetamine. Otherwise, Shuemaker’s
testimony that the drugs came from the front seat would have been all the
testimony the State needed making admission of the prior statement
unnecessary. As such, this one general statement from Shuemaker was not
enough to show whether she would testify consistent with her prior
statement.
CONCLUSION
The Court of Appeals’ decision to affirm the trial court’s ruling admitting
Shuemaker’s prior consistent statement is in conflict with this Court’s ruling.
9
This Court should grant discretionary review to resolve this discrepancy
between the Court of Appeal’s ruling and the ruling of this Court.
PRAYER FOR RELIEF
For the reasons herein alleged, Appellant prays this Court grant this
petition and, upon reviewing the judgment entered below, remand the case
for a new trial.
Respectfully submitted,
Lynn Richardson
Chief Public Defender
/s/ Nanette Hendrickson
Nanette Hendrickson
Assistant Public Defender
State Bar No. 24081423
CERTIFICATE OF SERVICE
I hereby certify that on the 27th day of July, 2015, a true copy of the
foregoing petition for discretionary review was served on Lori Ordiway,
Assistant District Attorney, Dallas County Criminal District Attorney’s
Office, 133 N. Riverfront Blvd., LB-19, 10th Floor, Dallas, Texas, 75207,
by electronic and hand delivery; and was also served on, Lisa C. McMinn,
State Prosecuting Attorney, P.O. Box 13046, Austin, Texas, 78711 by
electronic delivery and by depositing same in the United States Mail,
Postage Prepaid.
/s/ Nanette Hendrickson
Nanette Hendrickson
CERTIFICATE OF COMPLIANCE
I certify that the foregoing Petition for Discretionary Review contains
2,163 words.
/s/ Nanette Hendrickson
Nanette Hendrickson
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