Robert O'Bryan v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00313-CR
ROBERT O’BRYAN APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM COUNTY CRIMINAL COURT NO. 1 OF DENTON COUNTY
TRIAL COURT NO. CR-2013-08057-A
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DISSENTING OPINION
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Respectfully, I cannot join the thoughtful majority. I do not understand the
majority’s hypothesis that in Texas, imputed knowledge may only expand the
authority of the prosecution but may not protect the constitutional rights of the
accused.
The obligations stemming from imputed knowledge within the prosecution
team have long been recognized in Texas courts. In 1989, in an early
exoneration case, the Texas Court of Criminal Appeals concluded that Randall
Dale Adams had been convicted of capital murder on perjured testimony. 1 The
Texas Court of Criminal Appeals explained,
The issue of Miller’s perjurious testimony regarding her
identification of the applicant involves both the suppression of
evidence favorable to the accused and the State’s knowing use of
false testimony. During the applicant’s trial, after the three rebuttal
witnesses had testified and Miller had identified the applicant, the
State closed. The applicant’s attorney then belatedly requested a
hearing outside the presence of the jury in order to determine
whether Miller’s identification testimony had been tainted by an
improper photo spread or lineup. The trial judge observed that the
request was untimely because Miller had already identified the
applicant. Nevertheless, he permitted the hearing to allow the
applicant to perfect a bill of exception. It was during this hearing that
Miller perjured herself by testifying falsely that she had identified the
applicant in a lineup and that no one had influenced her in her
identification. After the hearing the trial judge commented that he
considered the issue of a tainted identification to have been waived
by the defense, but emphasized that the defense had the right to go
into it in front of the jury. In this regard it must be remembered that
at this time the applicant had no knowledge of the truth about the
identification or the prior inconsistent statement.
Following his comments to counsel, the judge concluded[] that
Miller’s identification testimony “was not influenced either by the
witness having seen photographs of the defendant or by the witness
having viewed the defendant in a lineup of people conducted by law
enforcement authorities.” He further stated: “The Court finds there
is no taint, that the identification of the witnesses in court is based
solely on the witnesses having viewed the defendant at the time and
place where the offense was committed as alleged in the
indictment.” He also comment[ed] that irrespective of his factual
findings a waiver of a defect in the identification had occurred.
Mulder testified that he did not know Miller had identified
someone other than the appellant in the lineup, nor did he know that
1
Ex parte Adams, 768 S.W.2d 281, 290–91 (Tex. Crim. App. 1989).
2
the officer in charge of the lineup told her who she should have
identified. However, this is insufficient to remove the taint of the
prosecution’s knowing use of perjured testimony. As previously
noted, the United States Supreme Court has expressly recognized
that when confronted with perjurious testimony the prosecutor has a
duty to correct it. Further, whether the prosecutor had actual
knowledge of the falsity of the testimony is irrelevant. If the
prosecutor should have known is sufficient. Thus, the Supreme
Court has endorsed the imputation of knowledge, at least from one
prosecutor to another. However, the extent of this imputation of
knowledge has been expanded. In Williams v. Griswald, the court of
appeals stated: “It is of no consequence that the facts pointed to
may support only knowledge of the police because such knowledge
will be imputed to state prosecutors.” In United States v. Antone, the
court of appeals observed that it has “declined to draw a distinction
between different agencies under the same government, focusing
instead upon the ‘prosecution team’ which includes both
investigative and prosecutorial personnel.”
The Dallas police officer that “helped” Miller was by her own
admission in charge of the lineup. Consequently, as a part of the
investigating team his knowledge of Miller’s lack of identification at
the lineup and his assistance to her is imputed to Mulder.
Consequently, when Miller testified that she had identified the
applicant in a lineup Mulder had an obligation to correct the perjured
testimony.2
The Adams court “declined to draw a distinction between different agencies
under the same government, focusing instead upon the ‘prosecution team’ which
includes both investigative and prosecutorial personnel.”3
2
Id. at 291–92 (citations omitted).
3
Id. at 292; see also Ex parte Castellano, 863 S.W.2d 476, 484–85 (Tex.
Crim. App. 1993) (holding that peace officer who was not assigned to an arson
case but who took it upon himself to assist and engage in perjury for private
reasons was nevertheless acting under color of law and part of the prosecutorial
team).
3
The imputed knowledge rule is still alive and well. In 2014, the Texas
Court of Criminal Appeals stated,
In Moulton, the Supreme Court indicated that a Massiah
violation occurs only if the State “knowingly circumvented” the right
to counsel. The court of appeals’s opinion suggests that a knowing
circumvention did not occur because Midland law enforcement was
unaware that appellant had counsel. Appellant’s position is that the
knowledge of Ector County law enforcement should be imputed to
Midland County law enforcement.
Appellant has the better of the argument. In Michigan v.
Jackson, the Supreme Court held that the State is responsible, in
the Sixth Amendment context, for the knowledge of all of its actors:
Sixth Amendment principles require that we impute the
State’s knowledge from one state actor to another. For
the Sixth Amendment concerns the confrontation
between the State and the individual. One set of state
actors (the police) may not claim ignorance of
defendants’ unequivocal request for counsel to another
state actor (the court).
In so concluding, the Supreme Court cited and quoted from
Moulton, a Massiah case. It is true that, in Montejo v. Louisiana, the
Supreme Court overruled Jackson insofar as it imposed a
prophylactic rule forbidding interrogation once the accused has
requested counsel. But the Montejo decision expressly stated that it
was not concerned with the substantive scope of the Sixth
Amendment right to counsel, and in so saying it cited both Moulton
and Massiah. We do not agree with the court of appeals that the
Supreme Court’s decision to overrule Jackson constituted an
abandonment of the rule of imputing knowledge to the State.4
The majority is correct that, generally, the police may detain a person
based on an entry in NCIC. But in the case now before this court, the Denton
4
Rubalcado v. State, 424 S.W.3d 560, 573–74 (Tex. Crim. App. 2014)
(citations omitted).
4
police department was aware that the car was not stolen and that there should
be no NCIC entry reporting that it was stolen. No one knows why the stolen
vehicle report was not properly withdrawn. But the knowledge of the Denton
police department is imputed to Northlake police.5 Consequently, police had no
reasonable suspicion to support their original detention of Appellant.
The majority appears to suggest a good faith exception to the warrant
requirement when the police rely on NCIC. But Texas recognizes only the good
faith exception found in the Texas Code of Criminal Procedure:
It is an exception to the provisions of Subsection (a) of this Article
that the evidence was obtained by a law enforcement officer acting
in objective good faith reliance upon a warrant issued by a neutral
magistrate based on probable cause.6
In the case now before this court, there is no warrant, and there is no
requirement that a neutral magistrate screen the information before it can be
entered on NCIC. Under the facts of this case, good faith does not justify the
unlawful detention of Appellant, nor does the NCIC entry that should have been
withdrawn because the Denton police candidly explained that they knew the car
had not been stolen, that it had been reported to them as stolen in error, and that
the entry should have been withdrawn. The original detention of Appellant was
unlawful.
5
See id. at 574.
6
Tex. Code Crim. Proc. Ann. art. 38.23(b) (West 2005).
5
For these reasons, I must respectfully dissent.
/s/ Lee Ann Dauphinot
LEE ANN DAUPHINOT
JUSTICE
PUBLISH
DELIVERED: May 28, 2015
6