Larson v. State

890 S.W.2d 200, 1994 Tex. App. LEXIS 3042, 1994 WL 695150

Opinions

OPINION

GRANT, Justice.

Louanne Larson appeals from her conviction for capital murder. Larson contends that the trial court erred by admitting her oral statement and evidence seized under her consent to search because they were tainted by her illegal arrest and that the court erred in overruling her motion to transfer venue.

This case is based upon the same facts as those set out in our opinion disposing of the appeal of Tim Rule.

ADMISSION OF ITEMS SEIZED PURSUANT TO CONSENT

Larson first contends that the trial court erred by admitting evidence obtained through a search of Larson’s apartment, car, and business establishment. She contends that she was arrested under an invalid warrant and that the taint inherent to this illegal arrest extended to her consent to the search.

The Arrest Warrant.

The first part of this argument is based upon Larson’s contention that the affidavit upon which the arrest warrant was obtained was legally inadequate. The affidavit is a preprinted form stating that

“I, _, do solemnly swear that I have good reason to believe, and do believe and charge that on or about the_day of _A.D. One Thousand Nine Hundred and_and before the making and filing of this complaint, in the County of_, and State of Texas, _ did then and there unlawfully_”

The blanks were filled in with the appropriate names and dates, and the empty space beneath the preprinted form describes the crime committed. This exact form was reviewed and found wanting in Miller v. State, 736 S.W.2d 643 (Tex.Crim.App.1987) (opinion on rehearing). That affidavit was found insufficient to establish probable cause because it contained the specific language that had previously been condemned in Green v. State, 616 S.W.2d 700 (Tex.Crim.App. [Panel Op.] 1981), cert. denied, 454 U.S. 952, 102 S.Ct. 490, 70 L.Ed.2d 258 (1981). In those cases, as in the present case, the affidavit stated that the affiant “has good reason to believe and does believe and charge,” rather than containing factual statements setting out allegations of personal knowledge or other source for the complainant’s belief. The affidavits then continued, as does the affidavit in this case, by reciting the statutory elements of the charged offense. As in those cases, this affidavit also consists of nothing more than the officer’s conclusion that the accused perpetrated the murder described in the complaint.

Before a warrant for arrest can be issued, the Constitution requires that the judicial officer issuing such a warrant be supplied with sufficient information to support an independent judgment that probable cause exists for the warrant. Green, 615 S.W.2d at 706, citing Spinelli v. United States, 393 U.S. 410, 89 S.Ct. 584, 21 L.Ed.2d 637 (1969). As in Green, we are constrained to conclude that the affidavit provided the judge with no basis for an independent determination of probable cause and that the arrest warrant issued pursuant thereto was invalid. Green, 615 S.W.2d at 706; see also Rumsey v. State, 675 S.W.2d 517 (Tex.Crim.App.1984).

Is Larson’s Consent to Search Valid?

The remaining question is whether the illegality of the arrest warrant requires that the evidence seized as a result of the search made after the illegal arrest should be excluded. The Court of Criminal Appeals has concluded that there is no per se rule prohibiting the use of evidence obtained as a result of a consent search following an illegal arrest, stop, or detention. After an extensive discussion in Juarez v. State, 758 S.W.2d 772 (Tex.Crim.App.1988), the court listed the factors used to determine whether a confession given following an illegal arrest is sufficiently attenuated to permit the use of a confession at trial. The court concluded that those factors were also appropriate guidelines for determining whether evidence obtained through a consent search following an illegal arrest was proper.

Those factors are (1) whether Miranda¹ warnings were given; (2) the temporal proximity of the arrest and confession; (3) the presence of intervening circumstances;. and (4)the purpose and flagrancy of the official misconduct. Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975).

In Boyle v. State, 820 S.W.2d 122, 131 (Tex.Crim.App.1989), the Court set out additional factors relevant to consider in measuring the attenuation of a taint as including whether the consent was volunteered rather than requested by the detaining officers, whether the arrestee was made fully aware of the fact that he could decline to consent, and whether the police purpose underlying the illegality was to obtain the consent.

Evidence obtained from a warrantless but consensual search following an illegal arrest is admissible if the State proves by clear and convincing evidence that the consent was voluntarily rendered and that the preceding factors militate in favor of the conclusion that the taint inherent in the illegality of the arrest has dissipated. Brick v. State, 738 S.W.2d 676, 681 (Tex.Crim.App.1987).

In the present case, it is undisputed that Miranda warnings were given. The second factor is the temporal proximity of the arrest to the consent to search. The records introduced at the suppression hearing indicate that the arrest took place at 11:35 a.m. and that the consent to search was signed at 11:40 a.m. As noted by Juarez, this factor is often considered to be an ambiguous factor, noting that in some situations a prolonged detention may be “a more serious exploitation of an illegal arrest than a short one.” Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (Stephens, J., concurring); Bell v. State, 724 S.W.2d 780 (Tex.Crim.App.1986).

There was very little time for any intervening circumstance to occur that would avail the State in this situation. See Woods v. State, 806 S.W.2d 351, 354-55 (Tex.App.-Texarkana 1991, pet. refd). Although this factor falls in favor of Larson, it is difficult to give it alone much weight without consideration of all other factors. Juarez, 758 S.W.2d at 782.

The fourth factor is the purpose and flagrancy of the official misconduct. There is no indication of any misconduct by the police officers in this situation. The affidavit was prepared by the district attorney’s office after the officers came to them and informed them about the information that they had acquired. The testimony clearly shows that the officers had the personal knowledge necessary to properly obtain a search warrant— and equally clearly shows that the information was inadequately transferred to the affidavit presented to the issuing judge. Thus, it can be confidently stated that the officers acted in good faith in obtaining the arrest warrant. There is also no indication or allegation of any coercion, duress, or other improper act by the officers at the time that they obtained the consent. In this case, the undisputed evidence is that the police requested the consent and that it was not volunteered. Thus, this factor falls in favor of Larson.

In determining whether Larson was fully aware of her right to refuse consent, one additional fact in this case comes down strongly in favor of finding that the search was not an improper result of the illegal arrest: Larson was a certified peace officer, who was a member of the Pittsburg police department.² Thus, her knowledge exceeds that of the general public and guarantees that she would be fully aware of her right to refuse the request to search. This militates in favor of the conclusion that she was well able to exercise her free will and decide whether to consent to the search.

The final factor concerns the reason behind the arrest. Boyle and Juarez both involve situations where probable cause to arrest did not exist in any fashion before the arrests occurred, and officers testified that their purpose in making the arrest was to create a situation where a consent to search might be obtained. Although the officers testified that they hoped to obtain a consent, the arrest was not staged in order to obtain the consent. Probable cause for the arrest existed, but was not adequately presented to the issuing judge. Thus, this factor falls in favor of the State.

From a totality of the circumstances, it appears that the taint of the illegal arrest was sufficiently attenuated to validate the consent to search and thus makes the discovered evidence admissible. See Myers v. State, 680 S.W.2d 825 (Tex.App. — Amarillo 1984, pet. refd).

An alternative basis suggested for permitting the evidence to be admitted is the theory of “inevitable discovery.”

In a plurality opinion, the Texas Court of Criminal Appeals has recently held that the inevitable discovery doctrine does not apply to the statutory exclusionary rule of Tex. Code Crim.PROC.Ann. art. 38.23 (Vernon Supp.1994). Garcia v. State, 829 S.W.2d 796, 798 (Tex.Crim.App.1992); see also Oliver v. State, 711 S.W.2d 442, 445 (Tex.App.-Fort Worth 1986, no pet.) (judicial exception of “inevitable discovery” does not apply to exclusionary rule of Article 38.23). Garcia and Oliver both indicated that if such an exception is to be applied to Article 38.23, it must come by way of legislative amendment and by judicial creation. See Garcia, 829 S.W.2d at 799-800; Daugherty v. State, 876 S.W.2d 522, 524 (Tex.App.-Fort Worth 1994, no pet. h.); Oliver, 711 S.W.2d at 445. Thus, the evidence was properly admitted.

VENUE

Larson next contends that the trial court erred by refusing her motion for a change of venue because of prejudicial pretrial publicity surrounding the case. The Code of Criminal Procedure provides that a change of venue may be granted if “there exists in the county where the prosecution is commenced so great a prejudice against [a defendant] that he cannot obtain a fair and impartial trial.” Tex.Code CRIM.PROcAjstn. art. 31.03 (Vernon 1989). The test to be applied in determining whether the court should grant a motion to change venue is whether “the outside influence affecting the community climate of opinion as to a defendant are so inherently suspect as to raise doubt about the likelihood of obtaining a fair and impartial jury.” Teague v. State, 864 S.W.2d 505, 509 (Tex.Crim.App.1993); Henley v. State, 576 S.W.2d 66 (Tex.Crim.App. 1978).

In Henley, the court listed several factors relevant in determining whether an outside influence affecting the community climate of opinion as to the defendant is inherently suspect. These factors include: (1) the nature of pretrial publicity and the particular degree to which it has circulated in the community, (2) the connection of government officials with the release of publicity, (3) the length of time between the dissemination of the publicity and the trial, (4) the severity and notoriety of the offense, (5) the area from which the jury is to be drawn, (6) other events occurring in the community which affect or reflect the attitude of the community or individual jurors toward the defendant, and (7) any other factor likely to affect the candor or veracity of the prospective jurors on voir dire. Id.

Jurors do not have to be totally ignorant of the facts and issues for a particular case. Ransom v. State, 789 S.W.2d 572, 579 (Tex.Crim.App.1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3255, 111 L.Ed.2d 765 (1990). In order to prevail, a movant must demonstrate that publicity about the case is pervasive, prejudicial, and inflammatory. Teague, 864 S.W.2d at 510. When a motion for change of venue is denied, this Court reviews whether the trial court abused its discretion in refusing to grant the change of venue. Id.

The motion for change of venue was accompanied by the affidavits required by Article 31.03, which were controverted by the State.³

Larson argues that the publicity surrounding the murder, their first capital murder trial, and the subsequent hung jury, mistrial, and escape to Mexico, recapture, and return to Marion County for trial all militate in favor of changing venue. She argues that the publicity resulting from these activities necessarily caused the requisite prejudice against her so that she could not obtain a fair and impartial trial. Counsel has not directed the court to any testimony that would support this position. There are no references to the record under this argument, with the sole exception of citation to that part of the record where the court overruled the motion to transfer venue.

Counsel points out that the trial court struck for cause forty-five jurors out of a panel of ninety-five. Although the trial court did not render its decision until after voir dire was finished and the jury selected, the court had previously held a change of venue hearing as contemplated by Chapter 31. After hearing testimony from several different individuals and hearing argument from counsel, the court was obviously disturbed but not convinced that a fair trial could not be held in Marion County. He adopted a suggestion that a questionnaire be sent out to the potential jurors to obtain additional information. If specifically asked whether the individuals were familiar with the facts of the case, had been exposed to media stories about the case, had formed an opinion about the case, and if so, whether they could render a judgment based solely on the facts adduced at trial, whether the things they might have heard, read, or seen about the case would influence them in reaching a verdict, or any other reason they believed that they could not sit as a juror and render a verdict based solely on the evidence presented.

Most of the panel stated that they were aware, to one degree or another, of the alleged facts and rumors surrounding the ease, and many of them had seen media stories leading up to and about the previous trial. Such knowledge is not fatal to the jury selection process, so long as there is evidence that jurors could try the case strictly on the evidence before them. Eckert v. State, 623 S.W.2d 359, 363 (Tex.Crim.App. [Panel Op.] 1981). Even extensive knowledge in the community of either the crime or accused is not sufficient by itself to render a trial constitutionally unfair. Faulder v. State, 745 S.W.2d 327, 339 (Tex.Crim.App.1987), citing Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

The jurors selected all indicated on voir dire that they could and would decide the case on the evidence before them. The mere fact of media attention and publicity does not automatically establish prejudice or require a change of venue. Teague, 864 S.W.2d at 509, citing Freeman v. State, 556 S.W.2d 287, 297 (Tex.Crim.App.1977). As previously stated, it is not necessary for a juror to be completely unaware of publicity surrounding a particular offense. Ransom, 789 S.W.2d at 579.

There is evidence that would support the positions of both the State and appellant on this issue. Thus, under an abuse of discretion review, it appears that no error has been shown.

The judgment of the trial court is affirmed.

Concurring opinion by CHADICK, J.

Dissenting opinion by BLEIL, J.

Honorable T.C. CHADICK, J., Texas Supreme Court, Retired Sitting by Assignment.

CORNELIUS, C.J., not participating.

Footnotes

1

. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

2

. The record does not clearly reflect when her employment with the police department ended. It does reflect that she was employed by the police department within two or three months of her arrest.

3

. Controverting affidavits are authorized under Tex.Code Crim.Proc.Ann. art. 31.04 (Vernon 1989):

The credibility of the persons making affidavit for change of venue, or their means of knowledge, may be attacked by the affidavit of a credible person. The issue thus formed shall be tried by the judge, and the motion granted or refused, as the law and facts shall warrant.