State of Texas v. Masonheimer, Ex Parte James S.

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. PD-0521-05 EX PARTE JAMES S. MASONHEIMER, Appellee

ON APPELLEE'S PETITION FOR DISCRETIONARY REVIEW

AND STATE'S CROSS-PETITION FOR DISCRETIONARY REVIEW

FROM THE ELEVENTH COURT OF APPEALS

TAYLOR COUNTY

Cochran, J., filed a dissenting opinion.

O P I N I O N

I most respectfully dissent.

Although I agree that this particular scenario might fit snugly within the spirit of Oregon v. Kennedy, ⁽¹⁾ it does not fit within the letter of that law. But we are not free to stray into the spirit of the law. We are bound to follow the letter of the Supreme Court's law on federal constitutional matters until and unless that court reassesses or refines its position on double jeopardy as set out in Kennedy. The holding in Kennedy is crystal clear: double jeopardy bars a retrial only if the prosecutor commits manifestly improper conduct with the intent to goad the defendant into moving for a mistrial. ⁽²⁾ This case, however, involves a prosecutor who, it is asserted, intends to "win at any price" before a first jury, not one who intends to "get rid of this jury" so that he would have a better chance to win before a second one. The result is the same-the defendant loses his right to a fair trial before his chosen jury-but the prosecutor's "foul" intent is different, and, under Kennedy, that distinction is crucial for double-jeopardy purposes.

Some state courts, finding the reasoning and result in Kennedy unsatisfactory, have chosen to interpret their own state constitutions more broadly than the Supreme Court did in Kennedy to reach what they consider a more desirable result. ⁽³⁾ For ten years Texas did as well. ⁽⁴⁾ We have only recently returned to the federal double-jeopardy fold and its "bright line" Kennedy standard. ⁽⁵⁾

One of the problems with deciding cases on independent state constitutional grounds is that the Supreme Court is not given the opportunity to reassess and refine the federal constitutional standard when state courts, dissatisfied with a purportedly parsimonious federal standard, create a different rule under their own constitutions. Kennedy was decided twenty-five years ago. The Supreme Court is not averse to reassessing its prior precedent when appropriate, ⁽⁶⁾ and this case (or another like it) might provide a suitable opportunity to consider a refinement of its "bright-line" rule in Kennedy. But until the Supreme Court does so, I cannot conclude that federal double-jeopardy principles bar yet another trial in this case.

I.

The trial judge in this pretrial habeas corpus proceeding ⁽⁷⁾ found that the prosecution had "recklessly" ⁽⁸⁾ failed to disclose three crucial items of exculpatory evidence in violation of Brady v. Maryland: ⁽⁹⁾

1. Immediately after the shooting, Mr. Masonheimer told a neighbor, Mr. Marshall, that he had shot "Bo" Sanchez, his daughter Lucy's former boyfriend because Sanchez had threatened Lucy, and "it was either him or her." ⁽¹⁰⁾

2. Billy Williams, Lucy's former husband, told investigators that Lucy had called him the night before the shooting to tell him about Sanchez's dangerous and threatening behavior. Lucy "broke down," and said that she thought Sanchez had put dirt in the gas tank of her car. Billy told her to go to the police and get a restraining order. ⁽¹¹⁾

3. While cleaning up Sanchez's garage apartment behind Lucy's home, John Upchurch, one of Sanchez's friends, found several syringes and vials hidden inside an antique Coke machine. Trish Duque, a registered nurse, was helping Mr. Upchurch in the clean-up, and she said the vials contained steroids. ⁽¹²⁾

The lead prosecutor's repeated failure to turn over exculpatory material (material which he must have known was crucial because the defense attorney had, before trial, clearly explained his self-defense and defense-of-daughter theory on the record), coupled with his deliberate attempt to prevent Mr. Marshall from testifying about Mr. Masonheimer's spontaneous statement immediately after the shooting, ⁽¹³⁾ are objective facts that support the habeas judge's factual finding that the lead prosecutor was, at a minimum, "reckless."

I agree with the majority that these objective facts support a finding that the lead prosecutor acted "with the specific intent to avoid the possibility of an acquittal." ⁽¹⁴⁾ His conduct of intentionally depriving the defense of obviously exculpatory evidence during the first trial was "manifestly improper." But these facts and circumstances do not demonstrate that the lead prosecutor was motivated by a desire to "goad" the defense into requesting a mistrial. Instead, it is a fair conclusion that he was acting with the intent to "win at any price" a trial that, had he turned over the Brady material, he likely would have lost. These objective facts support the defense attorney's position at the habeas hearing that the lead prosecutor "got caught," not once, not twice, but three separate times in deliberately failing to turn over exculpatory evidence to the defense. This repeated misconduct led to two separate mistrials. ⁽¹⁵⁾

II.

The constitutional question is whether the double-jeopardy clause of the United States Constitution bars a retrial if (1) the lead prosecutor intended to "sabotage" the fairness and accuracy of a first trial by hiding exculpatory evidence, and (2) that manifestly improper misconduct required the defendant to request and obtain a mistrial.

At least one state court has suggested that the double-jeopardy principles expressed in Kennedy should bar a retrial when the prosecutor "sabotages" the first trial whether he intends to goad the defendant into requesting a mistrial or whether he simply intends to obtain a conviction by "foul means," but got caught at it. ⁽¹⁶⁾

The double-jeopardy clause "'affords a criminal defendant a valued right to have his trial completed by a particular tribunal.'" ⁽¹⁷⁾ But, said the Supreme Court in Kennedy, "[p]rosecutorial conduct that might be viewed as harassment or overreaching, even if sufficient to justify a mistrial on [a] defendant's motion . . . does not bar retrial absent intent on the part of the prosecutor to subvert the protections afforded by the Double Jeopardy Clause." ⁽¹⁸⁾ The question that the Supreme Court has not addressed in the twenty-five years since Kennedy is whether there is any degree of intentional prosecutorial "harassment or overreaching" which, though intended to win a trial it would probably otherwise lose, is covered by the mistrial prong of the Double Jeopardy Clause. If successful "goading" into a mistrial results in a bar against retrial, why not unsuccessful "sabotage" which results in a mistrial? It would seem that in both instances the prosecutor intended to subvert the protections afforded by the Double Jeopardy Clause: a reasonably fair trial before the chosen factfinder.

It seems to me that this extension is no less of a "bright-line" rule than that set out in Kennedy. Both would require the trial judge to find that the prosecutor's conduct was manifestly improper-committed with specific "foul" intent ⁽¹⁹⁾ to avert an otherwise likely acquittal from the chosen factfinder. ⁽²⁰⁾ The difference is only between a "goading" or a "sabotaging" intent. It seems to me that the issue in Kennedy concerned the brightness of the "bright-line" rule concerning the prosecutor's "foul" intent, not whether that intent was specifically directed toward making the defendant request a mistrial or toward "winning at any price" including intentional sabotage. ⁽²¹⁾

There might not be a constitutionally meaningful distinction between intentionally "goading" the defendant into requesting a mistrial and intentionally "sabotaging" the defendant's right to a fair trial by prosecutorial foul play when either results in a mistrial granted for "manifest necessity." But only the United States Supreme Court can answer that question.

Filed: March 21, 2007

Publish

1. 456 U.S. 667 (1982).

2.

Id. at 676, 679.

3.

See, e.g., People v. Batts, 68 P.3d 357, 665-66 (Cal. 2003) (holding that the double jeopardy clause of the California Constitution bars retrial following the grant of a defense-requested mistrial when the prosecution either intentionally goaded the defendant into requesting a mistrial or intentionally committed misconduct believing that the defendant would otherwise be acquitted); Pool v. Superior Court, 677 P.2d 261, 271-72 (Ariz. 1984); State v. Rogan, 984 P.2d 1231, 1249 (Haw. 1999); State v. Breit, 930 P.2d 792, 803-04 (N.M. 1996); State v. Kennedy, 666 P.2d 1316, 1326 (Or. 1983); Commonwealth v. Smith, 615 A.2d 321, 325 (Pa. 1992).

4.

See Bauder v. State, 921 S.W.2d 696, 699 (Tex. Crim. App. 1996) (interpreting the Texas constitutional double jeopardy standard more broadly than the corresponding federal provision to include "reckless" misconduct and holding that retrial would be barred "when the prosecutor was aware of but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request").

5.

Ex parte Lewis, ___ S.W.3d ___, No. PD-0577-05, 2007 Tex. Crim. App. LEXIS 33 (Tex. Crim. App., January 10, 2007).

6.

See, e.g., Roper v. Simmons, 543 U.S. 551 (2005) (reconsidering its holding in Stanford v. Kentucky, 492 U.S. 361 (1989), and holding that the Eighth and Fourteenth Amendments bar execution of those under 18 when they committed a capital offense); Atkins v. Virginia, 536 U.S. 304 (2002) (reassessing its decision in Penry v. Lynaugh, 492 U.S. 302 (1989), and holding that the Eighth and Fourteenth Amendments bar execution of those who are mentally retarded); Lawrence v. Texas, 539 U.S. 558 (2003) (reconsidering its holding in Bowers v. Hardwick, 478 U.S. 186 (1986), and holding that the Fifth and Fourteenth Amendments protect private adult consensual sexual relations between members of the same sex from criminalization).

7. The judge presiding over the habeas hearing was not the same judge who had presided over the original trial and mistrial, but he did preside over the second trial and mistrial.

8. Because the trial judge was following the then-current Texas constitutional standard set out in

Bauder, he did not make specific findings on whether the prosecution team acted "intentionally" under Kennedy. Although the objective facts in this record support the majority's conclusion that the first prosecutor acted intentionally, I would have remanded the case for further factual findings on this issue.

9. 373 U.S. 83 (1963).

10. Mr. Marshall gave a written statement to the police with his version of Mr. Masonheimer's statement. This written statement was not given to the defense and the record from the first trial shows that the lead prosecutor deliberately cut Mr. Marshall off when he tried to testify to Mr. Masonheimer's exculpatory explanation.

11. Despite the judge's pretrial order to turn over all

Brady material, his order during trial when he discovered that Mr. Marshall's exculpatory statement had not been turned over, and his order to re-examine the entire file for any other possible Brady material, the prosecution team did not give Billy Williams's written statement to the defense until confronted at a pretrial hearing shortly before the second trial.

12. The defense attorney established that the lead prosecutor and his investigator had interviewed Mr. Upchurch some two months before the first trial. Mr. Upchurch told them of his discovery. Both the prosecutor and investigator took "copious" notes during this interview. They then called Trish Duque to confirm the discovery of the vials and her belief that they contained steroids. This information, though corroborating the defense theory that Sanchez had recently become violent and aggressive because of his steroid use, was not given to the defense until the middle of the second trial. Despite numerous

Brady requests, orders, and admonitions from two trial judges, the State inexplicably failed to produce three obviously exculpatory items of evidence. Even more ominous, the defense suggests that there may be more unproduced exculpatory materials: the prosecution's investigator testified at the habeas hearing that Police Chief Bob Jones took pictures inside Sanchez's apartment, but those photographs have mysteriously disappeared.

13. The lead prosecutor specifically asked Mr. Marshall what Mr. Masonheimer told him immediately after the shooting. Mr. Marshall responded, "Yes, sir. I asked him if he did it. He said yes. He said that he had threatened-" At that point, the prosecutor interrupted with another question instead of allowing Mr. Marshall to complete his sentence. Mr. Marshall's written statement shows that Mr. Masonheimer told him that Sanchez had threatened his daughter. "It was either him or her."

14. Majority slip op. at 19.

15. The first mistrial was actually declared after a death in the second prosecutor's family, but it was indirectly caused by the lead prosecutor's misconduct. The lead prosecutor's failure to turn over Mr. Marshall's statement caused the defense to request a mistrial. The trial judge declined to immediately grant a mistrial and instead granted a continuance to decide whether the trial could later proceed before the same jury if all exculpatory evidence were properly produced in the interim. As is now known, the additional exculpatory material was not produced. But before the trial judge could make any final decision about the mistrial requested for the

Brady violation, the death of the second prosecutor's family member necessitated a mistrial.

16.

See West v. State, 451 A.2d 1228, 1235 (Md. Ct. Spec. App. 1982) (stating that Oregon v. Kennedy would bar retrial if the prosecutor committed misconduct "knowing it to be error, but desiring to 'sabotage' a probable loser either 1) by snatching an unexpected victory from probable defeat if not caught, or 2) by getting caught, thereby provoking the mistrial, averting the probable acquittal and living to fight again another day. (A calculated sabotaging of a perceived 'lost cause' in either event; an indifference to whether he is caught or not.)").

17.

Kennedy, 456 U.S. at 671-72 (quoting Wade v. Hunter, 336 U.S. 684, 689 (1949)).

18.

Id. at 675.

19. As poetically put by Chief Judge Gilbert of the Maryland Court of Special Appeals, this is

the specific intent to commit a foul, the deliberate "hitting below the belt" or the calculated "personal foul" performed with the thought in mind that the foul might well be detected for what it is. By borrowing from the game of football for an analogy, we liken that specific intent to force a mistrial to a defensive back's wilful and deliberate interference with the offensive team's down field pass receiver. The defense knows that by performing the illegal act that constitutes the foul, he will probably be caught and his team penalized. Nevertheless, the offender prefers to take the penalty rather than give up the touchdown that most likely would occur were the foul not committed.

Lee v. State, 423 A.2d 267, 269 (Md. Ct. Spec. App. 1980).

20. Although "it hurts the defendant just as much to have prejudicial blasts come from the trumpet of the angel Gabriel,"

United States v. Nettl, 121 F.2d 927, 930 (3d Cir. 1941), the Kennedy double-jeopardy bar applies only when those prejudicial blasts were intended to subvert the defendant's valuable right to have his fate fairly decided by his chosen factfinder. Just as a dog knows the difference between being kicked and being stumbled over, a trial judge must, under Kennedy, determine, from the objective facts and circumstances, whether the prosecutor's misconduct was intentionally "below the belt" or merely negligent.

21.

See Kennedy, 456 U.S. at 675 (stating that a rule "that examines the intent of the prosecutor . . . is a manageable standard to apply").