Texas Justice - RBS Appeal 1

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[ed. This document is complete (84 pages) - I have attempted to scan and correct as best as I can - while this document has been spell checked, etc, I cannot guarantee that I have removed all errors generated by the scanning and OCR process]

MARY KAY SICOLA

ATTORNEY AT LAW

707-B WEST LYNN

AUSTIN, TEXAS 78703

TELEPHONE (512) 472-9096

FACSIMILE (512) 472-8601

October 17, 2002

Abel Acosta, Deputy Clerk Texas Court of Criminal Appeals

P.O. Box 12308 Capitol Station, Austin, TX 78711

RE: Springsteen v. State, No. 74,223

Dear Mr. Acosta:

It has been brought to my attention that during the process of photocopying and binding, page 49 failed to be included in the bound copies of appellant's brief filed with this Court.

Ihave enclosed I2 copies of page 49 for inclusion in appellant's brief.

I have contacted the establishment that copied and bound appellant's brief, and they will rebind the briefs should the Court deem it necessary.

I apologize for any inconvenience this may have caused your office, and please let me know if I can further assist the Court.

Sincerely,

Mary Kay Sicola

cc: Travis County District Attorney's Office

No. 74,223

IN THE COURT OF CRIMINAL APPEALS

ROBERT BURNS SPRINGSTEEN, IV, Appellant

THE STATE OF TEXAS, Appellee

On Appeal from the District Court

of Travis County, Texas

167th Judicial District

District Court Cause No. 99-6015

APPELLANT'S BRIEF ON APPEAL

Mary Kay Sicola

707 West Lynn

Austin, Texas 78703

(512)472-9096

SBN 18339800

ATTORNEY FOR APPELLANT

ORAL ARGUMENT REQUESTED

Stamped:

Received in Court of Criminal Appeals

Oct 16, 2002

Troy C. Bennett, Jr, Clerk

STATEMENT REGARDING ORAL ARGUMENT

Appellant requests oral argument. Tex.R.App.P. Rule 39.

IDENTITY OF PARTIES AND COUNSEL

The following persons were involved in this case at trial:

DarIa Davis Efrain De La Fuente & Robert Smith Assistant District Attorneys P.O. Box 1748 Travis County, Texas 78767 ATTORNEYS FOR THE STATE AT TRIAL

Joe James Sawyer 1027 East Riverside Austin, TX 78704' ATTORNEY FOR DEFENDANT AT TRIAL

Berkley Bettis 5607 Montview Street Austin, TX 78756 ATTORNEY FOR DEFENDANT AT TRIAL

TABLE OF CONTENTS

Statement Regarding Oral Argument................................................................................... ii

Identity of Parties and CounseL......................................................................................... iii

Table of Contents ...............................................................................................................iv

Index of Authorities ........................................................................................................... vii

Preliminary Statement........................................................................................................xii

Issues Presented ...............................................................................................................xiii

Statement of Facts ..............................................................................................................1

Point of Error I.

The trial court erred in admitting excerpts from the written confession of Mike Scott, a separately tried nontestifying codefendant, in violation of appellant's right to confront the witnesses against him. U.S. Const. amend. VI. (RR 53:139). .........................18

Point of Error II.

The trial court erred in admitting excerpts from a written confession of Mike Scott, a separately tried nontestifying codefendant, in violation of Tex.R.Evid. Rules 802; 803(24) (RR 53:139) (RR 53:157-184) ............................................................................18

Point of Error III.

The trial court erred in admitting the testimony of Amanda Statham, who testified to Michael Scott's eight-year-old oral statements claiming Scott's participation in the offense in violation of appellant's right to confront the witnesses against him. U.S. Const. amend. VI. (RR 53:150) (RR 53:157-184) ......................................................56

Point of Error IV.

The trial court erred in admitting the testimony of Amanda Statham, who testified to Michael Scott's eight-year-old oral statements claiming Scott's participation in the offense in violation of tex.R.Evid. Rules 802; 803(24); Tex.R.Evid. Rules 401-402. (RR 53: 150). .................................................................................................................56

Point of Error V.

The trial court erred in admitting the testimony of Nancy Reed, Amanda Statham's mother, who testified that Statham mentioned to her in 1991 that Scott claimed participation in the offense, in violation of appellant's right to confront the witnesses against him. U.S. Const. amend. VI. (RR 54:12). ..........................................................59

Point of Error VI.

The trial court erred in admitting the testimony of Nancy Reed, Amanda Statham's mother, who testified that Statham mentioned to her in 1991 that Scott claimed participation in the offense, in violation of Tex.R.Evid. Rules 802; 803(24) (RR 54:12). ....................................................................................59

Point of Error VII.

The trial court erred in admitting appellant's oral statements to the police in violation of the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. V. (RR 49:132) ""."""""""""'."""'."""'."""""'".........................60

Point of Error VIII.

The trial court erred in admitting appellant's oral statements to the police in violation of the Due Course of Law provision of the Texas Constitution. Tex. Const. art. I, g 19. (RR 49:132)...............................................................................60

Point of Error IX.

The trial court erred in admitting the irrelevant testimony of James Ramsbottom that he saw appellant with a gun four to five years before the offense. Tex.R.Evid. Rules 401, 402, 403 and 404 (RR 54:177). ................................................69

Point of Error X.

The trial court erred in admitting the irrelevant and prejudicial testimony of Dr. Jeffrey Harlow, who testified to his counseling sessions with appellant. Tex.R.Evid. Rules 401, 402, 403, 404 (RR 51:100) ....................................................... 72

Point of Error XI.

The trial court erred in admitting the testimony of Dr. Jeffrey Harlow, who testified to his counseling sessions with appellant, in violation of appellant's confidential communications privilege. Tex.R.Evid. Rules 401, 402,403,404 (RR 51:100). ...........................................................................................72

Point of Error XII.

The evidence is legally insufficient to support the jury's verdict of guilt (RR 59: 12). ....76

Point of Error XIII.

The evidence is factually insufficient to support the jury's finding of guilt (RR 59: 12) ..76

Point of Error XIV.

Tex. Code Crim. P. art. 37.071 is unconstitutional as applied to appellant for it allows for the execution of a juvenile offender. U.S. Con st. amend. VIII....................... 78

Point of Error XV. .

Tex. Code. Crim. App. art. 37.071 represents a flagrant violation of international law, as applied to appellant, for it allows for the execution of a juvenile offender in violation of international law. ........................................................................................81

Prayer ................................................................................................................................84

Certificate of Service .........................................................................................................84

INDEX OF AUTHORITIES

Cases

Arlington Memorial Hospital Foundation, Inc. v. Baird, 991 S. W.2d 918, 920-921 (Tex.App.-- Fort Worth 1999) ..............................................72

Armstrong v. State, 718 S.W.2d 686, 693 (Tex.Crim.App. 1985) ..............~..................58, 63

Atkins v. Virginia, 122 S.Ct. 2242 (2002) ...........................................................................79

Baker Marine Corp. v. Herrera, 704 S. W.2d 58, 62 (Tex.App.-- Corpus Christi 1985)..................................................................................72

Bruton v. United States, 391 U.S. 123,88 S.Ct. 1620 (1968).................................. 21, 23, 28

Chambers v. Bowersox, 157 F.3d 560, 565 (8th Cir. 1998).................................................59

Clewis v. State, 922 S. W.2d 126, (Tex.Crim.App. 1996) .................................................... 75

Cofield v. State, 891 S. W.2d 952 (Tex.Crim.App. 1992) ....................................................36

Culombe v. Connecticutt., 367 U.s. 568,602 (1961) ..........................................................58

Davis v. North Carolina, 384 U.S. 737, 752 (1966)............................................................59

Delli Paolli v. United States, 352 U.S. 232, 77 S.Ct. 294 (1957) ........................................21

Dewberry v. State, 4 S. W.3d 735 (Tex.Crim.App. 1999) ..............................................36,43

Evans v. State, 504 S. W.2d 707 (Tex.Crim.App. 1976) ......................................................42

Farmah v. State, 883 S. W.2d 674, 680-81. (Tex.Crim.App. 1994) .....................................63

Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)..........................................................82

st . Gonzalez v. State, 21 S. W.3d 595 (Tex.App.-Houston [1 Dlst.] 2000)............................71

Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 115 (1998) .......................................... 21, 23, 28

Green v. Scully, 850 F.2d 894,903-04 (2d Cir. 1988).........................................................60 Guidry v. State, 9 S. W. 3d 133 (Tex.Crim.App. 1999).................................35,42,43,48,53

Haynes v. Washington, 373 u.s. 503, 513-14 (1963)..........................................................58

VII

Hearne v. State, 500 S. W.2d 851 (Tex.Crim.App. 1973)....................................................42

Huckelbury v. Wainwright, 781 F.2d 1544, 1545 (11th Cir. 1986)......................................59

Idaho v. Wright, 497 U.S. 805,822, 110 S.Ct. 3139 (1990)...............................26, 37,41,54

In Re: Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970) .........................................74

Jackson v. Virginia, 443 U.s. 307,99 S.Ct. 2781 (1979).................................................... 74

Keeney v. Tamayo-Reyes, 504 U.S. 1 (1992) ......................................................................58

Lee v. illinois, 475 U.S. 530, 106 S.Ct. 2056 (1986)............................................... 25, 28, 41

Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999) ...........................................20,21, 24, 25, 26, 28, 29, 37-42, 53-55

Mendez v. State, 56 S. W.3d 880 (Tex.Crim.App.-Austin 2001, p.d.r. denied)..........................................37, 39, 42, 53, 55

Mincey v. Arizona, 437 U.S. 385, 399-401 (1978)............................................................~.59

Miranda v. Arizona, 384 U.S. at 436,448-58 (1966) ..........................................................63

Montgomery v. State, 810 S. W.2d 372 (Tex.Crim.App. 1990)............................................68

Morales v. State, 32 S.W.3d 862, 867 (Tex.Crim.App .2000).............................................69

Mullaney v. Wilbur, 421 U.S. 684,697-98,95 S.Ct. 1881, 1888-89 (1975) ........................75

Negrini v. State, 853 S. W.2d 128, 132033 (Tex.App.-- Corpus Christi 1993) .....................72

Nethery v. State, 692 S. W.2d 686,708 (Tex.Crim.App. 1985)............................................72

Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531 (1980).............................................. 20, 21, 24

Patterson v. Texas, 536 U.S. -, 2002 U.S. LEXIS 5341 (August 28,2002).....................79

Rankin v. State, 974 S.W.2d 707, 709 (Tex.Crim.App. 1996).............................................68

Ray v. Duckworth, 881 F.2d 512, 518 (7th Cir. 1989).........................................................60

Reina v. State, 940 S. W.2d 770 (Tex.App. --Austin, 1997, pet. ref' d)................................ 75

Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702 (1987) ..............................21, 22, 23, 28

viii

Santellan v. State, 939 S. W.2d 155 (Tex.Crim.App. 1997) ................................................. 75

Siderman v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir. 1992) ................................82

Simmons v. Bowersox, 235 F.3d 1124, 1132-34 (8th Cir. 2001)...........................................59

Smith v. State, 874 S.W.2d 720,721-22 (Tex.App.--Houston [1st Dist.] 1994)...................72

Stanford v. Kentucky, 492 U.S. 361 (1989).........................................................................77

State ex rel. Kizmiller v. Henning, 190 W.Wa 142,437 S.E.2d 452 (W.Va. 1993)..............71

The Paqueta Habana, 175 U.S. 677 (1900)........................................................................82

Thompson v. Oklahoma, 487 U.S. 817 (1988) ...,..........'.......'..........'..'....'......'...'............... 77

Townsend v. Sain, 372 U.S. 293, 307 (1963) ......................................................................58

u.S. v. Huerta, 239 F.3d 865, 871-72 (7th Cir. 2001) ........................................................59

u.S. v. Allen, 247 F.3d 741, 765-66 (8th Cir. 2001)............................................................60

u.S. v. Burns, 15 F.3d 211, 216 (1st Cir. 1994) ..................................................................59

u.S. v. Glover, 104 F.3d 1570, 1580 (10th Cir. 1997).........:...............................................59

u.S. v. Jones, 32 F.3d 1512, 1517 (11th Cir. 1994).............................................................59

Statutes

Tex. Code Crim. Proc. Ann. art. 37 .071 ................................................................... x, 80, 83

Tex.R.App.P. 44.2(2).........................................................................................................39

Tex.R.Evid. 401.................................................................................................. ix, x, 53, 67

Tex.R.Evid. 402.................................................................................................. ix, x, 53, 67

Tex.R.Evid. 403 ....................................................................................................... x, 67,68

Tex.R.Evid. 404............................................................................................................. x, 67

Tex.R.Evid. 701................................................................................................................. 72

Tex.R.Evid. 702................................................................................................................. 72

Tex.R.Evid. 801(d) ............................................................................................................19

Tex.R.Evid. 802........................................................................................................... 19,56

Tex.R.Evid. 803.................................................................................................................19

Tex.R.Evid. 803(24) .............................................................................19,35,37,38,42,56

Constitutions

Tex. Const. art. I, ~ 19.................................................................................................... x, 58

u.s. Const. amend. V ..................................................................................................... x, 58

u.s. Const. amend. VI. ..........................................................................ix, 18,20,53,54,56

u.s. Const. amend. VIIl.................................................................................................x, 77

Periodicals and other References

Austin American-Statesman, Trial Synopsis, p. B6 (September 7, 2002) .......................8,45

Borchard, Edwin M., Convicting the Innocent xvii (1932)..................................................65

Dripps, Donald A., Foreword: Against Police Interrogation - And the Privilege Against Self Incrimination, 78 J. Crim. L. & Criminology 699, 726 (1988)...............................................................65

Fort Worth Star-Telegram, p. A-I (July 24)....................................................................... 78

Hall, Michael, Under the Gun, Texas Monthly (January 2001) <http://texas justice.com/txmthly/underthegun.htm> ................................................................31,41

Hampton, Keith, Cleared by DNA. Voice for the Defense. 29:9 (November 2000) ............. 77

Johnson, Gail, 6 B.U. Pub. Int. L.J. 719 at 726, 729 ...........................................................64

Note: Killing Kids: The impact of Domingues v. Nevada on the Juvenile Death Penalty as a Violation of International Law. 41:5 Boston College L.Rev. 1175-1216 (September 2000).........................................................81

Ogletree, Charles J. , Are Confessions Really Good for the Soul? A Proposal to Mirandize . Miranda, 100 Harv. L. Rev. 1826, 1842 (1987)..............................................................65

New York Times, Justice O'Connor on Executions, (May 7, 2001) <http://www.nytimes_o'connor.html>............................................................................... 78

Paris, Margaret, Trust, Lies, and Interrogation, 3 Va. J. Soc. Polly & L. 3,9,44 (1996).....65

Rosenberg Irene M. & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. Rev. 69 (1989) ......................................65

Roppe, Laura Hoffman, Comment, True Blue? Whether Police Should Be Allowed to Use Trickery and Deception to Extract Confessions, 31 San Diego L. Rev. 729 (1994) ...................................................................................65

Sasaki, Daniel W. ,Guarding the Guardians: Police Trickery and Confessions, 40 Stan. L. Rev. 1593, 1612 (1988)................................................................................65

Scheck, Barry, et. al., Actual Innocence: Five days to execution, and other dispatches from the wrongly convicted. (2000) ................................................................................. 78

Streib, Victor L. , The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January 1, 1973 - September 30, 2002 http://www.law .onu.edu/faculty/streib/juvdeath.pdf. ................................................79, 80

Young, Deborah, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, 473-76 (1996) ............................................................................65

Jim Willett, I was Warden. I did the Job with Dignity. I Still Have Question. Washington Post, p.B1 (May 13, 2001).......................................................................... 78

PRELIMINARY STATEMENT

Appellant was convicted of capital murder and assessed the death penalty

(059:,12) (RR 61:1-10).

xii

ISSUES PRESENTED

Point of Error I.

The trial court erred in admitting excerpts from the written confession of Mike Scott, a separately tried nontestifying cOdefendant, in violation of appellant's right to confront the witnesses against him. U.S. Con st. amend. VI. (RR 53:139) (RR 53:157-184).

Point of Error II.

Point of Error III.

Point of Error IV.

Point of Error V.

Point of Error VI.

xiii

Point of Error VII.

The trial court erred in admitting appellant's oral statements to the police in violation of the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. V. (RR 49:132).

Point of Error VIII.

The trial court erred in admitting appellant's oral statements to the police in violation of the Due Course of Law provision of the Texas Constitution. Tex. Const. art. I, ~ 19. (RR49:132).

Point of Error IX.

Point of Error X.

Point of Error XI.

Point of Error XII.

The evidence is legally insufficient to support the jury's verdict of guilt (RR 59: 12).

Point of Error XIII.

The evidence is factually insufficient to support the jury's finding of guilt (RR 59:12)

Point of Error XIV .

Tex. Code Crim. P. art. 37.071 is unconstitutional as applied to appellant for it allows for the execution of a juvenile offender. U.s. Const. amend. VIII.

xiv

Point of Error XV .

No. 74,223

IN THE COURT OF CRIMINAL APPEALS

ROBERT BURNS SPRINGSTEEN, IV, Appellant

THE STATE OF TEXAS, Appellee

On Appeal from the District Court of Travis County, Texas 167th Judicial District

District Court Cause No. 99-6015

STATEMENT OF FACTS

The background.

This unusual death penalty case involves a notorious 1991 quadruple homicide, locally referred to as the yogurt shop murders. Eight years after the murders, and in the absence of any physical evidence linking the alleged perpetrators to the crime, the police declared the crime solved based on confessions they acquired from Mike Scott and appellant, Rob Springsteen. Both men, teenagers at the time of the crime, immediately recanted their statements and refused to cooperate with the state. Despite the lack of physical evidence, appellant was found guilty of capital murder and sentenced to death (RR 59:12) (RR 61:1-10). Several months later, another jury found Scott guilty of capital murder. Scott, however, did not receive the death penalty. A third

codefendant, Maurice Pierce, did not confess. He remains in jail awaiting trial. The Travis County Grand Jury declined to indict a fourth suspect, Forrest Welborn.

The testimony.

The remainder of this Statement of Facts represents a chronological summary of the testimony presented at trial.

Dearl Croft testified that on December 6, 1991, he entered the yogurt shop around 10:00 p.m. and encountered a young man who inquired about the security truck Croft was driving that night. The man asked a store employee to use the restroom. When Croft left the store about five minutes later, the man had yet to return from the restroom. He described the man as 5'10" to 6' tall, with a slender build (RR 45: 130-144). Lusella Jones testified that she visited the yogurt shop between 8:15 and 8:30 on the night of the incident and saw two unkempt teenage boys at a table. She described them as between 14 and 17 years old, 5'4"-5'7" in height, with one stockier than the other, and "not light complected." One boy kept making a clicking sound from within a bag (RR 45:144). Eight years later, she was shown a photo lineup and could not positively identify the pictures, but stated that a photograph of Maurice Pierce resembled the boys more so than the other pictures she was shown. Austin Police Department (APD) Officer Troy Gay testified that while on patrol he saw smoke coming from the strip center housing the yogurt shop. After the fIrefighters arrived, extinguished the fire and discovered the bodies, Gay taped off the area (RR 45:170 183). Gay did not know if the back doors to the shop were locked or unlocked, closed or open (RR 45:191).

Rene Garza of the Austin Fire Department (AFD) responded to the call that evening. He pulled on the front door and it opened, although the lock was deployed. He located the source of the fire in the back of the store, went back outside to increase the water pressure, re-entered and extinguished the fire. When he discovered two bodies he went back outside to report the casualties. He re-entered and went to the store's back door. He pushed open the door and subsequently discovered a third victim. He did not recall a key in the front door, although it was locked. He acknowledged that the ceiling in the rear of the building, where the fire was located, had fallen in (RR 45:195-216). AFD firefighter David Deveau testified that they gained entry to the store when Garza pulled on both front doors at the same time and they opened. While he and Garza were inside the store he observed several others walking about the crime scene. No effort was made to ascertain the number of firefighters at the scene, or how many entered the store, but he estimated that fewer than twenty firefighters responded to the call (RR 46:2-25). APD officer Robert Kimmons testified that those responding to the crime scene may have inadvertently stepped on the bodies. He saw 3-4 firefighters and EMS personnel walking through the crime scene after the bodies were discovered. He acknowledged that an additional "small group" walked through the crime scene to see where the bodies had been discovered. He testified that he may have nudged one of the bodies (RR 46:27-39). APD officer Dennis Smith testified that when the firefighters reported victims inside the store, he subsequently entered the crime scene without gloves or a hairnet. He saw unknown EMS personnel and unknown arson investigators walking through the crime scene (RR 46:52). Additionally, he saw a group of people walking through the crime scene accompanied by APD Sergeant John Jones.

APD officer Chris Walker testified that when he arrived at the scene and saw "a lot of firemen inside" the building after the fire was extinguished. He instructed the firefighters to leave the scene and remain outside (RR 46:54-60). Irma Rios of the DPS crime lab testified that she arrived at the scene and began collecting evidence. She acknowledged that the investigation failed to preserve items relating to the fire's origin, including shelving and a ladder. She also acknowledged cross contamination among samples she collected. She could not recall whether she changed gloves when she collected samples from different victims (RR 47 :9-41). Rios indicated that the store's office was unlocked after the fire (RR 46:123-124). Reece Price was the manager of the yogurt shop at the time. Responding to a call from police that there was a fire and dead bodies at the store, Price arrived at the yogurt shop and tried to enter the back door. She could not do so, however, because "the media was so bad" (RR 47:63). She did not know the identity of Amy Ayers, who was not a store employee (RR 47:64).

Price testified to the shop's standard operating procedures (RR 47:67). She explained that the storefront included two glass doors with one side permanently locked by a bolt in the ceiling and floor. The store's only office always remained locked (RR 47:60, 139) (See also RR 46:84-85). The key to the office was hidden in a different part of the store, beneath the front counter, so that if patrons used the restrooms they could not enter the office, which contained a floor safe (RR 47:60). The store's rear door had a dead bolt and could not be opened easily from the outside, as there was no outside handle (RR 47:53-145). Only one person was authorized to use the cash register (RR 47:68). A few days after the offense, at APD's request, Price returned to the store and opened a floor safe

located inside the office- it was filled with water and contained the 5:00 p.m. sales report for December 6,1991, and cash consistent with the 5:00 p.m. report. The evening sales report was apparently never completed and the cash from the evening's sales remains unaccounted for(RR 47:1 18).

The stores shelving unit typically held a variety of supplies, including big cases of napkins, cups and toilet paper (RR 47:81).

Doctor Tommy Brown, M.D., conducted the autopsies. He identified the victims' wounds as follows: Amy Ayers had two gunshot wounds to the head. She was strangled with a ligature, suffered second-degree burns, no charring, and came to rest lying on her stomach. Amy Ayers' rape kit was negative. She was dead when the fire began (RR 47: 145-171). She had been shot with a.22 caliber gun, strangled and then shot with a .380 caliber gun. Or, she had been strangled, shot with a .22 caliber and then shot with a .380 (RR47:215).

Eliza Thomas was seriously charred, had a gunshot wound to the head, and bore a ligature. She came to rest on her back.

Sarah Harbison was entirely charred, lying on her back, with extensive vaginal abrasions. She had a gunshot wound to the head from which the bullet was recovered. She had been sexually assaulted (RR 47:183-193).

Jennifer Harbison was severely charred, was discovered lying on her back, bore a ligature and a gunshot wound to her head. The bullet was recovered.

FBI fingerprint expert Timothy Trozzi testified that in 2000 he examined two wrist watches, one key, a key ring with three keys, a whistle and medallion, a metal scoop, shoes, a money bag, cash drawers and money. By using vacuum metal deposition, a process of

obtaining prints, he was able to obtain two prints from the cash drawer and four prints from its lid. He compared the prints with the four suspects (appellant, Scott, Pierce and Welborn) as well as the store's employees. Two of the prints belonged to an employee. Four prints did not match any employees or the suspects (RR 47:216-231).

DPS crime lab expert Rachael Riffe testified that investigators failed to process the store's bathroom for prints. However, the fingerprints from a victim's car did not match the four suspects (RR 48:5-35). Riffe did not dust for prints in the store's office because it was locked at the time of the crime (RR 48:23).

Jorge Barney, an employee of the store adjacent the yogurt shop, testified that shortly before the fire was set he heard steps on the building's roof. He then heard three or four popping noises, which were spaced out in time. When he smelled smoke, he flagged down APD Officer Troy Gay (RR 48, 43-56).

DPS analyst Davis Spence testified that he did not identify any accelerants on the victim's clothing, but this would not be conclusive regarding whether an accelerant was used if the fire had started elsewhere in the building. He acknowledged that he failed to collect debris from the scene for testing to establish whether an accelerant had been used (RR, 48, 57-63).

ATF agent Bradley Cooper testified that no accelerants were on the clothing used as ligatures on the victims' bodies (RR 48:72).

Melvin Stahl, an AFD investigator in 1991, testified that the crime scene reflected that no liquid accelerants had been used on the floor and that there was no smell of accelerants usually associated with a fire originating from the use of accelerants. Based on his interviews with firefighters, the condition of the victims' bodies and the bum patterns on

the wall, Stahl originally concluded that the fire started in the rear of the building near the comer of the room. He further concluded that the fIre was started without the use of accelerants. After Scott's 1999 confession alleged that the fire started in the middle of the room with lighter fluid on the victims' bodies, the District Attorney's Office asked Stahl to revisit his report. At trial he changed his conclusions to suggest that the fire started in the middle of the room on the victims' bodies (RR 48:72-140).

Doctor David Cancelada, M.D., testified that pictures of the fire suggest direct-flame contact on the bodies, although he admitted this was beyond his area of expertise (RR 49:76).

Detective Robert Merrill testified that in 1999 he secretly video and audiotaped an appellant's interrogation, resulting in appellant's oral statement implicating himself in the crime (RR 49:132).

Chandra Morgan was 13 years old in 1991. She testified that she knew the suspects. She recalled seeing Maurice Pierce at Northcross Mall on December 6, 1991. According to Morgan, Pierce was with Forrest Welborn. They met a teenager, whom Morgan identified at trial as appellant, as well as a guy with blonde hair. After they all "took acid" they went to the yogurt shop, but Welborn did not enter the store. They used the restroom and they all left. Morgan saw Pierce, appellant and the blonde-headed teenager in a car about 30 to 45 minutes later, but Welborn was not with them. She entered the car and saw Welborn walking from the direction of the yogUrt shop around the time she heard sirens. They drove in the opposite direction of the sirens and stopped at an elementary school. She saw that

defendant had a gun. When she saw Pierce again a few nights later, he told her "to keep her mouth shut." Pierce was arrested a few days later for carrying a weapon (RR 51: 145-170).1

Kelly Hannah was appellant's girlfriend in 1991. She testified that he failed to meet with her December 6, 1991. She never saw him with a weapon. He returned to West Virginia in January 1992.

Robert Springsteen, III, appellant's father, testified that appellant spent most of his life in West Virginia prior to 1991. In Texas, appellant lived in a condo adjacent to the one in which he lived. For a few weeks, Michael Scott lived with appellant. On December 6, 1991, the elder Springsteen phoned the police to report that he hadn't seen appellant in two days. He recalled that appellant returned to West Virginia in February 1992.

Gary Gunno, a police officer in West Virginia, testified that in 1992 he encountered appellant, who had previously been interviewed by the Austin Police Department regarding the crime. Appellant volunteered that he was a suspect in the yogurt shop case. Gunno contacted the Austin Police Department and was informed that appellant was not a suspect (RR 51:207).

Tom Powe testified that in 1991 he was 16 years old and that he knew appellant. Powe had plans to meet appellant to see "The Rocky Horror Picture Show" on December 6, 1991, but he didn't see appellant that evening. He clarified that appellant could have been at the show, but he simply did not see appellant there (RR 51 :216).

On December 14,1991, APD officer Malcomb Wilson arrested Pierce for weapon possession. He seized the .22 caliber, six-shot revolver (RR 52:17-20).

1 At Mike Scott's trial, Morgan recanted her allegation that she had seen appellant with a weapon December 6,1991. She attributed her confusion to the "acid" she consumed that evening. See Trial Synopsis, Austin American-Statesman B6 (September 7, 2002). 8

APD officer Bruce Boardman searched Pierce's home for other weapons. He then interviewed appellant, who was not a suspect. Boardman testified that he lost his notes of the interview, and only discovered them on the eve of trial (RR 51:20-29). His notes reflected that appellant stated that on the night of the crime appellant was with Pierce's sister Rene. He wanted to attend "The Rocky Horror Picture Show" and snuck in because he didn't have any money (RR 51:37).

Boardman testified that crime scene information immediately began leaking out to the public. The integrity of the crime scene was jeopardized because too many firefighters had tromped through it (RR 5 I :39-4 I). There were many teenagers who frequented the Northcross Mall area and crime scene information quickly spread (RR 5 I :46).

APD officer Rodney Bryant testified that on December 14 and 15 he participated in the interview of Pierce. He attended a search of a creek for weapons, where the police located some shell casings (RR 5 I :53-58).

Joseph Wills testified that he knew Welborn and Pierce. He had seen Pierce with a weapon. On the night of the crime he heard shots, then sirens, and saw Welborn, on foot, "come up by" a store in the strip mall (RR 5 I :59).

Jeffrey Harlow, Ph.D., testified that in the spring of 1992 he saw appellant for six therapeutic sessions. He believed that appellant was moderately depressed, had a learning disability in math and was "weak" in writing. Appellant was tired, had headaches, and wanted to reduce his impulsive anger (RR 51:100).

DPS analyst Bill Sorrows testified regarding a .380 projectile and casing found at the scene of the crime. Sorrows was unable to positively or negatively link Pierce's weapon to the crime (RR 5 I: I 42). However, ATF agent John Murdock conducted a more sophisticated

and precise ballistics analysis and testified it was "very, very unlikely" that Pierce's gun fired the .380 caliber bullet recovered from the deceased (A.Ayers). As for the .22 bullets, Murdock concluded they were fired from the same revolver (RR 51: 185-205).

Steven Donovan, the service manager at a car dealership in 1991, testified that on December 9, 1991, a Pathfinder had been stolen from their lot (RR 51:210).

Meredith Skipper testified that she knew Michael Scott and that in December 1991, he visited her in San Antonio in a Toyota Landcruiser, along with three other males (RR 51: 212).

DPS analyst Steve Robertson testified that he examined the clothing ligatures on the victims' bodies. The knots appeared similar and many hairs were found on each ligature. Regarding Amy Ayers, her hair matched the hair on the ligature and her pubic hair combings were all similar to one another (RR 52: 15-32). Eliza Thomas did not have a known sample for comparison. Two hairs were found on her ligatures, one a head hair, the other a pubic hair. The pubic hair did not match her combings and the head hair was tan to light-brown Caucasian hair, with some similarities to the hair from the ligature (RR 52:32 39).

Regarding Sarah Harbison, he recovered a hair from her mouth ligature similar to a hair sample from her hairbrush (RR 52:40). He also recovered a hair from the toilet paper roll, which was Caucasian, 2.5 inches long, and suffered no fIre damage. Additional pubic hairs were found on clothing debris, black Reebok shoes. Most of the hairs were not submitted for DNA testing, including one which had blood on it (RR 52:40-53).

DPS analyst Karen Lindell testified that blood found at the scene was consistent with victim Amy Ayers (RR 52:60-75).

DPS analyst Cassie Carradine testified regarding the DNA tests run on swabs from the victims as well as items from the scene. Vaginal, anal and fingernail samples were consistent with the victims. All anal and vaginal samples were negative for spermatozoa, with the exception of victim Jennifer Harbison. The positive vaginal swab matched her boyfriend's DNA. The ice cream scoop and the ligatures were negative for spermatozoa (RR 53:97-109).

Suzanne Ulery, a DNA expert with Bode Lab, testified regarding test results run on the samples. The results were either negative for DNA or matched the victims. All rectal swabs were negative (RR 53:110-113).

Constance Fisher, another DNA expert, testified that mitochondrial DNA was run on only four hairs. Appellant was excluded as a possible donor of these DNA samples (RR 53:117).

Amanda Statham, who was 13 at the time of the offense, testified that she knew Mike Scott. Within weeks of the crime, Scott, then 17 years old, told her her was involved in the yogurt shop murders. Statham, who admitted to drinking at the time, testified that she did not believe Scott when he made the statement (RR 53:150).

APD detective Manuel Fuentes read aloud the document entitled "voluntary statement excerpts," which the court fashioned from Scott's confession (RR 53:157-184).

Doctor Beth Nauert, M.D., testified to the general proposition that the absence of physical evidence does not necessarily mean that no sexual abuse occurred. She did not conduct any examines in this case but was aware that the forensic pathologist found no evidence of sexual assault (RR 54:112).

Nancy Reed, the mother of Amanda Stratham, testified that her daughter mentioned Scott's inculpatory statements allegedly made in 1991 (RR 54:120).

Chris Lauas testified that he knew Maurice Pierce and saw him with a revolver in February, 1992 (RR 54:126).

Shelly Johnson, a DNA expert with Bode Lab, testified regarding DNA found on the victims and at the scene (RR 54:135). DNA was recovered from hair found on toilet paper and clothing debris, but none matched any of the victims or suspects. Two additional hairs were positive for DNA but failed to match any of the victims or suspects. Other hairs matched the victims.

Guy Shuman testified that he knew Maurice Pierce and that in 1991 Pierce pulled and pointed a semiautomatic gun (RR 54: 145).

James Ramsbottom testified that he knew appellant in junior high school in West Virginia. Four or five years before the offense, he once saw appellant with a .38 caliber gun. An adult took the gun away from appellant (RR 54:177).

The prosecutors for the State rested (RR 54: 181 ).

APD Sergeant Hector Polanco testified regarding problems with the murder investigation. He clarified the importance of securing the crime scene, and holding back "core facts" specific to the crime (RR 55:1-15). Within days of the murders, "hold back information" began coming in. Over 60 teenagers were brought in for questioning, many who knew each other (RR 55:15). Leaks were on the street within a month of the crime. APD conducted an investigation regarding the source of the leaks and one source was EMS ~ personnel. However, since APD failed to log who penetrated the scene, they were unable to

determine the individual's name. He testified that the crime scene was "uncontrolled" and there was "undocumented access" to the scene even after the fire was put out. Polanco objected when he observed a television crew participating in the crime scene investigation, but was overruled by the most senior officer at the scene, John Jones. He testified regarding the intense pressure to solve the crime. He explained that both Shawn Smith and Alex Briones provided uncoerced confessions replete with "hold back" information that only the perpetrator of the crime should know (RR 55:29).

APD Sergeant Mike Huckaby testified that the investigation was derailed at its inception when people provided too much "hold back information." He spoke of the Alex Briones confession, which included crime scene details: 1) the keys were in the lock, 2) four girls were murdered, 3) one victim was raped with an object, 4) ligatures were used, 5) the victims were gagged, 6) a victim was shot in the back of the head, 7) a box of napkins was used to start the fire, 8) a friend exited the building through the back door, 9) a .22 was used, and 10) a .38 was used. Huckabay revealed that politics began driving the investigation, which led to Polanco's firing, lawsuit, and reinstatement as one of the highest decorated members of the Austin Police Department (RR 55:54-63).

APD Sergeant John Jones testified that a local news station was riding along with him the night of the murders. He did not know when, during the initial discovery of the crime, the news cameras stopped filming the scene of the crime. He asserted that he directed another officer to keep a log of all who entered the crime scene, though no log could be found. He stated that it took DPS four hours to arrive and process the scene. He acknowledged that an unknown individual was caught on tape dumping gloves into the

dumpster behind the yogurt shop. He stated that he did not know whether the store's bathroom had been processed for prints, and did not know about the process for collecting prints where soot is present. He acknowledged that within a month of the offense, it was common knowledge on the street that the victims' bodies had been stacked and that a scoop was involved in a sexual assault. Within weeks, it was common knowledge that both a .22 and .38 were used in the crime (RR 55:71-81).

Jones identified "hold back" information in the confession provided to APD by Shawn Smith: 1) the door was locked, 2) the victims were tied up, 3) the victims were stripped, 4) panties were stuffed into a victim's mouth, 5) the victims were gagged, 6) the victims were raped, and 7) the bodies had been pushed together (RR 55:82-109).

Jones described "hold back" information reported by the Austin American Statesman: a robbery at closing and the back door was open (December 8, 1991); the front door was locked (December 9,1991); Amy Ayers had been shot twice and the other victims once (December 10, 1991); victims had been bound and shot in the back of the head (December 12, 1991) (RR 55:109-111).

Sergeant Jones concluded his testimony by admitting he did not know whether the dumpster behind the store was ever searched (RR 55:112).

Irma Rios of the DPS returned to the stand and testified that no inventory of the store was ever made and the whereabouts of fire-damaged items, which could reveal the origin of the blaze (steel shelves, bucket, mop handle), were unknown. She admitted that she failed to make a grid of the scene and acknowledged that the authorities did not process or inventory the dumpster behind the yogurt shop (RR 55:123). Rios admitted that after the yogurt shop investigation, DPS changed its protocol to require this standard procedure.

Fire analyst Gerald Hurst, Ph.D., testified that arson investigator Stahl's original report was the most accurate and likely scenario of the origin of the fire; that is, the fire began on the shelves and not upon the victims' bodies (RR 56:2-40).

Doctor Robert Bux, M.D., Deputy Chief Medical Examiner of Bexar County, testified that Amy Ayers was not sexually assaulted (RR 57:77).

William Joseph Watson, a DNA expert with GeneScreen, summarized the DNA evidence from the scene of the crime that cannot be attributed to the victims or alleged perpetrators in the case. Specifically, DNA was recovered from a hair on a shoe, hairs on clothing, hair on toilet paper roll and hair from a ligature. This crime-scene DNA evidence was from more than one human source but could not be attributed to the victims or suspects (RR 57:80-1 15).

APD Sergeant John Jones testified that appellant, Maurice Pierce and Mike Scott all agreed to be interviewed in the weeks following the murders.

Richard Of she, Ph.D., Professor of Social Psychology at the University of California at Berkeley, testified regarding "forms of extreme influence," including police interrogations techniques that exert psychological pressure in order to induce a confession (RR 56: 124 164).

Appellant testified and stated he thought he had invoked his right to counsel and felt he was not actually free to leave. He thought that without evidence he could never be convicted of a crime so he told the police what they wanted to hear (RR 56:216). He knew he wasn't at yogurt shop, so no evidence could possible link him to the crime, notwithstanding his oral confession. He did not know that his words could be sufficient to send him to death row in Texas. Info in press, as well, circulated among teenagers who
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hung out at Northcross Mall. He testified that Forrest Welborn had a falling out with Maurice over statements Maurice made to the police in 1991 implicating Forrest (57:217 220).

The jury found appellant guilty (RR 59: 12).

At punishment, 18-year-old Matthew Headrick testified to a 1997 incident in which appellant acted unruly during a "road rage" type incident, but that nothing ever came of the incident (RR 60:14).

West Virginia law enforcement officer Robert Billow testified that he once beat appellant with a nightstick (RR 60:20).

Penny Miller, the principal at Austin's McCallum High School, testified that Robert was never rude to her or others, but that he did get into an incident with another teenage boy at a McDonald's during lunch (RR 60:26-35).

Phillip Smith, a West Virginia police officer testified that during a traffic stop appellant appeared drunk and resisted arrest, but that he was not convicted of any crime (RR 60:36).

James Ramsbottom testified that in 1990 in West Virginia he saw appellant with a .25 and a TEK 9 and that appellant had bragged about stealing (RR 60:40).

West Virginia police officer James Ivy testified that in 1992 he responded to a disturbance call involving a group of teenagers. He told them to go home, but appellant lingered and used profane language. Ivy arrested appellant, but he was not convicted of any offense (RR 60:48).

The prosecutors rested and, inexplicably, appellant's court-appointed counsel rested without proffering any mitigation evidence (RR 60:60).

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After requesting information regarding when appellant married and Dr. Harlow's testimony regarding appellant's six counseling sessions from 1992, the jury's answers to the special issues required the mandatory imposition of the death penalty (RR 61: 1-10).

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Point of Error I.

The trial court erred in admitting excerpts from the written confession of Mike Scott, a separately tried nontestifying codefendant, in violation of appellant's right to confront the witnesses against him. U.S. Const. amend. VI. (RR 53:139) (RR 53:157-184).

Point of Error II.

The trial court erred in admitting excerpts from a written confession of Mike Scott, a separately tried nontestifying codefendant, in violation of Tex.R.Evid. Rules 802; 803(24) (RR 53:139) (RR 53:157-184).

For the sake of brevity, these issues will be argued together.

Summary of argument

The trial court admitted a heavily-edited confession of a nontestifying codefendant at appellant's separate trial. This created a trial-by-affidavit, expressly prohibited by the Sixth Amendment's Confrontation Clause as well as Texas Rules of Evidence.

Argument.

Appellant, Rob Springsteen, was tried separately from his codefendants, Mike Scott and Maurice Pierce, for a 1991 quadruple homicide, locally referred to as the yogurt shop murders. The Travis County Grand Jury twice declined the District Attorney's attempts to indict a fourth suspect, Forrest Welborn. Strangely, the record is devoid of any physical evidence linking the alleged perpetrators to the long-unsolved offense. Eight years after the crime, and following twenty hours of interrogation, the police obtained an eight-page written confession from Mike Scott. The police interviewed appellant a few days later. After several hours of secretly videotaped interrogation, the appellant verbally implicated himself, Scott, Pierce and Welborn. At trial, over appellant's

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objections, the court admitted a three-page "voluntary statement excerpts" the court had fashioned from Mike Scott's written confession. Scott, who had not yet been tried, did not testify against appellant.

The lack of physical evidence linking him to the crime, appellant was found guilty of capital murder and sentenced to death. Several months later, another jury found Scott guilty of capital murder. Scott did not receive the death penalty.

Against this backdrop, appellant asserts that the introduction of the "voluntary statement excerpts" derived from Mike Scott's confession violated both Texas evidentiary rules prohibiting hearsay, Tex.R.Evid. 802, 803(24), and the Confrontation Clause of the Sixth Amendment. u.S. Const. amend. VI.

Hearsay exceptions and the Confrontation Clause.

Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Tex.R.Evid. 801(d). Hearsay is inadmissible unless expressly authorized by statute or rules. Tex.R.Evid. 802. Certain statements that are considered inherently reliable are excluded from the hearsay rule, such as business records, dying declarations and statements to attending physicians. Tex.R.Evid. Rule 803. Another exception, "declarations against penal interest," is contained in Tex.R.Evid. 803(24), which provides:

Statements Against Interest. A statement which... so far tended to subject the declarant to ... criminal liability ... that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal

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liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

In criminal cases, hearsay exceptions interplay with a defendant's right to confront the witnesses against him. The Confrontation Clause of the Sixth Amendment to the United States Constitution provides, "In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him." U.S. Const. amend. VI.

The right to confront one's accuser can be traced to Hebrew writings, Roman law and English common law. Natalie Kijuma, Lilly v. Virginia: The Confrontation Clause and Hearsay... "Oh What a Tangled Web We Weave..." 50 DePaul L.Rev. 1133 (2001).

Although English courts traditionally favored face-to-face confrontation, there were notable exceptions, such as the notorious Court of the Star Chamber, as well as the politically charged treason trials of the 17th Century. Lilly v. Virginia, 527 U.S. 56,63 (Beyer, J., concurring). In colonial America, eight colonies incorporated confrontation rights into bills declaring their states rights, and the defendant's right to confront the witnesses against him eventually was included in the Bill of Rights. Kijuma, Lilly v. Virginia: The Confrontation Clause and Hearsay, 50 DePaul L.Rev. 1133. "A primary interest secured by the Confrontation Clause is the right of cross examination." Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531 (1980). The live testimony of witnesses serves to ensure the reliability of evidence by testing it in an adversarial proceeding before a jury. Lilly v. Virginia, 527 U.S. 116, 119 S.Ct. 1887 (1999). Despite the preference for face-to-face confrontation, the Sixth Amendment does not bar all hearsay, such as when the out-of-court statements possess inherent trustworthiness. Roberts, at 63

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64. On the other hand, a statement that qualifies as a valid hearsay exception to state law does not automatically pass scrutiny under the Confrontation Clause. Lilly. 527 U.S. 116. Statements of nontestifying codefendants.

United States Supreme Court jurisprudence reveals two lines of cases regarding the constitutionality of out-of-court statements of nontestifying codefendants. The first line concerns joint trials, and measures the effectiveness of written instructions admonishing the jury only to consider such statements against the declarant codefendant and not against the nondeclarant codefendant. Bruton v. United States, 391 U.S. 123,88 S.Ct. 1620 (1968); Richardson v. Marsh. 481 U.S. 200,107 S.Ct. 1702 (1987); Gray v. Maryland. 523 U.S. 185,118 S.Ct. 115 (1998). These cases are addressed at length below.

The second line of cases, also discussed below, concerns separate trials, and analyzes the constitutionality of the "against penal interest" hearsay exception of a nontestifying declarant. Roberts, 448 U.S. 56; Lilly, 527 U.S. 116 (1999). The case at bar involves the admission of a heavily edited confession of a nontestifying codefendant (Michael Scott) against a separately tried defendant (appellant, Rob Springsteen). As such, it falls squarely within this second line of cases.

Joint trials: Judicial economy v. the Confrontation Clause.

The first line of cases, involving the adequacy of instructions prohibiting jury consideration of a codefendant's confession against a nondeclarant defendant in a joint trial, provides a conceptual framework for the second line of cases. In Bruton, 391 U.S. 123, the Supreme Court held that the admission, of a nontestifying codefendant's confession that implicated the defendant violated the defendant's right of confrontation. Bruton overruled Delli Paolli v. United States, 352 U.S. 232, 77 S.Ct. 294 (1957), which held that it was

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reasonably possible for the jury to follow limiting instructions to disregard the confessor's out-of-court statement implicating the defendant.

In Bruton, 391 U.S. 123, Evans and Bruton were jointly tried for armed postal robbery. At the joint trial, a postal inspector testified that Evans orally confessed to him that Evans and Bruton committed the robbery. The trial court instructed the jury not to consider Evans' confession in determining Bruton's guilt or innocence. Both were found guilty.

The United States Supreme Court held that limiting instructions cannot effectively erase the prejudice of a nontestifying codefendant's confession that is not subject to cross examination. The Court noted that although joint trials meet the needs of judicial economy, separate trials would allow for the admission of the confession against the declarant without the risk of the jury considering the confession against the nondeclarant defendant. In short, the rights of confrontation outweighed the benefits of joint trials.

In Richardson, 481 U.S. 200, the Court concluded that the Confrontation Clause is not violated by the admission of a nontestifying codefendant's confession, at a joint trial, even though the defendant is linked to the confession by other evidence properly admitted against the defendant where: 1) the codefendant's confession is redacted to eliminate not only the defendant's name, but also any reference to the defendant's existence, and 2) the jury is given a proper limiting instruction not to use the codefendant's confession against the defendant.

The Court distinguished Richardson from Bruton by finding that the codefendant's confession in Bruton was powerfully incriminating because it expressly implicated the defendant as an accomplice, whereas in Richardson, the confession did not incriminate him. The Court concluded that while it was not reasonable to expect a jury to forget an explicit

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statement when determining a defendant's guilt, it was reasonable to assume that a jury could follow the judge's instructions and not make inferences from the redacted confession that would incriminate the defendant. In Richardson, 481 U.S. 200, the Court found that the benefits of joint trials outweighed the prejudice of a nontestifying codefendant's redacted confession where the jury was given a proper limiting instruction.

The most recent Supreme Court decision regarding the Bruton rule is Gray v. Maryland, 523 U.S. 185. The Court held that a confession that substitutes blanks and the word "delete" for a defendant's name falls within the class of statements protected by Bruton, 391 U.S. 123. Gray and Bell were convicted of murder in their joint trial. Prior to trial, Gray confessed to authorities that he, Bruton and Vanlandingham were involved in the crime. The trial court denied Gray's motion for a separate trial, but admitted Bell's confession in a redacted form that substituted the word "deleted" or "deletion" wherever Gray's or Vanlandingham's names were mentioned. The Supreme Court concluded that, as a class, such redactions (reference by inference) are similar enough to Bruton's unredacted confession so as to warrant a constitutional violation.

The Court found that the policy considerations present in Richardson, 481 U.S. 200, were not present in Gray. Richardson stated that redaction of confessions in a manner that would eliminate inferential incrimination would meet the public policy needs associated with joint trials, and that a jury could reasonably follow jury instructions to disregard the statement against the nondeclarant defendant. In Gray, Bell's confession inferentially incriminated Gray so that a jury could not reasonably follow an instruction to disregard the confession as to the nondeclarant defendant Gray. Therefore, the Right to Confrontation outweighed the judicial economy of joint trials.

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Separate trials: Right to confrontation v. hearsay exceptions.

The second line of cases involves the tension between a hearsay exceptions and a separately tried defendant's right to confront the witnesses against him. As stated previously, in the case at bar, a separately tried nontestifying codefendant's confession was admitted against appellant. The reasoning in the Roberts/Lilly line of cases controls review of appellant's case.

In Roberts, 448 U.S. 56, the Court analyzed the history of the Confrontation Clause and acknowledged its preference for face-to-face interrogation in which the accused has an opportunity not only to test the recollection and sift the conscience of the witness, but also to compel the witness to stand face to face with the jury in order that they may look at him and judge by his demeanor whether his testimony is worthy of belief.

Roberts involved the admission of preliminary hearing testimony of a witness who did not appear at trial. The Supreme Court explained that such prior testimony (or statements) must provide sufficient "indicia of reliability" so as not to offend the right to confrontation. The Court concluded that where the witness was unavailable to testify at trial, the prior testimony was admissible where it had been tested by questioning that was the equivalent of cross examination. The Court stated, "reliability can be inferred without more in a case where evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness" sufficient to satisfy the Confrontation Clause. Id., 448 U.S. at 66.

This notion of "indicia of reliability" was explored in Lilly, 527 U.S 116. Ben Lilly, his brother Mark Lilly and Gary Barker were separately interrogated regarding a crime spree that culminated in murder. During interrogation, Mark Lilly admitted participation in the

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crimes and specifically implicated his brother, Ben Lilly, as the triggerman. Ben Lilly was tried separately, and his brother's confession was admitted as a "declaration of an unavailable witness against the declarant's penal interest," despite Ben Lilly's Confrontation Clause objection. On appeal, the Virginia Supreme Court concluded that Mark Lilly's confession was admissible as a "firmly rooted exception" to hearsay, and that it evidenced further guarantees of reliability. The United States Supreme Court unanimously reversed Virginia's decision, with a plurality concluding that such statements violate the Confrontation Clause under the Roberts analysis.

The Lilly plurality reaffirmed the two-pronged Roberts test; that is, the admission of hearsay does not violate the Confrontation Clause if it: 1) falls under a firmly rooted exception, or 2) has particularized guarantees of trustworthiness. The Court determined that accomplice statements do not fall within a firmly rooted exception to the hearsay rule merely because portions of the confession may incriminate the accomplice himself and, in that respect, may be against penal interest. The Court concluded that classifying statements simply as "against penal interest" yielded a class of statements that would be too numerous for meaningful Confrontation Clause analysis. Lilly, 527 U.S. at 127, citing, Lee v. illinois, 475 U.S. 530, 106 S.Ct. 2056 (1986).

With respect to the first prong of the Roberts test, the Court determined where the prosecution offers "against penal interest" statements to establish the guilt of the declarant's alleged accomplice, such statements are inherently unreliable and do not fall within a firmly rooted hearsay exception. Id., at 131. The Court has "spoken with one voice in declaring presumptively unreliable accomplices' confessions that incriminate defendants." Lee, 476, U.S. at 541.

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With respect to the second prong, the Court considered whether it was convinced that "the declarant's truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility." Lilly, 527 U.S. at 135. An accomplice or codefendant's statements are "especially suspect"and must be carefully evaluated for validity and reliability .

It is highly unlikely that the presumptive unreliability that attaches to accomplices' confession that shift or spread blame can be effectively rebutted when the statements are given under conditions that implicate the core concerns of the old ex parte affidavit practice - that is, when the government is involved in the statements' production, and when the statements describe past events and have not been subjected to adversarial testing. Id, at 137.

The Court reiterated the reasoning of prior decisions, if hearsay evidence is used to convict a defendant, it must be inherently reliable and cannot "bOotstrap" onto other evidence at trial that corrobOrates the accomplice's statement. Id, citing Idaho v. Wright, 497 U.S. 805,822, 110 S.Ct. 3139 (1990).

The concurring opinions suggest an even more stringent standard, or outright bar, to the admission of a nontestifying codefendant's confession against a separately tried defendant. Chief Justice Rehnquist found that Mark Lilly's statement incriminating his brother was made as part of a confession to police, not a declaration against penal interest, and was typical of the statements the Court has viewed with "special suspicion." Lilly, at 143 (Rehnquist, C.J.,joined by O'Connor and Kennedy, J.J., concurring). In sum, Chief Justice Rehnquist would not extend the holding any farther than to say the custodial

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confession falls within the line of cases that have found these types of statements inadmissible against the nondeclarant. Id.

Justices Scalia and Thomas both authored concurring opinions evidencing a narrower scope but more sweeping approach to the Confrontation Clause. Under this view, the Sixth Amendment would apply only to extra-judicial statements contained in "affidavits, depositions, prior testimony, or confessions" making the right to confrontation absolute in these limited instances. Id., at 143 (Scalia, J., concurring); Id, at 143-144 (Thomas, J., concurring). The approach would elevate the Confrontation Clause to an absolute right, much like the right to counsel also contained in the Sixth Amendment. Finally, Justice Breyer suggested that the Court may further explore the hearsay-Confrontation tension in the future. Id., at 140 (Breyer, J., concurring).

All nine justices, albeit under differing analytic constructs, agreed that the admission of a nontestifying codefendant's confession at the defendant's separate trial violated the defendant's Sixth Amendment right to confrontation. The case at bar is extraordinarily similar to Lilly. It involves the admission of Michael Scott's confession at appellant's trial where appellant had no opportunity to cross examine Scott.

There are two differences, however, between Lilly and the case at bar. First, in the instant case, the trial court admitted a heavily-edited version of Scott's confession. Second, appellant implicated himself, whereas Ben Lilly. Upon examination, neither distinction affects the holding required by the Roberts/Lilly line of cases - appellant's case must be reversed. In sum, these are distinctions without a difference. Scott's redacted confession.

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The record reveals that Michael Scott was interrogated for approximately 20 hours. The majority of this was videotaped, including the well-publicized "role-playing" incident where the interviewing detective held a gun to Scott's head in order to help "jar" his memory. Scott's eight-page written confession was a product of this police interrogation.

The trial court, faced with appellant's confrontation and hearsay objections, edited Scott's written confession with a heavy hand, stating it. would give the confession "some automatic trustworthiness" (RR 53:139). Omitting all references to any of the alleged accomplices, ~he court created a three-page document it entitled "Voluntary Statement Excerpts" that was admitted into evidence. The court's edited version of Scott's confession removed statements that were inconsistent with the crime scene evidence, and with appellant's oral confession. The result? An awkwardly-worded hodgepodge further compounding the confrontation problem.

As appellant was tried separately from Scott, the admission of Scott's confession (or distorted derivations of it) must be analyzed under the two-prong Roberts/Lilly analysis. That is, does the confession: 1) fall under a firmly rooted hearsay exception, or 2) does it have particularized guarantees of trustworthiness? Confessions used against nondeclarants do not fall under "firmly rooted hearsay exceptions," Lilly, 527 U.S. at 131, so the analysis must turn on guarantees of trustworthiness. Confessions to authorities are inherently unreliable. The Court has "spoken with one voice in declaring presumptively unreliable accomplices' confessions that incriminate defendants." Id.; Lee, 476, U.S. at 541.

Admission of a nontestifying codefendant's confession at the separate trial of a defendant has been characterized as a "paradigmatic Confrontation Clause violation." Lilly, 527 U.S. at 143 (Scalia, J., concurring). According to Chief Justice Rehnquist, confessions

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(statements made in response to police interrogation) should not be considered "declarations against penal interest," and are inadmissible against a nondeclarant defendant. Id., at 143 (Rehnquist, C.J.,joined by O'Connor and Kennedy, J.J., concurring).

Redaction, a prophylactic measure used to permit the introduction of a confession against the declarant-defendant in a joint trial, is a narrowly crafted Confrontation Clause exception favoring judicial economy. Proper redaction, in very limited circumstances, allows for the jury to reasonably follow instructions to disregard the confession as evidence against the nondeclarant defendant at a joint trial. Bruton, 391 U.S. 123; Richardson, 481 U.S. 200; Gray, 523 U.S. 185. In the case at bar, appellant did not even have the benefit of a jury instruction to disregard, as the "voluntary statement excerpts" was offered as direct evidence against him. The trial judge pronounced that redaction gave the statement "some automatic trustworthiness" (RR 53:139).

On the other hand, when "declarations against penal interest" are offered as evidence at the trial of a nondeclarant defendant, redactions serve no logical purpose. If the statement bears the indicia of reliability to satisfy an exception to both hearsay rules and the often more stringent rights of confrontation, there would be no need for redaction. The inherent trustworthiness of the entire statement would be beyond dispute, rendering cross examination of "marginal utility." Lilly, 527 U.S. at 125.

In the case at bar, the trial court's redaction created a choppy product that distorted Scott's actual statements. Whether redacted or in its original form, the circumstances surrounding Scott's confession do not make cross examination of Scott a superfluous activity. Lilly, 527 U.S. at 134. The "voluntary statement excerpts," reflecting less than 40% of the written confession, increases the need for, and value of, cross examination. In the

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court-created excerpts, subjects and verbs are removed from certain sentences, while other sentences and incidents are deleted entirely. Events are depicted devoid of context.

Moreover, the trial court's removal of all things inconsistent with the crime scene and with appellant's oral statements, creates a fictional account of a confession that was "inherently unreliable" before the cutting and pasting even began. Id, at 131. Contrary to the trial judge's assertion, cutting the confession to pieces does not make it "appear to have that kind of trustworthiness, some automatic trustworthiness" for Confrontation purposes (RR 53:139). The trial court's "excerpts" are arguably less trustworthy and more damning than Scott's actual written confession inculpating appellant.

For example, the following gun-to-the-head image is contained in Scott's videotaped interrogation:

Photo of Detective Merril holding a gun to Michael Scott's head during interrogation

(State's Exhibit No. 19, Tape 3.)

30

The jury never saw this image,2 and appellant was not afforded the right to confront Scott regarding whether this incident affected the contents of the eight-page written confession.

Many allegations in Scott's eight-page confession are inconsistent with the crime scene. One inconsistency involves purported activity inside the store's office: Maurice had gone into an office and he had one of the girls with him. She was squatted down and I think she was trying to open a safe or something.. . ...Maurice was in the other room with the other girl. I don't remember seeing a safe but I don't remember was she was doing down on the floor. I remember looking in the doorway and the gun is still in my hand.

Maurice asked Rob if I did it and Rob said "yea he finished her." Maurice told me "your in this neck deep already." I saw the side profile of this girl. She had a like a white shirt on. I think she had dark hair. Rob was standing right there and he had the small semi automatic gun. Rob told me not be a

2 The Grand Jury apparently never saw this image, either. Diane Castañeda, Foreperson of the Grand Jury that indicted appellant, Scott and Pierce, publicly renounced the Travis County District Attorney's Office for unduly pressuring the Grand Jury to indict, "we were used as pawns in what I assume to be a rush to judgment." Jordan Smith, Questions persist about yogurt shop murders, Austin Chronicle 21:4 (September 28, 2001)

<http:www.austinchronicle.com/issues/dispatch200 1-09- 28/pols_feature5 .html> .

Castañeda complained that the District Attorney's Office refused to allow the Grand Jury to review the videotapes of the interrogations. Additionally, she said that the District Attorney's Office would not permit them to question the witnesses, instead requiring questions to be submitted in writing. These questions were subsequently "changed or paraphrased to suit [the District Attorney's] purposes. It was weird." Id., See also, Michael Hall, Under the Gun, Texas Monthly (January 2001) http://texas-justice.com/txmthly/underthegun.htm.

31

puss. I think I shot her in the head. I know I've told you something different, but I did her too because Maurice and Rob were pressuring me. I dropped the revolver. (State's Exhibit RR 379:5).

It is undisputed that this small retail space contained only one office. According to the store manager, the office was "always locked" (RR 47:60, 139) (RR 46:84-85). There was only one key to the office, and it was kept hidden beneath the sales counter in the front of the store, so that patrons could use the restrooms without being able to enter the office (RR 47:60).

The crime scene confirms that the office had not been entered that night. The office's door was locked. There were no victims discovered in the office. The office suffered no fIre damage. The investigators, absolutely certain that the office had not been entered, did not process the office for prints (RR 48:23). The office did contain a safe that no employee could open. When the investigators eventually gained entry to the office that evening, they found a tray of cash for making change immediately within plain view. 3

The jury never learned of this impossible accusation regarding the activity and shooting inside the office because the trial court declined to include it in the "voluntary statement excerpts." Of course, appellant was denied the right to confront Mike Scott about this inconsistency.

3 The store manager opened the safe for the authorities a few days after the murders. It was filled with water and contained the 5:00 p.m. sales report for December 6, 1991, and cash consistent with the 5:00 p.m. report. Apparently, the evening (11:00 p.m.) sales report was never completed and the cash from the evening's business never made it into the office (RR 47: 118).

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Table One compares appellant's oral statement with Scott's confession, the trial court's "voluntary statement excerpts" introduced at trial and with the facts of the crime scene.

33

ITEM APPELLANT'S ORAL STATEMENT (State's Exhibit 303) SCOTT EXCERPTS (State's 380) SCOTT CONFESSION (NOT ADMITTED) (State's 379) CRIME SCENE Forrest's role: Actively involved. Attacked girl. (94, 99, 103, 112, 121, 124, 127, 130, 134) Deleted Lookout who fled scene. Never entered store. (3, 5, 6) No physical evidence of Forrest's involvement Arson No mention Claims use of accelerant (2-3) Scott started fire on victims' bodies (3) Claims use of accelerant (5) Maurice ordered Scott to start fire on victims' bodies (5) No evidence of accelerant Original arson report inconsistent with theory that fire started on victims' bodies. Report modified 7 years later, after Scott's confession Sexual assaults Raped girl who was eventually shot twice (A. Ayers) (133, 136-37) Maurice raped girl (126, 129, 139) Denies foreign object Deleted Deleted No mention Appellant "raped girl, raped her hard.:" (4) Maurice with girl in office (5) No mention No evidence A. Ayers was sexually assaulted No evidence that victim was sexually assaulted. Office always locked, no fire damage, etc. Only evidence of sexual assault involves foreign object Killings Appellant shot A. Ayers but did not kill her, then Maurice shot her (132) Maurice shot first victim (126) Maurice shot other victims Deleted Deleted Scott shot two victims (3) Appellant shot a victim then Scott shot her (5) Maurice shot first victim (126) Maurice and appellant ordered Scott to shot two victims (5) Only one victim was shot twice Unable to ascertain Unable to ascertain Ring leader Maurice gave the orders (99, 126, 128, 130, 132) Deleted Maurice and appellant gave the orders (2-6) Unable to ascertain 34 ITEM APPELLANT'S ORAL STATEMENT (State's exhibit 303) SCOTT EXCERPTS (State's 380) SCOTT CONFESSION (State's Exhibit 379) CRIME SCENE Murder weapon Murder weapon (.380) thrown off bridge by either appellant, Maurice or Forrest shortly after crime (145) Scott hid .380 in creek bed and had a friend discard it one year later (3) Scott hid .380 in creek bed and had a friend discard it one year later (2,7) No weapon recovered. Maurice arrested with .380 days after offense. Ballistics does not Maurice's weapon with murders Robbery Maurice approached girl at register (99) Deleted Maurice at register, cash drawer slammed down, Maurice appeared to place money in pocket (4) Fingerprint on cash drawer does not match victims, employees, store manager, appellant, Scott, Maurice or Forrest Scott's role Scott did not shoot anyone Scott not identified as a lookout Scott shot two victims (3) Scott served as lookout Scott ordered to shoot two victims (5-6) Scott ordered to serve as lookout Unable to ascertain Unable to ascertain DNA Claims multiple rapes (139,133) Claims one attempted rape (2) Claims multiple rapes (3-5) DNA retrieved from the victims (oral, anal, vaginal) matched the victims or was otherwise explained (victims' boyfriend) DNA acquired from various hairs and pubic hairs retrieved scene victims did not match the victims, appellant , scott, maurice or Forrest 35 Hearsay exception - Tex.R.Evid. 803(24). In addition to the confrontation violation, the "voluntary statement excerpts" constitutes inadmissible hearsay. Tex.R.Evid. Rule 802. The trial court erroneously concluded that the "excerpts" qualified as a "declaration against penal interest" exception to hearsay under Tex.R.Evid. 803(24), which provides: A statement which ... so far tended ~o subject the declarant to ... criminal liability ... that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. This is a case of first impression. This Court has yet to address the admission of a nontestifying codefendant's written confession to the police under the "declaration against penal interest" exception to the hearsay rule. This Court's review under Tex.R.Evid. 803(24) has been limited to spontaneously uttered declarations against penal interest, which tend to evidence greater reliability than those produced at the hand of the police. In Guidry v. State, 9 S. W. 3d 133 (Tex.Crim.App. 1999), the declarant told his girlfriend about the plans and commission of a murder for hire in which Guidry participated. At Guidry's trial the state introduced the girlfriend's testimony recounting the declarant's statements, over Guidry's Sixth Amendment objection. This Court looked to the circumstances surrounding the statements- spontaneous, noncustodial, to his girlfriend as well as the nature of the statements-- more against Guidry than himself-- and held them to be inadmissible hearsay. 36 Hearsay exception- Tex.R.Evid. 803(24). In addition to the confrontation violation, the "voluntary statement excerpts" constitutes inadmissible hearsay. Tex.R.Evid. Rule 802. The trial court erroneously concluded that the "excerpts" qualified as a "declaration against penal interest" exception to hearsay under Tex.R.Evid. 803(24), which provides: A statement which... so far tended to subject the declarant to ... criminal liability ... that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. This is a case of fIrst impression. This Court has yet to address the admission of a nontestifying codefendant's written confession to the police under the "declaration against penal interest" exception to the hearsay rule. This Court's review under Tex.R.Evid. 803(24) has been limited to spontaneously uttered declarations against penal interest, which tend to evidence greater reliability than those produced at the hand of the police. In Guidry v. State, 9 S. W. 3d 133 (Tex.Crim.App. 1999), the declarant told his girlfriend about the plans and commission of a murder for hire in which Guidry participated. At Guidry's trial the state introduced the girlfriend's testimony recounting the declarant's statements, over Guidry's Sixth Amendment objection. This Court looked to the circumstances surrounding the statements- spontaneous, noncustodial, to his girlfriend as well as the nature of the statements-- more against Guidry than himself -- and held them to be inadmissible hearsay. 36 In Dewberry v. State, 4 S. W.3d 735 (Tex.Crim.App. 1999), this Court reviewed the "trustworthiness" of a spontaneous voluntary statement to friends. The declarant bragged to friends about a robbery and murder that he and Dewberry had committed. The declarant did not testify at Dewberry's trial and the state called witnesses to recount the out-of-court statements pursuant to the "declaration against interest" hearsay exception. In finding the statements "trustworthy," this Court looked to: I) the evidence showed the declarant and the defendant acted in concert throughout commission of the murder; 2) the declarant and defendant were seen together before and after the murder; 3) the declarant made the statements before he or Dewberry became suspects in the crime; 4) the majority of the declarant's statements were made spontaneously or in response to casual inquiries; 5) the statements were made to friends; 6) the statements revealed intimate familiarity with the manner in which the victim was killed; and 7) the witnesses saw the declarant and defendant in possession of the victim's property. Id, at 751-52. This Court has held a declarant's spontaneous statement given to a law enforcement officer, even though it exposed her to criminal liability, was not admissible against the defendant. Cofield v. State, 891 S. W.2d 952 (Tex.Crim.App. 1992). When arrested, Cofield was in the driver's seat and declarant in the passenger's seat of a car parked at a dead-end road. Paraphernalia was found in the car and rock of cocaine was found in the passenger's pocket. At trial, over appellant's confrontation objection, the officer testified that the declarant spontaneously declared that she and Cofield had been smoking cocaine shortly before the troopers arrived. Cofield was convicted of possession of cocaine. This Court held that there was insufficient proof of trustworthiness to qualify as a declaration against penal interest exception to hearsay, and affirmed the lower court's reversal of his conviction. 37 Guidry, Dewberry and Cofield judged the admissibility of tex.R.Evid. 803(24) statements against a separately tried defendant using its own two-prong analysis. In each case, this Court determined whether the statement against penal interest: 1) was sufficiently self inculpatory, and 2) evidenced particularized guarantees of trustworthiness judging from all corroborating circumstances. Absent both requirements, the statements were inadmissible. As stated previously, these cases do not address the Supreme Court's decision in Lilly v. Virginia, 527 U.S. 116. Additionally Lilly explicitly disavowed the notion of reviewing trustworthiness, for Sixth Amendment purposes, by "corroborating circumstances" other than those involved in making the declaration. "If hearsay evidence is used to convict a defendant, it must be inherently reliable and cannot "bootstrap" onto other evidence at trial that corroborates the accomplice's statement." Id.. citing Idaho v. Wright, 497 U.S. 805, 822,110 S.Ct. 3139 (1990). The Austin Court of Appeals has reviewed the admissibility of a confession made to law enforcement and offered against a defendant at trial, and concluded that it did not qualify as a hearsay exception under Rule 803(24). Mendez v. State, 56 S. W.3d 880 (Tex.Crim.App.-Austin 2001,p.d.r. denied). Mendez and Flores were charged with the capital murder of two men. Witnesses testified to hearing gunshots and seeing two men run from the scene and escape in a gray Blazer-type vehicle. Another neighbor testified to hearing shots and seeing a light colored sport utility vehicle speed past her. She identified Mendez as the driver of the vehicle. The police questioned Mendez and Flores, who were subsequently released. During questioning, however, Flores gave a written confession inculpating himself and Mendez, which suggested that Mendez was the primary actor in the 38 murders. Both men were subsequently indicted and separately tried. When Flores refused to testify at Mendez's trial, the state introduced Flores's written confession pursuant to the "statement against penal interest" provision of Tex.R.Evid. 803(24). The Austin Court of Appeals reviewed the statement both under Tex.R.Evid. 803(24) two-prong approach (self inculpatory and trustworthiness tests), as well as the Roberts/Lilly Sixth Amendment analysis (firmly rooted exception or particularized trustworthiness). The court of appeals determined that the Flores confession was inadmissible under both prongs of Rule 803(24) analysis as well as the Roberts/Lilly Sixth Amendment challenge. The confession was not sufficiently self inculpatory because it incriminated Mendez to a greater degree than it did the declarant Flores. "[P]ortions of Flores's statement are clearly not self inculpatory but rather directly incriminate [the defendant]." Id. The confession was not trustworthy because it was given to two police officers at police headquarters, Flores knew he was a suspect in the crime and the police were interviewing others who could implicate him, Flores was read his Miranda warnings, and " a reasonable person might have many motives other than truth for making such a confession. A reasonable person might well have decided that he was already a murder suspect and that a self-inculpatory statement could be used to his advantage." Id. The court found it untrustworthy despite the corroborating witness testimony and other evidence adduced at trial (appellant owned a gray Blazer, known acrimony between Mendez and the victims, motive, etc.). Under its Tex.R.Evid. 803(24) analysis, the court of appeals concluded that it is unlikely the state will ever be able to rebut the presumption of unreliability of such statements where the state is involved in taking the confession, the confession involves past 39 events, and where the confession has never been subjected to adversarial testing. ld., citing Lilly, 527 U.S. 116. The court found the statement violative of Mendez's Sixth Amendment right to confrontation under the two-prong Roberts/Lilly test. The court noted that the right to cross examination is subject to exception only when the court can ascertain that "adversarial testing would be expected to add little, if anything, to the statements' reliability." ld., citing Lilly, 527 U.S. at 125. Acknowledging that the Flores confession was internally inconsistent, the court concluded, "no one experienced in the trial of lawsuits would deny the value of cross-examination in exposing falsehood and bring out the truth in the trial of a criminal case." ld., citing Pointer, 380 U.S. at 404. Lastly, the Mendez court concluded that the error was not harmless, notwithstanding the "considerable circumstantial evidence linking" Mendez to the murders. ld.; Tex.R.App. P. 44.2(2) (requiring reversal unless the court determines beyond a reasonable doubt that the error did not contribute to the conviction). The case at bar. Much like the Mendez confession, Scott's eight-page written confession does not constitute a hearsay exception under Rule 803(24) because it is neither sufficiently self inculpatory nor inherently trustworthy based on corroborating circumstances. The written confession evidences blame shifting (Maurice and appellant were the ringleaders, carried the weapons, gave the orders, undressed and raped the victims, threatened to kill Scott if he did not shoot and rape the victims, etc.). Redacting the obvious blame-shifting sections does not render the self-inculpatory portions more reliable; rather, it serves to obscure this obvious 40 tactic from the jury. The trial court's slash-and-burn editing did not cure the underlying problem. Omitting facts inconsistent with crime scene falsely enhances the reliability of the "excerpts." Omitting facts inconsistent with appellant's oral statements likewise lends false credibility to the "excerpts." In short, the ill-conceived approach of redacting an 803(24) statement is wholly without support of any case law. The redaction, in this instance, makes the statement even less reliable, as evidenced by Table I, supra. If redaction cured the self-inculpatory requirement, the "voluntary statement excerpts" fail to pass the second prong of Rule 803(24)- the corroboration requirement. Statements made to the police are inherently untrustworthy and "it is unlikely the state will ever be able to rebut the presumption of unreliability of such statements where the state is involved in taking the confession, the confession involves past events, and where the confession has never been subjected to adversarial testing." Lilly, 527 U.S. at 137. As stated previously, Scott's confession, from which the "voluntary statement excerpts" were derived, was a product of twenty hours of police interrogation, included the gun-to-the head incident, and occurred eight years after the offense. The state has failed to rebut the presumption of unreliability. Id. Additionally, there is no physical evidence linking the perpetrators to the crime. Redacted or not, the statement fails to reflect trustworthiness under 803(24) and Sixth Amendment analyses. Appellant's oral confession. The second way in which this case differs from Lilly is that appellant gave an oral confession. Under Lilly, judging the trustworthiness of Scott's confession is limited to the 41 circumstances brought to bear upon Scott when he gave the written confession. Analysis should specifically exclude evidentiary facts that corroborate the confession. Lilly, 527 U.S. at 135. Appellant's surreptitiously recorded oral statements to the police cannot be used to bootstrap the admissibility/trustworthiness of the "voluntary statement excerpts" crafted from Scott's confession. After maintaining his innocence for eight years, appellant gave oral statements implicating himself, Scott and two others in the crime. Unaware he was being videotaped, when the authorities requested a written statement appellant invoked his right to counsel. While the subject of the admissibility of appellant's confession is addressed elsewhere in this brief, appellant's confession does not provide a basis for the admission of Scott's confession, or distorted excerpts of it, at appellant's trial. The trial court erroneously based its decision to admit Scott's confession because it was factually consistent "in at least 16 places" with appellant's oral statements. This approach was specifically renounced in Lilly, 527 U.S. at 137 ("We have squarely rejected the notion that evidence corroborating the truth of a hearsay statement may properly support" trustworthiness); see also Wright, 497 U.S. at 822 (refusing to allow hearsay evidence to bootstrap on the other evidence admitted at trial), and stands in direct violation of Lee, 476 u.S. 530. In Lee, the Supreme Court held that a nontestifying codefendant's confession does not overcome the presumption of unreliability simply because it is so similar to the defendant's confession that it "interlocks." In Lee, two defendants gave largely similar written confessions regarding a murder. The Court reiterated that a codefendant's confession is presumptively unreliable, and courts must look to evidence to overcome that presumption. 42 Lee and his codefendant were jointly tried before the court. The prosecutor invited the judge to look to the codefendant's confession as evidence supporting murder where Lee's confession arguably raised the issue of a lesser included offense. In reversing the conviction, the Supreme Court held that a confession to the police is not a simple declaration against penal interest. That reading is too broad. It is, for Sixth Amendment confrontation purposes, a statement by a codefendant against a criminal defendant, and its reliability cannot be assessed by whether the confession interlocks with the defendant's confession. This Court reached a similar conclusion in Evans v. State, 504 S. W.2d 707 (Tex.Crim.App. 1976). In their joint trial the only evidence linking Evans and his codefendant to the crime were their confessions. Admission of the codefendant's confession constituted error despite the trial court's limiting instruction. Because the case against Evans would have been significantly less persuasive without the admission of the codefendant's confession, there was a reasonable possibility that the improperly admitted evidence contributed to the conviction. See also, Hearne v. State, 500 S.W.2d 851 (Tex.Crim.App. 1973) (reversal required where both defendants' confessions admitted at joint trial). In summary, the "voluntary statement excerpts" fail to evidence trustworthiness to qualify as a hearsay exception under Tex.R.Evid. 803(24). Even if it did, this would not render the statement admissible for Confrontation purposes. Harm analysis. The admission of the "voluntary statement excerpts" is constitutional error requiring a harmless error analysis. Pursuant to Tex.R.App. P. 44.2(2), this Court must reverse the 43 conviction unless it determines beyond a reasonable doubt that the error did not contribute to appellant's conviction. Lilly, 527 U.S. at 129; Guidry, 9 S.W.3d at 152.. Perhaps most important to the harm analysis is the complete lack of evidence in the case at bar, aptly described by one writer as "not an atom of physical evidence." Michael Hall, Under the Gun, Texas Monthly (January 2001) <http://texas-justice .com/txmthly/underthegun.htm> In Mendez, 56 S. W.3d 880, the Austin Court of Appeals held that despite "considerable circumstantial evidence" linking the defendant in the murders (including motive, history of discord with the victims, eye witnesses placing him at the scene of the crime, etc.) the admission of his codefendant's confession could not be deemed harmless. Likewise, when Lilly was remanded for a harm analysis, the Virginia Supreme Court concluded that the error constituted harm despite substantial evidence of Lilly's guilt (codefendant Barker's live testimony, the defendant's statement to authorities that the murderer "looked like me," the defendant's refusal to submit to a gunpowder residue test, etc.). Kimberly A. Orem, Note: United States Supreme Court: Lilly v. Virginia, 119 S.Ct. 1887 (1999), 12 Cap. Def. J. 157 (1999). I If, without the erroneously admitted evidence, the record contains overwhelming evidence of guilt, then the error is harmless beyond a reasonable doubt. Guidry, 9 S. W.3d at 151-152. Statements against penal interest, if erroneously admitted, were held harmless beyond a reasonable doubt where there were multiple witnesses to the offense and the murder weapon was found in the defendant's possession shortly after the offense. Id. In Dewberry, 4 S. W.3d 735, this Court determined that if a codefendant's spontaneous statements to his friends during the course of attempting to dispose of the decedent's truck 44 ("we" stole the truck, "we" killed the guy) constitUted a Confrontation Clause violation, the error was harmless because the same evidence was testified to by other witnesses without objection. In the case at bar, no physical evidence links appellant (or Scott or Pierce or Welborn) to this crime. 4 To the contrary, the physical evidence suggests another or other perpetrators. There are unaccounted-for fingerprints on the emptied cash register tray that do not match any of the store employees or alleged perpetrators. There are several pubic hairs removed from clothing used to bind the victims, but the DNA associated with those hairs does not match the alleged perpetrators or the victims. Indeed, there is other DNA evidence that the state, inexplicably, has failed to test. The DNA recovered from one victim matched that of her boyfriend. No other foreign DNA was found orally, vaginally or anally on any of the victims. There is no ballistics evidence, hair, saliva, blood or fiber evidence that links the alleged perpetrators to the crime. The crime remained "unsolved" for eight years, and both Scott and appellant immediately recanted their statements to the authorities. As stated previously, inconsistencies in appellant's oral statements and Scott's confession are reflected in Table 1, supra. In closing argument, the state read the excerpts to the jury and referred to the document no fewer than two dozen times. Not surprisingly, one of appellant's jurors, Gunther Goetz, informed The Austin American-Statesman that the jurors considered Scott's confession the "key" piece of evidence against appellant. "That really struck a chord," he It should be noted that Morgan testified at trial that she saw appellant with a gun the night of the murders. She was 13 years old and admittedly "on acid" on the night in question. While her testimony might constitute some evidence of appellant's guilt, however scant, Morgan subsequently recanted this allegation while testifying at Scott's trial. Trial Synopsis, Austin American-Statesman 86 (September 7, 2002). 45 stated. Jordan Smith, "Somebody has to die,"Austin Chronicle, 20:42 (June 15,2001) (see also: http://www .austinchronicle.com/issuesldispatch/200 1-06-15/pols_feature.html). Other confessions. In yet another bizarre twist, this unique case involves other confessions that match the crime scene, further mitigating the inculpatory value of appellant's oral confession. The trial court would only allow appellant to introduce two such confessions, those of Alex Briones and Shawn Smith. The state's mantra to the public, the media and the trial court has been that the Scott and Springsteen confessions contain "facts only the perpetrators could know." This is a blatant falsehood. As three highly decorated, senior members of the Austin Police Department testified, the "hold back information" (core facts of the crime scene never revealed to the public) began being reported by dozens of teenagers brought in for questioning (RR 55:1-15) (RR 55: 54-63) (RR 55: 71-81). The leaks were so severe that A.P.D. was forced to conduct an investigation regarding the source of the leaks (RR 55:15). The crime scene investigation was, by all accounts, poorly conducted. It quickly became "uncontrolled" and allowed "undocumented access" to the scene, even after the fire was extinguished. Coincidently, the evening of the crime, a television crew was riding along with the lead investigator, John Jones (RR 55: 71-81). Another police detective, Hector Polanco, voiced objection to the film crew's participation in the investigation, but was rebuffed by Jones (RR 55: 20-29). Sergeant Jones acknowledged that the television crew filmed the crime scene, and could not say at what point their cameras stopped rolling. The first month of the investigation, Jones testified, it was common knowledge on the street that the victims' bodies had been stacked and that a scoop was involved in a sexual assault 46 (a fact noticeably absent from the Scott and Springsteen confessions). Jones testified that within weeks it was common knowledge that both a .22 and a .38 were used in the crime (RR 55:71-81).5 As time went by, the police came under intense pressure to solve the crime. According to Sargeant Mike Huckaby, "Politics began to drive the investigation" (RR 55:54-63). Other individuals provided "confessions" that included "facts only the perpetrator could know." (RR 55:29).6 Alex Briones gave one such confession -- one that is much more consistent with the crime scene than appellant's oral statement. For example, Briones provided an explanation of the arson consistent with the initial arson investigator's report. Appellant never mentioned a fire. Briones explained that a key remained in the front door of the yogurt 5 In an interview with Texas Monthly contributing writer Michael Hall, Jones described the investigation more bluntly, "It was bedlam." In the months following the murders, a 48 Hours crew filmed Jones discussing the 342 suspects, the thousands of phone calls and the mounting pressure, "There's absolutely no more weight that can be put on my shoulders." Michael Hall, Under the Gun, Texas Monthly (January 2001) <http://texas-justice.com/txmthly/underthegun.htm> 6 This canard that confessions must be reliable because they contain "facts only the perpetrator could know" led to the life sentences of two innocent Austin teenagers after one of them confessed, and implicated the other, in a rape and murder at a local Pizza Hut. The only evidence linking them to the crime was one boy's confession that contained "facts only the offenders could know." After several years, the actual perpetrator came forward and DNA evidence eventually proved the boys' innocence. Unfortunately, the young man who had maintained his innocence suffered a prison beating so violent that he was severely brain damaged. He remains under constant care, albeit outside the Texas Department of Criminal Justice - Institutional Division. S. Berlow, Texas Justice, (October 31, 2000). <http://salon.com/politics/feature/2000/0choa/Qrint> . DNA evidence has opened the prison doors for scores of wrongly convicted men. A review of these actual innocence cases reflects that one reason is the "false confession" and other such disingenuous maneuvers by members of law enforcement. Barry Scheck, et. al., Actual Innocence: Five days to execution, and other dispatches from the wrongly convicted. (2000) 47 shop, a fact consistent with the crime scene. Appellant n~ver mentions this key. Briones identified one victim was shot twice, the others shot only once - facts consistent with the crime scene. Briones acknowledged the use of both a .22 and a .380, facts also consistent with the crime scene. In short, the Briones confession is more consistent with the crime scene than appellant's oral statements. Appellant's confession cannot render the "excerpts" from Scott's confession harmless error, given the Briones confession and lack of physical evidence linking appellant to the crime. Briones, appellant and Mike Scott are not the only young men to have confessed to this crime. Shawn Smith also provided a written confession to the Austin Police Department. Smith referred to the fire originating with lighter fluid on the victims' bodies. Appellant's statements never mentioned a fire. Smith contended that one victim was shot twice, with the others being shot only once - facts consistent with the crime scene. Again, appellant's confession does not render the Scott confession "excerpts" harmless error, given the Smith confession and lack of physical evidence linking appellant to the crime. Appellant's oral statements are compared with the written confessions of Briones and Smith in the following Table. 48 ITEM APPELLANT'S STATEMENT (State's 303) SMITH CONFESSION (Defendant's 15) BRIONES CONFESSION (Defendant's 16) CRIME SCENE Perpetrators Appellant, Scott, Maurice and Forrest Smith, Lorrie, Craig and Justin Briones and "buddy" identified as Abel Arredondo Physical evidence not linked to any of the alleged perpetrators Front door key No mention No mention Key was in door Key was in door Arson No mention Fire set with lighter fluid on victims and clothes Fire set with napkins and boxes near shelving unit Original arson report: Fire started near shelves. Report changed 7 years later after Scott confession, to conclude that fire started on bodies Sexual assaults Raped girl who was eventually shot twice (A. Ayers) Denies foreign object Craig and Justin raped E. Thomas and another girl No mention of foreign object Raped girl from behind with her hands bound behind her back No mention of foreign object No evidence that victim sexually assaulted Only evidence of sexual assault involves foreign object Killings Appellant shot one victim, Maurice shot others One girl shot twice Maurice shot first victim Maurice shot other victims Smith did not shoot anyone One girl shot twice Both Craig and Justin shot first victim Craig shot other victims "Buddy" shot girls, then Briones shot girl in back of head One girl shot twice "Buddy" fired first shot Briones shot one victim Victims shot in back of head One girl shot twice Murder weapon(s) Murder weapon (.380) thrown off bridge by either appellant, Maurice or Forrest shortly after the crime Murder weapons were smaller than a .357 Briones used a .22 and "buddy" used a .380. Briones threw .22 off Congress Ave Bridge No weapon recovered. Maurice arrested with .380 days after offense. Ballistics does not match Maurice's weapon with murders Robbery Maurice approached girl at register Briones approached girl at register DNA Claims multiple rapes Claims multiple rapes Claims multiple rapes No unexplained foreign DNA retrieved from any of the victims DNA did not match the victims, appellant, Scott, or Briones 49 It cannot reasonably be concluded that "the record contains overwhelming evidence of guilt" with or without the erroneously admitted Scott confession. Guidry, 9 S. W 3d at 151-152. See also Lee, 475 U.S. 530, (defendant's confession did not render error harmless where the trial court considered the confession of a nontestifying codefendant against him). Additionally, appellant's oral confession is inconsistent with the crime scene. In response to several hours of police interrogation, appellant stated that he was involved in the offense and raped the 13-year-old victim. The record is devoid of evidence that the girl was raped. Her hymen was intact. There was no foreign hair, semen, blood or DNA recovered from her vagina, anus or mouth. There was no evidence of bruising, abrasions or swelling typically associated with fIrst-time intercourse, much less forcible rape of a child. The only foreign DNA recovered from any victim matched that victim's boyfriend. The only victim that evidenced any sexual trauma involved the use of a foreign object (scoop). No such object was mentioned in either Scott's statement or appellant's oral statement. Moreover, the police induce appellant's statement by placing him in the unenviable position of either admitting participation in hopes of minimizing his punishment or facing certain conviction as the ringleader of a heinous crime. However, this lesser-of-two-evils option was predicated on a series of lies designed to make appellant believe he had no choice but to confess. The police claimed that the three others had provided largely similar confessions that implicated him. They had not. Appellant did not realize his oral statements were being recorded. He did not believe they could be used against him. When read Miranda warnings and asked to commit his statements to writing, appellant refused and terminated the interrogation. The following 50 excerpts, captured by the hidden microphone, reflect the pressure placed upon appellant to implicate himself: And of the four guys, you're the only one who's story is not the same as theirs. To me that makes you look really bad. (State's Exhibit 303:43) * * * That doesn't look good for you. (State's Exhibit 303:43) * * * MERILL: But their story is consistent. But your story isn't.. SPRINGSTEEN: Then that makes me look like the bad guy. MERRILl: It does. (State's Exhibit 303:46) * * * They're very clear... (State's Exhibit 303:51) * * * Maurice, Forrest, and Mike, tell a very compelling story. A very compelling story. And you're included into that story (State's Exhibit 303:53) * * * I absolutely believe now I'm beginning to believe Maurice more than I am Mike. (State's Exhibit 303:55) * * * MERRILL: So explain to me and help me understand why would it that Maurice...and Mike, Michael Scott, and even Forrest, would include you in this picture? Why? What logical reason would there be? How many times 51 SPRINGSTEEN: 1...1 can't (State's Exhibit 303:69) * * * I mean, all the fingers are pointing at you. (State's Exhibit 303:71) * * * [F]rom what we've heard, and from what we've been told, I mean, you appear to be the main actor in this thing. * * * There's three people that are absolutely sure you were there and you are involved. And we've talked to all three of them. You're it (State's Exhibit 303:89). * * * Are you a cold-blooded murderer? 1...1 think you are. I think Maurice is absolutely true about you (State's Exhibit 303:90). The police further lied to appellant, telling him that other witnesses and scientific evidence linked him to the crime, revealed by the following excerpts: There are people that have picked you to be inside that shop during working hours (State's Exhibit 303:51-52) * * * We've got certain eyewitnesses. We'~e going with people that have absolutely no reason to pick on Robert. (State's Exhibit 303:72) 52 * * * We started out with a composite. And then we got your driver's license photo. I mean, they're not going to miss it (State's Exhibit 303:77) * * * Do you understand the new technology that's called these days DNA? That's a tremendous plus for us. It's one of the reasons that we're here seven years later talking to Mr. Springsteen. Do you think that's just coincidence? Appellant's request for a lie detector test and hypnosis were rebuffed (73, 79). He repeatedly told the police that he was unable to help them (57,63,71,90). But the authorities would have no part of it: "We're not going away until this issue is resolved." "Not remembering is not an option." (State's Exhibit 303:53) Ultimately, appellant relented and recited the information known by so many teenagers in Austin, including Alex Briones, Shawn Smith and Mike Scott, knew. SPRINGSTEEN: I don't think so. I don't-I-I'm not going to say no anymore, because you guys have a really compelling case and I'm starting to remember a few things here and there. I just wish I had-I don't- (State's Exhibit 303:97). Appellant was left to believe he had two choices: to implicate himself and reduce his culpability or be portrayed as a ringleader by three others. 53 If you haven't figured it out, Maurice blames you. (State's Exhibit 303:97) * * * Mike's taken care of himself. (State's Exhibit 303:100) * * * You're making it harder on yourself. (State's Exhibit 303: 115) * * * Quit holding back and put it all on his ass where it needs to be...(State's Exhibit 303:115) Appellant was urged to help himself in light of this "evidence." Appellant relented, following Merrill's suggestion that he "put it all on [Maurice Pierce's] ass where it needs to be." Appellant implicated himself as a scared, confused participant under the control of ringleader Pierce. If confessions are inherently unreliable, the reliability of appellant's oral statements is profoundly suspect. There is no physical evidence linking him to the scene. After maintaining his innocence for eight years, he orally confessed only after being told three men had implicated him in the crime and that he needed to help himself. Appellant's case is eerily reminiscent of the Austin Pizza Hut murder where the APD induced Christopher Ochoa to confess to a crime he did not commit and also implicate his innocent friend. See n.6, supra. It does not take physical violence to induce false confessions. A false confession can arise with a kinder, gentler approach- for instance, by suggesting that a suspect help himself after lying to him that there is overwhelming evidence against him. Unfortunately, the resulting confessions run the grave risk of sending innocent 54 people like Christopher Ochoa and Richard Danziger to prison, or in appellant's case, to Death Row. Admission of Scott's confession "excerpts" cannot be deemed harmless error simply because appellant confessed to the crime. Appellant;s oral statements are inconsistent with the crime scene and are the product of interrogation techniques likely to produce false confessions. Appellant's confession is further undermined by the lack of physical evidence linking him to the crime, as well as the fingerprint and DNA evidence reflecting other perpetrators. Additionally, the Briones confession is more consistent with the crime scene than appellant's confession, and the Smith confession also recites crime scene information "only the perpetrators" could know. It cannot be reasonably concluded that appellant's oral statements provide overwhelming evidence of his guilt. Accordingly, appellant's conviction must be reversed and remanded. Lilly, 527 U.S. 116,. Guidry, 9 S. W.3d 133,. Mendez, 56 S.W.3d 880. 55 Point of Error III. The trial court erred in admitting the testimony of Amanda Statham, who testified to Michael Scott's eight year-old oral statements claiming Scott's participation in the offense in violation of appellant's right to confront the witnesses against him. U.S. Const. amend. VI. (RR 53:150). Point of Error IV. The trial court erred in admitting the testimony of Amanda Statham, who testified to Michael Scott's eight year-old oral statements claiming Scott's participation in the offense in violation of Tex.R.Evid. Rules 802; 803(24); Tex.R.Evid. Rules 401-402. (RR 53:150). The issues will be argued together. Summary of argument. As stated in the previous points of error, a declarant' s out-of-court statements are typically inadmissible to prove the guilt of a separately tried defendant. Argument. Amanda Statham, a 13-year-old at the time of the offense, testified that she knew Mike Scott and described him as a boy even her grandmother liked. Like scores of teenagers, Scott was question by the police. Amanda Statham asked Scott why he had been questioned. Scott, then 17 years old, responded, "be did it." Statham, who admitted to drinking shots of "vodka, cheap vodka," during the conversation, testified that she did not believe Scott and thought he was making a bad joke (RR 53: 150). She called him a "fucking sick bastard and smacked him on the side of the head" (RR 53:154). The court permitted this testimony under the declaration against penal interest hearsay exception. Appellant contends that the testimony does not fall within the 56 declaration exception of Tex.R.Evid. Rule 803(24) and constitutes a violation of his right to confront the witnesses against him. u.s. Const. amend. VI. Statham's testimony is admissible only if it bears sufficient "indicia of reliability." Lilly, 527 U.S. 116. Declarations against penal interest are not firmly rooted hearsay exceptions, so the statement must be examined for its inherent trustworthiness. Id. The trustworthiness evaluation is limited to the circumstances in which the statement was made and cannot "bootstrap" onto other evidence presented at trial. Id.; Wright, 497 U.S. at 822. Although Scott's purported statement to Statham was made in response to casual conversation, it fails to pass the trustworthiness analysis. Statham's testimony recounted a statement made eight years before, when she was only thirteen years old. She had consumed vodka shots. One can imagine that Scott, a 17 -year-old high school drop out, might have had several reasons to make such a flippant response to a teenage girl's inquiries (impression management, sophomoric humor, reputation enhancement), assuming he made the statement at all. Most importantly, Statham testified even she did not believe Scott when he made the statement. She did not find the statement to be sufficiently trustworthy to merit contacting the authorities. It is hard to conceive that cross examination of Scott regarding the statement would be of little utility. Lilly, 527 U.S. at 125. Accordingly, Statham's testimony violated appellant's right to confrontation. Additionally, this testimony constitutes inadmissible hearsay, Tex.R.Evid. Rule 802, as it fails to qualify as a declaration against penal interest exception. Tex.R.Evid. Rule 803(24). 57 For a statement against penal interest to be admissible against a nondeclarant, it must be: 1) sufficiently self inculpatory, and 2) evidence particularized guarantees of trustworthiness judging from all corroborating circumstances. Scott's purported statement was completely self-inculpatory and it was not made in response to police interrogation. While these factors enhance its reliability, the statement was still made under circumstances undermining its trustworthiness. Even Statham did not believe it. Most importantly, there is no shred of physical evidence corroborating the statement. Compare Mendez, 56 S. W.3d 880 (statement not sufficiently corroborated despite a well-established motive and eye witnesses who implicated defendant). If, for some reason this statement does not violate the Sixth Amendment and prohibitions against hearsay, it remains irrelevant to appellant's guilt. Irrelevant evidence is inadmissible. Tex.R.Evid. Rules 401-402. Lastly, the error cannot be deemed harmless, as there is not overwhelming evidence of appellant's guilt. For the sake of brevity, appellant refers the court to his harmless error argument, Points of Error I. and II., supra. 58 Point of Error V. The trial court erred in admitting the testimony of Nancy Reed, Amanda Statham's mother, who testified that Statham mentioned to her in 1991 that Scott claimed participation in the offense, in violation of appellant's right to confront the witnesses against him. U.S. Const. amend. VI. (RR 54:12). Point of Error VI. The trial court erred in admitting the testimony of Nancy Reed, Amanda Statham's mother, who testified that Statham mentioned to her in 1991 that Scott claimed participation in the offense, in violation of Tex.R.Evid. Rules 802; 803(24) (RR 54:12). The issues will be argued together. Summary of argument. Because Stratham's testimony was inadmissible, third-party rehabilitation testimony is likewise inadmissible. Argument. After the cross examination of Amanda Statham, the state called her mother, Nancy Reed, who testified that Statham mentioned that Scott had claimed participation in the offense. Like her daughter, Reed did not take the statement seriously enough to contact the authorities. Appellant asserts that Reed's testimony, perhaps proper to rebut a claim of recent fabrication, is nonetheless inadmissible hearsay regarding Scott's purported statement. Because Statham's underlying testimony is inadmissible, Reed's testimony in response to a claim of fabrication is likewise inadmissible. U.S. Const. amend. VI; Tex.R.Evid. Rules 802, 803(24). For the sake of brevity, appellant directs this Court to the arguments and authorities cited in Points of Error I.-IV., supra. 59 Point of Error VII. The trial court erred in admitting appellant's oral statements to the police in violation of the Due Process Clause of the Fourteenth Amendment. U.S. Const. amend. V. (RR49:132). Point of Error VIII. The trial court erred in admitting appellant's oral statements to the police in violation of the Due Course of Law provision of the Texas Constitution. Tex. Const. art. I, ~ 19. (RR 49: 132). These points will be argued together. Summary of argument. Appellant was interrogated for several hours, while his lawyer attempted in vain to gain access to him,. Appellant, a high school dropout with a learning disability, gave an oral statement to the police that fails to pass voluntariness requirements for admission at trial. Argument. To determine voluntariness, a court must ask whether, under the totality of the circumstances, law enforcement officials obtained the statement by overbearing the will of the accused. Armstrong v. State, 718 S. W.2d 686, 693 (Tex.Crim.App. 1985); Haynes v. Washington, 373 U.S. 503, 513-14 (1963); Townsend v. Sain, 372 U.S. 293, 307 (1963) (test for involuntariness is whether suspect's will was overborne or whether confession was product of rational intellect and free will), overruled on other grounds by Keeney v. Tamayo Reyes, 504 U.S. 1 (1992); Culombe v. Connecticutt., 367 U.S. 568,602 (1961) ("will 60 overborne" if statement not "product of an essentially free and unconstrained choice by its maker"). The factual inquiry centers upon: 1) the conduct of law enforcement officials in creating pressure and 2) the suspect's capacity to resist that pressure. Mincey v. Arizona, 437 u.s. 385, 399~1 (1978) (confession involuntary because continued police interrogation of hospitalized suspect overwhelmed suspect's free will); Davis v. North Carolina, 384 U.S. 737, 752 (1966) (confession involuntary because police repeatedly interrogated jailed suspect held incommunicado over 16-day period). Among the factors courts commonly considered in assessing .the totality of the circumstances surrounding a defendant's testimony evidence are: 1) the location of the questioning; U.S. v. Burns, 15 F.3d 211, 216 (1st Cir. 1994) (confession voluntary because postal inspector interviewed defendant postal employee in post office where defendant worked); U.S. v. Glover, 104 F.3d 1570, 1580 (10th Cir. 1997) (confession voluntary in part because interrogation took place in defendant's, office rather than interrogation room). 2) whether Miranda warnings were given; U.S. v. Huerta, 239 F.3d 865, 871-72 (7th Cir. 2001) (confession voluntary in part because defendant received Miranda warnings 3 times and executed written waiver); Simmons v. Bowersox, 235 F.3d 1124, 1132-34 (8th Cir. 2001) (confession voluntary in part because videotaped statement showed defendant admitting he had been read his Miranda rights and chose not to exercise them); U.S. v. Jones, 32 F.3d 1512, 1517 (11th Cir. 1994) (confession voluntary in part because defendant twice advised of his Miranda rights and signed a waiver form), and 3) whether the accused initiated contact with law enforcement officials. Chambers v. Bowersox, 157 F.3d 560, 565 (8th Cir. 1998) (confession voluntary because defendant initiated conversation by stating there were things about his life he 61 regretted); Huckelbury v. Wainwright, 781 F.2d 1544, 1545 (11th Cir. 1986) (confession voluntary because defendant initiated contact with sheriff, received Miranda warnings, and was aware of rights). In the case at bar, it is undisputed that the police initiated the interrogation,failed to advise appellant of his Miranda rights and interviewed appellant in a police interrogation room with a hidden video camera. These factors militate against a finding of voluntariness. When the police interrogation techniques include false or misleading statements, volunariness is undermined. Green v. Scully, 850 F.2d 894, 903-04 (2d Cir. 1988) (confession voluntary even though police informed defendant that fingerprints matched prints in victims' apartment because defendant was motivated to confess by fear he would kill again in another "blackout"); Ray v. Duckworth, 881 F.2d 512, 518 (7th Cir. 1989) (Even though officer informed defendant that roommate had implicated him in murder and other incriminating evidence existed, confession voluntary because defendant was permitted to speak to roommate's father, stated he understood his rights, did not indicate he wished to stop interrogation, and roommate's father testified there was no police coercion); U.S. v. Allen, 247 F.3d 741, 765-66 (8th Cir. 2001) (confession voluntary even though police informed defendant 3 of 4 eyewitnesses identified him in lineup because defendant initiated contact with officer, was warned of his rights 5 times, &nd set up ground rules for confession. In the case at bar, the police repeatedly lied to appellant, suggesting that they possessed evidence that did not exist: And of the four guys, you're the only one who's story is not the same as theirs. To me that makes you look really bad. (State's Exhibit 303:43) 62 * * * That doesn't look good for you. (State's Exhibit 303:43) * * * MERRILL: But their story is consistent. But your story isn't.. SPRINGSTEEN: Then that makes me look like the bad guy. MERRILL: It does. (State's Exhibit 303:46) * * * They're very clear... (State's Exhibit 303:51) * * * Maurice, Forrest, and Mike, tell a very compelling story. A very compelling story. And you're included into that story (State's Exhibit 303:53) * * * I absolutely believe now I'm beginning to believe Maurice more than I am Mike. (State's Exhibit 303:55) * * * MERRILL: So explain to me and help me understand why would it that Maurice.. . and Mike, Michael Scott, and even Forrest, would include you in this picture? Why? What logical reason would there be? How many times SPRINGSTEEN: 1...1 can't (State's Exhibit 303:69) * * * I mean, all the fingers are pointing at you. (State's Exhibit 303:71) * * * 63 [F]from what we've heard, and from what we've been told, I mean, you appear to be the main actor in this thing. * * * There's three people that are absolutely sure you were there and you are involved. And we've talked to all three of them. You're it. (State's Exhibit 303:89) * * * Are you a cold-blooded murderer? 1...1 think you are. I think Maurice is absolutely true about you. (State's Exhibit 303:90) * * * There are people that have picked you to be inside that shop during working hours (State's Exhibit 303:51-52) * * * We've got certain eyewitnesses. We're going with people that have absolutely no reason to pick on Robert. (State's Exhibit 303:72) * * * We started out with a composite. And then we got your driver's license photo. I mean, they're not going to miss it. (State's Exhibit 303:77) * * * Do you understand the new technology that's called these days DNA? That's a tremendous plus for us. It's one of the reasons that we're here seven years later talking to Mr. Springsteen. Do you think that's just coincidence? 64 The police refused appellant's request for a lie detector test. (State's Exhibit 303:73). He repeatedly told the police that he was unable to help them (State's Exhibit 303:57,63, 71,90), but the authorities would have no part of it, "We're not going away until this issue is resolved." "Not remembering is not an option." (State's Exhibit 303:53). The Supreme Court noted that widely used police interrogation techniques, such as "good cop, bad cop" routines and false lineup identification ploys, created or increased the disadvantage most suspects had in matching wits with their interrogators. Miranda v. Arizona, 384 U.S. at 436,448-58 (1966) (listing various types of police deception and observing that they could take a "heavy toll on individual liberty"). Police deception is part of the totality of the circumstances test. Farmah v. State, 883 S.W.2d 674, 680-81. (Tex.Crim.App. 1994) (Baird, J., concurring). The determination of whether a confession is voluntary.must be based upon examination of the totality of the circumstances surrounding its acquisition. Relevant circumstances have included length of detention, incommunicado or prolonged interrogation, refusing a defendant's request to telephone a lawyer or family, and physical brutality. A defendant's characteristics and status, as well as conduct of the police, are important concerns. Armstrong v. State, 718 S. W.2d at 693. In the case at bar, appellant's will was overborne. He was informed, untruthfully, that three others told largely identical stories inculpating him. He was informed, untruthfully, that there were other eyewitnesses. He was informed, untruthfully, that there were advancements in DNA technology that prompted the interrogation. Ultimately, he 65 regurgitated the information known by so many teenagers in Austin, including Alex Briones, Shawn Smith and Mike Scott. SPRINGSTEEN: I don't think so. I don't-I-I'm not going to say no anymore, because you guys have a really compelling case and I'm starting to remember a few things here and there. I just wish I had- I don't- (State's Exhibit 303:97) Appellant was left to believe he had two choices: to implicate himself and reduce his culpability or to be portrayed as a ringleader by three others. If you haven't figured it out, Maurice blames you. (State's Exhibit 303:97) * * * Mike's taken care of himself. (State's Exhibit 303:100) * * * You're making it harder on yourself. (State's Exhibit 303:115) * * * Quit holding back and put it all on his ass where it needs to be.. .(State's Exhibit 303: 115) Appellant was urged to help himself in light of this "evidence." Appellant relented, following Merrill's suggestion that he "put it all on [Maurice Pierce's] ass where it needs to be." Appellant implicated himself as a scared, confused participant under the control of ringleader Pierce. Deceptive interrogation techniques run the risk of producing false confessions. Gail Johnson, 6 B.U. Pub. Int. L.J. 719 at 726,729 (explaining that "modem psychology has 66 come a long way towards a more complex and sophisticated understanding of the interplay of factors leading to false confessions") See Margaret Paris, Trust, Lies, and Interrogation, 3 Va. J. Soc. Pol'y & L. 3,9,44 (1996) (advocating the prohibition of any lies during questioning); Daniel W. Sasaki, Guarding the Guardians: Police Trickery and Confessions, 40 Stan. L. Rev. 1593, 1612 (1988) (advocating a per se rule against police trickery during interrogation); Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425,477 (1996) (urging a complete ban on police lying in order to maintain trust relationships between citizens and the police); Laura Hoffman Roppe, Comment, True Blue? Whether Police Should Be Allowed to Use Trickery and Deception to Extract Confessions, 31 San Diego L. Rev. 729 (1994). Others have urged that police interrogation be limited to situations where counsel is present. See Irene M. Rosenberg & Yale L. Rosenberg, A Modest Proposal for the Abolition of Custodial Confessions, 68 N.C. L. Rev. 69(1989); see also Edwin M. Borchard, Convicting the Innocent xvii (1932) (proposing a bar on all interrogation by the police); Donald A. Dripps, Foreword: Against Police Interrogation - And the Privilege Against Self Incrimination, 78 J. Crim. L. & Criminology 699, 726 (1988) (arguing for a bar on all confessions obtained during custodial interrogation); Charles J. Ogletree, Are Confessions Really Good for the Soul? A Proposal to Mirandize Miranda, 100 Harv. L. Rev. 1826, 1842 (1987) (urging that interrogation be permitted only in the presence of counsel); Deborah Young, Unnecessary Evil: Police Lying in Interrogations, 28 Conn. L. Rev. 425, 473-76 (1996) (arguing that confessions are seldom necessary, especially if obtained by deception). Not only was counsel not present during the lengthy interrogation, but the police also prevented appellant's attorney contact with appellant. Appellant's family contacted a 67 lawyer to represent him immediately after appellant was taken to police headquarters.for interrogation. Instead of allowing counsel access, the police played a game of hide-and seek, entirely preventing counsel contact with appellant (RR 4: 119) (RR 5: 10-43) (RR 6:6 20). This, after appellant twice inquired about whether he should consult a lawyer: "If I'm being accused of something, then I would like a lawyer present" (RR 303:8). SPRINGSTEEN: Should I have a lawyer, or, I don't know nothing about nothing. MERRILL: If you want a lawyer SPRINGSTEEN: I don't know what to do, I don't want to get railroaded, I'm sure you probably wouldn't do it on purpose (RR 303:42). Appellant's confession is involuntarily given the totality of the circumstances. The question of voluntariness, where there is no physical evidence linking appellant to the offense, is, bluntly, a matter of life or death. Because the trial court erred in admitting the oral confession, appellant's conviction must be reversed. 68 Point of Error IX. The trial court erred in admitting the irrelevant testimony of James Ramsbottom that he saw appellant with a gun four to five years before the offense. Tex.R.Evid. Rules 401, 402, 403 and 404 (RR 54:177). Summary of argument. Ramsbottom's testimony is wholly irrelevant to whether appellant committed a quadruple homicide. If there is any relevance, its probative value is outweighed by its prejudicial nature. It is rank character evidence and evidence of other "bad acts" specifically precluded under the Texas Rules of Evidence. Argument. James Ramsbottom testified that he knew appellant in junior high school in West Virginia. Four or five years before the offense, he once saw appellant with a .38 caliber gun. An adult took the gun away from appellant (RR 54:177). Ramsbottom's testimony is too remote in time to be relevant, and any probative value it may have is outweighed by the danger of unfair prejudice. Tex.R.Evid. Rules 401,402, 403 and 404. The goal of litigation is to resolve disputes by determining critical facts and applying law to those facts. The Court should receive evidence that leads to ascertaining those facts and reject evidence that will not. Irrelevant evidence, therefore, is inadmissible. Tex.R.Evid. Rule 402. For evidence to be relevant, it must be both material and probative. Tex.R.Evid.401. Materiality concerns whether the proffered evidence is of consequence to the litigated controversy. Probativeness requires that evidence directed to the proof of a material fact have a "tendency to make the exisistence of [that fact]...more probable or less probable that it would be without the evidence." Tex.R.Evid. Rule 401. Evidence, to be relevant, must 69 have a tendency to prove or disprove the proposition for which it is offered. The path of logic must ultimately lead to the proposition sought to be proved. Relevant evidence may be excluded if "its probative value is substantially outweighed by the danger of unfair prejudice." Tex.R.Evid Rule 403. Character evidence and evidence of other crimes wrongs or acts are not admissible to show that a person acted in conformity therewith. Tex.R.Evid. Rule 404. Rankin v. State, 974 S. W.2d 707,709 (Tex.Crim.App. 1996). However, extraneous offenses may be admissible if: 1) admitted for a purpose other than character conformity, 2) its admission is not barred by constitutional or statutory prohibitions and 3) it has relevance to a fact of consequence necessary to prove the charged offense. Id. Non-exclusive purposes for which extraneous offense evidence may be admissible are to prove motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. Id.;Rule 4O4(b). When evidence has no relevance apart from character conformity, it is absolutely inadmissible. Montgomery v. State, 810 S.W.2d 372 (Tex.Crim.App. 1990). Rambottom's testimony involves an incident too remote in time to be relevant to whether appellant committed a capital murder involving a gun. Appellant would have been 12 or 13 years old at the time, resided in West Virginia, and the gun was taken away from him by a grown up. Appellant did not move to Texas until he was 17 years old. Any probative value of this incident, that occurred some 13 years before trial, is outweighed by its prejudicial nature. This case must be reversed because this error had a substantial and injurious effect or influence in determining the jury's verdict. Morales v. State, 32 S. W.3d 862, 867 70 (Tex.Crim.App .2000). Given the scant evidence admitted against appellant and the complete lack of physical evidence, it cannot reasonably be concluded that this error did not influence the jury. 71 Point of Error X. The trial court erred in admitting the irrelevant and prejudicial testimony of Dr. Jeffrey Harlow, who testified to his counseling sessions with appellant. Tex.R.Evid. Rules 401, 402, 403, 404 (RR 51:100). Point of Error XI. The trial court erred in admitting the testimony of Dr. Jeffrey Harlow, who testified to his counseling sessions with appellant, in violation of appellant's confidential communications privilege. Tex.R.Evid. Rules 401, 402, 403, 404 (RR51:100). The points will be argued together. Summary of Argument. Appellant attended six visits with a West Virginia counselor in 1992. The therapist's testimony is irrelevant, prejudicial, and constitute privilege communication in the state where they occurred. Argument. Jeffrey Harlow, Ph.D., testified that in the spring of 1992 he saw appellant for six therapeutic sessions. He believed that appellant was moderately depressed, that he had a learning disability in math and was "weak" in writing. Appellant, a seventeen-year-old, was tired, had headaches, and wanted to reduce his impulsive anger (RR 51: 1 00). This testimony is irrelevant, and any probative value is grossly outweighed by its prejudicial nature. Tex.R.Evid. Rule 401, 402, 403. For the sake of brevity, appellant refers this Court to his arguments and authorities in Point of Error IX, supra. Additionally, appellant's statements were privileged under West Virginia law. Although Texas does not specifically privilege mental health information or communications in criminal cases, appellant's communication occurred in West Virginia, and its law should guide the analysis. See Gonzalez v. State, 21 S. W.3d 595 72 (Tex.App.-Houston [1 st Dist.] 2000) (state where communication claimed to be confidential took place is state with most significant relationship and its law will apply), affirmed, 45 S. W.3d 101 (Tex.Crim.App.2001). Under West Virginia law, privileged communication, such as physician-patient matters, are not codified but are recognized at common law. Simply because the privilege is not codified "does not destroy the confidential nature" of the relationship. State ex rel. Kizmiller v. Henning, 190 W.Wa 142,437 S.E.2d 452 (W.Va. 1993). To compound this problem, appellant was a minor at the time of the six counseling sessions. At trial, the court ordered Dr. Harlow to testify, notwithstanding his assertion of privilege. This testimony, offered at guilt-innocence, is irrelevant, highly prejudicial and a violation of confidential communication. 73 Point of Error XII. The trial court erred in admitting the testimony of Dr. Cancelada who testified beyond his realm of expertise. Tex.R.Evid. Rules 701-702 (RR 49:76). Summary of argument. Experts may not testify beyond the realm of their expertise. The trial court allowed Dr. Cancelada to do just that. Argument. Doctor David Cancelada, M.D., testified that pictures of the fire suggest direct-flame contact on the bodies, although he admitted this was beyond his area of expertise (RR 49:76). As the witness acknowledged, this testimony is beyond the realm of his expertise. Expert testimony must be limited to the scope of the witnesses' expertise. "Special knowledge of the specific matter upon which the expert is to testify must be shown." Nethery v. State, 692 S. W.2d 686, 708 (Tex.Crim.App. 1985); Baker Marine Corp. v. Herrera, 704 S. W.2d 58, 62 (Tex.App.-- Corpus Christi 1985) (rehabilitation counselor qualified to testify as to plaintiff's disability on his returning to work, he was not qualified to testify as to future medical consequences plaintiff would suffer); Arlington Memorial Hospital Foundation, Inc. v. Baird, 991 S.W.2d 918, 920-921 (Tex.App.-- Fort Worth 1999) (nurse permitted to testify about reasonable standard of nursing care, but not regarding cause of corneal bum suffered by plaintiff); Smith v. State, 874 S. W.2d 720, 721-22 (Tex.App.- Houston [1 st Dist.] 1994) (although police officer permitted to testify about procedure he used in performing field test for cocaine and that cotton swab used in test turned blue, officer should not have been permitted to testify that this indicated the presence of cocaine); 74 qualified to testify that defendant was intoxicated, but not qualified as an expert in alcohol burn-off). T ex.R.Evid. Rules 701-702 prohibit this testimony. 75 Point of Error XII. The evidence is legally insufficient to support the jury's verdict of guilt (RR 59: 12). Point of Error XIII. The evidence is factually insufficient to support the jury's finding of guilt (RR 59:12) These issues will be argued together. Summary of the argument The evidence is legally and factually insufficient to support the jury's finding of guilt. Argument. Legal sufficiency. To determine whether the evidence is sufficient, appellate courts are to look to whether, after viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781,2788-89 (1979). Due Process protects a defendant in a criminal case against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In Re: Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 1073 (1970). Traditionally, proof beyond a reasonable doubt is the decisive difference between criminal culpability and civil liability. 9 J. Wigmore, Evidence ~ 2495 (Third Ed.). To make this determination, courts must decide whether the evidence could reasonably support a finding of guilt beyond a reasonable doubt. Jackson, 443 U.S. at 318, 99 S.Ct. at 2788 89. Jackson instructs that any evidence that is relevant-- that has any tendency to make the existence of an element of a crime slightly more probable than it 76 would be without the evidence-- could be deemed a "mere modicum," but it could not seriously be argued that such a "modicum" of evidence could by itself rationally support a conviction beyond a reasonable doubt. [d.. 443 U.S. at 320,99 S.Ct. at 2789. Additionally, the constitutional necessity of proof beyond a reasonable doubt is not confined to those defendants who are morally blameless. Mullaney v. Wilbur, 421 U.S. 684, 697-98, 95 S.Ct. 1881, 1888 89 (1975). Factual sufficiency. Courts of Appeal are required to conduct factual sufficiency reviews of the evidence when requested by appellant's in criminal cases. Clewis v. State, 922 S. W .2d 126, (Tex.Crim.App. 1996). In doing so, appellate courts are to consider all the relevant record evidence, not just the evidence that supports the verdict. Santellan v. State, 939 S. W .2d 155 (Tex.Crim.App. 1997). Next, appellate courts are to compare the evidence that tends to prove the disputed element of the crime with the evidence that tends to disprove it, and are authorized to disagree with the jury's verdict, even in the face of evidence tending to prove their verdict. Id.; see also Reina v. State, 940 S. W.2d 770 (Tex.App. --Austin, 1997, pet. ref d). As stated repeatedly throughout this brief, there is no physical evidence supporting the state's theory that appellant, Scott, Pierce and Welborn committed these crimes. There is, however, DNA and fingerprint evidence suggesting other perpetrators. The Scott and Springsteen confessions are facially inconsistent with the crime scene and with each other. Given the existence of other confessions that are more consistent with the crime scene, it is inconceivable that this evidence, alone, can support a conviction. Additionally, the 13-year-old child on acid who claimed to have seen appellant with a gun the night of the offense has recanted that allegation, under oath, at Mike Scott's trial. If this evidence, viewed in the light most favorable to the prosecution, supports legal sufficiency, it nonetheless fails to establish factual sufficiency. 77 Point of Error XIV. Tex. Code Crim. Proc. art. 37.071 is unconstitutional as applied to appellant for it allows for the execution of a juvenile offender. U.S. Const. amend. VIII. Summary of argument. The Eighth Amendment should be interpreted to prohibit the execution of juvenile offenders. Argument. Appellant was seventeen years old at the time of this offense. The constitutionality of the death penalty must be guided by "evolving standards of decency that mark the progress of a maturing society." Thompson v. Oklahoma, 487 U.S. 817 (1988). The applicable standard used to make this determination must be progressive, informed and enlightened by humane justice. Thompson, 487 U.S. 817. In Thompson, the United States Supreme Court determined that the Eighth Amendment prohibited the execution of juvenile offenders below the age of sixteen because it offended civilized standards of decency. One year later, the Court revisited an Eighth Amendment challenge to juvenile executions. Stanford v. Kentucky, 492 U.S. 361 (1989). The Court found no modern consensus prohibiting the execution of sixteen or seventeen-year-old juvenile offenders. Accordingly, the Court concluded that such death penalty statutes did not offend the Eighth Amendment's prohibition against cruel and unusual punishment. Much has changed since the 1989 Stanford decision. DNA testing has unlocked the prison doors for scores of innocent men, including some awaiting execution on death row. Hampton, K., (2000). Cleared by DNA. Voice for the Defense. 29:9 (November); Scheck, 78 B., Neufeld, P. and Dwyer, J., (2000). Actual Innocence: Five days to execution, and other dispatches from the wrongly convicted. (Doubleday: New York). For the first time in this nation's history, science-- not social reform-- has highlighted the failures of the criminal justice system, prompting grave reservations about the death penalty, as well as its applicability to juveniles and the mentally retarded. United States Supreme Court Justice Sandra Day O'Connor, a Reagan appointee, has concluded, "More often than we want to recognize, some innocent defendants have been convicted and sentenced to death.. .If statistics are any indication, the system may well be allowing some innocent defendants to be executed" (New York Times, 2001). State District Court Judge C.C. Cooke expressed his concerns with the Texas death penalty procedure, "I think the mood is changing in this country and people are realizing there are deficiencies in the system. We always think we've got the right person, but the system is not infallible" A. Spangler, Judge expresses concerns about fairness of death penalty. Fort Worth Star-Telegram, p. A-I (July 24, 2001). The Texas Warden who presided over 89 executions, Jim Willett, expressed similar sentiments in an op.-ed. piece for the Washington Post, "Has an innocent man ever been executed? Probably. The judicial system is designed to promote fairness, but anyone who expects perfection is asking for an impossibility" Jim Willett, I was Warden. I did the Job with Dignity. I still have questions. Washington Post, p.B 1 (May 13,2000). Reassessing evolving standards of decency regarding the execution of juvenile offenders is not without precedent. In 1987, the United States Supreme Court reviewed whether the execution of the mentally retarded constituted an Eighth Amendment violation. Finding no moral consensus against sentencing the mentally retarded to death, the Court 79 declined to interpret the Eighth Amendment to prohibit such executions. In 2002, the Supreme Court recognized the downward turn in public opinion regarding executing the mentally retarded. Acknowledging an evolving standard of decency, while employing reasoning closely analogous to juvenile offenders, the Court held that the Eighth Amendment prohibits executing the mentally retarded. Atkins v. Virginia, 122 S.Ct. 2242 (2002). Only 38 states have statutes authorizing the death penalty. Of those 38 states, 16 have expressly chosen age 18 as the minimum age for death penalty eligibility. The federal death penalty statutes (criminal and civil) do not apply to juvenile offenders. In the United States, then, only 22 states permit the execution of a juvenile offender, hardly a national consensus in support of such executions. Victor L. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January I, 1973 - September 30,2002 http://www.law.onu.edu/faculty/streib/juvdeath.pdf. Since Stanford, considerable legislative activity marks the public trend against executing juvenile offenders. When New York and Kansas reenacted their death penalties, their new statutes included its minimum age to 18. In 1999, Montana raised its minimum age to 18. In 2002, Indiana raised its age to 18. Id. Three United States Supreme Court Justices recently called for the Court to revisit the issue of the death penalty for crimes committed while under age 18. Patterson v. Texas, 536 U.S. -, 2002 U.S. LEXIS 5341 (August 28, 2002) (Stevens, J., dissenting, joined by Ginsburg and Breyer, J.J.). Given the evolving standards regarding the applicability of the death penalty in general, and as applied to the mentally retarded and juveniles, the Texas death penalty 80 statute constitutes cruel and unusual treatment for authorizing state-sanctioned death of a minor. Appellant's sentence must be reformed to life in prison. Point of Error XV. Tex. Code. Crim. Proc. art. 37.071 represents a flagrant violation of international law, as applied to appellant, for it allows for the execution of a juvenile offender in violation of international law. On the world stage, the United States has the dubious distinction of standing virtually alone in support of juvenile executions. Since 1990,juvenile offenders are known to have been executed in only seven countries: Iran, Pakistan, Democratic Republic of Congo, Yemen, Nigeria, Saudi Arabia and the United States of America. Since 1994, Yemen, Pakistan and the Democratic Republic of Congo have prohibited the execution of juvenile offenders. Juvenile Death Penalty in Other Countries. Death Penalty Information Center, http://deathpenaltyinfo.org/juvintl.htm. The last execution of a juvenile offender outside the United States occurred in 2000 in the Democratic Republic of Congo. Victor L. Streib, The Juvenile Death Penalty Today: Death Sentences and Executions for Juvenile Crimes, January /, /973 - September 30,2002 http://www .Iaw .onu.edu/faculty/streib/juvdeath.pdf. By authorizing the execution of juvenile offenders, Tex. Penal Code ~ 19.03 constitutes a violation of international law in three respects: multilateral treaties, customary international law and jus cogens. Treaty violation. The international community condemns the practice of executing juvenile offenders, as reflected in multilateral treaties expressly prohibiting the practice. International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966,999 U.N.T.S. 172 (1976) 81 [hereinafter ICCPR]; The Geneva Convention Relative to the Protection of Civilian Persons in Time of War, opened for signature Aug. 12, 1949,6 TIAS 3516, 3365 [hereinafter The Fourth Geneva Convention]; American Convention on Human Rights, concluded Nov. 22, 1969, 1114 U.N.T.S. 123, reprinted in Bums H. Weston et al., Supplement of Basic Documents to International Law and World Order, 453-68 (1997); Convention on the Rights of the Child, concluded Nov. 20, 1989,30 I.L.M. 1448, reprinted in Bums H. Weston et al., Supplement of Basic Documents to International Law and World Order 562-87 (1997). The United States has signed several treaties that prohibit the death penalty for juveniles. The Fourth Geneva Convention prohibits the death penalty to juveniles. The United States ratified the treaty in 1955. The ICCPR, signed by the United States, specifically forbids the death sentence for "persons below eighteen years of age." ICCPR, 999 U.N. T .S. 172 (1976), Article 6(5). In ratifying the treaty the United States specifically reserved the right to impose juvenile executions, an action arguably invalid under international law. Eleven foreign nations typically allied with the United States-- France, Sweden, Belgium, Denmark, Finland, Germany, Italy, the Netherlands, Norway, Portugal and Spain-- have filed complaints with the Human Rights Commission in response to the American refusal to comply with Article 6(5). "Note: Killing Kids: The impact of Domingues v. Nevada on the Juvenile Death Penalty as a Violation of International Law." 41:5 Boston College L.Rev. 1175-1216 (September 2000). 82 Customary international law. Express treaties are not the only forms of binding international law. International custom can become so widespread that it operates as a form of international law. The United States Supreme Court has long recognized the role of international custom on binding international law. The Paqueta Habana, 175 U.S. 677 (1900); see also Filartiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980). International custom clearly prohibits a sovereign killing its children. Jus cogens. Some values are so fundamental throughout the world that they rise to the level of jus cogens, the notion of a "good per se." Certain human rights, such as freedom from torture, constitute jus cogens and they cannot be ignored by a sovereign nation. Siderman v. Republic of Argentina, 965 F.2d 699, 718 (9th Cir. 1992) (noting that jus cogens norms enjoy the highest status within international law). Appellant, seventeen at the time of the offense, cannot be executed without violating international law. Accordingly, his sentence must be reformed to life imprisonment. 83 PRAYER This extraordinary death penalty case must be reversed for the variety of reasons stated in appellant's brief. The Court should set aside the verdict and enter an acquittal, given the legal insufficiency of the evidence, or, alternatively, reverse and remand for a new trial based on the numerous other errors committed at trial. Respectfully submitted Mary Kay Sicola 707 West Lynn Austin, Texas 78703 (512) 472-9096 SBN18339800 Attorney for Appellant, on appeal only CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing has been forwarded by placing the same in the United States Mail, postage prepaid, on October 17, 2002, addressed to the following: TRAVIS COUNTY DISTRICT ATTORNEY'S OFFICE P.O. BOX 1748 AUSTIN, TEXAS 78767 84

ITEM	APPELLANT'S STATEMENT (State's 303)	SMITH CONFESSION (Defendant's 15)	BRIONES CONFESSION (Defendant's 16)	CRIME SCENE
Perpetrators	Appellant, Scott, Maurice and Forrest	Smith, Lorrie, Craig and Justin	Briones and "buddy" identified as Abel Arredondo	Physical evidence not linked to any of the alleged perpetrators
Front door key	No mention	No mention	Key was in door	Key was in door
Arson	No mention	Fire set with lighter fluid on victims and clothes	Fire set with napkins and boxes near shelving unit	Original arson report: Fire started near shelves. Report changed 7 years later after Scott confession, to conclude that fire started on bodies
Sexual assaults	Raped girl who was eventually shot twice (A. Ayers) Denies foreign object	Craig and Justin raped E. Thomas and another girl No mention of foreign object	Raped girl from behind with her hands bound behind her back No mention of foreign object	No evidence that victim sexually assaulted Only evidence of sexual assault involves foreign object
Killings	Appellant shot one victim, Maurice shot others One girl shot twice Maurice shot first victim Maurice shot other victims	Smith did not shoot anyone One girl shot twice Both Craig and Justin shot first victim Craig shot other victims	"Buddy" shot girls, then Briones shot girl in back of head One girl shot twice "Buddy" fired first shot Briones shot one victim	Victims shot in back of head One girl shot twice
Murder weapon(s)	Murder weapon (.380) thrown off bridge by either appellant, Maurice or Forrest shortly after the crime	Murder weapons were smaller than a .357	Briones used a .22 and "buddy" used a .380. Briones threw .22 off Congress Ave Bridge	No weapon recovered. Maurice arrested with .380 days after offense. Ballistics does not match Maurice's weapon with murders
Robbery	Maurice approached girl at register		Briones approached girl at register
DNA	Claims multiple rapes	Claims multiple rapes	Claims multiple rapes	No unexplained foreign DNA retrieved from any of the victims DNA did not match the victims, appellant, Scott, or Briones