Tainted Fruits
Cause No.
F96-39973-MJ
Kerr County
No. A96-253
Court of
Criminal Appeals No. 72,795
The State of
Texas v. Darlie Lynn Routier
In the
Criminal District Court NO 3
Dallas
County, Texas
DEFENDANT' S AMENDED MOTION TO
SUPPRESS THE INVOLUNTARY STATEMENT THAT THE PROSECUTORS OBTAINED FROM COURT
REPORTER SANDRA HALSEY ABOUT THE AUDIO TAPES AND ITS TAINTED FRUITS
TO THE HONORABLE JUDGE OF SAID COURT:
COMES NOW,
the defendant, Darlie Lynn Routier, by and through her attorneys of record, and
moves this Honorable Court to suppress the involuntary statement that
prosecutors Lindsey Roberts and Toby Shook obtained from court reporter Sandra
Halsey about the audio tapes and its tainted fruits. In support of this motion,
the defendant will show:
PROSECUTOR
LINDSEY ROBERTS TRICKED COUNSEL
INTO
AGREEING TO STIPULATE THAT HALSEY TOLD
HIM THAT
THERE WERE AUDIO TAPES OF THE TRIAL
BY GIVING
COUNSEL A MISLEADING ACCOUNT OF HOW
HE OBTAINED
THAT STATEMENT AND THE TAPES FROM
HALSEY.
On November
13th, 1999, Assistant District Attorney Lindsey Roberts asked counsel for the
defendant to stipulate that Sandra Halsey told him that there were audio tapes
of the trial on the merits and turned those tapes over to him. Roberts informed
counsel
DEFENDANT'S
AMENDED MOTION TO SUPPRESS INVOLUNTARY STATEMENT. etc. -- Page 1
/appeal/routier
that Halsey
recanted her sworn testimony that no tapes existed because her daughter
persuaded her to do so. Counsel accepted Roberts' explanation and agreed to the
stipulation on the condition that it would not be used to authenticate the
audio tapes (Nov. 13th Hearing at 37-39).
On April 1,
1999, counsel learned that Roberts' description of the circumstances
surrounding Halsey's recantation was incomplete and misleading. Roberts
revealed the whole truth in a sworn affidavit that he gave to a disciplinary
board that is reviewing a complaint against Halsey for her misconduct in this
case. A copy of that affidavit is attached to this motion in Exhibit A.
Roberts
admitted that he repeatedly questioned Halsey about the existence of the audio
tapes before the October 30, 1998 hearing without persuading her to change her
sworn testimony.
Roberts made
another unsuccessful attempt to extract a recantation from Halsey on October
30, 1998.
Roberts
tried to extract a recantation from Halsey on November 4, 1998, and failed
again. Thereafter, the Court ordered the attorneys for both parties not to
question Halsey.
On November
12, 1998, Roberts asked Judge Francis for permission to meet with Halsey
"one last time." Judge Francis refused to allow this, but he promised
to confront Halsey about the existence of audio tapes instead. Halsey continued
to deny that the tapes existed when Judge Francis questioned her alone in his
office.
DEFENDANT' S AMENDED MOTION TO SUPPRESS
INVOLUNTARY STATEMENT. etc. - - Page 2 /appeal/routier
After Judge
Francis completed his interrogation of Halsey, he gave Roberts permission to
ask Halsey again if she had the audio tapes and to inform Halsey and her daughter,
Suzy Crowley, that they had to appear in court on the following day to testify.
Everyone understood that Judge Francis only authorized Roberts to repeat his
previous requests for the tapes. No
reasonable person could have interpreted Judge Francis' statement as an
authorization for Roberts to enlist Toby Shook as his tag team partner and use
promises and threats to coerce Halsey.
When Roberts
approached Halsey, she asked him why everyone was insisting that the audio
tapes existed. Roberts used her question as an excuse to disobey Judge Francis'
clear order not to talk to Halsey again about the tapes. He explained why the
court's three independent expert reporters believed that she must have used
audio tapes to edit the record. Halsey still insisted that there were no tapes.
When Roberts
finally told Halsey and Crowley that they would have to testify under oath,
Crowley asked for an opportunity to speak with her mother privately. Roberts
left the room. Crowley and Halsey called him back a few minutes later. This
time, they were joined by Assistant District Attorney Toby Shook. Halsey asked
Roberts and Shook what would happen if there were audiotapes for the trial on
the merits. The two prosecutors told her that the audio tapes would be used to
certify the accuracy of the appellate record and "the District Attorney's office would not pursue perjury
DEFENDANT'S
AMENDED MOTION TO SUPPRESS INVOLUNTARY STATEMENT, etc. -- Page 3
/appeal/routier
charges for her prior sworn statement
concerning the audio tapes." Halsey admitted that the audio tapes existed immediately after
that promise was made to her. She surrendered some tapes to Roberts that day.
Her attorney, George Milner, delivered additional tapes to Roberts at a later
time.
THE AUDIO
TAPES THAT HALSEY AND HER ATTORNEY
SURRENDERED
TO ROBERTS MUST BE SUPPRESSED
BECAUSE THAT
EVIDENCE IS A TAINTED FRUIT OF AN
INVOLUNTARY
STATEMENT THAT THE PROSECUTORS
COERCED BY
PROMISING NOT TO CHARGE HER WITH
PERJURY IF
SHE RECANTED HER SWORN TESTIMONY.
The audio
tapes that Halsey and her lawyer surrendered to Roberts must be suppressed
because that evidence is the tainted fruit of an involuntary statement that she
made to Roberts and Shook after her will was overborne by repeated accusatory
questions and an explicit promise that she would not be prosecuted for perjury
if she said what the prosecutors wanted to hear. The defendant has standing to
object to this evidence regardless of whether it is reliable, because it is
necessary to achieve the deterrent purpose of the exclusionary rule.
The
requirements of the due process clause of the Fourteenth Amendment apply at a
hearing on a motion to determine the accuracy of the record in a capital case.
Chessman v. Teets, 354 U.S. 156 (1957). The due process clause forbids the
State from using an involuntary statement and its fruits, Sossamon v. State,
816 S.W.2d 340 (Tex.Cr.App. 1991), even if "independent corroborating
evidence
DEFENDANT'S
AMENDED MOTION TO SUPPRESS INVOLUNTARY STATEMENT, etc. -- Page 4 /appeal/routier
left little
doubt of the truth" of the evidence. Rogers v. Richmond, 365 U.S. 534, 540
(1961)
Halsey's
confession to Roberts and Shook about the existence of the audio tapes was
involuntary because it was not "the free and unconstrained choice of its
maker." Columbe v. Connecticut, 367 U.S. 568, 602 (1961). The prosecutors
did not have to beat Halsey with a rubber hose or threaten her with violence to
overcome her free will. Blackburn v. Alabama, 361 U.S. 199, 206 (1960). A
specific promise not to prosecute like the one that Roberts and Shook made to
Halsey can also be coercive. Dikes v. State, 657 S.W.2d 796, 797 (Tex.Cr.App.
1983). Roberts drastically increased the pressure on Halsey to make an
involuntary statement by repeatedly informing Halsey that he did not believe
her exculpatory statements before he promised not to prosecute her if she
incriminated herself. Escobedo v. Illinois, 378 U.S. 478, 485 (1964)
No
reasonable person can doubt that there was a cause and effect connection
between Roberts' accusatory questions, Halsey's expression of concern about the
consequences of a confession, the promise that she would not be prosecuted and
her recantation. Halsey's private meeting with her daughter was not an
intervening circumstance that attenuated Halsey's statement from that promise
because the promise was made after the meeting.
The fact
that Halsey initiated a conversation with Roberts about the tapes did not make
her statement voluntary. In Levra v. Denno, 347 U.S. 556 (1954), the Supreme
Court held that a
DEFENDANT'S
AMENDED MOTION TO SUPPRESS INVOLUNTARY STATEMENT. etc. -- Page 5
/appeal/routier
defendant's
statement to a prosecutor during a conversation about the case that the
defendant initiated was coerced by the conduct of an agent of the prosecution
before that conversation took place. The involuntariness of Halsey's statement
is clearer because the prosecutor who took her statement engaged in coercive
conduct during the conversation that she initiated.
It is also
beyond dispute that the audio tapes are tainted fruits of Halsey's involuntary
statement. No claim can be made that the discovery of the tapes was attenuated
from the statement or the tapes would inevitably have been discovered without
it. In any event, the inevitable discovery doctrine is superseded by Art.
38.23, V.A.C.C.P. State v. Daughtery, 931 S.W.2d 268, 272-73 (Tex.Cr.App.
1996).
Involuntary
statements and their fruits are typically excluded in cases where the
defendant's confession was coerced, but many courts have held that a defendant
also has standing to object to the involuntary statement of a witness and its
fruits. United States v. Fredericks, 586 F.2d 470, 481 (5th Cir. 1978); United
States v. Chiavola, 744 F.2d 127 1273 (7th Cir. 1984); United States ex rel
Cunningham v. DeRobertis, 719 F.2d 892, 895 (7th Cir. 1983); LaFrance v.
Bohlinger 499 F.2d 29 (1st Cir. 1974); Bradford
v.
Johnson, 476 F.2d 66 (6th Cir. 1973); Vargas v. Brown, 512 F.Supp. 271 (D. R.I.
1981); United States ex rel Blackwell v. Franzen, 540 F.Supp. 151, 155 (N.D.
Ill. 1981); People v. Newman, 197 N.E. 2d 12 (Ill. 1964); People v. Tate, 197
N.E.2d 26 (Ill. 1964); People v. Underwood, 389 P.2d 937 (Cal. 1964). The
rationale
DEFENDANT'S AMENDED MOTION TO SUPPRESS
INVOLUNTARY STATEMENT, etc. -- Page 6 /appeal/routier
for this
rule is obvious:
Involuntary
confessions have been excluded both because of the danger of unreliability and,
more importantly, out of a sense of fundamental unfairness best expressed as
the "deep-rooted feeling that the police must obey the law while enforcing
the law." Since a statement coerced from an accused is neither less
trustworthy than one from a witness nor more offensive to society's sense of
fairness, it would seem illogical invariably to require a Jackson hearing in
the first case but never in the second.
LaFrance
v. Bohlinger, 499 F.2d at 33 (citations omitted).
The
defendant does not have to show that Halsey's statement was coerced with force
or the threat of violence to acquire standing to suppress that evidence and its
fruits. A defendant's statement and its fruits are inadmissible when the
statement was coerced with a promise and "methods offensive when used
against an accused do not magically become less so when used against a witness."
Clanton v. Cooper, 129 F.3d 1147, 1157 (10th Cir. 1997)
This case
vividly illustrates why the State should not be permitted to use involuntary
witness statements and their fruits. The "State's inherent
information-gathering advantages" provided the prosecutors with powerful
tools to gather evidence that were not available to the defendant, including
offering Halsey judicial use immunity in exchange for her truthful testimony. See Wardius v. Oregon, 412 U.S. 470, 476 n.9
(1973). That promise would not have tainted the evidence at all. People v.
Douglas, 788 P.2d 640, 657 n.7 (Cal. 1990). There was no legitimate reason for
a tag team of heavyweight prosecutors to corner Halsey after she repeatedly
DEFENDANT'
S AMENDED MOTION TO SUPPRESS INVOLUNTARY STATEMENT, etc. -- Page 7
/appeal/routier
refused to say what they wanted to hear, accuse her
of lying in front of her daughter and deliver the coup de grace by promising
not to prosecute her if she recanted her sworn testimony.
WHEREFORE,
for the reasons stated above, the court should
suppress
Halsey's statement to the prosecutors and the audio tapes that she and her
lawyer turned over or, alternatively, conduct a hearing to determine whether
that evidence must be suppressed.
Respectfully
submitted,
J. STEPHEN
COOPER
3524
Fairmount Street
Dallas,
Texas 75219
214-522-0670
FAX
214-522-0670
SBN 04780100
STEVEN LOSCH
906 Delia
Drive
Longview, Tx. 75601
903-234-1373
SBN 00789805
Counsel for
Defendant
DEFENDANT' S AMENDED MOTION TO SUPPRESS
INVOLUNTARY STATEMENT etc. - - Page S
/appeal/routier
CERTIFICATE OF SERVICE
A true and
correct copy of this motion was served on Libby Lange, Assistant District
Attorney, by fax, on this the 6th day of September, 2000.
STEPHEN
COOPER
DEFENDANT'
S AMENDED MOTION TO SUPPRESS INVOLUNTARY STATEMENT etc. - - Page 9
/appeal/routier