Ex Parte Masonheimer

• Decision Date: 21 March 2007
• Docket Number: No. PD-521-05.,PD-521-05.
• Citation: 220 S.W.3d 494
• Parties: Ex Parte James S. MASONHEIMER, Appellee.
• Court: Texas Court of Criminal Appeals

220 S.W.3d 494

Ex Parte James S. MASONHEIMER, Appellee.

No. PD-521-05.

Court of Criminal Appeals of Texas.

March 21, 2007.

Rehearing Denied May 2, 2007.

Colby D. Smith, Fort Worth, for Appellant.

Patricia K. Dyer, Asst. D.A., Abilene, Matthew Paul, State's Attorney, Austin, for State.

OPINION

HERVEY, J., delivered the opinion of the Court in which MEYERS, PRICE, JOHNSON, KEASLER, and HOLCOMB, JJ., joined.

Almost six years ago, appellee was charged with murder. The State seeks to try him a third time after the first two proceedings were terminated prior to final judgment at appellee's request. Viewed in the light most favorable to the trial court's ruling, the evidence supports a finding that appellee's mistrial motions, which resulted in the termination of the first two proceedings prior to verdict, were provoked primarily by the State's intentional failure to disclose exculpatory evidence¹ with the specific intent to avoid an acquittal at the first proceeding. Appellee did not discover all of the undisclosed exculpatory evidence until the second proceeding. We hold that, under the unique facts of this case, a third prosecution is jeopardy-barred under the state and federal constitutions.

In September 2001, appellee was indicted for murdering his daughter Lucy's boyfriend. Appellee claimed that he killed the victim in self-defense and in defense of Lucy. The Court of Appeals' opinion summarizes the evidence that appellee intended to present at his first trial in support of these defenses:

During a pretrial hearing before the first trial, [appellee's] attorneys advised the court and the prosecution that they planned to show that [appellee] shot [the victim] in self-defense and in defense of Lucy. (Citation omitted). Defense counsel argued that he was entitled to show past bad acts of [the victim] as evidence of why Lucy was "terrified" of [the victim] and why [appellee] had a reasonable belief that use of deadly force was necessary that day [when appellee shot the victim five times in the back with a .38 revolver in the driveway of Lucy's home]. Defense counsel told the trial court that he planned to show that Lucy wanted to end her relationship with [the victim]; that [the victim's] behavior had grown increasingly aggressive toward Lucy due to his use of anabolic steroids; that [the victim] had grown increasingly jealous; that [the victim] had choked Lucy; that [the victim] had wire-tapped her telephone; that [the victim] had made threats to kill Lucy and her family if she left him; that Lucy had asked [appellee] and his wife to stay with her the night before the shooting because [she] was afraid of [the victim].

State v. Masonheimer, 154 S.W.3d 247, 250 (Tex.App.-Eastland 2005).

Appellee's first trial in December 2002 was before a jury. Soon after appellee's first trial began, the defense discovered during its cross-examination of a State's witness, Timothy Marshall, that the State had failed to disclose a statement that Marshall made to the police shortly after the offense (the Marshall statement). In this statement, Marshall, who was a neighbor of Lucy's, told the police that appellee told him minutes after the shooting that the victim "had threatened his daughter and it was either him or her." Appellee moved for a mistrial, but the trial court granted appellee a continuance and ordered the State to reexamine its file for exculpatory evidence that should be disclosed to the defense.² The trial court later granted another defense-requested mistrial "in the interest of justice" because a death in the family of one of the prosecutors caused the trial court to extend the continuance. Appellee's first trial, therefore, ended in a defense-requested mistrial in part because of the State's failure to disclose the Marshall statement. Soon after this, the lead prosecutor (Harper) left the district attorney's office to become a County Court-at-Law Judge.

Joiner, the assistant prosecutor in the first trial, became the lead prosecutor in the second trial. During a pretrial conference prior to the second trial, Joiner disclosed to the defense a statement from Lucy's ex-husband Billy Glenn Williams (the Williams statement) that also had not previously been disclosed to the defense. The Court of Appeals' opinion summarizes the Williams statement:

At a pretrial conference prior to the second trial, defense counsel expressed his concern that all exculpatory evidence had not been provided by the State. Although the new lead prosecutor represented to the trial court that all exculpatory evidence had been provided, he agreed to provide defense counsel with a statement given by Billy Glenn Williams, Lucy's ex-husband. In that statement, Billy Williams related that Lucy had asked him to keep their children during the afternoon of the day before [the victim] was shot; that, when he called Lucy around 6 p.m., she "broke down and told me about the trouble she had been having with [the victim]"; that Billy told her to go to the police and get a restraining order; that Lucy told him that she thought [the victim] had put dirt in her car's gas tank; and that Lucy was upset when they finished the telephone conversation.

Masonheimer, 154 S.W.3d at 252.³

Appellee subsequently pled nolo contendere to the murder charge without an evidentiary stipulation, requiring the State to present evidence establishing appellee's guilt. See Article 1.15, TEX.CODE CRIM. PROC.⁴ During this proceeding (or second "trial") before the trial court in April 2003, Joiner disclosed to the defense more previously undisclosed evidence. This undisclosed evidence was a statement from one of the victim's friends (Upchurch), which prompted another mistrial motion by appellee. The Court of Appeals' opinion summarizes this evidence (the Upchurch statement):

Upchurch was the first witness called by [appellee] in support of its [mistrial] motion. Upchurch, a friend of [the victim's], testified that he had helped remove [the victim's] belongings from the apartment after [the victim's] death. Upchurch took five old Coke machines to a store in Baird to be sold on consignment. The owners of the store, Mark and Tricia Duque, had known [the victim] and had sold Coke memorabilia for him in the past. Upchurch said that he, Mark, and Tricia had opened one of the Coke boxes and discovered several "syringes with orange caps" and small cardboard boxes. Upchurch asked Tricia, a practicing nurse, what the boxes were, "and she said steroids." Upchurch told Tricia to throw the syringes and boxes away because he did not want [the victim's] ex-wife to know that [the victim] had kept steroids.

Masonheimer, 154 S.W.3d at 253.⁵

In July 2003, the trial court held a hearing on appellee's mistrial motion. Testimony was presented at this hearing that the lead prosecutor (Judge Harper) in the first trial and his investigator (Clappart) were aware of the Upchurch statement prior to the first trial. See also id. Clappart testified that he and Harper interviewed Upchurch before the first trial, and, during that interview, Upchurch made the above-summarized statement. Clappart also testified that he made notes of his interviews with the Duques and that he believed that he gave these notes to Harper. None of this information, including Clappart's notes, were in the State's file. Clappart did not believe that Joiner (the second prosecutor) knew about the Upchurch statement. Harper testified that he did not recall receiving the information contained in the Upchurch statement.

Q. [APPELLEE'S COUNSEL]: Well, do you understand that both [sic] John Upchurch has testified that you were there and You're the one he was directing this information to; Steve Clappart has also testified you were there and that you were the one that the information was directed to; that after—that he was making notes, he thinks, at the time; that when he had conversations with these other two people that confirmed the Upchurch version, that he went back and told you that that's what the people had said, and he thinks he gave you his notes about that. Does that jog your memory?

A. [HARPER]: That Steve gave me his notes?

Q. Yeah. Or at least told you about it. It's his opinion he gave you the notes. He can't specifically say he gave you notes; he told you about it.

A. I don't recall that, but if that's true, then, yes, it should have been given to you.

* * *

Q. Assuming again the scenario that I'd asked you to assume earlier in the testimony of what Mr. Upchurch and Mr. Clappart have testified to, and based upon your testimony and your notes, assuming that is the meeting—

A. That—

Q. —the one thing we know is, either Mr. Clappart and John Upchurch are lying to the Court, or you intentionally didn't write those things down. Would you agree with that?

[JOINER]: Objection, Your Honor. Speculation.

Q. Well, what other option do you see?

A. I know that Mr. Joiner visited with witnesses independently, I know that Mr. Clappart visited with witnesses independently I know that on occasion I visit with witnesses independently. I don't know if they visited and they discussed that or not. I know that on this occasion this is what we talked about.

Q. Are you just baffled about how all this happened, Judge?

[JOINER]: Object, Your Honor. Argumentative.

[APPELLEE'S COUNSEL]: I don't mean to be argumentative.

[TRIAL COURT]: Overruled.

Q. Are you just baffled about how we got in this position with Upchurch and Clappart saying they told you, you admitting that it—we should have had it on discovery, and everybody conceding we didn't get it.

A. That's correct. You—if—You should have gotten it. Even if I did not know about it, Mr. Burke, we're presumed to know the information that our officers have taken notes, police officers; even if we in good conscience didn't know about it, as I understand the law, we're supposed to give it to you. That's what I'm saying.[⁶]

Joiner testified at the hearing on appellee's mistrial...