Gochicoa v. Johnson
| Decision Date | 05 September 1996 |
| Docket Number | No. P-95-CA-036.,P-95-CA-036. |
| Citation | 972 F.Supp. 380 |
| Parties | Pedro L. GOCHICOA, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice-Institutional Division, Respondent. |
| Court | U.S. District Court — Western District of Texas |
Philip J. Lynch, Federal Public Defender, San Antonio, TX, for petitioner.
Charles Palmer, Assistant Attorney General, Austin, TX, for respondent.
On this date, this Court considered United States Magistrate Judge Louis Guirola's Proposed Findings of Fact and Recommendations filed on November 13, 1995.
This case involves a state court criminal conviction of Petitioner, Pedro Gochicoa, for felony possession of heroin. The incident in question took place on August 15, 1991, in the City of Pecos, Reeves County, Texas.
On the early evening of August 15, 1991, the Pecos Police Department received a call complaining of a "suspicious person" near an apartment building in Pecos and dispatched an officer to the area. Officer Victor Prieto arrived on the scene and found Petitioner's brother, Jorge Gochicoa, sitting in a parked car. As the officer was speaking to the Jorge, Petitioner Pedro Gochicoa approached the car nervously from an alley, greeted the officer, and told his brother "let's go." Officer Prieto asked the Gochicoas several questions and then let them go.
Immediately after the Gochicoas left, Reeves County Sheriff's Deputy Andy Gomez arrived. He had been dispatched to the area based upon information received from a second call, this one from a confidential informant. The confidential informant had told the Reeves County Sheriff's dispatcher that an individual named Manuel Salcido was in the area selling heroin and that Pedro Gochicoa was in the area purchasing it. At an evidentiary hearing held by this Court, Reeves County Prosecutor David Zavoda testified that the confidential informant was likely one of several individuals working with the Pecos Police Department to "keep an eye on" various suspicious people. Petitioner was one of the individuals being watched.
Deputy Gomez relayed this information to Officer Prieto and the two officers then began searching along the alley for heroin. After a few minutes, a young man, Michael Carrasco, approached the officers. Carrasco had been watching from the window of his house approximately 100 to 150 feet away when Petitioner was walking down the alley. Carrasco told the officers that when Petitioner rounded the corner of a building, he quickly reached into his pocket and made a motion as if he were throwing something to the ground. Based on this information, the police officers were able to locate a small red balloon on the ground filled with nineteen dosage units of heroin.
Petitioner was arrested on August 17, 1991, and indicted in Reeves County, Texas for felony possession of heroin. The indictment also alleged two prior felony convictions for enhancement of punishment purposes. Attorney Ted Painter was appointed to represent Petitioner. At the evidentiary hearing, Petitioner testified that Painter met with him twice, once in the county jail after his arrest and once just before trial began. Painter was not sure how many times he saw Petitioner.
At the time of Petitioner's indictment, the Reeves County District Attorney's Office had an open file policy in criminal cases. Painter testified that he had reviewed the District Attorney's file on this case. The file included Officer Prieto's report that Deputy Gomez urged a search of the alley based upon information he received from a confidential informant. Painter filed a motion for discovery and inspection of evidence on February 7, 1992. He did not file any motion to disclose the confidential informant's identity nor did he file any motions in limine to exclude information of or evidence from the confidential informant.
The file also contained a report by Pecos Police Officer Orlando Orona establishing that Petitioner had been arrested two days after the event in the alley described above. Additionally, Petitioner testified that he told Painter the date of his arrest during one of the two discussions he had with Painter about the case. Painter made no reference to this fact at trial.
Gochicoa entered a plea of "not guilty" to the indictment. The trial was held April 27, 1992, and lasted roughly half a day. The confidential informant was not identified and did not testify at the trial. Several times during the State's presentation of its case in chief, however, the prosecutor made reference to the confidential informant and the information the confidential informant provided regarding Petitioner's purchase of heroin from Manuel Salcido. In the beginning of his opening statement, the prosecutor made the following presentation to the jury:
Deputy Gomez ... pulls up and tells them (Officer Prieto) that he has gotten a tip from a confidential informant concerning the defendant, and they start searching the area where Pedro Gochicoa was coming from for contraband that has been left behind.
(5 S.R. 104.) Painter made no objection to this statement nor did he ask for any prospective relief that the prosecutor be instructed to refrain from further comment about the confidential informant.
During Officer Prieto's direct testimony, the following exchange took place:
...
(5 S.R. 167-68.) Painter did not ask that the answer be stricken or that the jury be instructed to disregard the testimony.
Immediately after this objection, the prosecutor successfully elicited testimony which, in light of Officer Prieto's statement that he had no reason to detain Petitioner, indirectly apprised the jury of the out-of-court assertion by the confidential informant:
(5 S.R. 168.)
On redirect examination of Officer Prieto, the prosecutor again, this time without objection, introduced the confidential informant's telephone message into evidence:
When Deputy Gomez took the stand, the prosecutor acknowledged in open court that the witness could not testify to the confidential informant's statement based upon the court's prior ruling. Indeed, the prosecutor admonished Gomez shortly after his testimony began:
(5 S.R. 200.) Despite this admonishment, the prosecutor then proceeded to elicit testimony based upon the confidential informant's statement:
(5 S.R. 200.) Painter did not object to this line of questioning either.
In his closing presentation, the prosecutor used the confidential informant's assertions to conclusively link Petitioner to the heroin found in the alley:
What do we know by direct evidence? ... We know that Pedro Gochicoa was out at the project on August 15th, 1991, at about five or 5:15 P.M. We know his brother Jorge was waiting for him to come back from where he was at.
We know that when he saw Victor Prieto — Officer Prieto — that Pedro Gochicoa got nervous. We heard that from two different witnesses, Officer Prieto and Michael Carrasco.
We know that Deputy Gomez had information from a confidential informant that Manuel Salcido was in this area in his home selling heroin and that Pedro Gochicoa was buying it at this particular time.
(7 S.R. 247-48.) Further, the prosecutor added:
What this whole thing boils down to, Ladies and Gentlemen, is that you are allowed to use your common sense as a juror in this case.
We know where Pedro was coming from. I know.
(7 S.R. 259.) Painter made no objection to either one of...
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Gochicoa v. Johnson
...Recommendation and Granting Petitioner's Writ of Habeas Corpus Relief Pursuant to Title 28 U.S.C. § 2254, published at Gochicoa v. Johnson, 972 F.Supp. 380 (W.D.Tex.1996). In the Order this Court found that, because the hearsay evidence admitted during Petitioner's trial violated his Sixth ......
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Gochicoa v. Johnson
...to Gochicoa based on violations of the Confrontation Clause via hearsay testimony and related argument. See Gochicoa v. Johnson ("Gochicoa I"), 972 F. Supp. 380 (W.D. Tex. 1996). Concluding that the admission of the hearsay evidence did not violate the Confrontation Clause, we reversed. See......