Moland v. State
| Decision Date | 09 February 2012 |
| Docket Number | NO. 01-10-00869-CR,01-10-00869-CR |
| Parties | LARRY E. MOLAND, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Larry E. Moland was charged by indictment with capital murder arising out of the robbery and shooting of Tekayes Stewart. A jury found Moland guilty of capital murder and the court sentenced him to life in prison without the possibilityof parole. See TEX. PENAL CODE ANN. § 19.03(a)(2) (West 2011). On appeal, Moland argues that the trial court erred by excluding witness testimony and by sustaining an objection made by the State during Moland's closing argument, that the punishment assessed was cruel and unusual under both federal and Texas law, and that the statute under which he was sentenced violates the separation of powers doctrine. We affirm.
On October 4, 2009, Stewart, a nineteen-year-old African American male, asked his friend Brent Woods to drive him to purchase firearms, including two AK-47s, from Moland. The gun deal previously had been arranged by Alejandro Rios and Mark Cornman, who met with Moland a few days before the shooting and set up the transaction. On the day of the shooting, Stewart, Woods, and Rios met Cornman and two other men, including Georgy Bikov, in a Wingstop parking lot. Cornman directed Stewart to follow Bikov's car to a nearby apartment complex. When the men arrived at the complex, they waited until Cornman received a call from Moland before Stewart and Cornman walked to an apartment that Moland had once occupied. Woods and Rios remained in the car.
According to Cornman, when he and Stewart arrived at the apartment, Moland was already waiting inside. After Stewart entered the apartment and locked the door behind him, Moland pulled out a gun, showed it to Stewart, andthen used the gun to hit Stewart in the face. Stewart fell backwards and Moland began to shoot Stewart. Cornman testified that he ran from the apartment complex to Bikov's house and waited outside until Bikov arrived. Cornman called Rios and repeatedly stated "he got shot" but did not provide any additional details.
After Cornman's phone call to Rios, Rios and Woods walked to the apartment and saw a group of people standing outside. Woods testified that the bystanders said that they had heard gunshots and that there was a boy wearing a hat in the kitchen. Woods and Cornman went into the apartment and found Stewart, suffering from multiple gunshot wounds and lying on the floor of the kitchen with his pants pulled down. Rios, who was in possession of illegal drugs at the time, fled to the parking lot. According to Rios, when he reached the parking lot he saw both Bikov and Cornman inside Bikov's car. Rios testified that Cornman looked scared and that either during their meeting in the parking lot or later on the phone, Cornman told him that a large African-American man with thick braids started beating Stewart outside of the apartment, and that Cornman heard gunshots as he ran from the apartment. Rios testified that when he spoke to Cornman later in the day Cornman said that he had not seen the shooter's face.
Hector Cruz testified that he was smoking marihuana in the apartment across the hall at the time of the shooting. Cruz testified that after he and his friends heard the shots, they went into the apartment and found Stewart. Cruz testifiedthat Stewart's pants were pulled low when Cruz found him and that Cruz did not touch the body. Although Woods testified that Stewart had over $1,000.00 in his pocket earlier in the day, and Rios testified that he had seen Stewart count a large amount of money and put it in his pocket before the meeting with Moland, no money was found on Stewart's body.
A couple of weeks after the shooting, the police questioned Cornman. Cornman told the police the same story that he initially told Rios: that Stewart had been shot by a 300-pound African-American man with braids, a description that, according to Rios, did not match Moland's appearance. Cornman later identified Moland in a photograph line-up and wrote "the one who shot the guy" next to Moland's picture. At trial, Cornman testified that he initially lied about the appearance of the shooter because Moland had called him after the shooting and threatened to kill Cornman if the shooting was traced back to Moland.
Moland was arrested and charged with capital murder for the death of Stewart in the course of a robbery.
Moland argues that the trial court erred by excluding as hearsay the testimony of a witness, Twauna Collier, who would have testified about statements made to her at the scene by a deaf bystander, which were simultaneously translated from sign language to English by the bystander's young nephew. Citing Saavedrav. State, 297 S.W.3d 342 (Tex. Crim. App. 2009), Moland asserts that the bystander's statements were admissible as an excited utterance or present sense impression and that the translation by the bystander's nephew did not add a layer of hearsay because the bystander authorized the boy to speak for her or adopted him as her agent for purposes of the translation. Moland also claims the exclusion of this testimony violated his Sixth Amendment right to present a complete defense. We address these issues in turn.
We review a trial court's decision to admit or exclude evidence under an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010), cert. denied, 131 S. Ct. 2966 (2011); Saavedra, 297 S.W.3d at 349; Zuliani v. State, 97 S.W.3d 589, 595 (Tex. Crim. App. 2003). A trial court abuses its discretion in this regard if its determination "lies outside the zone of reasonable disagreement." Martinez, 327 S.W.3d at 736.
Hearsay is an out of court statement offered to prove the truth of the matter asserted. TEX. R. EVID. 801. Hearsay statements are not admissible unless they fall under a recognized exception to the hearsay rule. TEX. R. EVID. 802, 803. Tobe properly admissible, each level of hearsay must fall under an exception. See Crane v. State, 786 S.W.2d 338, 353-54 (Tex. Crim. App. 1990).
In the context of translations, the Court of Criminal Appeals has held that an interpreter's translation does not add a layer of hearsay if the interpreter is acting as a "language conduit," translating the statement of one who has authorized him to translate or adopted the interpreter as his agent. Saavedra, 297 S.W.3d at 346. To determine whether the interpreter was acting as an agent, courts consider the following four factors: (1) who supplied the interpreter, (2) whether the interpreter had a motive to mislead or distort, (3) the qualifications and language skills of the interpreter, and (4) whether actions taken subsequent to the translated statement were consistent with the statement. Id. at 348 (citing United States v. Nazemian, 948 F.2d 522, 527 (9th Cir. 1991)). As the Court of Criminal Appeals noted in Saavedra, these four factors go not only to the question of whether the interpreter was acting as an agent and authorized to speak, but also to "the ultimate reliability of the proffered evidence—always a core consideration in fashioning any exception to the general rule against admitting hearsay evidence over objection." Id. at 349. No one factor is either necessary or sufficient to establish an interpreter acted as a language conduit; rather, the factors are related and must be considered together. See Saavedra v. State, No. 05-06-01450-CR, 2010 WL 2028111, at *3-4 (Tex. App.—Dallas May 24, 2010, no pet.) (mem. op., not designated for publication)(citing Saavedra, 297 S.W.3d at 349)). Finally, the proponent of the evidence bears the burden of demonstrating to the satisfaction of the trial court that, after taking these factors into account, the out-of-court translation is admissible. Saavedra, 297 S.W.3d at 349.
Collier lived in the apartment complex where the shooting occurred. She testified that, around the time of the shooting, she saw three men, including Moland, run by her apartment. She also saw a group of men load a two-foot long, black bag into a truck a few hours after the shooting. Shortly after seeing the men with the black bag, while standing on a staircase near the crime scene, Collier was approached by woman who looked upset and whom Collier believed to be deaf. According to Collier, the woman and her nephew, whom Collier estimated was twelve years old, were communicating through sign language. Collier testified that the woman pointed to the same group of men that Collier earlier had seen with the black bag and said, audibly, "that guy." Collier testified that the group to which the woman pointed was comprised of a few Hispanic men and one African American man, but Moland was not among them.
When Moland's counsel sought to elicit additional statements the woman signed to her nephew, as translated by the nephew into English for Collier, the State objected on hearsay grounds. Moland argued that the woman's statementswere admissible as an excited utterance. The State responded that the nephew's translation created a second layer of inadmissible hearsay. The trial court sustained the objection.
In his bill of exception, Moland established through Collier's testimony outside of the presence of the jury that Collier had seen the deaf woman around the apartment complex before. While she had not seen the boy with the woman before that day, she believed the boy was the nephew of the woman because the boy told her so. Collier then related the deaf woman's statements, as they had been translated to Collier by the boy: she and another lady "was passing by and seen [sic] one of the gentlemen with a gun" and "it was a black guy." According to Collier, the woman also...
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