Scott v. State

• Decision Date: 12 May 2005
• Docket Number: No. 03-03-00109-CR.,03-03-00109-CR.
• Parties: Michael SCOTT, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Supreme Court

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165 S.W.3d 27 Michael SCOTT, Appellant,
v.
The STATE of Texas, Appellee. No. 03-03-00109-CR. Court of Appeals of Texas, Austin. March 24, 2005. Rehearing Overruled May 12, 2005.

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M. Ariel Payan, Austin, for Appellant.

C. Bryan Case, Jr., Asst. Dist. Atty., Austin, for State.

Before Chief Justice LAW, Justices PATTERSON and PURYEAR.

OPINION

DAVID PURYEAR, Justice.

A jury convicted appellant Michael Scott of capital murder. See Tex. Pen.Code Ann. § 19.03(a)(2) (West Supp.2004-05). The district court sentenced him to life imprisonment after the jury found that there was not a probability that he would commit criminal acts of violence that would constitute a continuing threat to society. See Tex.Code Crim. Proc. Ann. art. 37.071, § 2(b)(1) (West Supp.2004-05).¹

Scott brings forward three points of error challenging the sufficiency of the evidence to sustain the guilty verdict. In five points of error, he contends the court erred by admitting in evidence statements that he and another party to the offense made to the police. Scott's remaining points of error assert that the court erred by admitting irrelevant and unfairly prejudicial evidence offered by the State, excluding expert testimony offered by the defense, and failing to instruct the jury on the law of accomplice witness testimony. We sustain Scott's contention that the admission of the other party's statement violated his Sixth Amendment confrontation right, but we overrule all of his remaining points of error. Because we determine beyond a reasonable doubt that the Sixth Amendment error did not contribute to the

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conviction, we affirm the district court's judgment.

Background

The Yogurt Shop Murders

On Friday, December 6, 1991, the owner of a party-supply store in a northwest Austin strip mall was working late when he heard sounds that seemed to come from the roof, followed by popping noises. He looked outside and saw smoke coming from the front of the frozen yogurt shop next door to his store. Smoke was also entering his store, so he opened the back door for ventilation. He noticed that the back door of the yogurt shop was partially open, and he could see flames inside. At that moment, a police officer drove into the alley behind the stores, saw the fire, and reported it. The time was 11:47 p.m.

The first firefighters to arrive at the yogurt shop found the front door locked, but they were able to open it with little difficulty. The shop was dark and full of smoke. The firefighters began to extinguish the blaze, which was worst in the rear of the shop. As they worked their way to the back of the building, they discovered four bodies later identified as those of seventeen-year-old Eliza Thomas, an employee of the yogurt shop; Thomas's coworker Jennifer Harbison, who was also seventeen; Jennifer's fifteen-year-old sister, Sarah Harbison; and Sarah's thirteen-year-old friend, Amy Ayers. Amy was planning to spend the night with Sarah, and the two younger girls had walked to the yogurt shop from Northcross Mall, a nearby shopping mall, to wait for a ride home with Jennifer.

The space occupied by the yogurt shop was deep and narrow. The front two-thirds of the space was the public area, with tables and a counter on which the cash register was located. On the night in question, the chairs had been stacked on the tables as part of the closing routine. Behind the counter was a wall with a door on the right-hand side that opened into the rear third of the shop. A person walking through this door entered a preparation area with a sink and table; the cash register drawer was found on this table. On the right wall of this area were the bathrooms; on the opposite wall was a walk-in cooler. Behind the cooler, in the left rear corner of the shop, was a storage area with shelves full of paper goods and cleaning materials. In the right rear corner was the shop's office, the door of which was closed.

Amy Ayers's body was found on the floor of the preparation area. She had a ligature around her neck and it was determined at autopsy that she had been manually strangled, but not fatally. She also had a bruise on her lower lip. She was naked, and a blouse tied into a knot was found beneath her body. Ayers had two contact gunshot wounds, one on the top left side of her head and the other behind her left ear. The first of these was caused by a .22-caliber bullet which did not penetrate the skull; the medical examiner testified that this shot was not fatal. The second, fatal gunshot wound was caused by a.380-caliber bullet that passed through the brain and exited through Ayers's right cheek.

The other three bodies were found on the floor of the storage area, covered with rubble from the fire. Eliza Thomas's body was lying on top of Sarah Harbison's body, and Jennifer Harbison's body was lying beside them. They, too, were naked. The evidence suggests that the three bodies had been stacked, and that Jennifer's body had rolled off the pile during the fire. All three bodies were badly burned and charred, with Jennifer's having been most severely damaged. Thomas's hands were

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tied behind her with a brassiere and she had a gag in her mouth. Sarah Harbison's hands were tied behind her with panties and she also had been gagged. There was physical evidence that she had been vaginally assaulted, probably with the handle of the ice cream scoop found on the floor between her legs. Jennifer Harbison's hands were behind her back as if they had been tied, but no binding was recovered. She had a ligature around her neck. Each of these girls had been killed by a single .22-caliber contact gunshot to the back of the head.

Four .22-caliber bullets were recovered from the bodies during autopsy. Due to the condition of the bullets, it was not possible to determine if all four had been fired from the same weapon. A .380-caliber bullet and a .380-caliber shell casing were recovered at the scene of the murders. The unusual rifling pattern on the .380 bullet led a firearms expert to conclude that it was fired from an AMT Backup, a small silver-gray semiautomatic pistol. The murder weapons were never found.

Melvin Stahl, an arson investigator for the Austin Fire Department, initially concluded that the fire at the yogurt shop had been started on the shelves in the storage area and then had spread up the wall, across the ceiling, and down the opposite wall. Under this theory, the bodies had been burned primarily by radiant heat. Marshall Littleton, a special agent with the Bureau of Alcohol, Tobacco, and Firearms, reviewed the photographic evidence in October 1999. Based on his analysis of the burn patterns, the damage to the bodies, and the relative amount of damage to other items in the area, Littleton concluded that the fire had begun on the bodies, in the center of the storage area. Stahl testified that after reviewing Littleton's findings and the evidence on which it was based, he agreed with the conclusion that the fire began on the bodies.

The manager of the yogurt shop described the store's closing routine. One of the girls would first lock the front door, leaving the key in the double-cylinder dead-bolt lock so it would not be misplaced, then stack the chairs and sweep and mop the front service area. Meanwhile, the other girl would take the cash register drawer to the table in the preparation area, count the money and prepare a printed report, then drop the money into a combination safe in the floor. After that, the various food products would be placed in the cooler, and the yogurt machines, serving implements, and storage vessels would be washed. The girls would leave through the front door, relock it, and slide the key under the door in an envelope. After the fire, the key was found still in the front door lock.

The manager testified that the back door of the shop had a dead-bolt lock with a thumb latch on the inside. The manager had the only key to the back door, which ordinarily remained closed and locked. As previously noted, the back door was open on the night of the offenses.

Scott's Statements

Scott was seventeen years old at the time of the murders and shared an apartment with Robert Springsteen, who was also seventeen. Scott and Springsteen were first interviewed by the police in connection with the yogurt shop murders on December 15, 1991. The day before, their friends Maurice Pierce, aged sixteen, and Forrest Welborn, aged fifteen, had been arrested in Northcross Mall after Pierce was seen carrying a loaded.22-caliber revolver.² Scott and his friends

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denied any involvement in the murders. The police, who were overrun with leads regarding the yogurt shop murders, did not pursue this line of inquiry.

In 1998, Austin police detective Paul Johnson organized a task force to reexamine the evidence in the yogurt shop case. One of the leads he decided to reopen was the "Pierce tip." In February of that year, Johnson spoke to Scott, now married and living in Austin, by telephone. Scott gave Johnson a brief, innocent account of his activities on the night of the murders. In September 1999, Johnson assigned Sergeant Ronald Lara to conduct a follow-up interview.

Lara called Scott, who agreed to meet him on September 9, 1999, to give a statement. At 8:30 a.m. that day, Lara and Detective John Hardesty met Scott in the parking lot of Scott's wife's employer. They drove Scott to police headquarters where, at 9:10 a.m., he was taken to a homicide interview room equipped with a hidden videotape camera. Lara testified that he had intended to "spend maybe an hour or two with [Scott] to obtain the information that he had relevant to the Maurice Pierce tip and to move on." The officers soon realized, however, that "things were just not going as normal in the witness interview." They sensed that Scott was "deceiving, was kind of...