State v. Frye

• Decision Date: 31 December 1992
• Docket Number: No. C14-91-01392-CR,C14-91-01392-CR
• Citation: 846 S.W.2d 443
• Parties: The STATE of Texas, Appellant, v. Cameron Edward FRYE, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 443

846 S.W.2d 443

The STATE of Texas, Appellant, v. Cameron Edward FRYE, Appellee.

No. C14-91-01392-CR.

Court of Appeals of Texas,

Houston (14th Dist.).

Dec. 31, 1992.

Rehearing Denied Jan. 28, 1993.

Discretionary Review Granted (State) May 26, 1993.

Discretionary Review Refused (Appellant) May 26, 1993.

William J. Delmore, III, Houston, for appellant.

Mike DeGeurin, Houston, for appellee.

Before JUNELL, ROBERTSON and DRAUGHN, JJ.

OPINION

DRAUGHN, Justice.

The state appeals the trial court's dismissal of an indictment for prosecutorial misconduct. Two representatives of the District Attorney's office made two separate telephone contacts with appellee and recorded them without notifying his attorney. The trial court found that the appellee was denied his Sixth amendment right to counsel as a result of this behavior, and dismissed the indictment with prejudice. The trial court also found the prosecutor in question in violation of State Bar ethics rules. On appeal, the state brings three points of error, asserting that: 1) no constitutional, statutory, or common law authority exists for such a dismissal; 2) no authority exists for dismissing an indictment on the grounds of the prosecutor's failure to notify defense counsel of grand jury proceedings, and; 3) there is no evidence that such a failure to notify defense counsel occurred. We find that constitutional authority does exist for dismissing an indictment with prejudice on the basis of egregious prosecutorial misconduct, when such misconduct effectively undermines a defendant's Sixth amendment right to counsel such harm cannot be remedied by the mere suppression of the evidence or information obtained thereby. We, therefore, affirm the ruling of the trial court.

In April of 1988 appellee was initially charged by complaint and information with having committed a single misdemeanor offense of theft by upgrading a lower priced "coach" airline ticket to first class. The alleged offense was purportedly committed against Continental Airlines. Attorney James Dougherty appeared on appellee's behalf in this matter. Shortly thereafter, on May 16, 1988, this misdemeanor complaint and information were dismissed upon motion by the state. Explicitly noted on the order as the reason for dismissal was the notation by the state: "[c]ontinuing investigation including this transaction."

At some point, Continental Airlines conducted an internal investigation as to whether appellee was engaged in a broader scheme of fraud involving the upgrading of tickets. During this investigation, Continental employees recorded a telephone conversation, and a meeting between appellee, Continental employees, and airline investigators, respectively. The state alleges that these tapes were accidentally erased while in the custody of the district attorney's office. Nonetheless, it is urged by the state that in these tapes appellee discussed at length the substance of the allegations against him.

On August 5, 1988, the Special Crimes Bureau of the district attorney's office opened a new file on the matter. This file included the abovementioned tape-recordings, as well as letters and other items provided by Continental.

On October 4, 1988, a student intern at the district attorney's office, Ms. Tracy Spoor, contacted appellee by telephone. She secretly tape-recorded the entire conversation concerning the nature of the allegations against appellee, as well as his thoughts and defensive evidence regarding the matter. Ms. Spoor informed appellee that she was a student intern with the district attorney's office and had been assigned his file. She stated that her "understanding" was that Continental Airlines "wanted to make sure they weren't in the wrong" or that the airline was "in violation." She related to appellee that she did not completely understand "what was going on," but was just "wondering if you might be able to meet with me sometime tomorrow afternoon to explain your side of the story." At her persistence, appellee finally agreed to meet with her because he believed the matter to be resolved. After informing Ms. Spoor that he would be out of town on business for several days, appellee informed her that he was represented by Mike DeGeurin. Spoor persisted in asking appellee for a face-to-face meeting, telling appellee that he seemed like a "smart guy" who could "probably help [her] out on it." Appellee specifically asked Spoor if he should first consult with his attorney before attending the meeting. Spoor replied that counsel was welcome, but that "it's no big deal."

As the conversation continued, appellee expressly stated that he did not want to provide the district attorney with any evidence that would be detrimental to him. Spoor responded that she only wanted appellee's help to "figure out" the situation. Spoor also made statements which gave the impression that Continental was considering reinstating mileage credit which was taken from appellee as a result of these allegations. All evidence in the record is contrary to this assertion. Appellee told Spoor that he would agree to a meeting, but preferred a private meeting to one in the district attorney's office. After Spoor's insistence that the meeting take place at the office, appellee initially refused, but finally acquiesced. He told Spoor that he would call his lawyer before attending the meeting, and asked Spoor if she would advise him to do so. She repeated her line about just wanting to clear up her file, to which appellee responded with the explanation of his side of the story. At one point during the conversation, appellee heard a beeping sound and asked Ms. Spoor if the conversation was being tape-recorded, to which she untruthfully responded, "No, it's just my computer." Appellee never met with Spoor following this conversation.

At the hearing on the motion to dismiss the indictment, the proffer of Spoor's testimony revealed that she would testify that her purpose was not to elicit information from appellee during the conversation, but only to set up a meeting as requested by her supervisor. The proffer of evidence also established she would testify that she did not attempt to elicit any kind of information from appellee. The trial judge agreed that she would so testify, but stated that he would not find the testimony about lack of intent to elicit information to be credible. At the hearing, appellee also challenged a subsequent contact made with him by a member of the district attorney's office.

This later contact involved Assistant District Attorney Brian K. Johnson, who was assigned appellee's case in December 1988. After he reviewed the file, Johnson spoke with Ms. Spoor about her conversation with appellee. Subsequently Johnson contacted appellee himself. ¹ When Johnson telephoned appellee, he introduced himself as a prosecutor and informed appellee that he intended to present the case to a grand jury in hopes of obtaining an indictment. However, throughout the conversation, Johnson implied that he was open to appellee's explanation, and that such explanation might influence him with regard to a grand jury referral. The prosecutor informed appellee that he was aware of appellee's conversation with Spoor, but that "we have never really interviewed you or talked to you or gotten your side of the story." He inquired as to whether appellee would desire meeting with Johnson to relate his story.

At this point, appellee informed Johnson that he was represented by attorney Mike DeGeurin in the matter, to which Johnson replied that he was aware that appellee "might have mentioned that to someone." Nevertheless, Johnson continued speaking with appellee about Continental's allegations against him, urging him on with replies such as "uh-huh" and "carry on," in response to appellee's candid explanations regarding the matter. Johnson also interjected questions which encouraged appellee to continue revealing the entire theory of his defense. For example, while discussing the grand jury process, Johnson stated:

... In just about all, like I'm doing right here with you, I try to make some contact with the person who's being--allegations are being brought against to see if there is any explanation that I'm not aware of or any evidence--you may have some evidence or some information that may enlighten me and could be valuable either to me or the grand jury. So I--That's why--and you also have an opportunity for yourself to appear before the grand jurors as well. (Emphasis added).

Johnson also informed appellee that it was probably his (Johnson's) decision as to whether the case would go to the grand jury, as well as to decide who would testify before it. Johnson went on to say:

... A lot of cases we investigate ... to the point where we're satisfied that it's not a criminal matter. We don't even take that to a grand jury. Ah--but this one I think I am going to--or I keep saying I think--and, you know, unless again there was--there's other explanation or anything else to change my opinion but I think this needs to be referred to a grand jury. Again I'm--I'm only dealing obviously from what Continental has--what information they've given us.

... my experience has been it's a lot better to tell people things ahead of time ...

That's a good question. I mean did they upgrade you for any particular reason or ...?

Several times during the conversation appellee repeated that he was represented by counsel. However, in response to the statements and questions discussed above, appellee spoke at length about his mileage credit, his explanation regarding the allegations against him, his personality conflict with a particular Continental employee whom he believed to be responsible for pursuing the matter, and certain evidence he thought he could offer at trial which would illustrate his innocence. After gleaning this information, Johnson finally told appellee that he should have his lawyer contact him. Most of this...