State v. Lee

• Decision Date: 12 April 2000
• Citation: 15 S.W.3d 921
• Parties: (Tex.Crim.App. 2000) THE STATE OF TEXAS, v. DAVID ALLEN LEE, Appellee NO. 168-98
• Court: Texas Court of Criminal Appeals

Page 921

15 S.W.3d 921 (Tex.Crim.App. 2000) THE STATE OF TEXAS,
v.
DAVID ALLEN LEE, Appellee NO. 168-98 COURT OF CRIMINAL APPEALS OF TEXAS. April 12, 2000.

ON STATE'S PETITIONS FOR DISCRETIONARY REVIEW FROM THE FIFTH COURT OF APPEALS, COLLIN COUNTY

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OPINION

MEYERS, J., delivered the opinion of the Court, joined by Mansfield, Price, Womack and Johnson. Keasler, J., delivered a concurring opinion, joined by McCormick, P.J. and Keller, J. Holland, J., not participating.

Appellee was charged with the offense of indecency with a child. He pled not guilty and a jury was empaneled and sworn. During her opening statement to the jury, the prosecutor made the following assertions:

The evidence will be that early on in the investigation, Detective Raleeh, before any charges were filed, while the case was still being investigated, called [appellee] and said, I have - there are some charges, a complaint has been filed against you, and I'm interested in talking to you about it.

And [appellee] said that he wasn't interested in talking about it and to call his attorney, Craig Jett, and gave him the phone number.

Appellee objected to the statements on the grounds that they were improper comments on appellee's invocation of his right to counsel and his right to remain silent. The trial court sustained appellee's objections and granted his motion for a mistrial. The State attempted to retry appellee pursuant to the same indictment. Appellee filed a pretrial application for writ of habeas corpus, claiming double jeopardy prevented the State from retrying him. The trial court held a hearing on the application and ultimately granted relief pursuant to Bauder v. State, 921 S.W.2d 696 (Tex. Crim. App. 1996) ("Bauder I"), dismissing the indictment with prejudice.

The State appealed, arguing the trial court erred in barring retrial based on double jeopardy. The Court of Appeals affirmed. State v. Lee, 971 S.W.2d 553 (Tex. App.--Dallas 1997). The State argues Bauder I was not correctly applied by the Court of Appeals.¹ The State maintains

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that the Court of Appeals applied the wrong law in determining whether the prosecutor's comments were error, that the prosecutor's statements were not error, and even if they were error, any error could have been cured by an instruction to disregard, and finally, that the statements were not made deliberately or recklessly.

In Bauder I, we held that

. . . a successive prosecution is jeopardy barred [under the Texas Constitution] after declaration of a mistrial at the defendant's request, not only when the objectionable conduct of the prosecutor was intended to induce a motion for mistrial[, the Fifth Amendment standard under Oregon v. Kennedy, 456 U.S. 667 (1982),] but also when the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request.

Bauder, 921 S.W.2d at 699. We subsequently clarified that the critical questions to be addressed in this context are:

. . . on the one hand, whether the appellant's motion for mistrial was a choice he made in response to ordinary reversible error in order to avoid conviction, appeal, reversal, and retrial. Or, on the other hand, was he required to move for mistrial because the prosecutor deliberately or recklessly crossed "the line between legitimate adversarial gamesmanship and manifestly improper methods" . . . that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it?

Ex parte Bauder, 974 S.W.2d 729, 732 (Tex. Crim. App. 1998) ("Bauder II").

The Court of Appeals held the prosecutor's statements amounted to error:

[T]he prosecutor's statement was clearly improper because it constituted a comment on appellee's invocation on his right to counsel. See Hardie v. State, 807 S.W.2d 319, 322 (Tex. Crim. App. 1991) (holding evidence of accused's invocation of right to counsel inadmissible as evidence of guilt); Rezac v. State, 722 S.W.2d 32, 33 (Tex. App.--Dallas 1986) (holding that invocation of constitutional right to counsel may not be relied on as evidence of guilt), rev'd on other grounds, 782 S.W.2d 869 (Tex. Crim. App. 1990); see also TEX. CODE CRIM. PROC. ANN. art. 38.38 (Vernon Pamph. 1998) (noting that prosecutor in criminal case may not comment on fact that defendant has retained attorney).

Lee, 971 S.W.2d at 556. The court further concluded the error was so prejudicial it could not have been cured by an instruction to disregard. Id. Finally, the court upheld the trial court's conclusion that the prosecutor "was aware [of] but consciously disregarded the risk that an objectionable event for which [she] was responsible would require [the] mistrial." Id.

While the Court of Appeals held that the prosecutor's statement was an improper comment on appellee's invocation of his right to counsel, a closer look reveals that it was not an effort by appellee to invoke his right to counsel:

. . . [appellee] said that he wasn't interested in talking about it and to call his attorney, Craig Jett, and gave him the phone number.

Appellee was not asking for his attorney; rather, appellee was expressing his desire not to talk to Raleeh and dismissed Raleeh by referring him to his attorney. The statement is most accurately viewed as an

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attempt by appellee to convey his desire to remain silent.²

The question under Bauder II, then, is whether, on the one hand, admission, as substantive evidence of guilt,³ of a defendant's prearrest and pre-Miranda silence, in the face of questioning by police during the investigation of a crime in which the defendant is a suspect, is "ordinary reversible error." Or, on the other hand, in commenting on such evidence, did "the prosecutor deliberately or recklessly cross[] 'the line between legitimate adversarial gamesmanship and manifestly improper methods' . . . that rendered trial before the jury unfair to such a degree that no judicial admonishment could have cured it?" See Bauder, 974 S.W.2d at 732. The Court of Appeals held the prosecutor acted recklessly in making the comments.⁴ But the Court of Appeals failed to take into account the appropriate substantive law when assessing the prosecutor's mental state. The question of a defendant's prearrest, pre-Miranda silence is one of first impression for this Court and one on which the federal curts of appeals are split.⁵ In view of this state of the law, the

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prosecutor's actions could not have been intentional or reckless.

We have explained what is meant by intentional and reckless conduct in this context. A prosecutor acts intentionally when:

. . . believing that he cannot obtain a conviction under the circumstances with which he is confronted, and given the admissible evidence then at his disposal, deliberately offers objectionable evidence which he believes will materially improve his chances of obtaining a conviction, and the law considers the prejudicial effect of such objectionable evidence to be incurable even by a firm judicial admonishment to the jury[,]

or when:

. . . the objectionable conduct of the prosecutor was intended to induce a motion for mistrial . . ..

Bauder, 921 S.W.2d at 699. A prosecutor acts recklessly when:

. . . the prosecutor was aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request[,]

[when] . . . he is aware [his conduct] is reasonably certain to result in a mistrial[,]

[or when he is] . . . aware that his conduct creates a risk that a mistrial is reasonably certain to occur, [but] consciously disregards that risk . . .

Id. Thus, in order for a prosecutor's offer of evidence to be viewed as an intentional or reckless act within this context, he must have either (1) "believe[d the evidence would] materially improve his chances of obtaining a conviction, and the law considers the prejudicial effect of such objectionable evidence to be incurable even by a firm judicial admonishment to the jury[;]" or (2) been "aware but consciously disregarded the risk that an objectionable event for which he was responsible would require a mistrial at the defendant's request" or have been aware but consciously disregarded the risk that a mistrial would be "reasonably certain" to occur as a result of his conduct.

The prosecutor in this case believed that because appellee was not under custodial interrogation, the evidence was admissible.⁶ This was a legitimate view of the law as interpreted by some federal courts, including the Fifth Circuit. Oplinger, 150 F.3d at 1067 ("[p]rior to custody or indictment here, the government made no effort to compel [the defendant] to speak [and therefore] the constitutional privilege against compelled self-incrimination did not come into play"); Zanabria, 74 F.3d at 593 (holding prosecutor's comment on defendant's prearrest silence did not violate 5th amendment); Rivera, 944 F.2d at 1568 ("government may comment on a defendant's silence if it occurred prior to the time that he is arrested and given his Miranda warnings") . Given that the law on this constitutional issue had not been addressed by the United States Supreme...