Thomas v. State

• Decision Date: 03 June 1992
• Docket Number: No. 69938,69938
• Citation: 837 S.W.2d 106
• Parties: Kenneth Dewayne THOMAS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 106

837 S.W.2d 106

Kenneth Dewayne THOMAS, Appellant, v. The STATE of Texas, Appellee.

No. 69938.

Court of Criminal Appeals of Texas,

En Banc.

June 3, 1992.

Rehearing Denied Sept. 23, 1992.

Richard R. Shreves, Austin, E.X. Martin, III, Dallas, for appellant.

John Vance, Dist. Atty., and Jeffrey B. Keck, Asst. Dist. Atty., Dallas, Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

ORDER

PER CURIAM.

Appellant was convicted of capital murder. See V.T.C.A., Penal Code, Section 19.03(a)(2). After the jury made an affirmative finding on both of the special issues submitted under Article 37.071(b)(1) and (2), the trial court imposed the penalty of death. This case is before us on direct appeal.

Although appellant does not contest the sufficiency of the evidence, a brief recitation of the facts will prove helpful to a consideration of his first three points of error. Sometime between the afternoon of March 15, 1987 and the morning of March 16, Fred and Mildred Finch were brutally murdered in their home in Dallas, Texas. Both victims suffered numerous stab wounds and Fred Finch's dead body was sodomized. Evidently, their attacker had gained entrance by prying out an air conditioning unit from a side window. Appellant's fingerprints were found on the window unit, on the window, on the screen removed from the window, and inside the house. Missing from the residence were a Rolex watch belonging to Mr. Finch, his briefcase believed to contain a large amount of cash, a gun and holster, and numerous items of Mr. Finch's clothing. On the morning of March 16 Lonnie Thomas, appellant's brother, was awakened by appellant who asked him to help him move clothing that was subsequently identified as belonging to Fred Finch. At this time Thomas observed blood on appellant's shirt. Appellant was in possession of a hunting knife, and Thomas saw blood and something that looked like meat on the blade. Appellant was also in possession of Mr. Finch's gun, holster, and Rolex watch. Several other individuals saw appellant in possession of Finch's property on the morning of March 16 and then on March 17, including a woman acquaintance and a cousin. Another cousin, Kathy Renee Johnson, saw appellant in possession of several items of Finch's clothing on March 17 at the home where appellant was staying. Appellant moved the property to the residence of another cousin, and on March 18 Kathy Johnson saw the same property at that residence. Several articles of Finch's clothes had been monogrammed, and when Kathy Johnson, who had heard about the Finchs' murders, saw the initials "FF" on these clothes, she decided that they belonged to Mr. Finch. She helped move the clothing to a dump site, where the items were subsequently recovered by the police. On March 18 she called the Dallas Crime Stoppers Program and talked with someone there for 10 to 15 minutes. The conversation was recorded. Johnson was referred to a police officer with whom she spoke and to whom she gave two statements. On the evening of March 18 appellant and his mother were watching television when a report was aired concerning the murders. At this time appellant admitted to family members present that he had committed the murders. Appellant was arrested that evening.

This appeal is from the conviction and death sentence assessed for the capital murder of Mrs. Finch. ¹ Prior to the trial appellant applied to the District Court for a subpoena duces tecum to compel the production from Dallas Crime Stoppers of any information pertaining to the deaths of Mr. and Mrs. Finch, including the names of informants and the tape recording of Kathy Johnson. ² Appellant's application was quashed on the ground that the requested information was deemed confidential and could not be released without a specific court order from the supreme court pursuant to Tex.Rev.Civ.Stat.Ann., Article 4413(50), Sections 6 and 11 (now V.T.C.A., Government Code, Sections 414.007 and 414.008, for which see below). Appellant sought extraordinary relief in our Court and the Texas Supreme Court. Relief was denied, even though Johnson expressly waived any right to nondisclosure. During trial, after the examination of witness Johnson, appellant properly moved for the production of the tape recording, ³ but the court denied his motion, ruling that the governing statute prohibited production. It appears from the context of appellant's remarks to the court that appellant urged the Court to declare the statute unconstitutional. The Court refused.

In points of error one, two, and three, appellant complains of the actions of the trial court summarized above and asks us to find the Crime Stoppers statute unconstitutional. He argues that he has been denied several rights of constitutional dimension, including the right to effective representation, the right to confront and cross-examine witnesses, and the right to due process of law. The statutes to which appellant refers us, V.T.C.A., Government Code, Sections 414.007 and 414.008, provide as follows:

Section 414.007. Confidentiality of Council Records Council records relating to reports of criminal acts are confidential.

Section 414.008. Privileged Information

(a) Evidence of a communication between a person submitting a report of a criminal act to the council or a local crime stoppers program and the person who accepted the report on behalf of the council or local crime stoppers program is not admissible in a court or an administrative proceeding.

(b) Records of the council or a local crime stoppers program concerning a report of criminal activity may not be compelled to be produced before a court or other tribunal except on the order of the supreme court.

The council to which the statute refers is the Crime Stoppers Advisory Council, a division of the executive branch whose primary function is to promote and assist local crime stoppers programs. A "local crime stoppers program" is defined ⁴ as a private, nonprofit organization which accepts donations and pays rewards for the report of information concerning criminal activity. A local program operates less than statewide and forwards the reported information to an appropriate law enforcement agency.

Appellant has three primary contentions. First, he claims that the statute is unconstitutional in that it denies him a right to effectively cross-examine Kathy Johnson. Possession of the Crime Stoppers tape-recording would, he avers, allow him to completely discredit her trial testimony. Second, appellant claims that access to the names of other informants who contacted Crime Stoppers with information about the Finch's murders might lead to unspecified exculpatory or impeachment material. He claims that failure to release the requested information violates his due process rights. Third, appellant contends that the refusal of Crime Stoppers to release the tape-recording of Johnson vitiates his right to meaningful review of his claims because a copy of the recording was not available for inclusion in the record which was transmitted to this Court.

In reply, the State contends that appellant's right to confront and cross-examine Johnson was not violated because appellant had the unrestricted opportunity to cross-examine the witness at trial. In addition, the State points out that two prior statements of the witness given to the police were available to appellant for purposes of impeachment. If there was a constitutional error, the State contends that it was harmless because major portions of her testimony were corroborated by the undisputed recovery of the property to which she testified and because she was, in fact, available for impeachment through her prior statements to the police.

We first review the relevant constitutional principles and case precedents. The constitutional provisions invoked by appellant are the Sixth and Fourteenth Amendments to the United States Constitution. The Sixth Amendment guarantees to the accused in a criminal prosecution several rights, including the right to confront the witnesses against him (the Confrontation Clause). ⁵ The Fourteenth Amendment provides that no state may deprive a person of life, liberty, or property without due process of law. ⁶ It is in the context of the Sixth Amendment that we discuss whether appellant's right to confront and cross-examine Kathy Johnson was abridged, and it is in the context of the Fourteenth Amendment that we discuss whether appellant's due process rights--in this case, his right to a fair trial--were abridged.

"The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, ⁷ and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40, 53 (1987). Cases involving the Confrontation Clause fall into two broad categories, the first concerning the admission at trial of out-of-court statements, and the second concerning restrictions put on cross-examination by law or the trial court. Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 294, 88 L.Ed.2d 15, 18 (1985). See also Ritchie, 480 U.S. at 51, 107 S.Ct. at 998. Appellant's Confrontation Clause complaint in the instant case falls into the second category.

The seminal case implicated by appellant's complaint in the instant case is Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). In Davis the State moved for a protective order prior to trial to prevent reference to the juvenile record of a crucial prosecution witness. Defendant's counsel, opposing the motion, argued that he wished to refer to the record on cross-examination in order to show that, because the witness was on probation at the time of the offense alleged against the defendant, the witness may have misidentified the defendant out of fear that the witness's probation would be revoked or because the witness wished to shift attention away...