Date: Friday May 30, 2014 8: 46 From



Download 22.23 Kb.
Date conversion21.02.2016
Size22.23 Kb.

From: stephenadoggett@gmail.com

State has 2 snitch jail witnesses who will say defendant confessed crime to them. We have 4 jail cellmates who will say defendant told them he didn't commit crime. How do we get into evidence the jail witness testimony that he didn't commit the crime over the State's hearsay and self-serving objections?



Date: Friday May 30, 2014 - 8:46
From: economidy@att.net
__________________________ 
First of all, use TCCP Art 38.075 to take out the snitches. A motion, findings of fact, conclusions of law, and order, and proposed jury charge on snitches follows. 

Then try to get the prior inconsistent statements in from other inmates. 



MOTION TO SUPPRESS SNITCH TESTIMONY 
  
TO THE HONORABLE DISTRICT JUDGE: 
  
          Defendant ____________ moves the court to suppress the testimony of jail snitch _____________ or any other jail house snitch. Basis for this suppression motion is that Mr. ________’s testimony of what, if anything, defendant  told him about the case is inadmissible under TEX. CODECRIM. P. articles 38.075 and 
38.23.  Basis of the objection is that any statement made to Mr.  is not corroborated as required by article 38.075. If the motion is not sustained, defendant moves the court to charge jurors with a snitch instruction. 
  
Factual Background 
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx 
  
Legal Basis for Motion 
          Article 38.075 was enacted in 2009 and reads as follows: 
                   ART. 38.075.  CORROBORATION OF CERTAIN TESTIMONY REQUIRED. 
                   (a)  A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant’s interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending  to connect the defendant to the offense committed.  In this subsection, “correctional facility” has the meaning assigned by Section 1.07, Penal Code. 
                   (b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was  committed. 
          TEX. PENALCODE§ 1.07(14) defines a “correctional facility” to mean “a place designed by law for the confinement of a person arrested or, charged with, or convicted of a criminal offense” and includes “a municipal or county jail.”  This definition covers the ___ County Adult Detention Center. 
          Only a few appellate cases have involved application of article 38.075.[1]  The most enlightening opinion on article 38.075 comes from Chief Justice Gray of the Court of Appeals in Waco.  Phillips v. State, ___ S.W.3d ___ (No. 10-12-00164-CR, 2014 WL 1998730* 7-9 (Tex. App.–Waco, May 15, 2014)(Gray, C.J., concurring).  This opinion is attached and incorporated into this motion by reference. Chief Justice Gray correctly notes that article 38.075 differs significantly from the statute on accomplices, article 38.14.  He noted that earlier cases, including the instant case of Phillips, lacked a proper objection.  As a result, the testimony of the snitch came into evidence without limitation.  This results in a lack of limits for which the jury could use the sentence.  
  
Relief Requested
          Wherefore, defendant moves the court for a hearing to consider and to suppress the testimony of _______ or any other jail house snitch as to what statement the accused may have made.  In the court denies suppression, the defendant moves the court to instruct jurors with the attached instruction on snitch testimony.  The instruction comes from TEX. CODECRIM. P. articles 38.075 and Phillips v. State, ___ S.W.3d ___ (No. 10-12-00164-CR, 2014 WL 1998730* 7-9 (Tex. App.–Waco, May 15, 2014)(Gray, C.J., concurring).  The definition of “corroboration comes from Adams v. Williams, 407 U.S. 143, 145-46, 92 S. Ct. 1921, 1923 (1972); Brother v. State, 166 S.W.3d 255, 259 n. 5 (Tex. Crim. App. 2005), cert. denied, 546 U.S. 1159, 126 S. Ct. 1172 (2006); Turley v. State, 242 S.W.3d 178, 181 (Tex. App.—Fort Worth 2007); and Ex parte Gilmore, 323 S.W.3d 250, 258 (Tex. App.—Texarkana, pet. ref’d). 
          Defendant prays for findings of facts and conclusions of law. 
  
1.  Phillips v. State           Defense Counsel 
2.  Fof F/CofL                State 
Bar of Texas No.________________ 
3.  Jury Instruction 
  
Certificate of Service 
          I certify that a copy of this motion was filed in the ____ District Court and with the prosecutors in this case on the ___ day of _______, 2014.  

Date: Friday May 30, 2014 - 11:33
From: GVelasquez@epcounty.com

I posted this last week. 

[cid:image001.jpg@01CF7679.08578EB0] 
Greg S. Velasquez 
Assistant Public Defender 
500 E. San Antonio Suite 501 
El Paso, Texas 79901 
915-546-8185 ext. 3553 
gvelasquez@epcounty.com 

From: Greg Velasquez 


Sent: Friday, May 23, 2014 12:07 PM 
To: 'tcdla-listserve' 
Subject: RE: [tcdla-listserve] Limitation of evidence 

Found the following on the Internet: 

1. Motion to Exclude Informant Testimony http://www.nmcdla.org/jdownloads/Motions_Pleadings_Briefs_&_More/Death%20Penalty/mtn_exclude_informant.pdf

2. The Updated Rat Manual - Finding Evidence to Search for and Undermine the Snitch http://www.charlessevilla.com/_pdf/RATmanual.pdf 

3. Chapter 10 - Unreliable Informant Testimony http://www.uah.edu/njones/InfTest.pdf 

4. Defense Responses to Jailhouse Informant Testimony, JuryExpert, Vol. 26 No. 1, Feb, 2014 http://www.thejuryexpert.com/2014/02/defense-responses-to-jailhouse-informant-testimony/ 

5. Sample Cross-Examination of Informant http://defensewiki.ibj.org/images/b/b9/Sample_Cross_of_Informant.pdf  

6. Direct and Cross of Government Cooperator http://defensewiki.ibj.org/images/d/d4/Direct_and_cross_of_government_cooperator.pdf 

7. Preparation For Cross-Examining the Snitch http://www.ncids.org/Defender%20Training/Drug%20Case%20Training/Cross%20Exam%20the%20Snitch.pdf 

8. Preparing for Snitch - Larry S. Pozner http://acdlaonline.com/zoomdocs/presentations/25_Preparing_for_Snitch_Pozner.pdf 

Also look at the following case: 

Phillips v. State, ___ S.W.3d ___ 2014 Tex. App. LEXIS 5316 (Tex.App.-- Waco 2014) 

Aggravated robbery from the 19th District Court, McLennan County. Affirmed. 

1. Jail House Testimony -- Article 38.075 - Must be Corroborated 


Christopher Phillips robbed a beauty shop at gun point and escaped with a purse after being sprayed with mace by one of the customers. About 30-minutes later, a credit card from the stolen purse was used at a food mart and it was caught on a surveillance video. The car at the gas station matched the description given by witnesses to the robbery. Surveillance showed Phillips getting into the passenger seat and Andre Dulin getting into the driver's seat of the car. Several days after the robbery, Dulin was arrested because he had warrants. Officers inventoried his car and found the purse stolen in the robbery. This led to Phillips' arrest. He was convicted by a jury and punishment enhanced with a prior conviction was set at life. Phillips argued the trial court erred by not including an instruction about "how to consider the 'jailhouse testimony of Kavin Diggs and Elroy Slaughter in accordance with" article 38.075 V.A.C.C.P." which states A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant's interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense. Corroboration is not sufficient for the purposes if the corroboration only shows that the offense was committed. Article 38.075 was enacted in recognition that incarcerated individuals have an incentive to provide information against other incarcerated individuals and that it is "imprudent" to convict a person based on an incarcerated informant's statement providing information related to a crime that only declares the crime was committed without additional evidence to substantiate the informant's claim. The parties agreed that if 38.075 applies, the trial court was under a duty to instruct the jury sua sponte according to article 38.075. 
Kavin Diggs testified that he was in jail with Phillips, and Phillips tried to get him to say that he heard Andre Dulin say that Dulin committed the offense by himself. Diggs refused to do so because he had never heard Dulin say anything like that. Diggs stated that he had only heard Dulin and Phillips each say that the other one had committed the robbery. When asked on cross ­examination if Phillips ever asked him to say that Dulin "did this or anything like that," Diggs replied, "No, he ain't never told me to say that Dulin did it." Diggs stated that Phillips "wanted me to speak on something that I don't know nothing about," so Diggs told Phillips, "I'm not going to do that because I don't know anything about it." 
Elroy Slaughter testified that he was in jail with Phillips and that Phillips tried to get him to sign a statement stating that Dulin was "going to try and put the case off on him." Slaughter refused to sign a statement because "I feel like I ain't got nothing to do with it." Slaughter said that he had never talked to Dulin. When asked if he felt like Phillips was trying to get him to lie for him, Slaughter replied that he did feel like that. Slaughter continued, "I feel like he was trying to get me to sign an affidavit so he could clear himself from the case." On cross-examination, however, Slaughter agreed that he told an investigator that Andre Dulin told him that he was mad at Phillips because he thought Phillips was sleeping with his wife and he was going to try to pin this case on him. Phillips argued that the import of Diggs' testimony was that Phillips was trying to get Diggs to commit perjury in order to contradict the testimony of Andre Dulin who had implicated Phillips in the robbery and that the import of Slaughter's testimony was that Phillips was trying to get him to sign a false statement to contradict Andre Dulin who implicated Phillips in the aggravated robbery. Citing Rule 803(24), Phillips argued that his statements to Diggs and Slaughter were against his interest. The State argued that 38.075 was inapplicable because the statements Phillips allegedly made to Diggs and Slaughter were not confessions or admissions. 
Article 38.075, which became effective on September 1, 2009, provides: 
(a) A defendant may not be convicted of an offense on the testimony of a person to whom the defendant made a statement against the defendant's interest during a time when the person was imprisoned or confined in the same correctional facility as the defendant unless the testimony is corroborated by other evidence tending to connect the defendant with the offense committed. In this subsection, "correctional facility" has the meaning assigned by Section 1.07, Penal Code. 
(b) Corroboration is not sufficient for the purposes of this article if the corroboration only shows that the offense was committed. Tex. Code Crim. Proc. Ann. art. 38.075 (West Supp. 2013). Article 38.075 was enacted in recognition that incarcerated individuals have an incentive to provide information against other incarcerated individuals and that it is therefore "imprudent" to convict a person based on an incarcerated informant's statement providing information related to a crime that only declares the crime was committed without additional evidence to substantiate the informant's claim. Senate Comm. On Criminal Justice, Bill Analysis, Tex. S.B. 1681, 81st Leg., R.S. (2009); see Watkins, 333 S.W.3d at 778. If article 38.075 applies, the trial court was under a duty to instruct the jury sua sponte according to article 38.075. See Brooks v. State, 357 S.W.3d 777, 781 (Tex. App.-Houston [14th Dist.] 2011, pet. ref'd) ("Analyzing article 38.075 under case law applicable to similar corroboration requirements, we conclude that the trial court was under a duty to instruct the jury sua sponte according to article 38.075."). 

According to Black's Law Dictionary, "corroborate" means: "To strengthen or confirm; to make more certain." BLACK'S LAW DICTIONARY (9th ed. 2009). It follows then that "the testimony of a person to whom the defendant made a statement against the defendant's interest" must, at a minimum, tend to connect the defendant with the offense committed before that person's testimony can be "corroborated" by "other evidence" tending to connect the defendant with the offense committed. See Tex. Code Crim. Proc. Ann. art. 38.075(a). 



The Court of Appeals held: (1) Article 38.075 did not apply in this case: (a) the testimony of a person to whom the defendant made a statement against the Defendant's interest" must, at a minimum, tend to connect the defendant with the offense committed before that person's testimony can be corroborated by other evidence tending to connect the Defendant with the offense committed; (b) Neither Diggs's nor Slaughter's testimony tended to connect Phillips with the aggravated robbery, See Fernandez v. State, 396 S.W.2d 885, 886 (Tex. Crim. App. 1965) ("We do not agree with the State that appellant's attempt to get two witnesses to testify that they had seen him at a certain location on the day in question constitutes a declaration sufficient to corroborate the testimony of the accomplice witnesses and which tends to connect the appellant with the offense committed.").; (2) the trial court did not err by not including an 38.075 instruction. 


The database is protected by copyright ©essaydocs.org 2016
send message

    Main page