John Hamilton Leib, Jr. v. State

John Hamilton Leib Jr. v. State

IN THE

TENTH COURT OF APPEALS

No. 10-02-096-CR

     JOHN HAMILTON LEIB, JR.,

                                                                              Appellant

     v.

     THE STATE OF TEXAS,

                                                                              Appellee

From the 87th District Court

Freestone County, Texas

Trial Court # 99-076-CR

                                                                                                               Â

MEMORANDUM OPINION

                                                                                                               Â

      Pursuant to a plea agreement, the court placed John Hamilton Leib, Jr. on deferred

adjudication community supervision for the offense of indecency with a child. On February 25,

2002, the court adjudicated Leib’s guilt and sentenced him to fifteen years’ imprisonment. Leib

filed a general notice of appeal.

      To properly invoke the jurisdiction of this Court over an appeal from a negotiated guilty plea,

an appellant must file a notice of appeal which complies with Rule of Appellate Procedure

25.2(b)(3). White v. State , 61 S.W.3d 424, 429 (Tex. Crim. App. 2001); Tex. R. App. P.

25.2(b)(3). This rule applies with equal force to “an appeal, made either before or after an

adjudication of guilt, by a defendant placed on deferred adjudication who challenges an issue

relating to his conviction.” Woods v. State , 68 S.W.3d 667, 669 (Tex. Crim. App. 2002).

      Leib’s general notice of appeal does not comply with Rule 25.2(b)(3). Accordingly, we

dismiss his appeal for want of jurisdiction.

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                                                                         PER CURIAM

Before Chief Justice Davis,

      Justice Vance, and

      Justice Gray

Appeal dismissed for want of jurisdiction

Opinion delivered and filed October 23, 2002

Do not publish

[CR25]

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Graves was convicted of capital murder and sentenced to death in 1994 for the

capital offense of murdering six people in the same transaction. The

procedural history of Graves’ conviction, post-conviction appeals and writ

petitions is presented in our previous opinions addressing Graves’ application

for certificate of appealability. This court originally granted COA only on

Graves’ Brady claim that the state failed to disclose to Graves that key

prosecution witness and Graves’ co-defendant Robert Earl Carter informed the

district attorney that Graves was not involved in the charged crime on the day

before he testified to the contrary at Graves’ trial. Graves v.

Cockrell, 351 F.3d 143 (5th Cir. 2003) (“ Graves I ”). On rehearing,

this court modified its order and also granted COA on Graves’ claim that the

state’s failure to disclose Carter’s alleged statement implicating his wife in

the crimes violated Graves’ rights under Brady.  Graves v. Cockrell,

351 F.3d 156 (5th Cir. 2003) (“ Graves II ”).  The case was

remanded to the district court

for an evidentiary hearing to determine:

(1) the substance of the alleged statement described above, along with Carter’s

statement allegedly exonerating Graves; (2) whether Graves was aware of these

statements or exercised due diligence to discover these statements; (3) whether

the state’s failure to disclose these statements was material to Graves’

defense under Brady; and (4) for a determination of whether Graves is entitled

to relief on these claims.

Graves II, 351 F.3d at 159. COA was denied on

all other claims.

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On remand,

an evidentiary hearing was held before Magistrate Judge Froeschner who, after

reviewing briefly the facts of the crime, made the following factual findings

in his report and recommendation.

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Carter’s

wife, Cookie, was also indicted for the offense of capital murder. Â Attorneys

Calvin Garvie and Lydia Clay-Jackson, who defended Graves at trial, believed

this indictment to be a sham based on false evidence presented to the grand

jury and obtained only in order to pressure Carter to testify against Graves.  Evidentiary Hearing Transcript (“EHT”) at 129, 168.  Nevertheless, Burleson County

District Attorney Charles Sebesta, who prosecuted Graves, insisted that the

State believed from early on that Cookie participated in the killings and that

all evidence pointed to the involvement of three people. Â Id. at 57, 98. Â Indeed,

the State’s theory from the beginning of the trial was that at least three

people had acted together in the murders. Â Id. at 174. 1 Â Texas Ranger Coffman

testified at trial that his investigation showed “at least three and possibly

four” perpetrators were in the Davis home when the murders occurred.  Trial

Transcript (“TT”), vol. 38 at 3728.

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1 This

theory appears to be based on the number of victims, six, and the number of

murder weapons, three (a gun, knife and hammer), not on any specific physical

evidence.

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Prior to

the beginning of Graves’ trial, the District Attorney’s office had been in

negotiations with Carter and his appellate attorney for Carter’s testimony

against Graves. Â According to Sebesta, no final agreement on the terms had been

reached prior to Carter’s arrival in Brazoria County for Graves’ trial,

although any final plan was to involve the use of a polygraph exam before he

testified.  Id. at 51.  The early discussions also involved Carter’s condition

that the State would not ask him questions about his wife’s role in the

murders. Â Id. at 54.

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Sebesta met

with Carter in the early evening of October 21, 1994. 2 Â According to Sebesta, Carter

almost immediately claimed, “I did it all myself, Mr. Sebesta. I did it all

myself.” Id. at 60.  When Sebesta stated that he knew that was not true

because of the number of weapons used, Carter quickly changed his story and

claimed that he committed the murders with Graves and a third man called “Red.”

 Id. at 61, 94, 95.  Carter had earlier implicated a person named “Red” during

the murder investigation, and the State believed that Theresa Carter may have

been known by that nickname.  Petitioner’s Ex. 9 at 24.  When Sebesta proposed

that “Red” was actually Cookie, Carter denied it and agreed to take a polygraph

exam. Â EHT at 95.

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2 This was the evening of the second day of the

guilt/innocence phase of the trial.

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Since the

polygraph examiner had been out sick that day, he was called to come in to

administer the exam. Â Id. at 96. Â The report states that Carter signed a

polygraph release statement, had the exam explained to him, and then changed

his story once more before the exam was given by stating that he had killed the

Davis family with Graves but without “Red.” Petitioner’s Ex. 9 at tab 4.

 The interviewer then posed the following questions to Carter:  (1) “[W]as your

wife, Theresa, with you [at the time of the murders]?” and (2) “[W]hen you

refer to ‘Red’ in your statement, are you talking about your wife, Theresa?” Id.  Carter answered “no” to both questions.  The polygraph examiner concluded that Carter

was not being truthful in either response. Â Id. Â When the polygraph results

were explained to him, Carter once more changed his story. Â He now admitted

that Cookie was involved in the murders with himself and Graves. Â He also

stated that he had invented the character “Red” but later admitted that Cookie

was sometimes called “Red.” Id.  When Sebesta asked him if Theresa had

used the hammer in the murders, Carter answered “yes.” EHT at 96.

Â

In addition

to the tentative deal to forego questions about Cookie in exchange for

testifying against Graves, the State had also been working on a broader

agreement that would allow Carter to accept a life sentence rather than death

if his case were reversed in appeal. Â This required Carter to testify against

both Graves and Cookie. Â Id. at 67. Â By the time the October 21 meeting

concluded, he had tentatively assented to do so, though no final agreement was

reached. Â Id. at 62, 103, 105. Â The next morning, however, Carter refused to

testify against Cookie and reverted to the initial terms already worked out

with the State. Â Both Carter and Sebesta then accepted the tentative agreement

as the final deal for his testimony.

Â

At the

evidentiary hearing, Garvie denied that he knew before, or at any time during,

trial that Carter had told Sebesta he killed the Davis family himself. Â Sebesta

testified that he mentioned the statement to Garvie on the morning Carter

testified.  Id. at 149.  The Court accepts Garvie’s version of this event based

on his credibility as a witness and as being consistent with his vigorous

defense of Graves at trial. Â Sebesta did reveal part of the polygraph results

on the morning of October 22 when he told the trial judge:  “last night at 8:30

Mr. Carter took a polygraph[,] and the basic question involved his wife,

Theresa. Â It shows deception on that polygraph examination. Â But, obviously, we

can’t go into polygraphs here, but I think counsel is certainly entitled to

know that.” TT, vol. 35 at 3360.  Garvie asked no questions about what

the polygraph involved.  Garvie’s co-counsel testified that it did not occur to

the defense to inquire into Sebesta’s statement because they believed the

indictment against Cookie was unfounded.  EHT at 134. Nor did it fit the

defense’s theory of the case.  According to Ms. Clay-Jackson, the defense

thought that at least two people were involved in the killings but that Cookie

was not one of them. Â Id. at 122. Â The State then called Carter to the stand

and revealed to the jury that he was testifying in exchange for an agreement

that questions would not be asked about his wife. Â TT, vol. 35 at 3429.

Â

Graves ’ habeas attorneys appear to have

first learned of Carter’s statement, “I did it all myself,” in 1998.  On June

19, 1998, Graves’ former attorney took a deposition from Carter in which he

claimed to have acted alone. Â Ex parte Graves, No. 40,812-01 at 97 ff. Â That

statement was excluded from the record by the state court as inherently

unreliable because Graves’ attorney failed to notify the State, as required by

law, in order to allow cross-examination. Â Carter again recanted his trial

testimony in a May 18, 2000, deposition attended by both Sebesta and Graves’ current counsel.  Sebesta later appeared on the Geraldo Rivera show Deadly

Justice on September 3, 2000, and repeated Carter’s self-confession.  Sebesta

stated: “yes, and at that point he [Carter] did tell us, ‘Oh, I did it myself.  I

did it.’ He did tell us that.” Petitioner’s Ex. 1.

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The magistrate judge found that

Sebesta did not reveal Carter’s statement that he committed the murders alone

to the defense and that because Graves’ attorneys had no way of knowing about

the statement, they had no reason to exercise due diligence to discover it.

…

Graves

bases his Brady claims on two suppressed statements the state admits

Carter made on the evening before Carter testified at Graves’ trial—first, that

Carter committed the crimes alone, and second, that Carter’s wife Cookie was an

active participant in the murders.

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No one disputes

that Carter was the state’s star witness.  Graves made no self-incriminating

statements to the police before his trial. Â He testified before the grand jury

denying all involvement and explaining his whereabouts on the night of the

murders. Â The only potentially incriminating statements allegedly made by Graves were heard over the jailhouse intercom system. Â The persons reporting these

statements were effectively cross-examined on the reliability of the intercom

system, their ability to recognize Graves’ voice since his cell could not be

seen from their listening post, and their failure to make contemporaneous

reports of the comments.

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The only

physical evidence tied to Graves that was marginally linked to the crimes was a

switchblade knife brought forward by Graves’ former boss that was identical to

one that he had given to Graves as a gift. Â The medical examiner testified that

the knife wounds on the victims were consistent with that knife or a

knife with a similar blade.  Graves’ medical expert testified that a wide range

of knives with similar dimensions to the switchblade were also consistent with

the victims’ wounds including holes in skull caps of some of the victims.  None

of the murder weapons were recovered. Â Thus, it is obvious from the record that

the state relied on Carter’s testimony to achieve Graves’ conviction.  It is in

this context that the materiality of the suppressed statements must be

examined.

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a. The

suppressed statement by Carter that he committed the crimes alone.

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The

district court found that Graves was not aware of Carter’s statement that he

committed the crime by himself but found that the statement was not material. 4 Â Our original assessment

of this statement was that it “was extremely favorable to Graves and would have

provided powerful ammunition for counsel to use in cross-examining Carter.”Â

Graves I, 351 F.3d at 155. Â Although we did not have a completely

accurate version of the events surrounding the statement at the time of our

original opinion, under the facts as found by the district court on remand we

reach the same conclusion.

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4 District Attorney Sebesta contradicted Graves’ counsel

and testified at the habeas hearing that he told Graves’ defense counsel Garvie

of this statement outside the courtroom the morning after Carter made the

statement. Â The district court did not find Sebesta credible on this point.

Â

Carter’s

statement that he acted alone in committing the murders is particularly

significant because it was the first statement Carter made that implicated

himself without also implicating Graves. Â The only other statement Carter made

pre-trial exculpating Graves was before the grand jury. Â In that statement

Carter claimed that neither he nor Graves was involved in the murders. Â At

trial the state recognized that its case depended on the credibility of Carter

and the prosecutor emphasized Carter’s consistency in his various statements in

naming Graves as an accomplice. In Carter’s grand jury testimony Carter

testified that he only gave Graves’ name to investigators because he was

coerced. 5 Â The

prosecutor explained Carter’s grand jury testimony by pointing out that Carter’s

testimony, that neither he nor Graves was involved, followed threats by Graves. 6  Carter’s suppressed

mid-trial statement exculpating Graves was not coerced and would have undercut

the state’s argument that Carter did not implicate Graves before the grand jury

because Graves threatened him.  The state’s case depended on the jury accepting

Carter’s testimony.  Given the number of inconsistent statements Carter had

given, the state faced a difficult job of persuading the jury that Carter was a

credible witness, even without the suppressed statement. Â Had the defense been

able to cross-examine Carter on the suppressed statement, this may well have

swayed one or more jurors to reject Carter’s trial version of the events.

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5 Â Before the grand jury, Carter testified as follows:

I couldn’t

harm anybody, but during interrogation, between seven and eight hours or so, I

was told that they got enough evidence on me to give me the death penalty. Â I

know I haven’t done anything wrong. I know I wasn’t in Somerville like they

say I was.  They say they know that I didn’t do it, but I know who did it and they

wanted me to give a name so I tried to tell them that I don't know anybody.

And by

being pressured, being hurt, confused and didn’t know what to think, I said

Anthony Graves off the top of my head.

Â

6 After eliciting testimony from Carter that Graves had

threatened him physically and verbally while they were housed in the Burleson

County Jail, the following exchange took place between Sebesta and Carter as

Carter testified at Graves’ trial:

Sebesta: Â What did you do when you

went to the Burleson County grand jury?

Carter: Â Lied.

Sebesta: Â Why did you lie?

Carter: Â Because I was afraid.

Sebesta: Â How did you go about lying

to them?

Carter: Â Saying that I made up the

whole story, that it didn’t take place.

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Perhaps

even more egregious than District Attorney Sebesta’s failure to disclose Carter’s

most recent statement is his deliberate trial tactic of eliciting testimony

from Carter and the chief investigating officer, Ranger Coffman, that the D.A.

knew was false and designed affirmatively to lead the jury to believe that

Carter made no additional statement tending to exculpate Graves. Â District

Attorney Sebesta asked Carter to confirm that, with the exception of his grand

jury testimony where he denied everything, he had always implicated Graves as being with him in committing the murders. Â Carter answered in the affirmative. Â Sebesta

also asked Ranger Coffman, after Carter testified, to confirm that all of

Carter’s statements except the grand jury testimony implicated Graves. Sebesta also confirmed through Ranger Coffman that he understood his obligation to

bring to the prosecutor's attention any evidence favorable to the defense.

Although there is no factual finding regarding whether Ranger Coffman knew of

Carter's statement that he committed the crimes alone, Sebesta clearly knew of

the statement and used Ranger Coffman as well as Carter to present a picture of

Carter's consistency in naming Graves that Sebesta clearly knew was false.

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b. The suppressed statement by Carter

that Cookie was an active participant in the murders.

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The state

stipulated that Carter told Sebesta, “Yes, Cookie was there; yes Cookie had the

hammer.” This statement was also made the night before Carter testified

in Graves’ trial.  Sebesta did not inform Graves’ counsel of this statement.  He

did disclose to the court and counsel that Carter had failed a polygraph

regarding Cookie’s involvement. 7  The

district court found that after hearing about the polygraph, Graves did not

exercise due diligence to discover the substance of the statement. Â The

district court also found that the statement was not exculpatory because it did

not exculpate Graves.  Rather it was consistent with the state’s three person

theory, that the crime was committed by Carter, Cookie and Graves. Â We disagree

on all points.

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7 Sebesta

made the following statement: “There is something I need to put on the record

from a[sic] exculpatory standpoint. Â It cannot be used, but last night at 8:30

Mr. Carter took a polygraph and the basic question involved his wife, Theresa. Â It

shows deception on that polygraph examination.  But, obviously, we can’t go

into polygraphs here, but I think Counsel is certainly entitled to know that.”

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Due

Diligence?

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The

district court found that Sebesta’s in-court statement “was not so vague in light

of the surrounding circumstances that they should not have inquired about it

further.” However, Sebesta’s statement did not reveal or even imply that

Carter gave a statement affirmatively naming Cookie as an active participant in

the murders. Â The defense had specifically requested any information related to

any party, other than Graves and Carter, who the state alleged was involved in

the crime. Â They had no evidence that Cookie was involved in the crime and

viewed her indictment as a tool to get Carter to testify. Â This assumption was

confirmed by Sebesta’s discovery response.  Sebesta’s response to the defense’s

discovery request was that “there were some names that were given” to the

State, but that “[t]hey’re not necessarily parties to the crime but they are

people who may have—may possibly have some information on those.”

 Sebesta’s questioning of Carter at Graves’ trial about Cookie’s

involvement also reinforced defense counsel’s belief that she was involved, if

at all, after the crimes were committed.  In Sebesta’s questioning of Carter,

Sebesta asked Carter to confirm their agreement that he would not ask any

questions about his wife and to confirm that he had “not asked [him] any

question about what she may or may not know about it.”  When the defense

cross-examined Carter, they asked about Cookie’s whereabouts and who possessed

the hammer.  Carter’s testimony was obviously different than the statement he

gave Sebesta the previous night that Cookie was there and Cookie had the

hammer.

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We disagree

with the district court’s conclusion that the defense did not exercise due

diligence to discover the statement regarding Cookie’s involvement in the

crimes. Graves’ counsel had specifically requested the information disclosed in

the statement. We view Sebesta’s statement regarding the polygraph, his

discovery responses and questioning of Carter as misleading and a deliberate

attempt to avoid disclosure of evidence of Cookie’s direct involvement.  At a

minimum, Sebesta’s minimal disclosure was insufficient to put the defense on

notice to inquire further, particularly in light of the state’s discovery

disclosure.

Â

Exculpatory?

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Graves next

challenges the district court’s conclusion that the statement regarding Cookie’s

involvement is not exculpatory because the statement implicated Graves as well. [ ] Â The district court

found that the statement is not exculpatory because it implicated Graves based on the government’s three person theory.  It also found that the statement

would have contradicted the testimony of one of Graves’ witnesses, Tametra Ray,

who testified that Cookie was home at the time of the murders. Â Again, we

disagree.

Â

The

statement regarding Cookie’s direct involvement in the crime is exculpatory for

several reasons.  First, each party’s theory about how many people were

actively involved in the crime is just a theory based on the number of people

killed and the number of weapons used. Â The defense had submitted that two

people were probably involved and had specifically requested any information

related to any party, other than Graves and Carter, who the state alleged was

involved in the crime. Â Although Cookie had been indicted, the defense viewed

the indictment as a tool to pressure Carter into testifying. Â As we noted in

our prior opinion, “if Graves had been furnished with Carter’s statement, it

could have provided him with an argument that those two persons were Carter and

his wife rather than Carter and Graves.” Graves II, 351 F.3d at

159.  Also, Carter’s statement, placing Cookie directly at the scene and

actively involved in the murders, puts his deal with the state to testify only

on the condition that he not be questioned about Cookie’s involvement in a

different light. Â It provides a stronger argument to Graves that Carter was

lying about Graves’ involvement to save Cookie.

Â

The

district court did not reach the issue of materiality of the statement. Â That

issue will be discussed in the following section regarding the effect of the

two statements considered together.

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c. The

statements considered together?

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The sole

remaining issue under Graves’ Brady claim is whether, considered

together, the two statements—Carter’s claim that he did it himself and Carter’s

statement directly implicating his wife Cookie in the murders—are material.  We

conclude that they are. Â If both statements had been timely furnished to

Graves, he could have persuasively argued that (1) the murders were committed

by Carter alone or by Carter and Cookie; and (2) Carter’s plan from the

beginning was to exonerate Cookie, but a story that he acted alone was not

believable, so he implicated Graves so the prosecution would accept his story

and decline to prosecute Cookie.

Â

The state

argues that the combined statements are not material because they are

inconsistent and could have been damaging to Graves if the jury believed that

the most credible account of the murders involved three killers, Carter, Cookie

and Graves.  The problem with the state’s argument is that it analyzes the

significance of the suppressed evidence against a backdrop of how the defense

presented its case at trial without the suppressed statements. Â If the two

statements had been revealed, the defense’s approach could have been much

different (as set forth above) and probably highly effective.

. . .

Because the

state suppressed two statements of Carter, its most important witness that were

inconsistent with Carter’s trial testimony, and then presented false,

misleading testimony at trial that was inconsistent with the suppressed facts,

we have no trouble concluding that the suppressed statements are material. Â Carter

made several inconsistent statements throughout the investigation and pre-trial

period. Â In some he denied all involvement, in some he implicated himself and

Graves, and then, just before he testified against Graves, he gave the

statements at issue in this appeal accepting full responsibility as the sole

murderer and another statement placing his wife Cookie as an active participant

in the murders. Â If the defense had known about the statement placing Cookie at

the scene and given Carter’s continuing condition that he would only testify if

he were not asked about Cookie's involvement, the defense could have explained

every statement implicating Graves as a means of protecting Cookie. Â As

indicated above, these statements are particularly important in this case

because Graves’ conviction rests almost entirely on Carter’s testimony and

there is no direct evidence linking him with Carter or with the murder scene

other than Carter’s testimony.  In addition, Carter’s statement that he

committed the crimes alone is important as the only statement he made

exculpating Graves while implicating himself. The combination of these facts

leads us to conclude “that the favorable evidence could reasonably be taken to

put the whole case in such a different light as to undermine confidence in the

verdict.”  Kyles, 514 U.S. at 435 , 115 S.Ct. 1555 . Stated

differently, disclosure of the statements “would have resulted in a markedly

weaker case for the prosecution and a markedly stronger one for the defense.”Â

Id. at 441, 115 S.Ct. 1555 .

Â

For the

foregoing reasons, the judgment of the District Court is reversed and the case

is remanded with instructions to grant the writ of habeas corpus unless the

state proceeds to retry petitioner within a reasonable time.

Â

Graves, 442 F.3d at 336-45 (footnote 8 omitted).

Â

Extension of Kennedy an Open Question

Â

Masonheimer held that the Oregon v. Kennedy standard barred retrial “under

the unique circumstances of that case” because the State had intentionally

failed to disclose exculpatory evidence with the specific intent to avoid the

possibility of an acquittal. Masonheimer, 220 S.W.3d at 507. The Masonheimer

court reasoned that “in a case like this, a defendant suffers the same harm as

when the State intentionally ‘goads’ or provokes the defendant into moving for

a mistrial.”  Id.  Masonheimer did not involve a reversal on

appeal, and its ruling was limited “to retrial after a defense-requested

mistrial.” Masonheimer, 220 S.W.3d at 508 n.19. “This rule arguably

would not apply to a retrial after a reversal of a defendant’s conviction on

appeal because, in such a situation, the defendant’s valued right to have

guilt-innocence determined by the first trier of fact has not been compromised.”Â

Id. Â (emphasis added).

In Bauder ,

the Court of Criminal Appeals interpreted the Double Jeopardy provision of the

Texas Constitution more expansively to cover “reckless” conduct, holding that

retrial would also be barred “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 v. State, 921

S.W.2d 696, 699 (Tex. Crim. App. 1996). [2] Â In Ex

parte Peterson , the Court of Criminal Appeals reaffirmed and clarified the

standard enunciated in Bauder . Ex parte Peterson, 117 S.W.3d 804

(Tex. Crim. App. 2003).

           However,

the Court of Criminal Appeals recently overruled Bauder and Peterson

in Ex parte Lewis , 219 S.W.3d 335 (Tex. Crim. App. 2007). The court

held that ‘the proper rule under the Texas Constitution is the rule articulated

by the United States Supreme Court in Oregon v. Kennedy ,” i.e. ,

whether the prosecutor intended to provoke the defendant into moving for a

mistrial. Id. at 337 ; see id. at 371 . Lewis also

reaffirmed the holdings in Ex parte Davis and Ex parte Mitchell .Â

Id. at 371 . In Davis the court held that retrial was not

jeopardy-barred under the U.S. Constitution when the conviction had been vacated

because of, in part, prosecutorial misconduct. Ex parte Davis, 957

S.W.2d 9, 11-12 (Tex. Crim. App. 1997). In Mitchell the court held that

retrial was not jeopardy-barred under the U.S. Constitution when the conviction

was reversed because of a Brady violation. [3]

 Ex parte Mitchell, 977 S.W.2d 575, 578-80 (Tex. Crim. App. 1998).

           I believe that Masonheimer and

other authorities strongly suggest that the Double Jeopardy Clause bars retrial

when the State commits a Brady violation with the intent to avoid the

possibility of an acquittal and the conviction has been reversed on appeal or

collateral habeas corpus relief has been granted. See Masonheimer, 220

S.W.3d at 506-08. Also, the federal double jeopardy analyses in Davis

and Mitchell have been criticized:

The analytical double jeopardy standard adopted by

the Supreme Court in Oregon v. Kennedy does not appear to include any

consideration of whether the criminal defendant’s ultimately successful motion

for mistrial was granted during trial or on appeal. Â Therefore, this Court

respectfully rejects that portion of

the Texas Court of Criminal Appeals’ analysis suggesting a constitutional distinction

between cases in which a mistrial has been granted during trial and those in

which a new trial is granted on appeal based on the same allegations of

prosecutorial misconduct. See Ex parte Jack Warren Davis, 957 S.W.2d at

13 (“Applicant has not directed us to any cases, however, where the Supreme

Court has explicitly extended Oregon v. Kennedy to apply to instances

where verdicts of guilty have been reversed on appeal due to prosecutorial

misconduct, and therefore holding retrials as jeopardy barred.”).  Given the

plain language of the Supreme Court’s opinion in Oregon v. Kennedy, this

Court concludes the distinction offered by the Texas Court of Criminal Appeals

is inconsistent with clearly established federal law.

Â

Davis v. Quarterman, 2007 U.S. Dist. LEXIS 64793 , at 53 n.31 (W.D. Tex. Jan. 22, 2007); see Lewis, 219 S.W.3d at 382 -83 & nn.37-38 (Price, J.,

dissenting) (“Thus, to the extent these cases [ Davis and Mitchell ]

are logically unfaithful to Bauder , they are equally unfaithful to the Oregon

v. Kennedy standard. It seems to me that if any of our precedent deserves

closer scrutiny, it would be Davis and Mitchell , not Bauder .”);

see also Albernaz v. United States, 450 U.S. 333, 343 , 101 S.Ct. 1137, 1144 , 67 L.Ed.2d 275

(1981) (“ the decisional law in the area [of

Double Jeopardy] is a veritable Sargasso Sea which could not fail to challenge

the most intrepid judicial navigator”).

Near the same vein, Judge Meyers noted in Davis that Kennedy did not decide that double jeopardy would not bar retrial

if an appellate court determined that the trial court erroneously denied a

defense motion for mistrial based on prosecutorial misconduct because the Kennedy

court’s assumption that the appellate determination would present no bar is

dicta. Davis , 957 S.W.2d at 17 (Meyers, J., concurring) (citing Kennedy,

456 U.S. at 676, 102 S.Ct. at 2089-90). And the Supreme Court’s statement in Lockhart

v. Nelson, 488 U.S. 33 , 34 n.2, 109 S.Ct. 285 , 288

n.2, 102 L.Ed.2d 265 (1988), and its curious citation to Kennedy —“ There is no indication that the prosecutor knew of the

pardon and was attempting to deceive the court. We therefore have no occasion

to consider what the result would be if the case were otherwise. Cf. Oregon v. Kennedy, 456 U.S. 667 , 102 S.Ct. 2083 , 72 L.Ed.2d 416 (1982).”—has led at

least one court to note that the Supreme Court has left open the question

whether appellate reversal for prosecutorial misconduct involving intentional

deception may be sufficiently similar to Kennedy for retrial to be

jeopardy-barred . Jacob v. Clarke, 52 F.3d 178, 181 (8th Cir.

1995) (“ But the Court's latest signal is decidedly more

ambiguous. In Lockhart , an appellate reversal case decided in the

prosecution’s favor, the Court introduced its double jeopardy analysis by

stating that the record revealed no prosecutorial misconduct. Such a pointed

caveat suggests that this remains an open issue.”).

In conclusion, Kennedy

neither decided the issue before us nor foreclosed it.

Double Jeopardy Revisited

A defendant has a “valued right to have his trial

completed by a particular tribunal.” Wade v. Hunter, 336 U.S. 684, 689 , 69 S.Ct. 834, 837 , 93 L.Ed. 974 (1949).  “[H] is

valued right to have the trial concluded by a particular tribunal is sometimes

subordinate to the public interest in affording the prosecutor one full and

fair opportunity to present his evidence to an impartial jury.” Arizona v. Washington, 434 U.S. 497, 505 , 98 S.Ct. 824, 830 , 54 L.Ed.2d 717

(1978).

 Masonheimer recognizes that under the

circumstance of the State’s belief that undisclosed evidence may make “the

difference between a conviction and an acquittal[, the defendant’s] valued

right to have his guilt-innocence determined by the jury in the first trial

and, ‘perhaps, end the dispute then and there with an acquittal’ was something

of a ‘hollow shell’ even though this may not have become apparent until the

middle of the second trial.” Masonheimer, 220 S.W.3d at 508 n.18

(citing Oregon v. Kennedy, 456 U.S. at 673 , 102 S.Ct. at 2088 ). The

State had its “one full and fair opportunity,” but Graves’s “valued right” to

have his guilt-innocence determined by the first jury likewise was a “hollow

shell” because, as the Fifth Circuit repeatedly emphasized (see n.4, infra ),

his trial was so tainted by the Brady violation and prosecutorial misconduct.

 Cf. Robinson v. Wade, 686 F.2d 298 , 308 n.20 (5th Cir. 1982) (“ Moreover, the defendant’s valued right to go to a

particular tribunal, involved in cases where the proceedings are not completed,

is equally implicated where a motion for mistrial is denied, but the subsequent

jury verdict is set aside for prosecutorial overreaching.”) (citation omitted).

In such “a trial tainted by prejudicial . . . prosecutorial

error,” “[t]he important consideration, for purposes of the Double Jeopardy

Clause, is that the defendant retain primary control over the course to be

followed in the event of such error.” United States v. Dinitz,

424 U.S. 600, 609 , 96 S.Ct. 1075, 1080 , 47 L.Ed.2d 267 (1976); see Lewis,

219 S.W.3d at 379 (Price, J., dissenting) (“And, at some point, prosecutorial

misconduct may become so egregious that it cannot fairly be said that the

defendant has retained primary control over the decision whether to proceed to

verdict or abort the proceedings.”). Unlike a defendant who becomes aware of a

Brady violation or prosecutorial misconduct during trial and can

therefore either move for a mistrial or proceed to verdict, Graves did not

learn of the exculpatory statements and prosecutorial misconduct for several

years. Graves, therefore, not only had his valued right turned into a hollow

shell, but the concealment of the Brady evidence and the corresponding prosecutorial

misconduct deprived him of “primary control over the course to be followed in

the event of such” misconduct. [4]  Had

Graves learned of the Brady evidence during trial and chosen to move

for and received a mistrial, under Masonheimer , plainly retrial would be

jeopardy-barred. And the notion that Graves can be retried because the

prosecutor succeeded in hiding his actions during trial precariously jumbles double

jeopardy principles. Cf. Burks v. United States, 437 U.S. 1, 11 , 98 S.Ct. 2141, 2147 , 57 L.Ed.2d 1 (1978) (“it should make no difference that the reviewing

court, rather than the trial court, determined the evidence to be insufficient.

. . . To hold otherwise would create a purely arbitrary distinction between

those in petitioner’s position and others who would enjoy the benefit of a

correct decision by the District Court.”).

I believe, therefore, that an extension of Kennedy

to the circumstances of this case is consistent with and reinforces the Supreme

Court’s double jeopardy jurisprudence. The Fifth Circuit has voiced this view:

Nor is the rationale of Burks

inconsistent with application of the “prosecutorial overreaching” exception to

bar retrial where the overreaching caused a tainted verdict to be set aside,

rather than a tainted proceeding to be aborted. Burks ’ holding, resting

on a perceived dichotomy between reversals for trial error and reversals for

evidentiary insufficiency, indicated that, as the former hold no implication

for the guilt or innocence of the defendant, they would raise no bar to further

prosecution. That distinction does not necessarily hold true where trial error

is attributable to intentional prosecutorial overreaching. The extreme tactics

which constitute prosecutorial overreaching

offend the double jeopardy clause at least in part because they unfairly

deprive the defendant of possible acquittal, by heightening, in a manner

condemned by law, the jury’s perception of the defendant’s guilt. Whether the

tactic condemned is successful in its objective of securing a mistrial, or

unsuccessful, but causes the return of a verdict of conviction, would seem to

be of little significance in development of a law of preclusion designed to

protect this interest.

Â

Robinson,

686 F.2d at 307-08 (citations and footnote omitted). Â And Judge Price, joined

by Judges Meyers and Holcomb, noted in Lewis :

The State is entitled to one full and fair

opportunity to present its evidence to an impartial jury. . . . When the

prosecutor intentionally commits misconduct he knows will seriously compromise

the fairness of the trial, he has arguably squandered his one full and fair

opportunity to present his case, so that the State’s interest can no longer be

said to outweigh the defendant’s—even if he did not harbor a specific intent to

provoke a mistrial. If his intention was to inject manifest unfairness into

the proceeding, and he was consciously indifferent with respect to whether this

intentional misconduct illegitimately increased his chances of gaining a

conviction or provoked the defendant into asking for a mistrial, the argument

is practically as compelling that he has forfeited his one full and fair

opportunity to present his case as when it was his specific intent to provoke a

mistrial. Either way, a reasonable argument can be made that the prosecutor

has manipulated the defendant’s choice to such an extent that it is no longer

primarily the defendant’s, and the State can no longer show that its interest

outweighs the defendant’s in the constitutional balance.

. . .

Ordinarily, double jeopardy entitles the defendant

to proceed to verdict with the first tribunal selected. Manifest necessity or

the defendant’s own consent may suffice to defeat his constitutional interest,

but not otherwise. This means that sometimes the defendant must experience the

anxiety, expense, and delay of a second trial even when his first trial was

rendered unfair for reasons unattributable to him. But he should not

necessarily have to suffer that consequence when the retrial was attributable

to deliberate misconduct on the part of the prosecutor. When that misconduct

so compromised the fairness of trial as to render mistrial inevitable, and the

prosecutor was at least consciously indifferent to that result, the State may

reasonably be said to have abused its one full and fair opportunity to present

its evidence to an impartial tribunal, and it can no longer carry its burden to

demonstrate that its interest in the jeopardy balance outweighs the defendant’s,

even when it was the defendant who requested a mistrial. Â Thus, jeopardy

principles are vindicated. It is true that the fairness that due process and

due course of law guarantee may also be vindicated and that the prosecutor may

feel he is being made to pay a heavy price for his misconduct. But these

consequences are incidental to, and do not by any means displace, the jeopardy

analysis.

Â

Lewis, 219 S.W.3d at 380-82 (Price, J., dissenting).

Â

Dicta from the Second Circuit’s

decision in United States v. Wallach , 979 F.2d 912 (2d Cir. 1992), suggests

that the Double Jeopardy Clause might protect a defendant against retrial if

the prosecutorial misconduct was undertaken with the intent of preventing an

acquittal the prosecutor reasonably believed, at that time, was likely absent

such misconduct. Id. at 916 . Wallach ’s proposed extension of Kennedy

should be applied to this case because the Brady violation and

prosecutorial misconduct were of such a nature that they could not have been

discovered by the defense until after trial, and the actions were undertaken to

avoid a likely acquittal.

           In Wallach , the Second Circuit analyzed possible

extensions of Kennedy ’s holding.  The government argued that Kennedy

should be limited to the context of a criminal trial that ends with a

defendant’s successful motion for a mistrial.  Like Wallach, Graves did not move for a

mistrial, much less obtain one, because he did not know about the alleged

misconduct until after trial. Â Wallach argued for an extension of Kennedy

that would eliminate the requirement of a mistrial because he believed that the

Supreme Court also intended Kennedy to bar a second prosecution when the

prosecutor engages in serious misconduct with the intention of preventing an

acquittal.  Id. at 915. The Second Circuit suggested that some

extension of Kennedy might be warranted, explaining:

Since Kennedy bars a retrial on

jeopardy grounds where the prosecutor engages in misconduct for the purpose of

goading the defendant into making a successful mistrial motion that denies the

defendant the opportunity to win an acquittal, the Supreme Court might think

that the Double Jeopardy Clause protects a defendant from retrial in some other

circumstances where prosecutorial misconduct is undertaken with

the intention of denying the defendant an opportunity to win an acquittal.

Â

Id. at 916.

The Wallach court went on to

suggest that a narrower extension than the one sought by Wallach might be

appropriate. Â The Wallach court believed that in Kennedy , the

Supreme Court was attempting to delineate the distinction between prosecutorial

misconduct that merely results in a mistrial (which does not bar retrial), and

misconduct that is undertaken for the specific purpose of provoking a mistrial.

 According to the Wallach court, Kennedy bars retrial only in the

latter case. Â Id. Â But, the Wallach court stated:

If any extension of Kennedy

beyond the mistrial context is warranted, it would be a bar to retrial only

where the misconduct of the prosecutor is undertaken, not simply to prevent an

acquittal, but to prevent an acquittal that the prosecutor believed at the time

was likely to occur in the absence of his misconduct. [ [5] ] Â If jeopardy bars a retrial where a

prosecutor commits an act of misconduct with the intention of provoking a

mistrial motion by the defendant, there is a plausible argument that the

same result should obtain where he does so with the intent to avoid an

acquittal he then believes is likely. Â The prosecutor who acts with the

intention of goading the defendant into making a mistrial motion presumably

does so because he believes that completion of the trial will likely result in

an acquittal. Â That aspect of the Kennedy rationale suggests precluding

retrial where a prosecutor apprehends an acquittal and, instead of provoking a

mistrial, avoids the acquittal by an act of deliberate misconduct. Â Indeed, if Kennedy

is not extended to this limited degree, a prosecutor apprehending an acquittal

encounters the jeopardy bar to retrial when he engages in misconduct of

sufficient visibility to precipitate a mistrial motion, but not when he fends

off the anticipated acquittal by misconduct of which the defendant is unaware

until after the verdict. Â There is no justification for that distinction .

Â

Id .

(emphases added).

Â

Wallach ’s

dicta has received support from Judge Posner:

There is an argument for a further

extension of Kennedy that would bring [defendant’s] case within the

range of the double jeopardy clause. Â Confined to cases in which the defendant

is goaded into moving for a mistrial, whether the motion is granted or denied, Kennedy

would leave a prosecutor with an unimpaired incentive to commit an error that

would not be discovered until after the trial and hence could not provide the

basis for a motion for a mistrial, yet would as effectively stave off an

acquittal and thus preserve the possibility of a retrial. Â Suborning perjury

would be a good example.[ [6] ]

 It can be argued that if the prosecutor commits a covert error for the same

purpose that he might have committed an open error calculated to evoke a motion

for a mistrial (before Kennedy made this tactic unprofitable)—namely, to

prevent an acquittal and so preserve the possibility of retrying the defendant

even if the error is sure to be discovered and result in a reversal of the

conviction either on direct appeal or on collateral attack—the double jeopardy

clause should protect the defendant against being retried. Â

Â

United States v. Catton, 130 F.3d 805, 807 (7th Cir. 1997).

           I would hold that the

Fifth Amendment’s Double Jeopardy Clause bars the State from retrying Graves. Because the majority does not, I respectfully dissent.

Â

BILL VANCE

Justice

Â

Dissenting Opinion

delivered and filed November 5, 2008

Publish

[1] The majority opinion’s view that

no record evidence supports Graves’s arguments is incorrect. In addition to

our proper reliance on the legal and factual issues decided by the Fifth

Circuit because they are res judicata (and thus cannot be relitigated by the

State), the record excerpts from Graves’s first trial (which we have made a

part of the record in this appeal at the request of both Graves and the State)

are properly before us; I believe that our review of the trial court’s ruling

on the double jeopardy claim in Graves’s habeas petition is de novo because

that issue is a question of law. The resolution of the ultimate questions

turns on an application of legal standards absent any credibility questions,

which is the case given the federal court’s resolution of the relevant facts

underlying Graves’s petition’s double-jeopardy claim.  See State v. Webb, 244 S.W.3d 543, 547 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see

also State v. Kelly, 204 S.W.3d 808, 818 (Tex. Crim. App. 2006) (“The

appellate court then reviews the trial court’s legal ruling de novo unless the

supported-by-the-record implied fact findings are also dispositive of the legal

ruling.”) (cited in Masonheimer, 220 S.W.3d at 506 n.14); Oles v.

State, 993 S.W.2d 103, 106 (Tex. Crim. App. 1999) (“However, the instant

case presents us with a question of law based on undisputed facts, thus we

apply de novo review.”).

[2] The majority opinion

acknowledges, ( ante at 7, n.4), that approximately ten states,

interpreting their own state constitutions, bar retrials after a conviction has

been reversed because of intentional prosecutorial misconduct.

Â

[3] Davis and Mitchell also both held

that, under the now-overruled Bauder standard, retrial was not

jeopardy-barred under the Texas Constitution. Davis, 957 S.W.2d at

12-15 ; Mitchell, 977 S.W.2d at 580-81 .

[4] This was recognized by the Fifth Circuit:

At trial the state recognized that its

case depended on the credibility of Carter and the prosecutor emphasized

Carter’s consistency in his various statements in naming Graves as an

accomplice. . . . Had the defense been able to cross-examine Carter on the

suppressed statement, this may well have swayed one or more jurors to reject

Carter’s trial version of the events.

Graves , 442

F.3d at 341.

If both statements had been timely

furnished to Graves, he could have persuasively argued that (1) the murders

were committed by Carter alone or by Carter and Cookie; and (2) Carter’s plan

from the beginning was to exonerate Cookie, but a story that he acted alone was

not believable, so he implicated Graves so the prosecution would accept his

story and decline to prosecute Cookie. . . . If the two statements had been

revealed, the defense’s approach could have been much different (as set forth

above) and probably highly effective. . . . If the defense had known about the

statement placing Cookie at the scene and given Carter’s continuing condition

that he would only testify if he were not asked about Cookie's involvement, the

defense could have explained every statement implicating Graves as a means of

protecting Cookie.

Id. at 343-44.

[5] Based on the Fifth Circuit’s

opinion, there can be no question that the only reasonable inference on the

prosecutor’s intent in concealing Carter’s exculpatory statements and then in

also knowingly eliciting testimony that he knew was false and misleading

because of the concealed exculpatory statements made to him the night before is

that the prosecutor was acting with the intent to avoid the possibility of a

likely acquittal. See Kennedy, 456 U.S. at 675 , 102 S.Ct. at 2089

(“Inferring the existence or nonexistence of intent from objective facts and

circumstances is a familiar process in our criminal justice system.”); Masonheimer,

220 S.W.3d at 507 & n.18 (“we are constrained to decide that the extensive

portions of the record set out in this opinion support a finding that

appellee’s mistrial motions were necessitated primarily by the State’s

‘intentional’ failure to disclose exculpatory evidence that was available prior

to appellee’s first trial with the specific intent to avoid the possibility of

an acquittal. . . . The trial court could have also reasonably found that the

State believed that the undisclosed evidence may have made the difference

between a conviction and an acquittal.”); id. at 510 (Meyers, J.,

concurring) (“Rather than trying to determine the subjective intent of the

prosecutor, we can objectively look at the actions of the State to determine if

the actions were intentional.”).

[6] In Carter’s testimony during Graves’s trial, Sebesta

questioned Carter as follows:

Q. With the exception of where you have totally

denied everything, have you always implicated Graves as being with you?

A. Yes.

. . .

Q. With the exception of the time you went to the

grand jury and denied any involvement, all the different stories that you told

have all involved Anthony Graves, have they not?

A. They have.

Vol. 35, p. 3443.