McCrory v. State

TOM G. DAVIS, Judge,

dissenting.

The majority reverses appellant’s conviction because his statement of June 12, 1978, to Dr. John Holbrook, which was the “result of custodial interrogation,” was erroneously admitted into evidence at trial.

The majority opinion assumes that appellant’s statement to Holbrook was the result of interrogation. The crux of the opinion concerns whether appellant was in custody when he made the statement to Holbrook. Even if appellant’s admission to Wayne Baker did mean that he was not free to leave and was therefore in custody, there is no support in the record for the proposition that appellant’s statement to Holbrook was the “result of” or “stemmed from” custodial interrogation.

Since August 29, 1977 the pertinent portions of Art. 38.22, V.A.C.C.P., have not excluded from admission into evidence all oral statements made by an accused while in custody. Under Sec. 5, “Nothing in this article precludes the admission of a statement ... that does not stem from custodial interrogation.... ”

In Rhode Island v. Innis, 446 U.S. 291 , 100 S.Ct. 1682 , 64 L.Ed.2d 297 , the Supreme Court stated that: “The starting point for defining ‘interrogation’ in this context is, of course, the Court’s Miranda opinion. There the Court observed that ‘[b]y custodial interrogation we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.’ 384 U.S. at 444, 86 S.Ct. at 1612 (emphasis added).” Accord, see Newberry v. State, 552 S.W.2d 457, 461 (Tex.Cr.App.1977).

Under the facts of the instant case, Hol-brook was not a police officer or agent of the police and he did not question appellant.

Appellant voluntarily went to the police station on June 6, to explain his involvement in the case. He had not been asked to come in. On June 8, he voluntarily went to the police station and accompanied officers to the scene of the crime. On June 9, at a staff meeting attended by the District Attorney and officers investigating the case, it was determined that there was insufficient probable cause to arrest appellant. On June 12, appellant voluntarily went to the police station and accompanied Captain Dwight Crawford to the polygraph examiner’s office in Dallas.

Though Crawford had initially suggested the examination, appellant was in no way compelled to attend. Appellant specifically asked to go to the examination with Crawford, though appellant’s mother had accompanied him to the police station.

Before appellant made any admission to Wayne Baker, i.e., before he was in custody, Baker told him of Holbrook’s presence. After appellant told Baker, “I did it,” he asked to see Holbrook and Crawford. As Crawford entered the examination room to see appellant, Baker went to ask Holbrook if he could come and talk to appellant.

Holbrook was told that appellant was being questioned about a criminal offense and had become upset. Baker said he might need a doctor and asked Holbrook to see him. Holbrook did not think he could help appellant, but agreed to see him.

According to the uncontroverted testimony of Holbrook, Holbrook identified himself, said he was there to help appellant and that appellant did not have to talk to him, and asked if appellant was upset. Other than this, Holbrook asked no questions. Appellant, tearful and nervous, told a rambling story and finally “blurted out” that he had raped the deceased and choked her.

*736 Holbrook testified that he had never discussed psychiatric evaluation with Baker as a tool to stimulate confession and, that he would be surprised if that is what Baker had in mind wh*n he approached him on the 12th. This is borne out by Baker’s testimony:

“Q. OK. Now, you say you told Dr. Holbrook that you laid the predicate. By that, do you — had you and Dr. Holbrook — had you ever had any interviewees that had requested or that you had indicated the psychiatric assistance?

“A. Not in that particular manner, no, sir.

“Q. OK.

“A. I have used that technique many times, but this is the first time that it’s ever been such where Dr. Hol-brook was familiar with that particular type.

“Q. Had you ever had psychiatrists that — other psychiatrists available using this technique?

“A. No, sir.

“Q. OK. Did you tell Dr. Holbrook or indicate to Dr. Holbrook in any way as to the reason you had suggested Mr. McCrory see a psychiatrist?

“A. No, sir.

“Q. OK. When you say you laid a predicate for Dr. Holbrook, did you, by saying laying a predicate, indicate to Dr. Holbrook as to what you hoped he would be able to accomplish in his examination of Mr. McCrory?

“A. No, sir.”

Thus, it is clear from the record that whatever Baker thought of psychiatric evaluation of a subject as a stimulus for confession, Holbrook did not utilize the same technique in general or in relation to the appellant. Holbrook did state that he had been asked before to see examinees who were distressed. He also stated that this was one reason he was leaving the office he shared with Baker since this happened on a “moment-to-moment” basis and was not professional.

The kind of psychiatric tool Holbrook knew and wrote about involved the psychiatrist discussing the pre-examination interview with the examiner in an effort to help the examiner frame proper examination questions for the examinee.

Holbrook never billed anyone for his encounter with appellant. He told no one of the content of appellant’s statement until shortly before the trial and, he was unaware if any officers were viewing his discussion with appellant through the one-way mirror in Baker’s office.

The foregoing establishes, and established for the trial court, that: appellant requested to see Holbrook; Holbrook did not question or interrogate appellant; Holbrook was not a police officer or an agent of the police. There was no “initiation of questioning by a police officer.”

If appellant, after admitting guilt to Baker, had confessed to his mother, the statement would be admissible. Autry v. State, 626 S.W.2d 758 (Tex.Cr.App.1982). If he had confessed to a fellow inmate, the statement would be admissible. May v. State, 618 S.W.2d 333 (Tex.Cr.App.1981). Here, appellant confessed to a doctor, who appellant asked to see. According to the record in this case, the doctor was a private citizen who did not interrogate appellant in any manner. This record can in no way be interpreted so as to characterize Holbrook as an agent of the State.

It should be remembered that appellant was not in custody at the time Holbrook’s availability was mentioned by Baker. That appellant was not in custody until he made an admission of guilt to Baker appears to be conceded in the majority opinion. Arguably, the majority position would be stronger if the availability of Holbrook had been mentioned after appellant was in custody. This fact negates any suggestion that Hol-brook’s encounter with appellant stemmed from a suggestion made while appellant was in custody.

It is significant that appellant gave the appearance of actively cooperating with po *737 lice officers in the investigation of the case. The officers were not obliged to give him any Miranda, warnings prior to his confession to Baker and they were completely free to employ any valid and legal technique in an effort to gain insight into the case. One of these techniques, as far as Baker was concerned, was mentioning the availability of psychiatric help. There is no reason this technique should be invalidated because appellant subsequently confessed to Baker.

The effect of the majority opinion is to overlook that portion of Art. 38.22, supra which allows the admission of a statement “that does not stem from custodial interrogation.” It is universally conceded that a major purpose of the 1977 amendments to Art. 38.22 was to end the practice whereby any custodial admission was excluded from the State’s case in chief regardless of whether it was the result of interrogation. May v. State, supra; Lindley v. State, 635 S.W.2d 541 (Tex.Cr.App.1982); Bubany, The Texas Confession Statute: Some New Wine in the Same Old Bottle, 10 Tex.Tech L.Rev. 67, 73-76 (1978). Today’s decision in effect deletes a portion of the 1977 amendments. 1

Accordingly, I dissent.

DALLY, W.C. DAVIS and MeCORMICK, JJ., join in this opinion.

. The decision in Alfaro v. State, 638 S.W.2d 891 (Tex.Cr.App.1982), has no bearing on the issues involved in the instant case. Alfaro concerned the standards to be used in the introduction of certain oral statements for purposes of impeachment. In Alfaro it was uncontested that the statements resulted from custodial interrogation. Here, appellant’s statement to Holbrook did not result from interrogation.