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TEAM NO. 6
NO. 2015-01
IN THE
Supreme Court of the United States
KENNY BEARSON, Petitioner,
V.
UNITED STATES, Respondent.
On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit
BRIEF FOR RESPONDENT
Counsel for Respondent
i
QUESTIONS PRESENTED
I. Under the Fourth Amendment, did Defendant’s sister effectively
consent to police searching his home? Specifically,
a. Did she have authority to consent when she was living in the home
recovering from cancer treatments and she was allowed to use any
room in the home except for the two she specifically excluded from
the scope of the search?
b. Assuming her authority, does Defendant’s prior denial of consent
made three months earlier and never renewed invalidate her
consent?
II. Does a trial court abuse its discretion by denying a Rule 33(b)(1) motion
for new trial when the newly discovered evidence is a chronologically
attenuated third-party confession by an admittedly drunk declarant
with a criminal background?
ii
TABLE OF CONTENTS
QUESTIONS PRESENTED ................................................................. i
TABLE OF CONTENTS ....................................................................... ii
TABLE OF AUTHORITIES ................................................................. iv
STATEMENT OF JURISDICTION ..................................................... viii
STATEMENT OF FACTS .................................................................... 1
SUMMARY OF THE ARGUMENT ..................................................... 7
ARGUMENT .......................................................................................... 10
I. The Search Satisfied the Fourth Amendment Because Caroline Bearson Had Authority to Consent And Did Voluntarily Consent to the Search. ............................................. 10
A. Caroline Bearson Had Authority to Consent to a Search of Defendant’s Home. ............................................ 11
B. Caroline’s Consent to the Search Was Voluntary. ........................................................................... 13
C. Defendant’s Prior Denial to Search is Irrelevant. ............................................................................ 14
II. The Trial Court’s Denial of Defendant’s Rule 33(b)(1) Motion for New Trial was Proper. ................................................ 17
A. The Trial Court Was Well Within its Discretion to Deny Defendant’s Rule 33(b)(1) Motion for New Trial on Evidentiary Grounds. .......................................... 17
1. Leopold Lara’s Confession is Inadmissible Under Fed. Rule Evid. 804(b)(3) Because it is Not Corroborated to Indicate its Trustworthiness. ....................................................... 18
2. Rule 804(b)(3) is Not an Arbitrary Infringement on the Right to Present a Complete Defense. .................................................. 21
iii
B. Alternatively, the Denial of the Motion for New Trial
Was Proper Because the Exclusion of the Confession Was Harmless Error. ......................................................... 23
CONCLUSION ...................................................................................... 25
iv
TABLE OF AUTHORITIES
Constitutional Provisions
U.S CONST. amend. IV .......................................................................... 10
U.S CONST. amend. V ............................................................................ 21
Statutes
28 U.S.C.S. § 1254(1). ........................................................................... vii
28 U.S.C.S. § 2111. ................................................................................ 23
Nev. Rev. Stat. Ann. § 51.345. ...................................................................................... 22
Rules and Regulations
Fed. R. Evid. 804(b)(3) (West 2015). .................................................... 9, 18
Fed. R. Crim. P. 33(b)(1) (West 2015). ................................................. 6, 8
United States Supreme Court Cases
Bumper v. North Carolina, 391 U.S. 543 (1968). ................................................................... 11
California v. Trombetta, 467 U.S. 479 (1984). ................................................................... 21
Chapman v. California,
386 U.S. 18 (1967). ..................................................................... 23
Fernandez v. California, 134 S. Ct. 1126 (2014). ............................................................... 9, 14, 15
Georgia v. Randolph, 547 U.S. 103 (2006). ................................................................... 9, 14, 15
Holmes v. South Carolina,
547 U.S. 319 (2006). ................................................................... 9, 22
v
Illinois v. Rodriguez, 497 U.S. 177 (1990). ................................................................... 12
Montana v. Egelhoff, 518 U.S. 37 (1996). ..................................................................... 22
Queen v. Hepburn, 11 U.S. 290 (1813). ..................................................................... 22, 23
Schneckloth v. Bustamonte,
412 U.S. 218 (1973). .................................................................... 11 Terry v. Ohio,
392 U.S. 1 (1968). ....................................................................... 12
United States v. Matlock, 415 U.S. 164 (1974). ................................................................... passim
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982). ................................................................... 21
Federal Court Cases
United States v. Almeida-Perez, 549 F.3d 1162 (8th Cir. 2008). ................................................... 12
United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978). ..................................................... 19
United States v. Alvarez,
358 F.3d 1194 (9th Cir. 2004). ................................................... 11 United States v. Barnum,
564 F.3d 964 (8th Cir. 2009). ...................................................... 14
United States v. Barone, 114 F.3d 1284 (1st Cir. 1997). ................................................... 9, 19, 20
United States v. Bethea,
598 F.2d 331 (4th Cir. 1979). ..................................................... 12 United States v. Briley,
726 F.2d 1301 (8th Cir. 1984). .................................................... 13
vi
TABLE OF AUTHORITIES United States v. Castellanos,
518 F.3d 965 (8th Cir. 2008). ...................................................... 15 United States v. Curiale,
414 F.2d 744, 746 (2d Cir. 1969). .............................................. 8 United States v. Fleck,
413 F.3d 883, 891 (8th Cir. 2005). .............................................. 8, 13
United States v. Johnson, 495 F. 3d 951 (8th Cir. 2007). ..................................................... 18
United States v. Kelley, 981 F.2d 1464 (5th Cir. 1993). .................................................... 13
United States v. Kelley, 594 F.3d 1010 (8th Cir. 2010). ................................................... 14
United States v. Kim, 105 F.3d 1579 (9th Cir. 1997). ................................................... 11
United States v. Kon Yu–Leung, 910 F.2d 33 (2d Cir. 1990). ........................................................ 14
United States v. Mancias, 350 F.3d 800 (8th Cir. 2003). ...................................................... 13
United States v. Moore, 936 F.2d 1508 (7th Cir. 1991). ................................................... 21
United States v. Santiago,
405 F. Supp. 2d 65 (D. Mass. 2005). .......................................... 12 United States v. Va Lerie,
424 F.3d 694 (8th Cir. 2005). ...................................................... 14
United States v. Wilkerson, 251 F.3d 273 (1st Cir. 2001). ..................................................... 19
vii
TABLE OF AUTHORITIES
State Supreme Court Cases
Coleman v. State, 321 P.3d 901 (Nev. 2014). .......................................................... 10, 22
State v. Perry, 254 P.3d 961 (Idaho 2010). ......................................................... 23
Secondary Sources
Wright & Miller Fed. Prac. & Proc. Crim. §583 4th ed. (West 2014). ............................................................ 17
viii
STATEMENT OF JURISDICTION
This Court has jurisdiction under 28 U.S.C.S §1254(1). The Thirteenth
Circuit Court of Appeals convicted Kenny Bearson for the murders of Billy Smith
and Sally Jones. This petition follows an appeal to reverse the conviction of
Kenny Bearson.
1
STATEMENT OF FACTS
A jury convicted Kenny Bearson in Federal Court of two counts of first-
degree murder. (R. at 7). The jury concluded beyond a reasonable doubt that
Kenny Bearson shot and killed two people with a rifle. (R. at 7).
The relevant events begin on the night of January 1, 2010 where a
New Year’s Eve party was winding down on Lake Swannee in Chaostown.
(R. at 1). Before first light of the New Year, Chaostown police discovered the
bodies of Billy Smith and Sally Jones. (R. at 1). Eight .30 caliber gunshot
wounds littered the bodies when police approached the running car on a dirt
road off highway 101. (R. at 1). Forensic evidence determined that the
murderer shot the victims at close range from the driver side door. (R. at 1).
The Search For Witnesses. Detective Vincent Binger began his
search for witnesses to the murders with any partygoers present that night at
a local hangout called “the dock.” (R. at 2). Jessica Minder was among the
crowd of underage drinkers and illegal drug users that night. (R. at 2).
Detective Binger knew Jessica from her past marijuana possession charges,
and decided to interview her about the events of that night. (R. at 2). The
only useful information Binger received was that the two victims were not at
the party before they were murdered. (R. at 2). Jessica explained that
although she had a few too many drinks that night, she remembered
receiving a ride home from Defendant Kenny Bearson, along with his sister
Sandy Bearson, and friend Robert Clark. (R. at 2). The first round of
2
questioning the other witnesses presented no real leads. (R. at 2). When
Detective Binger approached Defendant, he admitted attending the party
leaving just after midnight with his passengers, and knowing the victims
from high school. (R. at 2). When Binger asked to look around Defendant
scoffed at Binger’s question and responded that he did not want anyone
“nosing around his house and getting into his business.” (R. at 2).
New Information Surfaces. After months went by, Jessica contacted
Detective Binger explaining her previous statements left out most of the
story from that terrible night. Jessica had moved out of Chaostown after the
shootings because Defendant threatened her not to speak of that night to
anyone. (R. at 3). Jessica told Binger that Defendant Kenny Bearson never
actually dropped her off at home the night of the murders. (R. at 3). While
Jessica was riding home with Kenny, he stopped his truck near another
vehicle he had been tailgating on the shoulder of the road and got out. (R. at
3). Once Jessica heard gunshots and saw the lifeless bodies of Sally and Billy
covered in blood in their car, she ran the rest of the way to her parent’s home
and snuck in a back window. (R. at 4).
Robert verifies Jessica’s Story. Robert’s second interview
corroborated with Jessica’s. (R. at 6). Robert recalled he rode in the front seat
of Defendant’s truck that night, and witnessed Defendant tailgating another
car until it stopped on the side of the road. (R. at 6). Defendant proceeded to
park his truck facing the driver’s side of the car, and get out. (R. at 6). Jessica
3
took this opportunity to jump out of the truck in fear of being sick, and Robert
followed to make sure she was all right. (R. at 6). Robert then witnessed a
figure cloaked in darkness retrieve an object from behind the driver’s seat of
Defendant’s car. (R. at 6). Subsequently, Robert heard the popping of
gunshots followed by Sandy’s shrieking, before he ran to the front of the
truck. (R. at 6). Defendant arrived at the same time, jumped into the drivers
seat and sped off from the scene. (R. at 6). Days later Defendant Kenny
Bearson threatened Robert, like he did Jessica, not to speak about that night
with anyone, which led to Robert’s belief that Defendant “killed those kids.”
(R. at 3).
Defendant’s Sister Allows A Search of His Home. After hearing
Jessica’s story, Detective Binger attempted to re-interview Defendant Kenny
Bearson. (R. at 4). Upon arriving at Defendants home, the officers observed
the front door of the residence was open, though the screen door remained
shut. (R. at 4). Officers noticed the smell of burnt marijuana coming from
inside. (R. at 4). When they announced their presence a young woman
appeared. (R. at 4-5). Caroline Bearson, Defendant’s youngest sister,
answered their call explaining that her brother was not home. (R. at 5).
Caroline did not allow the officers to enter the home when they first
requested consent to search. (R. at 5). She spoke with the officers explaining
she had a prescription for medicinal marijuana because she has cancer. (R. at
5). Caroline told Detective Binger she did not have her prescription with her.
4
(R. at 5). Caroline explained how she lived with her brother after all of her
chemotherapy treatments in town until she felt well enough to make the trip
back to her home three hours away. (R. at 5). At this point Detective Binger
informed Caroline that he would obtain a search warrant for the home and be
back. (R. at 5). Caroline then allowed the police to enter. (R. at 5). Caroline
told the officers they could look wherever they wanted, except in Defendant’s
bedroom and bathroom because she was not permitted in those two rooms.
(R. at 5). Once inside, Detective Binger observed a burnt marijuana cigarette
on the coffee table of the living room and continued into the kitchen. (R. at 5).
On the table, Binger found a pawn receipt in plain view indicating that
Defendant pawned several rifles, some capable of shooting .30 caliber bullets,
three weeks after the shooting. (R. at 5).When Detective Binger went to the
pawn shop, they no longer had any of the rifles. (R. at 6).
Defendant filed a motion to suppress the receipt as evidence, arguing
the search was in violation of his fourth amendment rights. The trial court
denied the motion, and the Thirteenth Circuit affirmed.
The Hearsay Confession. After Defendant filed his appeal to the
Thirteenth Circuit, Detective Binger’s attention was directed to a new piece
of evidence. (R. at 7). A Deputy in another department told Binger that he
heard someone had confessed to the murders of Billy Smith and Sally Jones.
(R. at 7). Deputy Laura Finster claimed that Chaostown resident Leopold
Lara, Jr. confessed to the crime. (R. at 7). Detective Binger interviewed
5
Deputy Finster while she was on suspension from the force for public
intoxication, and she recalled her encounter with her Uncle Leopold Lara, Jr.
(R. at 7-8). Months before the trial, Deputy Finster was involved in a high-
speed car chase with Lara Leopold Jr. (R. at 7-8). After many miles, Leopold
finally pulled into a driveway and ran from the car on foot. (R. at 8). Others
in the car told Deputy Finster that Leopold was highly intoxicated and had
attempted to take a gun and shoot at her during the chase. (R. at 8). Deputy
Finster caught up with Leopold on foot, and placed him under arrest, careful
not to handcuff him for fear of his high blood pressure. (R. at 8). Deputy
Finster recalled that Leopold began to sob and fumbled out he was “sorry he
killed those kids”, and “didn’t mean to kill the girl.” (R. at 8). Deputy Finster
did not take Lara Leopold Jr. into custody at that time. (R. at 8). She instead
took him home and gave him a citation for speeding. (R. at 8). She never
followed up with Leopold about the statements because she thought it was
“drunk talk” and didn’t mean anything. (R. at 8). Deputy Finster told
Detective Binger that Lara Leopold Sr., a known marijuana dealer,
sometimes accepts guns for marijuana and his son sometimes works for him.
(R. at 8-9).
Detective Binger then personally interviewed Lara Leopold Jr. who
was in the hospital awaiting a liver transplant. (R. at 9). Leopold denied all of
Deputy Finster’s claims. (R. at 9). He explained to Detective Binger how
frustrated he was with the police harassing him because of his father and the
6
statement he made was “why don’t you take me to jail for killing those kids”
believing the police would try to pin anything on him. (R. at 9). Leopold Lara
Jr. died a week later in the hospital. (R. at 9).
The parties agreed that since Lara Leopold Jr. was unavailable
pursuant to Fed. R. Evid. 804, the evidence of the alleged confession would
need to be introduced by another party. (R. at 9). Defendant Kenny Bearson
did not put on any evidence at the initial trial, nor did he testify. (R. at 7).
The trial court denied Defendant’s motion for new trial under Rule 33(b)(1),
ruling that the evidence was inadmissible hearsay and even if it was
admitted it would not have affected the outcome of Defendant’s trial.
(R. at 9). The Thirteenth Court of Appeals affirmed. (R. at 9).
Procedural History. Kenny Bearson was first charged in Federal
Court with two counts of first-degree murder. (R. at 7). Defendant moved to
suppress the pawn shop receipt as evidence relying on the Fourth
Amendment prohibition against unlawful search and seizure. (R. at 7). The
trial court denied the motion to suppress. (R. at 7). The federal prosecution
relied primarily on the testimony of two witnesses, Jessica Minder and
Robert Clark, as well as the pawn shop receipt that was lawfully discovered
and seized in Defendant’s home. (R. at 7). Defendant did not present any
evidence. (R. at 7). Defendant Kenny Bearson was convicted of the murders of
Billy Smith and Sally Jones following a three-day trial. (R. at 7). Defendant
7
timely appealed his conviction to the U.S. Court of Appeals for the Thirteenth
Circuit based upon his earlier Fourth Amendment challenge. (R. at 7).
During pendency of the appeal, new evidence in the form of a third-
party-confession was discovered. (R. at 7). Defendant moved for a new trial
based upon the discovery of the confession pursuant to Federal Rule of
Criminal Procedure 33(b)(1). (R. at 9). The trial court denied the motion
utilizing its broad discretion, holding that the evidence was inadmissible
hearsay and further that it would not have altered the ultimate verdict had
the confession been admitted. (R. at 9).
The Fourth Amendment challenge and evidentiary ruling were
consolidated on appeal. (R. at 9). The Thirteenth Circuit affirmed the murder
conviction upholding the trial court rulings on both the Fourth Amendment
challenge and the hearsay issue. (R. at 9).
SUMMARY OF THE ARGUMENT
As a last resort, Defendant presents two reasons why his murder
conviction should be vacated, but he cannot prevail on either. The district
court correctly decided the search of Kenny Bearson’s home did not violate
his Fourth Amendment rights, and that the alleged confession by Lara
Leopold Jr. was inadmissible and does not warrant a new trial.
The Fourth Amendment Search. The law is well settled in the area
of third-party-consent to search under the Fourth Amendment. A third-party
must have authority to consent, and must do so voluntarily. United States v.
8
Matlock, 415 U.S. 164 (1974). Defendant’s motion to suppress the evidence
found during the police search was correctly denied because Caroline
Bearson’s consent satisfies the Fourth Amendment. Caroline had a sufficient
relationship to, and control over the areas searched by police. (R. at 5). Even
if Defendant claims Caroline had no authority, her conversation and
explanation she shared with police is sufficient to create apparent authority.
(R. at 5). Thus, Caroline has sufficient authority over the home to consent to
a search.
Consent to a search, if not given voluntarily, can later invalidate a
search. United States v. Curiale, 414 F.2d 744, 746 (2d Cir. 1969). Consent is
voluntary “if it was the product of an essentially free and unconstrained
choice by its maker, rather than the product of duress or coercion, express or
implied.” United States v. Fleck, 413 F.3d 883, 891 (8th Cir. 2005). Caroline’s
consent was just that, evidenced more by her initial denial of entry to the
officers. (R. at 5). Defendant argues Caroline was coerced or mentally
impaired when she consented to the search. The record proves Caroline was
coherent, cooperative, and understanding of the officers and their request for
entry. (R. at 5). Therefore, Caroline’s consent was voluntary.
Defendant argues that because months earlier he refused to consent to
a search, his denial endures. (R. at 2). However, that argument is supported
neither in law or policy. (R. at 2). Moreover, since property law does not
control, and defendant was not physically present when Caroline consented
9
to the search, Defendant has no authority to argue the search was invalid.
See, Fernandez v. California, 134 S. Ct. 1126 (2014); Georgia v. Randolph,
547 U.S. 103 (2006). Accordingly, Defendant’s previous denial of consent is
irrelevant.
Motion for New Trial Based on New Evidence. Federal Rule of
Criminal Procedure 33(b)(1) provides the vehicle for a defendant to re-open a
case when new evidence is discovered post-judgment. Fed. R. Crim. P.
33(b)(1). Defendant’s 33(b)(1) motion was correctly denied because (1) the
District Court primarily concluded that the confession was inadmissible in a
new trial because it failed to satisfy the statement against interest exception;
(2) did not infringe on Defendant’s right to a complete defense; (3) and
alternatively, the evidentiary ruling by the trial court was harmless-error.
Federal Rule of Evidence 804(b)(3) contains the exception to hearsay
applicable in this case. Fed. R. Evid. 804(b)(3) (West 2015). During the review
of Defendant’s motion for new trial, the trial court determined that the newly
acquired evidence would not be admissible under 804(b)(3) because it failed
the corroboration requirement contained therein. (R. at 9).
Defendant complains his constitutional right to present a complete
defense has been violated by the application of this evidentiary rule to his
case. (R. at 10). Courts have determined this right can only be infringed if the
rule is arbitrary or disproportionate to its intended purpose. Holmes v. South
Carolina, 547 U.S. 319 (2006). Courts have consistently determined Rule
10
Rule 804(b)(3) and similar rules, to pass this constitutional hurdle. Coleman
v. State, 321 P.3d 901 (Nev. 2014).
Alternatively, under the Chapman harmless-error analysis, which
applies to constitutional complaints, the evidentiary ruling was harmless to
Defendant. Id. The same factors that led the District Court to exclude the
confession on evidentiary grounds can be used to show that the confession
would have been entirely ineffective as evidence for Defendant at trial.
ARGUMENT
I. The Search Satisfied the Fourth Amendment Because Caroline Bearson Had Authority to Consent And Did Voluntarily Consent to the Search.
At its core, the Fourth Amendment protects individual privacy against
unwarranted governmental intrusion. U.S CONST. amend. IV. But, voluntary
consent is an exception allowing police to constitutionally invade that
privacy. When police arrived at Defendant’s door they announced their
presence. (R. at 4). Caroline Bearson initially refused consent. (R. at 4-5). She
spoke with the officers further, and subsequently permitted their entry.
(R. at 5). Caroline qualified the search only to the rooms she had access and
authority to enter. (R. at 5). The District Court correctly determined the
search was valid for three reasons: (1) Caroline Bearson had authority to
consent; (2) she voluntarily did so; (3) and Defendant’s previous objection is
irrelevant because he was not present when Caroline consented. Thus,
showing the government met its high burden of proving that consent was
11
freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 222
(1973); Bumper v. North Carolina, 391 U.S. 543, 548 (1968). These
constitutional claims present mixed questions of law and fact, and questions
of law are reviewed de novo and underlying fact questions for clear error.
United States v. Kim, 105 F.3d 1579, 1581 (9th Cir. 1997); United States v.
Alvarez, 358 F.3d 1194 (9th Cir. 2004).
A. Caroline Bearson Had Authority to Consent to a Search of Defendant’s Home.
When a consenting party has common authority over areas of the home
for most part, the search of those areas will be considered valid. Matlock, 415
U.S. at 171. “Common authority is not implied from a mere property interest
a consenting third-party has in the property.” Id. at 173 n.7. In contrast,
common authority rests on mutual use of the property by persons generally
having joint access or control for most purposes. Id. For example, in Matlock,
police arrested Defendant on the front lawn of his residence. Id. at 166. Police
then knocked on the door and asked Defendant’s girlfriend for permission to
search the residence including Defendant’s bedroom. Id. This Court
concluded that due to her statements regarding the nature of her relationship
with Defendant and the bedroom they shared, defendant’s girlfriend had
authority to consent to the search the bedroom. Id. at 167. Matlock exists
because “it is reasonable to recognize that any co-inhabitant has the right to
permit inspection, and the others have assumed the risk that one of their co-
habitants might permit the common area to be searched.” Id. at 173 n.7.
12
Caroline shared common authority over areas of Defendant’s home.
(R. at 5). Caroline was permitted to stay at Defendant’s home for as long as
she needed, she was able to come and go as she please, she was a relative of
defendant, and she clearly felt comfortable relaxing and answering the door
of the home. (R. at 5). Cf., U.S. v. Almeida-Perez, 549 F.3d 1162 (8th Cir.
2008) (Defendant’s cousin had been seen going in and out of the home and
was relaxing on the front porch when he admitted police, without knocking,
to search the home); United States v. Bethea, 598 F.2d 331, 334-35 (4th Cir.
1979) (Defendant’s sister had authority to consent to search of a bedroom
they shared). Thus, due to the nature of her relationship with Defendant,
common authority over the rooms she consented to be searched, and her
comfortable and relaxed state in the home, Caroline Bearson had authority to
consent to the search of Defendant’s home.
Even if, Defendants argues Caroline did not in fact, have authority
over the home based on property rights or unknown information, the facts
Caroline represented to police satisfy the apparent authority doctrine. See
e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990); United States v. Santiago, 405
F. Supp. 2d 65, 72 (D. Mass. 2005). The officers reasonably believed from
Caroline’s assertions that she had authority to consent to a search. (R. at 5).
Thus, her statements that she lived in the home for as long as she wanted,
and could go into any room aside from her brother’s bathroom and bedroom,
justify her authority as a matter of law.
13
B. Caroline ’s Consent to the Search Was Voluntary.
If third-party-consent is not given voluntarily, it is ineffective. Whether a
search is voluntary depends upon the totality of the circumstances. United
States v. Briley, 726 F.2d. 1304 (8th Cir. 1984). Consent is voluntary “if it was
the product of an essentially free and unconstrained choice by its maker,
rather than the product of duress or coercion, express or implied.” United
States v. Fleck, 413 F.3d 883, 891 (8th Cir. 2005). Under a totality of the
circumstances analysis, it is reasonable to believe that Caroline Bearson
voluntarily gave consent.
Defendant will make two arguments against voluntariness: that she
was under the influence of marijuana and coerced by police into giving
consent. (R. at 5). Although both of those – intoxication and coercion – can
render consent invalid, neither is present here. See e.g., U.S. v. Mancias, 350
F.3d 800 (2003); United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993).
“The mere fact that one has taken drugs, does not render consent to search
involuntary; the true question is mental awareness – whether the act of
consent was of one who knew what he was doing and had reasonable
appreciation of the nature and significance of his actions.” United States v.
Castellanos, 518 F.3d 965 (8th Cir. 2008). Surely, medicinal marijuana would
not be legal if the amounts given were capable of rendering a person
completely incompetent. Nothing in the record indicates, and Caroline has
not claimed, that she took more than the prescribed amount. Moreover,
14
Caroline’s mental awareness is evidenced by her prior refusal of consent, her
limiting the scope of the search, and her ability to explain her relationship to
the home when asked by police. (R. at 5).
Second, Caroline was not coerced into giving consent, evidenced by her
initial refusal and later limitation on the scope of consent given. (R. at 5). The
mere presence of officers may create a tense situation but it is far from
sufficient to establish coercion. See e.g., United States v. Kon Yu–Leung, 910
F.2d 33, 41 (2d Cir.1990) (holding a representation to obtain a warrant is not
coercion); United States v. Kelley, 594 F.3d 1010, 1013 (8th Cir. 2010) (holding
the presence of four police officers and several police cars is insufficient);
United States v. Barnum, 564 F.3d 964, 970 (8th Cir. 2009) (holding the
presence of two armed officers is not enough to negate consent without
threats or physical intimidation); United States v. Va Lerie, 424 F.3d 694, 710
(8th Cir. 2005) (same). Caroline understood the nature of the request to
search, she was aware of her rights, and consented of her own free will to
allow police to search. (R. at 5). Moreover, nothing in the record reveals any
overreaching by police. Therefore, Caroline’s consent was given voluntarily.
C. Defendant’s Prior Denial to Search is Irrelevant.
Two recent Fourth Amendment cases have addressed what happens
when an otherwise valid third-party-consent is preceded by a defendant’s
refusal to allow a search. Georgia v. Randolph, 547 U.S. 103 (2006);
Fernandez v. California, 134 S. Ct. 1126 (2014). These two cases distinguish a
15
physically present co-occupant’s refusal from an absent co-occupant’s refusal
much earlier in time. That distinction is dispositive here.
First, “a physically present co-occupant’s stated refusal to permit entry
prevails, rendering the warrantless search unreasonable and invalid as to
him.” Randolph, 547 U.S. at 122. In Randolph, Defendant’s estranged wife
consented to a police search for drugs after Defendant who was also present
unequivocally objected to the search. Id. at 104. Contemporaneous refusal by
one physically present co-tenant is based in “customary social understanding”
rather than property law. Id. at 113. Imagine a co-habitant invites a friend
over and the other co-habitant objects to the friend’s entry at the door of the
home. Id. It is reasonable the friend would have some hesitation faced with a
direct objection to their entry. Id. However, now imagine the co-habitant
objected previously but is not home at the time the friend comes over. Id.
Here, the friend would feel more comfortable entering the home since the co-
habitant is not present. Id. But, this rule is only to be applied to a physically
present co-habitant since refusal made once does not endure forever.
Fernandez, 134 S. Ct. at 1135-36.
Second, seven years later Fernandez asked to extend Randolph to co-
habitants who are lawfully detained or removed by police, and not present to
object to the search. Fernandez, 134 S. Ct. at 1134. In Fernandez, police
observed a violent robbery suspect enter an apartment building and
subsequently heard screams emanating from the building. Id. at 1128. Police
16
ran inside and knocked on the apartment door where a battered young
woman answered. Id. When Defendant came to the door officers arrested
him, and removed him from the scene. Id. Defendant did not object to a
search at the time of his detainment, instead officers later returned to the
apartment, and asked the woman for consent to search, which she agreed to.
Id. There they discovered evidence, tying Defendant to the robbery. Id. This
Court refused to extend Randolph under these facts explaining “an occupant
who is absent due to a lawful detention or arrest stands in the same shoes as
an occupant who is absent for any other reason.” Id. at 1134.
Similarly, the case here turns on the absence of a previously objecting
co-habitant. Defendant did refuse to allow Detective Bearson to search his
home. (R. at 2). But, this refusal happened months before Caroline consented
to the search. (R. at 5). It is now clear from both cases that an objecting co-
habitant must be present for his objection to invalidate consent.
Defendant may that property law gives a co-tenant the right to admit
others over another co-tenant’s superior property right objection as Justice
Scalia hinted to in his concurrence in Fernandez. Fernandez 134 S. Ct. at
1137 (Scalia, J., concurring). However, even Justice Scalia admits that aside
from rumblings among academic circles, there is no authority for that
argument. Id. If this Court chose to accept this premise it would overturn
forty years of precedent that a co-tenant's ability to consent to a search “does
not rest upon the law of property. Matlock 415 U.S. at 173.
17
Since Defendant was not present when Caroline consented to the
search of the home, under this Court’s longstanding precedent, Defendant’s
prior objection is irrelevant as to whether the police search of his residence
was constitutionally permissible.
II. The Trial Court’s Denial of Defendant’s Rule 33(b)(1) Motion for New Trial was Proper.
Defendant filed a motion for new trial under Rule 33(b)(1) when he
discovered a confession, made by Leopold Lara Jr. for the murders of Billy
Smith and Sally Jones, three days after Defendant was convicted of the same
murders. (R at 9).
The trial court properly denied this motion for two alternative reasons.
First, the motion for new trial was properly denied on evidentiary grounds.
Second, alternatively, the determination that the confession was inadmissible
constituted harmless-error.
A. The Trial Court Was Well Within its Discretion to Deny Defendant’s Rule 33(b)(1) Motion for New Trial on Evidentiary Grounds.
Trial courts are empowered with wide discretion to deny motions for
new trial under Rule 33(b)(1). Rule 33 motions for new trial are viewed by
courts as an extraordinary and unusual remedy to be used sparingly. Wright
& Miller Fed. Prac. & Proc. Crim. §583 4th ed. While the justice system has
strong interest in releasing individuals who are wrongfully incarcerated, once
a defendant has had his day in court, as Defendant did, there is reluctance to
upset a valid jury verdict. Id.
18
Appellate courts review a denial of a Rule 33 motion for clear error.
United States v. Johnson, 495 F.3d 951 (8th Cir. 2007). If the confession was
properly determined to be inadmissible, then the trial court’s denial of the
motion must be upheld Id. Accordingly, this Court would have to determine
the trial court clearly abused the broad discretion it is afforded under the law
in order to reverse a decision denying a motion for new trial.
1. Leopold Lara’s Confession is Inadmissible Under Fed. Rule Evid. 804(b)(3) Because it is Not Corroborated to Indicate its Trustworthiness.
The parties agree that Leopold’s confession was hearsay, and that he
was unavailable due to his death. The parties disagree, however, about
whether the confession satisfies the hearsay exception in 804(b)(3).
The statement against interest exception in Fed. Rule Evid. 804(b)(3)
requires that two factors are met: “(1) the statement made is against the
interest of the declarant and; (2) the statement made is supported by
corroborating circumstances, that clearly indicate its trustworthiness, if
offered in a criminal case as one that tends to expose the declarant to
criminal liability”. Fed. R. Evid. 804(b)(3) (West 2015). The government
concedes that the statement was against Leopold’s interest. However,
Defendant fails to prove the second factor required by 804(b)(3), because the
confession of Leopold Lara was not sufficiently corroborated to indicate that
it would be reliable evidence at a new trial. Therefore, the exception in
19
804(b)(3) cannot be used by Defendant to circumvent the rule against
hearsay.
Whether a statement is sufficiently corroborated to indicate its
trustworthiness “can only be answered in light of all the surrounding
circumstances” United States v. Barone, 114 F.3d 1284, 1295 (1st Cir. 1997).
The credibility of evidence is determined by the fact-finder, which in this case
was the trial judge. United States v. Wilkerson, 251 F.3d 273, 278 (1st Cir.
2001). The corroboration inquiry regarding the credibility of witnesses, and
the particular weight to be afforded to any factor or piece of evidence, are for
the fact-finder to determine because of the fact-finder’s special proximity to
the evidence. Id. Appellate courts can never replicate the same perspective
that the fact-finder applies upon later review, which is why such strong
deference is required and such findings are reviewed for an abuse of
discretion. Barone, 114 F.3d at 1296.
Several factors that courts examine to resolve the corroboration
inquiry are: “the general character of the speaker, whether other people
heard the out-of-court statement, whether the statement was made
spontaneously, [and] the timing of the declaration and the relationship
between the speaker and the witness.” (Internal citations removed). United
States v. Alvarez, 584 F.2d 694, 702 n.10 (5th Cir. 1978).
No single factor or circumstance is controlling, but courts tend to place
higher value on certain circumstances corroborating evidence. In Barone, the
20
declarant’s statements were explicitly detailed and made to close relatives in
an entirely non-custodial setting. Barone, 114 F.3d at 1301. The amount of
detail and the setting in which the out of court statement was made were
critical to the Barone court in answering the corroboration inquiry. Id. That
court ultimately determined the evidence would be admissible under
804(b)(3) only because it was explicitly detailed. Id. When detail is lacking,
the corroboration inquiry in 804(b)(3) is rarely satisfied. See e.g., Barone, 114
F.3d at 1301.
In stark contrast to Barone, the circumstances that existed around the
confession made by Leopold Lara tend to show the exact opposite of the
corroboration the exception in 804(b)(3) requires. Leopold is a known
criminal. (R at 8). He made the confession while drunk, and in the process of
being arrested after engaging in a car chase and attempting to shoot at a
police officer. (R at 8). The confession was in no way detailed or coherent.
(R at 8). The arresting officer herself described it as “drunk talk.” (R at 8).
Coincidently, the officer Leopold allegedly made his “confession” to is
currently suspended from the sheriff’s office for her own public intoxication
offense. (R at 7-8). Deputy Finster is the only individual who claims to have
heard the confession, despite Leopold’s friends being in the vehicle with him
prior to the arrest. (R at 8).
Detective Binger’s interview of Leopold was the most persuasive of all
the circumstances surrounding the confession. Leopold denied making the
21
confession, stating that he was “very intoxicated”, he believed that he was
being harassed by the police because of his connections to his father, and that
his actual words were “why don’t you take me to jail for killing those kids”.
(R at 9). In addition, Leopold recanted the confession to Detective Binger in
an interview setting which cuts sharply against corroboration of the earlier
“confession”. United States v. Moore, 936 F.2d 1508, 1516 (7th Cir. 1991).
2. Rule 804(b)(3) is Not an Arbitrary Infringement on the Right to Present a Complete Defense.
Under the Due Process Clause of the Fifth Amendment, criminal
prosecutions must comport with prevailing notions of fundamental fairness.
U.S CONST. amend. V. Courts have long interpreted this standard of fairness
to require that criminal defendants be afforded a meaningful opportunity to
present a complete defense. To safeguard that right, the Court has developed
"what might loosely be called the area of constitutionally guaranteed access
to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).
Taken together, this group of constitutional privileges delivers exculpatory
evidence into the hands of the accused, thereby protecting the innocent from
erroneous conviction and ensuring the integrity of our criminal justice
system. California v. Trombetta, 467 U.S. 479, 485 (1984).
The Constitution prohibits the exclusion of evidence under rules that
serve no legitimate purpose, or that are disproportionate to the ends that
they are asserted to promote. For example, in Holmes, a rule barring
introduction of evidence showing third-party guilt based solely on the judge’s
22
assessment of the strength of the prosecution’s case was held to be arbitrary
to the purpose such rules are designed to serve. Holmes, U.S. at 329. Rule
804(b)(3) as applied in this case, is distinguishable from the rule in Holmes
because it requires the evidence be clearly corroborated by surrounding
circumstances, rather than excluding evidence based on a single factor
subjectively weighed by a judge.
Well-established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other factors such as
unfair prejudice, confusion of the issues, or potential to mislead the jury.
Holmes 547 U.S. at 326. Because Fed. Rule Evid. 804(b)(3) is based on
multiple factors, it is not arbitrary or disproportionate to the purpose it is
designed to serve. Coleman v. State, 321 P.3d 901 (Nev. 2014). Rule 804(b)(3)
is based on the credibility of witnesses and reliability of evidence which
courts routinely find to be constitutional. Holmes, U.S. at 326; Coleman, 321
P.3d at 907. (Interpreting Nev. Rev. Stat. Ann. § 51.345 which is
substantially the same as Fed Rule Evid 804(b)(3)). See also, Montana v.
Egelhoff, 518 U.S. 37, 42 (1996) (plurality opinion) (determining such rules
"familiar, and unquestionably constitutional").
The purpose of exceptions to the rule against hearsay is to provide
avenues for reliable, probative evidence to be admitted at trial. Queen v.
Hepburn, 11 U.S. 290 (1813). Chief Justice Marshall wrote: “The danger of
admitting hearsay evidence is sufficient to admonish Courts of justice against
23
lightly yielding to the introduction of fresh exceptions to an old and well
established rule: the value of which is felt and acknowledged by all.” Id. The
exception in Rule 804(b)(3) furthers a clear purpose by limiting its application
to clearly corroborated evidence and applies only to particular factual
circumstances. Accordingly, rule 804(b)(3) is not an arbitrary and
disproportionate rule of evidence in violation of the constitutional right to
complete defense.
B. Alternatively, the Denial of the Motion for New Trial Was Proper Because the Exclusion of the Confession Was Harmless Error.
Defendant complains that his constitutional right to present a
complete defense has been infringed by the trial court’s evidentiary ruling.
(R. at 9). Therefore, because a constitutional right is at issue, Chapman
harmless-error analysis applies. Chapman v. California, 386 U.S. 18, 87
(1967). “Under the Chapman harmless-error analysis, where a constitutional
violation occurs at trial, and is followed by a contemporaneous objection, a
reversal is necessitated, unless the State proves "beyond a reasonable doubt
that the error complained of did not contribute to the verdict obtained.” State
v. Perry 254 P.3d 961 (2010).
Had the confession by Leopold been admitted as evidence at a new
trial, it would not have probably resulted in the acquittal of the defendant for
the same reasons that made it inadmissible under the rules of evidence. The
lack of corroboration for the confession that was determined in the 804(b)(3)
24
inquiry also suggests the fact-finder would give little weight to the confession
at trial. Therefore, even if, the 804(b)(3) determination by the trial court was
improper, that evidentiary ruling would amount to harmless-error beyond a
reasonable doubt.
For the same reasons that the confession was deemed inadmissible, its
credibility at trial would have been negligible. At the defendant’s trial, he
was convicted of murder beyond a reasonable doubt based upon the testimony
of the witnesses and the physical evidence presented. (R. at 7). Although
confessions are often persuasive, the circumstances surrounding the alleged
confession here discredit it. The defendant presented no evidence of any kind
at trial while the prosecution presented two credible witnesses in conjunction
with physical evidence linking the defendant to the murder weapon. (R. at 7).
The exclusion of Leopold Lara Jr.’s hearsay confession was harmless-error in
light of all the surrounding circumstances in which the “confession” was
made.
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