The Critical Need For Timely And Specific Objections During A Criminal Trial
By Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair
There is rarely a time when a defense attorney does not find the need to object during a criminal trial because the prosecution either attempts to introduce inadmissible evidence or engages in some questionable conduct concerning the proffer of evidence.
Tex. R. Evid. 103(a) (1) requires a timely objection to the admission or exclusion of questionable or irrelevant evidence. The objection must be accompanied by a specific reason for the objection. Id. See also: Tex. R. App. P. 33.1(a) [defendant must make a timely and specific objection each time inadmissible evidence is offered at trial and secure an adverse ruling from the trial court on the objection]; Geuder v. State, 115 S.W.3d 11, 13 (Tex. Crim. App. 2003).
Tex. R. Evid. 103(a)(1), however, relieves a defense attorney of the need to object each time the inadmissible evidence is offered if he either (1) requests a running objection or (2) objects to the evidence outside the presence of the jury. See, Geuder, 115 S.W.3d at 13.
These rules governing objections apply especially to hearsay evidence. See: Poindexter v. State, 153 S.W.3d 402, 409 (Tex. Crim. App. 2005). Tex. R. Evid. 802 provides that inadmissible hearsay admitted at a criminal trial without objection by defense counsel does not lose its probative value because it is hearsay. Id.
This brings us to the tale of two cases involving hearsay evidence. Objection to this evidence was properly handled by one defense attorney but horribly mangled by another. We’ll examine the latter case first.
Francisco Vasquez was tried and convicted in June 2005 for the murder of Eduardo Cantu in 2004. The jury assessed punishment at 99 years in the Texas Department of Criminal Justice. See: Vasquez v. State, ___ S.W.3d ____, 2008 Tex.App. LEXIS 2952 (Tex.App.-Corpus Christi April 24, 2008).
Vasquez appealed his conviction raising a number of issues, including the argument that the trial court erred by admitting evidence over hearsay and irrelevancy objections by his defense counsel. But Vasquez’s appellate counsel was confronted with the immediate problem that defense counsel had not properly objected to the hearsay testimony. The hearsay testimony was presented through three law enforcement officers: Canales, Sanchez, and Sifuentes. At one point during Officer Canales’ testimony, defense counsel objected to Canales telling the jury what a woman had told him. Defense counsel told the trial court, “I’m going to reiterate my objection.” The appeals court pointed out two fatal procedural flaws with the objection. First, defense counsel had not made any previous hearsay objection, and, second, he did not obtain a ruling on the “reiterated” objection. The appeals court then underscored this failing by noting that defense counsel objected twice more during Canales’ testimony on the hearsay issue but once again failed to obtain a ruling on either objection. The appeals court said these tactical errors by defense counsel failed to preserve these objections for appellate review. Id., at LEXIS 18-19.
Officer Sanchez was then called by the prosecution. When this officer first mentioned hearsay evidence, defense counsel objected based on his previous hearsay objections. The trial court overruled this general “running” objection. Officer Sanchez went on to testify twice more about hearsay statements allegedly made by the defendant. Defense counsel did not renew his “running” objection. Because defense counsel did not properly object to Officer Sanchez’s testimony, this alleged hearsay issue was also precluded from being heard on direct appeal. Id., at LEXIS 19.
Finally, Officer Sifuentes testified about an alleged statement made to him by Vasquez’s wife during the search of her apartment. Vasquez’s wife had invoked her spousal privilege during the guilt phase of the trial and did not testify. While Sifuentes did not provide any specifics about the wife’s statement, he did testify that the wife’s statement resulted in investigators securing an arrest warrant for Vasquez. Defense counsel made an objection to this testimony based on hearsay and spousal privilege. The objection was sufficient to have the hearsay issue heard on appeal but not the spousal privilege objection. Id., at LEXIS 21-23.
On appeal Vasquez’s appellate counsel argued that the prosecution’s use of his wife’s statement through Sifuentes by inference implicated him in the death of Cantu. Id., at LEXIS 24-25. The appeals court rejected this argument, finding:
“At best, the jury may have deduced that Minerva told the investigators something which led them to acquire a warrant. The trial court could have reasonably determined that this ‘inferential leap did not provide the requisite degree of certainty’ that the State’s sole intent in pursuing this line of questioning was to convey to the jury’ the contents of Minerva’s out-of-court statement. Therefore, the trial court’s ruling that the testimony did not fall within the scope of rule 801(d) was ‘within the zone of reasonable disagreement,’ and the trial court did not abuse its discretion in allowing Investigator Sifuentes’s testimony.” Id., at LEXIS 26-27 [Internal citations omitted].
The failure to a defense attorney to properly object at a criminal trial can generally be attributed to lack of preparation. The attorney may know to object at a critical point but does not know how to frame his objection. The client inevitably suffers the harm caused by counsel’s deficiency.
This point is clearly underscored by the proper objection defense counsel made to hearsay evidence in our second case. This case involves the May 14, 2001 shooting death of Leroy Batiste in New Orleans. The local police were aware that there was animosity between Batiste and two of Bruce Taylor’s brothers. The brothers had been arrested for shooting Batiste in the leg ten days before his death. See: Taylor v. Cain, ___ F.3d ____, 2008 U.S. App. 21405 (5th Cir. Oct. 13, 2008).
So it was natural that Detective Fred Bates was assigned to investigate the Batiste murder since he was aware of the previous shooting incident. While at the crime scene, a citizen slipped a note to the detective indicating that he wanted to talk to Bates away from the crime scene. A short time later Bates met with the anonymous source several blocks from the crime scene. From that conversation, the detective developed information that Taylor was a suspect. Id., at LEXIS 2.
As the investigation progressed, another witness named Osborne Parker came forward. He identified Taylor by name, saying that the two had grown up together. Parker selected Taylor’s photo from a photo lineup put together by Bates. The local police searched the apartment where Taylor lived with his parents and two brothers. The search did not yield any weapons or clothing that implicated Taylor in Batiste’s murder. Taylor was nonetheless arrested, tried, and convicted of second degree murder. He was sentenced to a life sentence without the benefit of probation, parole or suspension of sentence.
As part of the chronology of the case, the Fifth Circuit discussed Parker’s testimony at Taylor’s trial
“At trial, Parker testified that he once lived near both Taylor and the victim Batiste. He had known Taylor almost his entire life, but they were not close friends. Batiste had not been a good friend, either. According to Parker, on the night of the murder, he saw Taylor sitting in his doorway. Parker was looking for his friend Keyoka Riley. He asked Taylor if he had seen her. Taylor replied that he had not seen her, and then told Parker that ‘I’m just kind of messed up,’ ‘I’m just kind of fucked up right now in the head.’
”Parker found Keyoka Riley, and they walked to a store across the highway. On the way back, Parker heard gunshots. He looked towards the sounds and saw someone standing over the victim and shooting. The shooter ran through a cut in the apartment complex, but he was not running towards Taylor’s apartment, which was perhaps two apartment buildings away from the scene of the shooting. Parker said he went to his own apartment immediately after the shooting to telephone the police, then went back to comfort the victim, who was still conscious.
”Parker described the perpetrator as wearing the same clothing that he had just seen the Defendant wearing — black jeans and a dark shirt, with a bandana around his neck. He admitted that he did not immediately recognize the Defendant. Twenty minutes after the shooting, Parker saw Taylor again. It was at that time that he ‘thought about it,’ i.e., that the shooter might have been Taylor. By this time, Taylor was wearing a white shirt and shorts. Taylor said he had been in the shower at the time of the shooting. Parker felt that Taylor’s shower explanation seemed contrived. In light of what had happened between Batiste and the Defendant’s brothers, he thought Taylor was lying.
”Parker conceded on cross examination that the shooter only ‘basically’ looked like the Defendant. When asked whether that meant the shooter looked like the Defendant, was ‘similar’ to him, ‘could have been’ him, or ‘maybe’ was him, Parker replied ‘[a]ll of that.’ When pushed as to how definite he was, Parker said that ‘it was him.’ Defense counsel pointed out that ‘basically’ did not mean ‘it was him,’ to which Parker responded, “okay.”
”Although Parker gave his name to police when he called 911 immediately after the shooting, he spoke to no officers at the scene. He told no one that night that Taylor was the shooter. Parker testified on redirect examination that he did not contact Detective Bates immediately because he did not want to get involved and because he felt that the police would solve the crime, considering the “feuding” between Bruce Taylor’s brothers and the victim.
”Parker admitted that the district attorney’s office gave him money to rent a house. He denied that was why he got involved in the case. Parker stated that he did not want to get involved in the first place. He emphasized that he had seen the victim dying on the ground and that it had greatly disturbed him. That experience is what prompted his action.
”At the time of the shooting, Osborne Parker lived with Keyoka Riley in Riley’s mother’s apartment. Riley confirmed Parker’s testimony that they had gone to the store and heard shots on their way back. Riley stated that Parker ran into their apartment, entered before her, and held the door open for her to bring in her daughter. But Riley testified that she did not see anyone shooting and did not believe Parker could have seen anything from where they were. She also stated that if Parker had seen a person, he could not have made an identification because of darkness. She said that Parker never told her that he saw Bruce Taylor shoot the victim, despite the fact that they generally talked about everything. Significantly, Riley also indicated that she did not think it was a good idea for Parker to testify. In addition, Parker testified on rebuttal that Riley told him that she was going to testify for the defense because she did not want anything to happen to Parker.” Id., at LEXIS 3-6.
Taylor’s defense counsel presented an alibi defense. Taylor’s parents and fiancée testified that he was in the shower when they learned from someone else that Batiste had been shot. Id., at LEXIS 6. The defense was not persuasive as evidenced by the guilty verdict. Following the guilty verdict, Taylor appealed his conviction to the Louisiana Supreme Court which upheld the conviction. Taylor next pursued post-conviction relief in the state court system. He was denied relief at this level as well.
Then in March 2006 Taylor filed for federal habeas relief pursuant to 28 U.S.C. § 2254. One of the claims presented in his federal habeas petition was that the state trial court “erred in allowing the State to admit and argue as substantive evidence the hearsay statements of eyewitnesses.” This hearsay claim was based on Detective Bates’ testimony about the “mystery witness” who slipped him the note at the crime scene. Taylor’s defense counsel had properly preserved the issue for federal review with timely objections during the trial and by properly presenting the issue on direct appeal.
Detective Bates testified as follows:
A . . . . I did receive a note saying that someone wanted to speak to me. The person did not want to talk to me on the scene due to the fact that, again, this is a scatter site area where everybody knows everybody and to be seen talking to the police in some instances is not — not kosher in the neighborhood. So I got in my vehicle, went approximately three to four blocks away from the area where I could not be seen, had a conversation with an individual and during this conversation, learned some information. I took this information that I learned and from that information was able to develop a suspect.
Q. And Detective, as per this end of your investigation, what was the name of your suspect?
A. First name only was Bruce. The description given was he is one of the brothers of the Molieres. . . .
A . . . This description that I got . . . was only the fact that the perpetrator was Bruce . . . . Id., at LEXIS 7-8.
During its rebuttal argument, the prosecution gave additional credence to Bates’ testimony when it responded to statements made by defense counsel in his closing argument that there had been no corroboration of Parker’s inconclusive identification of Taylor as Batiste’s killer.
Prosecutor: Now, corroboration? You want corroboration? [Defense counsel] seems to forget one little detail in the investigation of this case. Detective Bates told you that he spoke to several people . . . within the days following–
Def. counsel: I’m gonna object if he’s gonna be talking about what anybody said to this officer that’s not here today.
Court: He has a right to make his argument, Mr. Meyer. I do not know what he’s going to say. . . . All right, proceed.
Prosecutor: Detective Bates spoke to three people before he even spoke to Osborne Parker. He began his investigation. He posted up his cards. He did everything that he sat here and explained all very frankly to you what he did. What we forget and what’s easy to overlook is that Detective Bates developed the name of a suspect before he had any idea who Osborne Parker was. He had the name Bruce Taylor already. . . . In this case we had a suspect and it was corroborated by Osborne Parker. Id., at LEXIS 8-9
Defense counsel once again timely objected and was again overruled by the trial court. The federal district court had a different opinion. It concluded that the hearsay evidence presented through Detective Bates was crucial to the State’s case. The court noted that there had been no physical evidence to link Taylor to the crime and that Parker’s testimony “was equivocal at best.” The district court reversed Taylor’s conviction, finding that his Sixth Amendment Confrontation Clause rights had been violated by Bates’ testimony. Id., at LEXIS 10-11.
The State of Louisiana timely appealed the district court ruling to the Fifth Circuit. After an extensive analysis that concluded the Confrontation Clause issue had been properly raised and exhausted in state court on direct appeal, the Fifth Circuit turned its attention the Sixth Amendment issue:
“ … Under the Sixth Amendment, a criminal defendant has the right ‘to be confronted with the witnesses against him.’ Coy v. Iowa, 487 U.S. 1012, 1015, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). The Confrontation Clause generally bars witnesses from reporting the out-of-court statements of nontestifying declarants. See Crawford v. Washington, 541 U.S. 34, 54-56, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Crawford was decided after the completion of Taylor’s direct appeal. But even under the Supreme Court’s earlier decisions, the Confrontation Clause generally barred the admission of statements made by out-of-court declarants for the truth of the matter asserted. Ohio v. Roberts, 448 U.S. 56, 65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). The only exception was when the declarant’s statement fell into a ‘firmly rooted hearsay exception’ or when there was a showing that the statement bore ‘particularized guarantees of trustworthiness.’ Id. at 66. This exception assumed the declarant was legitimately unavailable to testify after ‘the prosecutorial authorities  made a good-faith effort to obtain his presence at trial.’ Id. at 74.
”Detective Bates testified about highly incriminating information from the unidentified eyewitness. The prosecution’s reference to that testimony in closing argument reinforced it. There was no hearsay exception, firmly rooted or otherwise, and Taylor was denied his right to confront the witness.
”Police officers cannot, through their trial testimony, refer to the substance of statements given to them by nontestifying witnesses in the course of their investigation, when those statements inculpate the defendant. When the statement from an out-of-court witness is offered for its truth, constitutional error can arise. This principle is well established. See 2 CHARLES T. MCCORMICK, MCCORMICK ON EVIDENCE § 249, at 104 (4th ed. 1992); see also United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (‘Allowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination . . . would eviscerate the constitutional right to confront and cross-examine one’s accusers.’) This Circuit has applied this analysis. See, e.g., United States v. Hernandez, 750 F.2d 1256, 1257-58 (5th Cir. 1985)(inadmissible hearsay for a DEA agent to testify that ‘[w]e received a referral by the U.S. Customs as [defendant] being a drug smuggler’); United States v. Kang, 934 F.2d 621, 627 (5th Cir. 1991) (similar).
”Louisiana state courts have recognized this principle. See, e.g., Hearold, 603 So.2d at 737(‘Law enforcement officers may not testify as to the contents of an informant’s tip because such testimony violates the accused’s constitutional right to confront and cross-examine his accusers.’)
”Applying this understanding, it is apparent that Detective Bates’s testimony indicating that an unidentified, nontestifying witness identified the defendant as ‘the perpetrator,’ along with the prosecution’s references to that testimony in closing argument, was hearsay. Under Ohio v. Roberts, the admission of such hearsay statements against a criminal defendant violates the Confrontation Clause, unless the declarant’s statement either falls within a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness. Neither of those bases was affirmatively shown, nor is either established by the record. Accordingly, the admission of this testimony against Taylor was a violation of Roberts, which was clearly established Supreme Court precedent at the time of Taylor’s trial.” Id., LEXIS 19-22.
Clearly, based on the foregoing analysis of established jurisprudence involving testimony by police officers who refer to the substance of statements given to them by non-testifying witnesses during their investigation, Franciso Vasquez’s attorney had ample basis to challenge Officer Sifuentes testimony referring to the statement given to him by Vasquez’s wife on the ground that it violated his client’s Sixth Amendment Confrontation Clause rights. Sifuentes testified that the “statement” given to him by Vasquez’s wife provided the police with the probable cause to secure the warrant to arrest Vasquez. But defense counsel chose to base his objection to Sifuentes’ testimony purely on the premise that it inadmissible hearsay evidence rather than on the stronger ground that it was a Sixth Amendment constitutional violation.
Defense counsel compounded this grievous tactical error by botching his earlier hearsay objections to officers Canales and Sanchez’s testimony. This is not simply hindsight criticism by one attorney against another. Frankly, in the heat of battle, whether by mistake or by strategic error, it can happen to even the best intentioned lawyer. Rather, it is a caution that all defense attorneys must be prepared to not only object at the proper times during a trial but to fully understand the legal basis for their objection. Vasquez’s attorney did not properly object and he did not assert a proper legal ground upon which to base his objections. This conclusion was drawn by the court of appeals in its decision to uphold Vasquez’s conviction, a conclusion that warns us all of our failure to properly object.