More than two decades ago Pace Law School professor Bennett L. Gershman observed in a scholarly law review article that “rules of evidence are designed to bring about just and informed decisions. One of these rules, the hearsay rule, is designed to ensure that juries receive reliable evidence, and that out-of-court statements ordinarily are inadmissible. Prosecutors are well aware of these evidentiary restrictions, but occasionally seek to circumvent them … some prosecutors manipulate the hearsay rule and thereby distort the truth-finding process at trial.”


The Confrontation Clause of the Sixth Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right … to be confronted with witnesses against him.” The use of hearsay, out-of-court statements undermines this constitutional protection. The Supreme Court in 2004 stressed that the Confrontation Clause bars the admission of “testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination.”


Interpreting the impact of this Supreme Court decision, the Fifth Circuit Court of Appeals four years later instructed federal and state prosecutors that “police officers cannot, through their trial testimony, refer to the substance of statements given to nontestifying witnesses in the course of their investigation, when those statements inculpate the defendant.”


That’s exactly that a federal prosecutor in the Southern District of Texas did in the prosecution of Pereneal Kizzee.


In 2014, two narcotics detectives, Lance Shultz and Justin Lehman, had a residence in Huntsville, Texas under surveillance based on information they had received that drugs were being sold out of the residence. The detectives were aware that Kizzee was frequently seen at the residence during the daytime.


During the surveillance, the detectives observed an individual later identified as Carl Brown approach the residence, speak on the porch with Kizzee, and leave after a few minutes. Believing a drug sale had taken place, the detectives alerted Huntsville city police officer Taylor Wilkins to follow Brown in order to develop cause to conduct a traffic stop. Wilkins stopped Brown when the officer observed Brown commit a traffic violation. The officer asked Brown for consent to conduct a body search. Brown consented. Wilkins found a small amount of crack cocaine on the suspect who was promptly arrested and taken to the local police station.


In a December 15, 2017 decision, the Fifth Circuit Court of Appeals explained what transpired at the police station: “ … Detective Shultz questioned Brown. In response to Detective Shultz’s questions, Brown stated that he purchased the narcotics found in his hat from Kizzee, and he had purchased drugs from Kizzee on previous occasions. Although Brown had served as a reliable informant for Shultz in the past, Brown later recanted his statements to Detective Shultz, denied implicating Kizzee, and indicated he did not want to testify.”


That should have ended the matter. But it didn’t. The federal prosecutor assigned to the case must have realized he did not have a solid drug case against Kizzee. A search of the residence yielded less than a gram of crack cocaine and a search of Kizzee yielded $1183. The search, however, did produce two rifles and ammunition. A detective who participated in the search told the prosecutor that “the search of the house revealed no evidence of crack cocaine use, nothing consistent with drug distribution, and no proof that Kizzee destroyed any evidence.”


This evidence notwithstanding, the prosecutor sought, and secured, a three count indictment against Kizzee: possession of a controlled substance with intent to deliver; possession of ammunition and firearms by a convicted felon; and possession of a firearm during and in relation to a drug trafficking crime.


The prosecution had a clear-cut case against Kizzee for possessing ammunition/firearms by a convicted felon. He did not have a case for the other two counts. There was simply no admissible evidence that Kizzee had sold drugs out of the residence, except for the recanted statements made by Carl Brown.


Since Brown refused to testify at Kizzee’s trial, the prosecutor decided to allude to his recanted out-of-court statements before the jury through Detective Shultz’s testimony. Kizzee’s trial lawyer, T.B. Todd Dupont, objected to the testimony, rightfully arguing that it was hearsay and that it violated the Confrontation Clause.  The court allowed the incriminating testimony to be presented to the jury.  It was done this way:


Prosecutor: Detective Shultz, did you ask Mr. Brown a series of questions after you arrived at the police department?

Shultz: Yes, sir, I did.

Prosecutor: Did you ask Mr. Brown whether or not he obtained the narcotics that were discovered in his hat from Pereneal Kizzee?

Shultz: Yes, sir, I did.

Prosecutor: Did you ask him if he obtained the narcotics that were discovered in his hat immediately prior to being stopped?

Shultz: Yes, sir.

Prosecutor: Did you ask Mr. Brown whether or not he had seen any additional narcotics at 963 Trinity Cut Off [Drive]?

Shultz: Yes.

Prosecutor: Did you ask him whether or not he obtained drugs from Mr. Kizzee on previous occasions?

Shultz: Yes.


The Government on appeal tried to persuade the Fifth Circuit that since none of Brown’s statements were admitted for their truth, the only testimony the jury actually heard was Detective Shultz’s own “yes, sir” statements. The appeals court did not buy this “backdoor” argument by the Government.


The appeals court found that the introduction of these statements violated the confrontation clause. “Where an officer’s testimony leads ‘to the clear and logical inference that out-of-court declarants believed and said that [the defendant] was guilty of the crime charged,’ Confrontation Clause protections are triggered.”


The Fifth Circuit reversed the drug count and the use of a firearm during a drug transaction count. The trial court had sentenced Kizzee to concurrent 70 month terms on the drug/possession of firearms counts and a consecutive 60-month term for the use of firearm in drug trafficking activity.


The end result: Kizzee ended up with a single 70-month term for the possession of ammunition/firearms count.