Steve’s Appeals – Part 1

Parts of this post were used in Aggravated.

Two Arguments the Court Got Wrong

In Steve’s first appeal (to the 19th Court of Appeals, in Keegan, Texas), he made four arguments, all of which the court ruled against. I’m only going to deal with Arguments 2 and 3 in this post, but here’s a quick overview of Arguments 1 and 4.

Argument 1 was that the trial court was wrong to allow hearsay evidence about Hanna’s identification of Steve from Blake Goudy (the other expert witness besides Ada Dixon). Since Goudy wasn’t the first adult Hanna told (an eighteen year old boy she knew, Josh Chilmark, was), Goudy shouldn’t have qualified as an “outcry” witness. The court let him give hearsay testimony anyway. The appeals court agreed that he wasn’t the outcry witness, but said they didn’t think his testimony did any harm.

Argument 4 was that the court was wrong to not give Steve a new trial based on a juror’s testimony about misconduct in the jury room. I mentioned that argument in the previous post, Legal Rules in Conflict.

The appeals court did cite various legal reasons for rejecting Arguments 1 and 4, and it did with 2 and 3 also, but I think the ultimate reasons for rejecting 2 and 3 were short-sighted and ridiculous.

Argument 2 was that the trial court was wrong to have allowed the jury to know about Steve’s 1982 conviction for marijuana possession.

Argument 3 was that Steve’s attorney was ineffective for not objecting when Dixon testified that she knew Hanna was truthful (which is a legal no-no), and for not asking for a mistrial. Let’s look briefly at both of those arguments.

Argument 2, The Marijuana Conviction: Normally, evidence of a previous conviction (especially if it’s more than ten years old) can’t be used in a trial because it may unfairly influence the jury. I cover this in much more detail in Aggravated, but here are the basic details. When Steve was a 22-year-old club DJ in 1982, and was working at an out of town club, his boss gave him a package to drop off at another club on his way home. Police stopped his car, and found that the package contained marijuana. Steve was arrested, and his boss hired a lawyer who told him if he would admit to the possession he would get him off. Steve followed his advice, and was given a four-year suspended sentence, with community supervision. He met all the requirements of his suspension, and the sentence was supposed to be expunged, but it wasn’t.

In his first 2006 trial, the prosecutor, Elmer Ross, asked Steve whether he would do anything to harm his accuser or his wife or his daughter. Steve answered “No, sir” to all of those. Ross argued that Steve had opened the door to his past mistakes by saying that, and wanted to question Steve about the conviction. Steve’s attorney objected, of course, but after a lengthy discussion Judge Hawes allowed it and Steve admitted that he had been convicted of marijuana possession. That trial ended in a mistrial.

In the next trial, less than a month later, Steve followed his new attorney’s advice and chose not to testify, but Ross asked Judge Hawes (since Steve couldn’t testify) if he could read part of the first trial’s testimony to the jury. Hawes agreed, so the new jury got to hear about Steve’s previous conviction, anyway, even though he couldn’t defend himself. In Steve’s appeal, his argument was that the trial court was wrong when it allowed the jury to hear evidence of Steve’s 1982 conviction for possession of marijuana because of the age of the conviction and his clean record for twenty-two years after that.

Argument 3, Ineffective Assistance of Counsel: As I’ve already said, Dixon gave direct testimony about Hanna’s truthfulness. Dixon testified, in response to Cleveland Sanford’s question, “What if Hanna was lying,” by saying, “I know the allegations are true.” Since Dixon wasn’t present during any of the alleged incidents, she had no direct evidence of any kind, and it’s strictly prohibited for her to say that as if it were a fact. Judge Hawes directed the jury to disregard Dixon’s statement, but Steve’s appellate attorney argued that Sanford should have immediately requested a mistrial. Since he didn’t, Sommers argued that Sanford hadn’t done an effective job, so he should be given a new trial.

The Keegan court didn’t agree with any of Sommers’ arguments. In the next post I’ll look at why the court’s rationale was flawed and self-serving; and explain why I believe its decision on both of them was incorrect.

 Michael Sirois

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