Murder, the Hit Man and the Text Messages

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After a jury found him “guilty of the offense of murder” in violation of Texas law and he was sentenced “to imprisonment for life”, Sharieff Dean appealed.  Dean v. State, 2013 WL 4680510 (Court of Appeals of Texas 2013). (The opinion does not say which Texas statute the prosecution was brought under, but I assume it was Texas Penal Code § 19.02.)

According to the opinion, the evidence at trial showed the following:

[O]n the night of July 5, 2010, Tyler police were dispatched to Peach Park in response to a call from Johnnie Kemp. Johnnie had gone to the park to look for her brother, Ronnie Kemp, after being informed by his wife, Rochelle, that she believed something had happened to Kemp at the park. When Johnnie arrived at the park, she called her brother's name several times, and called 911 when he did not answer. When the police arrived, they searched the park and soon located Kemp's body. According to the autopsy report, he had been shot six times and suffered multiple trauma injuries.

Early in the investigation, the police identified several suspects, including [Dean]. [Dean] is married to Kemp's sister, Debbie. Their daughter, Amie Dean, is Kemp's niece. Amie was also identified as a suspect along with several others.

[Dean] and Kemp were both drug dealers, but [Dean] learned Kemp had become a confidential informant. This enraged [him], and he made no secret of his hatred for Kemp. He described him as a `snitch’ and told Debbie Kemp `needed to be dealt with.’ After Debbie realized [Dean] was serious, she warned her brother on several occasions because she wanted him to `be safe.’ 

[Dean] related his hatred of Kemp to Lynetter Edwards, who was a friend of both men and had previously purchased drugs from them. Edwards testified that [Dean] wanted Kemp dead because he was a `snitch.’ She described [his] hatred of Kemp as `intense.’ Edwards also testified that [Dean] told her he wanted to shoot Kemp in the head and that he `couldn't believe’ Kemp was still walking around.

Amie had been staying with Kemp for a short time before the murder. On the evening before the murder, Ronnie told her to leave, but he would not allow her to take all of her personal items with her. She informed [Dean], who had an angry phone call with Kemp on the day of the murder. 

[Dean] then went to see someone that had previous problems with Kemp being a confidential informant. The purpose of the visit was to talk to the person, later determined to be Demetrius Kellum, about `putting a hit’ on Kemp.

That night, Kemp traveled to Peach Park for a meeting with [Dean]. [Dean], Amie, Kellum, and four other individuals arrived first and hid in the bushes along the path where Kemp would pass. 

When he approached, Amie stepped out of the bushes and started talking to him. Moments later, the others stepped out of the bushes, and all but one of them started beating him. Kemp was soon on the ground, and [Dean] shot him six times, including once in the head.

Dean v. State, supra.

Dean raised several issues on appeal, but this post only examines only two of them.  Dean claimed the trial judge “erred in admitting, over his hearsay and confrontation objections, text messages allegedly between Amie Dean and Jaquan Dawson.” Dean v. State, supra.  As to how this issue arose and what it involved, the opinion explains that the prosecution obtained the

July 5, 2010 cell phone records of various individuals, including Amie Dean and Jaquan Dawson. At trial, the State called the custodian of records for Metro PCS, who testified about what those records showed. Through that witness, the State sought to introduce the following text messages purportedly sent between Amie Dean and Jaquan Dawson:

[Amie] Aye I kno the n* * *a whos the hitman fa goldie and he on sum mo n* * *as heads n tyler my dad kno em that's how I seen the n* * *a but look its all bad and sum

[Jaquan] O well ok so do u go to work today

[Amie] that had said to b snitchn keep it to urself but im lettn u kno without lettn u kno kelly [Jaquan's father] name came up

[Amie] Lata but its sum crazy shyt but he stright killa he jus got out 4m doin 20 yrs fa killen a n* * *a he was sayin he was gne make an example of a few n* * * *s

[Jaquan] Bae id give a f*k about him datz not wat I wanna talk about do u wanna b wit da n* * *a or sum

[Amie] I was tellin u cuz the man brought up ya dad name and naw

Dean v. State, supra. The opinion explains, in a footnote, that the “victim was also known as `Goldie.’”  Dean v. State, supra.

The Court of Appeals began its analysis of Dean’s arguments with the issue of hearsay, noting that the prosecution argued “that the text messages were admissible as statements by a co-conspirator in furtherance of the conspiracy and as statements against penal interest.”  Dean v. State, supra.  As Wikipedia explains, hearsay is

the legal term for testimony in a court proceeding where the witness does not have direct knowledge of the fact asserted, but knows it only from being told by someone. In general the witness will make a statement such as, `Sally told me Tom was in town,’ as opposed to `I saw Tom in town,’ which is direct evidence. Hearsay is not allowed as evidence in the United States, unless one of [a number of] exceptions applies to the particular statement being made.

And as I pointed out in a prior post, hearsay is

`a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.’ Federal Rules of Evidence, Rule 801(c). The federal system and every state defines hearsay similarly, and they all recognized basically the same set of exceptions to the rule. As I explained earlier, hearsay isn’t allowed, as a general rule, because it denies the party against whom it is introduced an opportunity to effectively challenge its accuracy and reliability. A rumor would be hearsay; so if I took the stand and said I’d heard a rumor that you’re an axe murderer, you couldn’t do much to attack the basic accuracy of the content of the rumor. You could try to attack my credibility, but since I’m saying I heard this story from John Doe, and I trust John Doe, you’re pretty well stymied in attacking the inherent believability and accuracy of the axe murderer story.

The Court of Appeals, though, did not find it necessary to address the hearsay issue:  The court found it did not need to decide “whether the text messages are inadmissible hearsay because even if they are, any error in admitting them is harmless.”  Dean v. State, supra.  As Wikipedia explains, a “harmless error is a ruling by a trial judge that, although mistaken, does not meet the burden for a losing party to reverse the original decision of the trier of fact on appeal, or to warrant a new trial.”

As the standard of harmless error that applied here, the court explained that the

improper admission of hearsay is nonconstitutional error. See Coble v. State, 330 S.W.3d 253 (Texas Court of Criminal Appeals 2010). Therefore, the error will be considered harmless, if after examining the record as a whole, we are reasonably assured the error did not affect the appellant's substantial rights. Texas Rule of Appellate Procedure 442(b). . . . An error is considered to affect an appellant's substantial rights when the error had a substantial and injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266 (Texas Court of Criminal Appeals 2010).  Overruling an objection to evidence will not result in reversal when other such evidence was received without objection, either before or after the complained-of ruling. . . .

Dean v. State, supra. 

The Court of Appeals then applied this standard to the text messages at issue here:

In her text messages, Amie Dean referred to a `hitman’ for Kemp and stated that she had met him because her dad knows him. But Tajshay Penny also testified about the `hit.’ Penny testified that on the day of the murder, she traveled with [Dean] and Amie to a Tyler location. As they drove, [Dean] said he was going to talk to a `guy that had been having previous problems with Ronnie about him being a confidential informant.’ [Dean] also said he was going to talk to the man about `putting a hit out on Ronnie.’ This testimony was admitted without objection.

Dean v. State, supra. 

The Court of Appeals held, therefore, that “even if the trial court's admission of the text messages was error, we cannot conclude that [Dean] was harmed.”  Dean v. State, supra.  Having disposed of the hearsay issue, the court took up Dean’s Confrontation Clause argument.  As Wikipedia notes, the Confrontation Clause of the 6^th Amendment

to the United States Constitution provides that `in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.’ Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The 14th Amendment makes the right to confrontation applicable to the states and not just the federal government. The right only applies to criminal prosecutions, not civil cases or other proceedings.

The Court of Appeals began its analysis of Dean’s Confrontation Clause argument by explaining that to

protect a defendant's 6th Amendment right to confront witnesses, the Supreme Court in Crawford v. Washington restricted the admissibility of testimonial hearsay statements. 541 U.S. 36 (2004). 

Under Crawford, testimonial hearsay statements of a person who does not appear at a defendant's trial are inadmissible unless that person was unavailable to testify and the defendant had a prior opportunity for cross examination. Whether a particular statement is testimonial is a question of law. De La Paz v. State, 273 S.W.3d 671 (Texas Court of Criminal Appeals 2008). Accordingly, we review Crawford issues de novo.

Dean v. State, supra.  (As Wikipedia notes, the Crawford Court changed the focus of the right to confront witnesses “from whether the evidence offered had an `indicia of reliability’ to whether the evidence is testimonial hearsay.) 

 

The Court of Appeals explained that in determining whether a statement is

`testimonial,’ we use the standard of the objectively reasonable declarant standing in the shoes of the actual declarant. Wall v. State, 184 S.W.3d 730 (Texas Court of Criminal Appeals 2006). The determination does not depend on the declarant's expectations.  See Michigan v. Bryant, 131 S.Ct. 1143 (2011) (objective inquiry is required). A statement is more likely to be testimonial if the person who heard, recorded, and produced the statement at trial is a government officer. Crawford v. Washington, supra. Casual remarks to acquaintances are generally nontestimonial. Crawford v. Washington, supra.

Dean v. State, supra. 

After applying these standards, the court explained that in this case, the

quoted portion of Amie's text messages to Jaquan related to the anticipated `hit’ on Ronnie Kemp. In these messages, Amie stated that she had met the `hitman’ because her dad knows him. She also provided information about the man's most recent criminal history and his plan to make an example of some people he believed were `snitchin,’ possibly including Jaquan's father.

But the text messages were casual statements to a friend. This is not a situation that `would lead an objective witness reasonably to believe that the statement[s] would be available’ for later judicial proceedings. See Crawford v. Washington, supra. Therefore, the statements in the text messages were nontestimonial, and the Crawford rule pertaining to testimonial hearsay is not applicable here. 

Dean v. State, supra. 

The court therefore found that the trial judge “did not err in overruling [Dean’s] confrontation objection.”  Dean v. State, supra.  Since it rejected his hearsay and confrontation arguments, and the other arguments he made on appeal, the Court of Appeals affirmed his conviction and sentence.  Dean v. State, supra.