Friday, January 29, 2016

Ineffective Assistance of Counsel, SpoofCards and Habeas Corpus

This post examines a recent opinion from the Appellate Court of Connecticut:  Bozelko v. Commissioner of Correction, 2016 WL 305628 (2016).  The court begins the opinion by explaining what the appeal involved and who was bringing it:
Chandra Bozelko appeals from the judgment of the habeas court denying her petition for a writ of habeas corpus. She claims the court erred in denying her claim of ineffective assistance of trial counsel due to a failure to investigate effectively. She further argues that the court abused its discretion in denying certification to appeal. We dismiss the appeal.

The petitioner claims her counsel provided ineffective assistance in the course of defending her against charges of jury tampering. She pleaded guilty to and was convicted of making telephone calls to jurors during her criminal trial on certain otherwise unrelated prior charges. The habeas court recited the following facts with respect to the jury tampering: `On the evening of October 4, 2007, while the petitioner's criminal jury trial was underway, several jurors assigned to the case received telephone calls at their residences from a telephone number identified on their respective caller identification systems as originating from Kate's Paperie, a business establishment in Greenwich, Connecticut. A male caller asked the jurors questions regarding their status as jurors and instructed the jurors that they should not find the petitioner guilty of the pending charges. The petitioner submitted an affidavit to the court indicating that she received several calls from jurors at her residence on October 8, 2007.’

`The police conducted an extensive investigation and determined that the calls did not originate from Kate's Paperie or from the jurors' residences. The police determined that the caller identification information for these calls had been “spoofed,’ a process whereby the caller attaches false identity contact information to the communication. The police discovered that a ‘SpoofCard’ was purchased on April 12, 2007, with the computer located in the petitioner's residence and her mother's credit card. A SpoofCard allows the user to change caller identification information through the use of a computer service. A SpoofCard user also has the ability to change his or her voice to that of a male or female.’

`The call records showed that 123 calls were made with the [Spoof]card beginning on April 12, 2007, and ending on October 4, 2007. Ninety-four of the calls originated from the petitioner's father's fax machine phone number, nineteen of the calls originated from the petitioner's residential phone number and ten of the calls originated from a Tracfone phone number. The Trac-fone, a prepaid cell phone, was activated from the computer in the petitioner's residence. The SpoofCard and the Tracfone were used to place the phone calls to the jurors on October 4, 2007. The calls took place over the span of an hour and a half, beginning at 7:22 p.m. and ending at 8:52 p.m. All of the phone calls made using the SpoofCard were recorded.

`A second SpoofCard was purchased on October 8, 2007, with the computer located in the petitioner's residence and a prepaid credit card that was found in the petitioner's bedroom when the search warrant was executed. The second SpoofCard and the Tracfone were used to make calls to the petitioner's residence from phone numbers spoofed to appear as if the calls originated from the jurors' residences. There were no recordings made of these calls.’ The habeas court further explained that, in connection with this incident, `[t]he petitioner was charged with six counts of attempt to commit tampering with a juror in violation of General Statutes §§ 53a–49 (a)(2) and 53a–154 one count of false statement in the second degree in violation of General Statutes [Rev. to 2007] § 53a–157b and one count of tampering with physical evidence in violation of General Statutes § 53a–155(1). The petitioner was also charged with [crimes] arising from the same allegations in a separate case in the Stamford judicial district. The petitioner's exposure on these charges was approximately fifty years.’
Bozelko v. Commissioner of Correction, supra.  You can, if you are interested, read more about the case and the facts it arose from in the articles you can find here and here
The Appellate Court went on to outline the legal proceedings that led to this appeal:
Attorney Dean Popkin represented the petitioner. The petitioner entered a guilty plea, under the Alford doctrine, to three counts of attempt to commit tampering with a juror on March 30, 2010. On May 24, 2010, the petitioner was sentenced to twenty-seven months incarceration on each count, to run concurrently, for a total effective sentence of twenty-seven months imprisonment. The state nolled the remaining charges against the petitioner in both this case and the Stamford case.

The petitioner filed a petition for a writ of habeas corpus in August, 2010. . . . [S]he claimed her trial counsel was ineffective for failing to conduct an adequate pretrial investigation prior to the entry of her plea. She claimed he did not effectively investigate the petitioner's innocent use of another telephone line in the same time frame in which the telephone calls to the jurors were taking place, and he did not effectively investigate all of the telephone records. The court denied the petition and found the petitioner had failed to establish both deficient performance and prejudice. The habeas court denied her petition for certification to appeal. This appeal followed.
Bozelko v. Commissioner of Correction, supra.
The Appellate Court went on to explain that
[a]s a threshold matter, the petitioner claims that the habeas court abused its discretion in denying her petition for certification to appeal. `Faced with the habeas court's denial of certification to appeal, a petitioner's first burden is to demonstrate that the habeas court's ruling constituted an abuse of discretion. . . . A petitioner may establish an abuse of discretion by demonstrating that the issues are debatable among jurists of reason . . . [the] court could resolve the issues [in a different manner] . . . or . . . the questions are adequate to deserve encouragement to proceed further. . . .The required determination may be made on the basis of the record before the habeas court and applicable legal principles. . . .

In determining whether the habeas court abused its discretion in denying the petitioner's request for certification, we necessarily must consider the merits of the petitioner's underlying claims to determine whether the habeas court reasonably determined that the petitioner's appeal was frivolous. In other words, we review the petitioner's substantive claims for the purpose of ascertaining whether those claims satisfy one or more of the three criteria . . . adopted by [our Supreme Court] for determining the propriety of the habeas court's denial of the petition for certification. Absent such a showing by the petitioner, the judgment of the habeas court must be affirmed.’ . . . Ham v. Commissioner of Correction, 152 Conn. App. 212, 98 A.3d 81, cert. denied, 314 Conn. 932, 102 A.3d 83 (2014). Resolution of the petitioner's threshold claim that the court abused its discretion in denying her petition for certification to appeal requires an examination of her underlying claims, and, thus, we address these claims in turn.
Bozelko v. Commissioner of Correction, supra.  You can, if you are interested, read more about habeas procedure in the United States in the article you can find here.
The court then explained that in this proceeding Bozelko argued that the habeas corpus
court erred: (1) in finding that her counsel's performance was not deficient, and (2) in using an incorrect standard for determining prejudice. We are not persuaded.

`In a habeas appeal, this court cannot disturb the underlying facts found by the habeas court unless they are clearly erroneous, but our review of whether the facts as found by the habeas court constituted a violation of the petitioner's constitutional right to effective assistance of counsel is plenary.’ (Internal quotation marks omitted.) Williams v. Commissioner of Correction, 117 Conn. App. 510, 978 A.2d 1167 (2009).
Bozelko v. Commissioner of Correction, supra.
The Appellate Court went on to explain that the
`governing legal principles in cases involving claims of ineffective assistance of counsel arising in connection with guilty pleas are set forth in Strickland [v. Washington,466 U.S. 668 (1984)] and Hill [v. Lockhart, 474 U.S.52 (1985)]. [According to] Strickland, [an ineffective assistance of counsel] claim must be supported by evidence establishing that (1) counsel's representation fell below an objective standard of reasonableness, and (2) counsel's deficient performance prejudiced the defense because there was a reasonable probability that the outcome of the proceedings would have been different had it not been for the deficient performance. . . .The first prong requires a showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed ... by the [s]ixth [a]mendment. . . . Under . . . Hill . . .  which . . . modified the prejudice prong of the Strickland test for claims of ineffective assistance when the conviction resulted from a guilty plea, the evidence must demonstrate that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.’ . . . Patterson v. Commissioner of Correction, 150 Conn.App. 30, 89 A.3d 1018 (2014). An ineffective assistance of counsel claim `will succeed only if both prongs [of Strickland as modified by Hill ] are satisfied.’ . . . Mozell v. Commissioner of Correction, 291 Conn. 62, 77, 967 A.2d 41 (2009).
Bozelko v. Commissioner of Correction, supra.
The Appellate Court then took up Bozelko’s argument that the habeas court judge
erred in determining that Popkin's performance was not deficient. She contends that he rendered deficient performance in that he failed to examine the telephone records provided by the state during discovery, which show telephone calls made on the night in question from the landline at her residence, and that he failed to interview one Willie Green, since deceased. Green, an employee at Kinsella Commons, a mental health and substance abuse treatment center, allegedly was the recipient of an innocent call from the landline at the residence on the night in question. The petitioner claims that Green could have provided useful information about the call. We disagree with the petitioner's claim in this regard.
Bozelko v. Commissioner of Correction, supra.
The Appellate Court went on to explain that the
following additional findings of fact and conclusions of law were made by the habeas court. At trial, the petitioner introduced records from AT & T and Kinsella Commons to demonstrate what additional investigation by Attorney Popkin would have revealed. The AT & T phone records submitted into evidence indicate that several calls were made from the landline at the petitioner's residence on the evening of October 4, 2007. The first outgoing phone call was made at 7:24 p.m., and the last outgoing phone call was made at 10:01 p.m. The durations of the phone calls ranged from approximately one second to four and a half minutes. The petitioner testified that the outgoing calls were made to Kinsella Commons, [a patient at the facility], relatives of [the patient], and the petitioner's sisters. The notes submitted from Kinsella Commons, handwritten by Willie Green, a supervisor of the center's residents, state that Green received a phone call from the petitioner on the evening of October 4, 2007. Green's notes indicate that the call was received at 7:45 p.m., but they do not indicate how long the phone call lasted. The AT & T phone records indicate that one phone call was made from the petitioner's residence to Kinsella Commons at 7:48 p.m., and the call ended at 7:52 p.m.

Attorney Popkin hired an investigator in this case. The investigator attempted to contact individuals identified by the petitioner as having some involvement with the case, but they refused to speak with him. The investigator also arranged for a forensic review of the petitioner's hard drive, but the forensic examiner found more evidence on the computer that was detrimental to the petitioner than the state police had found. The court credits Attorney Popkin's testimony that he also requested the phone records to substantiate the petitioner's claimed theory of defense, but he did not find them to be helpful. The phone records did not prove that it was the petitioner making the phone calls. Moreover, Attorney Popkin determined that several brief phone calls to Kinsella Commons would not account for the hour and a half time frame during which the calls were made to the jurors.

Attorney Popkin wrote a letter to the petitioner, recommending that she plead guilty due to the strength of the state's case against her and her lack of a viable defense. While the voice on the tape recordings of the phone calls made to the jurors using the SpoofCard was disguised in a male voice, the voice on other phone calls recorded on the card was not disguised. Attorney Popkin determined that the petitioner's defense would require her to testify, and he believed that any jury that heard the tape recordings and the petitioner's voice would determine that it was her voice on those phone calls. Attorney Popkin testified that he reviewed the tapes with the petitioner, and that she decided to plead guilty after hearing the recordings. He believed that the plea deal was very favorable in light of the exposure she faced. The sentencing court, Rodriguez, J., thoroughly canvassed the petitioner regarding her plea.

`Pursuant to the foregoing, the court finds that the evidence submitted by the petitioner is insufficient to establish the existence of exculpatory information that should have been discovered had a proper investigation been conducted. Attorney Popkin's investigation was objectively reasonable under the circumstances of this case, and the petitioner has not met her burden of proving deficient performance for purposes of her ineffective assistance claim.’

The court did not err in concluding Popkin had not rendered deficient performance. He hired an investigator and examined the petitioner's defense that she was making telephone calls from the landline at her residence during the time in which the telephone calls to the jurors had been made. He found the telephone records that he had requested, in order to support the petitioner's defense theory, to be unhelpful. The records did not prove that the petitioner had made the telephone calls herself, and, because of the brief duration of the telephone calls from the landline, even if the petitioner had made those calls, she still had an hour and a half in which to telephone the jurors using the cell phone.

Popkin determined that not only were the additional telephone calls on the night in question of insufficient duration reasonably to eliminate the petitioner as the maker of the incriminating calls—for instance, the call to Green accounted for only approximately four minutes of the one and one half hour time frame in which the jurors were telephoned—but also that the jury would be able to match the voice on the tape recorded telephone calls to the petitioner's voice, which of course would be heard if she testified. Popkin testified that roughly twenty calls were made using the SpoofCard and that the caller's voice was disguised on some of the calls. He testified that other calls captured what Popkin believed to be the petitioner's real voice. He further testified that the petitioner decided to plead guilty after hearing the recordings of her voice. The court determined that Popkin's investigation was objectively reasonable under the circumstances of the case.

The petitioner argues, however, that Popkin was ineffective for not investigating the petitioner's defense further. `[C]ounsel need not track down each and every lead or personally investigate every evidentiary possibility before choosing a defense and developing it . . . [as][e]ffective assistance of counsel imposes an obligation [on] the attorney to investigate all surrounding circumstances of the case and to explore all avenues that may potentially lead to facts relevant to the defense of the case. . . . In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. . . .If counsel makes strategic decisions after thorough investigation, those decisions are virtually unchallengeable. . . .’ Taft v. Commissioner of Correction, 159 Conn.App. 537, 124 A.3d 1, cert. denied, 320 Conn. 910, A.3d (2015). We conclude that the court did not err in concluding Popkin's performance was not constitutionally deficient.
Bozelko v. Commissioner of Correction, supra.
Finally, the Appellate Court took up the issue as to whether her lawyer’s performance caused her “prejudice.”  Bozelko v. Commissioner of Correction, supra.  It began its analysis of that issue by explaining that Bozelko
argues that the habeas court relied on the superseded prejudice standard enunciated in Copas v. Commissioner of Correction, 234 Conn. 139, 662 A.2d 178 (Connecticut Supreme Court 1995), and examined only the strength of the state's case. The petitioner argues that the court failed to use the proper prejudice standard articulated in Carraway v. Commissioner of Correction, 317 Conn. 594, 119 A.3d 1153 (Connecticut Supreme Court 2015). We disagree.

`For claims of ineffective assistance of counsel arising out of the plea process, the United States Supreme Court has modified the [prejudice] prong of the Strickland test to require that the petitioner produce evidence ‘that there is a reasonable probability that, but for counsel's errors, [the petitioner] would not have pleaded guilty and would have insisted on going to trial.’ Hill v. Lockhart, supra.’ Thiersaint v. Commissioner of Correction, 316 Conn. 89, 111 A.3d 829 (Connecticut Supreme Court 2015). In Copas v. Commissioner of Correction, supra, our Supreme Court interpreted Hill to require that to prove prejudice the petitioner must `demonstrate that [s]he would not have pleaded guilty, that [s]he would have insisted on going to trial, and that the evidence that had been undiscovered or the defenses [s]he claims should have been introduced were likely to have been successful at trial.’

In Carraway, our Supreme Court held that the prejudice standard enunciated in Copas had been overruled, sub silentio, by statements in more recent cases in which it `specifically disapproved of the petitioner's characterization of the prejudice prong as “a reasonable probability that the result of the trial court proceedings would have been different’ and instead stated that ‘[i]n the context of a guilty plea . . . to succeed on the prejudice prong the petitioner must demonstrate that, but for counsel's alleged ineffective performance, the petitioner would not have pleaded guilty and would have proceeded to trial.”’ Carraway v. Commissioner of Correction, supra. . . .
Bozelko v. Commissioner of Correction, supra.
The Appellate Court then enunciated its ruling on Bozelko’s appeal:
The habeas court used the proper prejudice standard under Carraway. In its introductory discussion of law, the court specifically stated the same standard as that enunciated in Carraway. The court later specifically found:

`The evidence submitted by the petitioner is insufficient to establish the existence of exculpatory information that would have changed the result in this case. The telephone records reveal that calls were made on the landline in the petitioner's residence; however, the telephone calls made to the jurors were placed on a Tracfone. The duration of the outgoing telephone calls do not amount to the time needed to attempt to tamper with the jurors. Furthermore, there is no evidence that it was the petitioner who was making the telephone calls. The only evidence of a telephone call made by the petitioner on October 4, 2007, is a four minute telephone call made to Green around 7:45 p.m. The petitioner pleaded guilty as a result of the strength of the state's case, particularly, the existence of the tape recordings featuring the petitioner's voice that the state intended to introduce into evidence, and the potential exposure that she faced if convicted. The court does not credit the petitioner's testimony that she would have gone to trial in light of these circumstances. The court finds that there is not a reasonable probability that this newly submitted evidence would have changed the petitioner's decision to plead guilty.’

The court clearly assessed whether the petitioner, but for counsel's alleged ineffective performance, would not have pleaded guilty and would have proceeded to trial. The court discredited the petitioner's testimony that she would have gone to trial. The court analyzed the strength of the state's case, to be sure, as the strength of the state's case played a role in the petitioner's decision to plead guilty and in the court's determination of whether that decision would likely have changed if the `new’ evidence had been developed at the time of the plea. The court concluded that it was not reasonably probable that the new evidence would have changed the petitioner's mind to plead guilty. We conclude that the court used the proper standard in assessing prejudice.

After a thorough review of the record and briefs, we conclude that the petitioner did not demonstrate that the issues she has raised in her petition for certification to appeal are debatable among jurists of reason, that a court could resolve those issues differently or that the questions raised deserve encouragement to proceed further. Accordingly, we conclude that the petitioner has failed to demonstrate that the court abused its discretion in denying her petition for certification to appeal.

The appeal is dismissed.
Bozelko v. Commissioner of Correction, supra. 

Wednesday, January 27, 2016

The Text Messages, Riley v. California and the Cell Phone

This post examines an opinion from the Court of Appeals of Oregon:  State v. Lowell, 2015 WL 8349916 (2015).  The court begins by explaining how the case arose:
This criminal appeal concerns defendant's motion to suppress evidence. After defendant crashed his bicycle into a car and was injured, he separately interacted with two police officers. A police officer at the accident scene ordered him to go to the hospital. A second police officer, who was investigating the accident, arrived after defendant requested treatment at the hospital, entered his treatment room, and smelled marijuana. That officer asked for and obtained defendant's consent to search the backpack and discovered in it marijuana and other related paraphernalia, including a digital scale. The officer informed defendant of his Miranda rights, and defendant admitted that he regularly sold marijuana. Then the officer seized defendant's cell phone and reviewed incriminating text messages. Ultimately, defendant was prosecuted and unsuccessfully moved to suppress the evidence from his backpack, his statements, and the text messages. Defendant was then convicted of one count of delivery of marijuana for consideration, [Oregon Revised Statutes] 475.860(2)(a), based on a conditional guilty plea.

In three combined assignments of error, defendant challenges the trial court's denial of his motion to suppress the evidence. He argues that the police seized him by compelling him to seek medical treatment at the hospital and, in doing so, violated his right to be free from unreasonable seizures under Article I, section 9, of the Oregon Constitution and the Fourth Amendment to the United States Constitution. Based on that premise, defendant argues that all evidence obtained after the bicycle crash was unlawfully obtained and, therefore, should have been suppressed. 
 State v. Lowell, supra.  
Next, as appellate courts often do, the Court of Appeals explained how, and why, the prosecution arose, but only after providing a brief preface:
When reviewing a trial court's denial of a motion to suppress, we are bound by the trial court's findings of historical fact provided that there is evidence in the record to support them. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (Oregon Supreme Court 1993). If the trial court did not make detailed findings on disputed issues of historical fact, we infer that the trial court made findings consistent with its ultimate conclusion. State v. Watson, 353 Or. 768, 769, 305 P.3d 94 (Oregon Supreme Court 2013). We present the following facts with that standard in mind.
State v. Lowell, supra. 
The court then presented the relevant facts, separated into sections that described what occurred at different stages in the circumstances that led to the prosecution:
A. The Alleged Seizure of Defendant at the Accident Scene
While riding his bicycle the wrong way in a bicycle lane, defendant crashed into a car and flew over the handlebars. Defendant hit the vehicle with enough force to break his bicycle at the handlebars, rendering it inoperable. He suffered a cut on his forehead, and he had blood on his face.
Paramedics and Officer Riddle were the first responders at the accident. Riddle, who was ending his shift, chose to respond in case emergency medical assistance was necessary; he knew that other officers beginning their shifts would be dispatched to actually investigate the accident. The paramedics tried to persuade defendant that he needed to go to the hospital, but he did not have medical insurance and refused. The paramedics enlisted Riddle's help in persuading defendant to seek medical treatment.
Riddle tried to “convince” defendant that he needed to go to the hospital. Riddle was concerned that defendant was injured, based on the paramedics' statements, the blood running down defendant's face, and his `common sense’ that bicycle-car crashes can result in serious injuries to bicyclists. He also believed that defendant, who `looked very young,’ was a `kid,’ and he was concerned about his `community care taking’ `obligation’ to help an injured minor, although he did not inquire as to defendant's age.
Riddle testified that he stressed his concern during his conversation with defendant: `[The paramedics] are concerned about you. I am concerned about you. You need to go to the hospital.’ He testified, `I essentially gave him a choice. I said, you can voluntarily go down with the paramedics, or I will take you to the hospital, but you need medical treatment.’
Their conversation lasted one to two minutes. Riddle described his tone as `encouraging’ and `out of concern and convincing.’ He testified that he routinely interacts with injured community members who are reluctant to seek medical treatment because of the expense. He tries to reassure those people that they `are not in trouble’ and that, even though medical treatment is expensive, their immediate health is more important than the cost. Riddle characterized his conversation with defendant as typical of those conversations, which he perceived to be part of his `community care taking’ obligation to `force people to go get medical treatment’ in certain circumstances. Riddle and defendant never discussed a criminal investigation, and he was `completely shocked’ when he later received the subpoena in this case. In his words, `I thought it was a kid riding a bicycle that got hit by a car and needed to go to the hospital. And that was the end of it.’
Defendant had decided to go to the hospital and was in the ambulance when the second officer, Officer Folkerte, arrived. Folkerte took over as the primary officer at the scene because Riddle's shift was ending. Folkerte spoke with Riddle regarding the details of the crash and learned that defendant would be transported to the hospital in the ambulance.
At the accident scene, Folkerte began to suspect that `other things [were] going on.’ A paramedic told Folkerte defendant was acting `very guarded’ and `extremely paranoid’ and that defendant had made the unusual request to drop off his backpack at a friend's house on the way to the hospital. The paramedic asked Folkerte to follow the ambulance to the hospital, which he did a few minutes later, after he finished interviewing witnesses at the scene. Folkerte did not interview defendant at the accident scene, but Folkerte intended to interview defendant and also to issue him a traffic citation once Folkerte got to the hospital.
B. The Search of Defendant's Backpack at the Hospital
The paramedics dropped defendant off at the hospital, a few minutes away. Defendant went in and signed a voluntary consent-to-treatment form before Folkerte arrived. Folkerte then entered defendant's treatment room and immediately smelled marijuana. That put defendant's concern about his backpack in context for Folkerte, who suspected defendant possessed marijuana. During the exchange that followed, medical personnel filtered in and out of defendant's treatment room, and Folkerte stood next to defendant, who was in a chair. Folkerte testified that his tone was `[p]rofessional,’ that there was `nothing exceptional about’ the `dialogue’ that ensued, and that there were `no raised voices’ or `unnecessary high emotions.’ Folkerte did not threaten to arrest defendant if he refused to cooperate.
Folkerte inquired whether the backpack contained marijuana, and defendant stated that it contained `a couple of pipes’ and a `small amount of marijuana.’ Then, Folkerte asked defendant for consent to search his backpack, which defendant orally gave. Folkerte then read a department-prepared consent card to defendant, informing defendant that he had the right to refuse consent. Folkerte again asked defendant if he consented to the search and defendant again orally consented to the search. Defendant signed the card. Folkerte asked defendant to open his backpack and hand over the pipes and the `small amount of marijuana’ that he had identified. While defendant complied, Folkerte could see that defendant was attempting to hide a brown wooden cigar box within the backpack. Folkerte asked defendant about the cigar box, which defendant removed from the backpack and opened to reveal two clear plastic bags containing marijuana, later weighed at 1.45 ounces. Folkerte questioned defendant again about any additional items in the backpack, and defendant removed a digital scale and a small pill container containing small amounts of crushed marijuana.
C. The Questioning After the Backpack Search
After seeing the marijuana, scale, and pill container, and considering defendant's earlier request to drop off his backpack, Folkerte suspected defendant was delivering marijuana. Folkerte estimated that, at that point, about 20 minutes had passed since Folkerte had arrived at the hospital room. Folkerte read defendant his Miranda rights from a department-prepared card, and defendant stated that he understood his rights. Folkerte then began questioning defendant about delivering marijuana. Defendant stated that he delivered marijuana to friends who require it for medical purposes. Defendant also stated that he intended to sell the marijuana in his backpack to a friend and that he typically sold marijuana about once a week. Defendant admitted that he had last sold marijuana earlier that afternoon.
D. The Search of Defendant's Cell Phone
At some point after questioning defendant about his marijuana dealing, Folkerte seized defendant's cell phone, although Folkerte could not remember how he acquired the phone or verified that it was defendant's. Based on defendant's statements and the evidence previously identified, Folkerte believed that he had probable cause to search defendant's text messages for evidence of marijuana dealing. He read defendant's text messages and identified text messages confirming that defendant had sold marijuana earlier in the day.
Folkerte issued defendant a criminal citation for the marijuana but did not take defendant into custody. Defendant, who was charged with delivery of marijuana for consideration and marijuana possession, then moved to suppress `any reference to, any evidence seized during, and any derivative evidence flowing from the search of defendant's [backpack].’ The trial court denied defendant's motion, concluding that (1) defendant was not seized; (2) there was `probable cause throughout’ to support the police officers' actions; (3) defendant voluntarily consented to the search of his backpack; and, (4) if defendant had been unlawfully seized, defendant's consent did not result from police exploitation of defendant's unlawful seizure. The trial court explained that the questioning that took place at the hospital `simply was an opportunity that occurred because of the police utilizing their community caretaking function.  There certainly was no intent for a criminal investigation when that request and direction [that defendant seek medical attention] was given.’ The trial court also addressed the lawfulness of the questioning at the hospital, stating that, `when the second officer got to the hospital room to give the citation for the incident that initiated all of this conduct, then the overwhelming smell of marijuana, as well as the information he had been given’ before he contacted defendant resulted in a lawful investigatory process and `then a lawful consent process as well.’ The trial court also concluded that defendant's cell phone was lawfully seized and searched incident to his arrest.
State v. Lowell, supra. 
The Court of Appeals then began its analysis of Lowell’s motion to suppress:
Defendant's arguments for suppression build upon the assumption that defendant was seized at the accident scene. Therefore, although we do not decide that issue, we summarize the parties' arguments to provide analytical context.At the suppression hearing and in his brief on appeal, defendant argued that he was subject to ongoing police control from at least the moment that Riddle issued the ultimatum until Folkerte left the hospital. The state, on the other hand, frames defendant's interactions with Riddle and Folkerte as separate events. The state concedes that defendant's theory that he was seized at the accident scene `presents a close question, particularly in light of defendant's liberty interest in refusing medical treatment,’ and it notes cases from other jurisdictions addressing that issue. See, e.g., Peete v. Metropolitan Government of Nashville, 486 F.3d 217 (U.S. Court of Appeals for the 6th Circuit 2007) (local government paramedics did not unreasonably seize individual under the Fourth Amendment by physically restraining him to administer treatment for epileptic shock); Green v. City of New York, 465 F.3d 65 (U.S. Court of Appeals for the 2d Circuit 2006) (assuming that the jury accepted the plaintiffs' version of the facts, under the Fourth Amendment, police seized man with ALS who repeatedly communicated his intent not to be transported to the hospital, when an officer argued with the man's family about his need for medical assistance for more than an hour, his family constructed a barrier of furniture to prevent the police from removing the man, an officer or a paramedic knocked down the man's wife to reach the man, and an officer said, `We are going to the hospital whether you like it or not’); see also, e.g., Schreiner v. City of Gresham, 681 F.Supp.2d 1270, 1273 (U.S. District Court for theDistrict of Oregon 2010) (woman experiencing diabetic shock was seized under the Fourth Amendment when a police officer tased her and handcuffed her to force her to submit to medical treatment). However, in the state's view, even if Riddle did seize defendant, that seizure ended before Folkerte arrived at the hospital and began his investigation.As does the state, the trial court implicitly conceptualized defendant's interactions with Riddle and Folkerte as two separate events. We agree that Riddle's interaction with defendant should be analyzed separately from Folkerte's interaction with defendant, because any seizure by Riddle ended before Folkerte arrived at the hospital.A `seizure’ of a person occurs under Article I, section 9, `if a law enforcement officer intentionally and significantly restricts, interferes with, or otherwise deprives an individual of that individual's liberty or freedom of movement’ or `if a reasonable person under the totality of the circumstances would believe’ that such a restriction has occurred. State v. Ashbaugh, 349 Or. 297, 244 P.3d 360 (Supreme Court of Oregon 2010) (emphasis omitted). A seizure ends when a reasonable person under the totality of the circumstances would no longer believe that his or her liberty is being restricted. See State v. Ashbaugh, supra (unlawful seizure ended when police returned the defendant's identification and told her they were arresting her husband only).In this case, even if Riddle seized defendant at the accident scene, that seizure ended, at the latest, when the paramedics dropped defendant off at the hospital and defendant signed a voluntary consent-to-treatment form. Defendant sought treatment with no police present, under normal circumstances at the hospital. Neither of the officers at the accident scene communicated to defendant that he intended to follow defendant to the hospital. By the time defendant was being transported, Riddle, the officer with whom defendant had directly interacted, had left the accident scene, and he did not interact with defendant again.  And, Folkerte did not follow directly behind the ambulance on its way to the hospital, but instead left for the hospital a few minutes after the ambulance had left the accident scene. He arrived at the hospital after defendant had made the choice to receive medical treatment. A reasonable person, under the totality of the circumstances, would not have felt that he or she was subject to ongoing police control at the time that defendant entered the hospital and sought medical treatment. 
State v. Lowell, supra.
The Court of Appeals then took up Lowell’s argument that
the physical evidence found in his backpack should be suppressed because, even though he voluntarily consented to Folkerte's search of the backpack, his consent resulted from police exploitation of his earlier illegal seizure by Riddle at the accident scene and Folkerte's alleged continuation of that seizure. Thus, even though we have determined that any unlawful seizure (if there was one) had ended at the time that defendant entered the hospital, we nonetheless must address defendant's argument that Folkerte exploited that allegedly unlawful seizure to obtain defendant's consent to the search of his backpack. We reject that argument. . . .

Based on the totality of the circumstances—including that Riddle had a noninvestigative, community-caretaking purpose to interact with defendant; defendant chose to seek medical treatment once he was dropped off at the hospital when no police were present; Folkerte had an independent lawful basis to question defendant about marijuana possession; and Folkerte fully informed defendant he could refuse consent—we conclude that the state met its burden to prove that defendant's consent was sufficiently attenuated from any preceding unlawful police conduct that may have occurred. Therefore, we conclude that the trial court did not err in admitting the physical evidence seized as a result of a lawful consent search of defendant's backpack.
State v. Lowell, supra. 
Lowell also argued that his statements should be suppressed because “he received late and ineffective Miranda warnings”, an argument the court rejected.  State v. Lowell, supra.  It explained that Folkerte
issued defendant Miranda warnings before questioning him about drug sales, reading them from a department-prepared card. . . . [T]he Miranda warnings notified defendant that he did not have to speak to the police and served to mitigate the taint of any preceding unlawful seizure. . . . Accordingly, we conclude that the trial court did not err in denying defendant's motion to suppress as to his statements regarding drug sales.
State v. Lowell, supra. 
Finally, the court addressed the seizure of Lowell’s cell phone, noting that the
Oregon and federal search incident to arrest doctrines are independent exceptions to the warrant requirements under Article I, section 9, and the Fourth Amendment. The trial court concluded that defendant's cell phone was lawfully seized and that Folkerte's warrantless search of defendant's text messages was lawful as a search incident to a lawful arrest. Defendant argued to the trial court that both Article I, section 9, and the Fourth Amendment required suppression of the text messages, and renews both arguments on appeal. Federal law concerning police officer searches of cell phone data has developed since defendant appealed, and it is now apparent, based on Riley v. Calfornia,134 S.Ct. 2473 (2014), that the court erred in admitting the text messages under the Fourth Amendment's search incident to arrest exception to the warrant requirement.

After oral argument in this case, the United States Supreme Court held in Riley that the search incident to arrest exception under the Fourth Amendment categorically does not apply to digital data stored on cell phones. Riley v. Calfornia, supra. Defendant supplied a memorandum of additional authorities, arguing that under Riley, he prevails under the Fourth Amendment. Neither party has briefed whether Article I, section 9, compels a different result.

Ordinarily, the `first-things-first’ doctrine directs us to resolve state constitutional law claims before reaching federal law claims. State v. Babson, 355 Or. 383, 326 P.3d 559 (Oregon Supreme Court 2014) (acknowledging without accepting or rejecting an argument that we may not be required to resolve state law claims first, but observing that, at the very least, there are `sound [policy] reasons for doing so’); State v. Babson, 249 Or.App. 278, 307 n. 6, 279 P.3d 222 (2012), aff'd, 355 Or. 383 (2014) (stating that, until the Supreme Court repudiates the first-things-first doctrine, we will generally choose to follow it). However, `in some instances, where a rights claimant obviously prevails under the federal constitution regardless of whether the state law vindicates the claim, we will, as a matter of judicial efficiency, decide the case under the federal constitution without treating the state law issue.’ State v. Babson, supra.
State v. Lowell, supra (emphasis in the original).
The Court of Appeals went on to explain that
[a]s a matter of judicial efficiency, we decide defendant's challenge to the admission of the text messages from his cell phone under the Fourth Amendment. We conclude that the trial court erred by admitting the text messages, because it incorrectly reasoned that the warrantless search of defendant's cell phone was valid under the federal search incident to arrest doctrine. We so conclude based on only federal law for three reasons.

First, the Court's holding in Riley could not be clearer: `[A] warrant is generally required before’ a search of data on a cell phone, `even when a cell phone is seized incident to arrest.’ Riley v. Calfornia, supra.  Second, the parties have not briefed how we should interpret Article I, section 9, as it applies to warrantless searches of cell phone data. And third, although we might in other circumstances ask the parties to brief the state constitutional issue, see State v. Kennedy, 295 Or. 260, 666 P.2d 1316 (1983) (stating that, `[w]hen a court is confronted with a mere unexplained citation of an Oregon source tacked on as an ‘afterthought,’ * * * the court * * * may request counsel either to explain the claim under state law or to abandon it’), such briefing would be an inefficient use of the parties' and our resources.

Our disposition would ultimately be the same, even if we were to prolong this appeal by requiring the parties to brief the state constitutional grounds. Therefore, in the interest of judicial efficiency and a final resolution of this case, we address only defendant's Fourth Amendment authorities and conclude that the trial court erred in admitting the text messages.
State v. Lowell, supra. 

The Court of Appeals therefore reversed Lowell’s conviction and remanded the case to the trial court for further proceedings. State v. Lowell, supra. 

Monday, January 25, 2016

"Revenge Porn," Defamation and Intentional Infliction of Emotional Distress

This post examines an opinion recently issued by the Fourteenth Court of Appeals of Texas – Houston:  Patel v. Hussain, 2016 WL 270014 (2016).  The Court of Appeals Justice who wrote the court’s opinion begins by explaining that
This appeal follows a plaintiff's jury verdict in a `revenge porn’ case.  Specifically, appellee Nadia Hussain sued appellant Akhil Patel, alleging that after the couple broke up, Patel hounded her with a slew of offensive and threatening communications, hacked or attempted to hack her accounts, and posted secretly recorded sexual videos of Nadia on the Internet. The jury found in Nadia's favor on her claims for intentional infliction of emotional distress (IIED), intrusion on seclusion, public disclosure of private facts, and defamation.

The jury awarded her damages totaling $500,000, including past and future mental anguish damages, past and future reputation damages, and exemplary damages. The trial court signed a final judgment for $500,000 in damages and a permanent injunction.
Patel v. Hussain, supra.  You can, if you are interested, read more about the facts and legal issues in the case in the article you can find here.
The Court of Appeals goes on to explain that
[o]n appeal, Patel does not challenge the evidence supporting the liability allegations. Instead, in six issues, Patel contends the trial court erred by (1) denying his motion for JNOV on the defamation claim because the jury found the publication was substantially true; (2) denying his motion for JNOV because the trial court's judgment violated the one-satisfaction rule; (3) awarding damages attributable to Nadia's claim for IIED because this `gap filler’ tort was unavailable in the context of this case; (4) awarding mental anguish damages in the judgment because Nadia's stipulation concerning her social media posts established that Nadia did not have a substantial disruption to her daily routine; (5) awarding mental anguish damages because the evidence is legally and factually insufficient; and (6) awarding exemplary damages when the evidence is legally and factually insufficient to support mental anguish damages.

We sustain Patel's first and third issues and overrule the others. Thus, we modify the trial court's judgment to remove the damages associated with the defamation and IIED claims and affirm the judgment as modified, resulting in a judgment of $345,000.
Patel v. Hussain, supra. 
I am going to proceed in this post in a fashion that differs in one respect from how I usually translate a court’s opinion into a blog post:  I usually go through the entire opinion, explaining what the court did and why.  I cannot do that with this opinion, which I think can make a good post, because the Court of Appeals quotes extensively from texts and emails exchanged between Patel and Hussein.  If I were to quote all of them, the post would be much longer than my posts usually are.
So, instead, I am going to use the opinion to outline the arguments in the case and the essential facts that provided the basis for Hussain’s lawsuit. Patel v. Hussain, supra.  If you would like to read all of the texts and emails quoted in the opinion, you can find the full opinion here.
The Court of Appeals begins the initial part of its opinion, in which it outlines the relevant facts and legal issues, by explaining that
Nadia and Patel began a relationship in high school and had an `on-and-off’ dating relationship for about seven years. Nadia is Muslim and Patel is Hindu, which caused difficulties during the relationship. They broke up in late 2010. During the relationship, Nadia emailed several pictures of herself to Patel that showed her topless and wearing only underwear. Nadia asked Patel to delete the pictures after she sent them. He didn't. Also during the relationship, Patel recorded videos of Skype (video chat) conversations during which Nadia undressed herself and masturbated. Nadia did not consent to being recorded.
Patel v. Hussain, supra.  In a footnote, the court says “[t]he parties disputed whether Nadia was aware she was being recorded.” Patel v. Hussain, supra. 
This excerpt from the next section of the court’s opinion should give you an idea of how things stood between the two of them at the time:
Patel continued to contact Nadia after they broke up despite Nadia and her mother, Sakina, telling him to stop in December 2010. At first, Nadia engaged Patel. Patel's father emailed Nadia in April 2011, asking her to `Please send him a message telling him he has to move on with his life and to leave you alone otherwise you will have to call the authorities for st[al]king you.’ Patel sent Nadia text messages in July 2011 because he wanted to talk with her. She did not respond to most of his text messages. The trial court admitted screenshots of the text messages into evidence, including the following from early July:
Patel: Retaliation ...... you think this is retaliation? ? ? ? ? ? ? ? Haha retaliation woulda been something totally diff nadia but, THINK back you fuckin genius did I? ? ?
Patel: I'm going to give you until 6pm to come up with a better response nadia.
Nadia: OR WHAT AKHIL
Patel: Hahha look how quick u respond when you FEEL like ur gonna get hurt ... do you care about huring me hahahha NOPE.!
Patel: Or what ? ? ? ? Hahah nadia think about it like I said 6pm to give a better response.
Patel: Do you hold back from anything when you talk to me or the way you act with me NO, why do you EXPECT ME TO DO THE SAME NADIA? ? ? ? HUH WHY? ? ? ?
Patel: Times up!
Patel: I hope you are happy now!
Patel: You have never given me a chance ..... and I have given you numerous, times up for you ..... like I said in the car rmr those words.
Patel: [Link to a YouTube video]
Patel: Em going to give you until 630pm to come up with a better response nadia.
Patel: It's privatized nadia.
Patel: What now u amt gonna respond or what? ? ?
Patel: You know what fuck it .......
Patel: If officially lost you right ....what do I have to lose ....
Patel: I'm tired of being ur bitch all the time ....haha all I wanted was to be fine ....this is gonna help you cause this is ur health, thank me later.
Patel: [Link to a YouTube video]
Patel: That's the legit link....I gave u a chance and u decided to treat me like a dog
Patel: And if that didn't work ....check ur email ....0 wait u prolly have all my emails blocked hahah even tho I barely email you hahahahhahahahah
Patel: Hahahhahaah you don't have to be like this anymore. Your done.
Patel: And we both know what's gonna happen now ...... right? ? ? ? ? ?
Patel: Family will be very ashamed .......
Patel: You could have prevented this, that's what's FUCKING FUNNY. You didn't fuckin get what I asked for and u acted in an inappropriate way.
Patel: Stop crying in ur room nadia you had to think at one point you treating me like this was gonna back fire hahha and yet still ur video is private you want me to send it to your mom? ? ? ? ? FUCKING ANSWER ME NADIA?
Patel: Don't worry like I said only people with the link can view it!! Hahah
Patel: [Link to a YouTube video]
Patel: [Link to a YouTube video]
Patel: That's the least of your worries
Patel: U need to learn how to respect people and stop hanging up on people.
Patel: You still have a chance nadia just FYI.
Patel: Unlike you, regardless of how you treat me....I still wanna give you a chance and not say anything to your mom
Patel: [Link to YouTube video]
Patel: Ya and those pics u sent me too gotta see if the google techs can rwcover those too so you can post those too!! So than again more guys! For you that's what you wanted right to go thru a bunch of guys!! You warm up to them easily hahah but can't talk to a guy that uve known for 7 years ... and were in a relationship and wanted to marry and start a family with ....again u said the above text that's why I'm say in this to you ....jus hurts that u ignore.
Patel: YES! According to a guy I know from UT who works at google, they can recover it ... it'll take a couple of days, but then I can give it to you so whenever u go on ur date you can give it to him
Patel: Look how much fun I can have with your family ... esp since I know all of them, and ur couz like me and think I'm good for you [link to YouTube video]
Patel: You have until Saturday.
Patel v. Hussain, supra.  
The opinion explains that the text messages continued a few weeks later:
Patel: No nadia its done ...... I'm sick and tired of how you treat me.
Patel: I knew you would do this to me which is why I went and got my laptop fixed ....my gut told me that once you know that my laptop was fucked up and that I deleted those pics ... ud disrespect me.
Patel: Best buy fixed my laptop in fact and restored everything. Nadia. It took you 5 days to respond to me asking if you needed space. Nadia I'm not a dumbass, your mom told me you were busy so you might not have texted for that reason. Nadia you prolly text and call people on the norm, but no not akhil for what? ? ? ? You don't know nadia. I'm tired of you disrespecting me.
Patel: Stuff I say, yes nadia everyone says stuff out of frustration even you. I just miss you and miss talking about random stuff and having fun! Ill give you space
Nadia: I don't go to the extent of retrieving life threatening information just to threaten.
Patel: I didn't.
Patel: I didn't even threaten you that's the funny thing.
Patel continued a few days later:
Patel: I'm fucking done. Treat me like shit. Continue it.
Patel: U don't tell ur mom shit on how u treat me, but ur mom thinks I'm some horrible person.
Patel: Go watch ur video and know that I have it all 30 min of it
Patel: And now I'm gonna mess with you just like you messed with me, and rmr this, your friends say a lot
Patel: And now I have found the website, xvideos.com. I will send the link later tonight.
Patel: [Link to YouTube video]
Patel: Already on youtube ... and it has 2 views!
Patel: Congrats uve fucked ur own life up and best believe imma email ph tomorrow with the email along with those other videos of you.
Patel: Hahahahhahahahahha you FUCKED UP NADIA BIG TIME.
Patel: You ignoring me like I just told your mom is the worst thing you can do.
Patel: Aight imma see you on Sunday that's cool!
Patel: And I know where ph is that's cool! Call the cops I haven't done anything
Patel: [email address for Nadia's grandfather]. don't worry I got you.
Patel: I haven't done anything! Hahhahah trust me keep messin with me
Patel: Hahha I'm with ronak and rajiv ....and they said u deleted them!? ? ?7
Patel: On facebook hahahhaa ur soo wack I jus showed them ur video
Patel v. Hussain, supra. 
I am going to include one more excerpt from the communications between the two:

Patel texted Nadia again over the course of several days in late October 2011:
Patel: [....] I do have your nana n nani's number, you really don't know how bad I just want to text them those pics and stuff, WHY THE FUCK CANT YOU JUST REPLY SO WE CAN END THIS!!!!!? ? ! ? ! ? ! ? ! ?
Patel: YOU HAVE HURT ME SOO MUCH NADIA. DO I want to RUIN YOUR REP!!!! yes i do very much so, prolly because im frustrated, but will i do
Patel: All I want is some kind of response, if I don't get that at least, even a single “A”, imma act like you IMMATURE and send stuff to spite/hurt you cause you love to hurt me soo much so I guess I will return the favor, im tired of being hurt by you
Patel: thanks for nana n nanis number, they will get involved now too since you cant MAN UP to your decisions, they get pic msgs nadia
Patel: Go and hide behind ur phone, you will see me one day either I will come to ph or at talhas wedding and don't make any faces to me then cause ill get on the dj's comp and play ur video.
Patel: You tell your mom about the videos? ? What about nana or uncle or co workers like Rachel? ? ? ?
Patel: Oh ya nadia I have something far more valuable of yours than those stupid pics
Patel: I sent that to chris and amanda, I'm sorry it had to come to this. Hope you don't get fired.
Patel: Ahh yes and your father, I have his contact info as well nadia, I know you don't really care for him too much but still.
Patel: [....] I'm going to make sure each one of your family members knows about those pics n vids and when I say family I mean nana nani mom uncle bhabi dad
Patel: [ ....] wisen up, or learn a lesson the hard way. I have nanas email and his cell phone. Along with nanis phone. I could jus mail the pics to the house if that's what you want!?
Patel: Just sent you and your mom that pic
Patel: I'm glad you don't worry about your nana or nani
Patel: I'm going to call your work again until you realize you cant treat people like this!
Patel texted Nadia again, during the middle of the night, over the course of several days in January 2012:
Patel: Like I told you earlier and just now. I asked for something simple. You are asking me to come to PH you know that ? ? ? ?
Patel: You fucked up and now, not me, you will pay the price because I've been nice
Patel: Tomorrow your mom is going to find out what you did.
Patel: And so is your nana nani and uncle
Patel: I would say a lot to you ... but imma wait ....and let your mom nana nani uncle and bhabi know what you have done.
Patel: You think you are sooo smart ... wait until tomorrow. Confess to ur nana then nadia. Tired of ur shit
Patel: Your mom nana etc need to realize how rude of a person you are.
Patel: Your action or lack thereof will cause/determine my reaction.
Patel v. Hussain, supra.  In a footnote, the court notes that, later, “Patel testified that `nana and nani’ were Nadia's grandparents” and that “`bhabi’ is Nadia's aunt.” Patel v. Hussain, supra. 
I am going to include one more excerpt from the communications quoted in the opinion and, as I noted above, you can find the full opinion by using the link supplied above:

In January and February 2012, Nadia started receiving text messages from unknown and unverified numbers. Nadia believed the texts were from Patel and that Patel had been discovering information about her whereabouts, purchases, and activities based on texts such as these:

Patel: Hurd u like bangin texmex guys! Lmfao
Patel: juz cuz u got caught wit the texmex
Patel: i c u! sittin near da door ill come say hi in a bit.
Patel: stp rackin up shi on the credit gurl! debt getting hi:=(
Patel: howz da new spot gurl!?
Patel: howz da new i4!?!?!?! ? gud recep with vzn? Lmfao

In February 2012, Nadia began receiving emails from her email service provider stating that she had been trying to recover her account password, although she had not been doing so. The emails came almost every other week. Nadia filed a police report on March 8, 2012, to report Patel's harassing conduct and possible breach of computer security. She reported that she received upwards of 20 to 30 text messages and phone calls per day.

Nadia lived with her grandparents and mother, Sakina, at the time. Sakina testified that Patel would prank call the house multiple times per day at all hours, including 1:00 a.m. and 2:00 a.m. He did this for several years. They would have to leave the phone off the hook at night and block his calls. Nadia testified that she changed her phone number multiple times, but Patel kept discovering it and contacting her. She put an application on her phone that would only allow certain contacts to reach her, but she believed Patel was impersonating her contacts, calling her, and hanging up.

Police officers spoke with Patel in March 2012 and told him to stop contacting Nadia. He didn't. Shortly after the police spoke with him, he emailed Sakina:

`[ ... ] This week coming up its nadias birthday. Since you and her think its funny that calling the cops on someone for your own problems when they have nothing to do with it, will somehow solve them, I will let you two go ahead and think like that. You seem to be a very smart woman, so you should be able to anticipate what my gift to nadia will be this year! You can relay the information to her as well that before she laughs at the fact that she called the cops on an innocent person she may want to remember what she has put out there. [ ... ] Similar to what both of y'all did, getting my family and friends as well as me involved into your own lifes problems, she should anticipate hers getting involved to, all thanks to y'alls decision to try and ruin my life.’
Patel v. Hussain, supra. 
In the next section of the opinion, the court explained that
[t]hen, Patel uploaded Nadia's videos to the Internet. The trial court admitted print-outs from a pornographic website showing Nadia's videos on the Internet with the title `Pakistani Nadia Houston.’ The text messages continued from March 2012 through August 2012:

Patel: Your vid is up online. Congrats to you and your family ....over 2000 ppl have viewed what you do in your bed.
Patel: You seem to be very popular amongst the guys, they can't stop watching you! 5000 views with your name on it!
Patel: Who knew your pictures an videos would draw such a big audience? Not only did 5000 men and women watch you, 300 downloaded your videos!
Patel v. Hussain, supra. 
The Court of Appeals then took up Patel’s argument that “the trial court erred by awarding damages to Nadia on her defamation claim because the jury found that the published material was substantially true.”  Patel v. Hussain, supra.  It went on to point out that
[t]he affirmative defense of substantial truth is a complete defense to defamation. Knox v. Taylor, 992 S.W.2d 40 Tex.App.--Houston 1999); see also Texas Civil Practice & Remedies Code Ann. § 73.005. A jury's finding of substantial truth precludes liability for a defamation claim. See Turner v. KTRK Television, Inc., 38 S.W.3d 103 (Supreme Court of Texas 2000). And, in the absence of liability, the question of damages becomes immaterial. See Hancock v. City of San Antonio, 800 S.W.2d 881 (Texas Court of Appeals San Antonio 1991). The same rationale applies to a finding of actual malice and exemplary damages. See Tex. Beef Cattle Co. v. Green, 921 S.W.2d 203 (Texas Supreme Court 1996) (actual malice finding and exemplary damages rendered immaterial by jury's answers establishing an affirmative defense; `the trial court should have disregarded the actual malice finding as immaterial’).

Thus, the trial court erred by denying Patel's motion for JNOV on this basis. The trial court should have disregarded the jury's award of $50,000 in damages for the defamation claim. Patel's first issue is sustained.
Patel v. Hussain, supra. 
The Court of Appeals then took up the third issue Patel raised in his appeal:
Patel contends the trial court erred by not granting his motion for JNOV on the IIED [intentional infliction of emotional distress] claim because this `gap-filler’ tort is unavailable under the facts of this case. In particular, Patel claims that his conduct invaded Nadia's legally protected privacy interest under her claims for intrusion on seclusion and public disclosure of private facts. We agree.
Patel v. Hussain, supra. 
The court went on to explain that
IIED is a `gap-filler tort, judicially created for the limited purpose of allowing recovery in those rare instances in which a defendant intentionally inflicts severe emotional distress in a manner so unusual that the victim has no other recognized theory of redress.’ Hoffman–La Roche Inc. v. Zeltwanger, 144 S.W.3d 438 (Supreme Court of Texas 2004). IIED `simply has no application when the actor intends to invade some other legally protected interest, even if emotional distress results.’ Hoffman–La Roche Inc. v. Zeltwanger, supra (quotations omitted). `Where the gravamen of a plaintiff's complaint is really another tort, intentional infliction of emotional distress should not be available.’ Hoffman–La Roche Inc. v. Zeltwanger, supra.
Patel v. Hussain, supra. 
The Court of Appeals then outlined its analysis of Patel’s “gap-filler tort” argument:
Nadia contends that IIED applied here because Patel intended to invade a right that was not legally protected. She argues, `Patel engaged in numerous extreme and outrageous acts that are not actionable under any other theory of recovery.’ Nadia cites a single example: when Patel sent Nadia a text message threatening to play Nadia's video during a mutual friend's wedding. Specifically, Nadia contends the `wedding threat’ did not lie within the umbra of Nadia's claim for intrusion on seclusion.

Nadia contends that Patel's threat involved a “public place,” and she cites Floyd v. Park Cities People, Inc., for the proposition that “it is well-established in Texas law that if an intrusion involves a public place or public matters, the defendant is not liable.” See Floyd v. Park, supra.  We disagree with Nadia's broad interpretation of Floyd. Floyd concerned more than mere `involvement’ with a public place or concern. In Floyd, a newspaper published a picture of the plaintiff's front yard, which included the plaintiff standing on his front porch. Floyd v. Park, supra. The yard and plaintiff had been in full view of the public at the time, and the topic of the plaintiff's front yard `had become the subject of a controversy which was publicly debated before the Highland Park Town Council.’ Floyd v. Park, supra. The Dallas Court of Appeals affirmed summary judgment on the invasion of privacy claim because there was no intrusion on the plaintiff's solitude, seclusion, or private affairs as a matter of law. See Floyd v. Park, supra.
Patel v. Hussain, supra. 
The Court of Appeals went on to explain that,
[h]ere, according to the charge, the jury found that Patel `intentionally intrude[d] into Nadia Hussain's solitude, seclusion, or private affairs or concerns in a manner that would be highly offensive to a reasonable person.’ At trial, Nadia presented the `wedding threat’ as one of hundreds of offensive and threatening text messages Patel sent to her, along with the phone calls and hacking attempts, to establish an intentional intrusion on Nadia's solitude, seclusion, or private affairs. Household Credit Services, Inc. v. Driscol, supra (sufficient evidence for invasion of privacy when the defendant made frequent offensive telephone calls to the plaintiff). The wedding threat involved a “public place or public matter” only in the tangential sense that Patel was threatening another theory of invasion of privacy upon which Nadia successfully recovered at trial—public disclosure of private facts. Unlike the picture in Floyd, the secretly recorded video depicted Nadia in a private place engaged in private conduct that was not publicly debated or a matter of public concern. A privately communicated threat to reveal such private content at a wedding does not involve a public place or public matter as in Floyd.

Nadia also relies on Durban v. Guajardo, wherein the Dallas Court of Appeals held that a plaintiff could recover under a theory of IIED and assault even though the two claims `involve[d] the same acts by’ the defendant—the defendant physically attacked the plaintiff. 79 S.W.3d 198 (Tex.App.—Dallas 2002). The court of appeals reasoned that the plaintiff could maintain an action for IIED even though emotional distress was `the essence’ of an assault and battery claim. Durban v. Guajardo, supra. We decline to follow Durban; its reasoning is inconsistent with Texas Supreme Court's pronouncements in Hoffman–La Roche Inc. v. Zeltwanger, supra (citing Rice v. Janovich, 742 P.2d 1230 (Supreme Court of Washington 1987) (trial court erred to instruct the jury on IIED in addition to assault because a plaintiff can recover emotional distress damages for an assault claim)).

From reviewing the entire record, we conclude that the gravamen of Nadia's complaint was fully encompassed by her invasion of privacy claims for intrusion on seclusion and public disclosure of private facts. Nadia complained globally about Patel's frequent threatening and offensive communications, hacking into her accounts, and uploading the secretly recorded videos to the Internet. Neither on appeal nor at trial has Nadia identified evidence that would enable recovery under a theory of IIED independent of her other claims. . . .

Accordingly, IIED was unavailable as a matter of law. The trial court erred by not granting Patel's motion for JNOV on this ground and thereby incorporating the jury's award of damages for IIED in the final judgment. Hoffman–La Roche Inc. v. Zeltwanger, supra (court of appeals should render judgment for the appropriate amount of damages when the judgment awards relief on an unavailable claim such as IIED).

Patel's third issue is sustained.
Patel v. Hussain, supra. 
Otherwise, the Court of Appeals affirmed the decision by the trial judge:
We have sustained Patel's first and third issues and concluded that the trial court erred by including in the judgment damages associated with the defamation and IIED claims. Having overruled the remainder of Patel's issues, we modify the trial court's judgment to reduce the amount of damages from $500,000 to $345,000. See Hoffman–La Roche Inc. v. Zeltwanger, supra  (remanding to court of appeal for rendition of the appropriate amount of damages).

The judgment is affirmed as modified.

Patel v. Hussain, supra.  As I noted at the beginning of this post, the full opinion includes a number of excerpts from the social media traffic between Patel and Hussain, all of which help put the litigation, and this decision, in perspective.