Aggravated Sexual Assault, Due Process and the Social-networking Websites

This post examines a recent opinion from the Court of Appeals of Texas – Houston: Whitfield v. State, 2017 WL 946757 (2017). The court begins the opinion by explaining that

Herman Ray Whitfield was convicted by a jury of aggravated sexual assault. See Tex. Pen. Code § 22.021(a)(2)(A)(iv) (West 2015). Appellant elected to have the trial court assess his punishment and pleaded true to the two felony enhancements alleged in his indictment. The trial court sentenced him to confinement for life. Appellant filed a motion for new trial, which the trial court denied after a hearing.

Whitfield v. State, supra.

Whitfield raised two issues in his appeal, but this post only examines one of them. The other issue was that the trial court judge should have sustained his objections based on his Sixth Amendment right to confrontation and Bullcoming v. New Mexico, 564 U.S. 647, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011), under circumstances where the State presented an expert DNA analyst who testified regarding her DNA comparison results instead of presenting all the technicians involved in the DNA testing process. 

Whitfield v. State, supra.

In his other issue, Whitfield argued that “the State's actions related to posting on social media about his trial were so egregious that they amounted to a denial of due process.” Whitfield v. State, supra. The Court of Appeals began its analysis of both of the issues Whitfield raised on appeal by explaining why, and how, he came to be charged with the crimes listed above.

Whitfield v. State, supra.

The opinion goes on to explain that

[t]rial evidence showed that on June 11, 2008, J.B., a high school student, took a bus over to her best friend's apartment in the Sunnyside area of Houston, Texas. They hung out for a few hours. After J.B.'s mother called her to return home, J.B. left the apartment. While J.B. was walking along a trail back to her bus stop, a man grabbed her and put a pocket knife to her neck. The man had dark skin, wore sunglasses and a baseball cap, and appeared to be in his 30's or 40's. The man forced J.B. under barbed wire fencing into the nearby grassy woods and slammed her body onto the ground, face down. The man forced down J.B.'s shorts and sexually assaulted her, then ran away, leaving J.B. in the grassy woods.

J.B.—shoeless, crying, shaking, scratched, and disheveled—returned to her friend's apartment. Her friend called 9–1–1 to report what had happened. HPD Officer Chillis responded. Chillis and J.B. returned to the grassy woods, where they located J.B.'s shoes. J.B. then was transported to the hospital, where she was examined by a sexual assault nurse examiner. The nurse examiner collected evidence from J.B., including the articles of clothing worn during the attack and a buccal swab from the inside of J.B.'s mouth. HPD Officer Landrum collected this evidence from the hospital. The investigation was assigned to HPD Officer McMurtry. McMurtry obtained J.B.'s statement, and a description of the suspect was released to the public.

Starting in 2010, the HPD Crime Lab began working through a large backlog of rape kits and evidence that needed to be tested for DNA, including evidence from J.B.'s case. In 2013, HPD Officer Whitlock became involved with the investigation. Whitlock obtained a search warrant for appellant's DNA and collected a buccal swab from him. Appellant was ultimately charged with the aggravated sexual assault of J.B. Appellant's indictment also alleged two prior felony convictions.

Whitfield v. State, supra.

The Court of Appeals went on to outline what happened at Whitfield’s trial:

[T]he State presented expert testimony from Lloyd Halsell and Amy Castillo regarding the DNA testing conducted in this case. Both Halsell and Castillo testified that at the HPD Crime Lab, DNA testing is conducted in an assembly-line or batch process. At the time, Halsell was a DNA analyst and supervisor at the HPD Crime Lab. He testified that, at the lab, technicians extracted, quantified, and amplified DNA from appellant's buccal swab. A portion of this amplified DNA was inserted into a lab instrument for analysis. The instrument `separate[d] out and visualize[d] the data,’ generating a known DNA profile for appellant. Halsell explained how positive and negative controls, as well as flushing protocols, are used to ensure that the instrument is not subject to cross-contamination among samples. Halsell further explained that the DNA profile consists of numerical code data on 15 individual short tandem repeat locations plus a sex-determining marker. The DNA profile or allele chart is unique to each individual except for identical twins. Halsell interpreted the DNA profile generated from appellant's buccal swab and determined that it reflected a complete male DNA profile from one known individual. According to Halsell, once DNA profiles are generated from known references, they can be compared to DNA profiles generated from evidentiary items.

At the time, Castillo also was a DNA analyst and supervisor at the HPD Crime Lab. Castillo testified that lab technicians performed DNA extraction, quantification, amplification, and separation from the buccal swab in J.B.'s rape kit, generating a known DNA profile for the victim J.B. In addition, evidence from J.B.'s rape kit and the clothing collected from J.B. were screened for potential body fluids. They tested negative for semen. However, lab technicians were able to extract, quantify, amplify, and separate out DNA from a bloodstain on J.B.'s shorts, generating an unknown DNA profile.

Whitfield v. State, supra. The opinion goes on to explain that

Castillo interpreted the known DNA profile generated from J.B.'s buccal swab and determined that it was a full DNA profile from a female single source. Castillo also interpreted the unknown DNA profile and determined that it was a full DNA profile from a male single source. As a result, Castillo was able to eliminate J.B. as the contributor of the blood on her shorts. Castillo then compared the allele charts for appellant's known DNA profile and for the unknown male DNA profile and determined that they were the same. Castillo concluded that appellant could not be excluded as the source:

The conclusion that we drew on that comparison is that Herman Whitfield cannot be excluded as a possible contributor to the profile from that item. We then do statistics to show the odds that another random individual could be included as a contributor to that profile, and what was calculated was 1 in 310 quintillion for Caucasian, 1 in 1.5 sextillion for African Americans, and 1 in 130 sextillion for southwest Hispanics.

Castillo explained that there are 21 zeros in a sextillion versus 9 zeros in a billion. According to Castillo, based on a world population of 7.7 billion, one would have to test `multiples of the world's population” “to find somebody else to include as a contributor to that profile.’

Whitfield v. State, supra.

The Court of Appeals went on to explain that the

jury returned a `guilty’ verdict. Appellant elected to have the trial court instead of the jury determine his punishment. Appellant entered into a stipulation of evidence with regard to the two prior felony convictions and pleaded true to both. The trial court sentenced appellant to life in prison.

Whitfield v. State, supra.

And that brings us to the issue this post examines. The opinion goes on to explain that,

[d]uring appellant's trial, the Harris County District Attorney's Office posted about appellant on its official Facebook and Twitter pages. The Facebook post included appellant's image and described him as the `Sunnyside Rapist’ `who has allegedly been tied to some 21[ ] sexual assaults in the Houston area.’ The Twitter post also included appellant's image and stated: `Herman Whitfield aka the sunnyside rapist is on trial this week. We are seeking justice for all his victims # trials.’ Appellant filed a motion for new trial, arguing that the State's use of social media violated the Texas Rules of Disciplinary Conduct, denied appellant due process, and caused an unfair trial. The trial court held a hearing. During the hearing, all of the jurors testified. They confirmed that they did not see any of the posts, that social media was not discussed during deliberations, and that they based their verdict solely on the trial evidence. The trial court denied appellant's motion.

Whitfield v. State, supra. The opinion then noted that “[a]ppellant timely appealed.” Whitfield v. State, supra.

As noted above one of the issues Whitfield raised on appeal was that

the State's use of social media in his case resulted in a denial of his due process rights and that he is entitled to a new trial. Appellant contends that the State's posting and `tweeting’ on social media about his trial violated rules 3.06(a)(2), 3.07(a), and 3.09(e) of the Rules of Disciplinary Conduct. See Texas Disciplinary R. Prof'l Conduct 3.06(a)(2) (“A lawyer shall not seek to influence a venireman or juror concerning the merits of a pending matter by means prohibited by law or applicable rules of practice or procedure.’), 3.07(a) (`In the course of representing a client, a lawyer shall not make an extrajudicial statement that a reasonable person would expect to be disseminated by means of public communication if the lawyer knows or reasonably should know that it will have a substantial likelihood of materially prejudicing an adjudicatory proceeding. A lawyer shall not counsel or assist another person to make such a statement.’), 3.09(e) (prosecutor should `exercise reasonable care to prevent persons employed or controlled by the prosecutor in a criminal case from making an extrajudicial statement that the prosecutor would be prohibited from making under Rule 3.07’).

Whitfield v. State, supra.

The court goes on to explain that

Appellant also contends that the State's actions constituted an attempt to violate article 36.22 of the Texas Code of Criminal Procedure, entitled “Conversing with jury.” See Tex.Code Crim. Proc. art. 36.22 (West 2015) (`No person shall be permitted to converse with a juror about the case on trial except in the presence and by permission of the court.’). Appellant acknowledges that the State was `unsuccessful’ in communicating to this jury in this case but nevertheless contends that `as a policy matter’ this court should reverse to put an end to the State's practice of posting about pending cases on social media.

Whitfield v. State, supra.

The Court of Appeals then noted that the

State's posting on social media about pending cases might present serious ethical and procedural concerns and might even compromise a defendant's due-process rights. However, our task is narrow: we are charged with reviewing whether the trial court abused its discretion in refusing to grant appellant a new trial in this case. See Lewis v. State, 911 S.W.2d 1, 7 (Tex. Crim. App. 1995). We do not substitute our judgment for that of the trial court but instead consider only whether the trial court's decision was arbitrary or unreasonable. See id. The trial judge is the fact finder at a hearing on a motion for new trial; we will not second-guess the trial court's judgment concerning the credibility of witnesses. See id.

Whitfield v. State, supra.

The court went on to explain that the

`touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor.’ Benefield v. State, 389 S.W.3d 564, 571 (Tex. App.–Houston [14th Dist.] 2012, pet. ref'd) (quoting Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982)). For an accused to receive a fair trial consistent with due process of law, the jury must determine his guilt or innocence solely on the basis of the evidence admitted at trial and not on the basis of facts or allegations appearing in the media. Narvaiz v. State, 840 S.W.2d 415, 428 (Tex. Crim. App. 1992).

Here, during voir dire, the trial court instructed the jury:

`[W]e want you to get all of the information here in the courtroom and not from any outside source. I don't know if there will be any publicity about this case or not, but I'm going to instruct you not to read any newspapers, not to watch the TV news, don't listen to the radio news.’

`If any of you are sports nuts or weather nuts, somebody can call you when the weather or sports come on; and you can watch that. Otherwise, you have to save the newspapers until another time. So, please don't listen to anything or read anything about the case.’

Whitfield v. State, supra.

The Court of Appeals also pointed out that the trial court judge "specifically instructed the jury":

`Also, when I say do not communicate about the case, that includes social media. So, just like you cannot talk to anyone about the case, you also can't put anything about it on your blog or your Facebook page. Don't tweet about it. Don't text about it. Don't e-mail about it.

That is the same as talking about it. So, we really mean don't communicate at all about the case.’. . .

`Should anyone contact you about the case or should you receive information from any source other than in the courtroom, be sure and let the bailiff know right away; and she will bring it to my attention.’

Whitfield v. State, supra.

The judge also instructed the jury that,

`[d]uring your deliberations in this case, you must not consider, discuss, nor relate any matters not in evidence before you. You should not consider nor mention any personal knowledge or information you may have about any fact or person connected with this case which is not shown by the evidence.’

The Court of Appeals then began the process of articulated its ruling in the case:

We generally presume that the jury followed the trial court's instructions. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Simon v. State, 374 S.W.3d 550, 552 (Tex. App.–Houston [14th Dist.] 2012, pet. ref'd). The record does not otherwise indicate that the jury did not follow the trial court's admonishments to avoid communications on social media and to base its verdict solely on the evidence.

In addition, during the hearing on the motion for new trial, each of the jurors testified. None of them saw or discussed any social media posts about the trial. All of the jurors stated that the verdict they rendered against appellant was based on the trial evidence. The trial court considered this testimony and was entitled to be the sole judge of the jurors' credibility. See Lewis, 911 S.W.2d at 7.

Appellant has not shown that the trial court abused its discretion in denying his motion for new trial. Therefore, we overrule appellant's second issue.

Whitfield v. State, supra.

Since the Court of Appeals had already rejected Whitfield’s Confrontation Clause argument, it affirmed the trial court’s judgment finding Whitfield guilty and sentencing him “to confinement for life.” Whitfield v. State, supra.