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).
`[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.
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