Judge Barrett on Criminal Law V

As always, before reading this summary, please read the overview for context.

Sims v. Hyatte (2019)

A man shot Shane Carey in the face. Less than half an hour later, all Mr. Carey could tell police about his attacker was that the man had been Black, possibly in his late twenties, with short or no hair and a large build. He had worn a three-quarter length coat, black trousers, and combat boots. [2-3] None of the other witnesses could identify the shooter. Very shortly afterwards, police officers found Mack Sims hiding nearby. Mr. Sims was Black and wore a three quarter-length coat [3]. He also wore a hat and had noticeable facial hair, neither of which Carey had mentioned. [3, 7] According to Sims’ later testimony, his hair was long and curly at the time and his clothing differed in many respects from what Carey had described. [7] Sims was unarmed; although police officers searched for a gun or for shell casings, they found none. [3]

On several occasions, the police asked Carey to identify the assailant by presenting him with photographs of suspects. The record of these occasions is far from clear and Carey may not have been fully compos mentis during all of them. It appears that Carey identified Sims during several of them, with varying degrees of confidence, and that the police may once have presented Carey with a photograph only of Sims. [5-7 and note 1 on page 9] Carey also underwent hypnotism to enhance his recollection, after which he identified a photo of Sims as the shooter with far more confidence. [10-11] The prosecutor, who later became an Indiana judge, did not inform Sims’ lawyer about the hypnotism. [11-12]

At trial, Carey identified Sims as the shooter with certainty, giving a more thorough description of the shooter’s appearance and attire that corresponded with Sims’. [4-5, 7-8] Sims’ lawyer attempted to undermine Carey’s testimony by recounting his earlier lack of confidence, his lack of perception during the event, and the contradictions in his original account. [6-7] He also moved for a new trial on the grounds that showing Carey a single photograph was too suggestive and tainted the subsequent identification. The trial court denied the motion and, when the jury found Sims guilty of attempted murder, sentenced him to 35 years in prison. [7-8]

Many appeals and proceedings followed. [9-10] It was during the course of one such proceeding that a prosecutor testified in open court about the secret hypnotism and that Carey had only identified Sims after the hypnosis. [10] Following a hearing, the court held that Carey had been able to identify Sims before the hypnotism (disregarding the prosecutor’s statement to the contrary as an off-the-cuff remark years later) and therefore that Carey’s testimony was admissible. [11-13] The Court of Appeals of Indiana affirmed, holding that the prosecution had demonstrated a factual basis for Carey’s testimony other than hypnotism, rendering that testimony admissible. [13-14] The Indiana Supreme Court denied relief, Sims petitioned a federal court for habeas corpus, and Judge Robert Miller, Jr. denied relief but granted a certificate of appealability. [14]

The question before the Court of Appeals for the 7th Circuit was whether the Indiana court’s decision – that Carey’s hypnosis was immaterial under Brady v. Maryland – was contrary to clearly established federal law. [14-16] Judge Bauer wrote for the Court of Appeals that according to Supreme Court precedent, particularly Kyles v. Whitley and Wearry v. Cain, non-cumulative evidence undermining the credibility of a critical witness was material. [16-18] Judge Bauer held that the Indiana court had erred in asking only whether Carey’s testimony was admissible, not whether the hypnosis was material under Brady. [18-19] Judge Bauer held that the hypnosis was material because, given the weakness of his prior identification, Carey’s testimony at trial was critical. It was well established that hypnosis could lead to inaccurate testimony, which Sims’ lawyer could have used to undermine the credibility of that critical testimony. [19-25] The Court of Appeals therefore instructed the district court to issue the writ of habeas corpus.

Judge Barrett dissented. [26] She first argued that the Supreme Court precedent cited by the majority stood for the proposition that undisclosed impeachment evidence of a key witness could be material, not that it necessarily was. [27-28] Judge Barrett continued that the Indiana court had properly analysed the material under Brady, finding that it would not have changed the outcome of the trial and therefore did not violate Brady. [28-30] Judge Barrett concluded that, because the Indiana court properly applied Brady and there was no Supreme Court decision with “materially indistinguishable” facts, the state court’s decision was not contrary to clearly established federal law. [30] Judge Barrett then argued that the Indiana court had not unreasonably applied federal law, because a court could reasonably conclude that the hypnosis was not material. According to Judge Barrett, the Court of Appeals was required to presume that the facts were as the state court found them to be, unless Sims were able to prove otherwise by clear and convincing evidence. [32-33 and note 5 on pages 34-35] Therefore, the Court of Appeals had to assume that Carey had been able to identify Sims as the shooter before hypnosis. [33-35] Given these facts, Judge Barrett opined that it was not unreasonable of the Indiana court to conclude that Carey’s identification had bases other than hypnosis and that using the hypnosis to undermine Carey’s testimony would have been cumulative of the other cross-examination. [35-39] Although Judge Barrett emphasised her discomfort with the State court’s decision, and even her belief that the prosecution’s actions had violated Brady, she would affirm the denial of habeas corpus. [26, 38, 40]

United States v. Terry (2019)

After the DEA had arrested Dimitris Terry, two agents knocked on the door to his apartment, which was opened by a sleepy-looking woman in a bath-robe. They explained the situation and she let them in, even signing a consent-to-search form. Only after entering and beginning to search did they ask if she lived there, which she did not (although her son, by Mr. Terry, did). The agents did not stop the search. [2] Meanwhile, Terry refused to sign a form acknowledging his Miranda rights because “this wasn’t his first go-around” but he said he was willing to talk and he answered the officers’ questions. [3]

Terry moved to suppress the results of the search and his statements to the police. The district court denied both motions. [3-4] Judge Ronald Guzmán then held a bench trial, found Terry guilty, and sentenced him to 168 months’ imprisonment. [3-4]

The question before the Court of Appeals was whether the agents had apparent authority to search Terry’s apartment: whether a reasonable person would have thought, at the time the agents began the search, that the woman in the bath-robe had the authority to permit them to conduct the search. [5-6] Judge Barrett held that the few facts known to the agents at the time – that she wore a bath-robe, seemed sleepy, claimed to have been there for 45 minutes, and had consented to the search – were not sufficient for a reasonable person to conclude that she had authority over the residence. All that the agents could reasonably conclude was that she had spent the night there. There were many possible explanations for this, so the agents should have inquired further before conducting a search. [6-7]

Judge Barrett held, however, that Terry’s interview statements were admissible. Citing Berghuis v. Thompkins, Judge Barrett held that Terry’s experience with law enforcement indicated that he understood his Miranda rights and by talking the police he had voluntarily waived them. [7-9]

Therefore, Terry’s vacation was convicted and the results of the search were ruled inadmissible in future proceedings.

United States v. Vaccaro (2019)

Police stopped Travis Vaccaro for running a red light. Mr. Vaccaro made strange, sharp movements and reached towards the passenger seat. Vaccaro said he was taking of his coat. Nevertheless, he was acting very strangely; for example, he told the officers that someone was trying to kill him. One of the officers drew his gun, ordered Vaccaro out of the car, put Vaccaro in hand-cuffs, and searched him for weapons. During the search, said that he was under supervision after conviction for false imprisonment. The officers found nothing on his person but both later claimed to have seen a rifle case at this time. They did not tell Vaccaro, supposedly because they didn’t want to alarm him. The officers locked the hand-cuffed Vaccaro in the back seat of their car, acknowledged (or first saw) the rifle case, searched it, and found a rifle. [2-3]

Vaccaro moved to suppress the rifle. The magistrate judge believed that Vaccaro had made furtive gestures but not that the officers had seen the rifle case before putting Vaccaro in hand-cuffs. Nevertheless, she concluded that Vaccaro’s frantic motions had given the officers sufficient grounds to search the passenger area of the car. [3-4] Judge J.P. Stadtmueller agreed and denied Vacarro’s motion. Vacarro pleaded guilty to being a felon in possession of a firearm but reserved the right to appeal the denial of his motion to suppress. [4-5]

Vaccaro first argued that, if the district court found that the officers had lied about when they saw the rifle case, it also had to find that they had lied about his movements. Judge Barrett, writing for the Court of Appeals, stated that a court could believe part but not all of a witness’ testimony and that Vaccaro had not proved that the court was wrong to do so. [5-6] Judge Barrett then held that Vaccaro’s movements, which could have indicated that he was reaching for a weapon, justified both hand-cuffing and searching Vaccaro. [6-7]

Vaccaro further argued that the officers’ search of his car had been unlawful. Judge Barrett explained that, under Michigan v. Long, police officers had the authority to search a car when they believed that a suspect was dangerous and able to gain immediate control of weapons. Judge Barrett held that the first part of the test was satisfied: the officers had reason to believe that Vaccaro was dangerous because they suspected that he was on drugs and they knew he had committed false imprisonment. [7-8] Judge Barrett then held that Vaccaro was able to gain control of a weapon, even though he was hand-cuffed and locked in a police car, because he was not under arrest. [8] Vaccaro conceded that he was not under arrest and would be able to return to his car. [9-10 and note 1 on page 10] Judge Barrett then held that the most applicable case was the 7th Circuit case United States v. Arnold rather than the Supreme Court case Arizona v. Gant, because the former applied to stops and the latter to arrests. Applying Arnold, Judge Barrett held that Vaccaro would shortly be able to return to his vehicle, which justified searching that vehicle. [8-10]

United States v. Walker (2019)

Richard Walker sexually assaulted two children, both well below the age of twelve, and was sent to prison. In addition, Mr. Walker was obligated to register himself with the local authorities under the Sex Offender Registration and Notification Act (“SORNA”) for a period of time based upon the severity of his crime. Nineteen years after his conviction, Walker failed to do so. A year later, he was indicted for this failure and conditionally pleaded guilty. [2] Judge Pamela Pepper sentenced Walker to 26 months’ imprisonment. [3]

Defendants are classified under SORNA based on the nature of their crime and the age of their victim. [3-4] The district court had classified Walker as a Tier III offender, which required him to register for life and imposed the strictest sentence. [2-3] The question before the Court of Appeals was whether this classification was correct. If Walker was a Tier II offender, he would need to be re-sentenced; Tier I, to be released, because his obligation to register would have expired before the period in question. [3]

Judge Barrett wrote for the Court of Appeals that categorising Walker meant looking at the elements of the crime for which he had been convicted, not what he had actually done. [3-5, 8-9] If the elements of the crime brought it within the ambit of a specific tier, then the court would look at whether the defendant’s specific acts had been committed against somebody of the age set forth in the category. [5-7]

Therefore, before looking at the age of Walker’s victims, the Court of Appeals had to ascertain whether Walker had been convicted for an offence that constituted “abusive sexual contact” as defined by SORNA. The crime for which Walker had been convicted from “knowingly subject[ing] . . . to any sexual contact” a child who was below the age of fifteen and at least four years younger than the defendant. Colo. Rev. Stat. § 18-3-405(1). Abusive sexual contact was defined to include (as relevant) knowing sexual contact with someone who was incapable of understanding the nature of the act, someone aged from twelve to fifteen who was at least four years younger than the defendant, or someone below the age of twelve. [9] Judge Barrett held that Walker’s conviction was for a broader crime than this, because some fourteen year-olds understood the nature of sexual activity and the Colorado statute covered some sexual activity with children outside of either age category (under twelve or twelve – fifteen). [11]

Because Walker’s conviction was not for “abusive sexual conduct,” Judge Barrett held that he was a Tier I offender. Therefore, he had not been required to register, so the Court of Appeals vacated his conviction.

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