Alan Jannotti v. State of Texas

Alan Jannotti v. State of Texas IN THE TENTH COURT OF APPEALS No. 10-00-240-CR      ALAN JANNOTTI,                                                                               Appellant      v.      THE STATE OF TEXAS,                                                                               Appellee From the County Court at Law No. 1 McLennan County, Texas Trial Court # 992929 CR1                                                                                                                 MEMORANDUM OPINION                                                                                                                       Appellant Alan Jannotti filed a notice of appeal seeking to complain about the trial court’s overruling of his motion to suppress. He subsequently filed a motion to withdraw his notice of appeal, stating that he is of the opinion that this court does not yet have jurisdiction over the appeal. In relevant portion, Rule 42.2 of the Texas Rules of Appellate Procedure states: (a) At any time before the appellate court’s decision, the appellate court may dismiss the appeal if the appellant withdraws his or her notice of appeal. The appellant and his or her attorney must sign the written withdrawal and file it in duplicate with the appellate clerk, who must immediately send the duplicate copy to the trial court clerk. Tex. R. App. P. 42.2(a). We have not issued a decision in this appeal. The motion is signed by both Jannotti and his attorney. See id. A copy has been sent to the trial court clerk. Id.       This appeal is dismissed.                                                                         PER CURIAM Before Chief Justice Davis,           Justice Vance, and           Justice Gray Dismissed Opinion delivered and filed August 30, 2000 Do not publish                                                                                 ;text-decoration:none'> v. State, 667 S.W.2d 130, 134 (Tex. Crim. App. 1984). Here, the jury charge contained a voluntariness instruction and Delao both failed to object to the State’s reintroduction of the issue and participated in the re-litigation of this issue on cross-examination of Rozyskie and in closing argument.[3] Rachal, 917 S.W.2d at 809; see Kearney, 181 S.W.3d at 446; see also Licon v. State, 99 S.W.3d 918, 922 (Tex. App.—El Paso 2003, no pet). Therefore, we will consider the entire record and will not disturb the court’s ruling absent an abuse of discretion. See Rachal, 917 S.W.2d at 809; see also Kearney, 181 S.W.3d at 446. Voluntariness A statement is involuntary if there is “official, coercive conduct” such that “any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker.” Alvarado v. State, 912 S.W.2d 199, 211 (Tex. Crim. App. 1995). If the defendant’s evidence raises the voluntariness issue, the State must prove voluntariness beyond a reasonable doubt. See Kearney, 181 S.W.3d at 444. We consider the totality of the circumstances when determining the voluntariness of a confession. Id. Delao contests the voluntariness of his confession on three grounds: (1) he suffers from mental disabilities; (2) the interview was coercive; and (3) his requests to terminate the interview were ignored. We will address each ground in considering the totality of the circumstances. Mental Disabilities A statement is not inadmissible simply because a defendant suffers from mental impairments. See Green v. State, 839 S.W.2d 935, 940 (Tex. App.—Waco 1992, pet ref’d); see also Casias v. State, 452 S.W.2d 483, 488 (Tex. Crim. App. 1970). The defendant’s “mental impairment” must be “so severe that he is incapable of understanding the meaning and effect of his confession.” Green, 839 S.W.2d at 940. Delao suffers from moderate mental retardation, a form of schizophrenia, disruptive behavior disorder and alcohol abuse. He meets with a psychiatrist, is an MHMR patient, takes medication and has an IQ score of approximately fifty-five, placing him at the mental age level of ten or eleven.  Thus, according to the testimony of Dr. Mark Cunningham, Delao experienced difficulty understanding his rights, cannot be held to the same standard as an average person, and involuntarily confessed. However, Texas courts have long upheld confessions made by defendants suffering from similar mental impairments. See Harner v. State, 997 S.W.2d 695, 700 (Tex. App.—Texarkana 1999, no pet.) (defendant had an eighth grade education, attended special education classes, was an MHMR patient, took medication, and was told he could return to MHMR if he signed his confession); see also Casias, 452 S.W.2d at 488 (defendant had an I.Q. of 68, was retarded, illiterate, at the mental age of eight to ten, and at the educational level of “approximately second grade”); Bell v. State, 582 S.W.2d 800, 809 (Tex. Crim. App. 1979) (defendant was mildly mentally retarded and “lacked the capacity to read and understand certain statements”); Grayson v. State, 438 S.W.2d 553, 555-56 (Tex. Crim. App. 1969) (defendant was “not nearly as intelligent as a normal three or four year old,” had an IQ of 51 and was a “low-grade moron”). Therefore, we cannot say that Delao’s mental impairments are of such great severity that he was “incapable of understanding the meaning and effect of his confession.”  Green, 839 S.W.2d at 940. First, the record reflects that Delao understood the statutory warnings. Rozyskie explained Delao’s rights both before and after Harrison’s arrival. Thus, Harrison was available to assist Delao in the event he struggled to understand. Delao verbally indicated that he understood these rights and placed a check beside each corresponding warning on the Miranda form. See Franks v. State, 90 S.W.3d 771, 786 (Tex. App.—Fort Worth 2002, no pet.). Second, Delao responded to Rozyskie’s questions and appeared to understand the questions. He was not held incommunicado without the advice of counsel, friends or family, but had access to Harrison who was present and available to provide assistance if Delao felt confused or struggled to understand. See State v. Terrazas, 4 S.W.3d 720, 727 (Tex. Crim. App. 1999).  The record reflects that Delao promptly answered the questions and his responses appropriately addressed each question asked. See Guardiola v. State, 20 S.W.3d 216, 224 (Tex. App.—Houston [14th Dist.] 2000, pet ref’d).[4] Third, the following statements and questions reflect Delao’s awareness of the potential consequences of confessing: When you leaving here, going – he got to lock me – lock me up.  If I talk to you, you going to go home, or go to jail?  I ain’t going to run off. I want to see my baby, man. I ain’t going to run. I’ll want to see my baby.  They – you are trying to mess me up. I go to jail today, man.  I don’t want to get in trouble for it, man, because I know I ain’t mean – I didn’t mean – I shot the wall, man.  In particular, Delao’s last statement signifies his “ability to think defensively and to offer a mitigating statement.” Rivera v. State, No. 2-05-056-CR, 2006 Tex. App. Lexis 2291 at *10 (Tex. App.—Fort Worth Mar. 23, 2006, pet ref’d) (not designated for publication).[5] These comments indicate Delao’s awareness that confessing may lead to criminal prosecution. In fact, Delao acknowledged his understanding that anything he said could be used against him in court. See Franks, 90 S.W.3d at 786.  Thus, Delao’s mental impairments do not appear to be so severe as to prevent him from comprehending the consequences of his confession. Green, 839 S.W.2d at 940. Coerciveness of the Interview Standing alone, a detective’s misrepresentations to a “suspect during an interrogation” do not render a confession involuntary. Green v. State, 934 S.W.2d 92, 99 (Tex. Crim. App. 1996). It is “constitutionally permissible” for police to employ certain types of deception “designed to elicit a confession” as long as the suspect’s will is not overborne. Id. Factors to consider when determining whether a defendant’s will was overborne include: “length of detention; incommunicado or prolonged interrogation; denying access to a family member; refusing a defendant’s request to telephone a lawyer or family member; and physical brutality.”  Pace v. State, 986 S.W.2d 740, 747 (Tex. App.—El Paso 1999, pet. ref’d). During the interview, Delao’s anxiety level was increased by being confined to a small room with Rozyskie, an authority figure. Rozyskie represented that a photograph placed Delao inside the bar, the witnesses at the scene picked Delao from a lineup, DNA and fingerprints were coming in, and Rozyskie “knew” Delao committed the crime. Rozyskie claimed to be Delao’s “best friend,” that the conversation would be confidential, and that he placed his credibility on the line just to speak with Delao. Rozyskie minimized the crime by claiming that he believes Delao simply made a mistake, but people in the next room believe that Delao is a “cold blooded killer.” According to Dr. Cunningham, these circumstances magnified Delao’s disabilities and caused Delao to provide answers he thought Rozyskie wanted to hear. First, “misrepresentation relating to an accused’s connection to the crime is the least likely to render a confession involuntary.” Green, 934 S.W.2d at 99.  Rozyskie’s act of “inflating evidence” simply led Delao to “consider anything beyond his own beliefs regarding his actual guilt or innocence, his moral sense of right and wrong, and his judgment regarding the likelihood that the police had garnered enough valid evidence linking him to the crime.” See id. at 100; Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992).[6] The misrepresentations Rozyskie made to Delao are directly related to Delao’s connection with the crime and so were insufficient to coerce an involuntary statement. See Green, 934 S.W.2d at 99. Second, “the fact that a friendly, supportive, low key, nonconfrontational style may prove effective in eliciting incriminating statements does not mean that the style of questioning is improper or that the resulting statements are involuntary.” Lane v. State, 933 S.W.2d 504, 513 (Tex. Crim. App. 1996). Rozyskie’s attempts to befriend Delao and gain his trust did nothing more than “facilitate communication by being friendly and supportive.” Id. Third, the interview lacked any element of coerciveness: (1) the interview lasted little more than one hour; (2) Delao was not denied access to a family member, but was granted access to his MHMR counselor; (3) Delao received a drink; and (4) no physical violence occurred during the interview. See Licon, 99 S.W.3d at 925; see also Pace, 986 S.W.2d at 747. Consequently, the record lacks evidence that Delao’s will was overborne. Right to Terminate “Failure to cut off questioning after a suspect invokes his right to remain silent violates his rights and renders any subsequently obtained statements inadmissible.” Dowthitt v. State, 931 S.W.2d 244, 257 (Tex. Crim. App. 1996). However, “an officer need not stop his questioning unless the suspect’s invocation of rights is unambiguous, and the officer is not required to clarify ambiguous remarks.” Id. During the interview, Rozyskie explained the right to terminate the interview as follows:  You have the right to terminate this interview at any time. Do you understand that? Okay. That means you can stop it. If you go, “Hey, I don’t want to answer any more questions, I don’t want to talk to you,” we’re out of here, you go home.  Delao responded that he understood this right and placed a check mark next to the corresponding statement on the Miranda warning form. See Franks, 90 S.W.3d at 786. Harrison also reminded Delao that he did not have to answer Rozyskie’s questions. Throughout the remainder of the interview, Delao periodically made the following statements and/or questions: Well, can I go home, man? I want to go home to the house, man. I go on and do it then. I’ll come up to talk to you later because, man, I don’t have time to think. Where I can go home I gotta go home. I can go home. Can I go home now? Rozyskie continued the interview after each of these statements. At the end of the interview Delao clearly stated, “I want to go home.” Delao then waited in the hallway until driven home. Dr. Cunningham testified that Rozyskie’s act of continuing the interview caused Delao to believe that he could not go home even though told he had the right to terminate the interview. In turn, this conflicting conduct and the intimidating circumstances of the interview prevented Delao from being able to simply leave the room as would an average person. However, Delao indicated that he understood his right to terminate the interview. See Franks, 90 S.W.3d at 786. Delao and the State agree that Delao was not under arrest at the time of the interview. See Kiser v. State, 788 S.W.2d 909, 912 (Tex. App.—Dallas 1990, pet ref’d); see also Ramirez v. State, 116 S.W.3d 55, 59 (Tex. App.—Houston [14th Dist.] 1998, pet ref’d). In fact, Delao voluntarily accompanied the detectives to the police station. See Ramirez, 116 S.W.3d at 59.  Rozyskie repeatedly reminded Delao that he was not under arrest. See id; see also Kiser, 788 S.W.2d at 912. In only one instance did Delao stop the interview to speak with Harrison about whether he should continue answering questions. Harrison asked Delao whether he wanted a lawyer and whether he wanted to continue the interview. Delao chose to continue answering questions because he wanted go home. Although Delao does not challenge the court’s finding that he was not under arrest, he has failed to identify any statement unambiguously attempting to terminate the interview and invoke his right to remain silent. See Dowthitt, 931 S.W.2d at 257. His statements more accurately reflect a desire to have time to formulate answers or an inquiry as to whether he would be allowed to go home if he confessed rather than a request to terminate the interview. At most, Delao’s statements are ambiguous as to his desire to terminate the interview. Totality of the Circumstances Although Delao suffers from diminished mental abilities, the totality of the circumstances does not indicate that his confession was involuntary.  Rather, Delao consented to the questioning, was advised of his statutory rights and indicated that he understood these rights. See Franks, 90 S.W.3d at 786. He was able to provide answers to the questions posed, formulate a defensive response, and express his awareness that confessing could lead to punishment. See Guardiola, 20 S.W.3d at 224; see also Rivera, 2006 Tex. App. Lexis 2291 at *10.  Neither was Delao subjected to a coercive environment. It was proper for Rozyskie to seek a confession by appealing to Delao’s trust and making misrepresentations related to Delao’s connection with the crime.  See Holland, 963 F.2d at 1051; see also Green, 934 S.W.2d at 99; Lane, 933 S.W.2d at 513. The interview was short in duration, Delao’s MHMR counselor was present, Delao received a drink, and no physical violence took place. See Licon, 99 S.W.3d at 925; see also Pace, 986 S.W.2d at 747. Thus, the record does not indicate that Delao’s will was overborne or that his confession was not freely and voluntarily made. See id. Furthermore, although Delao was not under arrest, he did not unambiguously assert his right to terminate the interview. The only time Delao clearly questioned whether to continue the interview, he chose to proceed. His statements about going home were ambiguous as to whether he desired to terminate the interview or whether he simply sought the chance to incur additional time to formulate answers. In either event, Rozyskie was not required to clarify Delao’s statements.  See Dowthitt, 931 S.W.2d at 257; see also Kiser, 788 S.W.2d at 912. Accordingly, under the totality of the circumstances, and viewed in the light most favorable to the trial court’s ruling, the court did not abuse its discretion by finding that Delao’s confession was voluntary. See Montanez, 195 S.W.3d at 106; see also Green, 839 S.W.2d at 940; Pace, 986 S.W.2d at 747; Kearney, 181 S.W.3d at 446. Delao’s first issue is overruled. ISSUE TWO          In his second issue, Delao contends the court erroneously restricted his voir dire examination as follows: DEFENSE COUNSEL: All right. One last question, I know the day is getting long. Mrs. Polk, is it better -- is it preferable to convict an innocent person or to let a guilty person go free?  THE STATE: Your honor, at this time we would object. It’s an improper --  THE COURT: Sustained.  DEFENSE COUNSEL: In a jury trial obviously the jurors are the finders of what happened. And they are the boss. So whichever twelve of you sit over in the box over there, you are going to be the boss. All we can ask of you is to fairly hear what we are trying to tell you  We review a court’s limitation of voir dire for abuse of discretion. See Sells v. State, 121 S.W.3d 748, 755 (Tex. Crim. App. 2003); see also Rogers v. State, 44 S.W.3d 244, 248 (Tex. App.—Waco 2001, no pet). A court abuses its discretion by disallowing the answer to a proper question. See Sells, 121 S.W.3d at 755-756; see also Allridge v. State, 762 S.W.2d 146, 163 (Tex. Crim. App. 1988). A proper question seeks a “juror’s views on an issue applicable to the case,” while an improper question commits the “juror to a particular verdict based on particular facts.” Sells, 121 S.W.3d at 756. Where a court places no absolute limitation on the “underlying substance” of the defendant’s question, “counsel must rephrase the improperly phrased question or waive the voir dire restriction.”  Bolden v. State, 73 S.W.3d 428, 431 (Tex. App.—Houston [1st Dist.] 2002, pet ref’d); see Wright v. State, 28 S.W.3d 526, 534 (Tex. Crim. App. 2000). It is insufficient to merely show that the court “generally disapproved of an area of inquiry from which proper questions could have been formulated,” as the court “might have allowed the proper question had it been submitted for the court’s consideration.” Sells, 121 S.W.3d at 756. Once the court sustained the State’s objection to Delao’s question, Delao abandoned this particular line of questioning. Although the court disapproved of Delao’s “area of inquiry,” the court might have allowed Delao to rephrase his question or ask other questions. See Sells, 121 S.W.3d at 756. Delao did not dispute the court’s ruling, seek to rephrase the question or request to pose alternative questions. See Bolden, 73 S.W.3d at 431; see also Wright, 28 S.W.3d at 536. Thus, Delao failed to preserve his complaint for appeal. See Sells, 121 S.W.3d at 756; see also Bolden, 73 S.W.3d at 431; Wright, 28 S.W.3d at 536. We overrule his second issue. ISSUE THREE          Delao argues, in his third issue, that the court’s admission of testimony regarding how Delao’s photograph came to be included in the lineup resulted in a violation of his Sixth Amendment right to confrontation.          Whether a court’s admission of evidence violates the Confrontation Clause is reviewed de novo. See McClenton v. State, 167 S.W.3d 86, 93 (Tex. App.—Waco 2005, no pet.). The Confrontation Clause guarantees a defendant’s right to “be confronted with the witnesses against him.” U.S. Const. amend. VI. “Testimonial statements” made by “witnesses absent from trial” are admissible “only when the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine.”  Kearney, 181 S.W.3d at 442; see Crawford v. Washington, 541 U.S. 36, 59, 124 S. Ct. 1354, 1368-69, 158 L. Ed. 177 (2004). Testimonial statements come in the form of (1) “‘ex parte in-court testimony or its functional equivalent,’ such as affidavits, custodial examinations, prior testimony not subject to cross-examination or ‘similar pretrial statements that declarants would reasonably expect to be used prosecutorially;’” (2) “‘extrajudicial statements’ of the same nature ‘contained in formalized testimonial materials;’” (3) “‘statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial;’” and (4) “prior testimony at a preliminary hearing, before grand jury, or at a former trial; and police interrogations.”  Kearney, 181 S.W.3d at 442; Crawford, 541 U.S. at 51-52, 68, 124 S. Ct. at 1364, 1374. Delao relies on Walker v. State for the proposition that testimony regarding a third-party tip is inadmissible. In Walker, Detective Michael Parinello was informed that Dedra Dangerfield was arrested on an unrelated matter and possessed items stolen in a robbery he was investigating. See Walker v. State, 180 S.W.3d 829, 831 (Tex. App.—Houston [14th Dist.] 2005, no pet.). Parinello met with Dangerfield who told him the nicknames of two potential suspects, including Walker. See id. Parinello compiled a photographic lineup. See id. At trial, Parinello testified that he showed the lineup to Dangerfield who identified Walker. See id. On appeal, Walker challenged the admission of this testimony. See id at 833. The Houston Court found that: Parinello approached Dangerfield while she was in police custody to question her about an ongoing criminal investigation and asked her to identify suspects in that investigation. These facts demonstrate that the setting was sufficiently formal and structured to qualify as a police interrogation. Additionally, under these circumstances, Dangerfield reasonably could have believed that her identifications would be used in the subsequent trials of Ramos and appellant.  Id. at 834. Accordingly, “admission of Dangerfield’s incriminating out-of-court testimonial statements violated appellant’s Sixth Amendment rights.” Id. Walker is distinguishable from the present case.  Here, the police initially had no suspects.  At trial, Rozyskie explained that he received information implicating Delao as a suspect. After receiving this information, he compiled a lineup that included a photo of Delao. Rozyskie then showed the lineup to Blankenship, Amos, and Powell. Blankenship identified Delao from this lineup and subsequently testified at trial. However, the record does not reveal from whom Rozyskie received the incriminating information or the method in which the information was received. Neither does the record reflect that Rozyskie approached and/or interviewed this person or that the person identified Delao from a lineup. Unlike Walker, there is simply no evidence of a custodial setting or a formal police interrogation sufficient to render this evidence testimonial.  See id. Rather, an officer may “testify about anonymous tips received for the purpose of showing why the investigation focused on a particular defendant.” Davis v. State, 169 S.W.3d 673, 676 (Tex. App.—Fort Worth 2005, no pet.). An officer may also testify to “acting in response to ‘information received.’”  Kimball v. State, 24 S.W.3d 555, 564 (Tex. App.—Waco 2000, no pet.).  The statement of which Delao complains was not offered to prove the truth of the matter asserted, but to show how Delao became a suspect and why Rozyskie included Delao’s photograph in the lineup. See id; see also Davis, 169 S.W.3d at 676; McCreary v. State, 194 S.W.3d 517, 521-22 (Tex. App.—Houston [1st Dist.] 2006, no pet.). Because the testimony was not hearsay, Delao’s constitutional right to confrontation was not violated, and the court did not abuse its discretion by admitting this testimony. See Kimball, 24 S.W.3d at 564; see also Davis, 169 S.W.3d at 676; McCreary, 194 S.W.3d at 521-22. We overrule Delao’s third issue. Having overruled Delao’s three issues, we affirm the judgment.  FELIPE REYNA Justice Before Chief Justice Gray, Justice Vance, and Justice Reyna (Chief Justice Gray concurs without a separate opinion) Affirmed Opinion delivered and filed November 15, 2006 Do not publish [CRPM] [1]          Findings regarding the voluntariness of a confession may be dictated into the record and are in compliance with article 38.22 of the Texas Code of Criminal Procedure. See Murphy v. State, 112 S.W.3d 592, 601 (Tex. Crim. App. 2003); see also Lee v. State, 964 S.W.2d 3, 11-12 (Tex App.—Houston [1st Dist.] 1997, pet ref'd); Andrade v. State, 6 S.W.3d 584, 592 (Tex. App.—Houston [14th Dist.] 1999, pet ref'd).  [2]          “It would be unreasonable to ignore trial evidence in our review of the court’s suppression decision only to be confronted by the evidence in our consideration of whether the error was harmless.” Rachal v. State, 917 S.W.2d 799, 809 (Tex. Crim. App. 1996); see Tex. R. App. P. 44.  [3]          The instruction states, “A statement of an accused may be used in evidence against him if it appears that the same was freely and voluntarily made without compulsion or persuasion. Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the statement made by the defendant, Isaiah Paul Delao, to Detective John Rozyskie was not voluntarily made, then you shall not consider such statement for any purpose whatsoever.” [4]          The Houston Court upheld the trial court’s findings that Guardiola “could leave at any time, understood the warnings given to him, and readily responded to questions asked to him.” Guardiola v. State, 20 S.W.3d 216, 224 (Tex. App.—Houston [14th Dist.] 2000, pet ref’d).  [5]              After signing a written confession, “Rivera then added a mitigating statement in his own handwriting explaining that he did not mean to hurt Palmer and that he was on drugs at the time of the offense.” Rivera v. State, No. 2-05-056-CR, 2006 Tex. App. LEXIS 2291 at *10 (Tex. App.—Fort Worth Mar. 23, 2006, pet. ref’d) (not designated for publication). [6]              “Extrinsic considerations,” however, are likely to cause involuntary confessions because they skew the defendant’s “rational choice,” damage his “free choice,” and “cast doubt upon the reliability of the resulting confession.” Holland v. McGinnis, 963 F.2d 1044, 1051-52 (7th Cir. 1992).