Sunday, December 19, 2010
Moving Target: Court Of Criminal Appeals Of Texas Clarifies Similar Motive Requirement Under Rule 804(b)(1)
In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.
But when exactly is there is a similar motive to develop the testimony of a witness? That was the question addressed by the recent opinion of the Court of Criminal Appeals of Texas in its recent opinion in Martinez v. State, 2010 WL 5093405 (Tex.Crim.App. 2010).
In Martinez, Raymond Martinez
was convicted of capital murder in October 1989....Pursuant to the jury's answers to the statutory punishment issues, the trial court sentenced appellant to death....This conviction and sentence were affirmed on direct appeal....In September 2007, this Court granted habeas corpus relief, set aside appellant's death sentence, and remanded the case to the trial court for a new punishment hearing.
Martinez's conviction and sentence were in large part based upon the testimony of Johnny DeAnda, and DeAnda passed away before Martinez's new punishment hearing. The prosecution thus introduced DeAnda's testimony from the first trial pursuant to Texas Rule of Evidence 804(b)(1).
After DeAnda was again sentenced to death, he appealed, claiming, inter alia, that DeAnda's testimony was improperly admitted under Rule 804(b)(1) because "his prior counsel did not have a similar motive for cross-examining DeAnda at the previous trial." Part of the basis for his argument was "that because the punishment charge to the jury in 1989 did not contain a separate mitigation instruction, [he] did not have the same motivation to cross-examine DeAnda regarding mitigation as he did in 2009, when the jury charge contained a separate mitigation instruction."
The Court of Criminal Appeals of Texas disagreed, finding that
While the language of the 1989 supplemental instruction is undeniably different from the language of the 2009 mitigation special issue, the purpose of each instruction was the same: to instruct the jury to consider mitigating evidence that might cause the jury to determine that a life sentence would be a more appropriate sentence than death. The parties, issues, and underlying purpose of the jury charge were the same in both 1989 and 2009. Further, defense counsel in 1989 and 2009 had the similar motive of presenting mitigating evidence to the jury. That appellant is now dissatisfied with the depth of prior counsel's cross-examination of DeAnda does not affect that motive....Therefore, the trial court did not violate appellant's Sixth Amendment right to confront and cross-examine a witness by admitting DeAnda's former testimony.