Team No. 19
KENNY BEARSON
Petitioner,
v.
UNITED STATES OF AMERICA
Respondent.
On Writ Of Certiorari To The
United States Court Of Appeals
For The Thirteenth Circuit
BRIEF FOR RESPONDENT
Team No. 19
Counsel for Respondent
i
TABLE OF CONTENTS
TABLE OF CONTENTS ................................................................................................................ i
TABLE OF AUTHORITIES ........................................................................................................ iii
QUESTIONS PRESENTED ......................................................................................................... vii
JURISDICTION STATEMENT .................................................................................................. viii
STATEMENT OF FACTS .............................................................................................................. 1
SUMMARY OF ARGUMENT ....................................................................................................... 4
ARGUMENT ................................................................................................................................... 5
I. DEFENDANT’S FOURTH AMENDMENT RIGHTS WERE NOT VIOLATED.......5
A. It was reasonable for the police to believe Defendant’s sister had apparent
authority to consent to a search of Defendant’s home and her consent was
voluntary based on the totality of the circumstances.……………………................6
1. Defendant’s sister showed apparent authority over the premises……………….….6
2. The sister’s consent was voluntary…………………………………………………9
a. The sister’s age and intellect support she was competent to give consent..….9
b. The sister’s marijuana use did not impair her ability to give consent…..….10
c. The police were not required to tell the sister she could refuse consent…....11
d. The police did not create a coercive environment………………………..…11
e. Detective Binger’s statement to seek to obtain a warrant was lawful………12
B. The seizure of the receipt was lawful because it was within the scope of the
permitted search, located in plain view, in a common area, and there was
probable cause to believe it was evidence of a crime................................................13
II. DEFENDANT’S SIXTH AMENDMENT RIGHTS WERE NOT VIOLATED.........15
A. The trial court acted within its discretion to exclude Lara’s “confession.”...........16
ii
1. Lara lacked an awareness that his statement was against interest because he
“confessed” while intoxicated and recanted when sober........................................17
2. Corroborating circumstances do not clearly indicate the trustworthiness of Lara’s
statement or Deputy Finster, the witness.................................................................19
3. Lara’s statement was not spontaneously made to a person with whom he shared a
close and confidential relationship………………………………………………..22
B. Even if Lara’s “confession” had been admitted, it would not have affected the
outcome of the proceedings.........................................................................................23
CONCLUSION ...............................................................................................................................25
iii
TABLE OF AUTHORITIES
Constitutional Provisions
U.S. Const. amend. IV…………………………………………………………………………….5
U.S. Const. amend. VI…………………………………………………………………………...15
Statutes
28 U.S.C. § 1254(1) (2012)……………………………………………………………………….3
Fed. R. Crim. P. 33(b)(1)……………………………………………………………………...3, 23
Fed. R. Evid. 804(b)(3)…………………………………..…………………………..16, 17, 19, 21
Cases
Brigham City v. Stuart, 547 U.S. 398 (2006)………………………………………………....…..5
Brinegar v. United States, 338 U.S. 160 (1949)…………………………………………………..5
Bumper v. North Carolina, 391 U.S. 543 (1968)………………………………………………..12
California v. Green, 399 U.S. 149 (1970)…………………………………………………...16, 17
Chambers v. Mississippi, 410 U.S. 284 (1973)……………………………………………..passim
Chapman v. California, 386 U.S. 18 (1967)……………………………………………………. 25
Coffia v. State, 191 P.3d 594 (Okla. Crim. App. 2008)…………………………………………11
Com. v. Maxwell, 477 A.2d 1309 (Pa. 1984)……………………………………………………..9
Crane v. Kentucky, 476 U.S. 683 (1986)………………………………………………………..15
Fernandez v. California, 134 S. Ct. 1126 (2014)………………………………………………….8
Florida v. Jimeno, 500 U.S. 248 (1991)……………………………………………………5, 6, 13
Georgia v. Randolph, 547 U.S. 103 (2006)……………………………………………………….8
Gilchrist v. United States, 954 A.2d 1006 (D.C. 2008)………………………………………….22
Holmes v. South Carolina, 547 U.S. 319 (2006)………………………………………………...15
Illinois v. Rodriguez, 497 U.S. 179 (1990)………………………………………………….5, 6, 7
iv
Ingram v. United States, 976 A.2d 180 (D.C. 2009)…………………………………………….22
Jones v. State, 678 So. 2d 309 (Fla. 1996)………………………………………………………19
Katz v. United States, 389 U.S. 347 (1967)………………………………………………………5
Laumer v. United States, 409 A.2d 190 (D.C. 1979)……………………………………………21
Ohio v. Robinette, 519 U.S. 33 (1996)……………………………………………………………9
People v. James, 561 P.2d 1135 (Cal. 1977)…………………………………………………….11
People v. Mullaney, 306 N.W.2d 347 (Mich. 1981)…………………………………………….14
People v. Shabazz, 999 N.E.2d 504 (N.Y. 2013)………………………………………………..19
People v. Shaffer, 444 N.E.2d 1096 (Ill. App. Ct. 1982)…………………………………………7
People v. Woodruff, 379 N.E.2d 907 (Ill. App. Ct. 1978)………………………………………16
Rhoades v. Henry, 638 F.3d 1027 (9th Cir. 2011)………………………………………17, 18, 20
Santiago v. O’Brien, 628 F.3d 30 (1st Cir. 2010)……………………………………………….23
Schneckloth v. Bustamonte, 412 U.S. 218 (1973)……………………………………….5, 6, 9, 11
Silverman v. United States, 365 U.S. 505 (1961)…………………………………………………5
State v. Lopez, 757 A.2d 542 (Conn. 2000)…………………………………………………19, 22
State v. Pitts, 978 A.2d 14 (Vt. 2009)……………………………………………………………12
State v. Rivera, 602 A.2d 571 (Conn. 1992)………………………………………………...22, 23
State v. Sobczak, 833 N.W.2d 59 (Wis. 2013)…………………………………………………7, 8
Taylor v. Illinois, 484 U.S. 400 (1988)………………………………………………………….15
United States v. Atkins, 558 F.2d 133 (3d Cir. 1977)…………………………………………...21
United States v. Bagley, 537 F.2d 162 (5th Cir. 1976)………………………………………….21
United States v. Brown, 785 F.2d 587 (7th Cir. 1986)…………………………………………..24
United States v. Caldwell, 760 F.3d 267 (3d Cir. 2014)………………………………………...20
v
United States v. Cedano-Medina, 366 F.3d 682 (8th Cir. 2004)………………………………...12
United States v. Cordo, 186 F.2d 144 (2d Cir. 1951)……………………………………………23
United States v. Cornelius, 925 F.Supp.2d 1238 (D. Wyo. 2013)………………………………11
United States v. Cruz-Mendez, 467 F.3d 1260 (10th Cir. 2006)………………………………...12
United States v. Dichiarinte, 445 F.2d 126 (7th Cir. 1971)……………………………………...14
United States v. Elrod, 441 F.2d 353 (5th Cir. 1971)……………………………………………10
United States v. Faruolo, 506 F.2d 490 (2d Cir. 1974)………………………………………….12
United States v. Gay, 774 F.2d 368 (10th Cir. 1985)……………………………………………10
United States v. Hendrieth, 922 F.2d 748 (11th Cir. 1991)……………………………………...19
United States v. Hicks, 650 F.3d 1058 (7th Cir. 2011)………………………………………….12
United States v. Isiofia, 370 F.3d 226 (2d Cir. 2004)……………………………………………..9
United States v. Kelley, 594 F.3d 2010 (8th Cir. 2010)………………………………………....11
United States v. Lopez-Alvarez, 970 F.2d 583 (9th Cir. 1992)………………………………….25
United States v. Lozado, No. 14-1094, 2015 U.S. App. LEXIS 1163 (10th Cir. Jan. 20, 2015)..17
United States v. Matlock, 415 U.S. 164 (1974)…………………………………………….5, 6, 13
United States v. Mendenhall, 446 U.S. 544 (1980)……………………………………………….9
United States v. Montgomery, 621 F.3d 568 (6th Cir. 2010)……………………………………10
United States v. Patayan Soriano, 361 F.3d 494 (9th Cir. 2008)………………………………...12
United States v. Peyton, 745 F.3d 546 (D.C. Cir. 2014)………………………………………...13
United States v. Reid, 226 F.3d 1020 (9th Cir. 2000)…………………………………………….8
United States v. Sanchez, 608 F.3d 685 (10th Cir. 2010)………………………………………...8
United States v. Satterfield, 572 F. 2d 687 (9th Cir. 1978)……………………………...16, 19, 21
United States v. Scheffer, 523 U.S. 303 (1998)……………………………………………..15, 24
vi
United States v. Smalls, 605 F.3d 765 (10th Cir. 2010)……………………………………..16, 25
United States v. Two Shields, 497 F.3d 789 (8th Cir. 2007)…………………………………….18
United States v. Turbyfill, 525 F.2d 57 (8th Cir. 1975)…………………………………………..7
United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) ………………………………….23, 24
United States v. Wright, 625 F.2d 1017 (1st Cir. 1980)…………………………………23, 24, 25
Walters v. United States, 447 U.S. 649 (1980)……………………..……………………………13
Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967)…………………………………….14
Washington v. Texas, 388 U.S. 14 (1967)……………………………………………………….15
Williamson v. United States, 512 U.S. 594 (1994)……………………………………………...17
vii
QUESTIONS PRESENTED
I. Did the Thirteenth Circuit correctly hold Defendant’s Fourth Amendment rights were not
violated because his sister had authority to consent to the police entry and search of his
home, her consent was voluntary, and seizure of the receipt was within the scope of the
consent, in plain view, in a common area, and there was probable cause to believe the
receipt was evidence of criminal activity?
II. Did the Thirteenth Circuit correctly hold Defendant’s Sixth Amendment right to present a
defense was not violated by the exclusion of an out-of-court hearsay statement made by a
drunk declarant who later recants, and where the statement was neither sworn, nor
corroborated by other witnesses or physical evidence?
viii
STATEMENT OF JURISDICTION
This appeal arises out of Petitioner’s conviction on two counts of first-degree murder in
in a federal district court, which presumed federal court jurisdiction. R. at 7, fn. 1. The United
States Court of Appeals for the Thirteenth Circuit had jurisdiction pursuant to 28 U.S.C. § 1291.
On appeal, the U.S. Court of Appeals for the Thirteenth Circuit affirmed Petitioner’s conviction.
R. at 9. The United States Supreme Court granted certiorari and has jurisdiction pursuant to 28
U.S.C. § 1254(1).
1
STATEMENT OF FACTS
On January 1, 2010, Chaostown police discovered the bodies of Billy Smith and Sally
Jones in the front seats of a car parked along a dirt road. R. at 1. Forensic examiners determined
their cause of death was gunshot wounds. Id. Billy, the driver, had been shot five times with .30
caliber bullets from a rifle, and Sally had been shot three times. Id. Forensics showed the
shooter had fired the shots near the driver’s door. Id.
Chaostown Police Detective Vincent Binger (Binger) interviewed nearby residents. Id.
Binger learned there had been a party at “the dock” on New Year’s Eve, a gathering place two
miles from the shooting location. Id. He learned Jessica Minder had been at the party with
Kenny Bearson (Defendant), Sandy Bearson, and Robert Clark. R. at 2. He interviewed Jessica,
Sandy, and Robert. R. at 2, 3. All three admitted being at the party, drinking, and riding home
with Defendant, but denied knowledge of the shootings. Id.
Binger interviewed Defendant at his house. R. at 2. Defendant admitted being at the
party and driving Jessica, Sandy, and Robert home after midnight. Id. Defendant denied any
knowledge of the shootings, but admitted he knew the victims. Id. Binger asked if he could look
around his home. Defendant denied his request. Id.
A few months later, Binger re-interviewed Robert and Jessica. R. at 3. Robert and
Jessica stated, individually, a few weeks after the shootings, Defendant warned them not to talk
about the night with anyone. R. at 3, 4. This made Robert think Defendant may have “killed
those kids.” Id. Jessica was interviewed after contacting Binger in response to reward posters
put up around town. Id. Jessica stated during the ride home on New Year’s Eve, Defendant had
stopped the truck. Id. Believing she was going to be sick, she got out of the truck and went to
the rear to vomit, at which point she thought she heard popping noises. R. at 4. She saw a car
2
parked in front of Defendant’s car. Id. She went to the car and saw two people slumped over.
Id. Jessica took off running down the dirt road to her home. Id.
Binger and three officers went to Defendant’s house to re-interview him. Id. Upon
arrival, they noticed the odor of burnt marijuana emanating from the residence. Id. Marijuana
possession, without a physician’s prescription, can be charged as both a felony and misdemeanor
in the county. R. at 4, 5. Binger called out to see if anyone was home; Caroline Bearson,
Defendant’s youngest sister and a young adult woman, came to the door. R. at 5. She told the
officers Defendant was not home. Id. Binger asked if they could come inside and she said no.
Id. She told the officers she stays at Defendant’s house while she undergoes chemotherapy
treatments for cancer in town because her house is three-hours away. Id. Binger asked Caroline,
who appeared groggy, if she had been smoking marijuana. Id. She said yes and claimed to have
a medicinal marijuana prescription, but was unable to produce it on request. Id.
Binger told her he would seek a search warrant. Id. She then gave consent to enter, but
told them not to enter Defendant’s room or bathroom. Id. Inside, Binger saw a burnt marijuana
cigarette on the coffee table and then walked into the kitchen. Id. He saw a pawn shop receipt in
plain view on the kitchen table, which showed Defendant had pawned several rifles capable of
shooting .30 caliber bullets, three weeks after the shootings. Id. Binger seized the receipt. Id.
A month later, Binger re-interviewed Robert. R. at 6. Robert stated during the ride home
from the party, Defendant had followed a car, stopped behind it when it stopped on the side of
the road, and got out of his car. Id. Robert also got out to check on Jessica and heard four to five
popping sounds. Id. Robert and Defendant both got back into the car and Defendant sped off. Id.
Defendant was charged in federal court with two counts of first-degree murder. R. at 7.
Before trial, Defendant moved to suppress the pawnshop receipt, arguing the search and seizure
violated his Fourth Amendment rights. Id. The motion was denied. Id. Jessica and Robert
3
testified at trial, and the receipt was introduced as evidence that Defendant had access to a rifle
like the one used in the murders. Id. Defendant did not testify or present any evidence. Id.
Defendant was convicted on both counts. Id.
Days after Defendant filed a notice of appeal, Binger was informed by a sheriff’s deputy
that Leopold Lara, Jr., (Lara) had confessed to the shootings to Deputy Laura Finster (Finster),
currently on suspension for public intoxication. Id. Lara is Finster’s uncle and the son of
Leopold Lara, Sr., a marijuana dealer. R. at 8. Lara sometimes works for his dad and they often
take guns in exchange for marijuana. R. at 8, 9. Binger then interviewed Finster. Finster stated
that several months ago, after the shootings, she was in a high-speed chase with Lara. R. at 8.
When Lara stopped his car, he got out and ran off; Finster followed and caught up with Lara. Id.
Lara began to cry as Finster handcuffed him. Id. Finster could tell Lara was drunk. R. at
8. Lara said he was sorry he killed those kids, that he did not mean to shoot the girl, and he used
a .30 caliber rifle. Id. Finster did not take Lara to jail. R. at 8. Finster never followed up on
Lara’s statements. Id. Finster did not report the incident because she thought it was “drunk talk”
and did not take it seriously. Id. Binger interviewed Lara, who was in the hospital but coherent.
R. at 9. Lara denied making the statement to Finster that he “killed those kids,” but had said
“why don’t you take me to jail for killing those kids.” Id. Lara said he was intoxicated at the
time and thinks the police are harassing and trying to frame him. Id. Lara died a week later. Id.
Upon learning of Lara’s “confession,” Defendant’s attorney filed a motion for new trial
under Federal Rule of Criminal Procedure 33(b)(1). Id. The parties stipulated Lara was
unavailable pursuant to Federal Rules of Evidence 804. Id. The trial court denied the motion,
ruling the confession was inadmissible hearsay, and even if admitted at trial, would not have
affected the outcome. Id. Defendant then appealed the denial of his new trial motion and the
two issues were consolidated. Id. The Thirteenth Circuit affirmed Defendant’s conviction,
4
holding that his sister had authority to consent to the search, the receipt was lawfully seized, and
Lara’s “confession” was properly excluded as inadmissible hearsay that lacked trustworthiness,
which even if admitted at trial, would not have affected the outcome. R. at 9-10. Defendant’s
petition for a writ of certiorari was granted. R. at 10.
SUMMARY OF ARGUMENT
The Court of Appeals for the Thirteenth Circuit correctly held Defendant’s Fourth and
Sixth Amendment rights were not violated during the government’s investigation and
prosecution of Defendant on two counts of first-degree murder. First, there was no violation of
Defendant’s Fourth Amendment rights. The touchstone of the Fourth Amendment is
reasonableness. The police reasonably believed Defendant’s sister had apparent authority to
consent to the search of Defendant’s house based on the circumstances. It was also reasonable
for the police to believe the sister’s consent was voluntarily based on the totality of the
circumstances. The seizure of the pawn shop receipt was also lawful because it was within the
scope of the authorized search, located in plain view, in a common area, and there was probable
cause to believe it was evidence of a crime. There was no Fourth Amendment violation.
Second, Defendant’s Sixth Amendment rights were not violated. The right to present a
defense is not absolute. The Federal Rules of Evidence exclude unreliable evidence, including
hearsay. Here, the trial court reasonably concluded Lara’s “confession” was inadmissible
hearsay that lacked adequate indicia of trustworthiness. Lara “confessed” while intoxicated and
recanted once sober, which demonstrates lack of awareness that his statement was against
interest. Moreover, corroborating evidence does not clearly indicate the trustworthiness of
Lara’s “confession,” or the credibility of Finster, the witness. Lara’s statement was also not
spontaneously made to someone whom he shared a close and confidential relationship. Even if
Lara’s statement had been admitted, Defendant cannot show the result probably would have been
5
different. The trial court therefore acted within its discretion to deny Defendant’s motion for a
new trial. Accordingly, this Court should affirm the Thirteenth Circuit’s decision.
ARGUMENT
I. DEFENDANT’S FOURTH AMENDMENT RIGHTS WERE NOT VIOLATED.
The Thirteenth Circuit properly affirmed Defendant’s conviction, as the search and
seizure of Defendant’s home and the admission of the evidence at trial were valid under the
Fourth Amendment. This Court should therefore affirm the decision of the court below.
The touchstone of the Fourth Amendment is reasonableness. Brigham City v. Stuart, 547
U.S. 398, 403 (2006); Katz v. United States, 389 U.S. 347, 360 (1967). The Fourth Amendment
protects against “unreasonable searches and seizures.” U.S. Const. amend. IV. The Fourth
Amendment's reasonableness requirement does not demand that government agents always be
correct, but that they always be reasonable. Brinegar v. United States, 338 U.S. 160, 176 (1949).
This Court’s Fourth Amendment jurisprudence requires a search warrant for a search, “subject
only to a few specifically established and well-delineated exceptions.” Katz, 389 U.S. at 357.
This Court has recognized the need for a warrant is crucial when a home is searched.
Silverman v. United States, 365 U.S. 505, 511 (1961). Still, this Court has established an
exception to the warrant requirement when consent is given. United States v. Matlock, 415 U.S.
164 (1974) (holding a warrant not required upon consent from a third party who possessed
common authority over the premises); Schneckloth v. Bustamonte, 412 U.S. 218 (1973) (holding
a warrant not required when consent from individual whose property was searched). For a
consent search to be valid, it must be objectively reasonable for the officer to believe the person
had authority to give consent and the consent was voluntary. Illinois v. Rodriguez, 497 U.S. 179,
188 (1990); 412 U.S. at 227. Further, the search conducted and any subsequent seizure must be
within what the officer reasonably believes is the scope of consent. Florida v. Jimeno, 500 U.S.
6
248, 251 (1991). Each requirement is determined by an objectively reasonable standard based on
the totality of the circumstances. Rodriguez, 497 U.S. at 188 (authority to consent);
Schneckloth, 412 U.S. at 227 (voluntary consent); Jimeno, 500 U.S. at 251 (scope of search).
Fourth Amendment claims are reviewed under a mixed standard. Ornelas v. United States,
517 U.S. 690, 696-97 (1996). Under this standard, legal issues are reviewed de novo but factual
findings are reviewed with clear error deference. See United States v. Galpin, 720 F.3d 436, 445
(2d Cir. 2013); United States v. Howard, 621 F.3d 433, 450 (6th Cir. 2010); Familia-Consoro v.
United States, 160 F.3d 761, 764-65 (1st Cir. 1998).
The police did not need a warrant to search Defendant’s home because Caroline Bearson,
Defendant’s sister, had apparent authority to give consent for the police to enter and search the
home and her consent was voluntary. In addition, the seizure of the pawn shop receipt was lawful
because it was within the scope of the consensual search, found in plain view, in a common area
and there was probable cause to believe the receipt was evidence of criminal activity.
A. It was reasonable for the police to believe Defendant’s sister had apparent
authority to consent to a search of Defendant’s home and her consent was
voluntary based on the totality of the circumstances.
The police reasonably believed Defendant’s sister had apparent authority to consent to
the search of his home and her consent was voluntary based on the totality of the circumstances.
1. Defendant’s sister showed apparent authority over the premises.
Defendant’s sister had apparent authority to consent to the search because she is family
and more than an occasional guest. The required consent may not only come from a defendant,
but also “from a third party who possesse[s] common authority over or other sufficient
relationship to the premises or effects sought to be inspected.” Matlock, 415 U.S. at 171. While
Defendant’s sister was not a cotenant of Defendant’s residence, this does not negate her ability to
give consent. Rather, the determination of consent to enter must “be judged against an objective
7
standard: would the facts available to the officer at the moment … ‘warrant a man of reasonable
caution in the belief’” that the consenting party had authority over the premises. Rodriguez, 497
U.S. at 188. Illustrative is Rodriguez, where this Court held a warrantless entry is valid when
based on the consent of a third party whom police, at time of entry, reasonably believe to possess
common authority over the premises, but who in fact does not. 497 U.S. at 186. There, a
woman claimed to live with the defendant. Id. at 179. The woman took the police to “their”
apartment where she unlocked the door and let the police in, where they found drugs and arrested
the defendant. Id. The police did not learn until after the search the woman no longer lived at
the apartment and did not have common authority over the premises at the time of the search. Id.
Even so, this Court held the warrantless entry lawful because the police reasonably believed the
woman was a resident in the apartment. Id. at 189.
It was reasonable for the police to believe that based on the surrounding circumstances,
Defendant’s sister had authority to give consent. She identified herself as Defendant’s sister. R.
at 5. She informed the police “she stays with Kenny after” her chemotherapy treatments in town
“for as long as it takes for her to recover.” R. at 5. The sister’s statement elicits this was not her
first time staying at Defendant’s house. Further, it indicates she is a frequent guest that will stay
for longer than just an overnight visit. When a guest is more than a casual visitor and “had the
run of the house,” the guest’s lesser interest in the premises is sufficient to render the limited
consent effective. United States v. Turbyfill, 525 F.2d 57, 58-59 (8th Cir. 1975); see also People
v. Shaffer, 444 N.E.2d 1096 (Ill. App. Ct. 1982) (following Turbyfill where person giving
consent was defendant’s brother and “a frequent visitor who had never been prevented from
inviting friends into defendant's home”); State v. Sobczak, 833 N.W.2d 59 (Wis. 2013) (“society
would expect a girlfriend of three months, left alone in a home and given unrestricted access to
8
the common areas of the home, to enjoy the authority to invite guests in to those common areas,”
and thus had actual authority to admit police “in the living room, 20 feet inside the front door”).
Moreover, Defendant’s absence at the home supports the police’s reasonable belief that
Caroline had authority to give consent. See United States v. Sanchez, 608 F.3d 685, 689 (10th
Cir. 2010) (holding the consenter was regularly left alone in the home as one of the reasons
supporting a finding of actual authority); but see United States v. Reid, 226 F.3d 1020, 1025 (9th
Cir. 2000) (holding non-resident who appeared to be alone in the house could not give valid
consent without more evidence indicating authority to give consent). Unlike Reid, there was
more evidence to indicate Ms. Bearson had authority to give consent: she is Defendant’s sister
and had told the police she has stayed at the home on previous occasions. R. at 5.
It is of no merit that Defendant initially denied entry to the police. R. at 2. As this Court
held just this past term in Fernandez v. California, a physically present occupant’s consent can
override a prior objection made by an occupant. 134 S. Ct. 1126, 1136 (2014). In Fernandez,
this Court held the hour between the defendant’s denial of entry, arrest and removal, and the
return of the police and defendant’s girlfriend’s consent to search, was valid. Id. at 1130. This
Court, relying on its reasoning from Georgia v. Randolph, 547 U.S. 103 (2006), rejected the
defendant’s claims that once a denial of entry is made, it should last until it is withdrawn by the
objector or that is last for a “reasonable” time. Id. at 1135, 1136. This Court held a rejection to
entry is only valid when the affected individual is near the premises being searched. Id. at 1136.
Defendant’s initial denial of consent lacks weight. Defendant denied entry to the police
in early January 2010. R. at 2. It was nearly four months later that the sister consented to a
limited search of the home. R. at 5. If one hour in Fernandez was enough for consent to displace
the initial denial, then the four months here is also enough. Based on the circumstances, it was
reasonable for the police to believe Ms. Bearson had apparent authority over the premises.
9
2. The sister’s consent was voluntary.
It was reasonable for the police to believe the sister’s consent was voluntary. In order for
consent to be valid, it must be voluntarily given and not the product of duress or coercion,
express or implied; “[v]oluntariness is a question of fact to be determined from all the
circumstances.” Schneckloth, 412 U.S. at 226, 248–49; Ohio v. Robinette, 519 U.S. 33, 40
(1996). All factors that may bear upon the issue of voluntariness are relevant, including but not
limited to: the age, experience, intelligence, and education of the person; whether the person was
warned he or she could refuse; the length and conditions of detention; threats; conditions of
incarceration or interrogation; and physical or mental brutality. Schneckloth, 412 U.S. at 226-27.
This Court has continued to reject a finite list and held each case is to be viewed based on the
totality of the circumstances. Robinette, 519 U.S. at 39. “The ultimate question presented is
whether the officer had a reasonable basis for believing that there had been consent to search.”
United States v. Isiofia, 370 F.3d 226, 231 (2d Cir. 2004). Here, all factors favor a finding there
was a reasonable basis for the police to believe Caroline gave valid consent.
a. The sister’s age and intellect support she was competent to give consent.
Caroline Bearson was competent to give consent. Consent has been held valid when an
officer reasonably believes consent has been given based on their age, intelligence, and
education. United States v. Mendenhall, 446 U.S. 544, 558 (1980) (finding that a 22-year-old
with an 11th grade education, was capable of a knowing consent).
The ability to give consent is based on a variety of factors including age and maturity.
There is no indication that Caroline, as a young adult woman (R. at 5.), lacked the capacity to
give consent to the officers. She was articulate when talking with the officers, including her
initial denial of entry. R. at 5. While she is a “young adult”, courts have held a minor’s status
alone will not negate consent. See Com. v. Maxwell, 477 A.2d 1309, 1315 (Pa. 1984). However,
10
consent is invalid when the individual is mentally incompetent and thus unable to give valid
consent. United States v. Elrod, 441 F.2d 353 (5th Cir. 1971). There is no indication Ms.
Bearson’s experience, intelligence, or education were deficient as to render her consent invalid.
Her answers to the officers and her initial refusal of entry as well as the observations of Ms.
Bearson being a young adult support the officer’s reasonable belief that her consent was valid.
b. The sister’s marijuana use did not impair her ability to give consent.
Ms. Bearson’s marijuana use prior to her interaction with Binger and the officers did not
impair her judgment to give valid consent. In some cases, the influence of drugs, prescribed or
otherwise, or the influence of alcohol, may tip the balance in favor of finding a lack of capacity
to consent to a search. United States v. Montgomery, 621 F.3d 568 (6th Cir. 2010). However,
the mere fact an individual is intoxicated does not render consent involuntary; rather, it is simply
another factor to be considered when assessing the totality of the circumstances. Id. at 573.
Ms. Bearson’s groggy appearance did not invalidate her consent. R. at 5. Ms. Bearson
was able to identify herself as Defendant’s youngest sister. R. at 5. She was able to tell the
officers she was undergoing chemotherapy treatments in town, that her home is three-hours from
Defendant’s house, and that she stays with Defendant after her treatments for “as long as it takes
for her to recover.” R. at 5. Most indicative, she initially denied the officers request to enter the
house. R. at 5. When Ms. Bearson did give permission for the officers to enter the house, she
was able to tell them to not go into Defendant’s room or bathroom “because she was not allowed
in there.” R. at 5. Her ability to articulate this information and recall key facts demonstrated her
mental faculties were not impaired. See United States v. Gay, 774 F.2d 368, 377 (10th Cir.
1985) (holding defendant can be too intoxicated to operate a motor vehicle, but rational enough
to consent). The evidence supports the conclusion her mental competency was enough that she
was able to make rational decisions.
11
c. The police were not required to tell the sister she could refuse consent.
The fact Caroline was not told she could refuse consent does not make her consent
invalid. As this Court noted in Schneckloth, “while knowledge of the right to refuse consent is
one factor to be taken into account, the government need not establish such knowledge as the
sine qua non of an effective consent.” 412 U.S. at 227. Moreover, the sister initially denied
entry into the home (R. at 5), indicating she knew she could refuse consent and in fact did so.
d. The police did not create a coercive environment.
The presence of four officers at Defendant’s house when speaking with the sister does not
create a coercive environment. R. at 4. While a show of police force can be considered coercion
that is not the case here. United States v. Kelley, 594 F.3d 2010 (8th Cir. 2010) (finding mere
presence of several police cars and four officers outside home was insufficient to negate the
voluntariness of consent to search the home). Binger and three officers went to Defendant’s
home to speak with him, whom he suspected had murdered two people. R. at 4. It was
reasonable for Binger to bring three officers with him to Defendant’s home. R. at 4. The mere
fact Defendant himself was not present when officers arrived and the sister gave consent to the
search does not render the consent a result of police coercion.
In addition, there is no evidence the officers had their guns drawn during their interaction
with Ms. Bearson. See Coffia v. State, 191 P.3d 594, 598 (Okla. Crim. App. 2008) (holding
consent voluntary because there was “no claim” officer “displayed a weapon”). Also, there is no
evidence Binger, who spoke with the sister, had an aggressive volume or tone. See United States
v. Cornelius, 925 F.Supp.2d 1238 (D. Wyo. 2013). Rather, the fact Ms. Bearson initially denied
entry into the house suggests she was not afraid. R. at 5. Further, she was not in custody when
she gave consent, however, even if she had been, this would not have made her consent per se
12
invalid. See People v. James, 561 P.2d 1135, 1140 (Cal. 1977). There was no show of force or
coercive setting during the exchange between Caroline and the officers to make consent invalid.
e. Detective Binger’s statement to seek to obtain a warrant was lawful.
Ms. Bearson’s ultimate consent for the police to enter and search the house was valid.
There is no absolute bar upon continuing to seek consent in the face of prior refusal but is rather
another factor to be considered. United States v. Cedano-Medina, 366 F.3d 682, 688 (8th Cir.
2004). This Court has held consent invalid when the police seek consent through false or
overstated claims of authority, such as claiming to have a valid search warrant when the police,
in fact, do not. Bumper v. North Carolina, 391 U.S. 543, 549-50 (1968). A claim to “obtain a
warrant” to gain consent can invalidate a subsequent search if there was no basis for a warrant to
be issued, but such a statement is not per se coercive. United States v. Faruolo, 506 F.2d 490,
495-98 (2d Cir. 1974); United States v. Cruz-Mendez, 467 F.3d 1260, 1267 (10th Cir. 2006).
A statement to obtain a warrant has been upheld when there is probable cause to justify a
warrant. United States v. Patayan Soriano, 361 F.3d 494 (9th Cir. 2008). If “in fact there were
grounds for the issuance of a search warrant,” then “the well founded advice of a law
enforcement agent that, absent a consent to search, a warrant can be obtained does not constitute
coercion.” Faruolo, 506 F.2d at 495. Courts have deemed the accurate language is “seek” a
warrant – or to that effect – as it tells the individual a search is not inevitable and thus their
consent is not futile. State v. Pitts, 978 A.2d 14, 27 (Vt. 2009). The issue is the validity of the
stated intent to get a warrant, which depends on whether the officer “had a reasonable factual
basis for probable cause.” United States v. Hicks, 650 F.3d 1058, 1065 (7th Cir. 2011).
Binger was correct when he informed Ms. Bearson he would “seek to obtain a search
warrant” because there was probable cause to believe a crime was being committed – marijuana
possession. R. at 5. When the officers first arrived at Defendant’s home, they noticed the “odor
13
of burnt marijuana emanating from the residence.” R. at 4. The officers had been trained to
detect the odor of marijuana and knew its possession can be charged as both a felony and
misdemeanor offense in the county where Defendant’s home is located. R. at 4. Binger’s
statement was lawful as Ms. Bearson illegally possessed marijuana. Had she been able to
produce the physician’s prescription for medicinal marijuana she claimed to have, the situation
would be different. R. at 5. Binger was not required to take Ms. Bearson at her word that she
had a prescription. The police had probable cause to seek a search warrant, thus, the sister’s
ensuing consent was not coerced, but valid. It was reasonable for the police to believe, based on
the totality of the circumstances, that Caroline had authority to consent to entry of Defendant’s
home and the consent was voluntary. Defendant’s Fourth Amendment rights were not violated.
B. The seizure of the receipt was lawful because it was within the scope of the
permitted search, located in plain view, in a common area, and there was
probable cause to believe it was evidence of a crime.
The seizure of the pawn shop receipt was constitutional. The standard to determine the
scope of consent is “that of ‘objective’ reasonableness—what would the typical reasonable
person have understood by the exchange between the officer and the suspect?” Jimeno, 500 U.S.
at 251. When an individual has the authority to give consent, other inhabitants have “assumed
the risk that one of their number might permit the common areas to be searched.” Matlock, 415
U.S. at 171 n.7. While a search of a common area extends to most objects in plain view, it does
not automatically extend to the interiors of every enclosed space within the area. United States
v. Peyton, 745 F.3d 546, 555 (D.C. Cir. 2014). When an individual consents to a search, it is
reasonable for the police, in searching common areas, to believe they are within the scope of the
search unless they are told otherwise. Walters v. United States, 447 U.S. 649, 656-57 (1980).
Binger and the officers did not exceed the scope of consent. Ms. Bearson did impose
limitations on the scope of the search: Defendant’s bedroom and bathroom; she told them “they
14
should not go into Kenny’s room or bathroom because she was not allowed in there.” R. at 5. It
was reasonable for Binger to believe that based upon Ms. Bearson’s limited consent, he was able
to enter the kitchen, a common area. See People v. Mullaney, 306 N.W.2d 347, 349 (Mich.
1981) (holding defendant's sister could consent to a search of common areas of the house and her
own bedroom, but not to defendant's bedroom). Binger was not required to stop his search upon
observing the burnt marijuana cigarette on the coffee table. R. at 5. It was lawful for him to
walk into the kitchen. R. at 5. The location of the coffee table and the kitchen are both common
areas where Caroline had a right to be which were within the scope of consent given. Therefore,
the officers did not exceed the scope of the limited search.
Likewise, it was lawful for Binger to seize the pawn shop receipt after seeing it “in plain
view on the kitchen table.” R. at 5. The police “may not obtain consent to search on the
representation that they intend to look only for certain specified items and subsequently use that
consent as a license to conduct a general exploratory search.” United States v. Dichiarinte, 445
F.2d 126, 129 (7th Cir. 1971). But, the Dichiarinte court noted that if government agents are
acting within the scope of the given consent and in plain view, come upon “instrumentalities of
crime, or clear evidence of criminal behavior,” they can seize those items. Id. at 130. For
unspecified items to be seized, there must be “a nexus … between the item to be seized and
criminal behavior,” “probable … cause to believe that the evidence sought will aid in a particular
apprehension or conviction.” Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 307 (1967).
Binger was not limited to only observing and seizing evidence as to Caroline’s crime.
Binger requested entry to “come into the house.” R. at 4. He did not use deceit regarding his
purpose that would negate the sister’s consent or exceed the scope of the search.
There was probable cause to believe the pawn shop receipt was tied to criminal activity.
The receipt showed Defendant had pawned several rifles capable of shooting .30 caliber bullets,
15
the same caliber bullets used in the shooting, three weeks after the shooting. R. at. 1, 5. Binger
discovered the receipt after Jessica Minder told him Defendant had committed the murders. R. at
3-4. Thus, the seizure of the receipt was within the scope of the permitted search, located in
plain view in a common area, and there was probable cause to believe it was evidence of a crime.
The governing principle of the Fourth Amendment is reasonableness. Because the police
acted reasonably based on the totality of the circumstances, Defendant’s Fourth Amendment
rights were not violated. This Court should affirm the decision of the Thirteenth Circuit.
II. DEFENDANT’S SIXTH AMENDMENT RIGHTS WERE NOT VIOLATED.
The Thirteenth Circuit properly affirmed the trial court’s denial of Defendant’s motion
for a new trial because Leopold Lara’s “confession” was inadmissible hearsay that lacked
trustworthiness, and even if admitted, would not have affected the outcome of the proceedings.
The Sixth Amendment provides “[i]n all criminal prosecutions, the accused shall enjoy
the right to . . . have compulsory process for obtaining witnesses in his favor.” U.S. Const.
amend. VI. This Court has construed this language to “guarantee[] criminal defendants [the]
opportunity to present a complete defense.” Crane v. Kentucky, 476 U.S. 683, 690 (1986).
However, a defendant’s Sixth Amendment right to present a defense is not absolute. See
Washington v. Texas, 388 U.S. 14, 19 (1967). Defendants must comply with “established rules
of procedure and evidence designed to assure both fairness and reliability in the ascertainment of
guilt and innocence.” Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Such rules do not
violate the right to present a defense unless they are “arbitrary or disproportionate to the
purposes they are designed to serve.” Holmes v. South Carolina, 547 U.S. 319, 324-25 (2006).
The “accused does not have an unfettered right to offer testimony that is incompetent, privileged,
or otherwise inadmissible under standard rules of evidence.” Taylor v. Illinois, 484 U.S. 400,
410 (1988). A defendant does not have a constitutional right to present all relevant, potentially
16
favorable evidence. See United States v. Scheffer, 523 U.S. 303, 316 (1998) (reasoning
Chambers “does not stand for the proposition that the defendant is denied a fair opportunity to
defend himself whenever a state or federal rule excludes favorable evidence”). A defendant’s
right to present relevant evidence is subject to reasonable restrictions. Id. at 308. Hearsay is
generally excluded because it lacks “the conventional indicia of reliability.” California v. Green,
399 U.S. 149, 158 (1970). Out-of-court third-party confessions that exculpate a defendant are
usually inadmissible. See People v. Woodruff, 379 N.E.2d 907 (Ill. App. Ct. 1978).
Here, the trial court properly excluded Lara’s “confession” as inadmissible hearsay.
Even if the statement had been admitted, it would not have affected the outcome. Thus,
Defendant’s right to present a defense was not violated.
A. The trial court acted within its discretion to exclude Lara’s “confession.”
Federal Rule of Evidence 804(b)(3) provides an exception to the general exclusion of
hearsay. To admit a statement pursuant to Rule 804(b)(3), a defendant must establish three
elements: (1) the declarant was unavailable; (2) the statement was against the declarant’s penal
interest at the time it was made; and (3) corroborating circumstances clearly indicate the
trustworthiness of the statement. United States v. Satterfield, 572 F.2d 687, 691 (9th Cir. 1978).
When assessing a statement’s trustworthiness, courts often consider to what extent the statement
was actually incriminatory, whether other evidence corroborates the statement, and when and to
whom the statement was made. See Chambers, 410 U.S. at 300-01. A trial court’s decision to
exclude hearsay evidence is reviewed for an abuse of discretion. United States v. Smalls, 605
F.3d 765, 773 (10th Cir. 2010).
As a threshold matter, the parties stipulated Lara is unavailable due to his death. R. at 9.
While this is a prerequisite to admissibility, it also undermines the trustworthiness of his
statement. See Chambers, 410 U.S. at 300-01 (reasoning a declarant’s inability to be present in
17
court, under oath, and subject to cross-examination undermines the trustworthiness of the
statement). Here, Lara cannot be present in court, testify under oath, or be subject to cross-
examination. The jury also cannot weigh his credibility or judge his demeanor. See Green, 399
U.S. 149, 158 (1970) (stating out-of-court statements are usually excluded because “the
declarant’s word is not subject to cross-examination” and “he is not available in order that his
demeanor and credibility may be assessed by the jury”). As explained below, the trial court did
not abuse its discretion in excluding Lara’s “confession.”
1. Lara lacked an awareness that his statement was against interest because he
“confessed” while intoxicated and recanted when sober.
Lara’s statement was not truly against interest. Defendant must show the statement “at
the time of its making . . . so far tended to subject [Lara] to . . . criminal liability . . . that a
reasonable man in his position would not have made the statement unless he believed it to be
true.” Fed. R. Evid. 804(b)(3). A declarant who lacks awareness the statement may have
adverse consequences indicates the statement “lacks circumstantial guarantees of
trustworthiness.” United States v. Lozado, No. 14-1094, 2015 U.S. App. LEXIS 1163, at *13
(10th Cir. Jan. 20, 2015). Significantly, “it is not the fact that the declaration is against interest
but the awareness of that fact by the declarant which gives the statement significance.” Id. at
*17 (italics added). Courts consider the “statement in context and the circumstances under
which it was made.” Williamson v. United States, 512 U.S. 594, 603 (1994). Defendant cannot
satisfy his burden to show Lara’s “confession” was against interest.
A statement is not against interest and lacks “persuasive assurances of trustworthiness”
when made by an intoxicated declarant who recants when sober. See Rhoades v. Henry, 638
F.3d 1027, 1035 (9th Cir. 2011). In Rhoades, a jury convicted Paul Rhoades of the murder,
kidnapping, and robbery of Stacey Baldwin. Id. at 1031. At a post-conviction hearing, Rhoades
18
argued Kevin Buchholz had confessed to Officer Larry Christian that he murdered Baldwin. Id.
at 1035. Christian testified Buchholz was drunk, crying, and upset when he “confessed.” Id.
Buchholz admitted first “confessing” to Officer Love, whom he knew, but stated he recanted
once sober. Id. Buchholz had told Love, “You might as well book me for murder, too,” but
explained he was intoxicated and “had made the statement to get attention because he thought
they were piling on unfair charges.” Id. The district court excluded Buchholz’s statement
because it lacked trustworthiness. Id. The Ninth Circuit held Buchholz’s statement was not truly
against his interest and lacked trustworthiness because Buchholz was “intoxicated when he
confessed and recanted when he was sober.” Id. at 1036. The court reasoned that although
Buchholz confessed multiple times, each occurred during a single tirade, which “does not make
his otherwise untrustworthy statement trustworthy.” Id. The court also found Buchholz’s
“confession” unreliable because the jury could not evaluate his credibility and demeanor. Id.
Here, Lara’s “confession” was not truly against interest given the circumstances. Like
Buchholz in Rhoades, Lara “was intoxicated” and “started to cry” when he confessed and was
sober when he recanted. R. at 8. Both Finster and the individuals in Lara’s car said Lara was
intoxicated. R. at 8. Lara’s mental state at the time he “confessed” precluded him from being
aware the statement was against interest. United States v. Two Shields, 497 F.3d 789, 793 (8th
Cir. 2007) (declining to admit declarant’s “head shake” as a statement against interest because
the declarant was so intoxicated “he could not have been able to appreciate that the statement
was against his interest”). Like Buchholz’s retraction in Rhoades, Lara thought he was being
unfairly targeted. R. at 9. Lara admitted being drunk, but claimed the police were after him due
to his father, who sold marijuana in the community. R. at 9. Similar to Buchholz, Lara claimed
he actually said something like, “why don’t you take me to jail for killing those kids.” R. at 9.
Thus, as in Rhoades, “[Lara’s] recitation could not realistically have been a major part of
19
[Defendant’s] defense given the circumstances in which [Lara’s] statements were made.” 638
F.3d at 1036; see also People v. Shabazz, 999 N.E.2d 504, 506 (N.Y. 2013) (“Knowledge that a
declaration is against penal interest must be assessed at the time it was made.”).
2. Corroborating circumstances do not clearly indicate the trustworthiness of
Lara’s statement or Deputy Finster, the witness.
Lara’s “confession” is not clearly corroborated by other evidence. Lara’s declaration is
inadmissible under Rule 804(b)(3) “unless corroborating circumstances clearly indicate the
trustworthiness of the statement.” See also Chambers, 410 U.S. at 312 (reasoning each of
declarant’s multiple confessions was corroborated by some other evidence in the case). “[T]he
corroboration requirement . . . is significant and goes beyond minimal corroboration.” State v.
Lopez, 757 A.2d 542, 548 (Conn. 2000). Notably, the “corroborating circumstances must do
more than tend to indicate the trustworthiness of the statement; they must clearly indicate it.”
United States v. Satterfield, 572 F.2d 687, 693 (9th Cir. 1978). Courts may also consider the
credibility of the in-court witness in assessing corroborating circumstances. See, e.g., United
States v. Hendrieth, 922 F.2d 748, 750 (11th Cir. 1991). Defendant bears the burden to show
corroborating circumstances. See Jones v. State, 678 So. 2d 309, 314 (Fla. 1996). Here, neither
Lara’s statement, nor the credibility of Finster, the witness, is clearly corroborated.
This Court has found corroborating circumstances where a declarant gives a sworn
statement, confesses multiple times, is identified by an eyewitness, and owns the weapon used in
the offense. In Chambers, Leon Chambers was convicted of murdering a policeman. 410 U.S. at
285. A man named Gable McDonald later gave a sworn confession that he shot the officer. Id.
at 287. McDonald stated he killed the officer with his own .22-caliber revolver, the type of gun
used in the murder. Id. McDonald later recanted. Id. at 288. The trial court did not allow
Chambers to cross-examine McDonald or present eyewitnesses to discredit McDonald’s story.
20
Id. at 294. One witness was McDonald’s friend who would have testified he saw McDonald
shoot the officer. Id. at 289. Two other witnesses would have testified McDonald confessed to
them. Id. The trial court excluded these statements on hearsay grounds. Id. at 293. This Court
held “under the facts and circumstances of this case” Chambers was deprived of a fair trial
because the statements were made “under circumstances that provided considerable assurance of
their reliability.” Id. at 300. The Court reasoned that evidence strongly corroborated the
statements, including McDonald’s sworn confession, the eyewitness, proof of McDonald’s prior
ownership of a .22-caliber revolver, and McDonald’s multiple independent confessions. Id.
Unlike the evidence in Chambers, the evidence here does not clearly corroborate Lara’s
“confession.” In fact, none of the corroborating circumstances present in Chambers are present
here. Unlike McDonald’s sworn confession, Lara’s intoxicated statement was not sworn, nor
made under oath or after being read his Miranda rights. See United States v. Caldwell, 760 F.3d
267, 290 (3d Cir. 2014) (reasoning statement was less trustworthy where made by a declarant
who was not under oath, had not been read his Miranda rights, and was not represented by
counsel). Unlike the eyewitness in Chambers who identified McDonald as the shooter, no one
identified Lara as the shooter. Rather, Jessica Minder and Robert Clark specifically identified
Defendant as the killer. R. at 4, 6. In contrast to McDonald’s multiple confessions in Chambers,
Lara “confessed” only one time. And whether Lara even made the proffered statement is
questionable due to his subsequent denial and Finster’s failure to report the incident or file a
police report. R. at 8. Finally, while evidence in Chambers linked McDonald to the .22-caliber
revolver used in the crime, no evidence here proves Lara owned a gun like the murder weapon.
Although Lara claimed “he did not mean to shoot the girl, and that he used a .30 caliber rifle,”
these facts were likely known from the reward posters, and do not render his “confession” more
trustworthy. See Rhoades, 638 F.3d at 1035 (reasoning the description of the car used in the
21
murder and location of victim’s gunshot wound were “generally known” and “could have come
from public sources”). At most, the record merely indicates Lara and his father “often [took]
guns in exchange for marijuana.” R. at 9. This evidence does not “clearly indicate” the
trustworthiness of Lara’s statement. Satterfield, 572 F.2d at 693.
Next, Finster’s lack of credibility as the potential in-court witness casts doubt on whether
Lara actually “confessed.” Some courts consider whether the declarant in fact made a statement
in determining admissibility under Rule 804(b)(3). See Laumer v. United States, 409 A.2d 190,
199 (D.C. 1979). This determination focuses “not on the truth of the declaration, but on the
veracity of the witness who repeats the declaration.” Id. The Courts of Appeals are split on
whether the credibility of an in-court witness is relevant. Compare United States v. Bagley, 537
F.2d 162, 167 (5th Cir. 1976) (reasoning trustworthiness of witness relevant), with United States
v. Atkins, 558 F.2d 133, 135 (3d Cir. 1977) (finding reliability of witness irrelevant).
This Court should resolve the circuit split and conclude that in assessing “corroborating
circumstances” under Rule 804(b)(3), courts should analyze both the reliability of the statement
and the credibility of the witness. Given hearsay is generally excluded for reliability reasons, it
is critical courts assess the credibility of the in-court witness to ensure a declarant actually made
the proffered statement. See Satterfield, 572 F.2d at 691-92 (observing Rule 804(b)(3) “refers to
the trustworthiness of the statement, not of the declarant, and that formulation may be broad
enough to put the trustworthiness of the witness as well as the declarant at issue”).
Here, the evidence does not clearly corroborate the reliability of Finster. While
Defendant may argue Lara’s confession was made more credible because Finster is a police
officer, this argument fails. Finster’s inaction undermined her credibility as an officer. She did
not place Lara under arrest despite his alleged “confession,” did not have a detective talk to Lara,
and did not file a report. R. at 8. When asked by officers in her own department why she did not
22
report the incident, Finster stated she thought Lara’s statement was “drunk talk” and “did not
take it seriously.” R. at 8. Finster’s actions were inconsistent with those of reasonable officers.
Moreover, Finster’s current suspension from the force for public intoxication undermines her
trustworthiness. Her account of Lara’s “confession” is further called into question by Lara’s
subsequent denial and revelation he actually said something like “why don’t you take me to jail
for killing those kids.” R. at 9. These facts do not clearly corroborate the credibility of Finster.
3. Lara’s statement was not spontaneously made to a person with whom he
shared a close and confidential relationship.
Lara’s statement was not spontaneously made to a person with whom he shared a close
relationship. A declaration made soon after a crime is generally more likely to be trustworthy
than one made after a lapse of time with opportunity for reflection. State v. Lopez, 757 A.2d 542
(Conn. 2000). However, a statement’s timeliness is not dispositive of the trustworthiness
inquiry. Id. Courts also consider to whom a statement is made, and whether the parties share a
“close and confidential relationship.” State v. Rivera, 602 A.2d 571, 578 (Conn. 1992). The
defendant bears the burden of establishing the requisite relationship. Id.
The timing of Lara’s “confession” is ambiguous and does not help Defendant. The
record simply states Lara’s declaration was made “after the Billy/Sally homicides.” R. at 7-8.
Even assuming Lara’s statement was made within three months of the murders, this would not,
standing alone, render it trustworthy. See Ingram v. United States, 976 A.2d 180, 188 (D.C.
2009) (discussing cases that held statements made three, four, and nine months after a crime,
respectively, were “too attenuated and remote to provide assurance of reliability”).
There is also no evidence Lara and Finster shared a “close and confidential relationship.”
At most, the record indicates Lara was Finster’s uncle. R. at 8; see Gilchrist v. United States,
954 A.2d 1006, 1015 (D.C. 2008) (reasoning that while the parties were childhood friends, the
23
“closeness of the relationship between [them was] not crystal clear” and there was “no
independent evidence showing that the friendship and closeness continued to the time of [the
declarant’s] alleged statement”). Moreover, Lara “tried to take a gun . . . to shoot at Deputy
Finster during the chase.” R. at 8. This behavior is inconsistent with a close relationship. See
Rivera, 602 A.2d at 578 (holding declarant’s confession to his brother did not meet relationship
element because the evidence showed they did not get along). Even assuming Lara and Finster
had a close relationship, Lara’s private “confession” was dismissed as “drunk talk” and not
reported until after his death. R. at 7, 8; see Santiago v. O’Brien, 628 F.3d 30, 35 (1st Cir. 2010)
(reasoning “a private confession to a brother, where there is nothing to suggest it will become
public while the speaker is alive” does not, standing alone, render the statement trustworthy).
B. Even if Lara’s “confession” had been admitted, it would not have affected the
outcome of the proceedings.
The trial court properly denied Defendant’s motion for a new trial because Lara’s
statement, even if admitted, would not have produced a different result. While a court may grant
a new trial on the basis of newly discovered evidence under Federal Rule of Criminal Procedure
33(b)(1), the evidence must be material and so conclusive it probably would produce a different
result. See United States v. Valenzuela-Bernal, 458 U.S. 858, 868 (1982) (stating excluded
evidence must be relevant, material, and vital to the defendant to a degree sufficient to establish
the exclusion of the evidence could have affected the outcome of the trial). Failure to satisfy this
requirement is fatal to a new trial motion. Id. In ruling on such motions, “the court has broad
power to weigh the evidence and assess the credibility of both the witnesses who testified at trial
and those whose testimony constitutes ‘new’ evidence.” United States v. Wright, 625 F.2d 1017,
1019 (1st Cir. 1980) (italics added). The denial of Defendant’s motion for a new trial is
reviewed for an abuse of discretion. United States v. Cordo, 186 F.2d 144, 148 (2d Cir. 1951).
24
The trial court did not prevent Defendant from presenting his theory of defense. See
Scheffer, 523 U.S. at 315 (holding exclusions of evidence are unconstitutional only if they
“significantly undermine fundamental elements of the accused’s defense”). At trial, the
Defendant chose to “not testify or present any evidence.” R. at 7. Defendant opted not to
present a defense or formulate his own theory of the case. Defendant’s likely reliance on
Chambers, discussed ante, is misplaced. In that case, “the result of the trial court evidentiary
ruling was much more severe, resulting in a defendant’s total inability to present a theory of
defense.” United States v. Brown, 785 F.2d 587, 590 (7th Cir. 1986) (italics added) (discussing
the Court’s rationale in Chambers). By contrast, the trial court here did not render Defendant
unable to present a theory of defense. Only now does Defendant seek to admit an
uncorroborated “confession,” which unlike the evidence in Chambers, does not have “persuasive
assurances of trustworthiness. 410 U.S. at 302.
Lara’s “confession” was not material to Defendant’s defense. To assess whether certain
evidence is material, its “omission must be evaluated in the context of the entire record.”
Valenzuela-Bernal, 458 U.S. at 868. In this case, the prosecution presented evidence Defendant
had “pawned several rifles, some of them capable of shooting .30 caliber bullets, three weeks
after the shootings.” R. at 5. The victims died of gunshot woods from a .30 caliber rifle. R. at 7.
The prosecution elicited testimony from Jessica Minder and Robert Clark, two eyewitnesses
whom were with Defendant when he committed the murders. Their testimony not only
separately implicated Defendant, but also corroborated each other. R. at 7. The record also
indicates Defendant told both witnesses, shortly after the murders, not to discuss what transpired
that night. R. at 4, 6-7. In light of the substantial evidence of Defendant’s guilt, allowing the
jury to hear unreliable hearsay evidence would not have changed the outcome. In ruling on
Defendant’s motion, the trial court was uniquely situated to “assess the credibility of [Jessica and
25
Robert] who testified at trial and [Lara] whose testimony constitutes ‘new’ evidence.” Wright,
625 F.2d at 1019. The court did not abuse its discretion in ruling there was no probability of a
different result had the statement been admitted.
Finally, Defendant’s likely argument that the exclusion of Lara’s “confession” constitutes
constitutional error is without merit. See Chapman v. California, 386 U.S. 18, 24 (1967)
(holding that for a constitutional error to be harmless, the error must be “harmless beyond a
reasonable doubt”). Such an argument would imply the trial court erroneously excluded Lara’s
“confession.” However, as demonstrated above, the trial court reasonably concluded Lara’s
“confession” lacked trustworthiness, and its decision must be affirmed absent an abuse of
discretion. United States v. Smalls, 605 F.3d 765, 773 (10th Cir. 2010). Even if the court did
erroneously exclude Lara’s “confession,” it would not equate to constitutional error. See United
States v. Lopez-Alvarez, 970 F.2d 583, 588 (9th Cir. 1992) (“A violation of the hearsay rule does
not automatically equate to a constitutional violation of the Sixth Amendment”).
Allowing the jury to hear untrustworthy hearsay evidence that Lara allegedly “confessed”
while intoxicated, only to recant once sober, would not have changed its result. The trial court
did not violate Defendant’s Sixth Amendment right to present a defense.
CONCLUSION
For the reasons stated above, this Court should affirm the decision of the U.S. Court of
Appeals for the Thirteenth Circuit.
Date: February 27, 2015 Respectfully submitted,
Team No. 19
Counsel for Respondent
United States of America
