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Team No. 25
KENNY BEARSON,
Petitioner,
v.
UNITED STATES,
Respondent.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRTEENTH CIRCUIT
BRIEF FOR THE RESPONDENT
Team No. 25 Counsel for the Respondent
TABLE OF CONTENTS
TABLE OF AUTHORITIES ........................................................................................................... i QUESTIONS PRESENTED .......................................................................................................... iii STATEMENT OF JURISDICTION .............................................................................................. iv SUMMARY OF THE ARGUMENT ............................................................................................. 1 STATEMENT OF FACTS ............................................................................................................. 3 ARGUMENT .................................................................................................................................. 8
I. THE SEARCH OF APPELLANT’S HOME WAS PERMISSIBLE WITHIN THE WELL-ESTABLISHED CONSENT, EXIGENCY, and INEVITABLE DISCOVERY EXCEPTIONS TO THE SEARCH AND SEIZURE CLAUSE OF THE FOURTH AMENDMENT ............... 8
A. Standard of Review ......................................................................................................... 9 B. The Officers properly entered the premises when they obtained permission from a guest with authority over the dwelling ............................................................................ 9
i. Caroline Bearson possessed common authority over the dwelling because she was an occupant of indefinite duration rather than a casual visitor ........................................ 10 ii. The officers reasonably believed that Caroline Bearson possessed apparent authority over the dwelling due to her professed status and her demeanor on the premises .... 11
C. The trial court properly denied the motion to suppress evidence because Caroline Bearson freely and voluntarily consented to the search of Appellant’s home. ............. 12 D. Officers acted within the scope of the Fourth Amendment when they entered Appellant’s home due to exigent circumstances. .......................................................... 14 E. Chaostown police would have inevitably discovered the pawn shop receipt in the kitchen. .......................................................................................................................... 16
II. THE TRIAL COURT’S DENIAL OF APPELLANT’S NEW TRIAL MOTION WAS PROPER, AND IN ANY EVENT, WAS HARMLESS ERROR ............................................ 16
A. Standard of Review ....................................................................................................... 17 B. A largely uncorroborated and subsequently clarified statement made under dubious circumstances is inherently unreliable .......................................................................... 18 C. Both the declarant and the individual who heard the declarant’s alleged statement are inherently unreliable, and the statement is thus properly excluded as unreliable conjecture ...................................................................................................................... 21 D. The exclusion of the declarant’s statement was harmless error given the sheer weight of the evidence against Appellant, and should not be disturbed ................................... 23
CONCLUSION ............................................................................................................................. 25
i
TABLE OF AUTHORITIES
Cases Arizona v. Fulminante, 499 U.S. 279 (1991) ................................................................................ 23 Brecht v. Abrahamson, 507 U.S. 619 (1993) ................................................................................ 23 Chambers v. Mississippi, 410 U.S. 284 (1973) ...................................................................... passim Chapman v. California, 386 U.S. 18 (1967) ................................................................................. 23 Christian v. Frank, 595 F.3d 1076 (9th Cir. 2010) ....................................................................... 22 Delaware v. Van Arsdall, 475 U.S. 673 (1986) ............................................................................ 24 Ellsworth v. Tuttle, 2003 WL 25658595 (D. Utah Mar. 21, 2003) ............................................... 23 Florida v. Jimeno, 500 U.S. 248 (1991) ....................................................................................... 12 Georgia v. Randolph, 547 U.S. 103 (2006) ........................................................................ 9, 11, 12 Hafdahl v. Johnson, 251 F.3d 528 (5th Cir. 2001) ....................................................................... 24 Katz v. United States, 389 U.S. 347 (1967) .................................................................................... 9 Ker v. California, 374 U.S. 23 (1963) .......................................................................................... 15 Lenz v. Winburn, 51 F.3d 1540 (11th Cir. 1995) .......................................................................... 13 Minnesota v. Olson, 495 U.S. 91 (1990) ....................................................................................... 11 Montana v. Egelhoff, 518 U.S. 37 (1996) ............................................................................... 20, 21 Nix v. Williams, 467 U.S. 431 (1984) ....................................................................................... 9, 16 Ohio v. Robinette, 519 U.S. 33 (1996) ............................................................................................ 9 Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ............................................................... 9, 12, 13 Scott v. United States, 436 U.S. 128 (1978) .................................................................................. 15 State v. Sobczak, 833 N.W.2d 59, cert. denied, 134 S. Ct. 626 (Wis. 2013) ................................ 10 United States v. Arellano-Ochoa, 461 F.3d 1142 (9th Cir. 2006) ................................................ 15 United States v. Banks, 540 U.S. 31 (2003) .............................................................................. 9, 15 United States v. Barrett, 539 F.2d 244 (1st Cir. 1976) ................................................................. 19 United States v. Clutter, 914 F.2d 775 (6th Cir. 1990) ................................................................. 13 United States v. Cobas, 415 F. App'x 555 (5th Cir. 2011) ........................................................... 17 United States v. Cronic, 466 U.S. 648 (1984) .............................................................................. 17 United States v. Dunn, 269 F. App'x 567 (6th Cir. 2008) ............................................................. 14 United States v. Gay, 774 F.2d 368 (10th Cir. 1985) .................................................................... 14 United States v. Hall, 165 F.3d 1095 (7th Cir. 1999) ................................................................... 21 United States v. Jernigan, 492 F.3d 1050 (9th Cir. 2007) ............................................................ 17 United States v. MacDonald, 688 F.2d 224 (4th Cir. 1982) ......................................................... 22 United States v. Matlock, 415 U.S. 164 (1974) .................................................................. 9, 10, 11 United States v. Montgomery, 621 F.3d 568 (6th Cir. 2010) ........................................................ 14 United States v. Oruche, 484 F.3d 590 (D.C. Cir. 2007) .............................................................. 17 United States v. Penney, 576 F.3d 297 (6th Cir. 2009), cert. denied, 559 U.S. 940 (2010) ... 10, 11 United States v. Perdomo, 929 F.2d 967 (3d Cir.1991) ................................................................ 17 United States v. Perry, 703 F.3d 906 (6th Cir. 2013) ................................................................... 14 United States v. Rhodes, 713 F.2d 463 (9th Cir. 1983) ................................................................ 21 United States v. Ryan, 153 F.3d 708 (8th Cir. 1998) .................................................................... 17 United States v. Sanchez, 608 F.3d 685 (10th Cir. 2010) ............................................................. 13 United States v. Sipe, 388 F.3d 471 (5th Cir. 2004) ..................................................................... 17
ii
United States v. Soriano, 361 F.3d 494 (9th Cir. 2004) ................................................................ 13 United States v. Stabile, 633 F.3d 219 (3d Cir. 2011) ............................................................ 12, 13 United States v. Thomas, 524 F.3d 855 (8th Cir. 2008). ............................................................... 16 United States v. Turbyfill, 525 F.2d 57 (8th Cir. 2008) ................................................................ 10 United States v. Watkins, 760 F.3d 1271 (11th Cir. 2014) ............................................................. 9 United States v. Yeary, 740 F.3d 569 (11th Cir. 2014), cert. denied, 2015 WL 232006 (2015) .... 9
Statutes 18 U.S.C. § 1111(a) ....................................................................................................................... iv 21 U.S.C. § 844 ............................................................................................................................. 16 28 U.S.C. § 1254(1) ....................................................................................................................... iv 28 U.S.C. § 1291 ............................................................................................................................ iv
Rules Fed. R. Evid. 804(a)(4) ................................................................................................................. 18 Fed. R. Evid. 804(b)(3) ........................................................................................................... 18, 23 Fed. R. Evid. 804(b)(3)(B) ............................................................................................................ 22
Other Authorities Robert S. Stephen, Prejudicial Publicity Surrounding A Criminal Trial: What A Trial Court Can
Do to Ensure A Fair Trial in the Face of A "Media Circus," 26 Suffolk U. L. Rev. 1063 (1992) ........................................................................................................................................ 19
iii
QUESTIONS PRESENTED
1. Whether officers’ entry into Appellant’s home was consistent with Fourth Amendment
principles given the occupant’s consent and exigent circumstances?
2. Whether the trial court properly acted within its discretion when it excluded a third
party’s uncorroborated and clarified statement as unreliable, incompetent, irrelevant, and
confusing, where excluding the evidence would have no impact on the jury’s verdict?
iv
STATEMENT OF JURISDICTION
Jurisdiction existed in the district court pursuant to 18 U.S.C. § 1111(a), because
Appellant was charged with two counts of murder in the second degree.1 Consistent with the
final judgment rule, jurisdiction existed for the Court of Appeals for the Thirteenth Circuit
pursuant to 28 U.S.C. § 1291, which states that courts of appeals shall have jurisdiction from all
final decisions of district courts of the United States. 28 U.S.C. § 1291 This Court may properly
exercise its appellate jurisdiction pursuant to 28 U.S.C. § 1254, which states that the Supreme
Court may review cases in the courts of appeals by “writ of certiorari granted upon the petition
of any party to any . . . criminal case, before or after rendition of judgment or decree.” 28 U.S.C.
§ 1254(1).
1 This problem presumes federal court jurisdiction. R. 7.
1
SUMMARY OF THE ARGUMENT
First, the search of the dwelling by police was valid under the Fourth
Amendment. Whether a person consents to a search, as with other questions of fact, are
disturbed by appellate courts only if there is a showing of clear error. Courts assess warrantless
entries under a totality of the circumstances standard, and while Courts consider questions of law
de novo, they grant strong deference to the judgment of the nisi prius court.
Caroline Bearson had common authority to consent to a warrantless search. Her presence
in Appellant’s home for an undetermined period of time, coupled with her familial relationship
to Appellant, is sufficient to constitute common authority. She had mutual use of, and thus,
common authority over, the areas of the dwelling that she authorized police to search. Appellant
assumed that risk when he let her reside with him and left her at the house alone.
Regardless, Ms. Bearson had apparent authority over Appellant’s dwelling, because the
officers that visited the dwelling were reasonably justified in believing that she had unrestricted
access to the common areas of the home. To rule otherwise would require police to perform a
mental calculus that would effectively incapacitate them from entry into any dwelling.
Moreover, Ms. Bearson’s consent was free and voluntary; she was sufficiently mature and
intelligent to understand what was happening during the relatively short questioning, she
understood her constitutional right to refuse entry to the police, and the police neither coerced
her nor did they threaten her with violence. Thus, the police entry was lawful.
In the alternative, exigent circumstances at Appellant’s residence allowed officers to
enter the home without a warrant within the scope of the Fourth Amendment. A groggy, cancer-
stricken woman left alone in Appellant’s home while under the influence of marijuana presents
such an exigent circumstance, and the police would have been justified in entering the home to
2
ensure her safety. Alternatively, the police were permitted to conduct a warrantless entry once
they had probable cause to believe that a crime was in progress and that the surrounding
circumstances reasonably would have resulted in the imminent destruction of evidence.
In any event, Chaostown police would have inevitably discovered the pawn shop receipt
that Appellant seeks to suppress, because the officers had the requisite probable cause necessary
to obtain a warrant. Therefore, regardless of the reason, the pawn shop receipt is properly
admitted under the Court’s Fourth Amendment jurisprudence.
Second, the trial court properly denied the confession that Appellant proffered in support
of his motion for a new trial, and in any event, the denial was harmless error under the
circumstances of the case. At a minimum, the Due Process Clause requires that Appellant
proffer a declarant’s hearsay statement under circumstances that provided considerable assurance
of their reliability. An uncorroborated, subsequently clarified hearsay statement, such as the one
made by Leopold Lara, Jr., does not provide sufficient persuasive assurances of trustworthiness
to be admissible under the Due Process Clause. Moreover, both the speaker and the hearer are
inherently unreliable, and the hearsay statement was properly excluded as unreliable
conjecture. When Deputy Finster ultimately came forward with Lara’s statement, months had
passed, her department had suspended her, and her memory had likely faded. Because the
declarant later clarified his statement, and had denied saying the words reported by the deputy,
the proffered statement is inherently unreliable; it would force the jury to rely on two inherently
unreliable witnesses to determine a matter collateral to the issue being tried.
Finally, the weight of the evidence against Appellant at trial was overwhelming. It
included two witnesses who placed Appellant at the scene; Appellant’s subsequent threats to
both witnesses; gunshots fired contemporaneously with Appellant’s presence; evidence showing
3
Appellant’s access to several rifles of the same caliber as the one that caused the victim’s deaths;
and evidence that Appellant had pawned those rifles soon after the murders. The jury would
have completely disregarded the alleged “confession” even if the trial court had allowed
Appellant to present it. Thus, the district court’s denial of a new trial was both proper, and even
if found to be improper, it was harmless error.
STATEMENT OF FACTS On the morning of January 1, 2010, Chaostown police discovered two bodies in a vehicle
parked alongside a dirt road with its engine running and its lights on. R. 1. Police identified the
victims as local residents Billy Smith and Sally Jones, and determined that both died from
gunshot wounds fired at close range that originated from a .30 caliber rifle. Id. Chaostown
police later received an anonymous tip that the shootings arose from a drug deal gone bad. Id.
While interviewing local residents, Chaostown Police Department’s lead investigator,
Detective Vincent Binger (“Detective Binger), learned that a large group of young people had
gathered a few hours before the shootings for a party at “the dock,” a popular gathering place on
the shore of Lake Swanee approximately two miles from the scene of the murders. Id. Detective
Binger also learned that Jessica Minder (“Ms. Minder”) was among the partygoers. Id. When
Detective Binger interviewed Ms. Minder, she admitted that she had attended the gathering; that
most of the partygoers were underage and were smoking marijuana and drinking alcohol; that
Appellant Kenny Bearson (“Appellant”), Robert Clark (“Mr.Clark”), and Appellant’s sister
Sandy Bearson were among those present; that she did not know anything about the murders;
and that she had received a ride home from Appellant just after midnight. R. 2.
Next, Detective Binger contacted Appellant. Id. Appellant admitted to being present at
the party and to driving his sister, Ms. Minder, and Mr. Clark home just after midnight. Id.
4
While Appellant claimed he knew nothing about the shootings, he admitted that he knew the
victims. R. 2. Detective Binger asked Appellant if he would mind if he “looked around,” and
Appellant responded that he did not want anyone “nosing around” his house and “getting into his
business.” Id. Detective Binger interviewed Appellant’s sister, who denied knowledge of the
shootings, stating that she passed out from drinking and did not know how she got home. Id.
Thereafter, Detective Binger interviewed Mr. Clark, who stated he was at the party at
dock, had smoked marijuana and imbibed alcohol, but sobered up by the time he headed home
around midnight; and that he had received a ride home from Appellant. R. 2-3. However, Mr.
Clark denied any knowledge of the shootings. R. 3. Later, Detective Binger re-contacted Mr.
Clark, who did not change his account of the events, but informed the detective that he had an
encounter with Appellant a few weeks after the murders. Mr. Clark reported that Appellant had
warned him in a threatening tone that he should not talk about the night at the dock with anyone.
Id. This led Mr. Clark to suspect that Appellant might have “killed those kids.” Id.
Shortly after the murders, Ms. Minder moved away from Chaostown due to her fear of
Appellant. R. 4. After the murders, the community disseminated reward posters, offering
money for information leading to an arrest. R. 3. Upon discovering a reward poster, Ms. Minder
informed Detective Binger that that she had previously lied when she had claimed to have no
knowledge of the shootings. Id. Ms. Minder stated that she had sat in the back seat of
Appellant’s truck when they left the party; that at some point during the drive, she had felt sick,
and had exited the truck to vomit. R. 4. While she vomited behind the truck, Ms. Minder
thought she heard popping noises. Id. When she attempted to re-enter Appellant’s truck, Ms.
Minder observed a car parked with its lights on and its engine running. Id. She walked up to the
vehicle and saw two deceased occupants. Id. Ms. Minder then heard Appellant’s sister
5
screaming: “What did you do?” or “Why did you do that?” or something to that effect, at which
time Ms. Minder stated that she then fled on foot to her home. R. 4. Ms. Minder informed
Detective Binger that several days after the incident, Appellant had threatened her, telling her not
to talk about what happened on the night of the homicides; shortly thereafter she moved away
from Chaostown. Id.
In light of Ms. Minder’s statement, Binger and three additional officers went to
Appellant’s home to re-interview him. Id. As the officers approached the home, they observed
that the front door was open, but the screen door was closed. Id. Officers immediately noticed
the odor of burnt marijuana emanating from the residence; the officers had all received training
to detect the odor of marijuana. Id. Marijuana possession is considered a criminal offense under
Chaostown local law. R. 4. However, under city ordinances, the possession of marijuana for
medical purposes is legal with a physician’s prescription. R. 5.
Detective Binger and his officers called out to see if anyone was home. Caroline
Bearson, a young adult woman identifying herself as Appellant’s youngest sister, appeared at the
door. Id. Ms. Bearson appeared groggy and informed the officers that Appellant was not at
home. Id. Detective Binger asked Ms. Bearson if the officers could enter the home, but Ms.
Bearson denied permission. Id. Ms. Bearson proceeded to inform the officers that she was
undergoing chemotherapy treatments for cancer at Chaostown’s hospital, and that her home was
a three-hour drive from Appellant’s house. Id. Ms. Bearson stated that she “stays with Appellant
after the treatment” for “as long as it takes for her to recover.” R. 5. Detective Binger asked Ms.
Bearson if she was smoking marijuana. Ms. Bearson responded that she was, but claimed that
she had a prescription. Id. When Binger asked to see her prescription, Ms. Bearson informed
the detective that she did not have it with her. Id. Binger then informed Ms. Bearson that he
6
would seek to obtain a search warrant, at which time Ms. Bearson granted the officers
permission to enter, but stated that they should not enter Appellant’s room or bathroom because
she was not allowed in either room. R. 5.
Upon entering the living room, Detective Binger saw a single burnt marijuana cigarette
on the coffee table. Id. Binger then walked into the kitchen, where he observed a pawn shop
receipt in plain view on the kitchen table. Id. The receipt, dated three weeks after the homicides,
indicated that Appellant had pawned several rifles, some capable of shooting .30 caliber
ammunition, the same type used in the murders. R. 1, 5. Detective Binger visited the pawn
shop after leaving Appellant’s residence, but was unable to recover the rifles. R. 6.
About one month after the search of Appellant’s residence, Detective Binger located and
re-interviewed Mr. Clark. Id. Binger informed Mr. Clark about his interview with Ms. Minder
and advised him to tell the truth about what happened after the party. Id. Mr. Clark capitulated,
stating that he rode in the front passenger seat of Appellant’s truck after leaving the party; that a
few minutes into the drive, a car passed Appellant’s truck; and that Appellant turned the truck
around and began to follow the car. Id. He related that when the victims’ car pulled off and
came to a stop on a dirt road, Appellant parked his vehicle facing the driver’s side door of the car
and exited his truck. When Mr. Clark got out of the truck to see what happened, he encountered
Ms. Minder vomiting at the rear of the vehicle. Id. Mr. Clark heard voices talking, then heard
the driver’s side of the truck open and saw a black figure retrieve something from behind the
seat. R. 6. The figure then walked back to the car, and Mr. Clark heard several popping sounds.
Id. After hearing the popping sounds, Mr. Clark heard Sandy Bearson screaming. Id. Mr. Clark
re-entered the vehicle at the same time as Appellant, who sped from the scene. Id. Mr. Clark did
7
not believe that Ms. Minder reentered the vehicle at that time. R. 6. Soon after, Appellant
warned Mr. Clark not to talk to anyone about that night. R. 6-7.
The Government charged Appellant with two counts of murder, and a jury found him
guilty after a three day trial. R. 7.Appellant then filed a timely appeal. Id. Deputy Laura Finster
(“Finster”) informed another deputy in her department that Chaostown resident Leopold Lara,
Jr., (“Lara”) who is uncle to both Deputy Finster and Ms. Minder, see R. 8, had confessed to
committing the murders. R. 7. Mr. Lara, Jr.’s father sells marijuana in the community; Leopold
worked for him in the past, and they often exchange marijuana for guns. R. 8-9.
When Detective Binger interviewed Finster, she informed him that several months prior,
Finster had observed Lara speeding down a Chaostown freeway. R. 8. Deputy Finster engaged
in a chase over several miles with Lara, until he pulled into the driveway of a residence, jumped
out of his truck, and fled on foot. Id. Several other individuals exited the truck and informed
Deputy Finster that Lara was drunk and attempted to access a gun to shoot at Finster during the
pursuit, but the individuals had taken the gun from Lara. Id. Finster immediately gave chase on
foot, eventually catching up with Lara and placing him under arrest. Id.
Deputy Finster informed Detective Binger that she could tell Lara was intoxicated, and
that as she handcuffed him, he began to cry. Id. Finster claimed that Lara blurted out that he
was sorry he killed those kids, that he did not mean to shoot the girl, and had used a .30 caliber
rifle. Id. Lara then asked Finster “how Kenny was doing.” Id. Deputy Finster told Lara to stop
talking but did not handcuff him because she knew he had high blood pressure. Finster issued
Lara a speeding citation and took him home. R. 8. Deputy Finster told Lara that she would have
a detective speak to him, but never followed up, nor did she write a police report regarding the
incident; when asked later by officers of Chaostown police department why she did not report
8
the incident, Finster replied that she thought it was just “drunk talk” and did not take it seriously.
R. 8. Deputy Finster is currently suspended from the police force for public intoxication. R. 7.
As a result of Detective Binger’s discussion with Finster, he interviewed Lara in the
hospital. R. 9. At the time, Lara was awaiting a liver transplant, but was coherent. Id. Lara
denied making the statements that Deputy Finster had related to Detective Binger. Id. He stated
that he thought police were harassing him because of his father. Id. Lara further stated that he
never said he “killed those kids,” but had said “why don’t you take me to jail for killing those
kids,” or something similar, because he believed the police were trying to pin something on him.
Id. A week later, Lara’s health deteriorated and he died. R. 9.
Appellant’s attorney filed a motion for a new trial under Rule 33(b)(1) of the Federal
Rules of Criminal Procedure based upon Lara’s “confession” to Deputy Finster. Id. The parties
stipulated that Lara was “unavailable” pursuant to Fed. R. Evid. 804(a), and thus, Appellant
could only proffer evidence of the confession through another party. Id. The trial court denied
the motion, ruling that the out-of-court statement was inadmissible hearsay, and that even if it
were admissible, the outcome of Appellant’s trial would have been unaffected. Id. The
Thirteenth Circuit affirmed the trial court in a brief and the United States Supreme Court granted
certiorari. R. 9-10.
ARGUMENT I. THE SEARCH OF APPELLANT’S HOME WAS PERMISSIBLE WITHIN THE WELL-ESTABLISHED CONSENT, EXIGENCY, AND INEVITABLE DISCOVERY EXCEPTIONS TO THE SEARCH AND SEIZURE CLAUSE OF THE FOURTH AMENDMENT It is well-settled that “searches conducted outside the judicial process, without prior
approval by [a] judge . . . are per se unreasonable under the Fourth Amendment – subject only to
a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S.
9
347, 357 (1967). There is, however, a “jealously and carefully drawn” exception that
“recognizes the validity of searches with the voluntary consent of an individual possessing
authority.” Georgia v. Randolph, 547 U.S. 103, 109 (2006). That person might be the occupant
against whom evidence is sought. See Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973). It
may also be “a fellow occupant who shares common authority over property, when the suspect is
absent.” Randolph, 547 U.S. at 109. Other permissible exceptions include exigent
circumstances, see United States v. Banks, 540 U.S. 31, 36 (2003), and inevitable discovery, see
Nix v. Williams, 467 U.S. 431, 444 (1984).
A. Standard of Review “Whether a person consented to a search is, as a general proposition, a matter of fact, and
therefore is reviewed for clear error.” United States v. Watkins, 760 F.3d 1271, 1279 (11th Cir.
2014), citing Schneckloth, 412 U.S. at 227. Regardless, an appellate court reviews a district
court’s denial of a motion to suppress evidence de novo as to its application of the law. See
United States v. Yeary, 740 F.3d 569, 579 (11th Cir. 2014), cert. denied, 2015 WL 232006
(2015). The appellate court may affirm the denial of a motion to suppress on any grounds
supported by the record, and it considers the evidence in the light most favorable to the district
court’s judgment. See Id.
B. The Officers properly entered the premises when they obtained permission from a guest with authority over the dwelling
A warrantless entry by police into a home is justifiable when a third party possessing
either common authority or apparent common authority provides free and voluntary consent to
law enforcement to conduct a search of the premises. See United States v. Matlock, 415 U.S. 164,
169-72 (1974). As “the touchstone of the Fourth Amendment is reasonableness,” Ohio v.
Robinette, 519 U.S. 33, 39 (1996), a warrantless entry is assessed under the totality of the
10
circumstances. Robinette, 519 U.S. at 39. Courts base apparent common authority upon the
officer’s perspective and good-faith belief that the consenting individual possessed authority at
the time of the search. United States v. Penney, 576 F.3d 297, 309 (6th Cir. 2009), cert. denied,
559 U.S. 940 (2010). Proper review is from the perspective of a similarly situated reasonable
officer. See Id. at 308-10.
i. Caroline Bearson possessed common authority over the dwelling because she was an occupant of indefinite duration rather than a casual visitor
Caroline Bearson had common authority over the dwelling that she authorized police to
search. Such authority is not based upon property ownership or interest. Matlock, 415 U.S. at
172, n. 7. Rather, it properly
rests . . . on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched.
Id. When police arrived at the Bearson residence and inquired as to whether anyone was home,
Caroline Bearson answered the door and identified herself as Appellant’s youngest sister. R. 5.
She stated that she was in the home alone and that she stayed with Appellant while undergoing
her chemotherapy treatments for “as long as it takes her to recover,” as she resides three hours
away. Id. This is precisely the kind of intimate bond between siblings that would grant her
common authority for Fourth Amendment purposes. Courts have ruled guests in homes to have
common authority on less tenuous bonds. See, e.g., State v. Sobczak, 833 N.W.2d 59 (Wis.
2013), cert. denied, 134 S. Ct. 626 (2013) (girlfriend of three months visiting for the weekend,
left at home alone for a few hours while defendant went to work); United States v. Turbyfill, 525
F.2d 57, 58-59 (8th Cir. 2008) (visitor who stayed “for several weeks and had the run of the
house”).
11
At a minimum, Caroline Bearson was Appellant’s overnight guest. An overnight guest in
another’s home has “an expectation of privacy in the home that society is prepared to recognize
as reasonable.” Minnesota v. Olson, 495 U.S. 91, 97 (1990). As such a guest, Caroline Bearson
would have the same authority as the owner of the premises in granting entry. Her initial denial
of access to the officers evidenced this authority. This Court has held that
[t]he law acknowledges that although we might not expect our friends and family to admit the government into common areas, sharing space entails risk. A person assumes the risk that his co-occupants – just as they might report his illegal activity or deliver his contraband to the government – might consent to a search of areas over which they have access and control.
Randolph, 547 U.S. at 136. Caroline Bearson’s familial relationship to Appellant and her
presence in Appellant’s home for an undetermined period of time are sufficient to constitute
common authority. When Caroline Bearson consented to the officers’ request to search the
house, that consent bound Appellant and rendered the search lawful. See Matlock, 415 U.S. at
170 (“the consent of one who possesses common authority over premises or effects is valid as
against the absent, nonconsenting person with whom that authority is shared.”). Here, analysis
of the totality of the circumstances supports the premise that Caroline Bearson had common
authority over the house based upon her connection to the defendant, her status as a guest in
Appellant’s home with a degree of regularity, and her unsupervised presence in the dwelling.
ii. The officers reasonably believed that Caroline Bearson possessed apparent authority over the dwelling due to her professed status and her demeanor on the premises
Assuming arguendo that the Court does not find that Caroline Bearson possessed
common authority over Appellant’s home, it should nevertheless find that she had apparent
authority over it. “Even if a co-occupant in fact lacks common authority over the premises, a
search conducted pursuant to . . . consent will not violate Fourth Amendment guarantees if the
police reasonably believed that the co-occupant had such authority.” Penney, 576 F.3d at 307,
12
citing Rodriguez, 497 U.S. at 186. “The reasonableness of police officers is evaluated in light of
all particular facts known to the officers, not by abstracting from the particular.” Penney, 576
F.3d. at 309.
Under the circumstances, it was reasonable for the officers to believe that Caroline
Bearson had common authority over the dwelling. She identified herself to the officers on her
doorstep as Appellant’s sister. R.5. She provided that her presence as a guest in the residence
was due to her recovery from chemotherapy treatments administered to her to treat her cancer,
and that her brother provided her with a place to stay while recovering from that chemotherapy
treatment. Id. Based on these facts, officers were justified in their determination that Caroline
Bearson had authority to consent to a search. The fact that Ms. Bearson told the officers that she
was domiciled elsewhere is irrelevant. Id. Her brother was not at home. Id. That fact, coupled
with her initial denial of the officers’ request to enter the home, meant that the officers were
reasonably justified in observing that she appeared to have unrestricted access to the common
areas of the dwelling. Id. “[I]t would be unjustifiably impractical to require the police to take
affirmative steps to confirm the actual authority of a consenting individual whose authority was
apparent.” Randolph, 547 U.S. at 122. “[I]t is no doubt reasonable for the police to conduct a
search once they have been permitted to do so,” Florida v. Jimeno, 500 U.S. 248, 250-51 (1991).
C. The trial court properly denied the motion to suppress evidence because Caroline Bearson freely and voluntarily consented to the search of Appellant’s home.
Courts “determine the voluntariness of . . . consent by examining the totality of the
circumstances.” United States v. Stabile, 633 F.3d 219, 231 (3d Cir. 2011), citing Schneckloth,
412 U.S. at 227. To determine whether consent was voluntary, courts consider such factors as
the subject’s age, education, and intelligence; whether the individual understands their
constitutional right to refuse consent; the repetition or duration of the questioning; and the use of
13
physical punishment. Stabile, 633 F.3d 231, citing Schnekloth, 412 U.S. at 226. “No one factor
is determinative . . . [as] these factors are . . . not a mechanized formula to resolving the
voluntariness inquiry.” United States v. Soriano, 361 F.3d 494, 502 (9th Cir. 2004).
As to the first factor, the age, education, and intelligence of the subject, reasonable
inferences drawn from the facts indicate that Caroline Bearson may be a minor, as she is
Appellant’s “youngest sister.” R. 5. However, the facts also describe her as “[a] young adult
woman” without clarifying her age. Id. Even if Caroline Bearson is a minor, there is “no per se
rule against a minor’s consenting to entry onto private property – age is but one factor within the
totality of the circumstances [considered by courts] in determining whether . . . consent was
voluntary.” United States v. Sanchez, 608 F.3d 685, 690 (10th Cir. 2010). Some courts have
found valid consent from minors as young as age nine. See Lenz v. Winburn, 51 F.3d 1540 (11th
Cir. 1995). Others have done so with twelve and fourteen year olds. See United States v.
Clutter, 914 F.2d 775 (6th Cir. 1990). While age is an important factor to consider, it is by no
means dispositive. Ms. Bearson’s level of cognition, however, suggests an awareness and
education level that weigh in favor of an ability to consent. Appellant left her alone in the
residence, which inevitably suggests a level of maturity. R.5. The second factor, Caroline
Bearson’s awareness of her right to refuse entry, weighs likewise in favor of consent: Ms.
Bearson’s initial desire to exercise this right coupled with her instructions to police limiting the
scope of their search to her level of access suggests that she understood her constitutional rights.
Id. The third and fourth factors also suggest that Ms. Bearson gave permission freely and
voluntarily. The questioning by officers took place for a relatively short duration, and the
officers neither threatened nor used physical force. The police made statements suggesting that
they would seek to obtain a search warrant; Appellant may suggest these were coercive.
14
However, “[e]ven assuming . . . that the statements were made in a threatening manner so as to
imply the futility of withholding consent, when probable cause to justify a warrant exists, the
weight of that factor is significantly diminished.” Id. at 504-05 (emphasis added). Police had
probable cause to obtain a warrant based on the smell of marijuana emanating from the dwelling.
R. 4.
Appellant may also argue that Caroline Bearson’s grogginess suggested a level of
influence from a controlled substance (marijuana or otherwise) that precluded her from
voluntarily consenting to a search. R. 5. But intoxication does not automatically render the
interrogation coerced or unlawful so long as the subject “was not so impaired or incapacitated as
to prevent him from participating.” United States v. Perry, 703 F.3d 906, 909 (6th Cir. 2013);
see also United States v. Montgomery, 621 F.3d 568, 572 (6th Cir. 2010) (defendant’s consent
was voluntary while he was under the influence of morphine); United States v. Dunn, 269 F.
App'x. 567 (6th Cir. 2008) (vicodin and marijuana). Here, Ms. Bearson participated in dialogue
with the officers: She responded directly to several questions, including whether she was
smoking marijuana and whether she had a prescription. R. 5. She also had the mental fortitude to
grant officers permission to search the common areas of Appellant’s home while limiting the
scope of their search. Id. See United States v. Gay, 774 F.2d 368, 377 (10th Cir. 1985)
(defendant’s free and voluntary consent was apparent when, while drunk, he granted police
permission to access the glove box of his car while denying them permission to access the trunk).
Clearly, then, Caroline Bearson was sufficiently cognizant to consent freely and voluntarily to a
search in spite of whatever drugs she might have taken prior to the officers’ arrival.
D. Officers acted within the scope of the Fourth Amendment when they entered Appellant’s home due to exigent circumstances.
15
Even if this Court finds that Caroline Bearson failed to possess the requisite authority to
consent to a search of Appellant’s home, exigent circumstances nevertheless justified the
officers’ warrantless entry. “Exigent circumstances justify a warrantless intrusion into a home
where a reasonable officer would believe that entry . . . was necessary to prevent physical harm
to . . . [a] person. Whether exigent circumstances exist in a given case is a fact-specific inquiry
that depends on the totality of the circumstances.” United States v. Arellano-Ochoa, 461 F.3d
1142, 1145 (9th Cir. 2006), citing Banks, 540 U.S. at 36 (internal quotations omitted). An action
is “reasonable” under the Fourth Amendment “as long as the circumstances, viewed objectively,
justify [the] action.” Scott v. United States, 436 U.S. 128, 138 (1978). The officers’ state of
mind is immaterial. Id. In this case, officers observed a groggy, cancer-stricken woman under
the influence of marijuana while home alone; moreover, she informed police that she had
undergone chemotherapy treatments. R. 5. This reasonably constituted a medical situation that
justified the officers’ involvement. Based upon this information, it was reasonable to fear for the
Caroline’s safety and enter the home.
Even if this rationale proves unpersuasive, the officers’ actions were nevertheless
reasonable under the totality of the circumstances. It is well-settled law that officers may make a
warrantless entry onto private property to prevent the imminent destruction of evidence. Ker v.
California, 374 U.S. 23, 40 (1963). In this analysis, this Court has “consistently eschewed
bright-line rules, instead emphasizing the fact-specific nature of the reasonableness inquiry.”
Ker, 374 U.S. at 33. Here, officers immediately noticed the odor of marijuana emanating from
the residence, and Caroline Bearson admitted to smoking marijuana yet was unable to provide
her prescription upon request. R. 5. Thus, it was reasonable for the officers to believe that
Caroline Bearson was in possession of marijuana without a prescription, a criminal offense under
16
local and federal law. See R. 5; see also 21 U.S.C. § 844. This alone would suffice to justify the
officers’ entry due to exigent circumstances.
E. Chaostown police would have inevitably discovered the pawn shop receipt in the kitchen. The inevitable discovery doctrine permits the introduction of evidence that officers would
have ultimately discovered lawfully, even if the search that led to the discovery were in fact
unlawful. See Nix, 467 U.S. at 444. Under the doctrine, evidence
need not be suppressed if the two prongs of inevitable discovery are proved by a preponderance of the evidence: (1) there is a reasonable probability the evidence would have been discovered by lawful means in the absence of police misconduct, and (2) the government was actively pursuing a substantial, alternative line of investigation at the time of the constitutional violation.
United States v. Thomas, 524 F.3d 855, 858 (8th Cir. 2008). Thus, even if the initial search
were deemed unlawful, police officers would have inevitably discovered the pawn shop receipt
after obtaining a warrant. R. 5. The officers had sufficient information to obtain a warrant based
on their detection of the odor of marijuana upon reaching the residence. R. 4. In addition, they
observed a groggy individual at the residence who admitted to using marijuana. R. 5. This was
sufficient to obtain a warrant, and the police could have left an officer at the residence to ensure
no one tampered with evidence in the interim. Therefore, police would inevitably have
discovered the pawn shop receipt at Appellant’s residence.
II. THE TRIAL COURT’S DENIAL OF APPELLANT’S NEW TRIAL MOTION WAS PROPER, AND IN ANY EVENT, WAS HARMLESS ERROR
While “[f]ew rights are more fundamental than that of an accused to present witnesses in
his own defense,” Chambers v. Mississippi, 410 U.S. 284, 302 (1973), exercising that right
requires that the accused to “comply with established rules of procedure and evidence designed
to assure both fairness and reliability in the ascertainment of guilt and innocence.” Id. At a
minimum, the Due Process Clause requires that a party that offers new evidence of a hearsay
17
statement introduced under Chambers ensure it is made “under circumstances that provided
considerable assurance of their reliability.” Chambers, 410 U.S. at 300. An uncorroborated,
subsequently clarified statement made outside of any official record does not provide sufficient
persuasive assurances of trustworthiness; thus, the trial court properly denied Appellant’s
motion, and in any event, the denial was harmless error given the weight of the evidence against
him.
A. Standard of Review
When a defendant files a post-conviction motion for a new trial during the pendency of a
direct appeal, “[t]he District Court ha[s] jurisdiction to entertain the motion and either deny the
motion on its merits or certify its intention to grant the motion to the Court of Appeals, which
could then entertain a motion to remand the case.” United States v. Cronic, 466 U.S. 648, 667 n.
42 (1984). Courts review a district court's denial of a motion for a new trial based on newly
discovered evidence for abuse of discretion. See United States v. McGurk, 290 F. App'x 585, 587
(4th Cir. 2008); United States v. Cobas, 415 F. App'x 555, 556 (5th Cir. 2011); United States v.
Ryan, 153 F.3d 708, 711 (8th Cir. 1998). When confronted with a “purely legal question,”
however, courts have held that proper review is de novo. United States v. Oruche, 484 F.3d 590,
595 (D.C. Cir. 2007). Given the nature of Leopold Lara, Jr.’s confession, the trial court’s
decision would have required an analysis under the totality of the circumstances, and a
determination of credibility was implicitly required in the trial court’s analysis; thus, this Court
should defer to an abuse of discretion standard in this case. See id., citing United States v. Sipe,
388 F.3d 471, 478–79 (5th Cir. 2004); United States v. Perdomo, 929 F.2d 967, 969 (3d
Cir.1991); accord, United States v. Jernigan, 492 F.3d 1050 (9th Cir. 2007).
18
B. A largely uncorroborated and subsequently clarified statement made under dubious circumstances is inherently unreliable
Where a defendant proffers newly discovered hearsay evidence originating from an
unavailable declarant and moves for a new trial, the evidence proffered must meet two
requirements. First, it must be critical to Appellant’s defense. Chambers, 410 U.S. at 302.
Second, it must bear “persuasive assurances of trustworthiness . . . well within the basic rationale
of the exception for declarations against interest.” Id. While “the hearsay rule may not be
applied mechanistically to defeat the ends of justice,” the decision in Chambers establishes no
new principles of constitutional law. Id. Courts analyze the confession proffered under the facts
and circumstances of the case. Id. at 303.
While it is indisputable that a confession exonerating Appellant, if reliable, would prove
critical to his defense, an analysis within the basic rationale of the exception for declarations
against interest must give the Court pause in its consideration of this matter. The parties have
stipulated that Lara is an unavailable declarant because he is dead. See R. 9; see also Fed. R.
Evid. 804(a)(4). Rule 804(b)(3) of the Federal Rules of Evidence states, in relevant part, that a
declaration against interest is a statement which:
(A) a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it . . . had so great a tendency to . . . expose the declarant to . . . criminal liability; and (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.
Fed. R. Evid. 804(b)(3). A statement admitting to a homicide would certainly have a great
tendency to expose Lara to criminal liability. Appellant has proffered Lara’s alleged statement in
his defense in a criminal case. Thus, under Rule 804(b)(3), the declarant’s statement must be
19
“supported by corroborating circumstances” to be admissible, and by extension, the Rule’s
“basic rationale” must fit within the ambit of Chambers. Chambers, 410 U.S. at 302.
The statement that Appellant proffers is almost entirely uncorroborated. Corroboration
“is not an insignificant hurdle,” and district courts possess a substantial degree of discretion in
making this important finding on trustworthiness.” United States v. Barrett, 539 F.2d 244, 253
(1st Cir. 1976). In making this determination, the district court must be cautious
to strike a fair balance between exclusion of trustworthy evidence, as in Chambers . . . and indiscriminate admission of less trustworthy evidence, which, because of the lack of opportunity for cross-examination and the absence of the declarant, is open to easy fabrication.
Id. While Lara, the absent declarant whose out-of-court statement Appellant has proffered for its
truth, provided general information about the murder, he did not provide sufficient corroborating
details to surmount the hurdle set by the court in Barrett, because the material facts in declarant’s
statement are “inadequate and thin in various respects.” Id. at 254. Lara provided no
information as to precisely where the homicide took place, the number of shots fired by the
killer, whether the engine and lights were on in the victims’ vehicle, or any other details
sufficient to show specific knowledge of the crime committed. While Lara did mention a .30
caliber rifle and asked “how [Appellant] was doing,” R. 8, the facts implied by these statements
– the weapon used and the name of the prime suspect – were reasonably common knowledge in
Chaostown; murders tend to be big news, and facts about them can travel in an affected
community. See generally Robert S. Stephen, Prejudicial Publicity Surrounding A Criminal
Trial: What A Trial Court Can Do to Ensure A Fair Trial in the Face of A "Media Circus," 26
Suffolk U. L. Rev. 1063 (1992) (noting the impact of media coverage on common knowledge
regarding murders even in quiet, rural communities). This would be particularly true where, as
here, the community disseminated reward posters, R. 3, as people would have discussed the case.
20
In addition, Lara’s alleged statement that he “didn’t mean to shoot the girl,” R. 8, is too vague to
clearly indicate the trustworthiness of the statement; if anything, it tends to disprove Lara’s
statement; while two of the bullets fired into the female victim were “pass-through” shots, one of
the bullets was not. R. 1. The shots, made at such close range upon stationary victims sitting in
a car, would hardly corroborate Lara’s alleged statement that he “did not mean to shoot the girl,”
even if Lara did in fact make the statement as Deputy Finster related it.
In acknowledging the premise that “confessions of criminal activity are often motivated
by extraneous considerations and, therefore, are not as inherently reliable as statements against
pecuniary . . . interests,” Chambers, 410 U.S. 284 at 299-300, this Court has cautioned that
Chambers “was an exercise in highly case-specific error correction,” Montana v. Egelhoff, 518
U.S. 37, 52 (1996), decided on narrow grounds. In Chambers, the defendant, on trial for murder,
proffered substantial evidence to corroborate the declarant’s statement against interest. This
ample evidence included three witnesses proffered by the defendant to testify to the declarant’s
three separate confessions, coupled with a sworn statement the declarant provided to defendant’s
attorneys in which he confessed to the crime. Chambers, 410 U.S. at 287-88. The defense also
presented corroborating evidence in the form of an eyewitness statement placing the declarant at
the scene of the murder with a firearm, in addition to evidence tending to prove the declarant’s
ownership of a .22 pistol, the firearm used in the shootings. Id. at 300. In addition, there was no
proof that the defendant had possessed a .22 pistol at any time. Id. at 289. The Chambers Court
held that “[t]he sheer number of independent confessions provided additional corroboration for
each,” and thus, “each confession” was “in a very real sense self-incriminatory and
unquestionably against interest.” Chambers, 410 U.S. at 312. Citing this overwhelming
evidence corroborating the declarant’s multiple confessions, the Court held that the statements
21
“were originally made and subsequently offered at trial under circumstances that provided
considerable assurance of their reliability,” Chambers, 410 U.S. at 300, and were “well within
the basic rationale of the exception for declarations against interest,” id. at 302. In contrast,
Appellant can proffer only a single witness to Lara’s alleged statement – Deputy Finster.
Appellant proffers no sworn statements; he can show no corroborating witnesses’ accounts of
such statements, and can present no eyewitnesses placing the declarant at or near the scene, with
or without a weapon, much less the .30 caliber rifle used in the shootings.2 Most importantly,
when Detective Binger interviewed Lara about his alleged confession, Lara denied having
confessed to anything at all, and suggested that he made the statement “because he figured the
police would try to pin something on him.” R. 9.
The holding in Chambers, “if one can be discerned from such a fact-intensive case,”
Egelhoff, 518 U.S. at 53, is that while an erroneous evidentiary ruling could violate due process,
there is no absolute entitlement to introduce crucial, relevant evidence, particularly if that
evidence is not credible, see id. Thus, Lara’s lone clarified statement is inherently unreliable
under this Court’s hearsay jurisprudence, and a trial court does not abuse its sound discretion in
refusing to grant a new trial based upon an unclear and unreliable confession. See, e.g., United
States v. Rhodes, 713 F.2d 463, 473 (9th Cir. 1983); United States v. Hall, 165 F.3d 1095 (7th
Cir. 1999).
C. Both the declarant and the individual who heard the declarant’s alleged statement are inherently unreliable, and the statement is thus properly excluded as unreliable conjecture
Rule 804(b)(3) does not merely require corroborating statements; it requires
corroborating statements that clearly indicate the statement’s trustworthiness. See Fed. R. Evid.
2 In contrast, Appellant’s ownership of one such .30 caliber rifle is properly in evidence here.
22
804(b)(3)(B). Declarant Lara’s vacillation between his confession to Deputy Finster and his
denial to Detective Binger, coupled with evidence of his intoxication at the time he allegedly
gave the statement, make his statements inherently unreliable. In United States v. MacDonald,
the court held that a trial court properly excluded a drug addict’s seven confessions to seven
separate witnesses implicating herself in the murder of the defendant’s wife and children, and did
not violate Chambers in doing so. See United States v. MacDonald, 688 F.2d 224, 232-33 (4th
Cir. 1982). Given Lara’s intoxicated condition – and his similar vacillation – the trial court was
warranted in excluding the evidence as to Lara’s trustworthiness as a declarant.
That does not end the inquiry, however, because Deputy Finster is every bit as unreliable
as Lara, if for different reasons. Doubt may arise “about the truthfulness of . . . alleged
confessions, but also about whether those confessions were ever made in the first place, in light
of the unreliability of the witnesses and the unrecorded form of the confessions.” Christian v.
Frank, 595 F.3d 1076, 1085 (9th Cir. 2010). There are many elements to Finster’s story about
Lara’s statement that raise questions regarding its reliability. She related the statement to
Detective Binger months after she heard it from Lara. See R. 7. She stated that she had engaged
in a high-speed chase after Lara who, according to witnesses in Lara’s vehicle, had reached for a
gun that he had intended to use against her. R. 8. At that point, Lara had exited his vehicle and
fled on foot as she pursued him. Id. Yet Deputy Finster did not arrest Lara for drunk driving,
much less possession of a firearm or attempted assault upon an officer; instead, she exercised
questionable discretion at best in letting Lara off with a speeding ticket. Id. Additionally,
Finster stated to Detective Binger that Lara had confessed to the murder, yet she made no written
report of the statement, failed to advise a detective to follow up with Lara, and did not report the
statement herself until months later, all allegedly because she believed the statement was “drunk
23
talk.” Id. Finster only came forward with this statement after her suspension for public
intoxication, R. 7, and it is possible that an ulterior motive, such as a desire to return to good
standing, may have motivated Finster to embellish upon Lara’s statement. Additionally, Finster
made no written recording of the statement, and her memory of what transpired may likely be
flawed. It is because of this problem that “[c]ourts routinely exclude testimony regarding alleged
statements by decedents on hearsay grounds. . . . memories fade with time and can play tricks.
Therefore, the statements or recollections are not reliable.” Ellsworth v. Tuttle, 2003 WL
25658595, at *13 (D. Utah Mar. 21, 2003). Because the Court is faced with both an unreliable
declarant and an unreliable witness to the statement made by that declarant, the trial court had
two strong reasons to exclude Lara’s statement as reported by Finster because the statements are
not within “circumstances that clearly indicate . . . trustworthiness.” Fed. R. Evid. 804(b)(3).
D. The exclusion of the declarant’s statement was harmless error given the sheer weight of the evidence against Appellant, and should not be disturbed
Given the weight of the evidence against Appellant at trial, it would be impossible for a
tenuous, untrustworthy statement such as the one Appellant has proffered to have overturned the
guilty verdict entered by the jury. In any harmless error analysis, the prosecution carries the
burden of showing that a constitutional trial error is harmless beyond a reasonable doubt. See
Chapman v. California, 386 U.S. 18, 24 (1967). “The Court has the power to review the record
de novo in order to determine an error's harmlessness. In so doing, it must be determined
whether the State has met its burden of demonstrating that the [error] did not contribute to
[defendant's] conviction.” Arizona v. Fulminante, 499 U.S. 279, 295–296 (1991); Cf. Brecht v.
Abrahamson, 507 U.S. 619, 637 (1993) (defining harmless-beyond-a-reasonable-doubt standard
as no “ ‘reasonable possibility’ that trial error contributed to the verdict”).
24
Even if the exclusion of Lara’s statement were error, there would be no possibility that a
reasonable jury would have changed its verdict if it had reviewed the statement. Factors to
consider in determining harmless error in a criminal trial “ . . . include the importance of the
witness' testimony in the prosecution's case, whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting the testimony of the witness on material
points, the extent of cross-examination otherwise permitted, and, of course, the overall strength
of the prosecution's case.” Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986); see also Hafdahl
v. Johnson, 251 F.3d 528, 539–40 (5th Cir. 2001).
Here, the witness’ testimony as to Lara’s statement would come either directly or
indirectly from Deputy Finster, and thus, for reasons mentioned above, would be utterly
unreliable. Moreover, given the overwhelming evidence of guilt, the exclusion of the statement
was harmless. The testimony would certainly not be cumulative, and this would weigh in
Appellant’s favor. However, there was strong evidence contradicting Lara’s statement on the
material point of whether he had confessed; that contradiction came from Lara himself when he
clarified his statement to Detective Binger, effectively denying that he had made any prior
confession. This far outweighed any corroborating evidence, which, as discussed, was already
tenuous, vague, and rife with details about the homicides that would have been common
knowledge in the community at the time when Lara made them. There would have been no
opportunity to cross-examine Lara as to any of his statements; he is deceased. Finally, the
prosecution’s case was air-tight, and more than sufficient to return a verdict of guilt beyond a
reasonable doubt. At trial, the prosecution presented two eyewitnesses placing Appellant at the
scene of the crime within minutes of the victims’ deaths. R. 7. It showed that gunshots were
fired contemporaneous with Appellant’s presence near the victims’ vehicle. Id. It showed that
25
Appellant had access to a rifle of the same caliber as the one that caused the victim’s deaths. Id.
Finally, it collected testimony that would have tended to show that Appellant had threatened both
of the prosecution’s witnesses in an attempt to prevent them from speaking to police about what
they had seen. R. 7. This was ample evidence to prove guilt beyond a reasonable doubt. Even if
Appellant had proffered Lara’s uncorroborated statement, such a statement would have faded
against the myriad of evidence that proved Appellant’s guilt beyond a reasonable doubt. Any
reasonable jury would have utterly disregarded it.
Thus, four of the five factors in Van Arsdall weigh heavily in the Government’s favor;
this should be more than sufficient to prove harmless error beyond a reasonable doubt, and as a
result, disturbing the Trial Court’s exclusion of Lara’s statement would be improper.
CONCLUSION For the aforementioned reasons, this Court should affirm the decision of the United States Court
of Appeals for the Thirteenth Circuit and affirm Appellant’s conviction. It should deny
Appellant’s motion to suppress evidence and should rule that the confession as inadmissible
hearsay, as it lacks sufficient indicia of reliability, and, even if admitted at trial, would not have
affected the outcome.
Respectfully submitted, ___________________________________ Attorneys for the Respondent, Team No 25
