Opinion
No. WR-65,324-01
Filed: November 21, 2007. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus from Cause No. 02-02065-W, In The 363rd District Court Dallas County.
ORDER
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of murder and sentenced to ninety-nine years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Huerta v. State, No. 05-03-00585-CR (Tex.App.-Dallas, March 16, 2004, pet. ref'd). Applicant contends that his trial counsel rendered ineffective assistance of counsel by failing to consult with an expert on eyewitness identification and failing to object to hearsay testimony. The trial court entered findings of fact and recommended that this Court grant relief. However, we deny relief on this application for a writ of habeas corpus because applicant has failed to prove, by a preponderance of evidence, that his attorney provided constitutionally ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668 (1984). Applicant asserts, and the trial court agreed, that his trial counsel's performance was deficient in two ways:
(1) Counsel failed to "consult" an expert to "explain the foibles" of eyewitness identifications; and
(2) Counsel failed to object sufficiently to multiple instances of hearsay testimony offered by the State.We cannot condemn counsel's representation in either of these respects. We review the facts in the light most favorable to the trial judge's findings. Cook v. State, 940 S.W.2d 623, 627 (Tex.Crim.App. 1996) (noting that "while we are not bound by the findings of the habeas court, we generally accept them, absent an abuse of discretion"). We also grant deference to "implicit factual findings" that support the trial court's ultimate recommendation, but "[we] cannot do so if [we] are unable to determine from the record what the trial court's implied factual findings are." Ex parte Peterson, 117 S.W.3d 804, 819 (Tex.Crim.App. 2003). But even granting great deference to the trial court's factual findings, we cannot agree that applicant has proven his right to relief. Ex parte Kimes, 872 S.W.2d 700, 703 (Tex.Crim.App. 1993). In considering an ineffective assistance claim, we indulge a strong presumption that counsel's actions fell within the wide range of reasonable professional behavior and were motivated by sound trial strategy. See Strickland, 466 U.S. at 689; Thompson v. State, 9 S.W.3d 808, 813-14 (Tex.Crim.App. 1999); Jackson v. State, 877 S.W.2d 768, 771 (Tex.Crim.App. 1994). To overcome this presumption, a claim of ineffective assistance must be firmly demonstrated in the record. Thompson, 9 S.W.3d at 813.
A. The Failure to Consult an Expert on Eyewitness Identification.
At the habeas evidentiary hearing, applicant offered the testimony of Dr. Roy Malpass, a social psychologist, who has been researching eyewitness identification issues since 1969. He said that he found it "interesting" that the State's sole eyewitness made only a tentative identification of applicant in a photo line-up a few weeks after the event, but made a positive identification in a photo line-up over seven years later. "This is unusual because memory very rarely improves with the passage of time, certainly with the passage of such a substantial amount of time." Dr. Malpass stated that the trial record in this case was too "incomplete" to determine exactly whether the witness's identification was infected by suggestive feedback or improper enhancement of memory, but that the record implied it was. Dr. Malpass testified that, had he been retained before this trial, he would have suggested a number of possible areas of questioning: how the photographic line-ups were conducted, the training of the law-enforcement personnel involved, any policy and procedural manuals that they may have followed, and so forth. Dr. Malpass opined that jurors "do not understand the impact of many procedural matters in witness identification" and that he could have "educate[d] the attorney as to what areas needed to be developed in this case to properly challenge the witness identification procedures[.]" On cross-examination, Dr. Malpass agreed that jurors are capable of understanding that memory diminishes over time. He also admitted that, because the trial record was undeveloped, he could not say what the result of his consultation might have been had he been consulted. Applicant's retained trial attorney then testified that he knew, before trial, that he would spend a lot of time questioning the State's single eyewitness. He had read literature on eyewitness identification and had opportunities to work with experts. He was familiar with the pertinent Supreme Court cases on eyewitness identification and such identification factors as the "opportunity to observe, adequate view, accuracy of description, degree of attention, lack of emotional state, prior misidentification, level of certainty, [and] elapsed time." The trial attorney stated that he had recently hired an expert witness to present this information to a jury, but "the impression I got was that it backfired. My client was convicted. . . . Afterwards I polled the jury, and they said that they were absolutely insulted, which I couldn't believe. I thought the expert did a great job. . . . So after that experience, I'm much less inclined to hire an expert to say these sort of things to a jury. . . ." Applicant's trial attorney testified that he did not attempt to suppress the eyewitness identification in this particular case because the witness had made only a tentative identification at the time, and the attorney was not informed, before trial, that there had been a more recent and more positive photo identification. At the time of the pretrial hearings, the attorney felt he had no reason to question the legal validity of the witness's identification, and thus no reason to file a motion to suppress that identification. Further, from the police reports that had been given to him, he knew that there were other eyewitnesses who had identified his client, although these witnesses ultimately did not testify at trial. Nonetheless, at trial the attorney did focus upon the theory that the witness's in-court identification had been tainted by interviews with the prosecution and police. He said that he vigorously cross-examined the witnesses. He did not think that it would necessarily be helpful to attack the witness's eyewitness identification by sponsoring an expert to discuss suggestibility and the fallibility of memory. Applicant's trial attorney expressed valid reasons for not spending money on an eyewitness identification expert to assist him in this case. There is nothing in the record that indicates that Dr. Malpass knew significantly more about the fallibility of eyewitness testimony than the experienced defense counsel already knew. The value of Dr. Malpass as a consulting expert might well have been minimal, but the cost exorbitant. Nor is there any indication that a jury would necessarily be impressed with such expert testimony, especially since there was evidence in the record that trial counsel's previous experience had shown otherwise. There is no indication that applicant himself wished to pay for such an expert, or that, at the time of trial, he thought that this was a useful and essential investment of his funds. Although an eyewitness identification expert might assist an attorney in developing a cross-examination methodology or might provide helpful expert testimony in a particular case, it is not the law that every defense counsel must-upon pain of being found constitutionally incompetent-hire such an expert in a one-witness identification case. Even in a case with an initial "tentative" identification, cross-examination of the witness may well be a constitutionally sufficient strategy. Lawyers may be competent enough to educate themselves about the factors that affect the accuracy and reliability of eyewitness identification even without consulting or sponsoring an expert in this area. The record shows that applicant's trial attorney had, in a previous case, consulted with and sponsored an expert on eyewitness identification, so there is nothing to suggest that he was poorly informed on this topic. An attorney's strategic choices concerning whether to retain or request appointment of an expert on eyewitness identification, made after a thorough investigation of relevant facts and law, are virtually unchallengeable. Cantu v. Collins, 967 F.2d 1006, 1016 (5th Cir. 1992) (trial counsel in capital murder prosecution was not ineffective for failing to seek appointment of expert on eyewitness identification "based on his belief that his cross-examination of [the eyewitness] would be sufficient to refute the accuracy of the identification"); Ford v. Cockrell, 315 F. Supp. 2d 831, 848, 853 (W.D. Tex. 2004) (trial counsel's strategic decision not to press repeatedly for his request for appointment of Dr. Malpass as an expert in eyewitness identification was not deficient performance, especially when there was no guarantee that trial court would have admitted such evidence). Applicant relies upon a single, unpublished California court of appeals decision, People v. Kindle, B151449, 2002 Cal App. Unpub. LEXIS 6453 (Cal.Ct.App. July 16, 2002), for the proposition that the failure to retain an expert on eyewitness identification might, under certain circumstances, constitute ineffective assistance of counsel. In that case, however, the record was silent as to why counsel failed to obtain such services. Id. at *40. Here the record is not silent. Applicant's trial attorney expressed valid strategic reasons for not retaining such an expert. Notably, the California court of appeals distinguished the State's two published federal opinions, Jones v. Smith, 772 F.2d 668 (11th Cir. 1985), and Switzer v. Hannigan, 45 F. Supp. 2d 873 (D. Kan. 1999), which had held that it was not ineffective assistance of counsel for defense counsel to fail to call an eyewitness identification expert at trial. Each of those cases, like this one, involved a single eyewitness identifying a stranger. The California court suggested that especially "complex psychological factors at work in this case" led to its contrary decision. Kindle, 2002 Cal App. Unpub. LEXIS 6453 at *40 n. 27. We find the published federal cases more persuasive. Thus, we cannot agree that applicant has established, by a preponderance of the evidence, that his trial attorney provided constitutionally defective assistance of counsel by failing to hire an expert on eyewitness identification.B. The Failure to Object Sufficiently to Hearsay Statements.
Applicant's second complaint is that his counsel failed to object sufficiently to various hearsay statements. Counsel did make numerous objections to the various witnesses's purported hearsay statements, although he did not object contemporaneously to each one. At one point, after the jury had been retired, counsel complained to the judge that he was trying to object to multiple questions eliciting hearsay statements, but that he could not "stem the flow" of the State's questions. When asked why he did not make a "running objection" to all hearsay statements, trial counsel responded,then it would be putting the burden on the Judge to make a decision every time she heard hearsay. That already wasn't happening. Even-even my valid hearsay objections were being overruled, and I felt during this trial it was more effective to interrupt [the witness] and keep him sort of on a short leash than to-I felt it was just too dangerous to ask for a running objection and let-I mean, he got so much in anyway by my being overruled, that to just kind of lay back and let the train plow us down didn't seem like a good idea during-during this trial.
. . .
[Running objections] are for more static objects or, you know, I object to the testimony of a certain person. I want a running objection for the State's expert. I object to all of his testimony. That way I'm not objecting after every sentence, but in this case every single witness, with the exception of [the eyewitness] was just the State trying to elicit testimony. And when I'd jump up and object, they'd try to get it in in a different way and eventually the Judge, you know, well, that sounds pretty good, let's go ahead and hear that.Counsel stated that he was constantly trying to fight against the State's use of hearsay but, despite his numerous objections, was unsuccessful much of the time. He would approach the bench and would be "[j]ust screaming" about the hearsay the State was offering. Counsel also stated that he was familiar with the concept of "back-door" hearsay and that many of the questions asked by the State were an attempt to elicit "back-door" hearsay. He objected to this technique, but to no avail. In sum, counsel thought that making individual objections to individual instances of hearsay was a better strategy in this case than requesting a single running objection to "hearsay" and leaving it up to the judge to decide what was and was not hearsay. He agreed that he "did the best [he] could and made decisions based on what [he] believe[d] was good trial strategy." Once again, counsel's strategy appears to be a sound one. Running objections would apply to the entirety of a witness's testimony or the entirety of a specific topic; they are not appropriate when each individual question may or may not call for a hearsay response. See generally, Sattiewhite v. State, 786 S.W.2d 271, 283 n. 4. (Tex.Crim.App. 1989). This is especially true when a party is attempting to offer more subtle, "back-door" hearsay. In this case, applicant's trial attorney made numerous objections, some of which were sustained, many of which were overruled. His conduct is not constitutionally deficient because the trial judge may have inappropriately overruled some of his objections and he would ultimately accede to those purportedly incorrect rulings. Applicant also alleges that his trial attorney failed to object to certain purported instances of hearsay based on the right of confrontation and the reasoning set out in Crawford v. Washington, 541 U.S. 36 (2004). Crawford was not decided until a full year after applicant's trial. His trial counsel was not required to be clairvoyant and predict what the future law might become long after applicant's trial was over. As a matter of law, counsel cannot be held constitutionally deficient for failing to predict future law. Ex parte Chandler, 182 S.W.3d 350, 358-59 (Tex.Crim.App. 2005) (stating that a finding of ineffective assistance cannot be predicated upon the failure to predict future law; "a bar card does not come with a crystal ball attached"). For these reasons, we disagree with the trial court's conclusion that applicant's trial counsel rendered constitutionally deficient assistance to his client in this case, and we deny relief.
In response to habeas counsel's explicit question, "And do you think that an expert such as Dr. Malpass-would have been helpful in helping you more fully develop the lineup procedures in questioning the police officers?" trial counsel answered, "Not in my personal experience."
This homicide took place in a bar. There were approximately ten customers in the bar at the time the deceased and the shooter quarreled. But many of these witnesses had either left the United States or been deported during the interim between the murder and the trial eight years later. The record indicates that other witnesses were apparently too scared to cooperate.
In Jones, the court stated, "Nor did the failure of [defendant's] attorneys to offer in evidence the opinion of a qualified expert as to the unreliability of eyewitness testimony constitute ineffective assistance of counsel. The likelihood of mistaken identification by [single eyewitness] was brought to the jury's full attention through cross-examination." 772 F.2d at 674.
Some of the examples to which applicant's habeas attorney pointed did not appear to be hearsay, but rather questions relating to how applicant became a suspect in the case.
See Schaffer v. State, 777 S.W.2d 111, 114 (Tex.Crim.App. 1989) (discussing concept of indirect hearsay); compare Head v. State, 4 S.W.3d 258, 261-62 (Tex.Crim.App. 1999) (explaining Schaffer, and stating that "the question is whether the strength of the inference produces an 'inescapable conclusion' that the evidence is being offered to prove the substance of an out-of-court statement").