Opinion
NO. WR-50,961-07 NO. WR-50,961-08
05-17-2017
EX PARTE RODNEY REED, Applicant
ON APPLICATIONS FOR POST-CONVICTION WRITS OF HABEAS CORPUS CAUSE NO. 8701 IN THE 21ST DISTRICT COURT FROM BASTROP COUNTY ALCALA, J., filed a concurring and dissenting opinion in which WALKER, J., joined. CONCURRING AND DISSENTING OPINION
These are subsequent applications for post-conviction writs of habeas corpus filed by Rodney Reed, applicant, who was convicted and sentenced to death in 1998 for the capital murder of Stacey Stites. I respectfully concur in part and dissent in part to this Court's judgment that remands the -08 writ application to the habeas court for further factual development and dismisses the remainder of applicant's claims presented in his -07 application. I agree with this Court's determination that it is necessary to remand the claims presented in applicant's -08 writ application, in which he asserts that new evidence has emerged indicating that an alternate suspect, Jimmy Fennell, made false statements about his whereabouts on the night of Stites's murder. I, however, disagree with the Court's majority's assessment that all of the claims in applicant's -07 writ application are subject to dismissal due to his failure to make out a prima facie showing on any of those claims. I would instead remand applicant's Article 11.073 and false-evidence claims to the habeas court for factual development and findings of fact and conclusions of law so that this Court may rule on the merits of those claims with the benefit of a fully developed record. I, therefore, write separately to explain my rationale.
In his instant application, applicant relies on the statutory basis in Code of Criminal Procedure Article 11.073 to assert that new scientific evidence has emerged that contradicts the scientific evidence relied upon by the State at trial. See TEX. CODE CRIM. PROC. art. 11.073; Ex parte Robbins, 478 S.W.3d 678 (Tex. Crim. App. 2014) (reh'g denied Jan. 2016). In addition, he relies on this Court's false-evidence jurisprudence to assert that the State's expert witnesses provided false or misleading testimony at his trial, thereby violating his due process rights. See Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009). In support of his assertions, applicant presents, among other evidence, a 2012 declaration from medical examiner Roberto Bayardo, who performed the autopsy on the complainant in this case. Applicant alleges that, at trial, Dr. Bayardo testified that his observation of applicant's intact sperm at the time of Stites's autopsy meant that the sperm was placed in the vagina "quite recently." Later in his testimony, Bayardo stated that this meant that the sperm was placed "a day or two" before his examination at autopsy, which occurred around twenty-four hours after Stites's body was found. Thus, Dr. Bayardo's trial testimony appears to have left the jury with the impression that applicant's sperm was likely deposited within the twenty-four hour period preceding Stites's death. Applicant asserts that this testimony was heavily relied upon by the State as evidence that he sexually assaulted and killed Stites during the narrow window of time during which her murder is thought to have occurred—between 3 a.m. and 5:30 a.m. on the morning of April 23—and to rebut his defensive theory at trial that he and Stites had consensual sexual intercourse more than a day before her murder and that someone else was responsible for her killing.
In a 2012 declaration, Dr. Bayardo has revisited this testimony and he now states as follows:
I am personally aware of medical literature finding that spermatoza can remain intact in the vaginal cavity for days after death. Accordingly, in my professional opinion, the spermatoza I found in Ms. Stites's vaginal cavity could have been deposited days before her death. Further, the fact that I found "very few" (as stated in the autopsy report) spermatoza in Ms. Stites's vaginal cavity suggests that the spermatoza was not deposited less than 24 hours before Ms. Stites's death. If the prosecuting attorneys had advised me that they intended to present testimony that spermatoza cannot remain intact in the vaginal cavity for more than 26 hours, and argue that Ms. Stites died within 24 hours of the spermatoza being deposited, I would have advised them that neither the testimony nor the argument was medically or scientifically supported.Applicant asserts that this portion of Bayardo's declaration indicates a "clear change in a scientists's opinion which constitutes a change in scientific knowledge as discussed in Ex parte Robbins." See 478 S.W.3d at 690. Applicant asserts that he is entitled to a new trial under Article 11.073 on the basis of Dr. Bayardo's revised opinion because, "if the jury had been told by Dr. Bayardo that Reed's sperm was likely left more than a day before [Stites] was murdered, the connection between the sex and the murder upon which the sufficiency of the evidence depended would have been broken, and no rational jury would have convicted Mr. Reed."
Similarly, applicant asserts that the State's presentation of Dr. Bayardo's testimony, combined with the testimony of two other witnesses, left the jury with the false impression that applicant's sperm could have been left only within the twenty-four-hour period prior to Stites's death, thus constituting a violation of his due process rights. See Chabot, 300 S.W.3d at 772; Ex parte Ghahremani, 332 S.W.3d 470, 480 (Tex. Crim. App. 2011). In support, he cites the testimony of Dr. Bayardo, as well as the testimony of DPS analyst Karen Blakely, who testified that twenty-six hours was the "outside length of time that tails will remain on a sperm head inside the vaginal tract of the female," and testimony from private DNA analyst Meghan Clement that, in the course of examining thousands of rape kits, she could not recall seeing intact sperm where the sample had been collected more than twenty to twenty-four hours after intercourse. Applicant asserts that this testimony was "simply false" because it is an "accepted truth in forensic pathology that intact sperm can be found for up to 72 hours." Applicant also notes that the matter of the length of time that intact sperm remains in the body was emphasized by the State's prosecutor during closing argument, signaling that it was a key issue in the case. And he notes that this testimony was clearly important to the jury because it asked to have Bayardo's testimony read back to it during its deliberations. Applicant asserts that he is entitled to relief on this claim because, "[w]here false testimony essentially cut off Reed's only defense to the murder, there is a reasonable likelihood that the false testimony could have affected the judgment of the jury."
Applicant cited three places in the record of the State's closing argument where it emphasized the time frame during which applicant's sperm must have been deposited: • "We know, from the credible evidence, that [sperm] doesn't hang around for days on end . . . that semen got in that girl's body within 24 hours of that eleven o'clock moment which is when? On her way to work." • "[F]ingerprints can last for years. Semen, on the other hand, can be dated. And semen, specifically spermatoza, only stays about 24 hours." • "[S]emen is not something that hangs around for days on end."
In order to establish that he is entitled to relief under Article 11.073, applicant must show by a preponderance of the evidence that he would not have been convicted if the newly available scientific evidence had been presented at his trial. Robbins, 478 S.W.3d at 690; TEX. CODE CRIM. PROC. art. 11.073 (permitting granting of post-conviction relief based on previously unavailable relevant scientific evidence that contradicts evidence relied on by the State at trial, based on the court's assessment that, "had the scientific evidence been presented at trial, on the preponderance of the evidence the person would not have been convicted"). Because this is a subsequent application, to avoid dismissal, applicant must allege facts that "are at least minimally sufficient to bring him within the ambit of that new legal basis for relief" in the sense that "there is arguably relevant scientific evidence that contradicts scientific evidence relied on by the state at trial, and that evidence was not available at trial" due to the expert changing his opinion. Robbins, 478 S.W.3d at 690. Similarly, with respect to his false-evidence claim, applicant must make out a prima facie showing of a constitutional violation by alleging facts that arguably could demonstrate that the State presented materially false or misleading testimony at his trial. See Ex parte De La Cruz, 466 S.W.3d 855, 866 (Tex. Crim. App. 2015). Here, Dr. Bayardo's declaration appears to contain new information that could arguably conflict with certain portions of his trial testimony. I note here that Dr. Bayardo's declaration contains several other statements that call into question the accuracy of his trial testimony—he states that the "presence of spermatoza in Ms. Stites's vaginal cavity was not evidence of sexual assault"; that there was "no indication that the spermatoza in Ms. Stites's vaginal cavity was placed there in any fashion other than consensually"; that there was no spermatoza in Ms. Stites's rectal cavity and thus that there was "no evidence that any spermatoza was deposited in the rectal cavity as a result of the sexual assault"; that, in Dr. Bayardo's professional opinion, "Ms. Stites was sexually assaulted in her anal cavity, and that assault did not result in the deposit of any spermatoza"; and that the injuries to Ms. Stites's anus are "more consistent with penetration by a rod-like instrument, such as a police baton." Given these statements, and because Dr. Bayardo's declaration has never before been considered by this Court in a post-conviction proceeding, I would permit applicant to litigate his Article 11.073 and false-evidence claims that pertain to Dr. Bayardo's declaration.
Applicant raises a number of other issues and claims in his -07 application, and, as to those matters, I agree with the Court's assessment that those claims should be dismissed. In particular, applicant presents the expert opinions of several forensic pathologists who challenge the State's evidence at trial, but he has failed to demonstrate any reason why he could not have presented this evidence at some earlier juncture. In addition, applicant presents claims of actual innocence and a false-testimony claim based on testimony from a TDCJ employee who opined that applicant would be a future danger, and he further asks this Court generally to reconsider its prior denial of his earlier habeas applications. As to these matters, I agree with the Court's assessment that applicant has failed to present a prima facie basis for relief and that those claims are thus subject to dismissal.
To be clear, I do not express any view as to the merits of applicant's claims at this juncture. I simply conclude that applicant has alleged facts in his -07 application on the basis of Dr. Bayardo's declaration that arguably could entitle him to relief, and thus I would permit further factual development of the claims rather than dismissing them on procedural grounds as the Court does today. Without conducting an extensive review of the record, and in the absence of credibility determinations from the habeas court or live testimony to clarify the meaning of Dr. Bayardo's declaration, it is impossible to determine whether applicant's claims on this basis may have any merit. In my view, if the Court must conduct extensive factual and legal analysis in order to determine whether an applicant has established a prima facie case for relief, the better course in that situation is to remand the claim to the habeas court for findings and conclusions so that the parties may fully litigate the matter and present this Court with an adequate record upon which to evaluate the claim. This is particularly true in this situation, given that the Court is already remanding applicant's -08 application for further proceedings. In my view, under these circumstances, it would be most efficient and prudent to resolve applicant's outstanding claims that may have some merit in a single proceeding.
I am unpersuaded that federal litigation disregarding Dr. Bayardo's revised testimony resolves the matters currently before this Court. In 2014, the federal district court denied applicant's federal habeas petition, and that decision was affirmed by the United States Fifth Circuit Court of Appeals. See Reed v. Stephens, 739 F.3d 753 (5th Cir. 2014). But his federal claims are unlike this instant application, in which applicant relies on the statutory basis in Code of Criminal Procedure Article 11.073. See TEX. CODE CRIM. PROC. art. 11.073; Ex parte Robbins, 478 S.W.3d 678 (Tex. Crim. App. 2014) (reh'g denied Jan. 2016). In addition, he relies on this Court's false-evidence jurisprudence. See Ex parte Chabot, 300 S.W.3d 768 (Tex. Crim. App. 2009). Although some of the issues implicated by Dr. Bayardo's affidavit have been litigated in federal court and resolved against applicant, I would permit applicant the opportunity to factually develop his claims through a live hearing. --------
With these comments, I concur in this Court's decision to remand applicant's -08 writ application. Because the Court concludes that applicant has failed to present a prima facie case on any of the claims raised in his -07 application and dismisses the application in its entirety as an abuse of the writ without reviewing the merits of the claims, I dissent from that portion of the Court's order. Filed: May 17, 2017
Do Not Publish