Opinion
Civil Action No. SA-96-CA-155-EP
June 15, 2000
ORDER
On this date the Court considered the Petitioner's motion for reconsideration of United States District Judge Suttle's denial of Petitioner Dionicio Cruz's habeas petition. After careful consideration, the Court has determined that Judge Suttle's conclusion was correct, and the habeas petition should be denied. However, the Court finds denial appropriate under somewhat different legal bases.
FACTS AND PROCEDURAL HISTORY
In 1977, Cruz was convicted of deadly assault on a peace officer and two counts of capital murder for firing a gun on police officers and wounding on officer as officers attempted to serve a warrant on his home to search for cocaine. Cruz was sentenced to concurrent fifty-year sentences for each offense.
According to the evidence presented at trial, officers attempted to serve a warrant on Cruz at his San Antonio home on November 11, 1974. Each of the officers involved in the attempted search testified that the officers divided up, some going to Cruz's back door, and some staying at the front door. The officers testified that they knocked loudly on the Cruz's door and shouted "Police officers with a warrant." The officers stated that, following their announcement, Cruz began shooting from within the house, alternating his fire between the front and back doors of the home. One officer, Jimmy Cuellar, was struck in the chest. The officers testified that they continued to shout their identity and instruct Petitioner to stop shooting. The officers claimed that, while this was going on, they could hear a toilet inside the home being flushed. At some point, according to the officers' testimony, Cruz asked to see their identification; an officer responded by throwing his badge through a broken window. According to the officers, Cruz fired another volley of shots and then surrendered. Upon searching the home, the officers testified that they found Cruz's girlfriend in the bedroom and a small blue balloon containing heroin in Cruz's bathroom.
At trial, Cruz argued that he did not know that the men at his door that morning were police officers. Cruz noted that the officers had come to his home in plain clothes. He contended that the officers had banged on his door and broken glass, but had not announced their presence. He offered the testimony of neighbors that they had not heard the officers announce. He claimed that at some point during the shooting he asked the officers who they were, and it was only at that point that they told him they were law enforcement officers. When he realized that they were, in fact, officers, Cruz testified that he immediately stopped shooting. Finally, Cruz argued that the heroin found in his home was planted by police officers.
Cruz took the stand in his own defense. During cross examination, the state attorney asked Cruz whether he had spoken with one of the officers present that morning, Ray Hernandez, since the shooting. Cruz answered that he had not. To rebut that testimony, the state offered the testimony of Hernandez, who stated that he had encountered Cruz in the Bexar County Justice Center some time after the shooting and that, in a conversation initiated by Cruz, Cruz told Hernandez "You know we are going to have to take a lot of tests . . . I am going to get you."
Cruz's attorney argued that this testimony "opened the door" for admission of the results of Cruz's polygraph examination, which are prohibited in Texas courts. The trial judge refused to admit evidence that anyone had taken a polygraph exam or evidence regarding the results of any exam. Later, before the case was submitted to the jury, Cruz made an appeal on his own behalf, stating that he wanted to explain to the jury that when he said to Hernandez "I am going to get you," he meant that "we will see you in Court — I'll get you in Court — I will get you in Court because we will have to take a polygraph test to prove who is telling the truth." The Court again denied Cruz's request to take the stand and explain the evidence against him.
DISCUSSION
The original decision denying Cruz's request for habeas relief argued the following: (1) Texas has a sweeping, per se, prohibition of the admission of polygraph testimony at trial, and (2) the application of state evidentiary rules does not violate a constitutional issue; (3) therefore, no issue is presented for proper habeas relief. This reasoning, however, does not, in this Court's view, adequately address the issues raised by Cruz.
The Polygraph Evidence
As for Texas's prohibition on the admission of polygraph evidence, the Court cannot conclude that it applies in this instance. Clearly, any offer to take a polygraph, any submission to a polygraph exam, and any testimony regarding the results of a polygraph exam are not admissible in Texas courts. See Nethery v. State, 692 S.W.2d 686, 700 (Tex.Crim.App. 1985). At least one Texas court has held that this preclusion extends to "any reference to polygraph or lie detector tests," even when the result is not disclosed. See Russell v. State, 798 S.W.2d 632, 635 (Tex.App.-Fort Worth 1990, no pet.). In the Court's view, the cases cited by the Russell court do not mandate the broad exclusion imposed on Cruz.
In Reed v. State, 522 S.W.2d 466 (Tex.Crim.App. 1972), the Texas Court of Criminal Appeals examined cases where evidence other than results of polygraph examinations was admitted at trial. In Reed, the court noted that it had found no error or harmless error where testimony had been admitted that a witness worked as a polygraph examiner, Hart v. State, 447 S.W.2d 944 (Tex.Crim.App. 1969); where evidence had been admitted that a witness had taken a lie detector test, Hannon v. State, 475 S.W.2d 800 (Tex.Crim.App. 1972), Renesto v. State, 452 S.W.2d 498, 500 (Tex.Crim.App. 1970); where evidence had been admitted that a witness had been "taken to" a lie detector test, but no evidence had been admitted that a test had been administered, Paredes v. State, 468 S.W.2d 620 (Tex.Crim.App. 1963); and where evidence had been admitted that a defendant was warned that he did not have to submit to a lie detector test, Lee v. State, 455 S.W.2d 316, 321 (Tex.Crim.App. 1970).
Admittedly, this discussion does not make it wholly clear whether the admissions were not error, harmless error, or cured error, based on instructions given to the jury. However, the court's continued discussion suggests that not all mention of polygraph examinations is prohibited. The court addressed the appellant's argument that "reversal is called for in some cases even if the [r]esults of a lie detector test are not mentioned." Reed, 522 S.W.2d at 468 (emphasis added). The court noted that in Nichols v. State, 378 S.W.2d 335 (Tex.Crim.App. 1964), it had excluded testimony from a young woman alleging statutory rape that she had taken a lie detector test. Id. (citing Nichols, 378 S.W.2d at 337). In Nichols, the Court stated that prosecutor's question asking whether the witness had submitted to a lie detector test implied that the woman had passed a lie detector test and therefore bolstered her testimony. Nichols, 378 S.W.3d at 337. "In Nichols, the prosecutor actually elicited the fact that such a test had been given," the Reed court noted. Reed, 522 S.W.2d at 469-70. The Reed court distinguished those circumstances from the facts before it, stating that, in Reed, "there was no showing before the jury that any test was ever given and no mention was made of the results of any such test."
The court's clear concern in Nichols was that the jury, composed of laypersons unfamiliar with the science of lie detector examinations, would improperly find that the woman's testimony was true based on her willingness to take a lie detector test and based on the fact that the state asked her that question on the stand. See Nichols, 378 S.W.2d at 336 (discussing scientific unreliability of test); id. at 337 (asking and answering of question bolstered testimony in part because jury would likely conclude that state knew witness had taken and passed the test). Moreover, the Texas Court of Criminal Appeals' general concern with polygraph examinations has been their dubious scientific reliability. Romero v. State, 493 S.W.2d 206, 209 (Tex.Crim.App. 1973).
In this case, Cruz made two independent requests of the trial judge. The first request, made by his lawyer, — that he be allowed to introduce the results of his polygraph examination because the state had "opened the door" — is clearly improper under Texas law. The second request, made by Cruz himself — that he be allowed to testify that he was talking about lie detector tests when he told Hernandez "I am going to get you" — presents a closer question. Cruz did not ask to inform the jury that he had taken a test, or even that he had offered to take a test. Thus, concerns of test reliability and bolstering do not seem relevant here. In fact, Cruz could have failed his test and nonetheless have the same desire to rebut Hernandez's testimony. Cruz's proffer suggests not that he was willing or volunteered to take a test but that he assumed he would be required to do so: "I will get you in Court because we will have to take a Polygraph test to prove who is telling the truth." This testimony does not suggest that a test had been taken, that Cruz was willing to take a test, or that Cruz had passed a test. With a proper instruction to the jury, the Court believes such testimony may have been admissible.
Moreover, it is clear that Cruz's request took two forms. In the first form, it asked the court merely to let Cruz explain that he meant he would "get" Hernandez in court. In the second form, it asked the court to let Cruz explain that he meant he would "get" Hernandez by telling the truth on a lie detector examination. The Court finds that the trial judge could have — and, in the Court's view, should have — permitted Cruz to explain Hernandez's testimony at least by stating that he meant he would prove Hernandez wrong in court.
Whether Cruz has Raised a Constitutional Issue
On first review of this case, the District Judge held that Cruz had not raised a proper question for habeas review, since state evidentiary rules do not ordinarily raise constitutional questions. The Court disagrees with this assessment.
"The right to testify on one's own behalf at a criminal trial . . . is one of the rights that are `essential to due process of law in a fair adversary process.'" Rock v. Arkansas, 483 U.S. 44, 51 (1987). That right is secured by the Fifth and Sixth amendments to the United States Constitution. Id. On the other hand, a per se rule prohibiting the admission of polygraph results does not violate the Fifth Amendment. See Castillo v. Johnson, 141 F.3d 218, 222 (5th Cir. 1998), cert. denied, 524 U.S. 979. State rules excluding evidence do not impede a defendant's right to present a defense unless they are arbitrary or disproportionate to their stated purposes. Castillo, 141 F.3d at 222.
However, this Court concludes that the trial court here either incorrectly and arbitrarily applied the Texas prohibition or erred by not allowing Cruz to make a more limited surrebuttal. Therefore, the question becomes whether the refusal to allow Cruz to take the stand on his own behalf to rebut potentially damning testimony has constitutional dimensions. The Court concludes that, because the refusal impeded Cruz's right to testify on his own behalf it amounted to constitutional error.
Whether Habeas Relief is Available
However, that conclusion does not end the Court's inquiry. Even where constitutional error has occurred, no relief is available unless such error rendered the petitioner's trial fundamentally unfair. Smallwood v. Johnson, 73 F.3d 1343, 1349 (5th Cir. 1996), cert. denied, 519 U.S. 883. The Fifth Circuit has held that a trial is rendered fundamentally unfair where the error complained of "had substantial and injurious effect or influence in determining the jury's verdict." Id. at 1350. In other words, the petitioner must show that he was actually prejudiced by the error. United States v. Chavez, 193 F.3d 375, 379 (5th Cir. 1994), cert. denied, 513 U.S. 1059 (1994). There must be more than a mere reasonable possibility that the error contributed to the verdict. Woods v. Johnson, 75 F.3d 1017, 1026 (5th Cir. 1996).
The Court must conclude that Hernandez's testimony was not central to the case against Cruz. At trial, each testifying officer who was present at the shooting testified to essentially the same set of facts — that the officers knocked and announced their presence, that Cruz began shooting at them from inside the house, and that they heard constant flushing from inside the house while Cruz was shooting. The jury was entitled to credit that testimony. Thus, the jury was entitled to believe that another individual, Cruz's girlfriend, was flushing drugs down the toilet while Cruz held off the police with gunfire. Also in the house were a small pistol and the parts to another, incomplete rifle. In addition, the rifle Cruz used in the shooting had metal threads in its firing end, and there was testimony that it could thus accommodate a silencer. The jury was entitled to find that Cruz lived in a state of preparedness to respond to intrusion with gunfire. Finally, there was testimony — both from Cruz and the police officers — that Cruz made certain statements at the scene regarding what he could have done or who he could have killed had the gunfire continued. Cruz argued that the statements were made in anger because the officers had not identified themselves, and Cruz was upset that he could have hurt even more police officers. The officers believed the language was threatening. The jury was entitled to accept the officers' interpretation.
Cruz's courthouse statement to Hernandez did not make his story before the jury substantially less likely nor did it substantially bolster the state's theory at trial. The state's theory was that Cruz was attempting to hold off officers while his girlfriend disposed of drugs. The state did not theorize that Cruz had an agenda against police officers in general, or against Hernandez in particular. There was no testimony to suggest that Cruz acted out of hostility — only that he acted out of fear of being caught with drugs. Even if the jury believed that Cruz threatened Hernandez with violence after the incident, there was ample evidence on which it could base a decision that, for purely self-interested reasons, Cruz had knowingly fired upon police officers.
Remaining Claims
The Court sees no basis for reconsidering Cruz's claim that any denial of a Jackson-Denno hearing harmed him or his claim that Brady material was kept from him. Nor does the Court find error in the jury deliberations that entitle Cruz to habeas relief.
CONCLUSION
In short, the Court must conclude that the trial judge erred when he refused to permit Cruz to offer even limited testimony explaining Hernandez's testimony. Moreover, the Court finds that the error had constitutional implications, as it impeded Cruz's Fifth and Sixth amendments right to testify in his own behalf. However, the Court finds that the error did not render Cruz's trial fundamentally unfair. For that reason, the motion for reconsideration is DENIED. Cruz's motion to expedite consideration is DENIED AS MOOT.