Opinion
NO. WR-91,161-01
11-04-2020
EX PARTE William Joe RHOMER, Applicant
Dayna L. Jones, San Antonio, for Applicant.
Dayna L. Jones, San Antonio, for Applicant.
Habeas Corpus Denied.
Walker, J., filed a dissenting opinion.
William Joe Rhomer, Applicant, was convicted of felony murder for the death of a motorcycle rider who was killed when Applicant's car and the motorcycle collided. During Applicant's trial, Police Detective John Doyle testified and provided an opinion, over Applicant's objection, on how and precisely where the collision between Applicant's vehicle and the motorcycle occurred. The court of appeals determined that the trial court did not abuse its discretion in admitting the evidence. Rhomer v. State , 522 S.W.3d 13, 22 (Tex. App.—San Antonio, 2017). This Court, on discretionary review, affirmed that decision. Rhomer v. State , 569 S.W.3d 664, 672 (Tex. Crim. App. 2019).
When this case was previously before us, I believed that, based on the record, Doyle's opinion was not reliable and his opinion should not have been admitted. Id. at 681 (Walker, J., concurring). Nevertheless, I concurred with the Court's decision to affirm the judgment of the court of appeals. Id. at 683. This was so because Applicant's trial counsel did not ask Doyle the right questions to expose the unreliability of his opinion. Id. at 677–78. As such, the trial court did not abuse its discretion based on the information before it at the time. Id.
Now, Applicant comes before the Court seeking habeas corpus relief claiming that his trial counsel provided ineffective assistance by failing to consult with or retain an accident reconstruction expert and consequently failing to properly challenge Doyle's opinion. In support of the current claim, Applicant has provided affidavits from trial counsel and an accident reconstruction expert as well as a report by that expert. The habeas evidence shows that, although trial counsel intended to challenge Doyle's qualifications, he failed to retain or seek appointment of an expert—a failure that was not a matter of reasonable trial strategy. The habeas evidence also shows that, had counsel obtained an expert's assistance, he would have been able to properly challenge both Doyle's qualifications as an expert as well as Doyle's opinion. Applicant was prejudiced by trial counsel's failure. Habeas corpus relief is warranted. Because the Court chooses to deny relief, I respectfully dissent.
Applicant also claims that the State's use of the expert's opinion amounts to the use of false or misleading evidence: a due process violation.
I — Trial Counsel's Affidavit
In an affidavit, counsel explained his involvement with Applicant's case. Counsel was appointed to represent Applicant after Applicant's original attorney, who is no longer licensed to practice law in Texas, was removed from the case. At that time, the case had been pending for almost three years. Counsel immediately requested Applicant's case file from the prior attorney, but to counsel's frustration the file was never turned over. Counsel knew the trial court pushed cases to trial quickly and did not allow many continuances. Because this case had been pending for almost three years, counsel knew he would be going to trial soon and was stressed to be ready for trial. There was a large amount of discovery to review, and counsel reviewed depositions from the civil lawsuit that was tied to the case. Additionally, the law regarding blood evidence recently changed, so counsel spent a lot of time preparing to suppress the blood evidence at trial, for which he was successful. Counsel filed a continuance because he had not had enough time to adequately review the case, Applicant's prior attorney had yet to turn over his file, and counsel had not had the time to consult with an accident reconstruction expert. The trial court gave counsel an incredibly short deadline. Counsel believes that he received one week to retain an expert.
Applicant's original attorney is on the Ineligible Attorneys list for failure to comply with MCLE requirements.
Counsel argued that a warrant was required based upon the Supreme Court's decision in Missouri v. McNeely , 569 U.S. 141, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), and the Fourth Court of Appeals's decision in Huff v. State , 467 S.W.3d 11 (Tex. App.—San Antonio 2015, pet. ref'd), which was handed down eight months earlier. See Rep. R. vol. 3, 41–43, 49–51, Rhomer v. State , 569 S.W.3d 664 (Tex. Crim. App. 2019).
Counsel talked with two separate accident reconstruction experts, but he did not retain either as a testifying or consulting expert. While he did not keep any notes about what was discussed with either expert, he recalls being told that Doyle's theory of the accident was possible. However, counsel states that:
Looking back, they were only assuming Doyle did a complete investigation and had the qualifications to render that opinion. I did not discuss with them Doyle's qualifications or methodology on how he came to that conclusion. I did not discuss with them proper accident reconstruction methods for a case like this. I just recall them saying that based on Doyle's reports, it was possible that Mr. Rhomer drifted into the other lane.
Clerk's R. 114–15.
But this was in contrast to counsel's strategy, which he explained in his affidavit was to challenge the cause of the accident. Nevertheless, instead of preparing a challenge to Doyle's opinion about the cause of the accident, counsel simply assumed that the trial court was not going to allow Doyle to testify as an expert:
honestly I did not think the judge was going to admit Doyle as an expert because
I did not believe he had sufficient qualifications. Apparently, this was not an accurate assessment on my part. I should have obtained an expert, at the very least, to help me challenge Doyle as an expert and to challenge his opinions about the accident. Without his testimony, there was no other evidence to support the state's theory that Mr. Rhomer caused the accident. Without his opinion on causation, I believe the outcome of the trial would have been different.
Id.
Thus, while counsel personally believed Doyle's testimony and theory of the accident were not credible or accurate and thus were inadmissible, counsel thought he "could have pointed that out at trial without the help of an expert." Counsel now concedes that:
Id.
Not retaining or getting an expert appointed to assist me was not a matter of trial strategy. I was under a huge time crunch from the judge to get an expert and the two I reached out to did a preliminary review of Doyle's investigation and said his theory could be true. I also just did not believe Doyle was going to be admitted as an expert based on his qualifications.
Id.
II — Ruble's Affidavit
Along with the affidavit from counsel, Applicant presents an affidavit and report from Charles Ruble, an accident reconstruction expert, who reviewed Doyle's testimony, trial counsel's questioning of Doyle, the police investigation documents, the photographs, and the summary reports. Ruble concluded that Doyle demonstrated a lack of knowledge of accident reconstruction scientific principles and falsely stated that scientific principles could not be applied to the reconstruction of the accident. Ruble found that Doyle did not perform any scientific analysis as to the cause of the accident and provided unreliable testimony as to the location and cause of the accident. Specifically, Ruble's report states that:
Detective Doyle has in summary testified in recorded Court testimony:
His formal education did not include courses in math, engineering and physics.
His specialized education came from non-accredited courses in reconstruction basics such as determining speed from skid marks and introduction to energy and momentum formulas.
• These courses are basic, short term and limited in physics foundation and technical evaluation of physical evidence from involved vehicles and the accident scene.
He stated his training precludes him from doing a momentum or speed calculation because of the difference in the mass between the two vehicle[s] is so great, the calculations don't work and because the auto came to an "unnatural" stop, you can't do a speed analysis on momentum.
• This testimony is baseless and misleadingly false and demonstrates Detective Doyle's limited training and understanding of basic sciences involved in reconstruction. Accident reconstruction utilizes physics (energy and momentum) to calculate speeds incorporating vehicle weight differentials, damage and "unnatural" vehicle stops due to impacting non-vehicle objects.
• Incorporating energy losses due to vehicle damage and impacting objects
(a building in this case), are part of speed reconstruction.
Detective Doyle is not capable of determining energy losses due to impact damage and was therefore unable to calculate the speeds of the vehicles. He made unfounded, no scientific basis assumptions of the vehicle approach to impact speeds. Baselessly assessing each vehicle, a speed equal to the speed limit of the roadway.
Speed calculations are necessary to determine closure rates, pre-impact vehicle locations, perception-reaction issues and possible avoidance of collision.
This is "Accident Reconstruction" and Detective Doyle was not capable of doing this!
Detective Doyle could not determine an exact point of impact but assumed an area of impact based on a 12' diameter distribution of road debris and stated the area of impact was speculation and was not scientifically placed.
• Road debris scatters and can be moved by passing vehicles and is a poor indicator of the collision point.
Detective Doyle did not apply any scientific theories to calculate speeds and assumed closing speeds for the purpose of his "reconstruction" stating he had no idea what speed the motorcycle was going.
• Utilizing accepted and recognized reconstruction techniques, the speed of the vehicles could have been calculated and form the basis for evaluation of closure distances, perception-reaction and evasive maneuvers.
Detective Doyle could not, absent speed calculations, opine as to pre-impact vehicle positions or possible avoidance of collision.
He stated it was possible the motorcycle could have been outside of its lane on approach but could only tell its position at impact. He could not determine the pre impact paths of either vehicle or determine their lanes of approach.
Detective Doyle could not produce photographic records of the evidence he relied upon specifically the area of impact, curb strike evidence, tire marks, etc., claiming the photographer did a "crappy" job of taking photographs that were taken the night of the accident.
At impact, the front tire of the motorcycle and the left front tire of the auto would be expected to leave road surface scrub marks that would pinpoint the area of impact versus using scattered debris to the location of the impact.
He made no effort to return to the scene in daylight to further document this critical and relevant evidence.
Based upon Detective Doyle's court testimony, it is evident that he did not perform an "accident reconstruction" utilizing scientific principles but based his opinions and conclusions on assumptions and speculation.
His testimony indicates his lack of working knowledge of and inability to understand or apply any kind of scientific theory to the reconstruction of this accident and his conclusions are false and not based on any science accepted in the field of accident reconstruction.
Id. at 121–22 (emphasis in original).
Reviewing trial counsel's examination of Doyle, Ruble found that counsel failed to sufficiently examine Doyle to question the reliability of his opinions and to disqualify him as a testifying expert. Specifically, Ruble found:
[Counsel's] cross-examination of Detective Doyle indicates [counsel] lacked an understanding of the scientific basis of
accident reconstruction and the relevance accurate documentation and interpretation of physical evidence.
[Counsel] did not question Detective Doyle about his lack of science training in his formal education that would relate to accident reconstruction, specifically in the areas of math, engineering and physics which would demonstrate his lack of formal education [in] these areas.
[Counsel] did not question Detective Doyle in depth about his specialized training in accident investigation and reconstruction to demonstrate a lack of knowledge of the specifics of the scientific principles and their application.
He did not question Detective Doyle's excuses as to why he could not calculate the speeds of the vehicles using examples of how it could have been calculated to demonstrate Doyle's lack of knowledge.
[Counsel] should have used expert and technical assistance to help him understand and question Detective Doyle's scientific knowledge and the reliability of his assumptions and opinions.
[Counsel] failed to question Detective Doyle's use of debris to assume the area of collision, his assumption of vehicle speeds and his lack of determining the pre-impact positions of the vehicles and possible evasion of collision.
[Counsel's] examination should have shown Detective Doyle's lack of knowledge of the scientific principles of accident reconstruction, his inability to reconstruct this accident, the unreliability of his assumptions and speculations as to where and how the accident occurred.
[Counsel] failed to cross-examine Detective Doyle with sufficiency to provide the Court with evidence that Detective Doyle did not qualify as an Accident Reconstruction Expert in this case.
Id. at 123.
III — Findings and Conclusions
The habeas court entered Findings of Fact essentially summarizing counsel's affidavit and noting that counsel "is known in the San Antonio legal community as a good and reputable attorney." The habeas court then entered Conclusions of Law relating to Applicant's ineffectiveness ground, that:
Id. at 135.
On Applicant's due process ground, the habeas court concluded that this ground was in effect raised on direct appeal, and the court recommended that the ground be denied.
2. Had [counsel] been able to hire an expert and ask the Detective different questions, the court does not know if the proceedings would have been different.
...
7. The court makes no recommendation as to [counsel's] effectiveness.
Id. at 136.
The habeas court made no mention of Ruble or his report.
IV — Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution provides that, "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence." U.S. CONST . amend VI. This right, binding on the states, is similarly provided for by Article I, § 10 of the Texas Constitution. Gideon v. Wainwright , 372 U.S. 335, 342–45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) ; see TEX. CONST. art. 1, § 10 ("In all criminal prosecutions the accused ... shall have the right of being heard by himself or counsel, or both"). "The right to counsel requires more than the presence of a lawyer; it necessarily requires the right to effective assistance." Lopez v. State , 343 S.W.3d 137, 142 (Tex. Crim. App. 2011) ; McMann v. Richardson , 397 U.S. 759, 771 n.14, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
The standard for determining whether counsel provided effective assistance was announced in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , an applicant must make two showings by a preponderance of the evidence. Ex parte Kunkle , 852 S.W.2d 499, 505 (Tex. Crim. App. 1993) ; McFarland v. State , 845 S.W.2d 824, 843 (Tex. Crim. App. 1992). First, the applicant must show that counsel performed deficiently. Strickland , 466 U.S. at 687, 104 S.Ct. 2052. The reviewing court must apply a strong presumption that counsel's performance was adequate. Id. at 689, 104 S.Ct. 2052. Thus, in order to prevail, an applicant must identify the acts or omissions that he claims are beyond the result of reasonable professional judgment and to establish, to the satisfaction of the reviewing court, that these acts or omissions were outside the wide range of professional competence. Id. at 690, 104 S.Ct. 2052.
Second, the applicant must show that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. With respect to the prejudice prong, the applicant "need not show that counsel's deficient conduct more likely than not altered the outcome in the case." Id. at 693, 104 S.Ct. 2052 ; Nix v. Whiteside , 475 U.S. 157, 175, 106 S.Ct. 988, 89 L.Ed.2d 123 (1986). Instead:
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
Strickland , 466 U.S. at 694, 104 S.Ct. 2052. When the result in question is a guilty verdict, the applicant "must show that there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S.Ct. 2052 ; Perez v. State , 310 S.W.3d 890, 894 (Tex. Crim. App. 2010).
See also Kyles v. Whitley , 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) ("Bagley ’s touchstone of materiality is a "reasonable probability" of a different result, and the adjective is important. The question is not whether the defendant would more likely than not have received a different verdict ... but whether ... he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the [error] "undermines confidence in the outcome of the trial.") (internal citations omitted) (quoting and discussing United States v. Bagley , 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) and reasonable probability in the Brady context).
In this case, the habeas court declined to make any conclusions as to counsel's effectiveness. Instead, the habeas court concluded that, "Had [counsel] been able to hire an expert and ask the Detective different questions, the court does not know if the proceedings would have been different." In declaring that the court does not know whether the result of the proceeding would have been different, the habeas court implied that its confidence in the result was undermined. If the court was confident in the result, it would have said so: "no, the result would not have been different." Implicitly, the habeas court found a reasonable probability that the result would have been different. I agree. V — Deficient Performance and Prejudice Here
Clerk's R. 136 (emphasis added).
Before a criminal defense lawyer can render reasonably effective assistance to his client in or out of the courtroom, he must have a firm command of the facts of the case as well as governing law. Ex parte Welborn , 785 S.W.2d 391, 393 (Tex. Crim. App. 1990) ; Ex parte Ybarra , 629 S. W.2d 943, 946 (Tex. Crim. App. 1982). "It may not be argued that a given course of conduct was within the realm of trial strategy unless and until the trial attorney has conducted the necessary legal and factual investigation which would enable him to make an informed rational decision." Welborn , 785 S.W.2d at 393.
When this case was before us on discretionary review, based on my review of the record at trial, I concluded that counsel failed to adequately challenge Doyle's testimony on cross examination and he failed to retain or consult with an expert in accident reconstruction to assist with his examination of Doyle. As I stated:
Here, the trial court's decision was not an abuse of discretion because the information before the trial court, at the time of the ruling admitting Detective Doyle's opinion testimony, was insufficient to apprise the trial court that Detective Doyle's opinion should have been excluded as inadmissible. Trial counsel failed to ask Doyle the right questions, and trial counsel failed to make the right arguments to show the trial court that Doyle's opinion as to the location of the accident was unreliable.
Rhomer , 569 S.W.3d at 677 (Walker, J. concurring). I concluded on this point:
Plainly stated, counsel did not give the trial court any reason to believe Doyle's opinion was incorrect or unreliable. Counsel did not subject Doyle's opinion to sufficient scrutiny. Had counsel done so, the trial court, in all likelihood, would not have allowed Doyle to provide his opinion as to the cause of the collision.
Id. at 678. The evidence Applicant now presents with his application for habeas relief confirms my earlier belief.
Ruble's affidavit and report, recounted above, illustrate what counsel would have learned regarding the weaknesses and faults of Doyle's opinion had he consulted with an expert. Counsel would have been able to show that Doyle was not qualified to testify as an accident reconstruction expert, and counsel would have been able to discredit Doyle's testimony about the area of impact and cause of the accident—the central points of controversy at trial.
Counsel, in his affidavit, conceded that failing to retain an expert to even consult on this case was not a matter of trial strategy. His strategy was to challenge the cause of the accident, and counsel understood that Doyle's opinion was central to the issue of the accident's cause. But while counsel had the stated goal, he assumed that the trial court would never admit Doyle's testimony because Doyle was not qualified. Counsel did not consult with an expert on how to show Doyle was unqualified, nor did counsel consult with an expert on how to discredit Doyle's testimony in the event Doyle was not disqualified to testify as an expert despite recognizing how important Doyle's testimony would be. As a result, counsel's questions were not adequate to allow the judge to properly rule on the admissibility of Doyle's testimony.
Of course, Doyle did not testify solely as an expert on how and where the accident occurred. Doyle also testified about his initial investigation of the scene as well as his process of creating a diagram indicating the locations of the vehicles, debris, and tire marks. In other words, he was testifying as most law enforcement officers do: as a lay witness. Had counsel obtained the assistance of a consulting expert, the lay witness parts of Doyle's testimony would not have been affected. Accordingly, the jury could still have concluded that Applicant's vehicle left its lane and struck the motorcycle.
But whether or not the jury would nevertheless reach the same verdict is not the standard for measuring Strickland prejudice. The standard under Strickland is a reasonable probability. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. A reasonable probability that the result would have been different is not the same as it being more likely than not that the result would have been different. Id. at 693, 104 S.Ct. 2052. All that is needed is for confidence in the result to be undermined. Id. at 694, 104 S.Ct. 2052. My confidence, certainly, is undermined. Even if it is more likely than not that the jury would have nevertheless found that Applicant veered into the motorcycle's lane and killed the rider based on the bare facts of where the vehicles, debris, and tire marks were located, Doyle unequivocally concluded that Applicant's vehicle veered into the motorcycle's lane, and Doyle was adamant that there was no way that the motorcycle veered into Applicant's lane instead. I am not confident that the jury would have concluded beyond a reasonable doubt that Appellant veered into the motorcycle's lane had counsel asked the right questions and convinced the trial court to exclude Doyle's opinion.
Id. at vol. 4, 64–65, 125, 128; see also id. at vol. 6, 62 (during closing argument, the State emphasized that "There is no evidence to suggest that the motorcycle was on any other lane of the highway except for his, and we know that because of this right here, because of what John Doyle tells you. ") (emphasis added).
Could Doyle's opinion have gotten in, not as an expert opinion, but as a lay witness opinion about the cause the accident? The Rules of Evidence do not forbid lay witness opinions. See Tex. R. Evid. 701. If the State, following the trial court's exclusion of the expert witness dimensions of Doyle's testimony, thereafter offered Doyle's opinion as a lay witness opinion under Rule 701, I imagine that counsel, having consulted with an accident reconstruction expert, would have been well prepared to cross-examine the lay witness opinion in front of the jury. As a result, I surmise that even if Doyle offered a lay opinion to the jury of what happened, there is a reasonable probability of a different result—the jury having before it a doubtful lay witness opinion and the ability to draw conclusions for itself from the basic fact evidence, would not have found Applicant guilty beyond a reasonable doubt. Of course, this adds a layer of speculation on top of the question before us of what could have happened had counsel been able to properly cross-examine Doyle to keep the expert opinion out. But this underscores how fundamental it was to counsel's strategy to consult with an accident reconstruction expert.
Returning to the reality of this case, the State did not offer Doyle as a lay witness offering a lay opinion about what might have happened. Instead, the State leaned heavily on Doyle's opinion as an expert opinion, and how the expert, Doyle, was certain about how and where the collision occurred. This could not be more apparent than the State's closing argument:
Let's talk about who caused this crash. The opinion of John Doyle is not just an opinion. The opinion of John Doyle is an expert opinion based on training and experience for the last 26 years. He's been a police officer for 26 years. And they want you to disregard that and say that, It's just an opinion. He wasn't there.
...
Let's talk about the crash itself. John Doyle came in here and told you that it is, in his opinion, his expert opinion based on his training and experience, that this Defendant -- this Defendant left that bar, and as soon as he turned right onto Nakoma, less than a quarter of a mile from that bar, he straightens out that curve. He fails to negotiate it. He -- I think Nathan said it best, the classic DWI, and when he does it, he drives straight through this curve. When he does it, he drives straight through this curve head-on into Gilbert Chavez.
Rep R. vol. 6, 57–58, Rhomer v. State , 569 S.W.3d 664 (Tex. Crim. App. 2019), No. PD–7.
The State presented not just an opinion by a witness named Doyle, but an opinion with the imprimatur of an expert.
Without this expert opinion, critical to the elemental issue of causation and emphasized by the State, I am not confident in the result of Applicant's trial. The habeas court's confidence was also undermined; although it declined to explicitly say so, it implicitly did when it concluded that "[h]ad [counsel] been able to hire an expert and ask the Detective different questions, the court does not know if the proceedings would have been different." "[T]here is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt." Strickland , 466 U.S. at 695, 104 S.Ct. 2052 ; Perez , 310 S.W.3d at 894. Not only did counsel perform deficiently, counsel's deficient performance prejudiced Applicant.
Clerk's R. 136.
VI — Conclusion
In sum, although counsel recognized that Doyle's opinion was the critical issue in the case, and although counsel intended to challenge Doyle's qualifications to testify as an expert, counsel failed to take the necessary steps to put that strategy into motion. Not only did counsel fail to prepare to challenge Doyle's qualifications, counsel also failed to prepare a challenge to Doyle's opinion itself. Doyle did not conduct even the basics of accident reconstruction, and he provided an unreliable expert opinion that was misleading or potentially even false in a case of "good science done badly." Had counsel properly prepared, the State would not have had evidence—evidence that the State emphasized was "expert" testimony —supporting its theory of how the accident occurred. But for counsel's deficient performance, there is a reasonable probability that the result of the proceedings would have been different. Strickland , 466 U.S. at 694, 104 S.Ct. 2052. Applicant is entitled to relief on Ground I. Because the Court denies relief, I respectfully dissent.
Rep R. vol. 6, 57–58, Rhomer v. State , 569 S.W.3d 664 (Tex. Crim. App. 2019), No. PD–0448–17.
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