TEAM NO. 6

NO. 2015-01

IN THE

Supreme Court of the United States

KENNY BEARSON, Petitioner,

V.

UNITED STATES, Respondent.

On Writ of Certiorari to the United States Court of Appeals for the Thirteenth Circuit

BRIEF FOR RESPONDENT

Counsel for Respondent

i

QUESTIONS PRESENTED

I. Under the Fourth Amendment, did Defendant’s sister effectively

consent to police searching his home? Specifically,

a. Did she have authority to consent when she was living in the home

recovering from cancer treatments and she was allowed to use any

room in the home except for the two she specifically excluded from

the scope of the search?

b. Assuming her authority, does Defendant’s prior denial of consent

made three months earlier and never renewed invalidate her

consent?

II. Does a trial court abuse its discretion by denying a Rule 33(b)(1) motion

for new trial when the newly discovered evidence is a chronologically

attenuated third-party confession by an admittedly drunk declarant

with a criminal background?

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ................................................................. i

TABLE OF CONTENTS ....................................................................... ii

TABLE OF AUTHORITIES ................................................................. iv

STATEMENT OF JURISDICTION ..................................................... viii

STATEMENT OF FACTS .................................................................... 1

SUMMARY OF THE ARGUMENT ..................................................... 7

ARGUMENT .......................................................................................... 10

I. The Search Satisfied the Fourth Amendment Because Caroline Bearson Had Authority to Consent And Did Voluntarily Consent to the Search. ............................................. 10

A. Caroline Bearson Had Authority to Consent to a Search of Defendant’s Home. ............................................ 11

B. Caroline’s Consent to the Search Was Voluntary. ........................................................................... 13

C. Defendant’s Prior Denial to Search is Irrelevant. ............................................................................ 14

II. The Trial Court’s Denial of Defendant’s Rule 33(b)(1) Motion for New Trial was Proper. ................................................ 17

A. The Trial Court Was Well Within its Discretion to Deny Defendant’s Rule 33(b)(1) Motion for New Trial on Evidentiary Grounds. .......................................... 17

1. Leopold Lara’s Confession is Inadmissible Under Fed. Rule Evid. 804(b)(3) Because it is Not Corroborated to Indicate its Trustworthiness. ....................................................... 18

2. Rule 804(b)(3) is Not an Arbitrary Infringement on the Right to Present a Complete Defense. .................................................. 21

iii

B. Alternatively, the Denial of the Motion for New Trial

Was Proper Because the Exclusion of the Confession Was Harmless Error. ......................................................... 23

CONCLUSION ...................................................................................... 25

iv

TABLE OF AUTHORITIES

Constitutional Provisions

U.S CONST. amend. IV .......................................................................... 10

U.S CONST. amend. V ............................................................................ 21

Statutes

28 U.S.C.S. § 1254(1). ........................................................................... vii

28 U.S.C.S. § 2111. ................................................................................ 23

Nev. Rev. Stat. Ann. § 51.345. ...................................................................................... 22

Rules and Regulations

Fed. R. Evid. 804(b)(3) (West 2015). .................................................... 9, 18

Fed. R. Crim. P. 33(b)(1) (West 2015). ................................................. 6, 8

United States Supreme Court Cases

Bumper v. North Carolina, 391 U.S. 543 (1968). ................................................................... 11

California v. Trombetta, 467 U.S. 479 (1984). ................................................................... 21

Chapman v. California,

386 U.S. 18 (1967). ..................................................................... 23

Fernandez v. California, 134 S. Ct. 1126 (2014). ............................................................... 9, 14, 15

Georgia v. Randolph, 547 U.S. 103 (2006). ................................................................... 9, 14, 15

Holmes v. South Carolina,

547 U.S. 319 (2006). ................................................................... 9, 22

v

Illinois v. Rodriguez, 497 U.S. 177 (1990). ................................................................... 12

Montana v. Egelhoff, 518 U.S. 37 (1996). ..................................................................... 22

Queen v. Hepburn, 11 U.S. 290 (1813). ..................................................................... 22, 23

Schneckloth v. Bustamonte,

412 U.S. 218 (1973). .................................................................... 11 Terry v. Ohio,

392 U.S. 1 (1968). ....................................................................... 12

United States v. Matlock, 415 U.S. 164 (1974). ................................................................... passim

United States v. Valenzuela-Bernal, 458 U.S. 858 (1982). ................................................................... 21

Federal Court Cases

United States v. Almeida-Perez, 549 F.3d 1162 (8th Cir. 2008). ................................................... 12

United States v. Alvarez, 584 F.2d 694 (5th Cir. 1978). ..................................................... 19

United States v. Alvarez,

358 F.3d 1194 (9th Cir. 2004). ................................................... 11 United States v. Barnum,

564 F.3d 964 (8th Cir. 2009). ...................................................... 14

United States v. Barone, 114 F.3d 1284 (1st Cir. 1997). ................................................... 9, 19, 20

United States v. Bethea,

598 F.2d 331 (4th Cir. 1979). ..................................................... 12 United States v. Briley,

726 F.2d 1301 (8th Cir. 1984). .................................................... 13

vi

TABLE OF AUTHORITIES United States v. Castellanos,

518 F.3d 965 (8th Cir. 2008). ...................................................... 15 United States v. Curiale,

414 F.2d 744, 746 (2d Cir. 1969). .............................................. 8 United States v. Fleck,

413 F.3d 883, 891 (8th Cir. 2005). .............................................. 8, 13

United States v. Johnson, 495 F. 3d 951 (8th Cir. 2007). ..................................................... 18

United States v. Kelley, 981 F.2d 1464 (5th Cir. 1993). .................................................... 13

United States v. Kelley, 594 F.3d 1010 (8th Cir. 2010). ................................................... 14

United States v. Kim, 105 F.3d 1579 (9th Cir. 1997). ................................................... 11

United States v. Kon Yu–Leung, 910 F.2d 33 (2d Cir. 1990). ........................................................ 14

United States v. Mancias, 350 F.3d 800 (8th Cir. 2003). ...................................................... 13

United States v. Moore, 936 F.2d 1508 (7th Cir. 1991). ................................................... 21

United States v. Santiago,

405 F. Supp. 2d 65 (D. Mass. 2005). .......................................... 12 United States v. Va Lerie,

424 F.3d 694 (8th Cir. 2005). ...................................................... 14

United States v. Wilkerson, 251 F.3d 273 (1st Cir. 2001). ..................................................... 19

vii

TABLE OF AUTHORITIES

State Supreme Court Cases

Coleman v. State, 321 P.3d 901 (Nev. 2014). .......................................................... 10, 22

State v. Perry, 254 P.3d 961 (Idaho 2010). ......................................................... 23

Secondary Sources

Wright & Miller Fed. Prac. & Proc. Crim. §583 4th ed. (West 2014). ............................................................ 17

viii

STATEMENT OF JURISDICTION

This Court has jurisdiction under 28 U.S.C.S §1254(1). The Thirteenth

Circuit Court of Appeals convicted Kenny Bearson for the murders of Billy Smith

and Sally Jones. This petition follows an appeal to reverse the conviction of

Kenny Bearson.

1

STATEMENT OF FACTS

A jury convicted Kenny Bearson in Federal Court of two counts of first-

degree murder. (R. at 7). The jury concluded beyond a reasonable doubt that

Kenny Bearson shot and killed two people with a rifle. (R. at 7).

The relevant events begin on the night of January 1, 2010 where a

New Year’s Eve party was winding down on Lake Swannee in Chaostown.

(R. at 1). Before first light of the New Year, Chaostown police discovered the

bodies of Billy Smith and Sally Jones. (R. at 1). Eight .30 caliber gunshot

wounds littered the bodies when police approached the running car on a dirt

road off highway 101. (R. at 1). Forensic evidence determined that the

murderer shot the victims at close range from the driver side door. (R. at 1).

The Search For Witnesses. Detective Vincent Binger began his

search for witnesses to the murders with any partygoers present that night at

a local hangout called “the dock.” (R. at 2). Jessica Minder was among the

crowd of underage drinkers and illegal drug users that night. (R. at 2).

Detective Binger knew Jessica from her past marijuana possession charges,

and decided to interview her about the events of that night. (R. at 2). The

only useful information Binger received was that the two victims were not at

the party before they were murdered. (R. at 2). Jessica explained that

although she had a few too many drinks that night, she remembered

receiving a ride home from Defendant Kenny Bearson, along with his sister

Sandy Bearson, and friend Robert Clark. (R. at 2). The first round of

2

questioning the other witnesses presented no real leads. (R. at 2). When

Detective Binger approached Defendant, he admitted attending the party

leaving just after midnight with his passengers, and knowing the victims

from high school. (R. at 2). When Binger asked to look around Defendant

scoffed at Binger’s question and responded that he did not want anyone

“nosing around his house and getting into his business.” (R. at 2).

New Information Surfaces. After months went by, Jessica contacted

Detective Binger explaining her previous statements left out most of the

story from that terrible night. Jessica had moved out of Chaostown after the

shootings because Defendant threatened her not to speak of that night to

anyone. (R. at 3). Jessica told Binger that Defendant Kenny Bearson never

actually dropped her off at home the night of the murders. (R. at 3). While

Jessica was riding home with Kenny, he stopped his truck near another

vehicle he had been tailgating on the shoulder of the road and got out. (R. at

3). Once Jessica heard gunshots and saw the lifeless bodies of Sally and Billy

covered in blood in their car, she ran the rest of the way to her parent’s home

and snuck in a back window. (R. at 4).

Robert verifies Jessica’s Story. Robert’s second interview

corroborated with Jessica’s. (R. at 6). Robert recalled he rode in the front seat

of Defendant’s truck that night, and witnessed Defendant tailgating another

car until it stopped on the side of the road. (R. at 6). Defendant proceeded to

park his truck facing the driver’s side of the car, and get out. (R. at 6). Jessica

3

took this opportunity to jump out of the truck in fear of being sick, and Robert

followed to make sure she was all right. (R. at 6). Robert then witnessed a

figure cloaked in darkness retrieve an object from behind the driver’s seat of

Defendant’s car. (R. at 6). Subsequently, Robert heard the popping of

gunshots followed by Sandy’s shrieking, before he ran to the front of the

truck. (R. at 6). Defendant arrived at the same time, jumped into the drivers

seat and sped off from the scene. (R. at 6). Days later Defendant Kenny

Bearson threatened Robert, like he did Jessica, not to speak about that night

with anyone, which led to Robert’s belief that Defendant “killed those kids.”

(R. at 3).

Defendant’s Sister Allows A Search of His Home. After hearing

Jessica’s story, Detective Binger attempted to re-interview Defendant Kenny

Bearson. (R. at 4). Upon arriving at Defendants home, the officers observed

the front door of the residence was open, though the screen door remained

shut. (R. at 4). Officers noticed the smell of burnt marijuana coming from

inside. (R. at 4). When they announced their presence a young woman

appeared. (R. at 4-5). Caroline Bearson, Defendant’s youngest sister,

answered their call explaining that her brother was not home. (R. at 5).

Caroline did not allow the officers to enter the home when they first

requested consent to search. (R. at 5). She spoke with the officers explaining

she had a prescription for medicinal marijuana because she has cancer. (R. at

5). Caroline told Detective Binger she did not have her prescription with her.

4

(R. at 5). Caroline explained how she lived with her brother after all of her

chemotherapy treatments in town until she felt well enough to make the trip

back to her home three hours away. (R. at 5). At this point Detective Binger

informed Caroline that he would obtain a search warrant for the home and be

back. (R. at 5). Caroline then allowed the police to enter. (R. at 5). Caroline

told the officers they could look wherever they wanted, except in Defendant’s

bedroom and bathroom because she was not permitted in those two rooms.

(R. at 5). Once inside, Detective Binger observed a burnt marijuana cigarette

on the coffee table of the living room and continued into the kitchen. (R. at 5).

On the table, Binger found a pawn receipt in plain view indicating that

Defendant pawned several rifles, some capable of shooting .30 caliber bullets,

three weeks after the shooting. (R. at 5).When Detective Binger went to the

pawn shop, they no longer had any of the rifles. (R. at 6).

Defendant filed a motion to suppress the receipt as evidence, arguing

the search was in violation of his fourth amendment rights. The trial court

denied the motion, and the Thirteenth Circuit affirmed.

The Hearsay Confession. After Defendant filed his appeal to the

Thirteenth Circuit, Detective Binger’s attention was directed to a new piece

of evidence. (R. at 7). A Deputy in another department told Binger that he

heard someone had confessed to the murders of Billy Smith and Sally Jones.

(R. at 7). Deputy Laura Finster claimed that Chaostown resident Leopold

Lara, Jr. confessed to the crime. (R. at 7). Detective Binger interviewed

5

Deputy Finster while she was on suspension from the force for public

intoxication, and she recalled her encounter with her Uncle Leopold Lara, Jr.

(R. at 7-8). Months before the trial, Deputy Finster was involved in a high-

speed car chase with Lara Leopold Jr. (R. at 7-8). After many miles, Leopold

finally pulled into a driveway and ran from the car on foot. (R. at 8). Others

in the car told Deputy Finster that Leopold was highly intoxicated and had

attempted to take a gun and shoot at her during the chase. (R. at 8). Deputy

Finster caught up with Leopold on foot, and placed him under arrest, careful

not to handcuff him for fear of his high blood pressure. (R. at 8). Deputy

Finster recalled that Leopold began to sob and fumbled out he was “sorry he

killed those kids”, and “didn’t mean to kill the girl.” (R. at 8). Deputy Finster

did not take Lara Leopold Jr. into custody at that time. (R. at 8). She instead

took him home and gave him a citation for speeding. (R. at 8). She never

followed up with Leopold about the statements because she thought it was

“drunk talk” and didn’t mean anything. (R. at 8). Deputy Finster told

Detective Binger that Lara Leopold Sr., a known marijuana dealer,

sometimes accepts guns for marijuana and his son sometimes works for him.

(R. at 8-9).

Detective Binger then personally interviewed Lara Leopold Jr. who

was in the hospital awaiting a liver transplant. (R. at 9). Leopold denied all of

Deputy Finster’s claims. (R. at 9). He explained to Detective Binger how

frustrated he was with the police harassing him because of his father and the

6

statement he made was “why don’t you take me to jail for killing those kids”

believing the police would try to pin anything on him. (R. at 9). Leopold Lara

Jr. died a week later in the hospital. (R. at 9).

The parties agreed that since Lara Leopold Jr. was unavailable

pursuant to Fed. R. Evid. 804, the evidence of the alleged confession would

need to be introduced by another party. (R. at 9). Defendant Kenny Bearson

did not put on any evidence at the initial trial, nor did he testify. (R. at 7).

The trial court denied Defendant’s motion for new trial under Rule 33(b)(1),

ruling that the evidence was inadmissible hearsay and even if it was

admitted it would not have affected the outcome of Defendant’s trial.

(R. at 9). The Thirteenth Court of Appeals affirmed. (R. at 9).

Procedural History. Kenny Bearson was first charged in Federal

Court with two counts of first-degree murder. (R. at 7). Defendant moved to

suppress the pawn shop receipt as evidence relying on the Fourth

Amendment prohibition against unlawful search and seizure. (R. at 7). The

trial court denied the motion to suppress. (R. at 7). The federal prosecution

relied primarily on the testimony of two witnesses, Jessica Minder and

Robert Clark, as well as the pawn shop receipt that was lawfully discovered

and seized in Defendant’s home. (R. at 7). Defendant did not present any

evidence. (R. at 7). Defendant Kenny Bearson was convicted of the murders of

Billy Smith and Sally Jones following a three-day trial. (R. at 7). Defendant

7

timely appealed his conviction to the U.S. Court of Appeals for the Thirteenth

Circuit based upon his earlier Fourth Amendment challenge. (R. at 7).

During pendency of the appeal, new evidence in the form of a third-

party-confession was discovered. (R. at 7). Defendant moved for a new trial

based upon the discovery of the confession pursuant to Federal Rule of

Criminal Procedure 33(b)(1). (R. at 9). The trial court denied the motion

utilizing its broad discretion, holding that the evidence was inadmissible

hearsay and further that it would not have altered the ultimate verdict had

the confession been admitted. (R. at 9).

The Fourth Amendment challenge and evidentiary ruling were

consolidated on appeal. (R. at 9). The Thirteenth Circuit affirmed the murder

conviction upholding the trial court rulings on both the Fourth Amendment

challenge and the hearsay issue. (R. at 9).

SUMMARY OF THE ARGUMENT

As a last resort, Defendant presents two reasons why his murder

conviction should be vacated, but he cannot prevail on either. The district

court correctly decided the search of Kenny Bearson’s home did not violate

his Fourth Amendment rights, and that the alleged confession by Lara

Leopold Jr. was inadmissible and does not warrant a new trial.

The Fourth Amendment Search. The law is well settled in the area

of third-party-consent to search under the Fourth Amendment. A third-party

must have authority to consent, and must do so voluntarily. United States v.

8

Matlock, 415 U.S. 164 (1974). Defendant’s motion to suppress the evidence

found during the police search was correctly denied because Caroline

Bearson’s consent satisfies the Fourth Amendment. Caroline had a sufficient

relationship to, and control over the areas searched by police. (R. at 5). Even

if Defendant claims Caroline had no authority, her conversation and

explanation she shared with police is sufficient to create apparent authority.

(R. at 5). Thus, Caroline has sufficient authority over the home to consent to

a search.

Consent to a search, if not given voluntarily, can later invalidate a

search. United States v. Curiale, 414 F.2d 744, 746 (2d Cir. 1969). Consent is

voluntary “if it was the product of an essentially free and unconstrained

choice by its maker, rather than the product of duress or coercion, express or

implied.” United States v. Fleck, 413 F.3d 883, 891 (8th Cir. 2005). Caroline’s

consent was just that, evidenced more by her initial denial of entry to the

officers. (R. at 5). Defendant argues Caroline was coerced or mentally

impaired when she consented to the search. The record proves Caroline was

coherent, cooperative, and understanding of the officers and their request for

entry. (R. at 5). Therefore, Caroline’s consent was voluntary.

Defendant argues that because months earlier he refused to consent to

a search, his denial endures. (R. at 2). However, that argument is supported

neither in law or policy. (R. at 2). Moreover, since property law does not

control, and defendant was not physically present when Caroline consented

9

to the search, Defendant has no authority to argue the search was invalid.

See, Fernandez v. California, 134 S. Ct. 1126 (2014); Georgia v. Randolph,

547 U.S. 103 (2006). Accordingly, Defendant’s previous denial of consent is

irrelevant.

Motion for New Trial Based on New Evidence. Federal Rule of

Criminal Procedure 33(b)(1) provides the vehicle for a defendant to re-open a

case when new evidence is discovered post-judgment. Fed. R. Crim. P.

33(b)(1). Defendant’s 33(b)(1) motion was correctly denied because (1) the

District Court primarily concluded that the confession was inadmissible in a

new trial because it failed to satisfy the statement against interest exception;

(2) did not infringe on Defendant’s right to a complete defense; (3) and

alternatively, the evidentiary ruling by the trial court was harmless-error.

Federal Rule of Evidence 804(b)(3) contains the exception to hearsay

applicable in this case. Fed. R. Evid. 804(b)(3) (West 2015). During the review

of Defendant’s motion for new trial, the trial court determined that the newly

acquired evidence would not be admissible under 804(b)(3) because it failed

the corroboration requirement contained therein. (R. at 9).

Defendant complains his constitutional right to present a complete

defense has been violated by the application of this evidentiary rule to his

case. (R. at 10). Courts have determined this right can only be infringed if the

rule is arbitrary or disproportionate to its intended purpose. Holmes v. South

Carolina, 547 U.S. 319 (2006). Courts have consistently determined Rule

10

Rule 804(b)(3) and similar rules, to pass this constitutional hurdle. Coleman

v. State, 321 P.3d 901 (Nev. 2014).

Alternatively, under the Chapman harmless-error analysis, which

applies to constitutional complaints, the evidentiary ruling was harmless to

Defendant. Id. The same factors that led the District Court to exclude the

confession on evidentiary grounds can be used to show that the confession

would have been entirely ineffective as evidence for Defendant at trial.

ARGUMENT

I. The Search Satisfied the Fourth Amendment Because Caroline Bearson Had Authority to Consent And Did Voluntarily Consent to the Search.

At its core, the Fourth Amendment protects individual privacy against

unwarranted governmental intrusion. U.S CONST. amend. IV. But, voluntary

consent is an exception allowing police to constitutionally invade that

privacy. When police arrived at Defendant’s door they announced their

presence. (R. at 4). Caroline Bearson initially refused consent. (R. at 4-5). She

spoke with the officers further, and subsequently permitted their entry.

(R. at 5). Caroline qualified the search only to the rooms she had access and

authority to enter. (R. at 5). The District Court correctly determined the

search was valid for three reasons: (1) Caroline Bearson had authority to

consent; (2) she voluntarily did so; (3) and Defendant’s previous objection is

irrelevant because he was not present when Caroline consented. Thus,

showing the government met its high burden of proving that consent was

11

freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 222

(1973); Bumper v. North Carolina, 391 U.S. 543, 548 (1968). These

constitutional claims present mixed questions of law and fact, and questions

of law are reviewed de novo and underlying fact questions for clear error.

United States v. Kim, 105 F.3d 1579, 1581 (9th Cir. 1997); United States v.

Alvarez, 358 F.3d 1194 (9th Cir. 2004).

A. Caroline Bearson Had Authority to Consent to a Search of Defendant’s Home.

When a consenting party has common authority over areas of the home

for most part, the search of those areas will be considered valid. Matlock, 415

U.S. at 171. “Common authority is not implied from a mere property interest

a consenting third-party has in the property.” Id. at 173 n.7. In contrast,

common authority rests on mutual use of the property by persons generally

having joint access or control for most purposes. Id. For example, in Matlock,

police arrested Defendant on the front lawn of his residence. Id. at 166. Police

then knocked on the door and asked Defendant’s girlfriend for permission to

search the residence including Defendant’s bedroom. Id. This Court

concluded that due to her statements regarding the nature of her relationship

with Defendant and the bedroom they shared, defendant’s girlfriend had

authority to consent to the search the bedroom. Id. at 167. Matlock exists

because “it is reasonable to recognize that any co-inhabitant has the right to

permit inspection, and the others have assumed the risk that one of their co-

habitants might permit the common area to be searched.” Id. at 173 n.7.

12

Caroline shared common authority over areas of Defendant’s home.

(R. at 5). Caroline was permitted to stay at Defendant’s home for as long as

she needed, she was able to come and go as she please, she was a relative of

defendant, and she clearly felt comfortable relaxing and answering the door

of the home. (R. at 5). Cf., U.S. v. Almeida-Perez, 549 F.3d 1162 (8th Cir.

2008) (Defendant’s cousin had been seen going in and out of the home and

was relaxing on the front porch when he admitted police, without knocking,

to search the home); United States v. Bethea, 598 F.2d 331, 334-35 (4th Cir.

1979) (Defendant’s sister had authority to consent to search of a bedroom

they shared). Thus, due to the nature of her relationship with Defendant,

common authority over the rooms she consented to be searched, and her

comfortable and relaxed state in the home, Caroline Bearson had authority to

consent to the search of Defendant’s home.

Even if, Defendants argues Caroline did not in fact, have authority

over the home based on property rights or unknown information, the facts

Caroline represented to police satisfy the apparent authority doctrine. See

e.g., Illinois v. Rodriguez, 497 U.S. 177 (1990); United States v. Santiago, 405

F. Supp. 2d 65, 72 (D. Mass. 2005). The officers reasonably believed from

Caroline’s assertions that she had authority to consent to a search. (R. at 5).

Thus, her statements that she lived in the home for as long as she wanted,

and could go into any room aside from her brother’s bathroom and bedroom,

justify her authority as a matter of law.

13

B. Caroline ’s Consent to the Search Was Voluntary.

If third-party-consent is not given voluntarily, it is ineffective. Whether a

search is voluntary depends upon the totality of the circumstances. United

States v. Briley, 726 F.2d. 1304 (8th Cir. 1984). Consent is voluntary “if it was

the product of an essentially free and unconstrained choice by its maker,

rather than the product of duress or coercion, express or implied.” United

States v. Fleck, 413 F.3d 883, 891 (8th Cir. 2005). Under a totality of the

circumstances analysis, it is reasonable to believe that Caroline Bearson

voluntarily gave consent.

Defendant will make two arguments against voluntariness: that she

was under the influence of marijuana and coerced by police into giving

consent. (R. at 5). Although both of those – intoxication and coercion – can

render consent invalid, neither is present here. See e.g., U.S. v. Mancias, 350

F.3d 800 (2003); United States v. Kelley, 981 F.2d 1464, 1470 (5th Cir. 1993).

“The mere fact that one has taken drugs, does not render consent to search

involuntary; the true question is mental awareness – whether the act of

consent was of one who knew what he was doing and had reasonable

appreciation of the nature and significance of his actions.” United States v.

Castellanos, 518 F.3d 965 (8th Cir. 2008). Surely, medicinal marijuana would

not be legal if the amounts given were capable of rendering a person

completely incompetent. Nothing in the record indicates, and Caroline has

not claimed, that she took more than the prescribed amount. Moreover,

14

Caroline’s mental awareness is evidenced by her prior refusal of consent, her

limiting the scope of the search, and her ability to explain her relationship to

the home when asked by police. (R. at 5).

Second, Caroline was not coerced into giving consent, evidenced by her

initial refusal and later limitation on the scope of consent given. (R. at 5). The

mere presence of officers may create a tense situation but it is far from

sufficient to establish coercion. See e.g., United States v. Kon Yu–Leung, 910

F.2d 33, 41 (2d Cir.1990) (holding a representation to obtain a warrant is not

coercion); United States v. Kelley, 594 F.3d 1010, 1013 (8th Cir. 2010) (holding

the presence of four police officers and several police cars is insufficient);

United States v. Barnum, 564 F.3d 964, 970 (8th Cir. 2009) (holding the

presence of two armed officers is not enough to negate consent without

threats or physical intimidation); United States v. Va Lerie, 424 F.3d 694, 710

(8th Cir. 2005) (same). Caroline understood the nature of the request to

search, she was aware of her rights, and consented of her own free will to

allow police to search. (R. at 5). Moreover, nothing in the record reveals any

overreaching by police. Therefore, Caroline’s consent was given voluntarily.

C. Defendant’s Prior Denial to Search is Irrelevant.

Two recent Fourth Amendment cases have addressed what happens

when an otherwise valid third-party-consent is preceded by a defendant’s

refusal to allow a search. Georgia v. Randolph, 547 U.S. 103 (2006);

Fernandez v. California, 134 S. Ct. 1126 (2014). These two cases distinguish a

15

physically present co-occupant’s refusal from an absent co-occupant’s refusal

much earlier in time. That distinction is dispositive here.

First, “a physically present co-occupant’s stated refusal to permit entry

prevails, rendering the warrantless search unreasonable and invalid as to

him.” Randolph, 547 U.S. at 122. In Randolph, Defendant’s estranged wife

consented to a police search for drugs after Defendant who was also present

unequivocally objected to the search. Id. at 104. Contemporaneous refusal by

one physically present co-tenant is based in “customary social understanding”

rather than property law. Id. at 113. Imagine a co-habitant invites a friend

over and the other co-habitant objects to the friend’s entry at the door of the

home. Id. It is reasonable the friend would have some hesitation faced with a

direct objection to their entry. Id. However, now imagine the co-habitant

objected previously but is not home at the time the friend comes over. Id.

Here, the friend would feel more comfortable entering the home since the co-

habitant is not present. Id. But, this rule is only to be applied to a physically

present co-habitant since refusal made once does not endure forever.

Fernandez, 134 S. Ct. at 1135-36.

Second, seven years later Fernandez asked to extend Randolph to co-

habitants who are lawfully detained or removed by police, and not present to

object to the search. Fernandez, 134 S. Ct. at 1134. In Fernandez, police

observed a violent robbery suspect enter an apartment building and

subsequently heard screams emanating from the building. Id. at 1128. Police

16

ran inside and knocked on the apartment door where a battered young

woman answered. Id. When Defendant came to the door officers arrested

him, and removed him from the scene. Id. Defendant did not object to a

search at the time of his detainment, instead officers later returned to the

apartment, and asked the woman for consent to search, which she agreed to.

Id. There they discovered evidence, tying Defendant to the robbery. Id. This

Court refused to extend Randolph under these facts explaining “an occupant

who is absent due to a lawful detention or arrest stands in the same shoes as

an occupant who is absent for any other reason.” Id. at 1134.

Similarly, the case here turns on the absence of a previously objecting

co-habitant. Defendant did refuse to allow Detective Bearson to search his

home. (R. at 2). But, this refusal happened months before Caroline consented

to the search. (R. at 5). It is now clear from both cases that an objecting co-

habitant must be present for his objection to invalidate consent.

Defendant may that property law gives a co-tenant the right to admit

others over another co-tenant’s superior property right objection as Justice

Scalia hinted to in his concurrence in Fernandez. Fernandez 134 S. Ct. at

1137 (Scalia, J., concurring). However, even Justice Scalia admits that aside

from rumblings among academic circles, there is no authority for that

argument. Id. If this Court chose to accept this premise it would overturn

forty years of precedent that a co-tenant's ability to consent to a search “does

not rest upon the law of property. Matlock 415 U.S. at 173.

17

Since Defendant was not present when Caroline consented to the

search of the home, under this Court’s longstanding precedent, Defendant’s

prior objection is irrelevant as to whether the police search of his residence

was constitutionally permissible.

II. The Trial Court’s Denial of Defendant’s Rule 33(b)(1) Motion for New Trial was Proper.

Defendant filed a motion for new trial under Rule 33(b)(1) when he

discovered a confession, made by Leopold Lara Jr. for the murders of Billy

Smith and Sally Jones, three days after Defendant was convicted of the same

murders. (R at 9).

The trial court properly denied this motion for two alternative reasons.

First, the motion for new trial was properly denied on evidentiary grounds.

Second, alternatively, the determination that the confession was inadmissible

constituted harmless-error.

A. The Trial Court Was Well Within its Discretion to Deny Defendant’s Rule 33(b)(1) Motion for New Trial on Evidentiary Grounds.

Trial courts are empowered with wide discretion to deny motions for

new trial under Rule 33(b)(1). Rule 33 motions for new trial are viewed by

courts as an extraordinary and unusual remedy to be used sparingly. Wright

& Miller Fed. Prac. & Proc. Crim. §583 4th ed. While the justice system has

strong interest in releasing individuals who are wrongfully incarcerated, once

a defendant has had his day in court, as Defendant did, there is reluctance to

upset a valid jury verdict. Id.

18

Appellate courts review a denial of a Rule 33 motion for clear error.

United States v. Johnson, 495 F.3d 951 (8th Cir. 2007). If the confession was

properly determined to be inadmissible, then the trial court’s denial of the

motion must be upheld Id. Accordingly, this Court would have to determine

the trial court clearly abused the broad discretion it is afforded under the law

in order to reverse a decision denying a motion for new trial.

1. Leopold Lara’s Confession is Inadmissible Under Fed. Rule Evid. 804(b)(3) Because it is Not Corroborated to Indicate its Trustworthiness.

The parties agree that Leopold’s confession was hearsay, and that he

was unavailable due to his death. The parties disagree, however, about

whether the confession satisfies the hearsay exception in 804(b)(3).

The statement against interest exception in Fed. Rule Evid. 804(b)(3)

requires that two factors are met: “(1) the statement made is against the

interest of the declarant and; (2) the statement made is supported by

corroborating circumstances, that clearly indicate its trustworthiness, if

offered in a criminal case as one that tends to expose the declarant to

criminal liability”. Fed. R. Evid. 804(b)(3) (West 2015). The government

concedes that the statement was against Leopold’s interest. However,

Defendant fails to prove the second factor required by 804(b)(3), because the

confession of Leopold Lara was not sufficiently corroborated to indicate that

it would be reliable evidence at a new trial. Therefore, the exception in

19

804(b)(3) cannot be used by Defendant to circumvent the rule against

hearsay.

Whether a statement is sufficiently corroborated to indicate its

trustworthiness “can only be answered in light of all the surrounding

circumstances” United States v. Barone, 114 F.3d 1284, 1295 (1st Cir. 1997).

The credibility of evidence is determined by the fact-finder, which in this case

was the trial judge. United States v. Wilkerson, 251 F.3d 273, 278 (1st Cir.

2001). The corroboration inquiry regarding the credibility of witnesses, and

the particular weight to be afforded to any factor or piece of evidence, are for

the fact-finder to determine because of the fact-finder’s special proximity to

the evidence. Id. Appellate courts can never replicate the same perspective

that the fact-finder applies upon later review, which is why such strong

deference is required and such findings are reviewed for an abuse of

discretion. Barone, 114 F.3d at 1296.

Several factors that courts examine to resolve the corroboration

inquiry are: “the general character of the speaker, whether other people

heard the out-of-court statement, whether the statement was made

spontaneously, [and] the timing of the declaration and the relationship

between the speaker and the witness.” (Internal citations removed). United

States v. Alvarez, 584 F.2d 694, 702 n.10 (5th Cir. 1978).

No single factor or circumstance is controlling, but courts tend to place

higher value on certain circumstances corroborating evidence. In Barone, the

20

declarant’s statements were explicitly detailed and made to close relatives in

an entirely non-custodial setting. Barone, 114 F.3d at 1301. The amount of

detail and the setting in which the out of court statement was made were

critical to the Barone court in answering the corroboration inquiry. Id. That

court ultimately determined the evidence would be admissible under

804(b)(3) only because it was explicitly detailed. Id. When detail is lacking,

the corroboration inquiry in 804(b)(3) is rarely satisfied. See e.g., Barone, 114

F.3d at 1301.

In stark contrast to Barone, the circumstances that existed around the

confession made by Leopold Lara tend to show the exact opposite of the

corroboration the exception in 804(b)(3) requires. Leopold is a known

criminal. (R at 8). He made the confession while drunk, and in the process of

being arrested after engaging in a car chase and attempting to shoot at a

police officer. (R at 8). The confession was in no way detailed or coherent.

(R at 8). The arresting officer herself described it as “drunk talk.” (R at 8).

Coincidently, the officer Leopold allegedly made his “confession” to is

currently suspended from the sheriff’s office for her own public intoxication

offense. (R at 7-8). Deputy Finster is the only individual who claims to have

heard the confession, despite Leopold’s friends being in the vehicle with him

prior to the arrest. (R at 8).

Detective Binger’s interview of Leopold was the most persuasive of all

the circumstances surrounding the confession. Leopold denied making the

21

confession, stating that he was “very intoxicated”, he believed that he was

being harassed by the police because of his connections to his father, and that

his actual words were “why don’t you take me to jail for killing those kids”.

(R at 9). In addition, Leopold recanted the confession to Detective Binger in

an interview setting which cuts sharply against corroboration of the earlier

“confession”. United States v. Moore, 936 F.2d 1508, 1516 (7th Cir. 1991).

2. Rule 804(b)(3) is Not an Arbitrary Infringement on the Right to Present a Complete Defense.

Under the Due Process Clause of the Fifth Amendment, criminal

prosecutions must comport with prevailing notions of fundamental fairness.

U.S CONST. amend. V. Courts have long interpreted this standard of fairness

to require that criminal defendants be afforded a meaningful opportunity to

present a complete defense. To safeguard that right, the Court has developed

"what might loosely be called the area of constitutionally guaranteed access

to evidence." United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982).

Taken together, this group of constitutional privileges delivers exculpatory

evidence into the hands of the accused, thereby protecting the innocent from

erroneous conviction and ensuring the integrity of our criminal justice

system. California v. Trombetta, 467 U.S. 479, 485 (1984).

The Constitution prohibits the exclusion of evidence under rules that

serve no legitimate purpose, or that are disproportionate to the ends that

they are asserted to promote. For example, in Holmes, a rule barring

introduction of evidence showing third-party guilt based solely on the judge’s

22

assessment of the strength of the prosecution’s case was held to be arbitrary

to the purpose such rules are designed to serve. Holmes, U.S. at 329. Rule

804(b)(3) as applied in this case, is distinguishable from the rule in Holmes

because it requires the evidence be clearly corroborated by surrounding

circumstances, rather than excluding evidence based on a single factor

subjectively weighed by a judge.

Well-established rules of evidence permit trial judges to exclude

evidence if its probative value is outweighed by certain other factors such as

unfair prejudice, confusion of the issues, or potential to mislead the jury.

Holmes 547 U.S. at 326. Because Fed. Rule Evid. 804(b)(3) is based on

multiple factors, it is not arbitrary or disproportionate to the purpose it is

designed to serve. Coleman v. State, 321 P.3d 901 (Nev. 2014). Rule 804(b)(3)

is based on the credibility of witnesses and reliability of evidence which

courts routinely find to be constitutional. Holmes, U.S. at 326; Coleman, 321

P.3d at 907. (Interpreting Nev. Rev. Stat. Ann. § 51.345 which is

substantially the same as Fed Rule Evid 804(b)(3)). See also, Montana v.

Egelhoff, 518 U.S. 37, 42 (1996) (plurality opinion) (determining such rules

"familiar, and unquestionably constitutional").

The purpose of exceptions to the rule against hearsay is to provide

avenues for reliable, probative evidence to be admitted at trial. Queen v.

Hepburn, 11 U.S. 290 (1813). Chief Justice Marshall wrote: “The danger of

admitting hearsay evidence is sufficient to admonish Courts of justice against

23

lightly yielding to the introduction of fresh exceptions to an old and well

established rule: the value of which is felt and acknowledged by all.” Id. The

exception in Rule 804(b)(3) furthers a clear purpose by limiting its application

to clearly corroborated evidence and applies only to particular factual

circumstances. Accordingly, rule 804(b)(3) is not an arbitrary and

disproportionate rule of evidence in violation of the constitutional right to

complete defense.

B. Alternatively, the Denial of the Motion for New Trial Was Proper Because the Exclusion of the Confession Was Harmless Error.

Defendant complains that his constitutional right to present a

complete defense has been infringed by the trial court’s evidentiary ruling.

(R. at 9). Therefore, because a constitutional right is at issue, Chapman

harmless-error analysis applies. Chapman v. California, 386 U.S. 18, 87

(1967). “Under the Chapman harmless-error analysis, where a constitutional

violation occurs at trial, and is followed by a contemporaneous objection, a

reversal is necessitated, unless the State proves "beyond a reasonable doubt

that the error complained of did not contribute to the verdict obtained.” State

v. Perry 254 P.3d 961 (2010).

Had the confession by Leopold been admitted as evidence at a new

trial, it would not have probably resulted in the acquittal of the defendant for

the same reasons that made it inadmissible under the rules of evidence. The

lack of corroboration for the confession that was determined in the 804(b)(3)

24

inquiry also suggests the fact-finder would give little weight to the confession

at trial. Therefore, even if, the 804(b)(3) determination by the trial court was

improper, that evidentiary ruling would amount to harmless-error beyond a

reasonable doubt.

For the same reasons that the confession was deemed inadmissible, its

credibility at trial would have been negligible. At the defendant’s trial, he

was convicted of murder beyond a reasonable doubt based upon the testimony

of the witnesses and the physical evidence presented. (R. at 7). Although

confessions are often persuasive, the circumstances surrounding the alleged

confession here discredit it. The defendant presented no evidence of any kind

at trial while the prosecution presented two credible witnesses in conjunction

with physical evidence linking the defendant to the murder weapon. (R. at 7).

The exclusion of Leopold Lara Jr.’s hearsay confession was harmless-error in

light of all the surrounding circumstances in which the “confession” was

made.

25

CONCLUSION

We pray this Court affirm the Thirteenth Court of Appeals because

Caroline Bearson validly consented to the search of Defendant’s home and

the motion for new trial was properly denied.