Crim Practice 3 Flashcards
On January 2, 2009, someone broke into Aaron’s home in Houston, Texas, and stole Aaron’s big screen TV. When Aaron discovered the crime, he phoned the Houston Police Department and reported the crime to Detective Don. Based on his investigation, Detective Don had probably cause to believe that Ike had committed the crim. Detective Don then hastily obtained a warrant authorizing the search of Ike’s apartment and the arrest of Ike. When Detective Don went to Ike’s apartment, knocked on the front door, and announced that he had a warrant to search the apartment and arrest Ike, Ike yelled: “Go away, I ain’t opening the door.” Detective Don broke down the door, arrested Ike, and found Aaron’s big screen TV in Ike’s apartment.
Ike was charged with the felony of burglary of a habitation, and the Court has appointed you to represent him. You interview Ike, and he sears that he is innocent and that his roommate, George , must have committed the crime. Ike also informs you that George has a prior felony conviction for burglary of a habitation for which he presently is on probation.
Questions to follow:
- Was Det. Don required by law to obtain one warrant authorizing the search of Ike’s apartment and a separate warrant authorizing the arrest of Ike? Explain fully.
Upon a finding of probably cause, a neutral and detached magistrate can issue a warrant that orders both search and arrest, so Don was not required to obtain two separate warrants. Thus, Don already had a warrant authorizing both the search of Ike’s apartment and Ike’s arrest.
- Did Det. Don have the authority to break down Ike’s door in order to enter the apartment? Explain fully.
All reasonable means may be used to effect an arrest, but no greater force can be used than is necessary to secure the arrest and detention of the accused. The officer can break down the door of any house to make an arrest if he is first refused admittance after giving notice of his authority and purpose, so Det. Don did have the authority to break down the door.
- What is a writ of habeas corpus? To whom is it directed? By whom may it be granted? Explain fully.
A writ of habeas corpus is the remedy to be issued by any person who is held under restraint, directed to the party having the D in custody, and commanding that party to produce the person in custody and show why he is held under restraint. it may be issued by a court of competent jurisdiction, which is the district court in felony cases and the county court in misdemeanor cases.
- What courts have jurisdiction to conduct a trial of Ike for burglary of a habitation, and what courts have jurisdiction to conduct a trial of Ike for criminal trespass? Explain fully.
Ike can be prosecuted for burglary in the criminal district court, which has original jurisdiction over all felonies. Ike can be prosecuted for criminal trespass in a county court, which has original jurisdiction of all misdemeanors for which exclusive original jurisdiction is not given to the justice court and when the fine exceeds $500.
- Who selects the people who will serve on the grand jury? Explain fully.
In Texas, the grand jury is selected either by the “key man system,” whereby commissioners selected by the district judge compile a list of people from which the judge chooses, or by the district judge selecting jurors directly from a list of petit jurors randomly selected from voter and driver’s license registrations (the “jury wheel”).
- The grand jury indicts Ike for the felony of burglary of habitation. On January 23, 2009, the Court notifies you that it has set a pretrial hearing for February 16, 2009. You decide to file a motion for discovery. By what date should you file your motion for discovery? What consequence, if any, is there if you do not file your motion for discovery by that date? Explain fully.
When a criminal case is set for a pretrial hearing, any preliminary matters not raised or filed by the D 7 days before the hearing (if the D has been given at least 10 days’ notice of the hearing) will not be permitted except by permission of the court. Here, Ike has been given at least 10 days’ notice of the hearing, so the motion for discovery must be filed by February 9 (7 days before the hearing), or any issues I want to raise about discovery will be waived.
- You timely file your motion for discovery. Prosecutor has a report in his case file stating that Ike’s roommate, George, confessed to Det. Don that he alone stole Aaron’s big screen TV and that Ike had no knowledge of an took no part in the crime. Is Prosecutor required to disclose to you the contents of this report? Does your answer depend on whether your discovery motion requested disclosure of any reports in Prosecutor’s possession? Explain fully.
Yes, Prosecutor is required to disclose the contents of the report because the State has an affirmative duty to provide the D with evidence favorable to him, including any evidence that would negate guilt or diminish culpability or punishment. Here, Prosecutor must disclose the statement to me, regardless of what I have requested, because it is evidence that would negate D’s guilt or diminish his culpability.
- Prosecutor files a motion requesting that you disclose the names and addresses of all lay and expert witnesses who will testify for the defense at trial. Does the Code of Criminal Procedure provide any basis for Prosecutor’s request? Explain fully.
On motion of a party, the court may order one or more of the other parties to disclose the names and address of the expert witnesses the other party may use at trial, but the court does not have the discretion to order a D to provide to the State a list of his lay witnesses. Here, the Court should grant the State’s motion as to the expert witnesses D intends to call at trial and deny it as to the lay witnesses that D intends to call at trial.
- As part of the discovery process, Prosecutor gives you a copy of the search and arrest warrant obtained by Det. Don. The only description of the appearance, location, and address of Ike’s apartment that is contained in the warrant is the following: “The apartment is located in a white building in a residential neighborhood on a street on the west side of Houston, Texas.” Is this description of Ike’s apartment legally sufficient? Assuming that description is not sufficient, what procedural step can you take to challenge the warrant, and what relief should you request? Explain fully.
I should file motion to suppress the evidence gather during the search because a valid search warrant must describe with particularity the place to be searched or objects of the search, and the description of Ike’s apartment is not legally sufficient. I should request that, pursuant to the exclusionary rule, all evidence seized as a result of the unlawful search be suppressed and excluded from D’s trial as tainted evidence.
- Ike tells you that he is considering pleading guilty to the indictment, and asks you what will occur at the guilty plea proceeding. List three admonitions that the Court must give Ike before accepting his felony plea of guilty.
Prior to accepting a plea of guilty, the court must admonish the D of the following: (i) the range of the punishment attached to the offense, (ii) that a plea agreement is a recommendation for a penalty by the prosecution, and the court is not bound by any plea agreement, (iii) that deportation is possible if the D is not a U.S. citizen, and (iv) that if the punishment assessed does not exceed the punishment recommended by the prosecutor and agreed to by the D and his attorney, the trial court must give its permission to the D before he may prosecute an appeal on any matter in the case except for those matters raised by written motions filed prior to trial.
[Any of the three will suffice.]
- Ike decides that he wants a jury trial, and he asks you if he will be eligible for probation if he is convicted by the jury. List three prerequisites for Ike to be eligible for a sentence of probation.
In order to be eligible for a sentence of probation, Ike must file a sworn application for probation, stating that he has never before been convicted of a felony; if he elects jury sentencing, the application must be filed prior to the beginning of trial.
- During jury selection, Prospective Juror No. 8 makes the following statements in response to your question about the presumption of innocence: “Of course I believe D Ike is guilty, and nothing you say will change my mind about it. Why else would a grand jury indict him?” Do these statements provide you with any basis to challenge Prospective Juror No. 8? If so, what is the legal basis of your challenge, and what kind of challenge should you make? Explain fully.
A challenge for cause as to Juror No. 8 would be appropriate because a juror is unfit to serve if he has bias for or against one party. Here, in order to establish a challenge for cause as to Juror No. 8, I should argue that Juror No. 8’s statements reveal that he is incapable of serving on the jury or unfit to serve on the jury because he is biased against Ike.
- After the jury is selected, Prosecutor makes an opening statement. When you tell the Court that you will make your opening statement after the State has presented its case in chief, the Court tells you that you must make your opening statement now or waive it. Is the Court correct? Explain fully.
A D may make his opening statement at the beginning of the trial or he may reserve this right and make his opening statement following the close of the State’s case-in-chief. Therefore, the Court’s ruling is incorrect.
- As Prosecutor’s first witness, Det. Don testifies about his investigation of Ike. When you begin your cross-examination, you move the Court to order Prosecutor to produce any transcript of Det. Don’s grand jury testimony about his investigation of Ike. Prosecutor responds that he has the transcript, but will not produce it because grand jury proceedings are secret. How should the Court rule on your motion for production of the transcript? Explain fully.
Under the Gaskin rule, after a witness other that the D has testified on direct examination, the party not calling the witness will, on motion, be given any statement of the witness relating to the witness’s testimony own the possession of the other party. Here, I can request the production for Det. Don’s grand jury testimony under the Gaskin rule, and the court should grant my motion for production.
