Team #5!Counsel for Petitioner!

No. 01-2345

In The Supreme Court of the Uni ted States

February Term 2015

KENNY BEARSON!

Defendant-Petitioner,!

v.!

PEOPLE OF THE STATE,!

Plaintiff-Respondent.!

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

_____________________________________

BRIEF OF PETITIONER

_____________________________________

I"""

TABLE OF CONTENTS

TABLE OF AUTHORITIES ......................................................................... III "STATEMENT OF QUESTIONS PRESENTED ............................................... VI "STATEMENT OF JURISDICTION .............................................................. VII "SUMMARY OF ARGUMENT ......................................................................... 1 "STATEMENT OF FACTS ............................................................................... 2 "

Investigation ..................................................................................................................... 2 "

Search of Petitioner’s Home ............................................................................................ 4 "

Trial .................................................................................................................................. 5 "

Post-Conviction Confession ............................................................................................. 5 "

Procedural Posture ........................................................................................................... 6 "ARGUMENT ................................................................................................ 7 "

I. THE WARRANTLESS SEARCH OF PETITIONER’S HOME VIOLATED HIS FOURTH AMENDMENT RIGHTS BECAUSE PETITIONER HAD A REASONABLE EXPECTATION OF PRIVACY IN HIS HOME. ..................... 7

" A. A warrantless search is per se unreasonable. ....................................................... 7

" B. The search and seizure of the receipt was not valid because its incriminating character was not immediately apparent. .......................................................... 8

" C. The officers were unauthorized to approach the stoop of the home because Petitioner maintained a reasonable expectation of privacy in this area. ........... 9

" D. The search of Petitioner’s home was not based on valid consent. ..................... 10

" i. Caroline did not have joint access or control and thus did not have proper third-party authority to consent to the search. ........................................... 10

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II""

ii. Based on the totality of the circumstances, Caroline’s consent was coerced and was involuntary. ................................................................................... 12

"II. MR. BEARSON IS ENTITLED TO A NEW TRIAL BECAUSE THE THIRD PARTY CONFESSION WAS ADMISSIBLE HEARSAY, EXCULPATORY, AND NEWLY DISCOVERED EVIDENCE. ..................................................... 14

" A. Mr. Lara’s confession to murder was a statement against his penal interest. .. 15

" i. Mr. Lara is unavailable as a witness, as he passed away unexpectedly. ...... 15

" ii. Mr. Lara’s confession to murder was contrary to his interest and exposed him to serious criminal liability. .................................................................. 15

" iii. Mr. Lara’s confession was trustworthy because of the detailed nature and the circumstances surrounding the confession. .......................................... 17

" B. Mr. Lara’s confession was an excited utterance because it followed the startling event of being part of a high speed car chase. ................................................... 19

" C. At a minimum, Mr. Lara’s confession falls under the residual exception. ....... 20

" D. The confession was newly discovered evidence that warranted a new trial. .... 21

" E. Petitioner’s due process rights were violated when the government failed to provide exculpatory evidence before trial. ..................................................... 23

"CONCLUSION ............................................................................................ 25

III""

TABLE OF AUTHORITIES

Cases

Arizona v. Gant, 556 U.S. 332 (2009) .................................................................................... 7

Arizona v. Youngblood, 488 U.S. 51 (1988) ........................................................................ 24

Berry v. State, 10 Ga 511 (1851) ........................................................................................... 22

Brady v. Maryland, 373 U.S. 83 (1963) ............................................................................... 23

Bumper v. North Carolina, 391 U.S. 543 (1968) .................................................................. 12

California v. Ciraolo, 476 U.S. 207 (1986) ............................................................................. 9

California v. Trombetta, 467 U.S. 479 (1984) ..................................................................... 24

Casias v. United States, 337 F.2d 354 (10th Cir. 1964) ........................................................ 21

Chambers v. Mississippi, 410 U.S. 284 (1973) ..................................................................... 17

Coolidge v. New Hampshire, 403 U.S. 443 (1971) ........................................................... 8, 10

Florida v. Jardines, 133 S.Ct. 1409 (2013) ....................................................................... 9, 10

Hester v. United States, 265 U.S. 57 (1924) ........................................................................... 9

Illinois v. Rodriguez, 497 U.S. 177 (1990) ............................................................................ 11

Katz v. United States, 389 U.S. 347 (1967) ............................................................................. 7

Kyles v. Whitley, 514 U.S. 419 (1995) ................................................................................... 23

Minnesota v. Dickerson, 508 U.S. 366 (1993) ....................................................................... 8

Minnesota v. Olson, 495 U.S. 91 (1990) ................................................................................. 7

Morgan v. Alspuro, 946 F.2d 1462 (9th Cir. 1991) .............................................................. 14

Oliver v. United States, 466 U.S. 170 (1984) .......................................................................... 9

Schneckloth v. Bustamonte, 412 U.S. 218 (1973) ............................................................. 7, 12

Silverman v. United States, 365 U.S. 505 (1961) ................................................................... 9

IV""

Strickler v. Greene, 527 U.S. 263 (1999) .............................................................................. 23

Taylor v. Kentucky, 436 U.S. 478 (1978) ............................................................................. 14

United States v. Bagley, 473 U.S. 667 (1985) ....................................................................... 23

United States v. Barrett, 539 F.2d 244 (1st Cir. 1976) ......................................................... 16

United States v. Brown, 254 F.3d 454 (3rd Cir. 2001) ........................................................ 19

United States v. Gordils, 982 F.2d 64 (1992) ...................................................................... 22

United States v. Gupta, 747 F.3d 111 (2nd Cir. 2014) ........................................................... 18

United States v. Guthrie, 557 F.3d 243 (6th Cir. 2009) ....................................................... 19

United States v. Hall, 165 F.3d 1095 (7th Cir. 1999) ........................................................... 20

United States v. Hernandez-Rodriguez, 443 F.3d 138 (1st Cir. 2006) ............................... 22

United States v. Kulczyk, 931 F.2d 542 (9th Cir. 1991) ....................................................... 22

United States v. Leach, 427 F.2d 1107 (1st Cir. 1970) .......................................................... 21

United States v. Lenz, 577 F.3d 377 (1st Cir. 2009) ............................................................. 22

United States v. Lumpkin, 192 F.3d 280 (2d Cir. 1999) ....................................................... 17

United States v. Mackey, 117 F.3d 24 (1st Cir. 1997) ............................................................ 18

United States v. Matlock, 415 U.S. 164 (1974) ................................................................. 10, 11

United States v. Mendenhall, 446 U.S. 544 (1980) .............................................................. 12

United States v. Persico, 645 F.3d 85 (2d Cir. 2011) ............................................................ 16

United States v. Rasmussen, 790 F.2d 55 (8th Cir. 1986) ................................................... 17

United States v. Saget, 377 F.3d 223 (2d Cir. 2004) ............................................................ 16

United States v. Salvador, 820 F.2d 558 (2d Cir. 1987) ...................................................... 17

United States v. Smith, 331 U.S. 468 (1947) ......................................................................... 21

United States v. Spencer, 4 F.3d 115 (2nd Cir. 1993) .......................................................... 22

V"""

United States v. Taveras, 380 F.3d 532 (1st Cir. 2004) ....................................................... 19

United States v. Wall, 389 F.3d 457 (5th Cir. 2004) ........................................................... 22

Williamson v. United States, 512 U.S. 594 (1994) .......................................................... 14, 16

Statutes

28 U.S.C. § 1254 .................................................................................................................. V

FED. R. CRIM. P. 33(b) .................................................................................................... 6, 21

FED. R. EVID. 801 ................................................................................................................ 14

FED. R. EVID. 803 .......................................................................................................... 14, 19

FED. R. EVID. 804 ..................................................................................................... 6, 14, 15

FED. R. EVID. 807 .......................................................................................................... 14, 20

Other Authorities

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND (1769) ............................ 9

Constitutional Provisions

U.S. CONST. Amend. IV ........................................................................................................ 7

"

VI""

STATEMENT OF QUESTIONS PRESENTED "

1. Did the search and seizure of Petitioner’s home by Chaostown police violate his

Fourth Amendment fundamental rights?

"

2. Did the trial court deny Petitioner his constitutional right to present a complete

defense in ruling that Mr. Lara confession was inadmissible, and that the result of

the proceedings would not have been different had it been admitted?

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VII""

STATEMENT OF JURISDICTION "

The U.S. Court of Appeals for the Thirteenth Circuit entered judgment in a

consolidated appeal. A petition for certiorari was filed and granted. This Court’s

jurisdiction is based on 28 U.S.C. § 1254(1) (1988).

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SUMMARY OF ARGUMENT

I. The government violated Mr. Bearson’s rights when the Chaostown police

entered his home and collected evidence which was later used to convict him at trial.

Detective Binger unlawfully searched a receipt, which was not immediately

incriminating. Additionally, Mr. Bearson maintained a reasonable expectation of privacy

in the area approaching his stoop and the officers intruded on this area when they

walked up to his home. Finally, Caroline did not have common authority to consent to

the search of the home and her consent was involuntarily obtained through coercion

while she was in a vulnerable physical and mental state. Because the initial approach,

subsequent entrance, and warrantless search was invalid, Mr. Bearson’s Fourth

Amendment rights were violated and his privacy, dishonored. "

II. The government also violated Mr. Bearson’s constitutional right to present a

complete defense when the trial court ruled Mr. Lara’s confession was inadmissible

hearsay and that a new trial was not warranted because the outcome would not have

changed. Mr. Lara’s confession is hearsay, but it is admissible under several exceptions

to the hearsay rule. The circumstances of the confession and other evidence in this case

sufficiently corroborate the confession making it trustworthy. Because the government

failed to disclose the evidence prior to Mr. Bearson’s trial and it would affect the

outcome of his case, a new trial is required. Furthermore, not providing Mr. Bearson

with this evidence prior to his trial resulted in a Brady violation and a denial of his due

process rights. Failing to admit Mr. Lara’s confession in a new trial is a violation of Mr.

Bearson’s constitutional right to present a complete defense. "

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STATEMENT OF FACTS

On January 1, 2010, Chaostown police discovered the bodies of Billy Smith and

Sally Jones in car off of highway 101. R. at 1. Billy was found in the driver’s seat and had

been shot five times with .30 caliber rifle bullets. R. at 1. Sally had been shot three

times, two of which had passed through Billy. R. at 1. Later, Chaostown police was

anonymously tipped off that the shooting was the result of a drug deal gone bad. R. at 1.

The Chaostown community raised money and offered a reward for information

regarding the shootings. R. at 3. Reward posters were hung all over Chaostown. R. at 3. "

Investigation

While there were no eyewitnesses to the shooting, the lead investigator, Detective

Binger, interviewed various Chaostown residents who were partying at “the dock” of

Lake Swanee on New Year’s Eve. R. at 1. The dock is approximately two miles from the

shooting location. R. at 1. Two weeks after the shooting, Detective Binger interviewed

Jessica Minder. R. at 2. Jessica stated that she was with Kenny Bearson (hereinafter

“Petitioner”), Sandy Bearson, and Robert Clark at the dock on the night in question. R.

at 2. While Jessica did not recall seeing the victims at the party, she vaguely

remembered getting a ride home from Petitioner after midnight. R at 2. Jessica could

not remember the details, as she had smoked marijuana and drank vodka and several

beers on that evening. R. at 2. "

Detective Binger then went to Petitioner’s home and spoke with him in his

driveway. R. at 2. Petitioner told Detective Binger that he was at the dock party and had

driven Jessica, Sandy, and Robert home after midnight. R. at 2. Detective Binger asked

to search Petitioner’s house and Petitioner denied consent. R. at 2."

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Detective Binger then spoke to Sandy and Robert. R. at 2. Sandy stated that she

passed out from drinking around midnight and did not recall how she got home. R. at 2.

Robert recalled that he had arrived at the dock party around 9 p.m. and got a ride home

with Petitioner. R. at 3. He also admitted to drinking alcohol and smoking marijuana. R.

at 3. Throughout each of their respective interviews, Jessica, Petitioner, Sandy, and

Robert denied any knowledge of the shootings. R. at 2-3. "

Despite their stated lack of knowledge, Detective Binger sought to re-interview

the party-goers with hopes of gaining more information regarding the shootings. R. at 3.

Detective Binger contacted Robert, who did not change his story about the night of the

shootings. R. at 3. However, Robert stated that a few weeks after the shooting, Petitioner

told him not to talk about the night at the dock. R. at 3. "

Although Jessica moved from Chaostown a few weeks after the shootings, she

saw one of the reward posters while visiting Chaostown. R. at 3. Immediately after

seeing the reward poster, she informed Detective Binger that she had lied in stating that

she had no knowledge of the shootings. R. at 3. Jessica stated that when she left the dock

party on New Year’s Eve, she was in the back seat of Petitioner’s truck. R. at 3. While

Jessica admitted that she was “very intoxicated” and “was going in and out of

consciousness,” she told Detective Binger that Petitioner suddenly stopped the truck at

some arbitrary point of the drive home. R. at 3. Jessica jumped out because she felt sick,

and while vomiting behind the truck, she “thought she heard some popping noises.” R.

at 4. At the same time she hopped out, Robert also got out of the truck. R. at 4. When

Jessica returned, she saw a running car with its lights on in front of Petitioner’s truck

and two slumped occupants with blood on their faces. R. at 4. Jessica stated that she

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heard Sandy screaming something to the effect of “What did you do?” so she took off

running towards her home. R. at 4. Jessica relayed that days after the shooting,

Petitioner had threatened her not to talk about the New Year’s Eve night and this was

why she moved away from Chaostown. R. at 4. "

Later, Detective Binger located and informed Robert what Jessica admitted

before urging him to admit what happened after the dock party. R. at 6. Robert then

relayed a similar story to Jessica’s account. R. at 6-7. Although, Robert admitted that it

was dark and he could not see more than a few feet away. R. at 6. Robert stated that

Petitioner warned him not to talk about that night. R. at 6-7. "

Search of Petitioner’s Home "

After talking with Jessica, Detective Binger and three other officers went to

Petitioner’s home. R. at 4. Upon approaching the front stoop, they saw that the front

door to the home was open, but the screen door was shut. R. at 4. Through the open

screen, they smelled burnt marijuana coming from the home. R. at 4. The officers called

out and Caroline Bearson, Petitioner’s youngest adult sister came to the door. R. at 5.

When Detective Binger asked for consent to enter the home, Caroline denied permission

and told the officers that she was staying at Petitioner’s home after a chemotherapy

treatment for cancer because her home is a three-hour drive from the Chaostown

hospital. R. at 5. Caroline stated that she had a prescription for medicinal marijuana,

which is legal under Chaostown city ordinances, however she did not have it with her. R.

at 5. When Detective Binger threatened to get a search warrant, Caroline gave the

officers permission to enter, however denied consent to enter Petitioner’s room or

bathroom. R. at 5. "

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In the living room, Detective Binger saw a burnt marijuana cigarette on the coffee

table. R. at 5. After continuing into the kitchen, he saw a pawn shop receipt lying on the

kitchen table. R. at 5. The receipt indicated that Petitioner had pawned rifles capable of

shooting .30 caliber bullets three weeks after the shooting. R. at 5. Detective Binger left

and went to the pawn shop, however the rifles were not there. R. at 5-6."

Trial

Petitioner was charged with two counts of first degree murder in federal court. R.

at 7. The trial court denied Petitioner’s motion to suppress the pawn shop receipt

evidence based on a violation of the Fourth Amendment and a three-day trial

commenced. R. at 7. The entirety of the prosecution’s evidence presented at trial

included Jessica and Robert’s testimony, the pawn shop receipt to prove that Petitioner

had access to a rifle similar to that used in the shootings, and evidence that the victims

died from .30 caliber gunshot wounds inflicted at close range. R. at 7. Petitioner did not

testify, nor did he present any evidence, and he was convicted of two counts of first

degree murder. R. at 7. Petitioner appealed to the United States Court of Appeals for the

Thirteenth Circuit, where he argued a violation of the Fourth Amendment based on the

warrantless search of his home. R. at 7. "

Post-Conviction Confession " Just days after Petitioner filed his appeal, the County Sheriff’s Office notified

Detective Binger that Deputy Laura Finster told another deputy that Leopold Lara, Jr.

(hereinafter “Mr. Lara”) had confessed to this crime. R. at 7. Mr. Lara is uncle to both

Deputy Finster and Jessica. R. at 8. Mr. Lara’s father sells marijuana, Mr. Lara

sometimes works for his father, and it is common practice to exchange guns for

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marijuana. R. at 8-9. Deputy Finster told Detective Binger that a few months ago before

the shootings she observed Mr. Lara speeding. R. at 8. When Deputy Finster tried to pull

him over, Mr. Lara engaged her in a high speed chase for several miles. R. at 8.

Eventually, Mr. Lara pulled over and took off on foot. R. at 8. Deputy Finster chased and

caught Mr. Lara and arrested him. R. at 8. The passengers in the truck had said that Mr.

Lara was drunk and that during the chase, he tried to shoot at Deputy Finster, but that

the passengers had taken the gun from him. R. at 8. "

Mr. Lara started to cry as soon as Deputy Finster began to handcuff him. R. at 8.

He said that “he was sorry he killed those kids, that he did not mean to shoot the girl,

and that he used a .30 caliber rifle.” R. at 8. When Mr. Lara asked how Petitioner was

doing, the Deputy told Mr. Lara to stop talking. R. at 8. Deputy Finster did not handcuff

Mr. Lara, but simply cited him for speeding and took him home. R. at 8. She neither had

a detective follow up with Mr. Lara, nor did she write a police report on the incident

because she thought it was “drunk talk.” R. at 8. When Detective Binger interviewed Mr.

Lara in the hospital, he denied all of his statements to Deputy Finster. R. at 9. One week

later, Mr. Lara took a turn for the worse and unexpectedly died. R. at 9. "

Procedural Posture " Petitioner’s appellate attorney filed a new trial motion under FED. R. CRIM. P.

33(b)(1) upon learning about Mr. Lara’s confession. R. at 9. Both parties stipulated that

Mr. Lara was unavailable under FED. R. EVID. 804. R. at 9. The trial court denied the

Rule 33(b)(1) motion, holding that the confession was inadmissible hearsay. R. at 9. The

court further held that even if admitted at trial, the confession would not have affected

the outcome of the trial. R. at 9. Petitioner appealed and the Thirteenth Circuit affirmed

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Petitioner’s conviction, holding that the search of Petitioner’s home was valid, that

Caroline had proper third-party authority to consent to the search, and the pawn shop

receipt was properly seized under plain view. R. at 9. Furthermore, the court held that

the trial court did not err in excluding the confession as inadmissible hearsay because it

lacked indicia of trustworthiness and it would not have affected the outcome of the trial.

R. at 9-10. Petitioner filed a petition with the United States Supreme Court for certiorari

and the petition was granted. R. at 10.

ARGUMENT I. THE WARRANTLESS SEARCH OF PETITIONER’S HOME VIOLATED

HIS FOURTH AMENDMENT RIGHTS BECAUSE PETITIONER HAD A

REASONABLE EXPECTATION OF PRIVACY IN HIS HOME.

A. A warrantless search is per se unreasonable.

The Fourth Amendment of the United States Constitution protects “[t]he right of

the people to be secure in their persons, houses, papers, and effects, against

unreasonable searches and seizures.” U.S. CONST. Amend. IV. Since Katz v. United

States, 389 U.S. 347 (1967), the protection of the Fourth Amendment depends upon

whether the person claiming protection has a reasonable expectation of privacy in that

location. Minnesota v. Olson, 495 U.S. 91, 95 (1990). Under both the Fourth and

Fourteenth Amendments, a search conducted without a warrant is per se

unreasonable. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). There are only a

few specific exceptions to the warrant requirement. Arizona v. Gant, 556 U.S. 332, 338

(2009). "

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In this case, Detective Binger and his fellow officers went to Petitioner’s house

without a warrant. Because there was no warrant, any subsequent search or seizure is

per se unreasonable unless it falls within one of the Supreme Court’s specific exceptions. "

B. The search and seizure of the receipt was not valid because its incriminating

character was not immediately apparent.

Generally, when law enforcement has a valid reason for intruding on the home

and the officer subsequently sees criminal evidence in plain view, the evidence may be

seized without a warrant. See Coolidge v. New Hampshire, 403 U.S. 443 (1971).

However, the plain view doctrine is not without limits. For example, the doctrine cannot

be manipulated to generally explore until something incriminating is found. Id. at 465.

In addition, under the plain view doctrine, the incriminating character of the object

must be immediately apparent in order to seize it without a warrant. Minnesota v.

Dickerson, 508 U.S. 366, 375 (1993). Most importantly, the plain view doctrine does not

justify situations where law enforcement lacks probable cause to believe that a plain

view object is contraband and a further search and seizure of the object is necessary to

determine whether it is incriminating. Id.

Detective Binger observed a receipt on the kitchen table. A receipt, standing

alone, has no incriminating character whatsoever. Additionally, Detective Binger could

not reasonably discover any incriminating character of the receipt at a glance. Even if he

had noticed that it was indeed a pawn shop receipt, at this point in his investigation, he

did not know whether the rifles used in the shootings had been sold at a pawn shop at

all. Therefore, no incriminating character could have been immediately apparent to

Detective Binger at first glance. It was not until he inspected the receipt that he learned

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that the pawned rifles may have been connected to the shootings. Detective Binger was

not justified in this further search because the receipt had no incriminating character

that was immediately apparent. Without this characteristic, Detective Binger’s

subsequent intrusion cannot be justified under the plain view doctrine.

C. The officers were unauthorized to approach the stoop of the home because

Petitioner maintained a reasonable expectation of privacy in this area.

At the core of the Fourth Amendment is the right to be free from unreasonable

governmental intrusion into one’s home. Silverman v. United States, 365 U.S. 505, 511

(1961). However, a resident’s protection does not automatically end at the defined walls

of his home. According to Blackstone in 1769, the “house protects and privileges all its

branches and appurtenants.” Florida v. Jardines, 133 S.Ct. 1409, 1415 (2013) citing 4

WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 223, 225 (1769). A

home’s surrounding open fields versus its “curtilage” must be distinguished for purposes

of Fourth Amendment analysis. Jardines, 133 S.Ct. at 1414. Under the open fields

doctrine, officers may gather information in even privately owned open fields because

open fields do not implicate any Fourth Amendment protection. Hester v. United States,

265 U.S. 57, 59 (1924). However, a home’s curtilage, or the area where intimate

activities associated with the resident’s home and privacy extend, enjoys equivalent

Fourth Amendment protections as the home itself. Oliver v. United States, 466 U.S. 170,

180 (1984); California v. Ciraolo, 476 U.S. 207, 212-13 (1986). This is because the

curtilage is closely tied to the home in both a physical and psychological sense, resulting

in a heightened sense of privacy. Ciraolo, 476 U.S. at 213. It is of particular significance

to this case that the Supreme Court has specifically ruled that the front porch of a home

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constitutes a classic example of curtilage where home life activities extend. Jardines,

133 S.Ct. at 1415. "

Just as a resident enjoys a reasonable expectation of privacy on his front porch,

Petitioner likewise has a reasonable expectation of privacy on the area in front of his

stoop. The officers went to Petitioner’s home in order to re-interview him. They had no

warrant or probable cause to arrest Petitioner based on their gathered information at

this point in their investigation. It was not until they were coming upon the front stoop

of the home did they smell burnt marijuana. Under the Jardines test, Petitioner would

enjoy a right to privacy in this area. Petitioner’s driveway likely led to the stoop of his

home. No facts in the record suggest that Petitioner had anything but a normal stoop

with a reasonable number of stairs, so the stoop was in extremely close proximity to the

front door and the rest of the home. Furthermore, the obvious nature and use of the

driveway leading up to the stoop is to access the entryway of the home via the porch.

Because of the naturally close distance between the driveway, the stoop, and the home,

Petitioner did enjoy a heightened right to privacy in this area. Therefore, the officers’

approach onto Petitioner’s stoop violated his Fourth Amendment rights.

D. The search of Petitioner’s home was not based on valid consent.

i. Caroline did not have joint access or control and thus did not have proper

third-party authority to consent to the search.

One of the “jealously and carefully drawn exceptions,” to the warrant

requirement is a search based on consent. Coolidge, 403 U.S. at 455. In order for

consent to be valid, a person must have common authority over the premises or effects

of the home. United States v. Matlock, 415 U.S. 164, 170 (1974). Common authority is

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determined not by ordinary property interests. Id. at n. 7. Rather, a person has common

authority over property when he mutually uses the property and generally has joint

access or control for most purposes. Id. "

Caroline’s consent was invalid because Caroline’s access to the house does not

constitute common authority over the property. It is not “reasonable to recognize that

[Caroline] has the right to permit the inspection in [her] own right and that [Petitioner

has] assumed the risk that [Caroline] might permit the common area to be searched,”

because there are no facts to support that Caroline had any joint control over the

property. Matlock, 415 U.S. at n. 7, bracketed portion not original. Caroline blatantly

told the officers that Petitioner’s house was not her home, but that she lived three hours

away. Additionally, Caroline stated that she stays with Petitioner only for the time it

takes her to recover. There are no facts in the record to support Caroline’s extended stay,

regular presence, or communal use of the home. As an irregular houseguest, Caroline

did not enjoy access to the home or the various rooms for common everyday purposes.

The sporadic and unpredictable nature of Caroline’s stay at Petitioner’s home means

that she does not maintain the type of joint authority of the property that proper third-

party consent requires. "

If an officer has a reasonable, but mistaken belief that a third-party has common

authority, this apparent authority may be sufficient for valid consent. Illinois v.

Rodriguez, 497 U.S. 177, 186-87 (1990). The officers could not have justifiably relied on

any apparent authority in this instance because there was none. By informing the

officers that her home was three hours away from Petitioner’s home, and that she stays

at Petitioner’s while she is recovering from chemotherapy treatments, Caroline was very

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clear that she was not a joint or even a regular resident at this home. She did not notify

the officers how often or how long she stays at Petitioner’s home. Based on the limited

information that Caroline gave to the officers, they had no way of knowing whether

Caroline was a long-term guest, an overnight guest, or only a guest for a few hours.

Without more information, the officers could not reasonably determine that Caroline

had apparent authority to consent to a search of the house. "

ii. Based on the totality of the circumstances, Caroline’s consent was coerced

and was involuntary.

In order for consent to justify the lawfulness of a warrantless search, the consent

must have been given both freely and voluntarily. Bumper v. North Carolina, 391 U.S.

543, 548 (1968). To test the voluntariness of consent, the court asks whether the consent

was the result of free choice. Schneckloth, 412 U.S. at 226. The analysis, however, does

not turn on a single factor. Id. Rather, the voluntariness of consent is a question of fact

to be determined by assessing the totality of circumstances. Id. at 226-27. Factors to

consider include the consenting person’s characteristics, the details of the interrogation,

any coercive questioning, and the vulnerable subjective state of the consenting person.

Id. at 226-229. The coercion consideration does not turn directly on whether the

consenting person had knowledge of his right to refuse, however this may be a highly

relevant factor in determining the voluntariness of consent. United States v.

Mendenhall, 446 U.S. 544, 558-59 (1980). "

The entirety of the encounter between Caroline and the officers was coercive in

nature. Caroline immediately denied consent to search when the officers first

approached the home. It was not until they started inquiring into what she was doing,

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whether she was smoking marijuana, and whether she had a prescription did she

consent. Based on the officers’ questions, Caroline reasonably felt compelled to consent.

Additionally, Caroline specifically consented immediately after Detective Binger told her

that he would seek to get a search warrant to search the house without notifying her that

she had a right to refuse the search. Detective Binger put Caroline on notice that the

home would be searched regardless of her consent. Most notably, a total of four officers

were standing on the stoop of the home while they were questioning Caroline. A lone

woman, in a foreign home in a distant place would undoubtedly feel the pressure and

weighted authority of the situation. These circumstances created a coercive environment

for Caroline, which ultimately convinced her to consent to the search. "

Particularly important in this case is Caroline’s physical and mental state at the

point in which she consented. Caroline appeared physically groggy when she first

answered the door. She had been undergoing chemotherapy treatments for cancer,

which is a mentally trying and physically straining process. Caroline also admitted that

she was currently using medicinal marijuana, which affected her physical behavior, as

well as her mental clarity. All of these factors support that Caroline was in a particularly

heightened vulnerable state both physically and mentally during the time that the

officers asked for consent to search the home. Not only were the questions posed and

the nature of the contact with Caroline coercive, but Caroline’s particularly vulnerable

mental and physical state during the course of the contact weighs heavily in favor of

coercion. Based on all of these circumstances, the officers created a coercive

environment where Caroline was unable to voluntarily consent to the search."

14""

II. MR. BEARSON IS ENTITLED TO A NEW TRIAL BECAUSE THE

THIRD PARTY CONFESSION WAS ADMISSIBLE HEARSAY,

EXCULPATORY, AND NEWLY DISCOVERED EVIDENCE.

All criminal defendants have a fundamental right to a fair and impartial trial to

defend themselves against the government’s accusations. Taylor v. Kentucky, 436 U.S.

478, 485 (1978). The right to a fair trial includes the presumption of innocence and the

right to present a defense. Morgan v. Alspuro, 946 F.2d 1462, 1464 (9th Cir. 1991).

There are particular protections that encompass these principles, including the rule

against hearsay and the subsequent exceptions."

Hearsay is an out of court statement used to prove the truth of the matter

asserted. FED. R. EVID. 801(c). A hearsay statement refers to an oral statement, written

statement, or nonverbal conduct, if the declarant intended it as an assertion. FED. R.

EVID. 801(a). Hearsay is often inadmissible because of concerns with reliability in the

statement being offered. Williamson v. United States, 512 U.S. 594, 598 (1994). There

are several exceptions to the hearsay rule under Federal Rules of Evidence 803, 804 and

807. These include, a statement against interest, an excited utterance, and the residual

rule. FED. R. EVID. 803(2), 804 (b)(3), 807(a). "

Mr. Lara made an oral statement confessing that he murdered the victims. Mr.

Lara was crying as he told the deputy that he killed them with his .30 caliber rifle and

then apologized for his actions. This confession was made out of court after Mr. Lara

took Deputy Finster on a high-speed car chase through Chaostown and ran away from

her. This statement is being used for the truth of the matter that Mr. Lara actually killed

15""

the victims, not Petitioner. While this is hearsay, it is substantiated by several

exceptions and is trustworthy based on corroborating circumstances."

A. Mr. Lara’s confession to murder was a statement against his penal interest.

A hearsay statement made against a declarant’s proprietary, pecuniary, or penal

interest is admissible in three instances. First, the declarant is unavailable as a witness.

FED. R. EVID. 804(a). Second, a reasonable person in the declarant’s position would have

made the statement only if he believed it was true, because it was either so contrary to

his interest or exposes him to civil or criminal liability. FED. R. EVID. 804(b)(3)(A).

Third, there are corroborating circumstances that indicate the trustworthiness of the

statement. FED. R. EVID. 804(b)(3)(B)."

i. Mr. Lara is unavailable as a witness, as he passed away unexpectedly.

A declarant is considered unavailable as a witness in several instances. One such

instance is when the declarant cannot be present to testify because of death or illness.

FED. R. EVID. 804(a)(4). Mr. Lara is the declarant because he made an oral confession to

Deputy Finster. Mr. Lara is an unavailable witness under the statement against interest

exception because he unexpectedly died. Mr. Lara passed away before the Petitioner

learned about the confession. As a result of this unexpected death, there is no way to

obtain his statement in person before the court. Moreover, the parties in this case

stipulated that Mr. Lara is unavailable. "

ii. Mr. Lara’s confession to murder was contrary to his interest and exposed

him to serious criminal liability.

A statement exposes a person to criminal liability when a reasonable person in

the declarant's position would perceive the statement as detrimental to his own penal

16""

interest. United States v. Saget, 377 F.3d 223, 231 (2d Cir. 2004). The statement itself

need not be incriminating enough for a conviction of any crime. United States v.

Persico, 645 F.3d 85, 102 (2d Cir. 2011). It is not limited to a direct confession of a

crime, but must only be probative of a criminal case. United States v. Barrett, 539 F.2d

244, 252 (1st Cir. 1976). Whether a statement is self-inculpatory or not can only be

determined by examining the surrounding circumstances in its context. Williamson, 512

U.S. at 603-04."

A reasonable person would perceive Mr. Lara’s confession to killing the victims

with his .30 caliber rifle as an exposure to criminal liability. There is no alternative

explanation for the specific details about the murder contained in the exculpatory

statement. Mr. Lara told Deputy Finster what weapon he used, who the victims were,

and even apologized for killing the victims. At a minimum, Mr. Lara gave more than

enough information to expose him to further investigation on a possible criminal

charge. Mr. Lara’s statement was a direct confession to the crime, and is probative of the

fact that he is the correct culprit instead of the Petitioner."

The surrounding circumstances indicate that Mr. Lara’s confession was self-

incriminating. Mr. Lara was crying and intoxicated at the time of the confession and

may or may not have been aware that he was exposing himself to criminal liability.

Whether Mr. Lara himself realized that he was confessing to a crime in front of a police

officer is irrelevant. A reasonable person assessing the surroundings would conclude

that a person would not run away from the police if he did not have something to hide.

Mr. Lara was initially running away from the Deputy when he led her on a high speed

chase and subsequent foot chase. This set the stage for a more hostile encounter as the

17""

Deputy began to arrest him. Before the deputy could take him into custody, Mr. Lara

began crying and blurted out his apology for killing Sally and Billy. Mr. Lara had not

been prompted by the Deputy to say anything. On the contrary, blurting something out

implies that the speaker is saying something without thinking. Mr. Lara was emotional

and sincere in that moment with the Deputy, who also happens to be his niece. In light

of all the circumstances, Mr. Lara’s confession was a statement against interest."

iii. Mr. Lara’s confession was trustworthy because of the detailed nature and

the circumstances surrounding the confession.

If the court finds that the statement is against the declarant's penal interest, the

court must then determine whether there are corroborating circumstances indicating

the declarant's trustworthiness and the truth of the statement. United States v.

Lumpkin, 192 F.3d 280, 287 (2d Cir. 1999). The inference of trustworthiness from the

corroborating circumstances must be strong, not merely allowable. United States v.

Salvador, 820 F.2d 558, 561 (2d Cir. 1987). In Chambers, the trustworthiness of the

confession was based on the fact that the declarant had made the statement

spontaneously to several close acquaintances. Chambers v. Mississippi, 410 U.S. 284,

302 (1973). There are also several other factors that can guide the inquiry for the

sufficiency of corroborating circumstances: whether there are apparent motives by the

declarant to lie; the character of the speaker; and the timing of the declaration. United

States v. Rasmussen, 790 F.2d 55, 56 (8th Cir. 1986)."

In Gupta, there was sufficient corroboration in the existence of incriminating

phone calls made between the co-defendants and subsequent transactions between the

two immediately after those calls. United States v. Gupta, 747 F.3d 111, 128 (2nd Cir.

18""

2014). In Mackey, there were insufficient corroborating circumstances because the

defendant’s excuse that he won a lot of money betting on baseball games was

unsubstantiated by real evidence and by testimony that he was not interested in

baseball. United States v. Mackey, 117 F.3d 24, 29 (1st Cir. 1997). "

In the present case, there was sufficient corroboration of the circumstances due

to a combination of many factors. First, Mr. Lara was being arrested by and confessed to

his niece, who is not a close acquaintance but a family member. Second, he blurted out

the apology and the rest of the confession, indicating the spontaneity of the statement.

Third, his initial attempt to use his gun during the chase with Deputy Finster, suggests

his impulsivity in using a weapon on other people. The circumstances of the confession

at the time it was made sufficiently corroborate the confession for trustworthiness."

Additionally, the .30 caliber rifle that Mr. Lara admitted to using to kill the

victims was the same weapon the police determined through their investigation. Jessica

was the first person to change her original story and testify for the government. Like

Deputy Finster, Jessica is also Mr. Lara’s niece. Furthermore, The police also received

an anonymous tip on the morning they found the bodies in their car. The tip told the

police that it was a result of a drug deal gone wrong. Mr. Lara’s father was a commonly

known marijuana dealer in the community, who exchanged guns for drugs. Sometimes

Mr. Lara took care of the deals for his father. Given the anonymous tip, Mr. Lara’s illegal

drug dealing, and the fact that he stated he did not mean to kill Sally, this could have

been a drug deal gone terribly wrong. Mr. Lara’s confession is sufficiently corroborated

by a substantial amount of evidence."

19""

B. Mr. Lara’s confession was an excited utterance because it followed the

startling event of being part of a high speed car chase.

For a statement to be admitted under the excited utterance exception to the

hearsay rule, three conditions must be met: (1) a startling event must have occurred; (2)

the!declarant must have made the statement while under stress of excitement caused by

event;!(3) and the statement must relate to the startling event. FED. R. EVID. 803(2).

Unlike Rule 804, the availability of the declarant under this exception is irrelevant. FED.

R. EVID. 803. The rationale underlying this exception is that excitement suspends the

declarant's powers of reflection, minimizing the possibility that the statement will be

influenced by self-interest. United States v. Brown, 254 F.3d 454, 458 (3rd Cir. 2001).

Sometimes when there is a substantial delay between the event and the utterance, the

statement may or may not fall under this exception. United States v. Taveras, 380 F.3d

532, 536 (1st Cir. 2004). Although in Guthrie, when an original event did not result in

an excited utterance, a second traumatic event where a police chase resulted served as a

new independent startling event to satisfy the excited utterance exception. United States

v. Guthrie, 557 F.3d 243, 250 (6th Cir. 2009)."

The startling event occurred when Mr. Lara was being followed by Deputy Finster

on the Chaostown highway. Instead of pulling his car over, Mr. Lara sped up and began

a high-speech chase with Deputy Finster. This car chase then turned into a foot race,

until Deputy Finster was able to arrest Mr. Lara. Mr. Lara had high blood pressure

problems, he seemed scared at the time because he started crying, and he was visibly

intoxicated. Mr. Lara made the statement while under the stress of the event by

20""

confessing immediately after she caught up with him while crying, suggesting that he

was under the stress of the moment."

In addition, Mr. Lara may have had the subjective belief that he was being chased

because he murdered the victims. If this was the case, the startling event of being chased

was directly related to subsequent confession. Even if Mr. Lara did not know why he was

being chased, his subsequent confession was still related to an independent startling

event, the high speed chase, which occurred immediately prior to his excited utterance.

Since the original startling event, the murder, happened significantly before the

confession, there was a delay between the startling event and the excited utterance.

However, similar to Guthrie, the car chase serves as an independent startling event.

Because the confession was made at the time the police were after Mr. Lara, the fact that

it related to the murder of the victims does not preclude it from being considered an

excited utterance."

C. At a minimum, Mr. Lara’s confession falls under the residual exception.

Despite the applicability of the Rule 803 and 804 exceptions, the hearsay

statement may also fall under the residual exception. FED. R. EVID. 807(a). A hearsay

statement is not excluded if the statement is trustworthy; if it is offered as evidence of

material fact; if it is more probative than any other evidence; and if admitting the

evidence would serve the interests of justice. FED. R. EVID. 807(a). When a man

confesses to any crime and lacks knowledge about pertinent facts of the case, it is not

considered sufficiently trustworthy. United States v. Hall, 165 F.3d 1095, 1112 (7th Cir.

1999). "

21""

Mr. Lara’s confession was trustworthy because of all the surrounding

circumstances at the time he made the confession and the corroboration of different

details of the murder. Unlike the defendant in Hall, Mr. Lara was able to recall specific

facts about the murder and was not questioned by police as to his involvement. Mr. Lara

made the confession by his own volition when he blurted it out to Deputy Finster. Mr.

Lara knew the exact model of rifle used in the murder and even admitted that he did not

intend to kill the female victim. Forensics determined that the bullet travelled through

Billy’s body and killed Sally as well. These are details that only the real perpetrator of the

crime would know. This is a material fact that changes the outcome of this case because

it could prove Petitioner’s innocence. This is the best piece of evidence that Petitioner

would be able to offer for himself because it creates reasonable doubt as to his guilt.

Admitting this evidence would serve the interests of justice by providing Petitioner the

opportunity to exercise his constitutional right to present the best defense possible. It is

paramount to our justice system that all criminal defendants are given a fair process,

and this piece of evidence would serve this interest directly."

D. The confession was newly discovered evidence that warranted a new trial.

In the interest of justice, the court can vacate any judgment and grant a new trial

based on newly discovered evidence. FED. R. CRIM. P. 33(b)(1); see also United States v.

Smith, 331 U.S. 468, 475 (1947). The remedy of a new trial is sparingly used, as courts

usually exercise this authority in exceptional cases. United States v. Leach, 427 F.2d

1107, 1111 (1st Cir. 1970). However, if discovered after a defendant has been convicted, a

confession by a third party for that crime is grounds for a new trial based on newly

discovered evidence. Casias v. United States, 337 F.2d 354, 356 (10th Cir. 1964). "

22""

Under Berry v. State, 10 Ga 511, 524 (1851), a motion for new trial based on

newly discovered evidence must meet five requirements. United States v. Kulczyk, 931

F.2d 542, 548 (9th Cir. 1991). First, the evidence was discovered after trial. Id. The

evidence must be new and unknown to both the attorney and defendant at the time of

trial. United States v. Lenz, 577 F.3d 377, 382 (1st Cir. 2009). Second, the defense must

show due diligence from before the trial. United States v. Wall, 389 F.3d 457, 469 (5th

Cir. 2004). Third, the evidence is not merely cumulative or impeaching. United States v.

Gordils, 982 F.2d 64, 72 (1992). Fourth, the evidence is material to the issues involved.

Kulczyk, 931 F.2d at 548. Evidence is material when it possesses the capacity to alter the

outcome of the case. United States v. Hernandez-Rodriguez, 443 F.3d 138, 145 (1st Cir.

2006). Fifth, the evidence is likely to produce acquittal. Id. When considering a

defendant's motion for a new trial on grounds of newly discovered evidence, the Court

must weigh whether there is a significant chance that disclosure would have induced

reasonable doubt to prevent the conviction. United States v. Spencer, 4 F.3d 115, 119

(2nd Cir. 1993). "

Mr. Lara’s confession satisfies the five Berry factors for newly discovered

evidence. Petitioner and his counsel had no idea before the trial or during the trial that

Mr. Lara had confessed to the murder. Petitioner’s counsel discovered the new evidence

after he had already passed away and immediately filed the motion for a new trial based

upon this information. Even though Petitioner did not testify or present any evidence,

this is not conclusive that his defense team did not perform their due diligence in

looking for evidence. Deputy Finster did not report this particular piece of evidence, and

as a result, the prosecution did not share this with the defense. There was no other

23""

possible way the Petitioner would have been able to find this information or think that

the police would be withholding something relevant to his case."

Furthermore, the confession is not cumulative of any other evidence or merely

impeaching. Petitioner did not present any evidence, and any evidence asserted by the

government at trial does not render the confession cumulative. The confession is not

merely for impeachment of the government witnesses, but rather is material to the issue

of guilt. This evidence has the potential to change the outcome as it creates doubt as to

who was responsible for the murder and ultimately, the conviction itself. Based on Mr.

Lara’s confession and in the interest of justice, a new trial is necessary."

E. Petitioner’s due process rights were violated when the government failed to

provide exculpatory evidence before trial.

The prosecution has a constitutional duty to provide the accused with exculpatory

evidence. Brady v. Maryland, 373 U.S. 83, 87 (1963). Suppression of evidence favorable

to the accused violates due process where the evidence is material. Id. Evidence is

material if there is a reasonable probability that its suppression deprived a defendant of

a fair trial by undermining the outcome of the trial. United States v. Bagley, 473 U.S.

667, 675 (1985). In Bagley, the case hinged on the testimony of two men, which

deprived the defendant of a fair chance before the trier of fact and the trier of fact was

also deprived of information necessary to a make a fair decision. Id."

The Brady requirement extends to material in possession of police investigators.

Kyles v. Whitley, 514 U.S. 419, 438 (1995). The prosecution has a duty to learn of any

favorable evidence known to the others acting on the government's behalf, including the

police. Strickler v. Greene, 527 U.S. 263, 281 (1999). The duty to preserve evidence by

24""

police officers is limited to evidence that might be expected to play a significant role in

the suspect’s defense. California v. Trombetta, 467 U.S. 479, 488 (1984). If a defendant

can show bad faith on the part of the police, failure to preserve potentially useful

evidence constitutes a denial of due process of law. Arizona v. Youngblood, 488 U.S. 51,

58 (1988)."

Deputy Finster violated Petitioner’s due process rights when she chose not to

write up a police report of her uncle’s confession or send a detective to talk to him about

the incident. As a police officer, Deputy Finster is considered an agent of the

government. As such, the Brady requirement extends to the information that she

learned about the case. Whether Deputy Finster personally thought her uncle was just

“drunk talking” it was still within her obligation as a police officer to report what he

said. The confession is material to this case as it plays a significant role in Petitioner’s

guilt or innocence. This evidence can reverse Petitioner’s wrongful conviction. It is not

within the scope of the police to determine whether or not they will report a confession

to murder based on personal feelings. By making the decision on her personal feelings,

Deputy Finster’s actions constitute bad faith on the part of the police in this case.

Petitioner was denied his due process right to evidence favorable to his defense."

Similar to Bagley, Petitioner was deprived of a fair chance at his trial because his

case hinged on the testimony of two witnesses for the government. While a pawn shop

receipt was admitted against Petitioner, the trier of fact was still deprived of information

that would have created reasonable doubt as to Petitioner’s guilt. As a result of the

government’s violation of their constitutional duty to provide exculpatory evidence,

Petitioner did not have a fair trial and was denied his due process right."

25""

CONCLUSION

The freedom from unlawful invasions into the sanctity of the home and the right

to a fair trial are fundamental rights guaranteed to the American people. When these

rights are violated, the impartiality of the criminal justice system is devastatingly

jeopardized. When the officers approached Petitioner’s stoop in this case, they violated

his reasonable expectation of privacy. His privacy was further violated when a sporadic

third-party guest was coerced into consenting to a search without proper authority to do

so. Finally, the search of the pawn shop receipt was not justified under the plain view

doctrine since the receipt had no readily incriminating character. "

Additionally, because the third party confession was sufficiently corroborated,

the statement is trustworthy and should have been admitted as an exception to the

hearsay rule. This evidence was discovered after Petitioner’s conviction and creates

significant doubt as to his guilt. Therefore, a new trial is necessary. Furthermore, the

government’s failure to make the evidence available prior to trial was a violation of

Petitioner’s due process rights. In the interest of justice and fair process, a new trial is

crucial to ensure the protection of Petitioner’s fundamental rights afforded by the

Constitution of the United States of America. Based on the aforementioned arguments,

we respectfully request that this court reverse the judgment. "

"Dated: February 27, 2015 Respectfully submitted, "

Team #5,"Counsel for Petitioner"