IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. PD-0862-05
MICHAEL SCOTT, Appellant
v.
THE STATE OF TEXAS
ON APPELLANT'S PETITION FOR DISCRETIONARY REVIEW
FROM THE THIRD COURT OF APPEALS
TRAVIS COUNTY
I turn first to the first "confession" - the various admissions of guilt made by appellant to law enforcement during interviews conducted in 1999. What reason did he have to confess falsely? In a case as infamous as the Yogurt Shop Murders, people sometimes come forward and confess falsely to be in the limelight. But appellant did not seek the limelight. He denied involvement in 1991, again denied involvement in 1998, and denied involvement during much of the interviews conducted in 1999. Only after dogged and skillful interrogation were the officers able to slowly draw out the truth.
The question then is whether there is any reason to believe that appellant was coerced into a false confession. Nothing in the record suggests that police officers used any sort of physical coercion. As the interview continued, police questioning did become more aggressive and officers progressively engaged in a number of tactics designed to play upon appellant's guilty conscience. They hooked him up to a polygraph machine. They threatened to take him before a grand jury, where he would expose himself to a perjury prosecution if he lied. They told him that they had talked to all of the other relevant actors and said that Springsteen and Pierce had shifted blame onto appellant. They indicated that "new technology" had shed additional light on the crime. They discussed the fact that the victims would never get to go to graduations, dances, and barbecues and would never get to see boyfriends or get married. And they told appellant that he was a co-conspirator if he did not talk about what he knew and that, because of his involvement, he was obligated by law to tell the truth about the incident. In engaging in these tactics, the police did sometimes mislead appellant, but this type of behavior was designed to elicit a truthful confession by exploiting appellant's own guilty knowledge. (1)
And although the police interrogation was aggressive, appellant was not in custody. The significant length of interrogation, lasting on the first day from 9:10 a.m. to 10:22 p.m., was comparable to what we saw in Dowthitt v. State, (2) but the other factors present in Dowthitt were absent here. In Dowthitt, the officers engaged in fifteen hours of interrogation. (3) They accompanied the defendant on restroom breaks and ignored two requests to see his wife. (4) After twelve hours of interrogation, appellant made a crucial admission that we held was sufficient, given the accompanying circumstances, to result in custody attaching at that point. (5)
In the present case, appellant was not accompanied on restroom breaks and was often left alone on cigarette breaks as well. Officers gave him food and drink, and they permitted him to call his wife upon request. (6) He was allowed to take breaks when he wished, and he was assured more than once during the interview that he was not under arrest and could leave at any time he wanted. Indeed, when asked by a new officer taking over the interrogation whether he was under arrest, appellant replied, "As far as I know, I'm not." Appellant was allowed to go home that evening, and he returned to police headquarters the next day on his own volition. Later on the second day, appellant reaffirmed the voluntariness of his presence at the station:
Q. Let me ask you this. Is anybody hurting you? Any of us hurting you?
A. Not physically.
Q. Have we done anything to you to make you do something you don't want to do?
A. No.
Q. Have we forced you to stay here?
A. No. I'm here of my own free will.
Q. And you know you're free to leave anytime you want?
A. Anytime.
Q. And when you go out to smoke, half the time there's no one with you. You go to the bathroom by yourself. Right?
A. Yeah.
Q. You know you're not under arrest.
A. I'm not.
Q. And we don't want you to feel - I mean, you come and go.
A. I walked up to the front gate and waited on you all. "Come on guys."
So, if appellant believed the police were trying to pressure him into a false confession, he could have just walked out.
The Court faults the police for using leading questions that suggested the answers they wanted appellant to give. But why would leading questions motivate appellant to confess falsely to involvement in such a serious crime? Was he such a mentally weak individual that he would agree to anything suggested, no matter how detrimental such agreement would be to his own self-interest? A review of the interrogation itself refutes that notion, as appellant disagreed with many statements made by the officers. Or can we conclude that appellant was easily led because he lacked the intelligence to understand the true import of the questions? We cannot, because the interrogation shows a reasonably astute individual who understood very well what the police were asking him. Indeed, many of the so-called leading questions required a degree of intelligence sufficient to read between the lines to come up with the correct answer. Or can we say that, by suggesting the "correct" answers, the leading questions corrupted appellant's memory of events? That might be a valid concern if the case turned on some minuscule detail that appellant recalled inaccurately. But a leading question should not so massively corrupt appellant's memory as to make him believe he was involved in a crime that he was not in fact involved in. It is one thing to say that leading questions may have prompted appellant to recall inaccurately details regarding how the victims were restrained or how the fire was set, but it is quite another to say that leading questions would cause him to mistakenly remember being involved in a murder.
Moreover, several of appellant's incriminating statements were volunteered. Early in the interview, in an apparent slip of the tongue, he mentioned that the group possessed firearms, when his original story had been that Pierce possessed the only firearm. Later in the interview, he volunteered that he lied in a previous interview about seeing a jeep pass by with its lights turned off. Even later, after he had acknowledged his presence in the yogurt shop at the time of the murders, he stated, without prompting, that he set the fire. In addition, he stated, without prompting, that he had nightmares regarding the incident. And as the Court acknowledges, appellant, without prompting, quoted one of the victims responding to Pierce's demand for money as follows: "There isn't any more. They've already made their drop." The incriminating significance of that last statement should not be minimized. Every night, the yogurt shop's daily revenues were dropped into a floor safe. No explanation was given for how appellant would know that money would be "dropped" at the yogurt shop other than his having actually heard the statement during the robbery. Appellant also knew that a revolver and a small automatic were used in the robbery. While it may be fair to say that the police questioning was "leading" appellant to the conclusion that two firearms were used, appellant still had to correctly "guess" that only one of them was a revolver and that the automatic was a small firearm.
Also telling was appellant's reaction to the police ruse that Springsteen and Pierce had blamed him. Appellant stated that they were both liars and that Pierce would "do anything to save his own ass." Appellant also commented that he believed Springsteen and Pierce were implicating him in something that they had done. But earlier in the interview (before it became accusatorial), appellant had already placed himself at the mall in the company of Springsteen and Pierce that evening, and had already placed himself at home with Springsteen (his roommate) during the time period in which the murders took place. Pierce's involvement in the murders would tend to be inconsistent - and Springsteen's involvement would be completely inconsistent - with appellant's initial exculpatory version of events.
The second day of the interview showed appellant initially scrambling to deflect the police investigation from his earlier admissions of guilt. Appellant stated that he had "dug" himself "a hole" that he did not "know how to get out of." After having a night to sleep on it, appellant had concocted a new story. He was now sure that he went into the yogurt shop during the robbery, but he claimed that he did so only after hearing gunshots. He volunteered that this new story was "total contradictory" to what he said the day before. This new story soon fell apart during the interrogation.
If the police really had produced a false confession through either coercion or the power of suggestion, then one would expect the story given during the initial stages of the interview - before the interview became accusatorial, when the police were simply trying to elicit appellant's version of the events - to be true. But the story given during the initial stages of the first 1999 interview contradicted what appellant had told officers a year earlier.
In February of 1998, appellant told law enforcement that he was smoking a cigarette outside Northcross Mall after dark. He claimed that he saw a jeep drive out of the yogurt shop parking lot with its lights off. He further stated that he left the mall in Pierce's car, possibly with Springsteen and Welborn, and they drank beer while driving around. Appellant stated that they had seen the commotion at the yogurt shop and drove away in a different direction because none of them wanted to have anything to do with the police. Observing the commotion would place appellant and his friends within the vicinity of the yogurt shop after 11:47 p.m., the time a patrol officer first observed smoke rising from the building. Appellant said that he arrived home at 2:00 a.m.
In 1999, however, appellant claimed that they drove away from the mall between 8:30 to 8:45 p.m. and arrived at the house of one of Pierce's friends at around 9:00 p.m. He claimed that he arrived at his own home between 10:30 and 11:00 p.m., and that he and Springsteen remained there for the night. Contrary to his 1998 statement, this sequence of events would place appellant at home before law enforcement and firefighters responded to the fire at the yogurt shop. What makes his 1999 statement even more suspect is that appellant admitted that arriving home at 10:30 was "unusual" because appellant and his friends "usually stayed out between 2:00 and 3:00 o'clock in the morning." If one believed that appellant's memory of the day's timeline of events was hazy, one would not expect him to describe a timeline differing so significantly from his usual practices.
Of course, appellant's story continued to shift as the 1999 interview progressed. As the Court observes, he contradicted himself on many of the details, giving details that were at times consistent and at other times inconsistent with the forensic evidence. Appellant would often contradict himself within the space of a single breath. He claimed numerous times that he had "a piss-poor memory." Defense counsel characterized appellant's video statements as "an evolving confession" involving a "constantly changing story." Both the court and defense counsel suggest that the shift in appellant's stories was a phenomenon that would enable a rational factfinder to conclude that he really possessed no knowledge of the offense at all.
I disagree. The evidence shows that appellant's "poor memory" was caused by him making stuff up as he went along. He had difficulty remembering what lie he had earlier told. This fact is clearly shown by the contradiction between his 1998 and 1999 exculpatory statements. The later inculpatory statements were simply more of the same. All the while, appellant was constantly trying to minimize his criminal involvement as he struggled to find a story that the police would buy in light of the other evidence he thought they might have. The sheer number of lies and amount of equivocation in this case would leave any appellate court uncertain about many of the details of the offense, including the exact roles played by the various participants. But the fact that appellant was involved in the crime is not left uncertain. To the extent that the details might be important in determining appellant's relative culpability for the purpose of determining punishment, no harm occurred in this case because appellant received a life sentence. With respect to guilt, the lies and the equivocation are simply more evidence tying appellant to the offense.
But the record contains another confession, made by appellant near the time of the crime to someone who was not an agent of law enforcement. Sometime before Sarah Statham was questioned by the police, appellant had been questioned. Amanda, a close friend of appellant's and Sarah's older sister, went over to his house "to see what was going on" when she met Welborn. This surprised her because she did not know appellant and Welborn were friends. She heard appellant tell Welborn "to keep his f---ing mouth shut." She asked appellant why the police had questioned him, and he told her that she did not want to know. After the police questioned Sarah, appellant arrived at the Statham residence and began hurriedly asking her what the police had asked her and whether he was mentioned. Amanda took appellant aside and asked him to tell her what was going on. After appellant mentioned Pierce and Springsteen, Amanda asked him again why the police were talking to him, and he said "that he had done it." When she slapped him and called him a sick bastard, he tried to laugh it off, but his response was so unconvincing that she concluded he had told the truth. She was so upset that she told her mother. Although her mother told her not to tell the police - partly because she supposed that, if they were guilty, the police would focus in on them, and Amanda could step forward then - she did advise Amanda to have nothing further to do with appellant, and Amanda followed that advice.
Chandra Morgan also gave testimony that was consistent with appellant's incriminating statements but inconsistent with his earlier exculpatory stories. Although appellant had initially denied entering the yogurt shop at all that day, Morgan testified that she, appellant, Pierce, Welborn, and another boy entered the shop while it was still open. Morgan further testified that, later, after fire trucks were appearing at the yogurt shop, she was picked up and accompanied the boys to Gullet Elementary. She also testified, consistent with appellant's confessions, that Welborn was not with the other boys at the time she was picked up, but he soon joined them (arriving from the direction of the yogurt shop).
Various circumstances suggest that appellant's life hit a turning point at the time of the murders. As discussed above, Amanda Statham broke off their friendship. Appellant and Springsteen also parted ways around that time. Early in the 1999 interview, appellant pegged Springsteen's stealing his concert tickets as the reason for their falling out. And as the Court observes, in response to a booking question regarding when he had contemplated committing suicide, appellant replied that on December 6, 1991 - the date of the murders - he thought about shooting himself.
Appellant confessed to the police. He confessed to Amanda Statham. His two exculpatory statements to the police conflicted with each other and with the testimony of another witness. All of his statements, both inculpatory and exculpatory, placed him in the company of Pierce, Springsteen, and Welborn on the day of and around the time of the murders, and statements made by appellant to the police and to Amanda Statham indicate that the other boys were involved in or connected to the crime. Appellant knew the money taken in by the yogurt shop was "dropped" and that a revolver and a small automatic were used in the crime. December 6, 1991, was a noteworthy day in appellant's life: he contemplated committing suicide that day, and shortly thereafter, at least two of his close friendships broke down. That appellant tried to mislead the police in his statements and to concede only as much as he thought he could get away with does not create a reasonable doubt about the truthfulness of his admission that he was involved in the murder. I would hold that the error in admitting Springsteen's statement was harmless beyond a reasonable doubt. I respectfully dissent.
Filed: June 7, 2007
Publish
1. "Of the numerous types of police deception, a misrepresentation relating to an accused's
connection to the crime is the least likely to render a confession involuntary. The police conduct
complained of here, concerning the strength of the prosecution's case against appellant, falls into
this category." Green v. State, 934 S.W.2d 92, 100 (Tex. Crim. App. 1996)(citation omitted).
2. 931 S.W.2d 244 (Tex. Crim. App. 1996).
3. Id. at 256.
4. Id.
5. Id. at 256-257.
6. Appellant called his wife twice during the interview.