Pitonyak's lawyers argue for new trial
They say evidence obtained after search, including his victim's mutilated body, was illegally obtained.

By Steven Kreytak
AMERICAN-STATESMAN STAFF

Thursday, January 24, 2008

A lawyer for convicted killer Colton Pitonyak argued to an appeals court panel Wednesday that because of an illegal search, Pitonyak should get a new trial, one in which pictures of Jennifer Cave's dismembered body and other evidence from his West Campus apartment are kept from the jury.

"When there is a tragedy like this, sometimes there's a tendency to bend the law to justify the result," Terrence Kirk told a three-judge panel of the 3rd Court of Appeals in Austin. Kirk argued that the evidence should have been suppressed because it came after Cave's family members illegally entered Pitonyak's apartment while searching for her Aug. 17, 2005.


The argument was made unsuccessfully once before, prior to Pitonyak's trial a year ago in which he was sentenced to 55 years for killing Cave, 21. Pitonyak fled to Mexico aided by then-fellow University of Texas student Laura Ashley Hall, who is serving five years in the case after being convicted of evidence tampering and hindering apprehension.

State District Judge Wilford Flowers ruled that Jim Sedwick, Cave's mother's fianc�, entered the apartment in an emergency situation, making it legal. At the time, Sedwick and Cave's mother, Sharon Cave, knew that Jennifer Cave's car was at the apartment, that nobody was answering the door and that Pitonyak was the last person seen with Cave.

Justice David Puryear asked whether that information was enough to form "an objectively reasonable belief in the mind of the mother" that something was wrong, the standard that prosecutor Bryan Case says should be applied to whether the evidence they found was admissible.

Kirk answered "no." He later argued that because Cave's family had no indication that she might be a victim of violence, their entry was not justified.

Sharon Cave and Sedwick said they were comfortable with Sedwick's actions that day. "We had too many indications that Jennifer was in there," Cave said.

It is not known when the panel will rule; Kirk said they have taken from six months to a year to rule in similar cases.

Does Miles make this a no-brainer?

The current state of caselaw under 38.23, that is.

"(a) No evidence obtained by an officer or other person in violation of ..."

That does not seem very difficult to interpret. I know the caselaw has developed differently, but that doesn't make it right. I've always thought this issue was a good test for those who decry "judicial activism" and "legislating from the bench" when the result goes against them, but sit by silently when it favors them.

The implication of a plain reading of 38.23 leads to horrible results and bad public policy, IMO. But isn't the solution to change the law through the legislature rather than the courts? Or is this all to be filed under "the ends justify the means"?

Stated another way: Since when does "fairness" govern simple statutory construction?

The statute says in violation of constitution or laws....but a citizen doesn't violate the constitution, only governments. So we're saying that this mom was breaking a law by going into the apartment. What law did she supposedly break? Would any prosecutor bring this as a criminal trespass case--and that makes me think what is the BOP for the actions in the statute to make the evidence suppressible ? Probable cause of committing a crime? Allegation of committing a crime? BRD?

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Originally posted by Shannon Edmonds:

Stated another way: Since when does "fairness" govern simple statutory construction?

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Is "unfair" synonymous with "absurd results"?

Nope.

By my post, I did not intent to suggest that 38.23 should be re-read to somehow change the meaning of "other persons." That day has long since come and gone. What I meant was, does a case like the Laura Hall case make us stop and think whether the law should be changed? Someone, I suppose, once made the policy decision that it would be better in general for society if citizens were held to the same standard as trained police officers. Time, I believe, has shown us that the decision was not fair to citizens, particularly the victims of crime when an investigation is initiated by a citizen. After all, what real deterrence occurs by threatening to suppress evidence discovered by a citizen rather than an officer?

When we look at other topics, such as the death penalty, one hears a lot about how we should be moving to get into sync with some world view. Well, in this case, Texas is nearly alone in suggesting that citizens should be held to a constitutional standard when it comes to search and seizure.

We know that change in the Leg only comes from bad cases. If the Laura Hall case (and the related murder case) is reversed, this might well be the Waterloo for 38.23 applying to citizens.

Maybe an argument can be made that by stating "other person" in the statute the legislature meant other people in a law enforcement role. Otherwise, the legislature might have more simply replaced by "an officer or other person" with "anyone." Off the cuff like this, though, I rarely find any real support for such ideas. And, we all know that legislative drafting is often very clumsy.

JAS

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Originally posted by JohnR:
Nope.

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Just checking.

John S:
Interesting discussion of history of 38.23 in Miles (10/17/07)

The CCA has worked very hard over the years to avoid suppressing the use of an actual human dead body as evidence of a crime. Something seems really inherently wrong with denying that body the only dignity remaining: to serve as evidence of the existence of that human being and the unlawful death. Perhaps it is time to just recognize that as an exception to the exclusionary rule.

That's my point, I think. Art. 38.23 was directed at vigilante types, i.e., something more than regular citizens. Quickly re-reading it, I don't believe Miles was dispositive on my thought, but maybe the distinction between law enforcement and vigilante types is too difficult to define with any degree of clarity.

JAS

Another exception could be made if the searcher was the victim's mother or father. What public policy is upheld by telling a parent that their worry was not justified, when they found their child's dead, mutilated body?

We had a case in Williamson County several years ago. Sister becomes worried when woman doesn't drop off child on way to work. Goes to apartment. Sees sister's car in parking lot. Gets police over, who break in door.

Boyfriend had stabbed sister numerous times but, amazingly she had not yet bled to death. Unfortunately, a child had been stabbed to death.

Any further delay would have resulted in the death of the sister. Of course, on appeal, defendant argued that the search was illegal.

Carlos Granados was executed last year.

quote:

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Originally posted by JB:
We know that change in the Leg only comes from bad cases. If the Laura Hall case (and the related murder case) is reversed, this might well be the Waterloo for 38.23 applying to citizens.

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You have hit the proverbial nail on the head, JB.

First, that wonderful history of 38.23 listed in Miles shows that bad facts really do make bad law, whether that law is made in the courtroom or the capitol. The fact that we still have in our laws this vestige from the temperance movement's vigilante activities would be funny if it didn't have such a harmful potential.

However, the reason 38.23 has NOT been changed or repealed is that well-meaning judges have read into it exceptions that do not exist on its face. That saves an individual case in the short term, but it also ensures that the original bad law will NOT be changed, because those who oppose change can point to those rulings as proof that there is no problem. Hello, Catch-22.

The reversal of a case like Pitonyak (the murder mentioned above) is the only way to convince the Legislature to bring 38.23 into line with the rest of the nation's exclusionary jurisprudence. But who wants to be the volunteer to have their murder case tanked in order to change the law? Can I have a volunteer? I didn't think so. Thus, prosecutors fight to convince judges not to rule, in their particular cases, that the emperor has no clothes. That's not a criticism, it's just reality. And it's why we are where we are on this issue right now, IMO.

If the purpose of the exclusionary rule is to encourage police to follow the rules, that purpose is not served when it is extended to citizens. In situations where the family of a missing person are trying to find her, or when someone discovers child porn or a sex assault victim, it seems clear to me that we shouldn't be discussing whether the finder violated the law.

We can handle vigilante groups another way. For example, they could still be prosecuted for criminal trespass, burglary of a habitation, or whatever, if that were appropriate in the situation.

It's been awhile since I read the facts of this case, but as I remember it, by the time the parents broke in after finding their daughter's car at the apartment building, Pitonyak and his friend were already fleeing to Mexico. Could that be considered abandonment of the premises? Clearly, he wasn't planning on returning to it. If it was abandoned, does he have a reasonable claim to a right of privacy in the apartment?

Janette A

The Pitonyak Case: When is a private-property search justifiable?

BY JORDAN SMITH

Because criminal evidence was illegally obtained by the family of murder victim Jennifer Cave, Colton Pitonyak's conviction should be tossed out � along with the tainted evidence � and the 24-year-old former University of Texas student should receive a new trial, lawyers for Pitonyak argued Jan. 23, before a three-judge panel of Texas' 3rd Court of Appeals. If the court fails to reverse the error, attorneys Terrence Kirk and Joe Turner opined, the decision would effectively endorse the idea that any search of private property can be justified by the evidence it yields, contrary to constitutional protection.

According to Kirk, the family of 21-year-old Cave broke the law Aug. 18, 2005, by entering Pitonyak's apartment without probable cause, even after Austin Police Department officers advised the family that police lacked sufficient evidence to enter the residence. Inside the apartment, Cave's mother, Sharon, and Sharon's fianc�, Jim Sedwick, found Cave's lifeless and partially dismembered body in Pitonyak's bathtub.

Testifying during his January 2007 trial, Pitonyak admitted that he must have shot Cave but said that he didn't remember doing so because he'd been intoxicated for several days straight on booze and pills. He said that Cave was his "best friend" and that he had no reason to hurt her; he couldn't explain why her corpse had been mutilated (she'd been stabbed repeatedly, her head and hands crudely hacked from her body), but he nonetheless laid the blame for the desecration on his former friend Laura Hall. Ultimately, Pitonyak was convicted of murder and sentenced to 55 years in prison. (Hall was tried and convicted last summer of hindering Pitonyak's apprehension by helping him flee to Mexico and of tampering with evidence in connection with Cave's dismemberment. She was sentenced to five years in prison.)

In a pretrial hearing, Pitonyak's trial attorneys, Roy Minton and Sam Bassett, had argued that Cave's family had entered his apartment illegally, thus rendering the evidence inadmissible. Travis Co. District Judge Wilford Flowers disagreed, ruling the Cave family had enough evidence to suggest their daughter was in danger: She'd failed to show up for work at a new job that she was excited about, she'd last been seen with Pitonyak on Sixth Street the night before she disappeared, and her car was found parked near Pitonyak's West Campus apartment. But according to Kirk, Flowers' ruling was just wrong: If the police did not have enough evidence to enter the apartment or to suggest that Cave might be inside and in imminent danger, neither did her parents. At issue is the "emergency doctrine," a legal proposition that can be applied when a reasonably prudent person is confronted with a set of exigent circumstances � such as when another person's life is in imminent danger � and is excused for taking action that would otherwise be illegal. In this case, Kirk and Turner argue, Cave's family did not have objective evidence that their daughter was in danger, meaning their inspection of Pitonyak's apartment was, in essence, a warrantless search without cause. There was no "explicit violence or suggestion of violence" evident to Sharon Cave before she and Sedwick entered Pitonyak's apartment, the lawyers say. All they had was suspicion, and Sharon Cave's intuition, that something was wrong. Sharon Cave may have been justifiably "terrified" about the fate of her daughter, but that was not enough to force entry into the apartment, Kirk argued. If that was all that was necessary under the law, then "any time you have a missing persons case, you can break into a house just because you're worried � just because [the missing person] 'doesn't usually do this,'" Kirk told Justices Jan Patterson, Diane Hen son, and David Puryear. "What if [Cave had] just run off? There is no indication of violence."

But Puryear and Patter son appear ed skeptical about the need to show objective evidence of violence in order to legally justify the search. Indeed, Patterson asked why Sharon Cave's "intuition" wasn't enough to justify her and Sedwick's actions. If the court were to rule in Pitonyak's favor, evidence collected as a result of the family's search � including a hacksaw found on Cave's body, a machete found in Pitonyak's dishwasher, and various photographs of Cave's body, for example � might be difficult to submit as evidence, unless prosecutors could convince Hall to testify about what exactly occurred inside Piton yak's apartment that night. To date, Hall has declined to testify in court.

After the Wednesday afternoon hearing, Turner told reporters that the appeals court would be setting a "very dangerous precedent" if it concludes the search of Pitonyak's apartment was legal: allowing private citizens "to make up their minds about what is an emergency and what isn't" and generally opening the door to court-sanctioned vigilante justice. Such hunches are best left to the police to handle, he said, because they are trained to know when, and under what circumstances, a search can be undertaken. "The natural tendency is to say, 'Well, that worked out well,'" Turner added. "But you cannot justify an illegal search by what is found."

"We can handle vigilante groups another way. For example, they could still be prosecuted for criminal trespass, burglary of a habitation, or whatever, if that were appropriate in the situation."

Part of the problem, however, is that often prosecutors simply refuse to "handle" vigilantes, particularly if they are popular. It is sort of like the exclusionary rule itself, in *theory* there is an alternative (simply allow the injured party to sue in civil court for damages). In reality, without it there would probably be no end to blatantly illegal conduct.

I'd bet dollars to donuts that the court will find that under these circumstances the entry wasn't a crime (i.e. affirm the trial court's ruling).

How about off-duty officers?

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Originally posted by sjf:
Part of the problem, however, is that often prosecutors simply refuse to "handle" vigilantes, particularly if they are popular.

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And you know this from your extensive experience as what?

Vigilantes are easy to take care of. A visit from local law enforcement usually takes care of them. The real problem is "helpful" individuals and corporations and entities with schizophrenic ideas about lawsuit avoidance and security. Crazy internal "investigations" by churches and corporations really mess things up.

Worried family members are much less of a problem. If they were genuinely fearful their baby girl is tied up or dead in some guy's apartment we can work with that. This probably happens more than you think, but folks usually end up finding their child is not dead and not a baby any more. The tragedy here was that their fear was justified.

[This message was edited by JohnR on 02-08-08 at .]