In a capital case issued today, we learn about A.P.:
In his first point of error, appellant complains that the trial court erred in allowing expert testimony without first providing him proper notice. Appellant asserts that this error harmed him and violated his due process rights under the federal and state constitutions. Appellant makes a three-part complaint. First, appellant complains that A.P. Merillat, senior investigator for the special-prosecution unit in Huntsville, was allowed to testify as an expert even though he was not designated as an expert. Second, appellant asserts that the lack of notice deprived him of the ability to prepare. Third, he complains that the lack of notice deprived him of an opportunity to file a challenge to the expert.
The pretrial order issued by the judge of the trial court in every criminal case in his court required both the State and the defense to give notice of any expert, without written request from the opposing party, not later than the 20th day before the date the trial was to begin. This notice was to include the witness's area of expertise and a brief summary of the witness's conclusions. At the punishment phase of trial, appellant conceded that Merillat had been listed on the regular witness list; however, he complained that Merillat was not designated as an expert even though the testimony the State sought to elicit from him was that of an expert, i.e. specialized knowledge gained through practical experience in his employment as a peace officer. Appellant specifically objected that he did not get notice that Merillat was an expert. Therefore, he asserted that he was not able to prepare or to file a challenge to the witness. The court noted that the hearing the court was about to hold regarding appellant's objection to the witness constituted a "challenge" to the witness.
During the hearing, which was held outside the presence of the jury, Merillat testified that he was a peace officer who worked as a senior criminal investigator for the special prosecution unit out of Huntsville. He explained that the office was charged with the responsibility for prosecuting all crimes that occur within the prison system, crimes that are committed by employees of the prison system, and crimes committed in the free world but that originated from a conspiracy within the prison. He explained the general classification system within the prison and the potential for and existence of violence within that system. Merillat also specifically noted that inmates sentenced to life in prison after a conviction for capital murder: were not segregated from other inmates; were not restricted any more than other prisoners from moving to and from their cell blocks to other areas of the prison; were not labeled as capital murderers in any way; had access to doctors, nurses, and teachers; and, had visitation rights.
After the hearing, the trial court agreed that much of the testimony the State sought to elicit was expert testimony, and the State's failure to designate the witness as an expert barred the testimony in this case. In light of this finding, the court had the court reporter prepare a rough transcript of the proceedings, and the judge thereafter marked those questions that he determined were "fact" questions and, therefore, not expert testimony. Appellant renewed his "previously stated" objection to the testimony. Merillat was then allowed to testify in front of the jury regarding only those questions the court had marked as "fact" questions. Merillat gave his name and described his job. He then testified that capital murderers who receive a life sentence: are not segregated from other inmates; are not restricted any more than other prisoners from moving to and from their cell blocks to other areas of the prison; are not labeled as capital murderers in any way; have access to doctors, nurses, and teachers; and, have visitation rights.
Appellant fails to note in his brief that his objection to Merillat's testimony was in large part sustained. He also fails to specifically argue how any of the court-permitted questions elicited expert testimony. In fact, during final argument, defense counsel stated that Merillat "said there are prisons and there are rules" and "[the witness] didn't bring you anything you didn't already know by watching the news." By this argument, counsel, in effect, told the jury and the court that he did not believe the remaining testimony amounted to expert testimony.
Further, to the extent that the "fact" questions the court allowed did elicit expert testimony, the testimony did not harm appellant. Appellant conceded that Merillat was listed as a regular witness, and appellant was afforded an opportunity to challenge the witness through a hearing. Appellant could have contacted Merillat to attempt to gauge the substance of his testimony, and appellant could have attempted to get his own witness to counter Merillat's testimony. Finally, appellant could have asked for a continuance to investigate the matter. Appellant's first point of error is overruled.
A.P. is a recognized expert on a laundry list of subjects. The existential subtleties of Southern living. The labyrinthian machination of interrogation and law enforcement. Grits. Friendly banter at the local auto parts store. And then there's that future dangerousness thing.
But when the banjo comes out of the case, he is among those peerless experts who command the dolcetone five-string as only one who has doubled consonants in their last name can. And that's res judicata.
Posts: 1233 | Location: Amarillo, Texas, USA | Registered: March 15, 2001
Now maybe I will be left alone - I hereby make a judicial confession that in spite of Dr. Jennings calling me names in that other thread, I am an ignorant 5-string banjo player and unworthy of any attention, except maybe something in the tip jar.
