Gochicoa v. Johnson (53 F. Supp. 2d 943, 1999)

ORDER GRANTING PETITIONER’S APPLICATION FOR WRIT OF HA-BEAS CORPUS PURSUANT TO TITLE 28 U.S.C. § 2254,

FURGESON, District Judge.

BEFORE THIS COURT is the Application for Writ of Habeas Corpus pursuant to Title 28 U.S.C. § 2254 filed by the Petitioner, Pedro L. Gochicoa (hereinafter “Gochicoa”), on remand from the United States Court of Appeals for the Fifth Circuit. Gochicoa was convicted for felony possession of heroin on the 15th of August 1991, in the 143rd Judicial District Court in Pecos, Reeves County, Texas.

FACTS AND PROCEDURAL HISTORY

On the early evening of August 15, 1991, the Pecos Police Department received a call complaining of a “suspicious person” near an apartment building in Pecos and dispatched an officer to the area. Officer Victor Prieto arrived on the scene and found Petitioner’s brother, Jorge Gochicoa, sitting in a parked car. As Officer Prieto was speaking to his brother, Gochicoa approached the car nervously from an alley, greeted the officer, and told his brother “let’s go.” Officer Prieto asked the Goehi-coas several questions and then let them go.

Immediately after the Gochicoas left, Reeves County Sheriffs Deputy Andy Gomez arrived. He had been dispatched to the area based upon information received from a second call, this one from a confidential informant. The confidential informant had told the Reeves County Sheriffs dispatcher that an individual named Manuel Salcido was in the area selling heroin and that Gochicoa was in the area purchasing it. At an evidentiary hearing held by this Court, Reeves County Prosecutor David Zavoda testified that the confidential informant was likely one of several individuals working with the Pecos Police Department to “keep an eye on” various suspicious people. Petitioner was one of the individuals being watched.

Deputy Gomez relayed this information to Officer Prieto and the two officers then began searching along the alley for heroin. After a few minutes, a young man, Michael Carrasco, approached the officers. Car-rasco had been watching from the window of his house, approximately 100 to 150 feet away, when Petitioner was walking down the alley. Carrasco told the officers that, when Petitioner rounded the corner of a building, he quickly reached into his pocket and made a motion as if he were throwing something to the ground. Based on this information, the police officers were able to locate a small red balloon on the ground filled with nineteen dosage units of heroin.

Gochicoa was arrested on August 17, 1991, and indicted in Reeves County, Texas for felony possession of heroin. The indictment also alleged two prior felony convictions for enhancement in connection with punishment purposes. Attorney Ted Painter was appointed to represent Petitioner. At the evidentiary hearing, Petitioner testified that Mr. Painter met with him twice, once in the county jail after his arrest and once just before trial began. Mr. Painter was not sure how many times he saw Petitioner.

At the time of Petitioner’s indictment, the Reeves County District Attorney’s Office had an open file policy in criminal cases. Mr. Painter testified that he had reviewed the District Attorney’s file on this case. The file included Officer Prie-to’s report that Deputy Gomez urged a search of the alley based upon information he received from a confidential informant. Mr. Painter filed a general motion for discovery and inspection of evidence on February 7, 1992. Mr. Painter did not file any specific motion to disclose the confidential informant’s identity nor did he file any motions in limine to exclude information of or evidence from the confidential informant.

The file also contained a report by Pecos Police Officer Orlando Orona establishing that Petitioner had been arrested two days after the event in the alley described above. Additionally, Petitioner testified that he told Mr. Painter the date of his arrest during one of his two discussions with Mr. Painter about the case. Mr. Painter made no reference to this fact at trial.

Gochicoa entered a plea of “not guilty” to the indictment. The trial was held April 27, 1992, and lasted roughly half a day. The confidential informant was not identified and did not testify at the trial. Several times during the State’s presentation of its case in chief, however, the prosecutor made reference to the confidential informant and the information the confidential informant provided regarding Petitioner’s purchase of heroin from Manuel Salcido. In the beginning of his opening statement, the prosecutor made the following presentation to the jury:

Deputy Gomez ... pulls up and tells them (Officer Prieto) that he has gotten a tip from a confidential informant concerning the defendant, and they start searching the area where Pedro Gochi-coa was coming from for contraband that has been left behind.

Mr. Painter made no objection to this statement nor did he ask for any prospective relief that the prosecutor be instructed to refrain from further comment about the confidential informant.

During Officer Prieto’s direct testimony, the following exchange took place:

Q: Did you say anything to him (Defendant)?

A: No, sir.

Q: Did you have any reason at this point in time to stop him, to investigate any crime that may have been committed, or do anything else concerning Pedro Gochicoa?

A: No, sir, I had no reason.

Q: Did you in fact allow them to drive away?

A: Yes, sir.

Q: At about that time as they were driving away, did a peace officer approach you position?

A: Yes, sir.

Q: What officer was that?

A: It was Reeves County Sheriffs Deputy Andy Gomez.

Q: Okay. And what was Deputy Gomez’s purpose in being there — do you have any idea?

A: He advised me that he had some information that Peter (Pedro) was selling ...

MR. PAINTER: Your Honor, I object. That’s hearsay.

MR. ZAVODA: I’ll withdraw the question, Your Honor.

THE COURT: Sustained.

Mr. Painter did not ask that the answer be stricken or that the jury be instructed to disregard the testimony.

Immediately after this objection, the prosecutor successfully elicited testimony which, in light of Officer Prieto’s statement that he had no reason to detain Petitioner, indirectly apprised the jury of the out-of-court assertion by the confidential informant:

Q: Did you and Deputy Gomez have a conversation?

A: Yes, sir.

Q: Without telling me what he said, based upon that conversation did you and Deputy Gomez undertake a search?

A: Yes, sir, we did.

Q: And where were you looking at? What area were you searching?

A: We was (sic) looking on the alley mostly from where I had seen Peter (Petitioner) coming from.

Q: All right. And what were you looking for- — “yourself,” personally?

A: Well, we were looking for any kind of drugs.

On redirect examination of Officer Prie-to, the prosecutor again introduced, this time without objection, the confidential informant’s telephone message into evidence:

Q: Now, you mentioned the name of Manuel Salcido when you were answering questions of Mr. Painter.

A: Yes, sir.

Q: He is the gentleman whose home is down here some place marked with an “S” — is that correct?

A: That’s correct.

Q: You called him the other suspect. Was he another person that was supposed to be possessing heroin or selling heroin?

A: That’s Manuel?

Q: Manuel Salcido?

A: Yes, sir.

Q: Was it selling?

A: Selling, yes sir.

Q: And that’s the general location that Pedro Gochicoa was coming from, is that correct?

A: That is correct.

When Deputy Gomez took the stand, the prosecutor acknowledged in open court that the witness could not testify to the confidential informant’s statement based upon the court’s prior ruling. Indeed, the prosecutor admonished Gomez shortly after his testimony began:

Q: You cannot tell me what the confidential informant told you, but based upon that information did you proceed to the 1000 block of East 10th in Pecos, Reeves County, Texas?

A: Yes, I did.

Despite this admonishment, the prosecutor then proceeded to elicit testimony based upon the confidential informant’s statement:

Q: Again, based upon the information you received from the confidential informant, did you and Victor Prieto — Officer Prieto — conduct a search of the area where Officer Prieto was at?

A: Yes, we did.

Q: What were you looking for?

A: I was looldng for heroin is (sic) what I was looking for.

Mr. Painter did not object to this line of questioning either.

In his closing argument, the prosecutor used the confidential informant’s assertions to conclusively link Petitioner to the heroin found in the alley:

What do we know by direct evidence? ... We know that Pedro Gochicoa was out at the project on August 15th, 1991, at about five or 5:15 P.M. We know his brother Jorge was waiting for him to come back from where he was at. We know that when he saw Victor Prieto— Officer Prieto — that Pedro Gochicoa got nervous. We heard that from two different witnesses, Officer Prieto and Michael Carrasco. We know that Deputy Gomez had information from a confidential informant that Manuel Salcido was in this area in his home selling heroin and that Pedro Gochicoa was buying it 'at this particular time.

Further, the prosecutor added:

What this whole thing boils down to, Ladies and Gentlemen, is that you are allowed to use your common sense as a juror in this case. We know where Pedro was coming from. I know.

Mr. Painter made no objection to either one of these statements.

The court presented the case to the jury at 4:10 p.m. The jury deliberated approximately two hours, and then, at 6:05 p.m., sent Judge Bob Parks a communication asking “Could we have another definition of possession? We cannot come to a decision without another definition of possession.” Judge Parks responded by saying that the definition of possession in his instructions was the only one he was permitted by law to give. The jury continued to deliberate until 6:30 p.m., and then sent Judge Parks a second communication: “[W]e cannot come to a unanimous decision.” Without objection, Judge Parks read the jury a Modified Allen Charge. At 7:55 p.m., the jury returned with a verdict of guilty. Gochicoa pled “true” to the enhancement paragraphs. The jury assessed punishment of 60 years imprisonment.

After his appointed counsel filed an An-ders brief to the Court of Appeals for the Eighth Supreme Judicial District of Texas, Petitioner filed a pro se appeal. Petitioner’s conviction was affirmed May 5, 1993. Gochicoa v. State, No. 08-92-00116 (unpublished). Gochicoa did not petition the Court of Criminal Appeals for discretionary review. Petitioner did, however, file a state application for writ of habeas corpus pursuant to T.C.C.P. Art. 11.07. The Texas Court of Criminal Appeals denied habe-as relief without a written order on April 19, 1995. Ex parte Gochicoa, No. 28-1390-01.

Petitioner next filed this federal Application for Writ of Habeas Corpus pursuant to Title 28 U.S.C. § 2254, raising the following claims for relief: 1) the inadmissible hearsay evidence admitted during Petitioner’s trial violated his Sixth Amendment rights under the Confrontation Clause; 2) counsel’s failure to object to the inadmissible hearsay testimony which implicated the Petitioner in the charged offense deprived Petitioner of his right to effective assistance of counsel; and 3) counsel’s failure to seek the disclosure of the confidential informant’s identity deprived Petitioner of his right to effective assistance of counsel. This cause was then referred to United States Magistrate Judge Louis Guirola for further proceedings.

In its motion for summary judgment, Respondent argued that the officers’ testimony was limited to their receipt of information from an informant and their course of action based upon that information. Respondent denied that any hearsay was entered into evidence. The Magistrate Judge, similarly, concluded that the information the police received from the informant was entered into evidence to show why the officers acted as they did. It was not entered for the truth of the matter asserted and, thus, was not hearsay. The Magistrate Judge concluded that Petitioner’s writ should be denied.

Petitioner timely filed his objections to the Magistrate Judge’s Findings of Fact and Recommendations. As in his original petition, Gochicoa argued in his objections that the information received by the police from the confidential informant became part of the State’s case-in-chief. Since police officers in the case testified about what the confidential informant told them, this testimony constituted hearsay. The prosecutor repeated the confidential informant’s statement in his opening and closing presentations to the jury and this perpetuated the hearsay. Petitioner had no opportunity to cross-examine the informant and, thus, could not test the informant’s credibility or reliability before the jury. Petitioner argued that he should have had the right to confront the confidential informant. Further, because this information suggested that Petitioner was in possession of the balloon with heroin, it was decidedly influential, especially since the jury asked for court instructions on the definition of possession. After reviewing Petitioner’s objections, the record of the case and the relevant law, the Court appointed the federal public defender to represent Gochicoa on his appeal and scheduled an evidentiary hearing for August 13, 1996.

After the evidentiary hearing, on September 5, 1996, this Court entered an Order Reversing Magistrate Judge’s Proposed Findings of Fact and Recommendation and Granting Petitioner’s Writ of Habeas Corpus Relief Pursuant to Title 28 U.S.C. § 2254, published at Gochicoa v. Johnson, 972 F.Supp. 380 (W.D.Tex.1996). In the Order this Court found that, because the hearsay evidence admitted during Petitioner’s trial violated his Sixth Amendment rights under the Confrontation Clause and had a substantial and injurious, effect in determining the jury’s verdict, the Court would grant the writ. Under the circumstances, the Court decided that it was unnecessary to address Petitioner’s claims that his counsel was ineffective for failing to: 1) object to the inadmissible hearsay testimony; and 2) disclose the confidential informant’s identity.

The Respondent appealed, and the United States Court of Appeals for the Fifth Circuit reversed and remanded this action on August 4, 1997, in a split decision published at Gochicoa v. Johnson, 118 F.3d 440 (5th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1063, 140 L.Ed.2d 124 (1998). The purpose of the remand was to allow this Court to consider the Petitioner’s remaining claims regarding ineffective assistance of counsel.

DISCUSSION

I. HARMLESS-ERROR ANALYSIS AND STRICKLAND PREJUDICE

There are two types of constitutional errors that are generally presented in a habeas petition: trial error and structural error. “Trial error ‘occurs during the presentation of the case to the jury,’ and is amenable to harmless-error analysis because it ‘may...be qualitatively assessed in the context of other evidence presented in order to determine [the effect it had on the trial].’ ” Brecht v. Abrahamson, 507 U.S. 619, 629, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Arizona v. Fulminante, 499 U.S. 279, 307-308, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)). “At the other end of the spectrum of constitutional errors lie ‘structural defects in the constitution of the trial mechanism, which defy analysis by harmless-error’ standards.” Id. at 629, 113 S.Ct. 1710 (quoting Arizona v. Fulminante, 499 U.S. at 309, 111 S.Ct. 1246). “The existence of such defects — deprivation of the right to counsel, for example — requires automatic reversal of the conviction because they infect the entire trial process.” Brecht v. Abrahamson, 507 U.S. at 630-631, 113 S.Ct. 1710 (citing Arizona v. Fulminante, 499 U.S. at 309-310, 111 S.Ct. 1246).

In Brecht v. Abrahamson, the United State Supreme Court held that the Kotteakos harmless-error standard applies in determining whether habeas relief must be granted because of constitutional errors of the trial type. Id. at 637-638, 113 S.Ct. 1710 (citing Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). “The test under Kotteakos is whether the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Id. at 637, 113 S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. at 776, 66 S.Ct. 1239). “Under this standard, habeas petitioners may obtain plenary review of their constitutional claims, but they are not entitled to habeas relief based on trial error unless they can say it resulted in ‘actual prejudice.’ ” Id. at 637, 113 S.Ct. 1710 (citing United States v. Lane, 474 U.S. 438, 449, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986)).

The constitutional standard for determining whether a criminal defendant has been denied the effective assistance of counsel, as guaranteed by the Sixth Amendment, was announced by the Supreme Court in the case of Strickland v. Washington:

A convicted defendant’s claim that counsel’s assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.

Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

For a petitioner to show prejudice under the Strickland analysis he must show that “.. .there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694, 104 S.Ct. 2052. In Kyles v. Whitley, the United States Supreme Court held that, once a court determines that prejudice has resulted due to a constitutional error, it necessarily entails the conclusion that the error had a substantial and injurious effect in determining the jury’s verdict. Kyles v. Whitley, 514 U.S. 419, 435, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citing Hill v. Lockhart, 28 F.3d 832, 839 (8th Cir.1994) (“[I]t is unnecessary to add a separate layer of harmless-error analysis to an evaluation of whether a petitioner in a habeas case has presented a constitutionally significant claim for ineffective assistance of counsel.”))

A divided panel of the Fifth Circuit stated in Harris v. Warden, “If an error is harmless under Brecht, it would appear not to be prejudicial under Strickland." Harris v. Warden, 152 F.3d 430, 440 n. 11 (1998) (citing Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). Only two days later a different panel of the Fifth Circuit in a unanimous decision decided White v. Johnson, where the habeas petitioner presented the court with two claims: 1) the trial court committed constitutional error by denying petitioner’s request for the appointment of a psychiatrist to aid with petitioner’s defense at the punishment stage of the trial in violation of Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985); and 2) the court’s failure to appoint such a psychiatrist rendered the assistance provided by his counsel unconstitutionally ineffective. White v. Johnson, 153 F.3d 197 (5th Cir.1998). In White v. Johnson, the Fifth Circuit joined three other circuits in holding that an Ake error constitutes “trial error” and not “structural error” and is thus subject to harmless-error analysis. Id. at 201 (citing Tuggle v. Netherland, 79 F.3d 1386, 1388 (4th Cir.1996); Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir.1995); Starr v. Lockhart, 23 F.3d 1280, 1291 (8th Cir.1994)). The Fifth Circuit then examined the petitioner’s first claim and held the purported Ake error to be harmless. Id. at 204-207. The court dismissed petitioner’s second claim stating, “... our conclusion that the purported Ake error was harmless forecloses any argument that deficiency in the performance of White’s trial counsel precipitated by the Ake error was prejudicial.” Id. at 208 (citing Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)). “Because the purported Ake error did not ‘have a substantial and injurious effect or influence in determining the jury’s verdict,’ assuming that it could have rendered White’s counsel’s performance deficient, any resulting deficiency could not have been prejudicial.” Id. at 208 (quoting Brecht v. Abramson, 507 U.S. at 623, 113 S.Ct. 1710). See also Mayabb v. Johnson, 168 F.3d 863 (5th Cir.1999) (held that the failure to include an instruction in the jury charge did not have a substantial and injurious effect or influence in determining the jury’s verdict, and therefore that petitioner could not show any prejudice attendant to counsel’s conduct).

In United States v. Cronic, the United States Supreme Court determined that, “There are... circumstances that are so likely to prejudice the accused that the cost of litigating their effect is unjustified.” United States v. Cronic, 466 U.S. 648, 658, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). “Actual or constructive denial of the assistance of counsel altogether is legally presumed to result in prejudice.” Strickland v. Washington, 466 U.S. at 692, 104 S.Ct. 2052. “If counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that make the adversary process itself presumptively unreliable.” United States v. Cronic, 466 U.S. at 659, 104 S.Ct. 2039. It appears to this Court that the Fifth Circuit’s prior ruling in Gochicoa v. Johnson, 118 F.3d 440 (5th Cir.1997), deciding that the admission of hearsay statements did not violate the Confrontation Clause and was harmless in light of other testimony provided at trial, precludes this Court from holding that, in the absence of further analysis, Petitioner was somehow prejudiced by ineffective assistance. See White v. Johnson, 153 F.3d 197 (5th Cir.1998); Harris v. Warden, 152 F.3d 430, 440 n. 11 (1998); Mayabb v. Johnson, 168 F.3d 863 (5th Cir.1999). This is true, however, only if the problem here relates to a Brecht “trial error.” But this case does not present a mere “trial error.” In this Court’s opinion, the error is instead a structural one, because the errors committed by counsel were so egregious that the prosecution’s case was never subjected to meaningful adversarial testing. Thus, analysis under the prejudice prong of Strickland is not necessary.

II. FAILURE TO OBJECT TO INADMISSIBLE HEARSAY

In Petitioner’s first claim, he argues that his counsel, Ted Painter, failed to object to the introduction of the inadmissible hearsay statements, which implicated Petitioner in the offense, consequently depriving him of his right to effective counsel. The Respondent replies that Mr. Painter’s decision not to object to every hearsay statement was based upon a conscious and informed decision on trial tactics and strategy. Respondent argues that, “A conscious and informed decision on trial tactics and strategy cannot be the basis for constitutionally ineffective assistance of counsel unless it is so ill chosen that it permeates the entire trial with obvious unfairness.” Pratt v. Cain, 142 F.3d 226, 231 (5th Cir.1998) (quoting Green v. Johnson, 116 F.3d 1115, 1122 (5th Cir.1997)).

A. Relevant Testimony at the Eviden-tiary Hearing

While the Court takes no enjoyment in discussing this issue, the Court would be remiss if it did not point out that Mr. Painter was twice disbarred from the practice of law by the State Bar of Texas. Counsel was disbarred for a period of six years in 1983 and was again disbarred in 1994. When counsel attempted to contest the 1994 disbarment proceeding, he filed an affidavit introduced at the evidentiary hearing where he swore to the following: 1) during the years 1990, 1991 and 1992, his addiction to alcohol greatly affected both his professional and personal fife; 2) during the years 1990, 1991 and 1992, he had four grievances lodged against him by clients; and 3) his substance abuse disability was directly responsible for the conduct that led to the complaints being filed against him. While a court could show a general deference to a lawyer’s trial strategy, based upon the presumption that the lawyer is both professional and competent, this Court will exercise caution in evaluating the performance of counsel who has twice been disbarred from practice and whose alcohol abuse affected his professional judgment at the very time of his client’s trial.

At the evidentiary hearing Mr. Painter was questioned as to whether he understood that certain statements made by both the prosecutor and certain witnesses were hearsay. Specifically, defense counsel was questioned about the following five instances:

1. Q: This is the State’s opening argument on page 104 of volume 5. Mr. Painter, could you read the statement beginning with “as”.

A: “As they are pulling away, Deputy Gomez of the Reeves County Sheriffs Department pulls up and tells them that he has gotten a tip from a confidential informant concerning the defendant and they start searching the area where Pedro Gochicoa was coming from for contraband that had been left behind.”

Q: That statement was based on hearsay, wasn’t it, sir?

A: Yes.

Q: Did you object to that statement?

A: No.

Q: Did you approach the bench after opening statement to make a motion that the State refrain from mentioning further hearsay or out of court information?

A: No.

Q: Did you ask the court to disclose the informant’s identity if the prosecutor wished to rely on such information?

A: I don’t believe so, no.

(See Evidentiary Hearing, pages 24-25).

2. Q: I am showing another portion of volume 5 to Mr. Painter. At page 167, lines 9 through 13, this is the direct examination of Officer Prie-to by the district attorney. Could you read us, sir, lines 9 through 13?

A: “Did you have any reason at this point in time to stop him, to investigate any crime that may have been committed, or do anything else concerning Pedro Gochicoa? Answer: No, sir, I had no reason.”

Q: Thank you. So, would you interpret that statement — that seems a pretty clear statement that at the time Mr. Gochicoa drove off that Officer Prieto had no reason to believe he had been involved in a crime?

A: That’s what he says.

Q: If you could read for us, sir, lines 22 through 25 on page 167.

A: “Okay. And what was deputy Gomez’s purpose in being there-do you have any idea? Answer: He advised me that he had some information that Peter was selling—

Q: And you objected to that. Is that correct?

A: Yes.

Q: After you objected, Mr. Zavoda asked another question of Officer Prieto. Could you read line — a series of questions — could you read us lines 11 through 21, please?

A: “Question: Without telling me what he said, based upon that conversation did you and Deputy Gomez undertake a search? Answer: Yes, sir, we did. Question: And where were you looking at? What area were you searching? Answer: We was looking on alley mostly from where I had seen Peter coming from.”

Q: Yes. Please. If you would.

A: “Question: All right. And what were you looking for-yourself, personally. Well, we were looking for any kind of drugs.”

Q: Now, Officer Prieto had testified immediately before that he had absolutely no reason to investigate Mr. Gochicoa. Is that correct?

A: Yes.

Q: The only thing that’s changed in that one page is he was told something by Deputy Gomez. Is that correct?

A: Yes.

Q: And all of the sudden he knows he’s looking for drugs in the alley. Is that correct?

A: Yes.

Q: In your opinion, didn t the prosecutor elicit — Let me back up. Is there a — Isn’t the only reasonable inference from this testimony that officer — that Deputy Gomez told him to look in the alley for drugs?

A: Well, yes and no. One interpretation seems to me here is that they looked in the area based on a conversation that he had with Deputy Gomez.

Q: But he’s looking for a specific item, is he not?

A: He is personally looking for a specific item.

Q: Is it personally or is that a plural pronoun at the beginning of line 17?

A: Line 17 is “we” and line 19 and 20 is “you” yourself personally.

Q: And “we” would be Officer Gomez — Excuse me. Officer Prieto and Deputy Gomez?

A: Yes.

Q: And line 21 again Officer Prieto uses a plural pronoun. Is that correct?

A: That’s correct.

Q: And, again, take pronoun is “we”?

A: Yes.

Q: And immediately before that “we” had referred to deputy Gomez and Officer Prieto?

A: Correct. <1

Q: And it seems to do the same here?

A: Yes.

Q: But you had no objection to that testimony. Correct?

A: Correct.