'Cassandra-like' hearsay testimony wasn't harmless error, says TX Court of Criminal Appeals

"A witness who testifies to what the murder victim said before her death frequently gives extraordinarily powerful testimony," Texas Court of Criminal Appeals Judge Cathy Cochran wrote in a concurring opinion overturning the capital murder conviction of defendant Jason Payne. "The jury hears the victim's Cassandra-like voice rising from the grave predicting her own death, detailing past abuses, and pointing the finger of blame at the defendant." Problem is, wrote Cochran, the defendant victim "cannot now be asked about her words and their context. This is an example of classic inadmissible hearsay."

Judge Michael Keasler issued the opinion of the court granting Payne a new trial, overruling the lower court's judgment that the admission of hearsay testimony was "harmless error." (Judge Larry Meyers dissented in a very brief opinion.) Keasler argued that, although it was possible a jury would have convicted Payne without hearsay testimony from her friend alleging marital troubles and past death threats, the "statements most likely had a telling effect upon the jury." "While the totality of the evidence is legally sufficient to sustain Payne's capital murder conviction," he wrote:

it was certainly not overwhelming. The jury's verdict was primarily supported by the cumulation of arguably weak circumstantial evidence. There were no eyewitnesses; nor was there forensic or direct evidence clearly linking Payne to the deaths.

In light of the absence of direct evidence linking Payne to the deaths combined with the statements' indelible character, it is likely that these statements influenced the jury's assessment of the State's circumstantial evidence, the inferences drawn from that circumstantial evidence, and its resolution of the considerable amount of conflicting "battle of the experts"-type testimony in the State's favor.

Before the ruling, Payne had been serving a sentence of life without parole for the alleged 2007 murder of his wife and stepson. See a web page on the case maintained by the group Advocates 4 Wrongfully Convicted.\

MORE: From the Tyler Morning Telegraph which mentioned that:

Smith County Sheriff Criminologist Noel Martin told the Tyler Morning Telegraph during an interview in July 2011 that there was never any motive for a double homicide and that the evidence he had seen did not point toward anything but a murder-suicide.

Martin was at the scene the day of the shootings and later contracted to complete an in-depth forensic over-view.