Darcy, Christopher Earl, PD-1094-15

Background

Christopher Darcy was tried and convicted by a jury for burglary of a habitation; sentenced to 12 years and fined.
While Darcy was jailed and represented by counsel, Rebecca Morris (a potential State witness) sent him a note requesting a response; the note was prepared at the request of Moore County DA investigator Terry Vogel.
Defense counsel introduced the note and elicited testimony about its origin at trial; the State then admitted the note and elicited testimony that it was delivered as part of an investigation into jail smuggling.
The court of appeals held the DA’s office used a government agent to contact Darcy after charges had attached, violating his Sixth Amendment right to counsel, and reversed the conviction as harmful.
The State petitioned for discretionary review, arguing the error was forfeited (no objection), no incriminating response was elicited or admitted, and unpreserved evidentiary testimony should not be used in the harm analysis.

Issues

Issue	State's Argument	Darcy's Argument	Held
Did Darcy forfeit his Sixth Amendment claim by introducing the letter and not objecting?	Forfeitable; trial judge should have been given the chance to resolve factual issue of deliberate elicitation; appellate court must address preservation before reversal.	No forfeiture; the contact was a deliberate attempt by State agents to elicit incriminating information after charges attached.	Court of Appeals reversed based on constitutional violation; State argues preservation was required and seeks review.
Was there a Sixth Amendment violation when a State agent used a surrogate to contact a charged defendant?	No impermissible purpose shown; State claimed the note served a separate jail-smuggling investigation and no incriminating statement was elicited.	Yes; note expressly referenced the pending burglary charge and was directed by a DA investigator to elicit help, thus circumventing Massiah protections.	Court of Appeals found the contact was a deliberate elicitation by State agents and violated the Sixth Amendment.
Was the admission of testimony about the smuggling investigation prejudicial/extraneous-offense evidence?	Any extraneous-offense inference was unobjected-to and thus forfeited; it cannot be used to show harm for the Sixth Amendment claim.	The testimony opened the door to an inference Darcy was engaged in wrongdoing in jail, increasing prejudice.	Court of Appeals treated the testimony as contributing to harm; State disputes use of unpreserved error in harm analysis.
Was the Sixth Amendment violation harmless where no incriminating response was admitted?	Without any fruit (no incriminating statement introduced), there was no trial error or, at most, harmless error beyond a reasonable doubt.	Violation is not harmless because the note and related testimony influenced the jury and led to questions during deliberations about any response.	Court of Appeals concluded the violation was not harmless and reversed; State contends reversal was improper absent preserved objection or admitted fruit.

Key Cases Cited

Massiah v. United States, 377 U.S. 201 (use of undercover agents to elicit statements violates Sixth Amendment)
Rubalcado v. State, 424 S.W.3d 560 (Tex. Crim. App. 2014) (application of Massiah principles to government-directed contact by a complainant)
Brewer v. Williams, 430 U.S. 387 (Sixth Amendment attaches at initiation of adversary proceedings)
United States v. Wade, 388 U.S. 218 (right to counsel at critical stages)
Arizona v. Fulminante, 499 U.S. 279 (distinction between structural error and harmless-error review)
Jackson v. Virginia, 443 U.S. 307 (standard for sufficiency of the evidence)
Blockburger v. United States, 284 U.S. 299 (same-elements test for separate offenses)
Patterson v. Illinois, 487 U.S. 285 (purpose of Sixth Amendment to protect attorney-client relationship)