Prickett: Is It Felony Murder When the Police Do It?

[Ed. Note: Greg Prickett is former police officer and supervisor who went to law school, hung out a shingle, and now practices criminal defense and family law in Fort Worth, Texas. While he was a police officer, he was a police firearms instructor, and routinely taught armed tactics to other officers.]

Felony murder[1] is an old concept that if someone dies while a suspect is committing a felony (other than some form of homicide), then the suspect can be charged and convicted with murder. It is routinely used in criminal prosecutions across the nation. On January 28, 2019, Houston Police officers, acting on a no-knock search warrant that had been fraudulently obtained, entered a house and a gunfight ensued.

During that gunfight, the two occupants of the home, Rhogena Nicholas, 58, and Dennis Tuttle, 59, were killed, and four Houston Police officers were wounded by gunfire. The wounded include the officer who falsified the search warrant affidavit, Gerald Goines. Goines is now under investigation for these crimes, a number of which are felonies. Goines has also been in several shootings, being shot in 1992 and 1997.

The initial story was that HPD had received a number of complaints about the Tuttle house being involved in drugs. Goines started an investigation, and on his search warrant affidavit claimed that a confidential informant (“CI”) entered the home, bought black tar heroin and observed a 9mm handgun. That wasn’t true. The HPD investigators following up on the shooting contacted the CIs[2] and were told that: 1) neither CI made a buy at that house, and 2) sometimes Goines would pay them for CI work that never took place. Moreover, no heroin and no 9mm handgun were found in the home.

The problem seems to center around Goines, who has had his share of problems. First, in the 1992 shooting, Goines was shot while urinating in public near an apartment complex. The person who shot Goines was never charged with a crime in regard to the incident. Five years later, Goines shot and killed Reginald Dorsey in what was initially reported to be an undercover drug buy, but was determined to be a case of road rage. Goines, who was also shot, was apparently upset because Dorsey did not yield when Goines was entering the highway. Goines remained on the police force, even though it appeared that he had given false information on the shooting.

In addition, Goines was a defendant in at least two state court lawsuits[3] and three federal cases.[4] There are striking similarities in the last two federal cases. In Brown, a search warrant was obtained based on the representation by Goines that a CI had seen marijuana and a semi-automatic handgun at the residence. Brown was a convicted felon. During the search, no marijuana and no handgun were found, but an AK-47 rifle was allegedly found. Although numerous photos were taken of the search and what was seen, there were no photographs of the rifle. Additionally, Goines handled the rifle to “clear it” and no fingerprints could be processed.[5] The federal court denied Brown’s habeas petition.

In Bernard, a CI informed HPD officers (including Goines) that he had observed Bernard selling marijuana, and that a semi-automatic handgun was present. During entry, an officer shot Bernard with an AR-15, and a subsequent search turned up 122 grams of PCP, one gram of marijuana, a shotgun, and a semi-automatic handgun.[6] Bernard was charged, but the charges were later dropped. In the lawsuit, Bernard alleged that there was no CI, and that the drugs were not found during the initial search. The plaintiffs explicitly alleged that the information provided by Goines was “false.”

In yet another case, Goines has been accused of planting evidence. In 2011, Goines said that he made a buy of cocaine from Otis Mallet, giving $200 in marked bills to Steven Mallet, who then went to Otis and retrieved drugs from a can in a vehicle. A can containing cocaine was found where Goines testified Otis had tried to hide it behind the house. Only two uninvolved witnesses have stated that Otis never did that, that he did not move from the vehicle where he was initially. The $200 was missing, but a month later, Goines reported that he had paid it to a CI, an informant that Goines never mentioned in the offense reports or trial. It’s not known if the CI even exists.

Only now is this coming out, even though it should have been painfully obvious to his supervisors and command staff. An average officer doesn’t have a single lawsuit against him, much less five. At this point, Houston PD Chief Art Acevedo is saying that Goines can face criminal charges, up to murder.

He should, but it’s not up to him. It is up to the Harris County District Attorney, Kim Ogg. If it is shown that he lied on the search warrant affidavit in order to conduct an extremely dangerous no-knock search warrant in the middle of the night, then the case should be presented to a grand jury and he should be indicted for two counts of felony murder.

I’m not going to hold my breath.

[1] In Texas, the felony murder rule is at Texas Penal Code § 19.02(b)(3).

[2] Goines initially gave investigators the name of a CI, who denied involvement. When investigators confronted Goines on that, he gave the name of a second CI, who also denied involvement.

[3] Miller v. Pace Concerts, et al, Cause 199017761-7, 61st Dist. Ct.; and Garcia v. Owens, et al, Cause 199418191-7, 333d Dist. Ct.

[4] Dorsey, et al v. Goines, et al, Cause 4:1999CVo2086, SD Tex. and Causes 0:2000PCF20742 and 0:2000PCF21065, 5th Cir.; Brown v. Stephens, Cause 4:2013CV02923, SD Tex.; and Bernard v. City of Houston, et al, Cause 4:2015CV00734, SD Tex.

[5] Appellant’s Brief, Brown v. State, Cause 14-12-01035-CR, Tex. App.—Houston [14th Dist.]. The appellate court affirmed the conviction, and the Texas Court of Criminal Appeals refused review.

[6] Memorandum and Recommendation, Doc. 36, Cause 4:2015CV00734, SD Tex.

Prickett: Is It Felony Murder When the Police Do It? curated from Simple Justice