Records seized at the former Holley Auto Group in December 2006 should be excluded as evidence at John Holley’s trial because a search warrant and the application that led to the warrant were flawed, Holley’s attorney argued Thursday in a 35th District Court hearing
District Judge Steve Ellis said he would rule later on defense attorney Kirby Roberts’ motion to suppress evidence. Ellis also said it was obvious the case won’t meet its Nov. 4 trial date and may not be heard until next year.
District Attorney Micheal Murray disputed Roberts’ claim that Texas Ranger Nick Hanna’s application for the search warrant contained inaccurate information, and that the search warrant Hanna drafted - signed by Brown County Court-at-Law Judge Frank Griffin - was improper because it lacked a crucial word.
Debbie Maxcey, who worked as the Holley dealership’s business manager, nervously faced her former boss as she testified information she had given to Hanna and other lawmen about Holley.
Holley, who sat quietly and occasionally stroked the goatee he now wears, waved at a tearful Maxcey as she finished testifying and left the courtroom.
A Brown County Grand Jury returned a single-count, 33-page indictment against Holley in January for misapplication of fiduciary property. Holley, 55, is accused of misapplying “$200,000 or more” that came from customers tomers of Holley’s dealership, court records state.
Holley was president and director of the Holley Auto Group, a General Motors dealership which was bought by members of the Bruner auto dealership family of Stephenville. The dealership is now named the Bruner Auto Group.
It is alleged in the indictment that Holley failed to pay the insurance premiums of about 180 customers in “one scheme or continuing course of conduct.” The offenses are alleged to have occurred on numerous dates between Feb. 9, 2006, and Sept. 27, 2006.
The insurance policies were after-market policies that customers bought along with their vehicles, Hanna said earlier. He said all of the policies have now been paid and that all of the customers have the insurance policies they paid for.
As the hours-long hearing drew to a close late Thursday afternoon, Roberts said it’s crucial that Holley be allowed to travel to Brazil if his trial isn’t held before Thanksgiving. Roberts asked Ellis to order the return of Holley’s passport.
Roberts said Holley’s Brazilian wife is in that country and that Holley is in the process of starting a business there.
He said Holley was in Brazil when he learned he’d been indicted and was returning to Brownwood to turn himself in. Holley was arrested at a Miami airport, authorities have said.
“He is not going to flee,” Roberts told Ellis. Ellis did not immediately rule on Roberts’ request.
Roberts argued that the search warrant lawmen served at Holley’s dealership authorized them to search for records, but did not specifically authorize them to seize the records.
“This is not a search warrant, period, under the law,” Roberts told Ellis. He also argued that the search warrant was overly broad.
Murray countered that according to state law, the language in an evidentiary search warrant is sufficient if it describes the items expected to be searched and seized. State law does not require the word “seize” to effect the seizure of evidence, Murray argued.
He said Hanna had made an “inadvertent omission” when drafting the search warrant. He said it was clear that “the officer is clearly making a request for seizure.” The law doesn’t require the judge to command the officer to search and seize, but only to search, Murray argued.
“Our warrant certainly is sufficient,” Murray told Ellis.
While that wasn’t Roberts’ sole argument, Ellis indicated the issue was the one he found the most troubling. “I understand both positions,” Ellis said. “The issue for me is still the missing language.”
The Constitution, Roberts told Ellis, “is not so flexible as to allow us to redefine a search warrant. The fact that we made a mistake does not mean we attribute non-existing language.”
Roberts also argued that Hanna’s application for the search warrant incorrectly stated that Maxcey had given a signed and sworn affidavit to Hanna. He said while Maxcey did give a written statement, she did not give it under oath and she did not sign the statement.
Hanna testified that Maxcey had said she wanted to review her notes to make sure dates were accurate before signing the statement, and that she had never signed the statement.
Murray argued that Hanna had interpreted Maxcey's statement as “sworn” when he referenced it in his application for the search warrant. Murray also argued that he had just proven the accuracy of Maxcey’s statement because he had just taken her through the statement on the witness stand, and she had not refuted it.
Maxcey testified that she’d given Hanna and other lawmen details that were favorable to Holley, but that Hanna had not included those details when he fashioned a statement for Maxcey to review and sign.
Maxcey testified that she told Hanna that the Holley dealership was having financial problems because GMAC had taken over the dealership and was holding the dealership’s funds, which it would not release. Because GMAC was controlling the dealership and would not release funds, Maxcey said she told Hanna, the dealership was unable to pay insurance premiums.
Under Murray’s cross-examination, Maxcey said some of the dealership’s financial problems were the result of Holley’s own decisions, including the “enormous salary” he paid himself.
Hanna testified that Maxcey had not tied the dealership’s problems to GMAC and that he had not refused to include any details Maxcey wanted in her statement. He said Maxcey had not told him that the non-payment of the policies had been beyond Holley’s control.
Hanna said Maxcey had told him about salaries paid to Holley and members of his family and Holley’s lifestyle “draining the dealership to the point the dealership could not conduct daily operations.”
Hanna read an Oct. 13 e-mail he said he received from Maxcey. “I know that Holley is getting ready for trial but I heard it through the proverbial grapevine that Kirby Roberts was going to file for dismissal on Oct. 30 at pretrial hearing based on the fact that I did not sign my statement to you,” Hanna quoted the e-mail as saying. “It made me literally ill to think he could get off this way.”
If Ellis rules to suppress evidence, it would depend on the “nature of the ruling … (and) the nature of the evidence” that is suppressed as to how it would affect the case, Murray said after the hearing.