Monday, June 16, 2008
Rhode Island Reversal: Witness Murder Trial Raises Fascinating Issue Which Begs Us To Put Ourselves In The Jury's Shoes
The Supreme Court of Rhode Island's recent opinion in State v. Pona, 2008 WL 2369223 (R.I. 2008), raises a fascinating evidentiary issue: If a defendant is on trial for murdering a witness against him in a murder trial, is evidence that he committed the murder that was the subject of the first trial admissible in his subsequent trial to prove his motive to kill the witness? Here is a (very) brief summary of the facts of the case:
Jennifer Rivera, an eighth-grade student at Roger Williams Middle School, was murdered by Dennard Walker, the half brother of Charles "Manny" Pona. Before her murder, Jennifer had testified at a bail hearing at which she had identified Pona as the murderer of Hector Feliciano, and she was scheduled to testify as the principal prosecution witness at Pona's imminent murder trial, which nonetheless concluded with a jury finding Pona guilty of murder. There was no question that Walker, who pled guilty to killing Jennifer, murdered her to prevent her from testifying against Pona; the only question was whether Pona conspired with Walker to commit the murder. The prosecution believed that he did and charged him with murder, conspiracy to murder, carrying a firearm without a license, committing a crime of violence while carrying a firearm, and obstruction of justice. A jury convicted Pona on all counts, prompting his appeal, which eventually reached the Supreme Court of Rhode Island; the Court vacated the judgments of conviction and remanded to the Superior Court for a new trial.
On appeal, Pona raised three evidentiary issues, with one being that the Superior Court erred by allowing the state to present evidence indicating that he was guilty of Feliciano's murder. So, how was this evidence admitted? Well, first of all, at a pretrial hearing, Pona successfully moved to have any reference to his conviction for Feliciano's murder deemed inadmissible and replaced with a stipulation that he "was charged with a felony, and the principal witness and the only witness was Jennifer Rivera." This ruling makes sense to me because Rhode Island Rule of Evidence 404(a) provides that "[e]vidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion." Because the probative value of Pona's conviction relied on the aphorism "once a killer, always a killer," it was inadmissible under this Rule. See United States v. Rubio-Estrada, 857 F.2d 845, 852 (R.I. 1988). (Indeed, the state agreed that a reference to Pona's conviction for Feliciano's murder would be unfairly prejudicial).
Furthermore, while Rhode Island Rule of Evidence 404(b) does allow evidence about other crimes, wrongs, or acts "for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable," I don't think that any of these "other purposes" were applicable to the conviction. For instance, the fact that Pona was convicted after Jennifer was murdered could not have given him a motive to murder her. So, Pona's conviction was out, but what about evidence tending to indicate that Pona murdered Feliciano? Would evidence that Pona was actually guilty of murdering Feliciano tend to prove that he had a motive for murdering Jennifer? This was the argument successfully presented by the state for admitting evidence that, inter alia, Pona's pager was found at the scene of Feliciano's murder and that his fingerprints were recovered from the car that was used to flee the area where that the homicide occurred.
And I think that most readers would agree that this ruling makes sense on at least an intuitive level. If asked whether a person who was actually guilty of murder was more likely to murder the principal witness against him than a person who was actually innocent, I think that most people would answer, "Yes." Thus, evidence that Pona actually killed Feliciano would be probative on the issue of whether he conspired to kill Jennifer. But look yourself in the mirror and ask yourself this question: Did you answer yes primarily because the actual murderer would have a greater motive to kill the witness or primarily because of the aphorism "once a killer, always a killer?"
On appeal, Pona successfully argued the latter, and here is why the Rhode Island Supremes accepted his argument. They first noted that "[i]n deciding whether to admit evidence pursuant to Rule 404(b), a trial justice must carefully weigh the possibility that this evidence will unfairly prejudice the accused." They next noted that even if this hurdle is leaped, the evidence still must be deemed admissible under Rhode Island Rule of Evidence 403, which states that "[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." Based upon these "twin analyses," the Court found that Pona was denied his right to a fair trial based upon the unfairly prejudicial nature of the evidence and vacated the judgments of conviction.
So, did the Court get it right on this issue? I've been playing it through my mind all weekend, and my humble guess would be that it did not. As noted above, it seems clear that the pager and fingerprint evidence had some probative value on the issue of motive, and I'm not convinced that this probative value was substantially outweighed by the unfair prejudice that jurors might use that evidence as propensity evidence (and the unfairness of that prejudice is mitigated by the fact that a jury actually found Pona guilty of the Feliciano murder). In the abstract sense, though, I lack any conviction in my disagreement with the Court because I have this nagging sense in the back of my head that, removing the "once a murderer, always a murderer" rationale for the evidence, a defendant with significant evidence of his guilt (such as the pager and fingerprints) might actually have less motive to kill a prosecution witness than a defendant with minimal evidence of his guilt because the witness' testimony would be that much more important.
But there's one fact I've withheld to this point which tips the scales to the point where I feel that I'm not taking a complete shot in the dark with my disagreement. And that fact is this: The state presented the testimony of Dennis Fullen, a Pona family friend, who shared a cell with Pona as he awaited release on bail after he was indicted for Feliciano's murder. And Fullen testified at trial that Pona discussed with him the evidence that the state had against him in that case and that Pona said he would have to “dump” Jennifer to defend the case successfully, which Fullen understood to mean that Pona believed that he had to kill her. To me this ratchets up the probative value of the pager and fingerprint evidence and provides specific evidence that Pona had a motive to murder Jennifer. Thus, in my mind, the Superior Court did not err in admitting the evidence.
So, let's return to the question that opened this post: If a defendant is on trial for murdering a witness against him in a murder trial, is evidence that he committed the murder that was the subject of the first trial admissible in his subsequent trial to prove his motive to kill the witness? My answer in a typical case would be a very tentative "Yes," with the answer in the Pona case being a slightly more firm "Yes." So, what do readers think?
(I should note that simply because I disagree with the Rhode Island Supreme Court on this issue does not mean I disagree with their disposition of the case. As I noted, Pona raised three evidentiary issues. The second issue was that the Superior Court admitted the entire audio-tape recording of Jennifer's bail-hearing testimony, permitting the jury to hear the young victim's “voice from the grave” (as described by the prosecutor in closing) for hours on end. The third issue was that Fullen unexpectedly provided irrelevant testimony that he frequently engaged in the illegal drug trade with Pona, and the Superior Court failed to declare a mistrial and instead issued a woefully inadequate instruction to jurors to ignore the testimony. I agree with the Rhode Island Supreme Court that both of these decisions were erroneous, and I think that either could have independently formed the basis for a new trial.).