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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.).
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Perhaps I'm a little sketchy on the specifics of the case, but it would be my opinion that Pona committed the underlying murder would be unfairly prejudicial, with the exception of the witness testimony against him. The statement of the witness who he is believed to have subsequently murdered is plenty to establish a motive for her murder. However, any additional evidence regarding the underlying murder is irrelevant to the facts of the instant case. Further, the possibility of juror confusion would seem to be great in this situation as the jury would essentially be forced to render judgment on the underlying murder before they were even to consider the case before them. Am I wrong in this opinion?
Posted by: Jeff Schwartz | Jun 16, 2008 4:50:20 PM
I disagree, however it seems to be a very close call. The only evidence that need be presented from the underlying case is the testimony that Jennifer planned to give, i.e. in the form of a witness statement taken before the trial. Her statement is enough to establish motive, along with the witness who said Pona would have to "dump her" to win his trial. Any additional evidence is not only unfairly prejudicial, but it forces the jury to try the underlying case as well as the one at hand. This could easily lead to jury confusion. Further, it is unnecessary as the presentation of such evidence really serves no purpose other than to paint the defendant in a bad light, which can be done easily within the proper parameters by the prosecution if Pona was really as bad a person as he is being painted. But maybe I'm way off here. It seems to me that evidence existing outside of the relationship between Pona and Jennifer that is unrelated to her actual death is
Posted by: Jeff Schwartz | Jun 16, 2008 4:58:12 PM
Jeff, I can certainly see where you are coming from, and you present good arguments in defense of your opinion. As I said in my post, it really is a judgment call which could go either way, so I won't contest your main conclusion.
But I do want to address part of your comment, which is your statement that "[a]ny additional evidence is not only unfairly prejudicial, but it forces the jury to try the underlying case as well as the one at hand. This could easily lead to jury confusion."
And what I want to say in response is that we allow jurors to do this all the time under Rule 404(b). For instance, if a defendant is on trial for cracking a safe in a house and stealing a diamond encrusted, spider brooch, the prosecution might want to call a witness who would testify that the defendant told him a year ago that he cracked a safe at another house and stole a jewel encrusted, gold scepter.
Most courts would allow this testimony to prove that the defendant has the requisite knowledge/ability to crack a safe, even though it requires the jurors, in effect, to try the scepter case as well as the one at hand. So, do you disagree with Rule 404(b) decisions in general, or do you see something specific in the Pona case that makes it different?
Posted by: Colin Miller | Jun 17, 2008 6:14:45 AM
I think that there may be a distinction between witness testimony that can lend itself to character credibility/criminal background and physical evidence of an underlying crime. Testimony that the defendant committed a crime in the past establishes that he actually committed it, while physical evidence that leans towards that conclusion forces the jury to decide the underlying case as well as the one at hand. If the defendant was convicted previously of the underlying case, then that conviction could and should be presented as evidence in my opinion because the jury on the case at hand does not need to pass judgment on the underlying case. I feel like I'm getting turned around here, and maybe my opinion would be different under different facts. I guess I just feel that in this Rhode Island case, underlying fingerprint evidence of Pona's previous crime has a greater prejudicial effect than probative value to the case at hand. So I suppose I agree that it's a judgment call. Perhaps it would be necessary without the witness testimony from Dennis Fullen, but with his establishment of Pona's motive, this other evidence seems like overkill (pardon the pun). Also, apologies for the double post, I didn't realize the first one posted.
Posted by: Jeff Schwartz | Jun 17, 2008 11:20:04 AM