Friday, July 18, 2008
Wall Of Silence, Take 2: Spontaneous Nature Of Spector's Alleged Past Violence Makes Common Plan Doctrine Inapplicable
On Wednesday, I posted about the Phil Spector retrial for the alleged shooting murder of Lana Clarkson. In the post, I noted that testimony concerning occasions on which Spector allegedly threatened other women with guns but did not shoot or murder any of them was likely inadmissible under a common plan or scheme/modus operandi/signature crime theory. As I noted, the theory behind such evidence is that it is being used, not to prove propensity.conformity, but to prove that nobody else besides the defendant could have committed the crime at issue. I then noted that "even courts taking a more liberal approach would require substantial similarity among each of the crimes sought to be admitted."
Well, a reader e-mailed me and informed me that California courts are among those taking a more liberal approach. Essentially, the Supreme Court of California adopted this approach in People v. Ewoldt, 867 P.2d 757, 770 (Cal. 1994), where it held that:
"[t]o establish the existence of a common design or plan, the common features must indicate the existence of a plan rather than a series of similar spontaneous acts, but the plan thus revealed need not be distinctive or unusual. For example, evidence that a search of the residence of a person suspected of rape produced a written plan to invite the victim to his residence and, once alone, to force her to engage in sexual intercourse would be highly relevant even if the plan lacked originality. In the same manner, evidence that the defendant has committed uncharged criminal acts that are similar to the charged offense may be relevant if these acts demonstrate circumstantially that the defendant committed the charged offense pursuant to the same design or plan he or she used in committing the uncharged acts. Unlike evidence of uncharged acts used to prove identity, the plan need not be unusual or distinctive; it need only exist to support the inference that the defendant employed that plan in committing the charged offense."
This liberal approach had drawn the ire of many commentators, including UC Davis School of Law Professor Edward Imwinkelried, who referred to it as an "unlinked" plan theory of the common plan doctrine. Personally, I agree and think that in such cases, courts are allowing for the admission of propensity/conformity evidence under the guise of using the common plan or scheme doctrine.
So, does this change my analysis at all? I don't think so. Even though California seemingly requires minimal similarity instead of substantial similarity, I still don't see how the court can find that alleged acts in which Spector threatened violence can be found similar enough to an alleged act in which he actually committed violence by shooting and killing Clarkson to form a common plan or scheme. Moreover, my research reveals an even more fatal flaw in the prosecution's argument.
According to the prosecutor, the testimony from other women who were allegedly threatened by him with guns is admissible because it establishes that "when Spector is confronted with a certain set of stimuli, he reacts in the same way — he reaches for his gun." Now, let's look at the opinion of a California appellate court in People v. Scheer, 68 Cal.App.4th 1009 (Cal.App. 2 Dist. 1998). In Scheer, the defendant allegedly fled from the scene of a car accident, and the trial court allowed for the admission of evidence that he had previously fled from police after a traffic violation as evidence of a common plan.
The appellate court found that this was error because:
"Although the prior flight offense and charged crime were committed in a similar manner, i.e., appellant drove through residential areas recklessly with flagrant disregard for the safety of others, and shared the same general purpose of avoiding capture and accountability for his misdeeds, such characteristics are insufficiently probative to constitute evidence of a common plan or design. Instead, the only reasonable inference is that the prior flight and the charged crime were spontaneous events....Neither flight was a planned event. Instead, each was a spur of the moment response to an unexpected event, i.e., the sudden appearance of the police in the prior instance and the attempt by volunteer bystanders to detain him after the accidental collision in the other."
As support, the court cited to a previous opinion by the Supreme Court of California in which it found in a defendant's murder trial in which he allegedly stomped the victim in the stomach that evidence of two prior spontaneous acts were inadmissible to prove common plan: (1) evidence that he kicked a former girlfriend in the ribs, and (2) evidence that he kicked another person during a separate altercation. See People v. Sam, 454 P.2d 700 (Cal. 1969).
Here, by the prosecutor's own admission, Spector's threatened gun violence is a reaction to a certain set of stimuli, i.e., it is a spontaneous reaction rather than something he had planned ahead of time. Spector thus seems to be in the exact same position as the man accused of stomping another man to death, and his alleged prior misdeeds should be held inadmissible for the same reason.