Friday, October 10, 2008
The recent opinion of the Court of Appeals of Texas in Fort v. State, 2008 WL 4500318 (Tex.App.-Texarkana 2008), reveals how tight of a seal a defendant must keep on the evidentiary Pandora's box that is the "mercy rule" if he wants to ensure that propensity character evidence does not pervade his trial. More importantly, it is, at least in my view, a clearly erroneous decision.
The facts of Fort are brief:
"When Gilmer police executed a search warrant at 904 Warren Street, Jason Demarcus Fort was there with various men, but had not been there as long as had many of the others. Fort was in a back bedroom when police arrived and tried to break out a window to escape, cutting himself badly in the process. When officers corralled him and were in the process of taking him to an emergency medical vehicle for treatment, Fort made another effort to escape, running out the front door. This time, Fort was tackled and taken to the hospital. [Police recovered a set of digital scales with cocaine residue from Fort's pocket]. Several batches of crack cocaine were later found on the premises. Some of those present at the time protested that the cocaine did not belong to Fort. Fort appeal[ed] his resulting conviction for possession of a controlled substance with intent to deliver, within 1,000 feet of a school zone."
One of the grounds for Fort's appeal was that the trial court improperly allowed the prosecutor to question a defense witness about Fort's prior conviction for delivery of cocaine. Specifically, Fort called Ricky Moore, the owner of the house that was searched. Moore testified that Fort arrived at his house only about twenty to thirty minutes before officers arrived and executed the warrant. Based on this arrival time, Moore was sure none of the cocaine at the scene belonged to Fort because the other men and the cocaine were already at the house when Fort arrived. Furthermore,
"[w]hen asked about the scales found in Fort's pocket, Moore said he knew nothing about that. Moore, who has diabetes and a prosthetic leg, said Fort frequently helped him around the house and brought him groceries. Fort, said Moore, would help with the dishes, sweep the floors, or leave money for Moore. All that led to Moore's testimonial that Fort was 'a pretty good guy.'"
Thereafter, on cross-examination, and over Fort's objection, the prosecutor asked "Moore if he was aware that Fort had been convicted in March 2002 for delivery of cocaine. Moore said he knew of the conviction but thought it was for marihuana."
On appeal, Fort claimed that that this question elicited impermissible propensity character evidence, and if Moore had not rendered the indented testimony above, he would have been correct. Like its federal counterpart, Texas Rule of Evidence 404(a) states that "[e]vidence of a person's character or character trait is not admissible for the purpose of proving action in conformity therewith on a particular occasion."
Also like its federal counterpart, however, Texas has a "mercy rule" in Texas Rules of Evidence 404(a)(1) & (2), under which the defendant can open the door and present evidence concerning his good character for a pertinent character trait or the alleged victim's bad character for a pertinent character. Of course, doing so opens Pandora's box because the prosecutor can then respond in kind by presenting evidence concerning the defendant's bad character for a pertinent character trait and/or evidence concerning the alleged victim's good character for a pertinent character trait. Also, pursuant to Texas Rule of Evidence 405(a), if the defendant has presented a good character witness on his behalf, the prosecution can cross-examine that witness concerning relevant specific instances of conduct.
As support for its conclusion that Moore's testimony constituted evidence concerning Fort's good character for a pertinent character trait, thus permitting the prosecution to cross-examime Moore regarding Fort's cocaine conviction, the court relied upon the opinion of the Texas Court of Criminal Appeals in Harrison v. State, 241 S.W.3d 23 (Tex.Crim.App. 2007), a case where the defendant was alleged to have inflicted fatal, blunt force trauma to his eight year-old son and appealed from his convictions for manslaughter and injury to a child. According to the court in Fort,
"[t]he Texas Court of Criminal Appeals has reviewed a similar situation. See Harrison v. State, 241 S.W.3d 23 (Tex.Crim.App.2007). In Harrison, a defense witness said the defendant 'was a sweet person, he was a good person' and that he 'watched my kids and I don't have a problem with him....' Citing Rules 404 and 405 of the Texas Rules of Evidence, and stating that '[a]lthough Appellant did not intentionally elicit [the witness'] character testimony, the non-responsiveness of [the witness'] statement does not change the fact that it was character evidence offered by a defense witness....' The cross examination was allowed."
So, lesson #1 to take from Fort is to tread lightly if you are a criminal defense attorney and do not want propensity character evidence to infect your client's trial. As is clear from Harrison and Fort, even if you don't intentionally elicit character testimony from a witness, a court can still find that you opened Pandora's box and that the prosecution will thus be able to respond in kind and with damaging questions regarding prior bad acts on cross-examination. So, if your witness unexpectedly renders character evidence, ask for the court to strike the testimony.
Lesson #2 goes to judges, and hopefully the Texas Court of Criminal Appeals, which should hear Fort's inevitable appeal and find that the lower courts committed error. And that lesson is that the "mercy rule" is only triggered when a criminal defendant presents evidence concerning a pertinent character trait. And in Harrison, this is what clearly happened. The defendant was on trial for allegedly causing the death of his child, meaning that the pertinent character trait in his trial was his violence or peaceableness toward children. And the defense witness' testimony that he had no problem with the "sweet" and "good" defendant with whom he trusted his children was clearly evidence concerning the defendant's good character for this pertinent character trait.
Conversely, in Fort, the defendant was charged with possession of a controlled substance with intent to deliver, within 1,000 feet of a school zone." This means that there were likely a few pertinent character traits in this trial: Whether Fort was "clean" or addicted and whether he was the type of person who would deal, as opposed to merely use, drugs (and possibly some character traits dealing with his relationship with children). Moore's testimony, however, did not relate to any of these pertinent character traits; it was merely testimony about Fort being nice to a disabled/diabetic adult. In fact, the prosecutor likely could have objected that this testimony was irrelevant to any issue at trial. What he could not have done, however, was cross-examine Moore about Fort's prior cocaine conviction because Moore presented no testimony concerning any pertinent character trait, and I don't see how the lower Texas courts found otherwise.