EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, November 20, 2008

The Chunking Express: Court Finds Evidence Of Prisoner's "Chunkings" Admissible To Prove Motive/Common Plan

I remember the technique of chunking from my days of taking psychology in college.  Essentially, chunking is based on the idea that short-term memory is limited in the number of things that can be remembered, with a common rule being that a person (but not Guy Pearce's character from "Memento") can remember 7 (plus or minus 2) "items" in short-term memory.  A person uses chunking to remember more by increasing the size of each item, thus decreasing the number of items he holds in memory.  For instance, in remembering the number string 64831996, you could try thinking about the string as 64 83 19 96 rather than as 8 individual numbers.

Well, unfortunately for squeamish readers, that is not that type of chunking dealt with in the recent opinion of the Court of Appeals of Texas in Cantu v. State, 2008 WL 4890035 (Tex.App.-Hous. 2008).  In Cantu, Victor Cantu was convicted on two counts of harassment by a person in correctional facilities based upon the following facts as relayed by witnesses for the prosecution:

     Texas Correctional Officer Calvin Woods was on duty in the administrative segregation area of a maximum security correctional facility. While passing out necessities, Woods came into contact with Cantu and asked him if he needed any necessities, but Cantu declined. Woods continued on to the next cell when Cantu threw out a brown liquid which "smelled like feces and urine" and which struck Woods and inmate Jeffery Williams, who was helping Officer Woods hand out necessities.  Tests later confirmed that the substance was feces.

At trial, the prosecution sought to admit 18 separate extraneous offenses in which appellant had "chunked" (i.e., thrown feces) on other inmates who had passed in front of his cell. The trial court found that this "chunking" evidence was admissible but limited testimony to four or five other chunking incidents.  After he was convicted, Cantu claimed, inter alia, that the "evidence offered at trial of extraneous incidents of [his] 'chunking' was admitted in error."

Now, if the prosecution were using this evidence to prove "Once a chunker, always a chunker" or that Cantu had a propensity to throw feces and that he likely acted in conformity with that propensity at the time in question, the evidence indeed would have been admitted in error because it would have violated the first part of Texas Rule of Evidence 404(b), which states that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith."

The second part of Rule 404(b), however, states in relevant part that such evidence may "be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, [common] plan [or scheme], knowledge, identity, or absence of mistake or accident."

And the court found that two these permissible purposes applied.  First, the prior "chunkings" gave rise to possible retaliation by other inmates, giving Cantu a motive to try to keep himself in administrative segregation by committing additional "chunkings." (Cantu himself admitted that he had repeatedly asked to be transferred to a different unit or population).  And, indeed, as is clear from the alleged 18 extraneous offenses of "chunking," fecal matter was Cantu's weapon of choice, and he flung it "under almost the same type of facts" in each of the alleged offenses, revealing a common plan or scheme for ensuring his administrative segregation.  Based upon these findings, the court's ruling seems correct to me.



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