May 31, 2008
Dexter In The Dark?: Mississippi Court Finds Forensic Pathologist Properly Gave Expert Testimony On Blood Spatter Evidence
The Court of Appeals of Mississippi's recent opinion in Flaggs v. State, 2008 WL 2169747 (Miss.App. 2008), confirms that Mississippi courts are in line with most courts across the country in permitting forensic pathologists to render expert opinions regarding blood spatter evidence. In Flaggs, Tavares Antoine Flaggs was convicted of murder based upon the following facts:
In April, 2005 Derrick Wright was found dead in his apartment, lying on the floor covered in blood with what looked like cut marks all over him. Officer Robert Jackson was dispatched to the apartment and observed Wright dead on the floor on his back with his hands up. He observed faint footsteps that appeared to be in blood extending from the hallway to the walk-in closet and a white t-shirt that appeared to be soaked in blood. Subsequently, crime scene investigator Charles Taylor found cast-off blood stains, multiple impact blood stains on the north wall of the hallway in the apartment, a bloodstained towel in the garbage can, a knife blade with no handle in the sink, and two other knives on the counter by the sink. A fingerprint recovered from one of the knives was later identified as Flaggs' fingerprint.
Dr. Hayne, the forensic pathologist who performed Wright's autopsy on Wright's body, testified at trial as an expert witness for the State that Wright had sustained fifteen stab wounds, one chop wound, and three slash wounds, with the fatal injury being a stab wound to the carotid artery and jugular vein in the neck. He opined that a stab wound to the back of the hand, a slash wound to the left forearm, and chop wound to the fourth finger on the left hand indicated defensive posturing on the part of Wright. According to Dr. Hayne, the sites of the body on which these wounds were located are commonly used to protect the neck, face, and part of the head from injury; however, Dr. Hayne testified that he could not determine the order in which Wright's injuries were received, although he could say that there was heart activity at the time the injuries were sustained. Dr. Hayne concluded that Wright died as the result of a homicide.
Subsequently, over defense counsel's objection, the State questioned Dr. Hayne in hypothetical terms regarding the positioning of the blood spatter that was present at the crime scene. After being shown a diagram of the crime scene, Dr. Hayne testified regarding the blood spatter that, inter alia,
"It would indicate two things, counselor. The blood spattering could be cast off from a weapon or it could be cast off from the decedent, and the decedent could be moving in a backward position away from the indicated area where the blood spatter was located. That would be a distinct possibility. Falling backwards. He could have possibly been dragged forward into an enclosed area, which would seem less likely since I don't see any footprints in the area in the photograph you showed me."
This testimony contradicted Flaggs' defense, which is that he was acting in self-defense after Derrick Wright attacked him. After Wright was convicted of murder, he appealed, claiming, inter alia, that Dr. Hayne was not qualified to render expert opinions regarding blood spatter evidence. The Court of Appeals of Mississippi noted that Dr. Hayne explained that the two main tasks in forensic pathology are "determination of the cause of death and determination of the manner of death, with the cause of death being the medical reason that a person died and the manner of death being the classification of the death as a homicide, suicide, accident, or natural." It further noted that "[t]he State contend[ed] that the field of forensic pathology encompasses the analysis of crime scenes, which would include blood spatter."
The Court then concluded that "[w]hile the State cites no authority supporting this proposition, we note that Dr. Hayne has been accepted in other cases as an expert in the analysis of blood spatter....Moreover, our supreme court has indicated that forensic pathologists are qualified to give opinions regarding blood spatter....Therefore, while there was no mention of blood spatter analysis during Dr. Hayne's expert qualification, we cannot say under the circumstances of this case that the trial court erred in allowing Dr. Hayne to testify regarding blood spatter."
Unfortunately, the Supreme Court of Mississippi opinion cited by the Court -- Whittington v. State, 523 So.2d 966, 976 (Miss. 1988) -- came to its conclusion without much analysis, and other courts which have come to similar conclusions have also not engaged in much analysis. See, e.g., State v. Goddard, 871 P.2d 540, 546 (Utah 1994).
So, do we have any readers with a medical background? Is "Dexter" author Jeff Lindsay a reader? Does anyone know whether we would usually expect a forensic pathologist to be able to interpret blood spatter evidence or whether the situation would be more analogous to a dermatologist testifying about HIV?
May 30, 2008
As I Lay Dying: North Carolina Court Finds That The Admission of "Testimonial" Dying Declarations Doesn't Violate The Confrontation Clause
The recent opinion of the Court of Appeals of North Carolina in State v. Bodden, 2008 WL 2095544 (N.C.App. 2008), reaffirms pre-Crawford North Carolina precedent holding that dying declarations do not violate the Sixth Amendment's Confrontation Clause. In Bodden, Roy Oswald Bodden appealed a judgment entered upon a jury verdict finding him guilty of second-degree murder of Nathan Alston. The relevant facts of the case were as follows:
In February 2004, Lathan Smith and Alston obtained drugs from one of Bodden's drug suppliers for the purpose of selling drugs for Bodden; however, instead of selling the drugs, Smith and Alston used them. Bodden later confronted Alston at a store adjacent to an Amoco gas station, telling him. "you better get my money." Bodden also told Alston that he would be right back, left the gas station store, and came back with a friend about an hour later. When Alston noticed Bodden and his friend, he started running down the sidewalk, whereupon he was shot five times in front of his apartment building at around midnight. Alston called 911, and 3.5 minutes later told his mother that he was going to die.
Durham City Police Officer A.M. Cristaldi responded to a dispatch call just after midnight, arrived at the Alston's apartment, and found the Alston bleeding, lying on the floor and screaming for help. Officer Cristaldi asked Alston who shot him, and Alston responded that he did not know who the shooter was, but that Bodden was with him. Alston was transported by ambulance to the emergency room at Duke Hospital, whereupon Durham City Police Officer Dana Keith asked Alston who shot him. Alston responded that "Roy" shot him, which prompted Keith to ask him if Roy's last name was Bodden. Alston answered affirmatively before dying later that day from the gunshot wounds. Bodden was subsequently charged with the first-degree murder of Alston.
At trial, the prosecutor admitted Alston's statements to police as dying declarations under North Carolina Rule of Evidence 804(b)(2), which allows for the admission of a statement made by a now unavailable declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death (The court found that the fact that Alston's statements were contradictory went to the weight of the evidence, not admissibility). On appeal, Bodden claimed, inter alia, that Alston's statements were inadmissible under the Sixth Amendment's Confrontation Clause in that, pursuant to the Supreme Court's 2004 opinion in Crawford v. Washington, they were "testimonial" in that they were made with the expectation and under circumstances suggesting that the statement would eventually be used in a criminal prosecution, making them inadmissible because (1) Alston was unavailable to testify. and (2) Bodden did not have the opportunity to cross-examone him.
The Court of Appeals of North Carolina noted that in pre-Crawford opinions, North Carolina courts had found that dying declarations do not violate the Sixth Amendment right of confrontation. Under the "testimonial" test laid out in Crawford, however, "testimonial" dying declarations would be inadmissible under the Confrontation Clause, but, as I have noted before, the Supreme Court implied that dying declarations were exempt from this rule, holding at footnote 6 of its opinion that "[a]lthough many dying declarations may not be testimonial, there is authority for admitting even those that clearly are. We need not decide in this case whether the Sixth Amendment incorporates an exception for testimonial dying declarations. If this exception must be accepted on historical grounds, it is sui generis."
The Court of Appeals of North Carolina noted that, since Crawford, most courts have held that the admission of "testimonial" dying declarations does not violate the Confrontation Clause, and it followed suit, reaffirming its pre-Crawford precedent. Based upon the language in Crawford, I think that the North Carolina court (as well as courts in Nevada, llinois, New York, and Minnesota) got it right.
May 29, 2008
Conspiracy Theory: Supreme Court of Iowa Makes 2 Important Rulings On Co-Conspirator Admission Rule
The recent opinion of the Supreme Court of Iowa in State v. Tonelli, 2008 WL 2152529 (Iowa 2008), definitively answers two questions about Iowa's co-conspirator admission rule (Iowa Rule of Evidence 5.801(d)(2)(E)) which had remained unanswered for years. In Tonelli, several men living near Iowa State University planned a house party by putting an invitation on the internet site Facebook, purchasing two kegs of beer and other alcohol, making “Jell-O” shots, and making arrangements to collect money at the door and split the proceeds. According to the State, the men knew there were numerous people at the party who were under the legal age to drink alcohol and had reasonable cause to believe they were serving alcohol to minors. (One of the underaged guests was twenty-year-old Shanda Munn, who killed Kelly Laughery by striking Laughery with her vehicle after the party).
Three of the men were thereafter charged with the "serious misdemeanor" of providing alcohol to a person under the legal age. During a pretrial hearing, the State indicated that it intended to offer the incriminatory testimony of some of the men, pursuant to the co-conspirator admission rule (Iowa Rule of Evidence 5.801(d)(2)(E)), which indicates that "a statement by a coconspirator of a party during the course and in furtherance of the conspiracy" is admissible non-hearsay. Defense counsel objected, and the State thus filed a motion for adjudication of a law point, which eventually reached the Supreme Court of Iowa.
The Court noted that defense counsel's first argument was that Iowa Code Section 706.1 indicates in relevant part that "[a] person commits conspiracy with another if, with intent to promote or facilitate the commission of a crime which is an aggravated misdemeanor or felony, the person does either of the following:
a. Agrees with another that they or one or more of them will engage in conduct constituting the crime or an attempt or solicitation to commit the crime.
b. Agrees to aid another in the planning or commission of the crime or of an attempt or solicitation to commit the crime. "
According to defense counsel, because intent to commit a "serious misdemeanor" (such as providing alcohol to a minor) cannot constitute a "conspiracy" under this definition, the co-conspirator admission rule was inapplicable.
In rejecting this argument, the Court first cited a principle which I have previously mentioned on this blog, which is that a party does not need to be charged with the crime of conspiracy for the co-conspirator admission rule to apply. It then noted and approved of the federal court practice of distinguishing between the concept of conspiracy for purposes of the rule of evidence, which merely requires an agreement to engage in a joint venture, and the substantive elements of conspiracy under criminal law.
That left the Court with defense counsel's second argument, which was that for the co-conspirator admission rule to apply, the underlying goal of the joint venture and the means used to accomplish it must be illegal. According to defense counsel, because the mere planning of a party and sending of invitations are lawful acts and means, and statements made during that process could not qualify as co-conspirator admissions, even if the defendants had reasonable cause to believe they were serving alcohol to minors.
In analyzing this argument, the Court first noted that at least one court -- the D.C. Circuit in United States v. Gewin, 471 F.3d 197, 201 (D.C. Cir. 2006), had found that "the term conspiracy as used in the rule of evidence does not depend upon a goal to promote a crime or civil wrong." The Court, however, rejected this conclusion, finding that "[a] review of Iowa case law reveals that the term 'conspiracy' has generally been used in the context of unlawful conduct, whether civil or criminal." It thus determined that Iowa Rule of Evidence 5.801(d)(2)(E) "may be applied where there is evidence of a conspiracy to accomplish a criminal or unlawful act, or to do a lawful act in an unlawful manner, but not to combinations or agreements in furtherance of entirely lawful goals advanced by lawful means." That leaves it up to the trial court to determine the goals of the defendants in Tonelli and the mans they used to accomplish them.
I agree with the ruling of the Supreme Court of Iowa. After all, Federal Rule of Evidence 801(d)(2)(E) (and state counterparts) is the "co-conspirator" admission rule, not the "joint venturer" admission rule. And because the sine qua non of a conspiracy is the agreement to engage in unlawful conduct, application of the co-conspirator admission rule should, at a minimum, require an unlawful goal or unlawful means.
May 28, 2008
Runaway Jury: Iowa Court Precludes Jury Impeachment In Knee Infection Case
I've written several previous posts about Rule of Evidence 606(b), which generally prevents jurors from impeaching their verdicts after trial through testimony about what occurred during jury deliberations. The bulk of my posts have related to the sharp split among courts across the country as to whether, notwithstanding Rule 606(b), jurors should be able to impeach their verdicts after trial through testimony about, inter alia, racial or religious slurs (some of these posts can be found here and here). Indeed, after finishing an article about felony impeachment in quasi-criminals trial this summer, I will be writing an article this fall on why courts should apply the doctrine from Chambers v. Mississippi, 410 U.S. 284 (1973), to permit post-trial juror impeachment through testimony about racial or religious slurs, notwithstanding the rules of evidence.
But what of Rule 606(b) in general? Does it make sense? The Court of Appeals of Iowa's recent opinion in Reed v. Lyons, 2008 WL 2041686 (Iowa.App. 2008), provides a nice opportunity to review the Rule. In Lyons, Austin Reed began experiencing knee problems while wrestling in high school and college. He would occasionally have his knee aspirated (drained) by doctors, and the knee problems subsided for several years before returning in 2003. Thereafter, on July 30, 2003, Reed went to a clinic and reported to a physician's assistant that his knee had been swelling for the past seven to eight months and that he would aspirate his own knee two or three times each week. The physician assistant, Steve Greenwaldt, advised Reed to stop self-aspirating because it could lead to infection.
Greenwaldt then referred Reed to Dr. Lyons, who last treated Reed on October 29, 2003, when he aspirated a large hematoma, or blood clot, from Reed's knee, but did not send the hematoma for lab analysis because he thought there was no evidence that Reed's knee was infected. Thinking that his knee could be infected, Reed requested a referral to another orthopedic doctor, but on November 9, before a referral appointment was arranged, Reed's family had to take him to the emergency room after he was found passed out in his home. Reed was diagnosed with severe infection in his right knee and treated at a hospital.
Reed thereafter sued Dr. Lyons, claiming that his negligent medical treatment led to his knee infection, and a physician's note from this treatment stated that Reed "admits that on several occasions over the last few months he has self-aspirated the knee joint," which formed the basis for Dr. Lyons' defense of comparative negligence (At trial, Reed claimed that this was incorrect and he did not self-aspirate after July 30, 2003 when Greenwaldt told him to stop). Based upon this note, the judge gave an instruction which advised the jury that Reed could be apportioned fault if the jury was convinced that Reed was negligent by self-aspirating and this negligence was a proximate cause of the damage. After trial, the jury found Dr. Lyons was 10% at fault and Reed was 90% at fault.
After trial, however, two jurors came forward and indicated that the jury was not persuaded by Dr. Lyons' self-aspiration defense, but instead found that Reed was at fault because he did not seeking medical attention sooner (as noted, his knee began swelling 7-8 months before he sought treatment). The problem was that defense counsel presented no evidence at trial that Reed's delay in seeking treatment contributed to his infection, and the judge did not instruct the jury about whether Reed should have sought care for his infection symptoms earlier. Instead, the jurors merely used external evidence of jurors' experience with infection to reach their verdict.
Nonetheless, the court precluded these jurors from impeach their verdict pursuant to Iowa Rule of Evidence 5-606(b), which states in relevant part that "[u]pon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information [e.g., inadmissible evidence] was improperly brought to the jury’s attention or whether any outside influence [e.g., a threat from a party's friednd] was improperly brought to bear upon any juror."
According to the court, this rule is designed "to assure finality and prevent 'what is intended to be private deliberation, [from becoming] the constant subject of public investigation; to the destruction of all frankness and freedom of discussion and conference.'" What do readers think? Would allowing jurors to impeach their own verdicts through testimony about the internal jury deliberation process lead to juror harassment, and, as Justice O'Connor implied in Tanner v. United States, 483 U.S. 107 (1987), the destruction of the jury system itself? Or should the interest in preventing "unfair" verdicts outweigh any danger to jurors and/or the jury system? It's a tough question, and one that I'm not sure I can answer. I do, however, think that when there is evidence of racial, religious, or other prejudice in the jury room, impeachment should be allowed, and I hope to prove my case this fall.
May 27, 2008
Article of Interest: Professor Peter Margulies' Lawyering for Children: Confidentiality Meets Context
Last year, Roger Williams University School of Law Professor Peter S. Margulies published the terrific article, Lawyering for Children: Confidentiality Meets Context, as part of the St. John's University Symposium on "Race, Culture, Class, and Crisis in Child Welfare: Theory Into Practice." In the article, Margulies argues that attorneys representing children should utilize a "local competence view" under which they should explore three issues before deciding to disclose a "child client" confidence:
-(1) the likelihood and gravity of future harm;
-(2) the child's understanding of the consequence of the decision; and
-(3) the availability of alternatives to the current placement.
In Part, I, Margulies analyzes the current confidentiality framework for attorney-"child client" relationships. He begins by noting that many states take a "best interests" approach, under which "the lawyer may advocate for a position different from the one taken by the child, if the lawyer believes that the child's position would lead to an outcome prejudicial to her best interests." This approach, however, has increasingly given way to the belief "that children, if competent, should have the same authority as adults to make decisions." Margulies notes that this paradigm shift has dovetailed with the movement from a status-based conceptualization of capacity, which viewed children as wholly lacking in capacity, to the "consensus that capacity is not a global determination, with an all-or-nothing answer, but is instead a more textured, fluid inquiry." Finally, Margulies identifies the tendency of many courts to allow attorneys to disclose "child client" confidences to prevent harm to a child under a disjunctive standard, which allows for disclosure based upon "either the probability or gravity of harm."
In Part II, Margulies contends that attorneys representing children too often make the "fallacy of omniscience," under which they see themselves as child-savers, removing a child from an irreversibly harmful situation and into a separate peace. This fallacy is based in part upon failure to recognize flaws in cognitive and institutional dynamics, which result in the encouragement of the separation of child and parent and the discouragement of reunification. Margulies' solution is for attorneys to consider the strengths and weaknesses of all of the players in the child welfare arena before making disclosure decisions. These include:
-cognitive limitations: hindsight bias, presentism (undue weighing of present harms above harms in the future), representativeness (seeing superficial similarities between events or things as reflecting greater commonalities), and the attribution fallacy (attributing events to intentional action)
-organizational factors: children's lawyers are penalized and rewarded asymmetrically, being broadly condemned for advocating too aggressively for returning a child to a parent, but rarely receiving praise when reunification is successful; and
-race, culture, and class biases: attorneys sometimes miscomprehend the means of expression and living conditions of children from different socio-economic or ethnic backgrounds.
-subject to the same hindsight bias, asymmetrical incentive structure, and race/culture class biases as attorneys; and
-courts/judges faced with the crushing volume of child welfare cases tend to opt for risk-averse decisions.
Child Welfare Agencies:
-suffer from the same decisional deficits exhibits by both attorneys and courts;
-sometimes allow institutional momentum to influence questionable policy moves and permit funding sources to drive policy, with more funding available for foster care placements and less funding readily available for family reunification efforts that provide intensive services for families in need;
-sometimes engage in "group think;" and
-have the ability to learn.
-suffer from a collective action dynamic (the race to the bottom) which encourages policymaking that benefits their short-term political fortunes.
-have large deficits in their understandings of how consequences play out over time;
-(especially children under ten) have difficulty in conceptualizing a sense of self;
-(especially older children) face significant limitations in cognition and perception; and
-have insights that can advance a lawyer's understanding, and sometime confound expectations.
-many are simply people struggling to make due in a system where juggling is a never-ending necessity; and
-know more about their children than lawyers, judges, or social workers ever could.
In Part III, Margulies argues that after analyzing these local competencies of each of the players, attorneys should apply the aforementioned three issues in the following manner before deciding to disclose a "child client" confidence:
-(1) the likelihood and gravity of future harm: use a conjunctive test, with disclosure only to prevent both a probable and a grave harm to the child.
-(2) the child's understanding of the consequence of the decision: draw a boundary between second guessing a child client's decision and assessing the child's reasoning response.
-(3) the availability of alternatives to the current placement: examine proposed alternative placements from the child's point of view.
Margulies then proceeds to apply his test to several specific child welfare scenarios: (1) parental discipline; (2) recurrence of neglect; (3)recurrence of parental substance abuse; (4) disclosure to a mental health professional; (5) disclosure to a parent; and (6) disclosure and "children having children." Margulies concludes by lamenting that in some states, his test is precluded based upon the requirement of mandatory reporting of child abuse, which he contends "frustrates lawyer-client dialogue, exacerbates racial and socio-economic disparities in the child welfare system, and may actually make children less safe."
I asked Professor Margulies about what led him to write the article and his forthcoming scholarship, and he responded:
"I've written about lawyering for children, senior citizens, and people with mental disabilities in pieces published in symposia in the Fordham L. Rev. over the last 12-14 years, and I've been interested in how the lawyer balances her role as a gatekeeper for systemic integrity and the public interest with her role as zealous advocate. My current focus is on legal ethics and national security; I've written an article entitled, "True Believers at Law: National Security Agendas, the Regulation of Lawyers, and the Separation of Powers," forthcoming in the Maryland L. Rev., and also available on SSRN."
(The Fordham articles can be found at 62 Fordham L. Rev. 1073, 64 Fordham L. Rev. 1473, and 67 Fordham L. Rev. 2339. The forthcoming Maryland Law Review article can be downloaded from SSRN [SSRN link]).
I highly recommend Margulies' article to the subjects of his article: all of the players in the child welfare arena. More specifically, it is a must read for lawyers and professors dealing with both family law and professional responsibility issues.
May 26, 2008
Imagine John Lennon Dead, Take 2: Memorial Day Case Reveals That Tennessee Allows Expert Opinion Testimony On Premeditation
The opinion of the Court of Criminal Appeals of Tennessee in State v. Mobley, 2007 WL 1670195 (Tenn. Crim.App. 2007), reveals that Tennessee allows expert opinion testimony on whether a defendant acted with or without premeditation. In Mobley, Brandon Mobley was convicted of two counts of first degree murder, especially aggravated robbery, and setting fire to personal property. The evidence presented at trial indicated that Mobley killed two men on Memorial Day, 2003, over an unpaid drug debt and then burned the car in which he shot the victims.
Before Mobley testified, defense counsel sought to call Dr. Pam Auble, who was prepared to testify that she examined and performed personality tests on Mobley, which led to her belief that Mobley suffered from major depression, viewed himself in a bleak way, and had trouble controlling emotions. Dr. Auble would have testified that Mobley tended to respond first, and think second, and thus that due to the Mobley's mental diseases or defects, he could not have premeditated the shooting. The State objected to this proposed testimony, and the trial judge sustained the objection. After Mobley testified, however, the State withdrew its objection to Dr. Auble's testimony, and she went on to fully testify about the Mobley's mental issues and their effect on his ability to premeditate.
After Mobley was convicted, he appealed, claiming, inter alia, that the trial judge improperly excluded Dr. Auble's testimony, and the Court of Criminal Appeals of Tennessee agreed that the trial judge initially acted in error, but found this error to be harmless because Dr. Auble was later allowed to testify. This decision seems correct and straightforward to me, but the interesting aspect of the decision is that Dr. Auble would not have been allowed to testify under the Federal Rules of Evidence.
Both Tennessee Rule of Evidence 704 and Federal Rule of Evidence 704(a) provide that expert opinion testimony is not objectionable because it embraces an ultimate issue to be decided by the trier of fact, which would make expert opinion testimony about premeditation non-objectionable. However, as I havenoted before, in 1984, after the public outrage that resulted from Mark David Chapman's insanity defense in his trial for murdering John Lennon and John Hinckley, Jr.'s insanity defense in his alleged "Taxi Driver" inspired attempt on the life of Ronald Reagan, Congress decided to pass the Insanity Defense Act of 1984.
As a result of this Act, Rule 704(b) was added to the Federal Rules of Evidence. According to Rule 704(b), "[n]o expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone." Rule 704(b), however, wasn't crafted solely to prevent expert opinion testimony on the issue of insanity; instead, it was fashioned to reach issues such as "premeditation in a homicide case, or lack of predisposition in entrapment." S. Rep. No. 225, 98th Cong., 1st Sess. 230 (1983).
Tennessee, however, has never adopted a state counterpart to Federal Rule of Evidence 704(b). Instead, it enacted T.C.A. Section 39-11-501, which states that "no expert witness may testify as to whether the defendant was or was not insane." According to the 1996 Advisory Committee Comments to Tennessee Rule of Evidence 704, this is the only ultimate issue outside the scope of expert testimony, which explains why Dr. Auble's testimony on premeditation was admissible.
May 25, 2008
Constructive Criticism: Court of Appeals of Texas Hints That Constructive Notice Might Be Sufficient Under Rule 404(b)
The Court of Appeals of Texas' recent opinion in Freeman v. State, 2008 WL 2122419 (Tex.App.-Tyler 2008), raises the specter that the court may only require constructive notice in Rule 404(b) criminal cases. In Freeman, Kenneth D. Freeman appealed his conviction for delivery of a controlled substance. Freeman conviction was based upon his sale of cocaine to a confidential informant at a Denny's restaurant. At trial, the prosecution entered against Freeman:
-evidence of a second drug transaction at the Denny's restaurant; and
-evidence that Appellant's house was a place where crack cocaine could be purchased.
This evidence was admitted under Texas Rule of Evidence 404(b), which states in relevant part that "[e]vidence of other crimes, wrongs or acts...may...be admissible for...purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon timely request by the accused in a criminal case, reasonable notice is given in advance of trial of intent to introduce in the State's case-in-chief such evidence other than that arising in the same transaction."
On appeal, Freeman claimed, inter alia, that the State failed to provide him with the "reasonable notice" required under Rule 404(b) of its intent to introduce the above evidence. The Court of Appeals of Texas noted that in the State's discovery compliance, its only reference to the above evidence was a single sentence, which read:
"State intends to offer extraneous offenses or bad acts included in attached documents, including defendant's prior criminal history as well as any bond violation committed by the defendant while on bond for this offense, under [Texas Rule of Evidence 404(b) and 609[,] rules of criminal [sic] evidence[,] and 37.07(3)(G)[,] code of criminal procedure.
The Court of Appeals of Texas then indicated that Freeman "does not deny that this provides some kind of constructive notice, but argues that it did not give him 'reasonable, specific notice' of what it was that the State intended to offer. [Freeman] argues further that he was not prepared to defend against the additional information because of the deficiency of the notice." (emphasis added). The Court of Appeals noted that its function on appeal was to determine whether Freeman was harmed by the State's allegedly deficient notice, with Rule 404(b) only being violated if the State's notice was "injurious."
It then found that the problem with Freeman's claim was that his counsel admitted to the judge, "Judge, I didn't say I was surprised or I was disadvantaged. All I'm saying is it didn't meet the requirements of 404(b), Judge." The Court of Appeals thus found that it did not need to "decide whether the notice was sufficient to apprise [Freeman] of the evidence because his counsel was not surprised by the extraneous information."
Well, let me answer that question by concluding that the "constructive notice" allegedly provided by the State was insufficient under Rule 404(b) and should have formed the basis for a reversal if it were indeed injurious. According to the Advisory Committee's Note to the 1991 amendment to Federal Rule of Evidence 404(b) (which added the notice requirement and upon which Texas Rule of Evidence 404(b) is based) indicates that the notice requirement "is intended to reduce surprise and promote early resolution on the issue of admissibility." (emphasis added). The Notes further state the notice provision "requires the prosecution to apprise the defense of the general nature of the evidence of extrinsic acts."
The questions, then, seem to be (1) whether the State's notice was calculated to promote early resolution of the issue of admissibility, and (2) whether the State's notice was calculated to apprise the defendant of the general nature of the evidence of the extrinsic acts it sought to admit? I would argue that it was calculated to do neither. The one sentence "notice" neither indicated the specific acts (nor their general nature) the State sought to introduce against Freeman, nor did it even hint at the purpose for which the State sought to introduce those acts. Thus, the State's "notice" was not in compliance with the goals behind Rule 404(b)'s notice requirement.