July 5, 2008
Heavy Metal Parking Lot: Case Reveals That Tennessee Has Stricter Limits On Rule 404(b) Evidence Than Do The Federal Rules
A lawsuit against a security guard reveals that Tennessee has very specific rules governing the admissibility of "other act" evidence pursuant to its version of Federal Rule of Evidence 404(b). On May 16th, security guard Jeremy Holmes shot Adam Villegas, causing his death. Villegas had been at patron at the Marathon Sports Bar, which closed at 3:00 A.M. According to Holmes:
Villegas left the bar and entered his car, but did not leave the parking lot. Instead Villegas got into an argument with Holmes, prompting Holmes to order Villegas to leave the parking lot. When Villegas didn't immediately comply, the pair argued and Holmes walked toward the rear of the car when Villegas reportedly started to move the car. Holmes reportedly ordered him to stop, and when Villegas failed to do so, Holmes shot him because he thought that Villegas planned on striking him with the car.
Others claim that Holmes acted without provocation, and Robert Meeks believes them. The day before this incident, Meeks filed a lawsuit against Holmes, alleging similar behavior. He claimed that on July 4, 2007 Holmes was on duty near a truck parking lot when he ordered Meeks to move his car. According to Meeks, Holmes thereafter attacked him without warning. He specifically claimed that Holmes handcuffed him and then threatened and assaulted him.
According to former prosecutor Jim Todd, evidence of the shooting will likely be inadmissible in Meeks' lawsuit because "[p]rior bad acts, which are what this would be labeled as, are not admissible to show that somebody is a bad person." Indeed, this is correct as Tennessee Rule of Evidence 404(a) makes clear that "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity with the character or trait on a particular occasion."
"Evidence of other crimes, wrongs, or acts...may...be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial."
So, in other words, if Meeks wanted to introduce evidence of the shooting to prove that Holmes had a common plan or modus operandi of attacking parking lot patrons, he might be able to introduce that evidence under Federal Rule of Evidence 404(b), although such an argument would appear to me to be a stretch (there are only 2 incidents and they don't seem to be that similar). My review reveals that Tennessee Rule of Evidence 404(b) makes the admission of such evidence more difficult. In relevant part, Tennessee Rule of Evidence 404(b) states that:
"Evidence of other crimes, wrongs, or acts...may...be admissible for other purposes. The conditions which must be satisfied before allowing such evidence are:
(1) The court upon request must hold a hearing outside the jury’s presence;
(2) The court must determine that a material issue exists other than conduct conforming with a character trait and must upon request state on the record the material issue, the ruling, and the reasons for admitting the evidence;
(3) The court must find proof of the other crime, wrong, or act to be clear and convincing; and
(4) The court must exclude the evidence if its probative value is outweighed by the danger of unfair prejudice."
In other words, Tennessee Court place the hurdle much higher before evidence of other crimes, wrongs, or acts can be admissible based upon fear that jurors will misuse the evidence as propensity/conformity evidence. Personally, I agree with the Tennessee's decision. I have previously lamented how courts have overused Rule 404(b) to admit evidence that will more likely be used by juror as propensity/conformity evidence than as "other purpose" evidence, and I think that Tennessee's rule requires judges to exclude such evidence in these cases.
July 4, 2008
Killed On The Fourth Of July: July 4th Murder Case Helps Explain Federal Rule of Evidence 405(b)
The opinion of the Eighth Circuit in United States v. Gregg, 451 F.3d 930 (8th Cir. 2006), provides a nice opportunity to explain the oft misunderstood Federal Rule of Evidence 405(b). Here is a (very) condensed recitation of the facts in Gregg:
On the evening of July 3, 2004, and into the morning of July 4, 2004, James Allen Gregg, a twenty-four year old veteran who served in Iraq, was spending time with friends on the Crow Creek Reservation, including James Fallis and Jerrod Fallis, twin brothers of Indian heritage, whom he had known since the fourth grade. Gregg and others, including the Fallis brothers, had been drinking most of the evening at a bar, a residential trailer, and then finally, at a mint farm. While at the mint farm, Gregg expressed interest in a woman, but she spurned him to spend time with Jerrod. After receiving this rejection, Gregg and his friend Jacob Big Eagle drove around the reservation, and, upon their return, they found the woman with Jerrod in James's new car, leaving the mint farm. According to witnesses, Gregg accelerated, spraying gravel onto James's new car before returning to the mint farm to rejoin the drinking party. When Jerrod returned, James and he confronted Gregg about the car incident, and there was a verbal and physical altercation between James and Gregg
After the fight, everyone went their separate ways, but Gregg later drove to James' trailer to, according to him, apologize to James. Upon Gregg's arrival, James came out of the trailer, stating, “You come back for more ... You want to fight?" According to Gregg, James then tried to pull him out of his truck. Other witnesses, however, alleged that James opened the door, but then closed it immediately. During the altercation, Gregg grabbed a pistol in his car and pointed it at James, telling him to back away. Gregg claimed that James responded by saying, “You want to fuck with guns? I got guns!” and then ran toward his truck. Other witnesses, however, claimed that they heard James say the first sentence, but they did not hear him say he had guns. As James was running away from the truck, Gregg shot at James nine times, hitting him five times in the back and wounding him fatally. After Gregg's trial, a jury convicted him of second degree murder and discharging a firearm during a crime of violence.
Gregg then appealed, claiming, inter alia, that the trial court erred in precluding him from introducing prior acts of violence by James to prove that James was the aggressor in the altercation and that he was acting in self-defense. The Eighth Circuit began by noting that pursuant to Federal Rule of Evidence 404(a)(2), Gregg could introduce evidence of James' violent character to prove that he was the aggressor in the altercation.
The court, however, noted that in most cases, the only evidence of James' violent character that Gregg could introduce was, pursuant to Federal Rule of Evidence 405(a), opinion and reputation evidence, not specific act evidence. It did note that, pursuant to Federal Rule of Evidence 405(b), "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct." The Eighth Circuit, however, found that a self-defense case is not such a case. Why?
Well, this is an issue that causes a lot of people a lot of problems, and I think that the reason is that it is counterintuitive. And the reason is that character is an essential element of a charge, claim, or defense only in cases where a party is not using character evidence to prove that the opposing party acted in conformity with their character at the time of the alleged crime.
At first, this might sound confusing, but let's look at the two examples cited by the Advisory Committee to see why it makes sense. According to the Advisory Committee's Note to Rule 404(a), "[c]haracter may itself be an element of a crime, claim, or defense. A situation of this kind is commonly referred to as 'character in issue.' Illustrations are: the chastity of the victim under a statute specifying her chastity as an element of the crime of seduction, or the competency of the driver in an action for negligently entrusting a motor vehicle to an incompetent driver."
While of course it is no longer a crime, English common law defined the crime of seduction as a felony committed "when a male person induced an unmarried female of previously chaste character to engage in an act of sexual intercourse on a promise of marriage." So, if the defendant used past acts of sexual intercourse by the alleged victim in such a case, it would not be to prove that she acted in conformity with her "loose" character and engaged in intercourse with him (indeed, his defense might be that there was no sexual act); instead, it would be to prove that she was not chaste and could not be a victim under the statute.
Meanwhile, in the negligent entrustment scenario cited by the Advisory Committee, let's say that the plaintiff claimed that the driver had 5 DUIs. The plaintiff would not be using these past acts to prove that the driver was driving drunk at the time of the accident (this would be precluded under the character evidence rules); instead, he would be using those acts to prove that the owner of the car was or should have been aware of the driver's past history and thus negligently entrusted his car to the driver (and the same applies to the negligent hiring/supervision scenario).
Conversely, in a self-defense case, the fact that the alleged victim committed past acts of violence has no relevance except to prove (1) that the alleged victim acted in conformity with his violent past at the time of the alleged crime, which is prohibited under the Rules, or (2) to prove that the defendant knew about the alleged victim's past and had reason to fear him, an argument which the court rejected because Gregg failed to prove that he had such knowledge.
July 3, 2008
About Schmidt: Court Of Appeals Of Texas Makes Improper Jury Impeachment Ruling In San Antonio Spurs Case
In my mind, the recent opinion in Medistar Corp. v. Schmidt, 2008 WL 2514802 (Tex.App.-San Antonio 2008), contains a clearly erroneous ruling. In Schmidt, Medistar Corporation filed suit against several physicians, alleging fraud, breach of contract, breach of partnership, civil conspiracy, promissory estoppel, and other causes of action. Medistar's allegations stemmed from a development project in which Medistar was to develop a medical facility for the physicians. Specifically, Dr. Schmidt, a team physician for the San Antonio Spurs basketball team, developed the idea to build a state-of-the-art integrated medical plaza adjacent to the training facility Medistar had recently constructed for the Spurs, and Medistar claimed to have spent more than $1 million and devoted thousands of man-hours to developing the medical facility before the physicians excluded Medistar from the project. After a jury trial, inter alia, the jury agreed with Medistar's promissory estoppel claim against Dr. Schmidt and awarded it $418,069.63 on the claim, but while it also agreed with Medistar's fraud and civil conspiracy claims against Schmidt, it awarded Medistar no damages on those claims.
Both parties appealed, with Medistar moving for a new trial based upon, inter alia, alleged bailiff and juror misconduct. The alleged juror misconduct consisted of: (1) juror Barbara Poettgen convincing several other jurors that Medistar's Chief Executive Officer, Monzer Hourani, was a litigious litigant who did not deserve any damages, (2) jurors ignoring the court's instructions, and (3) jurors agreeing to let any ten votes determine the answers to the issues. The Court of Appeals found that none of these acts of alleged misconduct could form the basis for a new trial, and looking at Texas Rule of Evidence 606(b) I agree. Even if the alleged juror misconduct occurred, Texas Rule of Evidence 606(b) provides that:
"Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve."
In other words, because all three of the alleged acts of juror misconduct involved improper internal influences on the jury, they could not form the basis for jury impeachment. That left the Court of Appeals with the issue of the alleged misconduct by the bailiff. According to Medistar, when the jurors were deadlocked "7 to 5," (the opinion doesn't indicate the exact nature of the deadlock or which side had 7 votes), the district court bailiff improperly told jurors:
"(1) they would not be paid their fee if they had to return on another day to continue their deliberations as a result of their being deadlocked; and
(2) if they remained deadlocked, they would have to wait another week to continue their deliberations since the trial court planned to close the court the following week for spring break vacation."
Because this alleged incident involved improper outside influence on the jury, it could form the basis for jury impeachment and, potentially, a new trial. Nonetheless, the Court of Appeals found that it could not
"conclude that it reasonably appears from the record that injury probably resulted to Medistar from the bailiff's conduct. Medistar did not produce any evidence at the motion for new trial hearing regarding the impact of the bailiff's communications on the jurors. Thus, we are left to speculate as to whether the bailiff's comments actually caused a juror to vote differently than he or she would otherwise have done absent the comments. We must therefore conclude the record does not support Medistar's contention that it was injured as a result of the bailiff's misconduct."
This conclusion is nonsensical under Rule 606(b). As noted, Texas Rule of Evidence 606(b) strictly prevents a juror from testifying about "the effect of anything on any juror's mind or emotions or mental processes." In other words, even if jurors could testify about the bailiff's comments because they constituted an improper outside influence on the jury, those jurors could not testify about the effect of those comments; that analysis is left for the court. See, e.g., Pyles v. Johnson, 136 F.3d 986, 992 (5th Cir. 1998).
Thus, there was no way that Medistar could have "produce[d] any evidence at the motion for new trial hearing regarding the impact of the bailiff's communications on the jurors," and it was the job of the Court of Appeals of Texas, as it is in all Rule 606(b) cases, to "to speculate as to whether the bailiff's comments actually caused a juror to vote differently than he or she would otherwise have done absent the comments." What the Court of Appeals should have done was make an objective assessment of what effect the bailiff's comments would have had on the average juror and determine whether Medistar likely suffered "substantial prejudice" as a result of the jury's exposure to the extraneous information.
Personally, I believe that Medistar did likely suffer "substantial prejudice" from the bailiff's comments, but the court's error was not in disagreeing with me; instead, its error was in failing to conduct the required analysis altogether.
July 2, 2008
Three Is The Magic Number: Supreme Court Of Rhode Island Affirms Hearsay Ruling, Despite 2/3 Of Trial Court's Grounds Being Wrong
The recent opinion of Supreme Court of Rhode Island in State v. Barkmeyer, 2008 WL 2468804 (R.I. 2008), contains lengthy discussions of a number of interesting legal issues, but I will focus on the three evidentiary issues addressed by the court. Here are the (very) condensed facts of the case:
While bathing her eight-year-old daughter, Jane, Jennifer Barkmeyer noticed blood in the child's underwear and called her daughter's pediatrician for an appointment. The pediatrician thereafter examined Jane and found bruising in her vaginal area, and, suspecting sexual abuse, notified the Department of Children, Youth and Families (DCYF) about his suspicion that Jane had been molested. Jane's stepfather, Ronald Barkmeyer, accompanied Jane to a meeting with DYCF child-protective investigator Laurie Houle at a hospital. According to Houle, during her conversation with Jane, the child pointed to Ronald and said that he had caused her injuries while her mother was at work.
Ronald was subsequently charged with first-degree child molestation sexual assault. When the prosecution sought to have Houle testify concerning Jane's statement to her, defense counsel objected that these statements constituted inadmissible hearsay. The trial judge overruled this objection, finding that the statement was admissible: (1) under the medical-diagnosis-and-treatment-hearsay exception [Rhode Island Rule of Evidence 803(4)]; (2) as an identification of an assailant [Rhode Island Rule of Evidence 801(d)(1)(C); and (3) as a prior consistent statement, [Rhode Island Rule of Evidence 801(d)(1)(B)], to rebut an implied charge of improper influence. After Ronald was convicted, he appealed, contending, inter alia, that the trial judge erred in allowing Houle to testify concerning Jane's statement. His appeal eventually reached the Rhode Island Supremes, who affirmed his conviction, despite finding that the first two hearsay exceptions cited by the trial judge were inapplicable. Why?
First, according to Rhode Island Rule of Evidence 803(4) -- the medical-diagnosis-and-treatment-hearsay exception -- "[s]tatements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment, but not including statements made to a physician consulted solely for the purposes of preparing for litigation or obtaining testimony for trial" are admissible as an exception to the rule against hearsay. The Court presumably found this exception to be inapplicable because it accepted Ronald's argument that Jane's statement "was not for the purpose of medical diagnosis or treatment," a holding that seems consistent with prior precedent in which the same court "assume[d] without deciding" that Rule 803(4) does not apply to statements made to DCYF investigators. See In re Nicole B., 703 A.2d 612, 616 (R.I. 1997).
Second, according to Rhode Island Rule of Evidence 801(d)(1)(C), "[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the [person]." The Court presumably found this Rule to be inapplicable because it accepted Ronald's argument that "identification was not an issue in the case." Again, this ruling appears to be correct although I found no Rhode Island precedent on point.
To wit, take the opinion of the Supreme Court of Minnesota in State v. Robinson, 718 N.W.2d 400 (Minn. 2006). There, the Court found that the trial court erred in admitting statements made by a woman to two hospital nurses identifying her boyfriend as her assailant. The Court noted that there is
"an important distinction between an 'identification' of an unknown offender, which is covered by Rule 801(d)(1)(C), and an 'accusation' of a known offender, which is not....The rationale behind the rule 'stems from the belief that if the original identification procedures were conducted fairly, the prior identification would tend to be more probative than an identification at trial....'This rationale applies to cases involving the prior identification of an unknown offender, where the in-court identification is so highly suggestive that it would be misleading if the jury were allowed to believe that this was the witness's only identification of the offender. Rule 801(d)(1)(C) was adopted to remedy this unique problem. But in the case of a known offender, we see no reason to prefer a witness's out-of-court accusation over his or her in-court accusation. We hold that Rule 801(d)(1)(C) does not extend to the out-of-court accusation against an offender whose identity was well-known to the victim."
This left the Supreme Court of Rhode Island with only the prior consistent statement rule as a possible ground for admitting Jane's statement. Luckily for the Court, the shoe fit. According to Rhode Island Rule of Evidence 801(d)(1)(B), "[a] statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive."
The Court found that this Rule applied because Jane identified her stepfather as her assailant at trial and because: "During defense counsel's earlier cross-examination of Jane, defense counsel elicited from Jane that she met with the prosecution 'to go over and practice what [she was] going to say in court' and implied that the state suggested the answers she would give about what happened. Defense counsel also questioned Jane about her fantasizing and making up stories during her counseling sessions." The Court found that defense counsel thus at least impliedly charged that Jane was lying based upon her meetings with prosecutors and her counselor, allowing for the admission of her statement to the DYCF investigator, which pre-dated those meetings and which was consistent with her trial testimony.
July 1, 2008
Forfeit Victory, Take 10: Giles Opinion Reveals That "Testimonial" Dying Declarations Don't Violate The Confrontation Clause
While the Supreme Court's opinion last week in Giles v. California was primarily focused upon the forfeiture by wrongdoing doctrine, it also clarified that even "testimonial" dying declarations are not violative of the Confrontation Clause. As I have noted before, in its seminal ruling in Crawford v. Washington, the Supreme Court stated in 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."
So, the Supreme Court did "not decide" whether "testimonial" dying declarations are admissible against a criminal defendant despite the Confrontation Clause, although it clearly hinted at such a finding. In Giles v. California, however, the Court seemed to clearly come to such a conclusion.
In the majority opinion, Scalia noted that the state's argument (and the California Supreme Court's holding) was that application of the forfeiture by wrongdoing doctrine would not violate the Confrontation Clause if a defendant rendered a prospective witness unavailable to testify, even if the defendant did not specifically intend to render the prospective witness unavailable. Scalia then indicated that the relevant question was "whether the theory of forfeiture by wrongdoing accepted by the California Supreme Court [wa]s a founding era exception to the confrontation right." He then answered the question in the negative, finding that there were only "two forms of testimonial statements...admitted at common law even though they were unconfronted."
(1) "declarations made by a speaker who was both on the brink of death and aware that he was dying," and
(2) "statements of a witness who was 'detained' or 'kept away' by the 'means or procurement' of the defendant."
Finding that the state's formulation of the forfeiture by wrongdoing doctrine was not consistent with either of these forms of testimonial statements, the Supreme Court declined to approve of the California Supreme Court's exception to the Confrontation Clause.
Of course, implicit in this holding, and the question posed by Justice Scalia, is that even "testimonial" dying declarations are indeed admissible without regard for the Confrontation Clause. So, what exactly does that mean?
Well, take the upcoming murder trial of Clenton "Boo" Sanders in Nebraska. The 23 year-old Sanders has been charged with murdering Patricia McCaskill, with prosecutors believing that Sanders killed her because, inter alia, she disapproved of his relationship with her teenage daughter. Before trial, prosecutors moved to admit certain statements McCaskill made to a police officer after she had been shot. Specifically, after telling the officer that she couldn't breathe, McCaskill told him, "Boo shot me." When the officer asked McCaskill for the last name of her shooter, she responded, "Sanders." The judge ruled that the officer could testify concerning these statements because they were dying declarations under Nebraska Rule of Evidence 804(2)(b), which allows for the admission of "[a] statement made by a[n] [unavailable] declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death."
If the Supreme Court had found that "testimonial" dying declarations violate the Confrontation Clause, there is a good chance that McCaskill's statements could not have been admitted against Sanders because they were possibly "testimonial" (in that they were made with the expectation and under circumstances suggesting that the statements would eventually be used in a criminal prosecution), and Sanders obviously had no opportunity to cross-examine her. But, with the Supreme Court pretty clearly holding in Giles v. California that "testimonial" dying declarations are admissible without regard for the Confrontation Clause, there is no problem with the admission of McCaskill's statements.
June 30, 2008
Fight Or Flight?: Mississippi Court Approves Use Of Flight Instruction WIthout Much Analysis
The recent opinion of the Court of Appeals of Mississippi in Mask v. State, 2008 WL 2498236 (Miss.App. 2008), is what I regard as an incomplete decision. In Mask, on February 29, 2004, Charles Bascomb and his son, Jason Zubke, were parked in a car on County Road 306 in Alcorn County, Mississippi when Mask approached the car and shot Bascomb in the back. Bascomb died five days later, and for twenty days thereafter, Mask evaded numerous attempts for his arrest. Mask was eventually arrested in Alcorn County, whereupon he gave two conflicting accounts of the shooting to Investigator Michael Beckner. According to Mask's first account, he shot Bascomb when Bascomb and he were fighting over a gun. During a second interrogation, Mask claimed self-defense, alleging that he had to shoot Bascomb or Bascomb would shoot him.
At Mask's murder trial, Mask did not raise the defense of self-defense (indeed, he presented no witnesses), and Beckner testified concerning both of Mask's accountings of the shooting. The court thereafter accepted the state's jury instruction, which informed the jury that Mask's evasions from the police in the aftermath of the shooting were circumstantial evidence of a guilty state of mind. After Mask was convicted of murder, he appealed, claiming that the trial court erred in giving this instruction.
Mask correctly noted that a jury instruction on flight is appropriate only where the flight is unexplained and not where there might have been another reason beyond guilt that precipitated a defendant's flight. He then cited to the Supreme Court of Mississippi's opinion in Tran v. State, 681 So.2d 514, 519 (Miss. 1996), in which the defendant claimed self-defense and that he fled from the scene of the murder for fear of retaliation, and the court held that:
"where the defendant is arguing self-defense, a flight instruction should be automatically ruled out and found to be of no probative value. A flight instruction will have particular prejudicial effect in a case where self-defense is argued. Where the person against whom self-defense has been exercised...flight seems logical and necessary....To suggest and highlight, through the sanction of a court granted instruction, that the defendant's flight was possibly an indication of guilt suggests that the court does not accept the self-defense argument."
The Court of Appeals, however, found Tran to be distinguishable. One distinguishing ground was that the defendant in Tran explained that he fled because he was trying to avoid retribution, whereas there was no evidence that Mask fled because he feared retribution. Based upon the above cited passage from Tran, though, this seems to be an irrelevant distinction because the Court in Tran held that a flight instruction is automatically inadmissible in cases where defendant argues self-defense, without any mention of a need for a fear of retaliation (altough I don't necessarily agree with such a broad holding).
The second ground was that the defendant in Tran actively pursued the defense of self-defense, whereas in Mask, the only evidence of the possibility of self-defense came from Investigator Beckner's testimony regarding what Mask told him during the two interrogations. To me, this provided a legitimate reason for the court in Mask to depart from Tran, but keep in mind that Tran merely said that the flight instruction is per se inadmissible when the defendant argues self-defense. To me that leaves open the (strong) possibility that a court should engage in a somewhat rigorous analysis of whether a flight instruction is proper when there is evidence that a defendant acted in self-defense, even when the defendant himself doesn't argue self-defense. Instead, the court in Mask merely found that Tran was inapplicable and thus curtly concluded that the flight instruction was properly given.
June 29, 2008
I'm So Excited: Court Of Criminal Appeals Of Texas Finally Agrees With My "Subsequent Startling Occurrence" Formulation Of The Excited Utterance Exception
A few years ago, I wrote the article, A Shock to the System: Analyzing the Conflict Among Courts Over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 WM. & MARY J. WOMEN & L. 49 (2005). The basis for the article was a memorandum I wrote for the Justices of the Supreme Court of Virginia asking them to deny cert in Esser v. Commonwealth, 566 S.E.2d 876 (Va. Ct. App. 2002). In Esser, a mentally and physically challenged nineteen-year-old was told by her mother that she was being returned to her aunt's house. The girl began to cry hysterically and told her mother that her aunt's live-in boyfriend raped her and that she feared that she might be pregnant. The trial court found that the girl's statements were admissible as excited utterances, the Court of Appeals of Virginia affirmed, and the Virginia Supremes denied cert, agreeing with me that the statements constituted excited utterances.
In doing research on the matter, however, I found that several courts came to the opposite conclusion, with the majority of those courts being Texas state courts. For instance, in Mosely v. State, 960 S.W.2d (Tex. App. 1997), a three-year-old girl lived with her step-grandmother and frequently visited her father. She was allegedly sexually assaulted by her father on several of these visits. In the week before a visit with her father, the daughter "became agitated and 'panicky' at the prospect of returning to visit [her father]," crying and claiming that he had hurt her. The court found that these statements did not constitute excited utterances because "[t]he 'excitement' experienced by the declarant must be continuous between the event itself and the statement describing it."
In my article, I attacked Mosley and similar cases, noting that the the key to excited utterances is that they are made spontaneously while under the stress of some startling occurrence; there is no need that they be contemporaneous with the initial occurrence itself. Also, unlike some of the other exceptions derived from res gestae, excited utterances do not derive their reliability from the fact that the original startling occurrence is fresh in the memory of the declarant. I thus argued that a subsequent startling occurrence can form the predicate for an excited utterance about an earlier startling occurrence when the subsequent occurrence rekindles the original stress of the underlying occurrence, such as when an alleged victim is confronted with the prospect of being returned to her abuser.
Well, it looks like on Wednesday, the Court of Criminal Appeals of Texas, Texas' highest court for criminal cases, finally agreed with me in McCarty v. State, 2008 WL 2512818 (Tex.Crim.App. 2008). In McCarty, Andrew Tyrone McCarty was convicted of two counts of indecency with his five-year-old step-daughter. One of the witnesses against McCarty was the complainant's grandmother, who testified over McCarty's objection that when the complainant's uncle tickled her, she began to cry and said, "Don't do that. I don't like being touched by boys and men no more. Andrew pulled up my blouse and was tickling my ribs and touched me." After being convicted, McCarty appealed, with his appeal eventually reaching the Court of Criminal Appeals of Texas.
The court noted that the excited utterance exception contained in Texas Rule of Evidence 803(2) allows for "[a] statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition." to be admitted as an exception to the rule against hearsay. The court the found that "under the excited-utterance exception, the startling event may trigger a spontaneous statement that relates to a much earlier incident" and affirmed McCarty's conviction.
So, there you have it. In any future criminal case, in Texas, a statement triggered by a subsequent startling occurrence should be able to from the predicate for an excited utterance about an earlier crime.