August 16, 2008
Fargo: North Dakota Case Reveals That Few Identifications Are Deemed Unnecessarily Or Impermissibly Suggestive
A case from North Dakota reveals that its courts do not necessarily deem eyewitness identifications inadmissible even when they are made while the defendant is handcuffed and surrounded by uniformed officers. Fargo resident Elijah Addai is currently standing trial for the fatal stabbing of David Delonais. Soon after the stabbing, Addai was stopped in a vehicle near the crime scene, whereupon he was handcuffed and surrounded by uniformed officers. At this time, two women who allegedly witnessed the crime identified him as the murderer.
The prosecution sought to (a) have these two women identify Addai at trial, and (b) admit evidence of these identifications during Addai's trial. And indeed, there would be no problem with this testimony/evidence under North Dakota Rule of Evidence 801(d)(1)(iii), which indicates that "[a] statment 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."
Addai's attorney, however, moved to preclude these identifications, ostensibly because the identifications were unnecessarily or impermissibly suggestive. District Court Judge Cynthia Rothe-Seeger denied this motion, and a review of North Dakota precedent backs her up.
In State v. Norrid, 611 N.W.2d 866 (N.D. 2000), the Supreme Court of North Dakota affirmed a lower court's decision to admit an eyewitness identification, finding that:
"Although Norrid claims it is not entirely clear the trial court applied the correct analysis in deciding whether this showup was suggestive, the court's decision states 'it does seem to me that the setting was suggestive in that the defendant was in handcuffs and he was surrounded by police and there was a spotlight shining on him and no other options were presented' to the victim. The court effectively decided this showup was suggestive. However, that decision does not end the inquiry, which then turns to whether the identification was 'unnecessarily or impermissibly' suggestive. The trial court examined the reasons why the identification was conducted in this manner, citing law enforcement concerns about apprehending the right person as quickly as possible so, if there was a perpetrator still at large, Norrid could be released and law enforcement could pursue the perpetrator. Similar reasons have generally sufficed to support a decision an identification was not unnecessarily suggestive."
So, Judge Rothe-Seeger's conclusion is in line with past precedent, but is that precedent correct? Don't the concerns cited by the North Dakota Supremes apply in all cases? Don't police officers always want to apprehend the right perpetrator as quickly as possible? Don't they always want to be able to dismiss false suspects quickly so that they can move on to other suspects? It seems to me that an identification of a handcuffed and officer-surrounded suspect is either proper or improper (I would claim the latter), and I don't see how the concerns cited by the court change the analysis.
August 15, 2008
Five Finger Discount: Seventh Circuit Notes That Retail Theft Is Generally Not Covered Under Fed. R. Evid. 609(a)(2), Despite Illinois Precedent
The Seventh Circuit's recent opinion in Kunz v. DeFelice, 2008 WL 3483442 (7th Cir. 2008), reveals that the court does not generally consider retail theft to be a crime involving falsehood under Federal Rule of Evidence 609(a)(2) but that Illinois state courts have reached the opposite conclusion. Here is a very brief recounting of the facts in Kunz:
In March 1999, Jeremy Kunz spent the afternoon and evening in a bar watching March Madness and consuming a few Guinnesses. As the night wore on, he asked a fellow he knew from the bar, Erik, if he could borrow Erik's SUV for an errand, and Erik lent him the SUV. As Kunz left in the SUV, he grazed a parked car, prompting a 911 call from a bystander. Officer Richard DeFelice and his partner thereafter responded, but despite the flashing lights on their police car, Kunz kept driving, with the police in pursuit. During the chase, DeFelice discovered, after running the SUV's plates, that it had been reported stolen.
Eventually, Kunz stopped the SUV, got out and tried to flee on foot. He ran, though, not because he knew that the SUV was stolen (he lacked this knowledge) but because his errand turned out to be delivering drugs. The chase on foot finally ended with Kunz scaling a chain-link fence and being cornered. As he was being handcuffed, multiple police officers kicked Kunz, eventually causing a sharp pain later diagnosed as a broken rib. The police then dragged the injured and restrained Kunz to their squad car and took him back to the station, where they placed him in a room on a stool, still cuffed and facing DeFelice. DeFelice repeatedly punched Kunz in the face hard enough to make him pass out several times before he finally falsely confessed that he knew that the SUV he was driving was stolen.
Kunz thereafter brought a Section 1983 action against the City of Chicago, DeFelice, and others, alleging, inter alia, excessive force. The trial court entered a mixed verdict that gave Kunz some, but not all, of the amount he sought to recover from the defendants. This mixed verdict led to cross-appeals from both sides, with DeFelice claiming, inter alia, that the trial court erred by precluding the impeachment of Kunz through evidence of his 2005 conviction for retail theft.
The Seventh Circuit disagreed, finding that the conviction was covered by Federal Rule of Evidence 609(a)(1) as a garden variety felony conviction and was thus excludable under the balancing test set forth in Federal Rule of Evidence 403. As part of this analysis, it rejected DeFelice's argument that the conviction was covered by Federal Rule of Evidence 609(a)(2), which states that:
"evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment [and without regard for Federal Rule of Evidence 403], if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
The Seventh Circuit noted that under Illinois law, retail theft is generally considered a crime of dishonesty/false statement for felony impeachment purposes. It found, however, that the case before it was being decided under the Federal Rules of Evidence and not Illinois law. It then noted that under its prior precedent, which is consistent with precedent from across the country on Federal Rule of Evidence 609(a)(2), retail theft is generally not considered a crime of dishonesty/false statement for felony impeachment purposes.
"[b]y the phrase 'dishonesty and false statement,' the Conference means crimes such as perjury, subordination of perjury, false statement, criminal fraud, embezzlement, or false pretense, or any other offense in the nature of crimen falsi, commission of which involves some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify truthfully."
In other words, it is the rare crime that generally qualifies as a crime of dishonesty/false statement. Most crimes, like retail theft, are generally not covered by Federal Rule of Evidence 609(a)(2).
August 14, 2008
Damages: Vermont Judge Finds Subsequent Remedial Measure Evidence Inadmissible To Mitigate Punitive Damages
A child-sex case involving Vermont's Catholic Church reveals an interesting split among courts as to whether evidence of subsequent remedial measures is admissible to determine liability for punitive damages. Now 40 year-old former altar boy Thomas Murray has sued the church, claiming that that former priest Edward Paquette repeatedly molested him three decades ago. According to Murray's attorney, the alleged abuse caused the then 9 year-old fourth-grader to have nightmares, avoid religion, and turn to alcohol and drugs. Furthermore, it is alleged that these effects did not dissipate with his transition to adulthood but instead has caused him to suffer from anxiety, post-traumatic stress disorder, and problems with physical intimacy, leading to a divorce with the mother of his child
Murray's lawsuit is not unique; instead, the state's largest religious denomination was socked in May by a record $8.7 million verdict of negligence in connection with its 1970s hiring and supervision of Paquette, and Murray's lawsuit is one of 20 containing allegations against the retired clergyman. Looking to avoid paying such a steep price in Murray's case, the church moved to prevent the court from assessing punitive damages against it based upon measures it has since taken to prevent clergy sexual abuse, but Judge Matthew Katz denied the motion, concluding that "the case law around the country is that post-wrongdoing remedies by the defendant are not admissible to mitigate punitive damages." The reality is much more complicated and involves two rules of evidence.
Vermont Rule of Evidence 407, like Federal Rule of Evidence 407, states that:
"When[ever], after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment."
Thus, evidence of the church's post-abuse measures would be inadmissible to prove that its pre-abuse measures were insufficient and that it thus acted negligently or otherwise culpably at the time of Murray's abuse. Similarly, if a child choked on a kid's toy at a fast food restaurant, his attorney couldn't introduce evidence about changes made to the toy or its instructions after the accident because such evidence would be used to prove "a defect in a product, a defect in a product's design, or a need for a warning or instruction."
Rule 407, however, clearly allows for the admission of evidence of subsequent remedial measures "when offered for another purpose," and it seems to me that mitigation of punitive damages would fall into this category and would not constitute a proscribed purpose. Essentially punitive damages are damages issued to punish a defendant and to deter the defendant and others from committing acts similar to the act at issue. Evidence of a subsequent remedial measure seems to me to be relevant to prove that such deterrence is unnecessary, which would render such evidence admissible, pending application of Rule 403, which states that:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence."
On this count, I'm much less sure and need to do some more thinking before coming to a final conclusion of how probative value weighs against these dangers in a typical punitive damages case. What I do know, however, is that Judge Katz's sweeping statement was incorrect. For proof of this, let's look at Swinton v. Potomac Corp., 270 F.3d 794, 813 (9th Cir. 2001), where the Ninth Circuit concluded that:
"A review of case law from other jurisdictions and academic commentary on this subject reveals no consistent rule on the admissibility of such evidence....Some courts have taken the view that such evidence is almost never relevant in assessing punitive damages....Other courts, however, permit the introduction of post-occurrence remediation evidence by the defendant as a shield against punitive damages."
In reviewing the opinions cited by the Ninth Circuit, I'm not quite sure who has the better of the argument, but what I do know is that there is an argument on the issue.
August 13, 2008
After The Enactment: California Court Finds New Evidence Provision Doesn't Violate Ex Post Facto Clause
The recent opinion of the Court of Appeal of California in People v. Dallas, 2008 WL 2952782 (Cal.App. 4th Dist. 2008), contains what I regard as an unsatisfactory (non)application of the ex post facto clause of the Constitution. In Dallas, Thomas Avery Dallas was convicted of felony infliction of an injury on a child and felony child abuse because he allegedly struck his girlfriend's nine month old son. Because Dallas was charged with an offense involving child abuse, California Evidence Code Section 1109(a)(3) allowed for the admission of prior acts of child abuse by Dallas. Specifically, California Evidence Code Section 1109(a)(3) states that:
"Except as provided in subdivision (e) or (f) and subject to a hearing conducted pursuant to Section 352, which shall include consideration of any corroboration and remoteness in time, in a criminal action in which the defendant is accused of an offense involving child abuse, evidence of the defendant's commission of child abuse is not made inadmissible by Section 1101 if the evidence is not inadmissible pursuant to Section 352. Nothing in this paragraph prohibits or limits the admission of evidence pursuant to subdivision (b) of Section 1101."
Accordingly, the prosecution admitted evidence of heinous acts that Dallas allegedly committed during a prior relationship with a woman named Crystal, who had a four year old son named J.S. Specifically, the state presented evidence that Dallas:
-scalded J.S.'s genitals;
-suffocated J.S. with a trash bag;
-held J.S. underwater;
-broke J.S.' arm; and
There was just one problem: California Evidence Code Section 1109(a)(3) was not enacted until after Dallas allegedly committed the subject crime. This potentially triggered the ex post facto clause of the Constitution. The court began by noting that in Calder v. Bull, 3 U.S. 386, 390 (1798), the Supreme Court found that the ex post facto clause proscribes the retroactive application of four types of laws:
"(1) laws which criminalize and authorize punishment for acts which were innocent when done; (2) laws which aggravate a crime or make it greater than when it was committed; (3) laws which inflict a greater punishment than the law annexed to the crime when committed; and (4) '[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'"
The Court then noted, however, that Dallas' appeal was unavailing based upon Supreme Court precedent, such as its opinion in Carmell v. Texas, 529 U.S. 513 (2000). In Carmell, the defendant was convicted of several sex-related crimes against his stepdaughter, who during some of the acts was 14 years-old or older. When these alleged acts occurred, the Texas statute criminzalizing them indicated that a defendant could not be convicted under the statute for sexual crimes against a minor 14 years-old or older solely based upon the testimony of the alleged victim; instead, there had to be some other evidence corroborating the alleged victim's testimony. Before the defendant's trial, however, Texas amended the controlling statute so that it no longer required corroboration.
After trial, the defendant was convicted despite the fact that the stepdaughter's testimony was not corroborated. The defendant's appeal eventually reached the United States Supreme Court, which held that application of the amended statute violated the ex post facto clause because it changed the quantum of evidence that was legally sufficient for a conviction. The Court then contrasted the Texas statute from the rules of evidence. It held that "[o]rdinary rules of evidence, for example, do not violate the Clause....Rules of that nature are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case. More crucially, such rules, by simply permitting evidence to be admitted at trial, do not at all subvert the presumption of innocence, because they do not concern whether the admissible evidence is sufficient to overcome the presumption."
Conversely, the Court of Appeal of California found that California Evidence Code Section 1109(a)(3) was an "[o]rdinary rule of evidence" that "does not speak to the sufficiency of the evidence it renders admissible," making its application to Dallas permissible under the ex post facto clause. Of course, Dallas recognized a problem with this conclusion, which was that California Evidence Code Section 1109(a)(3) is not "evenhanded" and can only benefit the State by allowing it to admit evidence against the criminal defendant. The Court of Appeal of California acknowledged this point, but found that its decision was proper because the Supreme Court in Carmell considered it "more crucial[ ]" that the Texas amendment was, in effect, a rule regarding the sufficiency of the evidence, not the admissibility of evidence-it "subvert[ed] the presumption of innocence, because [it] concern[ed] whether the admissible evidence [wa]s sufficient to overcome the presumption."
As I have noted before, one of the biggest problems I have with Carmell and its progeny is that Texas' amendment of its criminal statute in Carmell did not alter a "legal rule of evidence" while amendments such as the creation of California Evidence Code Section 1109(a)(3) clearly altered a "legal rule of evidence." Indeed, I can't think of a single rule of evidence which is a rule regarding the sufficiency of evidence, meaning that, despite the fact that Calder v. Bull proscribed the retroactive application of altered rules of evidence, under current precedent no altered rule of evidence can ever violate the ex post facto clause. In my mind, this can't make sense, and let's look at the language of Calder v. Bull to see why.
In Calder v. Bull, the Supreme Court proscribed the retrospective application of "'[e]very law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender.'" So, the question then becomes whether California Evidence Code Section 1109(a)(3) altered the legal rules of evidence and received different testimony than the law required at the time of the commission of the alleged offense in order to convict Dallas. To me, the clear answer is that it did.
Before the enactment of California Evidence Code Section 1109(a)(3), Dallas could not have been convicted based in any part on evidence of past acts of child abuse. After its enactment, he could. Thus, California Evidence Code Section 1109(a)(3) allowed for the receipt of different testimony than the law required at the time of the commission of the alleged offense in order to convict Dallas.
August 12, 2008
Two Men Walk Into A Bar: Ohio Court Finds Defendant's Appeal Barred By The Invited Error Doctrine
All of a sudden, invited error doctrine cases abound. In its recent opinion in State v. Harp, 2008 WL 2853672 (Ohio App. 4 Dist. 2008), the Court of Appeals of Ohio addressed an evidentiary challenge, but it possibly should have been addressing (and might at some point address) an ineffective assistance of counsel claim. Why?
Well, in Harp, a jury found Mark A. Harp guilty of one count of felonious assault based upon a fight between Harp and John Bays. The verdict came after what essentially boiled down to the word of Harp against the word of Bays, with the former claiming that he fought Bays in self-defense after Bays threatened to shoot him and kicked him in the groin, and the latter claiming that Harp started the fight by attacking him with a broken pocketknife.
During Harp's testimony, he testified, inter alia, that Bays had a reputation for shooting people. The State thereafter "objected to testimony regarding Bays's reputation for shooting people, and Harp's lawyer represented to the court that he had instructed Harp not to discuss Bays's reputation for violence." Both the State and Harp's attorney then agreed that the court should strike that statement and give a corrective instruction, which the court did.
After Harp was convicted, he appealed, claiming, inter alia, that the court erred in striking his testimony. The Court of Appeals disagreed, finding that Harp's trial counsel himself indicated that he instructed Harp not to discuss Bays' reputation and agreed with the State that the court should strike the testimony and give a corrective instruction. It thus found that not only did Bays' trial counsel fail to argue that his testimony was admissible, but that he also "invited any error by moving that the testimony be stricken and that a curative instruction be given." The court then noted that "[u]nder the invited-error doctrine, a party will not be permitted to take advantage of an error which he himself invited or induced the trial court to make." It thus concluded that Harp could not complain that the trial court erred in excluding testimony regarding Bays' reputation for shooting people.
Furthermore, the Court of Appeals found that even if the invited error doctrine error doctrine were inapplicable, Harp's testimony still would have been inadmissible. According to the court, Harp's argument for admissibility was that he was aware of Bays' reputation for shooting people, meaning that he had a bona fide fear of Bays and was acting in self-defense. The Court of Appeals rejected this argument, finding that it was "not clear from the record that Harp was aware of Bays's reputation for violence before the fight."
It's tough to argue with any of the court's findings, but it seems to me that there was a strong possibility that Harp's trial counsel committed serious error. Let's take the Court of Appeals at face value and assume that there was not enough evidence that Harp was actually aware of Bays' supposed reputation so that his testimony was inadmissible to prove that he feared him. That still leaves another ground for admitting Harp's testimony.
While propensity character evidence -- evidence whose probative value relies on the aphorism, "Once a criminal, always a criminal" -- is generally inadmissible, pursuant to the "mercy rule" contained in Ohio Rule of Evidence 404(a)(2), "[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same" is admissible. In other words, Pandora's box is firmly in the defendant's hands. If he wants to inject the issue of character into his trial, he can do so by, inter alia, presenting reputation or opinion testimony concerning the victim's bad character for a pertinent character trait, which in turn opens the door for the prosecution presenting good character evidence about the victim. If, however, the defendant does not want character evidence to infect his trial, he merely needs to refrain from presenting any character evidence, and the prosecution will be precluded from introducing its own.
This both explains why Harp's trial counsel might have been correct or incorrect. Under the "mercy rule," Harp at least arguably could have testified to Bays reputation for violence to establish that Bays had a reputation for acting violently and thus likely acted in conformity with that propensity by starting the bar fight. And thus Harp's trial counsel could have been wrong in instructing him not to discuss Bays' reputation for violence. On the other hand, maybe Harps' trial counsel was aware that if Harp testified concerning Bays' reputation for violence, the prosecution had a "murderer's row" of witnesses itching to testify about Bays' reputation for peaceableness but who would be forever frozen in the on deck circle unless Harp's opened the door (My initial thought was that Harp's testimony about Bays' reputation for violence also would have opened the door for the prosecution presenting evidence concerning Harp's violent character, which would be allowed under Federal Rule of Evidence 404(a)(1). Ohio Rule of Evidence 404(a)(1), however, does not contain a similar provision).
August 11, 2008
Cocaine Cowboys: Eleventh Circuit Uses Invited Error Doctrine To Uphold Admission Of Cocaine Evidence
The recent opinion of the Eleventh CIrcuit in United States v. Villavicencio, 2008 WL 2894108 (11th Cir. 2008), gives me my first opportunity to address the invited error doctrine. In Villavicencio, Carlos Villavicencio was convicted of conspiracy to possess with intent to distribute a controlled substance. The prosecution's theory of the case was that Jose Terazon ran a methamphetamine ring, in which he would mail the drug to Scarlett Herrera and Natalie Gianella, who in turn would forward the drug to distributors in South Florida, including Villavicencio. In August 2005, Terazon sent a five-pound package to Sanchez-Reyes and Gianella, two to three pounds of which were allegedly earmarked for Villavicencio, but police intercepted the package, arrested Sanchez-Reyes and Gianella, and later charged Villavicencio.
At Villavicencio's trial, DEA Agent Todd Phillips testified about a search of Villavicencio's bedroom. During cross-examination, defense counsel asked Phillips if two grams of cocaine were found during the search, and he replied that they were. Later in the trial, the government introduced a stipulation of facts providing that two grams of cocaine were recovered from a search of Villavicencio's bedroom, and Villavicencio did not object to the admission of the stipulation. After Villavicencio was convicted, he appealed, claiming, inter alia, that the evidence concerning the two grams of cocaine recovered from his bedroom was inadmissible character evidence.
The Eleventh Circuit disagreed, finding that "[t]he doctrine of invited error is implicated when a party induces or invites the district court into making an error and where such error exists, we are precluded from reversing." Moreover, the court noted that "[w]e have held that where a defendant stipulates to admission of evidence he is later precluded from challenging such admission for constitutional error." In other words, Villavicencio was precluded from challenging the admission of this evidence because he invited the alleged error he subsequently challenged "on appeal by introducing the fact that cocaine was discovered at a search of his house to the jury when his counsel cross-examined Agent Phillips, and by agreeing to the government's stipulation of facts."
It seems to me that the Eleventh Circuit correctly applied the invited error doctrine, merely leaving the question of why Villavicencio's trial counsel introduced the fact that cocaine was discovered at Villavicencio's house. Without knowing the full facts of the case, my guess would be that defense counsel was trying to use the fact that cocaine was found at Villavicencio's house to prove that he used the cocaine himself and did not distribute it. If that wasn't the case, however, it would seem that the proper basis for Villavicencio's appeal would be that he received the ineffective assistance of counsel.
August 10, 2008
Legislature Under The Influence: Kentucky Court Finds That Driver Lacks Standing To Raise Separation Of Powers Claim In DUI Case
The recent opinion of the Court of Appeals of Kentucky in Veltrop v. Commonwealth, 2008 WL 2940790 (Ky.App. 2008), found that a driver lacked standing to challenge a portion of a Kentucky drunk driving statute but also clearly implied that the contested provision was unconstitutional. In Veltrop, Melissa Kay Veltrop entered a conditional plea of guilty to driving under the influence in violation of Kentucky Revised Statutes Section 189.010. However, she reserved the issue of whether Section 189.010(2) of the statute is unconstitutional because it violates the separation of powers principle by unilaterally adopting amendments or additions to the Kentucky Rules of Evidence.
Section 189.010(2) states in relevant part that:
"With the exception of the results of the tests administered pursuant to KRS 189A.103(7), if the sample of the person's blood or breath that is used to determine the alcohol concentration thereof was obtained more than two (2) hours after cessation of operation or physical control of a motor vehicle, the results of the test or tests shall be inadmissible as evidence in a prosecution under subsection (1)(a) or (e) of this section."
Veltrop eventually appealed this issue to the Court of Appeals of Kentucky, which found an insurmountable problem with her argument: Veltrop's breath sample was obtained one hour and eleven minutes after her cessation of operation of her motor vehicle. Accordingly, Veltrop lacked standing to challenge Section 189.010(2) because even if she were to prevail in having the subsection held unconstitutional, it would have no bearing on her case with her breath sample having been obtained before the two hour mark. Indeed a judge in Veltrop noted in his concurring opinion, "[i[t would appear from a plain reading of KRS 189A.010(2), the only party which may have standing to challenge this subsection would be the County Attorney or Commonwealth Attorney should a trial court grant a motion to suppress results obtained from a test more than two hours after the driver is stopped."
I agree with the court's opinion(s) because Section 189.010(2) merely states that tests taken after the 2 hour mark are inadmissible; it never states that tests taken within the 2 hour mark are admissible. Thus, the only potential aggrieved party, and the only party with standing, would be the prosecution. And it also seems to me that the prosecution would have a winning argument in such a case because Section 189.010(2) clearly makes certain test results per se inadmissible when none of the Kentucky Rules of Evidence would do the same. Section 189.010(2) would thus be similar to the Arizona malpractice expert witness statute, which, as I noted in a previous post, the Court of Appeals of Arizona found violated the separation of powers. Indeed, the Supreme Court of Kentucky has already hinted that Section 189.010(2) is unconstitutional. See Lopez v. Commonwealth, 173 S.W.3d 905, 908 (Ky. 2005).