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Univ. of South Carolina School of Law

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Tuesday, January 6, 2009

Forfeit Loss: Virginia Capital Murder Reversal Reveals State Of Forfeiture By Wrongdoing Doctrine After Giles

Today's post takes me back to my college days at the University of Virginia.  It also reveals the effect of the opinion of the United States Supreme Court last year in Giles v. California, 128 S.Ct. 2678 (2008).  And finally, in my mind, it raises an important issue that the trial court must correct on remand.

In Crawford v. Commonwealth, 2008 WL 5330515 (Va.App. 2008), Anthony Dale Crawford appealed his convictions on a litany of charges based upon his alleged killing of his estranged wife, Sarah Crawford, at a Quality Inn in Charlottesville, Virginia: (1) abduction with the intent to defile, (2) rape, (3) capital murder, (4) use of a firearm in the commission of a murder, (5) use of a firearm in the commission of an abduction, and (6) grand larceny.

And the basis for Anthony's appeal was that the trial judge improperly allowed for the admission of two types of evidence against him:

     (1) an affidavit Sarah signed less than a month before her death after she went to the Prince William County Juvenile and Domestic Relations District Court and requested a preliminary protective order to prevent Anthony from having contact with her (which was dissolved with her consent before her death). The affidavit described several incidents between Anthony and her; and

     (2) testimony by Sarah's boss and co-worker, which I will describe in more detail later.

The Court of Appeals of Virginia first addressed Sarah's affidavit.  The court of appeals noted that the trial court admitted this affidavit pursuant to the forfeiture by wrongdoing doctrine, which allows for the admission of hearsay statements by a declarant against a party if that party engaged or acquiesced in wrongdoing that procured the unavailability of the declarant as a witness at trial. And it did so because

     "[t]he Commonwealth [successfully] argued this exception did not require that the trial court find appellant had killed his wife to prevent her from testifying, but instead required only a preliminary finding that appellant did kill her."

In other words, according to the trial court, the forfeiture by wrongdoing doctrine applies not only to the witness tampering situation, where a defendant kills a potential witness against him with the specific intent of rendering that witness unavailable to testify against him at trial, but also to the situation where the declarant is the victim herself and where it would be impossible for the defendant to have any such specific intent until the crime was completed (at least for a trial in connection with the murder).

But the problem for the Commonwealth and the trial court was that the United States Supreme Court decided Giles v. California while Anthony's appeal was pending.  And in that opinion, the Court found that there is a specific intent requirement to the forfeiture by wrongdoing doctrine, meaning that the doctrine usually only applies in the witness tampering situation (although, as I noted here, courts might find that it applies in domestic violence cases under a "transferred intent" theory when there are ongoing criminal proceedings against the defendant) .  Therefore, the Court of Appeals of Virginia found that Sarah's affidavit was inadmissible and reversed and remanded for a new trial (except with regard to Anthony's grand larceny conviction, which was unaffected by Sarah's affidavit).

So, having taken care of the affidavit issue, we must consider the testimony by Sarah's boss and co-worker.  According to the co-worker, around the time that Anthony and Sarah separated, Sarah asked her for tickets to a soccer game so that she could give them to Anthony "because [Mrs. Crawford] plan[ned] on moving out. She didn't want him there while she was moving out-afraid of an incident."  Meanwhile, Sarah's boss testified, inter alia, that Sarah showed him "a court protective order against appellant" and expressed "concern[ ] for her well-being staying in the apartment" with her husband.

The Court of Appeals of Virginia found that the trial court did not err in allowing this testimony because it "was admissible under the state-of-mind exception to the hearsay rule," which allows for the admission of a declarant's statements concerning her current state of mind and planned future acts but does not allow for the admission of statements concerning past acts. 

This dichotomy explains why I think the trial court's ruling was incorrect.  Under state-of-mind-exception, it is perfectly permissible for a witness to testify that the declarant told the witness that she feared someone because such testimony would concern the state of mind of the declarant when she made the statement.  But, once that testimony mentions why the declarant feared someone, that gets into past acts (such as the protective order and "incident"). 

And such testimony is inadmissible.  As the Sixth Circuit noted in Apanovitch v. Houk, 466 F.3d 460, 487 (6th Cir. 2006), "a witness may testify that someone expressed to them fear of someone of something, but they may not testify as to that person's explanations of why they were afraid.

Thus, the trial court must be careful on remand to limit the testimony of Sarah's boss and co-worker, lest there be a second reversal and a third trial.

-CM

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