Saturday, January 10, 2009
Not Feeling Minnesota: Court Of Appeals Of Minnesota Reaches Strange Conclusions In Character Evidence Appeal
From my perspective, the recent opinion of the Court of Appeals of Minnesota in State v. Sayers, 2008 WL 5396708 (Minn.App. 2008), contains what I regard as a shocking misstatement of what trial courts should (or should not) do when a party fails to object to clearly prejudicial and inadmissible evidence.
In Sayers, Christina Sayers appealed her convictions for aggravated robbery and assault after her brother and she allegedly attacked and stole from her ex-boyfriend, J.R. And Sayers was convicted in large part based upon the testimony of J.R., who described the alleged attack and robbery. But that was not the entirety of J.R.'s testimony. Instead, two exchanges between the prosecutor and J.R. regarding the night in question resulted in J.R. rendering what I regard as improper character evidence. The first exchange was as follows:
Q: And did you agree to have [appellant] come stay with you?
A: No, I didn't.
Q: Why not?
A: We had a No-Contact Order. And we had, I had put her out. I ended the relationship, because she was a prostitute and I wasn't going along with that. I couldn't deal with that in our relationship."
And the second exchange was as follows:
Q: Did you talk to your neighbor [F.C.] after the [appellant] left to get cigarettes?
A: Yes, I did. And I went and got her phone.
Q: Why did you do that?
A: Because I didn't feel right. Something you know, she just, I smelled alcohol on her breath. And whenever she drinks, she got mean. And I just want the phone for, you know, in case of whatever."
Sayers did not object to either of these final statements by J.R., but after she was convicted, she appealed, claiming that the statements (as well as a third statement) constituted inadmissible character evidence. The Court of Appeals of Minnesota disagreed, citing the opinion of the Supreme Court of Minnesota in State v. Diamond, 241 N.W.2d 95 (Minn. 1976), in support of the conclusion that because J.R.'s "testimony was given not to prove appellant's bad character but to help illuminate her relationship with him, it is not character evidence."
This conclusion seemed incorrect to me. Sure, if evidence of a defendant's character is used to prove a purpose such as motive, intent, or identity, it can be admitted notwithstanding the character evidence proscription because its probative value will not be substantially outweighed by the danger that the jury will misuse it as propensity character evidence. But I thought that the scale would tip the other way when the purpose is something as seemingly insignificant as illuminating a relationship.
So, I read Diamond, and in that opinion, the Supreme Court of Minnesota did indeed find that character evidence of a defendant's prior assault was properly admitted because it "was offered and admitted here not to prove defendant's bad character but to help illuminate defendant's relationship with the decedent." But in explaining this conclusion, the court noted that the defendant had claimed self-defense and found that "[w]here intent or self-defense is the controverted element of the crime, evidence of the prior relationship between defendant and decedent may be admitted to prove intent."
As far as I can tell, however, Sayers was not claiming self-defense or disputing intent, so this language from Diamond was inapplicable. Instead, the Court of Appeals of Minnesota in Sayers either made a cherrypicking mistake or was attempting to argue that illuminating a relationship can be an independent and weighty permissible purpose that allows for the admission of evidence that a defendant was a mean prostitute. And I would argue that either conclusion was wrong and that J.R.'s testimony was clearly inadmissible character evidence.
But that's probably not the worst error that the court made. After reaching this conclusion, the court cited the opinion of the Supreme Court of Minnesota in State v. Vick, 632 N.W.2d 676 (Minn. 2001), for the proposition that "[e]ven if the statements were prejudicial and inappropriate, it was not the responsibility of the trial court to strike this testimony sua sponte because to do so would call more attention to the statements."
So, according to the court, a trial judge should not strike inadmissible and prejudicial testimony because doing so would call more attention to the statements? According to the court, it is better to have the alleged victim refer to the defendant as a prostitute than to have the trial judge subsequently strike that testimony from the record? I thought that there was no way that the Vick opinion could have supported this conclusion. And indeed, it did not.
In Vick, the defendant appealed from his conviction for second-degree criminal sexual conduct based upon the admission of character evidence against him. The Supreme Court of Minnesota disagreed, finding that it was unclear whether the evidence should have been admitted and that
"while trial courts are advised, even absent a request, to give a cautionary instruction upon the receipt of other-crimes evidence, failure to do so is not ordinarily reversible error."
In other words, Vick stands for a very different proposition than the one that the Court of Appeals of Minnesota attributed to it. According to Vick, when admitted evidence is potentially prejudicial, a trial court should give a cautionary instruction. And it should do so despite what I regard as the very real danger that this will call more attention to evidence that is still in the record. That being the case, how can the Court of Appeals of Minnesota say that courts shouldn't strike evidence when the only differences are that the evidence is clearly prejudicial and that it will no longer be part of the record after it is stricken?