EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, January 3, 2009

I Said, "M-I-S-T-R-I-A-L," Mistrial: Supreme Court Of Delaware Finds Trial Court Denied Mistrial Motion Despite Prejudicial, Unsolicited Comments By Prosecution Witness

I disagree with at least two parts of the recent opinion of the Supreme Court of Delaware in Smith v. State, 2008 WL 5246057 (Del.Supr. 2008), an opinion dealing with a witness improperly mentioning a defendant's plea negotiations with the prosecution.

In Smith, Corey Smith appealed from his convictions for Attempted Robbery in the First Degree, Assault in the Second Degree, and Conspiracy in the Second Degree.  And part of the evidence used to convict him was the testimony of Kenneth Butcher, who was charged along with Smith and accepted a plea bargain in exchange for his testimony against Smith.

During part of his testimony, Butcher described a conversation between Smith and himself while both were at a correctional center.  Butcher testified as follows:

     Q: After that letter, did you and Corey have more discussions about the case?

     A: After that letter, he was, like, "Yo, man, you going to confess? They trying to get me habitual." I'm like, "Hmm?" He said, "They trying to get me habitual." I'm like, "I'm not taking all the charges. I already got enough charges one me."

Following this exchange, defense counsel objected to Butcher's testimony indicating that Smith said that he was a habitual criminal and requested a mistrial, which the trial judge denied, instead deciding to give a curative instruction.  The prosecutor then resumed his examination of Butcher, leading to the following exchange:

     Q: Have you had any communication with Corey at all since being transferred to DCC?

     A: Yes.

     Q: What was that communication?

     A: I said, "What they offer you?" He said, "Ten."

"Defense counsel again objected on grounds that the testimony was inadmissible evidence of plea negotiations," and before defense counsel moved for a mistrial, the judge again gave a curative instruction, this time instructing the jurors in relevant part that:

     "To the extent there has been a suggestion of any sort that the defendant-not Mr. Butcher, but the defendant was offered a plea, you are to disregard that in its entirety. I do not want you to speculate about whether that occurred. I don't want you to speculate whether he accepted or rejected it. I don't want you thinking about that whatsoever in your deliberations or as you hear the evidence."

After Smith was convicted, he appealed, claiming that the court should have declared a mistrial because Butcher's first comment constituted inadmissible propensity character evidence under Delaware Rule of Evidence 404(a) and that Butcher's second comment was inadmissible evidence of plea negotiations under Delaware Rule of Evidence 410 (it seems to me that this Rule applied to Butcher's first comment as well). 

The Supreme Court of Delaware did not dispute either of these characterizations of Butcher's testimony but found that because Butcher's comments were unsolicited, it had to apply the four-part analysis from Pena v. State, 856 A.2d 548 (Del.Supr. 2008), to determine whether the trial court should have granted a mistrial.  That analysis considers:

     "(1) the nature and frequency of the comments; (2) the likelihood of resulting prejudice; (3) the closeness of the case; and (4) the sufficiency of the trial judge's efforts to mitigate any prejudice."

Under part four, the court found that the trial judge's instructions to the jury were sufficient to mitigate any prejudice that may have arisen."  Conversely, under factor three, the court found that:

     "this case was close in that it turned on Butcher's credibility. Because [the victim] could not identify his attacker and the DNA evidence...was inconclusive, Butcher's identification of Smith as the shooter was the key to the State's case. The prosecutor admitted prior to trial that the State could not proceed without Butcher's testimony."

At the same, time, under factor two, the court found that "the likelihood of resulting prejudice from [Butcher's] comments was slight because:

     (a) "during his cross-examination of Butcher the defense counsel made the jury aware that the maximum sentence both Butcher and Smith faced was at least eighty-three years and that, by pleading guilty, Butcher faced only a maximum of ten years in prison. This testimony reduced the prejudicial impact, if any, of the jury's knowledge of a ten-year plea offer;" and

     (b) the State did not assert that Smith was a habitual offender. Rather, the most that the jury could infer from the comment was that Smith told Butcher that the State was trying to make him a habitual offender."

I agree on the former conclusion, but the latter conclusion forms the first basis for my disagreement with the Supreme Court of Delaware.  Of course, the State did not assert that Smith was a habitual offender. The court was applying the Pena four-part analysis, meaning that it was dealing with the unsolicited comment by a witness, not an affirmative assertion of the State.  And looking at it in that context, Butcher's comment seems to me to be about as prejudicial as an unsolicited comment can get.  It would be my guess that the average juror would have assumed from Butcher's comments that Smith had been convicted of many crimes in the past, raising a clear and present danger that Smith was convicted based upon his past and not based upon the evidence of his guilt presented at trial.

Finally, under factor one, the court found that:

     "the nature and frequency of the comments do not require a mistrial. The two disputed comments touched on sentencing consequences and one related to a rejected plea offer. Both comments were fleeting, unsolicited, and reflect Smith's own words. Moreover, as the trial judge observed, it is questionable whether Butcher's one-word references to 'habitual' and 'ten' even registered with the jury or conveyed any meaning if they did register."

This conclusion forms the second basis for my disagreement.  First of all, I am confused as to why the court mentioned that the disputed comments were "unsolicited."  Once, again, the court was applying the Pena four-part analysis, meaning that it was dealing with the unsolicited comment by a witness.  Furthermore, I find it odd that the court found that the fact that Butcher was restating Smith's own words cut against the need for a mistrial.  In my mind, this made Butcher's testimony more, as opposed to less, prejudicial to Smith.

But what is even more shocking to me is that the court found it questionable that Butcher's references to the plea bargaining process registered with the jury or conveyed any meaning to them.  As I noted before, the first sentence of the court's limiting instruction read:

     "To the extent there has been a suggestion of any sort that the defendant-not Mr. Butcher, but the defendant was offered a plea, you are to disregard that in its entirety."   

Now, as the court indicated, this limiting instruction limited the prejudice of Butcher's comments, but it also clearly informed the jury that Butcher was addressing the plea bargaining process.  Therefore, I don't see how the Supreme Court of Delaware could have questioned how or to what degree Butcher's comments registered with the jury.

Now, I'm not sure whether a different conclusion on either of these two factors would have changed the court's ultimate disposition, but it seems to me that based upon the court's own acknowledgement of the closeness of the case this would have been a distinct possibility.


January 3, 2009 | Permalink | Comments (0) | TrackBack (0)

Friday, January 2, 2009

Get In the [Rule 408] Zone!: Court Finds That Unconditional Offers Of Reinstatement Are Not Covered By Rule 408 In E.E.O.C. Action Against Autozone

The recent opinion of the United States District Court for the District of Arizona in E.E.O.C. v. Autozone, Inc., 2008 WL 5245579 (D.Ariz. 2008), teaches an important lesson regarding Federal Rule of Evidence 408.

In E.E.O.C. v. Autozone, Inc.,  Chad Farr, an employee of an Autozone in Arizona suffered from Retinis Pigmentosa and was legally blind.  According to Farr, Autozone "[f]ail[ed] to permit him to return to work with a reasonable accommodation and, thereby, terminat[ed] him from AutoZone."  Farr thus filed a charge with the E.E.O.C., alleging violations of Title I of the ADA by Autozone.  And the E.E.O.C. thereafter brought an action against Autozone, which led to the court's opinion.

That opinion dealt in part with Autozone's motion in limine, which sought to preclude the E.E.O.C. from introducing into evidence offers of reinstatement it had made.  The court began its analysis of the issue by considering Federal Rule of Evidence 408, which states in relevant part that:

     "Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

     (1) furnishing or offering or promising to furnish--or accepting or offering or promising to accept--a valuable consideration in compromising or attempting to compromise the claim; and

     (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. vestigative, or enforcement authority."

The court then noted, however, that "[w]hile Fed.R.Evid. 408(a) generally bars the admission of statements and conduct made 'in the course of compromise negotiations[,]' an employer's unconditional offer of reinstatement in a discrimination case is admissible and does not fall within the scope of Rule 408."  At the same time, the court found that it could not  conclude that Autozone's "letters constituted unconditional offers of reinstatement for purposes...due to their vagueness and due to the fact that they were not sent to Farr, but rather to Bentley Brunson, the EEOC investigator assigned to Farr's case."  The court, however, also found that it could not yet find that the letters were covered by Federal Rule of Evidence 408 and thus reserved the issue for trial.   

I don't have enough information to agree or disagree with the court's decision, but I agree with its conclusion that unconditional offers of reinstatement are not covered by Federal Rule of Evidence 408.  That Rule only covers compromises or attempts to compromise claims, and as the Second Circuit noted in Lightfoot v. Union Carbide Corp., 110 F.3d 898, 909 (2nd Cir. 1997), an opinion cited by the court in E.E.O.C. v. Autozone, Inc., "[b]y definition, an unconditional offer may not require the employee to abandon or modify his suit....The offer therefore cannot be considered an offer of settlement or compromise."


January 2, 2009 | Permalink | Comments (0) | TrackBack (0)

Thursday, January 1, 2009

Humbled: Seventh Circuit Finds Defendant Received Effective Assistance Of Counsel In New Year's Day Related Case

The opinion of the Seventh Circuit in Humbles v. Buss, 268 Fed.Appx. 459 (7th Cir. 2008), reveals that there is not much that counsel can do with evidence of prior charges against a witness that did not result in a conviction.

In Buss, William L. Humbles was convicted of attempted murder, aggravated battery, and battery based upon "a New Year's Eve celebration that turned violent."  And after he exhausted his state remedies, he filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of Indiana.  And after that petition was denied, Humbles appealed to the Seventh Circuit.

According to the Seventh Circuit, the facts of the case were as follows:

     "[Titus] Larkin was attending a 1998 New Year's Eve party at his cousin's house in South Bend, Indiana. At approximately 2:30 a.m. on New Year's Day, Larkin walked (or perhaps carried, as she was drunk) his girlfriend to a vehicle parked outside. According to the court of appeals, Humbles and two other men were sitting across the street in another vehicle. When Larkin was outside, Humbles summoned him. Larkin approached the driver's side window and Humbles accused Larkin of telling the police about Humbles' involvement in [a] robbery. When Larkin looked into the vehicle, he saw a black automatic weapon on the seat between Humbles' legs. Fearing that Humbles was going to shoot him, Larkin ran. Humbles fired three shots at Larkin, two of which missed. One, however, struck Larkin in the right buttock and exited through his groin. Larkin's left testicle was severely damaged and had to be removed."

Part of the basis for Humbles' appeal was that he was denied the effective assistance of counsel at trial.  Specifically, Humbles contended, inter alia, that his trial counsel was ineffective for failing to investigate a prior charge against Larkin for false informing in connection with his accusing someone else of shooting him in a previous incident.

But the problem for Humbles was that his trial counsel actually elicited more testimony regarding that charge than he should have.  According to the Seventh Circuit, Humbles' trial counsel did ask Larkin, "Do you have a prior conviction for false informing?" and Larkin said he did, even though he had not actually been convicted of the crime.  Humbles wanted his counsel to elicit more testimony from Larkin, but if counsel were attempting to impeach Larkin, he shouldn't even have been able to ask this first question because witnesses can only be impeached through convictions under Indiana Rule of Evidence 609.  Moreover, the Seventh Circuit found that Larkin's prior false reporting was not admissible to prove any permissible purpose under Indiana Rule of Evidence 404(b).

Finally, the Seventh Circuit found that even if Larkin's prior false reporting were admissible, it would have been in a way that was damaging to Humbles, meaning that his trial counsel could have acted prudently in not pressing the issue.  According to the court,

     "[t]he incident that led to the charge involved LeRoy Humbles, petitioner's brother, and showed 'bad blood' between Larkin and petitioner Humbles, thus adding to his motive to shoot Larkin. It could well have been a strategic move to decline to pursue the matter."   


January 1, 2009 | Permalink | Comments (0) | TrackBack (0)

Wednesday, December 31, 2008

Auld Lang Syne: Supreme Court Of Kentucky Finds Trial Court Properly Precluded Evidence Of Victim's Prior Drunk Fights In Newe Year's Eve Manslaughter Appeal

The recent opinion of the Supreme Court of Kentucky in Lake v. Commonwealth, 2008 WL 4691938 (Ky. 2008), reveals that a criminal defendant can only introduce evidence of specific prior acts of the victim in very limited circumstances.

In Lake, on New Year's Eve, 2004, in front of the house of Kenneth Vanover, a gunfight erupted between Vanover and Jack Lake, Jr.  Several shots were fired, both men were wounded, and Vanover's wounds proved fatal

After a jury trial, Lake was subsequently convicted of (1) manslaughter in the second-degree and (2) being a persistent felony offender in the first-degree.  Lake did not testify at trial, and the trial judge precluded him for presenting evidence at trial in support of his self-defense claim that Vanover had been arrested several times for fighting while drunk.

Lake subsequently appealed, claiming that the trial court improperly excluded this evidence because criminal defendants can present character evidence concerning the victim pursuant to Kentucky Rule of Evidence 404(a)(2) and specific prior act evidence pursuant to Kentucky Rule of Evidence 405(c), which states that:

     "In 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."

According to the Kentucky Supremes, however, the problem for Lake was that (as I have noted before on this blog),

     "[a] homicide victim's character trait for violent behavior is not an essential element of the claim of self-defense.  It is not any element of self-defense.  It is simply an evidentiary fact that, when it exists, is relevant to establish the elements of self-defense."

The court also noted that evidence of a victim's prior violent acts can be admissible when the defendant is aware of those acts to prove that the defendant reasonably feared the victim.  But the problem for Lake was that he did not testify and presented no evidence that he was aware of Vanover's prior violent acts at the time that he shot him.

The court thus properly affirmed Lake's convictions because there was no evidentiary error.


December 31, 2008 | Permalink | Comments (0) | TrackBack (0)

Tuesday, December 30, 2008

Confessions Of A Medical Examiner: Wrongful Death Plaintiffs' Lawsuit May Be Hurt If Experts Relied Upon Hearsay In Deciding Cause Of Death

A wrongful death lawsuit set for trial in April could lead to an interesting evidentiary ruling, which could make it more difficult for the plaintiffs to prove their case.

That lawsuit was brought by the family of a Texas elementary school teacher, Kari Baker, who died mysteriously in 2006.  Baker’s death initially was ruled a suicide by sleeping pills, and she was buried without an autopsy or further investigation.  Her parents, however, pushed investigators to look into their daughter’s death, as they became convinced that their son-in-law, Central Texas Baptist minister Matt Baker, had killed her.  According to the parents, Matt killed Kari and tried to make her death appear to be a suicide.

And their beliefs were bolstered when Kari's body was exhumed and the investigation was reopened, with Justice of the Peace Billy Martin changing his cause-of-death ruling to "undetermined."  The parents thus sued Matt for wrongful death, and while the trial won't start until April, Matt's attorney, Richard L. Ellison, has already said that he "intends to prove that expert witnesses called by the plaintiffs are biased and that their testimony will be based on hearsay."

And while it is difficult for me to make any conclusions without knowing more details, I can say that if the plaintiffs' experts will be testifying regarding cause of death, and if they are relying upon hearsay in forming their conclusions, Ellison might have a valid argument.  Texas Rule of Evidence 703 states that:

     "The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by, reviewed by, or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence."

So, the question becomes whether experts in the field of determining the cause of death (such as coroners and medical examiners) reasonably rely upon hearsay in forming their conclusions.  And my brief review of the case law reveals that they do not.  In this context, many courts have come to the same conclusion as the Supreme Court of Florida in Linn v. Fossum, 946 So.2d 1032, 1037 (Fla. 2006), which found that medical examiners reasonably rely upon "objective evidence" such as autopsy reports, reports by a forensic experts, depositions, photographs, and dental records, in forming expert conclusions.  Conversely, the Florida Supremes found that medical examiners cannot rely upon hearsay statements, which "are neither recorded nor verifiable objective evidence."

I think that a Texas court would likely reach a similar conclusion.  So, if the plaintiffs' experts are relying upon hearsay, they likely will not be allowed to testify; however, if they are relying upon "objective evidence," they likely will be allowed to testify.


December 30, 2008 | Permalink | Comments (2) | TrackBack (0)

Monday, December 29, 2008

Will Free Love Lead To Freedom?: Convicted Man Claims Juror Sex During Deliberations Tainted His Verdict

Readers of this blog know that one of my favorite subjects for posts is Federal Rule of Evidence 606(b) and the issue of whether and when jurors can impeach their verdicts after trial through evidence of jury misconduct.  And I thought that I had seen it all until I read about a St. Louis man who has sought a new trial based upon claims that both jurors and sheriff's deputies were engaging in sexual relations during deliberations.

Back in 2000, Roberto Dunn stood trial, facing charges of murder in the first degree, and finally being convicted of murder in the second degree.  But before that verdict, and during the trial, "a sheriff's deputy told the judge that she overheard some jurors discussing the case before deliberations started, which is improper."  The judge thereafter questioned four jurors, who admitted they had talked about several witnesses during a break.  Nonetheless, the trial judge apparently thought that these improper discussions would not taint the verdict because "{t]he trial resumed with the same panel."

Without even getting to the allegations of juror sex, this in itself seems to me like a questionable decision, but it's one which I can't really address because of the equally questionable decision of the Missouri Court of Appeals.  You see, Dunn appealed his conviction, and the Missouri Court of Appeals affirmed in State v. Dunn, 60 S.W.3d 676 (Mo.App.E.D. 2001), noting:

     "No jurisprudential purpose would be served by a written opinion. The parties have, however, been provided with a memorandum setting forth the reasons for this order."

This seems bizarre to me.  The issue of whether jurors can remain seated after improperly discussing witness testimony seems fairly important to me, and I thus see a clear jurisprudential purpose that could have been served by a written order.  And when you add the allegations of juror sex, I really don't understand the court's (lack of a written) decision.

So, what were those allegations?  Well, two weeks after the jury rendered its verdict, juror Jennifer Thompson sent a letter to the trial judge in which she

     "accused two jurors of having sex with each other during two evenings at a hotel where the panel stayed. She said jurors believed the two sheriff's deputies assigned to the case were having sex with each other while on duty at the hotel."
Like the allegations of juror misconduct during trial, these allegations were not enough for the appellate court to award Dunn a new trial.  And on this count, I agree.  Federal Rule of Evidence 606(b), which Missouri has basically adopted in its case law, states in relevant part that:

     "[u]pon an inuqiry 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. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form."

I don't see how sexual relations between jurors and/or sheriff's deputies could be construed as either extraneous prejudicial information or an improper outside influence, and even if they could, I'm not sure how Dunn could argue that they rendered his trial unfair.

Nonetheless, Lisa Stroup, an assistant public defender now on Dunn's case, has appealed, arguing that the performance of Dunn's trial counsel in connection with these allegations was deficient.  And the one thing that she and Rachel Smith, an assistant circuit attorney defending the conviction, can likely agree upon is Smith's claim that "[c]ase law is silent as to whether jurors having sex with each other, if it is proven to be true, is an issue."   

I agree as well, which makes the Missouri Court of Appeals' decision not to issue a written opinion even more bizarre.


December 29, 2008 | Permalink | Comments (0) | TrackBack (0)

Sunday, December 28, 2008

Extreme Measures: Court Of Appeals Of North Carolina Fails To Explain New Evidentiary Rule In Affirming Medical Malpractice Ruling

The recent opinion of the Court of Appeals of North Carolina in Cornett v. Watauga Surgical Group, P.A., 2008 WL 5214375 (N.C.App. 2008), reveals that North Carolina has a strange rule regarding expert testimony regarding standard of care in medical malpractice cases.  And unfortunately, neither that opinion nor any prior opinion gives me any indication of the meaning of a key phrase in that rule.

In Cornett, Dianne Morin was admitted to the emergency room of Watauga Medical Center complaining of abdominal pain, nausea and vomiting. After Dr. Frank Y. Chase evaluated her, he performed a surgical procedure. Following surgery, Morin remained in the hospital for nine days and experienced an increase in abdominal symptoms. Dr. Chase thereafter performed exploratory surgery on Morin and found further complications in her bowels, prompting him to place two drains in her abdomen.  Subsequently, Morin was transferred to Wake Forest University Baptist Medical Center, where she soon passed away.

Harold Cornett, administrator of Morin's estate, later sued Watauga Surgical Group, P.A.'s and Frank Y. Chase for medical malpractice.  The defendants then moved to exclude the proposed testimony of Dr. Martin Litwin, M.D. ("Dr. Litwin"), the plaintiff's proposed expert witness, and moved for summary judgment.  The trial judge granted the defendants' evidentiary motion because it found that Dr. Litwin was not qualified to render expert testimony on the appropriate standard of care based upon the strict requirements of North Carolina Rules of Evidence 702(b)-(c) (I won't print all of those requirements in this post, but you can find them here).

The trial judge also rejected the plaintiff's argument that Dr. Litwin should be able to testify pursuant to North Carolina Rule of Evidence 702(e), which states that:

     "Upon motion by either party, a resident judge of the superior court in the county or judicial district in which the action is pending may allow expert testimony on the appropriate standard of health care by a witness who does not meet the requirements of subsection (b) or (c) of this Rule, but who is otherwise qualified as an expert witness, upon a showing by the movant of extraordinary circumstances and a determination by the court that the motion should be allowed to serve the ends of justice."

One reason for this rejection was that the trial judge noted that he was not a resident judge, meaning he had no power under North Carolina Rule of Evidence 702(e).  Alternatively, the trial judge "also stated in his order that if he had reached the motion, he would have denied it because plaintiff did not show either extraordinary circumstances or that justice required allowing a non-qualified expert witness to testify."

Without this testimony, the plaintiff could not prove his case, and thus the trial judge granted the defendants' motion for summary judgment.  The plaintiff thus appealed, claiming that the trial judge's ruling under North Carolina Rule of Evidence 702(e) was erroneous.  And the North Carolina Court of Appeals didn't resolve the issue of whether only resident judges have power under North Carolina Rule of Evidence 702(e).

Instead the Court of Appeals assumed that the trial judge had power under this Rule, but it still found that any error that the trial judge made in failing to fully consider the plaintiff's argument was harmless.  According to the court, 

     "Plaintiff contends the error is not harmless because whether Dr. Litwin qualified as an expert 'literally came down to counting minutes spent between his different activities in a given month,' 'disbelieving Dr. Litwin's sworn testimony to the contrary,' and these are 'extraordinary circumstances' contemplated under the rule. We disagree. Plaintiff did not demonstrate extraordinary circumstances to support his Rule 702(e) motion at the hearing before the trial court. See Knox v. Univ. Health Sys. of East. Carolina, 187 N.C.App. 279, ----, 652 S.E.2d 722, 725 (filed Nov. 20, 2007)."        

And here's the problem that I have with the court's ruling.  It gives me no indication of what is meant by the phrase "extraordinary circumstances."  All I know is that they are not the circumstances presented by the litigants in Cornett and Knox.  And those are the only two opinions to apply the relatively new North Carolina Rule of Evidence 702(e) (two other opinions have cited the Rule in dicta).

In Cornett, the consequence of Dr. Litwin not being allowed to testify was summary judgment being entered against the plaintiff.  Was that not an extraordinary circumstance?  Maybe and maybe not, but I would have no way of knowing without some explanation by North Carolina courts.


December 28, 2008 | Permalink | Comments (0) | TrackBack (0)