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?
January 9, 2009
What's My Purpose?: Fifth Circuit Upholds Hearsay Ruling In Fen Phen Fraud Appeal
The Fifth Circuit's recent opinion in United States v. Arledge, 2008 WL 5295103 (5th Cir. 2008), contains an odd business records ruling that I have never seen before.
In Arledge, Robert Arledge challenged his conviction for conspiracy and fraud for his involvement in filing fraudulent claims to recover from the Diet Drug Qualified Settlement Funds I and II, funds set up to compensate victims of the diet drug Fen Phen. According to the Fifth Circuit's opinion:
"Arledge was a lawyer in the law firm of Schwartz & Associates (“S&A”) and head of the mass torts section of the firm. Arledge was one of several attorneys across the country who entered into a fee-splitting and referral-fee agreement to recruit clients for both Fen Phen settlements. The settlement agreements provided for a contingency fee of 40%. After deducting expenses and other costs, [Michael] Gallagher, the lead attorney in the Fen Phen settlement cases, received 37.5% of the attorneys' fees, another law firm, Langston, Frazier, Sweet & Freese, received 37.5%, and S&A received 25%."
After Arlegde was convicted, he appealed, contending, inter alia, that the district court improperly precluded him from introducing Defense Exhibit 32, a multi-page list of names, phone numbers, and addresses titled "Arledge Accepted Cases." Arledge claimed that this exhibit should have been admissible under Federal Rule of Evidence 803(6), which provides an exception to the rule against hearsay for:
"A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness."
And indeed, Arledge partially complied with this Rule by presenting the testimony of David Gaylon, an employee of S&A, who "verified that the document was a record of regularly conducted activity." Bizarrely, however, neither Gaylon nor any other defense witness was able to "testify to the purpose of the document."
Upon reading this, I immediately wondered how Gaylon was able to conclude that the document was a record of regularly conducted activity but was unable to identify its purpose. I also wondered how the district court could have been expected to admit the document without knowing its purpose (Arledge claimed on appeal that the document "could have shown that Arledge had refused clients because they failed to provide sufficient proof of usage").
And indeed, the Fifth Circuit shared these concerns. According to the court,
"[c]ontrary to Arledge's argument,...the district court did not abuse its discretion when it refused to admit Defense Exhibit 32. The district court is permitted to exclude documents that 'indicate a lack of trustworthiness.' FED.R.EVID. 803(6). The document showed only names on a page, and without more testimony, the significance of the document was mere conjecture....Arledge submitted no reason why he failed to present evidence at trial that would have relieved the district court's concerns about trustworthiness, nor has he given us reason to believe that the evidence was inherently trustworthy."
Based upon the concerns I raised above, this seems to have been the only conclusion that the Fifth Circuit could have reached.
January 7, 2009
Notice Me: Wisconsin Seemingly Makes Bad Analogy In Arguing For Pre-Trial Notice Requirement In Self-Defense Cases
I don't quite understand the logic of the State's appeal from State v. McClaren, 756 N.W.2d 802 (Wis.App. 2008) to the Supreme Court of Wisconsin.
In McClaren, Jason McClaren was charged with aggravated battery, attempted first-degree intentional homicide, and first-degree reckless injury in connection with an altercation with Conrad Goehl. By pretrial motion in limine, McClaren sought a ruling regarding the admissibility of evidence of Goehl's dangerous character and prior acts of violence as they related to his claim of self-defense. At the hearing on the motion, the State conceded that there was a factual basis for McClaren to use this evidence to support a claim of perfect self-defense pursuant to McMorris v. State, 205 N.W.2d 559 (Wis. 1973), in which the Supreme Court of Wisconsin held that:
"When the issue of self-defense is raised in a prosecution for assault or homicide and there is a factual basis to support such defense, the defendant may, in support of the defense, establish what the defendant believed to be the turbulent and violent character of the victim by proving prior specific instances of violence within his knowledge at the time of the incident."
So, while McClaren was victorious on that front, he was dismayed by the court's conclusion that he had to
"provide the State, before trial, with 'a [written] summary of all specific instances of the victim's violent conduct of which the defendant was aware and that the defendant intends to introduce at trial, including witnesses to such conduct and the date and place such conduct occurred.'"
McClaren thus appealed, and the Court of Appeals of Wisconsin, which reversed, concluding, inter alia, that Wisconsin courts lack the power to enter such an order pursuant to either Wis. Stat. Section 971.23 or the rule laid down in State v. Miller, 151 N.W.2d 157 (Wis. 1967) and that the courts'
"general authority to superintend a trial cannot be read to permit a court to require pretrial discovery that it would otherwise not be authorized to do under Wis. Stat. § 971.23 and the rule in Miller."
Now, I don't have the State's appeal before me, but articles have explained that the State has contended "that disclosure would be consistent with the federal rule of evidence, which requires the prosecution to provide pretrial notice of 'other acts' evidence committed by the defendant." And I don't see how such an argument would make any sense.
Federal Rule of Evidence 404(b) indicates that:
"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, 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."
First of all, this rule has nothing to do with defendants seeking to present evidence that they were aware of prior violent acts by the alleged victim to prove self-defense. Second, the Rule only places a pre-trial notice requirement on the prosecution, not on criminal defendants. And third, it only asks the prosecution to provide notice of "the general nature of any such evidence," whereas the trial judge ordered McClaren to produce "a [written] summary of all specific instances of the victim's violent conduct...."
Thus, to the extent that the State is raising this argument on appeal, I don't think that it will be successful.
January 6, 2009
Mystery, Alaska: Murder Appeal Reveals That Alaska Has No Clear Standard For Determining The Admissibility Of Prior Bad Act Evidence
The recent opinion of the Court of Appeals of Alaska in McCormack v. State, 2008 WL 5352364 (Alaska App. 2008), reveals that Alaska courts have no clear standard for determining when prior bad act evidence should be admitted under Alaska Rule of Evidence 404(b).
In McCormack, Barry J. McCormack Sr. was convicted of murder in the first degree for intentionally killing Opal Fairchild. And the State's theory was that McCormack intentionally killed Fairchild during the course of a robbery. Moreover, the State contended that McCormack's robbery of Fairchild was one of three robberies that he committed during a three-week period.
The trial judge allowed the State to introduce this evidence pursuant to Alaska Rule of Evidence 404(b), which states that:
"[e]vidence of other crimes, wrongs, or acts is not admissible if the sole purpose for offering the evidence is to prove the character of a person in order to show that the person acted in conformity therewith. It is, however, admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."
According to the trial judge,
"the robberies were admissible to show McCormack's identity as the person who killed Opal Fairchild, as well as his motive and intent in entering Fairchild's home and shooting her. He also found that the evidence tended to show that all the robberies were part of the same general scheme over a few weeks to obtain money and to eliminate witnesses to the crimes."
McCormack subsequently appealed, claiming, inter alia, that the trial judge erred in failing to make a threshold determination that McCormack committed the other robberies by clear and convincing evidence. The problem for McCormack, however, was that he did not raise this argument at trial, meaning that the appellate court could only reverse for plain error.
And the Court of Appeals of Alaska found that there was no plain error because "[t]he law is divided on the question." As support for this proposition, the court cited to its previous, unpublished opinion in Ayagarak v. State, which noted that:
"Many state courts have adopted the Huddleston [Rule 104(b)] standard for determining if bad acts evidence is sufficiently proved to be relevant, and a few states apply this same standard based on state precedent. Other jurisdictions make admission of bad acts evidence contingent on a preliminary finding by the trial judge that the bad acts have been proved by clear and convincing evidence, a preponderance of the evidence, or beyond a reasonable doubt."
Based upon this passage, I agree that the law is divided on the question and that the Court of Appeals of Alaska could not have found plain error. But what seems more important is that Alaska courts need to develop a clear standard for when judges can admit evidence under Alaska Rule of Evidence 404(b) so that litigants know what to expect.
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.
January 5, 2009
Legally Blind? Court Of Special Appeals Of Maryland Makes Seemingly Misguided Hearsay Ruling In Murder Appeal
The recent opinion of the Court of Special Appeals of Maryland in Williams v. State, 2008 WL 5352283 (Md.App. 2008), contains what seems to me to be a horribly misguided evidentiary ruling.
In Williams, Tony Williams was convicted by a jury in 1998 of first-degree murder, the use of a handgun in the commission of a crime of violence, and carrying a handgun in connection with the fatal shooting of Dana Drake. That conviction, however, was subsequently reversed after it was determined that the prosecution failed to disclose material impeachment evidence, in violation of Brady v. Maryland Nonetheless, after a second trial, Williams was again convicted of the same offenses in 2007.
He subsequently appealed, claiming, inter alia, that the trial judge at his second trial improperly allowed the prosecution to introduce a videotape from the first trial of the testimony of the victim's neighbor, Brenda O'Carroll, who had passed away before the second trial. O'Carroll was a key prosecution witness:
"She claimed to have seen [Williams] get out of a red Corvette, chase the victim into the apartment building, and fire two shots at her. After she heard a third shot, she saw [Williams] run from the building and jump into his car. She then opened her door and saw the victim sitting on the third step of the stairway leading to the next floor, 'with her head on the side, dead.'"
O'Carroll was also one of two witnesses about whom the prosecution failed to disclose material impeachment evidence, leading to the Brady violation. Specifically, the prosecution failed to disclose that O'Carroll had told Detective Sergeant Darryl Massey that she was legally blind at the time of the murder and that Massey had observed behavior that suggested O'Carroll's sight was impaired.
So, how was O'Carroll's videotaped testimony admissible notwithstanding the rule against hearsay? Well, the trial judge found that it was admissible pursuant to Maryland Rule of Evidence 5-804(b)(1), which provides an exception to the rule against hearsay for:
"[t]estimony given as a witness in any action or proceeding or in a deposition taken in compliance with law in the course of any action or proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination."
On appeal, Williams claimed that O'Carroll's videotaped testimony was improperly admitted because "he did not have the opportunity to cross-examine Ms. O'Carroll about her statement that she was legally blind." But the Court of Special Appeals of Maryland quickly disposed of this argument. According to the court,
"[t]he opportunity for cross-examination required by Rule 804(b)(1) 'is generally satisfied when the defense is given a full and fair opportunity to probe and expose [the] infirmities [of a witness' testimony]...thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony.'"
The court then quickly concluded that Williams "certainly had the opportunity to cross-examine Ms. O'Carroll at his first trial."
The Court of Special Appeals of Maryland then concluded that defense counsel had a similar motive to develop O'Carroll's testimony at the first trial. According to the court, another witness testified that it was "pitch dark" at the time of the murder, and O'Connell testified, inter alia, that she was taking "medicine," receiving radiation, and had had eleven operations. According to the court, this gave defense counsel a motive to question O'Carroll about her eyesight at the first trial, which he did not do.
I think that this analysis is wrong and that the Court of Special Appeals of Maryland placed the emphasis in the wrong place. Of course defense counsel in a first murder trial would have a similar motive to try to discredit the testimony of a witness for the prosecution as it would have if that witness were to testify at a second murder trial on the same charges. The real question in such a case is whether defense counsel had a sufficient opportunity to discredit the testimony of the witness at the first trial, and that is where the court should have done most of its heavy lifting.
And on that point, I will use the court's own words to challenge its ruling. According to the court, the "opportunity" requirement of Maryland Rule of Evidence 5-804(b)(1) is only satisfied
"when the defense is given a full and fair opportunity to probe and expose [the] infirmities [of a witness' testimony]" (emphasis added).
So, I ask readers: Do you think that Williams had a full and fair opportunity to challenge O'Carroll's testimony based upon her eyesight at the first trial? Or did the prosecution's failure to disclose evidence of her legal blindness render that opportunity something less than full and fair? I would argue the latter, and, I think that the Court of Appeals of Maryland might agree with me upon appeal.
January 4, 2009
Litigating With The Sopranos: Supreme Court Of New Jersey To Decide Whether To Adopt The Forfeiture By Wrongdoing Exception In Felony Murder Appeal
Tomorrow, the Supreme Court of New Jersey will hear oral arguments and ultimately decide whether to judicially adopt the forfeiture by wrongdoing exception or decide that the felony murder convictions of two men were improperly obtained.
In State v. Byrd, 923 A.2d 242 (N.J.Super.A.D. 2007), Dionte Byrd and Freddie Dean, Jr. appealed their convictions for felony murder and related charges in connection with the killing of Charles "Minnesota Fats" Simmons in Simmons' apartment in Trenton in 2001. Both Byrd and Dean were convicted in large part based upon the statements of Kenneth Bush, who indicated, inter alia, that he rode in a van to Simmons' apartment with Byrd and Dean, both of whom were armed, remained in the van while they entered the apartment, saw them return, with Byrd having suffered a gunshot wound to the leg, and heard both men discuss the shooting.
Bush, however, did not testify to these facts at trial. Instead, he refused to testify, claiming that both defendants threatened him with bodily harm if he testified against them. The above facts were merely what Bush told Trenton Police Detective Anthony Manzo in a transcribed, written statement. And, at the trial court level, after a lot of legal wrangling,
"[t]he judge stated that he was clearly convinced of the legitimacy of Bush's expressed concerns about testifying. He confirmed his ruling the next day and announced that he intended to admit Bush's statement following a reliability hearing. Thereafter, at the conclusion of the hearing,...the judge permitted Detective Manzo to read Bush's statement to the jury."
Although the judge agreed that the procedure was novel, with little case law to provide support, he was of the opinion that "no examination or cross-examination was possible given the attitude of the witness."
The defendants thus appealed, claiming that New Jersey has no counterpart to Federal Rule of Evidence 804(b)(6), the forfeiture by wrongdoing exception to the rule against hearsay, which allows for the admission of
"[a] statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness."
In addressing this issue, the Appellate Division noted that since the adoption of Federal Rule of Evidence 804(b)(6), several state supreme and intermediate appellate courts have adopted the forfeiture by wrongdoing exception "through judicial decision." But the court reversed, finding that in New Jersey,
"such a change in the Rules of Evidence should be accomplished by our Supreme Court in accordance with the procedure prescribed in N.J.S.A. 2A:84A-38 and -39, rather than by judicial opinion.... Accordingly,...the trial court should not have permitted Detective Manzo to testify as to Bush's out-of-court statement."
Well, now the Supreme Court of New Jersey has that opportunity. According to the state's brief, "at least 31 states and the District of Columbia have adopted the forfeiture rule." Moreover, in the state of Tony Soprano, the state Attorney General's Office has claimed that:
"Witness intimidation is, without exaggeration, the greatest threat we now face to effective prosecution of gang-related violence, organized-crime violence, and domestic violence....The time has come for this court to respond to the continuing spread of witness intimidation and prevent the systemic silencing of witnesses from continuing to make a mockery of our system of justice."
We should have the response of the Supreme Court of New Jersey shortly.