June 6, 2009
Come Be My Conspiracy: Supreme Court Of Arkansas Makes Seemingly Erroneous Co-Conspirator Admission Ruling
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
was inside her house when she heard her grandmother telling her to get some towels because someone was bleeding on the porch. Briana stated that she knew Sultannah, and the police asked Briana to call her. When Briana called, Sultannah did not answer her phone. Eventually, she did answer the phone and told Briana that she did not know the boy who had been shot....[W]hen Sultannah called back, she asked what happened and Briana told her that someone had been shot. Sultannah then asked if the victim died.
A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.
Resolved Conflict: Court Of Appeals Of South Carolina Notes That Statutes Trump Rules Of Evidence
South Carolina Rule of Evidence 801(d)(1)(B) provides that
A statement 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 consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive; provided, however, the statement must have been made before the alleged fabrication, or before the alleged improper influence or motive arose.
In its recent opinion in State v. Russell, 2009 WL 1373602 (S.C.App. 2009), the Court of Appeals of South Carolina found that the trial court properly allowed for the admission of the alleged victim's prior consistent statement even though there was no express ot implied charge of recent fabrication or improper influence of motive. How could it do so?
In Russell, the evidence presented at trial indicated that James F. Russell
attended a party at the home of Child's mother (Mother). Unable to sleep because of noise from the party, Child, who was six years old, got up from his bed and followed Russell outside. Russell led Child to a covered picnic table on one side of the back yard. According to Child, Russell told Child not to tell Mother, and then he pulled Child's pants down and placed his mouth on Child's genitals. Child stated when Russell pulled Child's hand toward Russell's genitals, Child slipped out of Russell's grasp, pulled up his pants, and ran to Mother.
Child's words were presented to the jury in three ways. First, Child testified regarding the above facts. Then, investigators who interviewed Child testified regarding what Child told them. Finally, the prosecution presented a videotape of an interview between a counselor and Child which corroborated Child's testimony at trial. Before this videotape was played for the jury, defense counsel objected that the tape was inadmissible, but the trial judge overruled the objection, and Russell was subsequently convicted of first-degree criminal sexual conduct with a minor.
Russell thereafter appealed, claiming, inter alia, that the tape was inadmissible under South Carolina Rule of Evidence 801(d)(1)(B) because he never made an express of implied charge of recent fabrication or improper influence of motive on the part of child. The court, however, found that the tape was admissible under Section 17-23-175(A) of the South Carolina Code, which permits the admission of out-of-court statements by child sexual abuse victims when the following conditions are met:
(1) the statement was given in response to questioning conducted during an investigative interview of the child;
(2) an audio and visual recording of the statement is preserved on film, videotape, or other electronic means...;(3) the child testifies at the proceeding and is subject to cross-examination on the elements of the offense and the making of the out-of-court statement; and(4) the court finds, in a hearing conducted outside the presence of the jury, that the totality of the circumstances surrounding the making of the statement provides particularized guarantees of trustworthiness.
Russell, however, claimed that this Section could not allow for the corroboration of Child's testimony because it was in conflict with South Carolina Rule of Evidence 801(d)(1)(B) and thus the South Carolina Rules of Evidence. The court noted, however, that South Carolina Rule of Evidence 101 indicates that "[e]xcept as otherwise provided by rule or by statute, these rules govern proceedings in the courts of South Carolina to the extent and with the exceptions stated in Rule 1101." Therefore, when there is a conflict between a statute and a rule of evidence in South Carolina, the former, will always apply.
June 5, 2009
Rescue Me?: Supreme Court Of California Issues Confusing Opinion Comparing/Contrasting The Rescue Doctrine With The Public Safety Exception
In New York v. Quarles, 467 U.S. 649 (1984), the Supreme Court found that there is a "public safety" exception to the requirement that police officers give suspects Miranda warnings when there is an "exigency requiring immediate action by the officers beyond the normal need expeditiously to solve a serious crime" and the officers' questions "relate to an objectively reasonable need to protect the police or the public from any immediate danger." A decade earlier, a California appellate court construed the Supreme Court of California's opinion in People v. Modesto, 398 P.2d 753 (Cal.1965), as creating a "rescue doctrine" exception to Miranda. So, is the "rescue doctrine" exception coterminous with the "public safety" exception, or are there relevant differences between the two? That was the question that the Supreme Court of California had to answer in its recent opinion in People v. Davis, 2009 WL 151577 (Cal. 2009).
Davis was a large opinion, with the court addressing many factual and legal issues. If you want to read about all of them you here is a link to the court' opinion. For purposes of this post, however, here are the relevant facts. 12 year-old Polly Hannah Klass was kidnapped from her home by Richard Allen Davis. When Davis abducted Polly, he told the two friends that were with Polly in her bedroom that he would not touch her and that “he was only doing this for the money." The night of the abduction, Davis' car became stuck in a ditch. Almost two months later, the owner of the property where Davis's car became stuck in a ditch,
discovered, in a clearing a few feet from where defendant's car had been stuck..., a pair of child-sized red knitted tights (knotted at the knee), an adult-sized dark sweatshirt (turned inside out), and a knotted piece of white silky cloth shaped like a hood.
Soon thereafter, authorities arrested Davis, and he invoked his right to counsel. At this time, however, no attorney was provided, and authorities had not yet been able to discover Polly's whereabouts. Thus, four days later, and without Davis being given an attorney, and a sergeant, Sergeant Meese,
told defendant that if there was "any hope" that Polly was alive, defendant "ought to give thought to talking to" him. Defendant replied he did not know what Meese was talking about. Meese told defendant the police had "enough physical evidence to make the case" even without a statement from defendant, and that if defendant decided he wanted to talk he could give Meese "a call." Meese then departed for the...crime scene, leaving his pager number with a corrections officer. After Meese's departure, defendant (according to the testimony of a corrections officer at the jail) became very quiet, reserved, and "stone-faced," looking at the ground.
About 15 minutes after Sergeant Meese's departure, defendant told a corrections officer he wanted to talk to Meese. A corrections officer notified Meese, who decided not to speak to defendant on his cellular phone for fear that the call would be intercepted by the news media. Two hours later, Meese called the jail from a pay telephone and spoke to defendant, who said, "I fucked up big time." When Meese asked if Polly was still alive, defendant said she was not.
Eventually, Davis was convicted of various crimes related to the kidnapping and murder of Polly, and he appealed, claiming, inter alia, that his incriminatory statements were taken in violation of his Miranda rights. The Supreme Court of California disagreed, finding that the "rescue doctrine" exception applied. But it did so in a weird way.
The court noted that its "rescue doctrine" exception predated the Supreme Court's "public safety" exception. It then noted that in People v Riddle, 83 Cal.App.3d 563 (Cal.App. 1978), a California appellate court articulated a three-part test to determine applicability of the rescue doctrine:
1. Urgency of need in that no other course of action promises relief; 2. The possibility of saving human life by rescuing a person whose life is in danger; [and] 3. Rescue as the primary purpose and motive of the the interrogators.
In other words, according to the court in Riddle, there is a subjective element to the "rescue doctrine" exception under part 3 of the test that focuses on the motivations of he interrogators. Conversely, when the Supreme Court created the "public safety" exception in Quarles, it noted that the exception is objective and that “the availability of th[e] exception does not depend upon the motivation of the individual officers involved.”
The Supreme Court of California then noted that it had
described the rescue doctrine as "analogous" to, not subsumed within, the public safety exception....In the handful of post-Quarles cases involving the rescue of missing persons, California decisions have continued to apply the rescue doctrine independently of the public safety exception articulated by the high court.
Okay, so the court applied California's subjectively focused "rescue doctrine" exception and not the objectively focused "public safety" exception, right? Wrong. Instead, the Supreme Court of California noted that it had
never adopted the Riddle test in determining applicability of the rescue doctrine. And that test's consideration of the motivation of the interrogating officer has been undermined by the high court's statement in Quarles (decided after Riddle ), that the applicability of the public safety exception, which is analogous to the rescue doctrine, "does not depend upon the motivation of the individual officers involved."
Weird. It thus seems to me that, despite the Supreme Court of California's statement(s) to the contrary, the "rescue doctrine" exception is indeed coterminous with the "public safety" exception. And, looking at the facts before it, that court found that the exception applied because, inter alia,
even though Polly had been missing for 64 days, it was objectively reasonable for Sergeant Meese to believe that defendant might have information that could lead to her rescue. When defendant abducted Polly, he told the two friends that were with Polly in her bedroom that he would not touch her and that “he was only doing this for the money,” implying that he was kidnapping Polly for ransom, not for murder. Moreover, none of the evidence recovered from the Pythian Road site (where defendant's car had become stuck in a ditch on the night Polly was kidnapped and which the police examined on Nov. 28, 1993), or from defendant's car (which the police seized when they arrested defendant on Nov. 30, 1993), indicated that Polly was dead.
June 4, 2009
Upon The Advice Of My Attorney: Attorney Argues Phone Call To Police Triggered Fifth Amendment Right To Counsel
A 17 year-old is shot and killed during an attempted robbery. In the hours after the shooting, the police arrest a 16 year-old suspect and begin questioning him regarding the crime(s). While the suspect is being questioned, a man is hired as the suspect's attorney (apparently by the suspect's family). The attorney calls the police and tells them that he has been hired to represent the suspect and that all questioning must cease. The police, however, continue to question the suspect, who makes incriminatory statements. The attorney later claims that all statements the suspect made after his call must be suppressed as they were taken in violation of his client's Fifth Amendment right to counsel. The attorney is most likely wrong.
The above facts are taken from a current case in Oneida County. On February 16th, 17 year-old Joshua Thompson was shot and killed during an attempted robbery. Police subsequently arrested 16 year-old suspect Anthony Ruffin and began questioning him about the robbery and shooting. While the police were questioning Ruffin, defense attorney Les Lewis contacted Utica police sergeant David Matrulli to advise him that he had been hired to represent Ruffin and that questioning should cease. The questioning, however, did not cease, and Ruffin eventually admitted that he shot Thompson although Ruffin alleged that the shooting was an accident. Lewis thereafter claimed, “I believe anything that happened after I called would be inadmissible at trial."
His argument, however, is not likely to find much success. In Moran v. Burbine, 475 U.S. 412 (1986), the Supreme Court was presented with similar facts. In Burbine, an attorney "retained" by a suspect's sister called the police station where the suspect was being interrogated and told a detective that the police would not be questioning the suspect and that they were through with him for the night. But the police were not done with the suspect for the night as they continued questioning him, and he eventually made incriminatory statements. After the suspect was convicted, he appealed, claiming, inter alia, that the police violated his Fifth Amendment right to counsel after his attorney's phone call. The Court of Appeals agreed, but the Supreme Court later reversed, finding that
[e]vents occurring outside of the presence of the suspect and entirely unknown to him surely can have no bearing on the capacity to comprehend and knowingly relinquish a constitutional right. Under the analysis of the Court of Appeals, the same defendant, armed with the same information and confronted with precisely the same police conduct, would have knowingly waived his Miranda rights had a lawyer not telephoned the police station to inquire about his status. Nothing in any of our waiver decisions or in our understanding of the essential components of a valid waiver requires so incongruous a result. No doubt the additional information would have been useful to respondent; perhaps even it might have affected his decision to confess. But we have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights....Once it is determined that a suspect's decision not to rely on his rights was uncoerced, that he at all times knew he could stand mute and request a lawyer, and that he was aware of the State's intention to use his statements to secure a conviction, the analysis is complete and the waiver is valid as a matter of law.
Thus, Lewis' claim is unlikely to be successful in court (Apparently, however, police denied Ruffin's mother access to him during the questioning, which could possibly lead to a different result, depending on the facts).
June 3, 2009
Supreme Court Of Minnesota Throws Intoxilyzer 5000 In The Drunk Tank Based Upon Non-Production Of Source Code
I have written several previous posts about the problems associated with the Intoxilyzer brand of evidential breath alcohol-testing devices. In February, I did a post about Connecticut discontinuing its use of the Intoxilyzer 5000 in favor of the Alcotest 7110 MK III-C based upon its belief that the latter was a better technology. And last May, I did a post about
[a] ruling by a City Court judge in Tucson could [have] affected every alcohol breath test conducted in Arizona since December 1, 2006. That was the date when Arizona adopted the Intoxilyzer 8000 machine made by CMI. Apparently, defense attorneys in 49 DUI cases before Judge Thomas Berning had asked for the Intoxilyzer 8000's source code used to create the machine's software. In response, CMI agreed to make the source code available as long as defense attorneys agreed not to reveal it publicly, which defense attorneys agreed to. According to a ruling by Judge Berning late last week, however, "Despite this, neither the state nor CMI has released the source code." Instead, according to Berning, CMI came back with a counteroffer with "more onerous terms" that defense attorneys said were ethically problematic." Unsatisfied by CMI's bait and switch, Judge Berning tossed out the alcohol breath tests from the 49 DUI cases.
Now, the Arizona ruling was important, but it was not hugely important because it involved the lesser used Intoxilyzer 8000 machine. Conversely, the Intoxilyzer 5000 machine I mentioned in my February post is the sobriety test most widely used by police agencies throughout the United States. But now, according to the Supreme Court of Minnesota, the same problem that the Arizona judge found with the Intoxilyzer 8000 machine applies to the Intoxilyzer 5000 machine.
In State v. Underdahl, 2009 WL 1150093 (Minn. 2009),
Dale Lee Underdahl and Timothy Arlen Brunner...each sought discovery of the complete computer source code for the Minnesota model of the Intoxilyzer 5000EN in their separate driving while intoxicated (DWI) criminal prosecutions. The district courts in both cases ordered the State to produce the computer source code within 30 days, or the courts would dismiss certain charges and find that the breath test results were not admissible. The State appealed the discovery orders, and the court of appeals consolidated the actions and reversed both orders for production.
The Supreme Court of Minnesota thereafter granted the men's petitions for review, and that Court affirmed the court of appeals' ruling with regard to Brunner for reasons that I won't address here (You can find these in the opinion). With regard to Underdahl, however, after disposing of some preliminary issues, the Court found that Underdahl was entitled to the source code because he established that it was relevant and otherwise discoverable. According to the Court,
In his discovery motion, appellant Underdahl requested a copy of the Intoxilyzer source code or the exclusion of the breath test result if the State failed to produce the source code. Underdahl's motion contained no other information or supporting exhibits related to the source code. At an omnibus hearing on October 17, 2007, Underdahl argued that a jury in a DWI case is asked to determine whether a breath test result is valid, and the only way for Underdahl to challenge that validity "is to go after the testing method itself." The district court found that the jury instructions in a DWI case require the jury to evaluate the reliability of the testing method in determining the blood alcohol concentration level. Because the Intoxilyzer 5000EN provides the only evidence of alcohol concentration, the court found that evidence regarding the operation of that instrument is relevant.
Ths Supreme Court of Minnesota agreed with this conclusion and thus ordered the State to produce it. The problem? The State does not have the source code, or at least the complete source code. CMI has the source code, and it refuses to release the complete source code. The question begged by Underdahl is whether litigants in other states will be able to raise similar challenges and how those states and CMI will respond.
June 2, 2009
Muscular Opinion: Court Finds Consumer Confusion Comments Admissible Under State Of Mind Exception
Can you tell the difference between ready to drink (RTD) nutritional beverages Muscle Milk and Muscle Power? CytoSport, the maker of Muscle Milk, claims that consumers cannot, and that is why it sued Vital Pharmaceuticals, Inc., the maker of Muscle Power, for, inter alia, trademark infringement. And, pursuant to the recent ruling of the United States District Court for the Eastern District of California in Cytosport, Inc. v. Vital Pharmaceuticals, Inc., 2009 WL 1444535 (E.D. Cal. 2009), CytoSport will be able to prove actual confusion by consumers based upon consumer feedback, notwithstanding the rule against hearsay.
contains a number of distinctive components, including: (1) the package is visually divided into three sections: top, middle, and bottom; (2) on the middle portion of the package, the word MUSCLE is prominently displayed above the word MILK in capital letters in a bold, block-letter, white font on a dark background; (3) on the lower portion of the package there is a colored swirl that reflects the flavor of the liquid in the package; (4) on the top portion of the package the flavor of the product is identified; and (5) on the side of the package, the words MUSCLE MILK are printed in bold, block-letter font and oriented from top to bottom.
contains a number of components that are strikingly similar to plaintiff's product, including (1) the package is visually divided into three sections: top, middle, and bottom; (2) on the middle portion of the package, the word MUSCLE is prominently displayed above the word POWER in capital letters in bold, block-letter, white font on a dark background; (3) on the lower portion of the package there is a colored swirl that reflects the color and flavor of the liquid in the package; (4) on the top portion of the package the flavor of the product is identified; and (5) on the side of the package, the words MUSCLE POWER are printed in bold, block-letter font and oriented from top to bottom.
In order to prove its trademark claim, CytoSport wanted to prove actual consumer confusion between the two marks, which is "persuasive proof that future confusion is likely." Vital Pharmaceuticals, Inc., however, claimed that CytoSport was impermissibly trying to prove such confusion through inadmissible hearsay. This evidence consisted of comments from customers and owners of 7-Eleven stores, who confused the two products. Vital Pharmaceuticals, Inc. claimed that these comments were hearsay under Federal Rule of Evience 801(c).
The court disagreed, first by (unconvincingly, in my opinion) arguing that the comments were non-hearsay. But I won't even address that first finding because it is clear that the court's second finding was correct. And that finding was that even if the comments were hearsay, they were admissible under Federal Rule of Evidence 803(3), which provides an exception to the rule against hearsay for
A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.
It seems clear to me that the aforementioned comments are being offered by CytoSport to prove the statement of mind -- confusion -- of the declarants making those comments. As such, they are admissible under the state of mind exception.
June 1, 2009
It Wasn't Me: Third Circuit Finds That District Court Properly Precluded Reverse-404(b) Evidence In Carjacking Appeal
A little while ago, I posted an entry about a recent opinion in which the United States District Court for the District of New Mexico noted that the Tenth Circuit has suggested, but not yet specifically held, that courts should more readily find reverse-Rule 404(b) evidence admissible than regular Rule 404(b) evidence because of the absence of the fear of an innocent man being convicted. The position of the Tenth Circuit is not anomalous, and, indeed, many courts have held what the Tenth Circuit has merely suggested. But, as the recent opinion of the Third Circuit in United States v. Donzo, 2009 WL 1452043 (3rd Cir. 2009), makes clear, defendants are not automatically entitled to introduce reverse-Rule 404(b) evidence.
In relevant part, Federal Rule of Evidence 404(b) provides 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.
Usually, a prosecutor seeks to introduce Rule 404(b) evidence to prove that a criminal defendant committed the subject crime, but sometimes a defendant seeks to introduce so-called reverse-Rule 404(b) evidence to prove that somebody else committed the subject crime. That was the case in Donzo.
In Donzo, Musa Donzo was convicted of attempted carjacking and knowingly carrying a firearm in relation to a violent crime after a carjacking in Bensalem, Pennsylvania in September 2006. What jurors did not hear during Donzo's trial was that a witness (mis)identified Donzo as the person who committed a carjacking approximately twenty miles away from the September carjacking on October 2, 2006. At the time of this latter carjacking, Donzo was still in custody based upon the September carjacking, and he sought to introduce evidence of this misidentification to prove that he was also misidentified in connection with the September carjacking.
The district court precluded Donzo from presenting this misidentification evidence, and the Third Circuit agreed, even though it had allowed for the admission of such reverse-Rule 404(b) evidence in United States v. Stevens, 935 F.2d 1380 (3rd Cir. 1991), to prove misidentification (i.e., the absence of identity). The reason? According to the court, in Stevens, the two crimes were extremely similar, whereas in Donzo,
Donzo failed to meet the threshold of Rule 401 and 403. He sought to introduce evidence that a victim of a carjacking approximately twenty miles away from the instant offense had mistakenly selected Donzo from a photo array for a crime committed while Donzo was in the custody of authorities. Donzo established little evidence of similarity in the two crimes, other than both crimes involving a carjacking. Further, Donzo did not seek to introduce the evidence to prove someone else may have committed the instant offense, but sought to use it as proof that misidentifications can occur.
The fact that Donzo was misidentified for a moderately comparable crime has no bearing on whether he committed the instant offense in which his identification was corroborated by substantial evidence. Therefore, the district court did not abuse its discretion in excluding
May 31, 2009
Texas Sized Justice: Texas Passes Bill Increasing Compensation To The Wrongfully Convicted
Many of you may have heard of Craig Watkins, who in 2006 became the first African-American elected district attorney of any county in Texas history when he became the Dallas County District Attorney. Last year, Reason's Radly Balko mused about whether Watkins was America's best prosecutor based upon his creation of the Conviction Integrity Unit.
Established by District Attorney Craig Watkins in July of 2007, the Conviction Integrity Unit oversees the post-conviction review of more than 400 DNA cases in conjunction with the Innocence Project of Texas (IPOT) and in accordance with the Texas Code of Criminal Procedure, Chapter 64 (Motion for Forensic DNA Testing). In addition to the IPOT project, the Conviction Integrity Unit investigates and prosecutes old cases (DNA and non-DNA related) where evidence identifies different or additional perpetrators. Special Field Bureau Chief Mike Ware supervises the Conviction Integrity Unit, the Appellate Division, the Public Integrity Division, the Federal Division and the Mental Health Unit, as well as public information, evidence destruction and expunctions at the District Attorney’s Office. The Conviction Integrity Unit is staffed by one assistant district attorney, one investigator and one legal assistant. This special division is the first of its kind in the United States.
This Unit is a big reason why Dallas County, with 20 DNA exonerations (including the recent exoneration of Jerry Lee Evans), has more DNA exonerations than any other jurisdiction in the nation since 2001. It's also the reason that you can follow the Unit's exploits on the (quite good) reality show Dallas DNA.
But what happens when the wrongfully convicted are released? What efforts does Dallas made to (somewhat) ease the transition from prison cell to a world that is often markedly different from the one the exonree inhabited before his incarceration? The answer is a lot more than it used to.
Texas recently passed a bill which increased lump sum payments to the wrongfully convicted
from $50,000 to $80,000 for every year of confinement and grant[ed] an annuity to provide a lifetime of income. Exonerees will get 120 hours of paid tuition at a career center or public college. Senators removed a provision to provide health insurance coverage for exonerees.
It also provides an additional $25,000 for each year a wrongly convicted person spends on parole or as a registered sex offender. No other state has such a provision, said Barry Scheck, the co-director of The Innocence Project, a New York-based legal center specializing in overturning wrongly convictions.