EvidenceProf Blog

I Read The News Today: 10th Circuit Denies Habeas Despite Juror Misconduct In Death Penalty Appeal

A defendant is convicted of murder and sentenced to death. It turns out, however, that after the jury found the defendant guilty but before they decided to impose the death penalty, a juror spoke with a released alternate juror, who told her that he thought that the jury had done the right thing and that he had read newspaper articled that supported the jury's verdict. The defendant is thus entitled to a new penalty phase of trial, right? Well, actually he isn't, at least according to the recent opinion of the Tenth Circuit in Matthews v. Workman, 2009 1927051 (10th Cir. 2009). 

In Workman, the defendant was Jeffrey Matthews, accused of murdering his great-uncle. 

After jurors found Mr. Matthews guilty..., the court released them for the weekend with the usual admonition not to discuss the case with anyone. The penalty phase of the trial was set to begin the following Monday. Despite the court's instruction,...Juror # 2 called a discharged alternate juror, James DeHaven. Before being dismissed from jury service, Mr. DeHaven had given Juror # 2 a slip of paper with his phone number on it and asked her to call him to tell him the verdict. During their approximately 15 minute phone conversation, Juror # 2 told Mr. DeHaven that the jury had found Mr. Matthews guilty and indicated how long the jury deliberated. Mr. DeHaven replied that he thought the jury had done the right thing. Mr. DeHaven added that he had read newspaper articles that supported the jury's verdict, and assured Juror # 2 that she would understand what he meant once she was free to read the articles.

The jury eventually imposed the death penalty, and, after Matthews exhausted his appeals in the Oklahoma state court system, he filed a habeas petition in federal district court. After that court denied his petition, he appealed to the Tenth Circuit, which affirmed. That court noted that it was not precluded from hearing Matthews' allegation under Federal Rule of Evidence 606(b) because Juror #2's contact with the discharged alternate juror constituted an improper outside influence and/or extraneous prejucial information. Nonetheless, the court found that it could not afford relief to Matthews because 

On the record before us, we cannot conclude that Juror # 2's conversation with Mr. DeHaven, however inappropriate, substantially influenced the jury's sentence of death. This is not a case in which the question of harm or harmlessness is evenly balanced. Mr. Matthews argues that the information Mr. DeHaven communicated to Juror # 2 could have affected the verdict in the penalty stage by removing any residual doubt Juror # 2 harbored about Mr. Matthews's guilt, and thereby making her more likely to approve a death sentence. The difficulty with this suggestion is that the defense itself made no appeal to residual doubt in the penalty phase; in fact, defense counsel expressly disclaimed any such argument and emphasized that the defense respected the jury's verdict on the question of guilt. As well, it appears from the record that no specific details of the newspaper article were communicated to Juror # 2; that no other juror was even exposed to Mr. DeHaven's comment that the newspaper article supported the guilty verdict; and that the jury did not discuss or consider the extraneous information. We, thus, have no record evidence that would permit us to infer harm flowing from Juror # 2's conversation, and we reach this conclusion even without resort to the fact that Juror # 2 testified at the State evidentiary hearing that her conversation with Mr. DeHaven had no effect on her penalty phase verdict.

On a conceptual level, I understand the court's ruling, but it still seems to me that despite the defense not arguing residual doubt, there is a substantial likelihood that DeHaven's comments had some effect on Juror #2 deciding to impose the death penalty. If, as the Supreme Court has said, death is different, shouldn't courts more readily find substantial influence/prejudice rather than deciding arguably close calls against the condemned?

-CM

Collateral Damage: 8th Circuit Finds District Court Properly Precluded Extrinsic Evidence of Prior Inconsistent Statement

It is well established that a witness who testifies at trial can be impeached if he made a prior inconsistent statement before trial; moreover, Federal Rule of Evidence 613(b) indicates that the attorney impeaching a witness through a prior inconsistent statement can prove the existence of that prior statement through extrinsic evidence as long as "the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require." As the recent opinion of the Eighth Circuit in United States v. Bordeaux, 2009 WL 1919390 (8th Cir. 2009), makes clear, however, such extrinsic evidence is inadmissible when the witness is being impeaching on a "collateral" matter.

In Bordeaux, Adam Bordeaux was convicted of one count of assault with a dangerous weapon, three counts of assault with a dangerous weapon against a child who had not attained the age of 18 years, and one count of discharging a firearm during a crime of violence. The incident that gave rise to the trial against Bordeaux involved Bordeaux shooting at a vehicle being driven by Tristan Saupitty, with passengers R.F., W.S., L.R.B., and Michelle Boyd. Bordeaux claimed that he was acting in self-defense because he was standing outside his car and Saupitty drove in a threatening manner toward his car, which contained his wife and baby.

At trial, however, R.F. testified that Saupitty did not swerve toward Bordeaux's car. R.F. also testified on cross-examination that he neither had a fake gun or a B.B. gun and that he did not point any such gun at Bordeaux on the night of the shooting. Defense counsel then asked R.F. whether he had made a prior inconsistent statement to someone before trial. Thereafter, defense counsel sought to call a witness to testify that R.F. had told him that he had such a gun and that he pointed it at Bordeaux on the night of the shooting.

And, if part of Bordeaux's self defense claim was that he shot at Saupitty's car because he saw R.F. pointing a gun at him, the trial judge should have allowed this testimony. The problem for Bordeaux, however, was that his "defense theory was not that he shot at the vehicle and its occupants because of the threat posed by R.F. In fact, Bordeaux did not testify that he saw R.F. with a gun on the night in question." The trial judge thus found that this extrinsic evidence was inadmissible because the issue of "[w]hether R.F. carried a gun, unseen by Bordeaux, 'had no substantive connection whatsoever' to Bordeaux's trial."  

And on Bordeaux's subsequent appeal, the Eighth Circuit correctly agreed, concluding "that R.F.'s prior inconsistent statement was on a collateral matter and not admissible under Rule 613(b)." In other words, extrinsic evidence can be used to prove a prior inconsistent statement that undermines a witness' credibility with regard to testimony that relates to an element of claim or defense. But when a prior inconsistent statement merely undermines a witness' credibility with regard to testimony that is unrelated to a claim or defense, extrinsic evidence is not permitted.

-CM

Private Ears Are Listening: California Judge Expresses Doubt That Confidential Marital Communications Privilege Applies To Intercepted Conversation

Corey Lyons will soon stand trial in California for the slayings of his brother and sister-in-law. And, according to Judge Brian Hill, it is likely that statements that Lyons made to his wife in a locked interview room will be admissible, despite Lyons' claim that the statements constitute confidential marital communications.

Lyons faces two counts of murder and special allegations of multiple murders and murder for financial gain. He had been embroiled in a heated lawsuit with his brother over the recently built home at 621 Aurora Ave., where the two victims were found shot to death on May 4th.

Lyons quickly became a suspect in the killings, leading to him being taken to the police station and being placed in an interview room. At some point, while he was in the interview room with his wife, she asked him if he committed the murders, and he responded with a mumbled, indecipherable answer. Then his wife told him, "Don't talk."

Authorities know these facts because they were recording what was going on in the interview room. And, while at this point, Lyons's answer is indecipherable, Detective Bryan Jensen, the lead investigator on the case, said deciphering the audio recording is still a work-in-progress, suggesting further enhancement of the tape could be accomplished. If this further enhancement works, the tape would likely be admissible according to Judge Hill, who recently stated that he “would tend to think [the taped conversation] is admissible."   

Lyons' argument, meanwhile, is that the taped conversation is inadmissible pursuant to California's Confidential Marital Communications Privilege, California Evidence Code Section 980, which provides that:

Subject to Section 912 and except as otherwise provided in this article, a spouse (or his guardian or conservator when he has a guardian or conservator), whether or not a party, has a privilege during the marital relationship and afterwards to refuse to disclose, and to prevent another from disclosing, a communication if he claims the privilege and the communication was made in confidence between him and the other spouse while they were husband and wife. 

In order for Lyons to be able to assert this privilege, he must have (1) intended nondisclosure and (2) had a reasonable expectation of privacy. People v. Mickey, 818 P.2d 84, 102 (Cal. 1991). But according to the prosecution, the problem for Lyons is the same problem that Mickey faced. In Mickey, the Supreme Court of California found that the privilege did not apply to letters he sent to his wife while in custody awaiting punishment for capital punishment because he believed that authorities were intercepting all his mail and reading its content, meaning that he did not have a reasonable expectation of privacy. 

According to the Senior Deputy District Attorney, the same goes for Lyons: Lyons and his wife "clearly suspected that someone might be eavesdropping, as evidenced by their lowered voices, and thus did not expect any privacy." 

-CM 

The Character Of The Matter, Take 2: Iowa Judge Precludes Specific Act Character Evidence In Murder Trial

Yesterday, I posted an entry about how criminal defendants claiming self-defense generally can present opinion and reputation testimony concerning the victim's character for violence but generally cannot present specific act testimony concerning the victim's character for violence. Well, a current case in Iowa presents another example of this dichotomy.

Christopher Seigfried is currently standing trial in Iowa for the first-degree murder of Clarence Overlhulser. Seigfried does not dispute that he swung a homemade cast iron sword, striking Overhulser on the side of the head with the handle part, cutting four inches deep into the brain, and killing Overlhulser.

But Seigfried claims, as when he was arrested, that he was defending himself from a much bigger, and perhaps, a drunker man, who became upset about a game of pool they played the night before. He has said the man barged into his basement apartment and threatened to kill him. 

Specifically, "Seigfried, through his attorneys, maintains Overhulser tackled him, and in the heat of the moment, he grabbed the sword and swung it." In support of this self defense defense, Seigfried attempted to have character witnesses testify regarding their unpleasant experiences with Overlhulser. The trial judge, however, found their testimony inadmissible, and, for the reasons noted in yesterday's post, the judge was correct.

Like its federal counterpart, Iowa Rule of Evidence 5.404a(2)(A) provides that

Evidence of a person's character or a trait of the person's character is not admissible for the purpose of proving that the person acted in conformity therewith on a particular occasion, except...[i]n criminal cases. Subject to rule 5.412, evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in any case where the victim is unavailable to testify due to death or physical or mental incapacity to rebut evidence that the victim was the first aggressor.  

However, like its federal counterpart, Iowa Rule of Evience 5.405 provides that

a. Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

b. Specific instances of conduct. 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 the person's conduct.

Thus, while Seigfried could have had character witnesses provide reputation and/or opinion testimony concerning Overlhulser's character for violence, those witnesses could not relate their specific unpleasant experiences with him to prove his character for violence (because, as noted yesterday, the victim's character for violence is not an essential element of a self defense claim).

-CM

The Character Of The Matter: Court Of Appeals Of Arizona Finds That Victim's Violent Character Is Not An Essential Element Of A Self Defense Claim

Like its federal counterpart, Arizona Rule of Evidence 404(a)(2) provides that:

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...2. Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor.

Meanwhile, like its federal counterpart, Arizona Rule of Evidence 405 provides that:

(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, or pursuant to Rule 404(c), proof may also be made of specific instances of that person's conduct.

So, how do these rules apply when a criminal defendant claims self-defense? Clearly, the defendant can introduce reputation/opinion evidence concerning the victim's character for violence, but is the victim's character for violence an essential element of the defendant's defense, meaning that he can also introduce specific instances of violence by the alleged victim? The answer, according to the recent opinion of the Court of Appeals of Arizona in State v. Fish, 2009 WL 1872146 (Ariz.App.Div. 1 2009), is "no" at least when the defendant did not know about those instances before the alleged crime.

In Fish, Harold Arthur Fish appealed from his conviction for second degree murder, claiming, inter alia,  that the trial court erred by preventing him from presenting specific instance evidence concerning the victim's character for violence. The appellate court, however, agreed with the trial court, finding that while Fish could have presented opinion and/or reputation evidence concerning the victim's character for violence pursuant to Arizona Rule of Evidence 404(a)(2), he could not have presented specific instance testimony unless he had knowledge of those instances prior to the killing. 

If Fish had this prior knowledge, he could present such evidence because he would be using it to prove that those instances of violence made him reasonably fear the victim, supporting his self-defense case, not (necessarily) to prove that the victim had a propensity to act violently and likely acted in conformity with that propensity at the time of the subject crime. But without that prior knowledge, Fish could only use that evidence for propensity/conformity purposes, rendering it inadmissible under Arizona Rule of Evidence 405(a).

Fish did claim that the victim's character for violence was an essential element of his self-defense claim, but the appellate court rejected this argument. The reason? As I have noted before on this blog, courts have generally found that character is an essential element in a very limited number of cases such as libel/slander/defamation cases and negligent hiring cases. And this makes sense. A typical defense to defamation is the truth, and if, say, a newspaper publishes a story that a politician is an adulterer, evidence of the politician's character for adultery would be essential to the truth defense; without it, the defense would automatically fail.

Meanwhile, if plaintiffs sue a company for negligently hiring a driver who drove drunk and killed family members, those plaintiffs would have to prove that the driver had a history of drunk driving. Without such character evidence, they could win. Thus, character in this case would be an essential element of the plaintiffs' claim.

Conversely, when a defendant claims self-defense in a murder trial, the victim's character for violence is not an essential element of that defense. The defendant can prove that the victim was the aggressor by providing his own testimony regarding the killing, the testimony of eywitnesses, forensic evidence, etc. Thus, the appellate court properly found that the trial court did not err with its ruling (but the appellate court did find that the trial court made other errors, which resulted in the defendant's conviction being reversed).

-CM

The "Phantom Expert Witness" And The Confrontation Clause

Let's say that a defendant is on trial for arson. A key part of the prosecution's case is going to be its evidence that the defendant used gasoline or some other agent to start the subject fire. And if there is no forensic evidence that the defendant started the subject fire, the prosecution is going to have to scramble to explain the absence of such evidence. One way it could do so would be to call an expert to explain the absence of such evidence. Another, as was the case in United States v. Myers, 2009 WL 1873510 (7th Cir. 2009), would be to itself explain the absence during closing arguments. Of course, the latter method would be improper, but would such an explanation lead to the creation of a "phantom expert witness," in violation of the defendant's rights under the Confrontation Clause? According to the Seventh Circuit, the answer is "no."

In Myers,

Ernest Myers rented a warehouse in the City of Joliet ("the City") to establish a for-profit recreation center for teenagers, where the youth could shoot pool, play video games, dance, and enjoy comedy shows. He dubbed the business "Against All Odds." Unfortunately, the odds were against Myers. Shortly after opening the center in late 2000, Myers had to apply to the City for permits to run pool tables, video games, and dances. The City granted him a permit for video games, but denied him permits for pool tables and dances. Myers was forced to return the lucrative pool tables he had rented. The City then demanded that Myers pave the parking lot, erect a screen between his and the adjoining lots, install a sidewalk, and conform to landscape and setback ordinances. Myers was also forced to make the bathrooms handicapped-accessible and to install fire extinguishers and emergency exits. Squeezed at one end by the denial of revenue-producing pool tables and dances and at the other end by the required improvements, Against All Odds closed on April 26, 2001.

Having lost all his investment, and having received a notice to quit the premises because of his failure to pay over $7,000 in overdue rent, according to the government Myers turned to arson. He had taken out $500,000 in property damage insurance on the property, which was owned by Ronald Schumacker. Myers's nephew Rodney Bew testified that Myers approached him and asked if he could find someone to burn down the building because "he was not going to let the City beat him out of his investment." Bew also testified that a few days later Myers told him that he had opened a gas pipeline in the building hoping that it would blow up. Anthony Dunn stated that Myers asked him for advice in starting a fire. Dunn suggested blowing out the pilot light and placing a candle nearby, and he and Myers went to the warehouse and did so. However, the building failed to ignite. Will Pruitte testified that Myers asked him how to start a fire. Pruitte suggested loosening a gas line. According to Pruitte, on May 5, 2001, he and Myers traveled to Against All Odds, where Pruitte banged on a pipe but did not open the line. He testified that he saw Myers pouring gasoline on the floor and making a gasoline trail to the door.

While there was apparently no fire lit on May 5th, there was a fire at Against All Odds on May 7th, which led to Myers and Schumacker filing insurance claims and collecting approximately $35,000 and $197,000, respectively. When fire invstiagtors went to Against All Odds, 

[a] trained accelerant detection dog named Smitty sniffed the scene and alerted at one location. Smitty also showed interest in several other areas at the scene. When investigators tested samples from those areas, including carpet fibers from the floor, no accelerant  was found.   

Nonetheless, based upon other evidence, the prosecution charged Myers (and others) with arson, use of fire to commit a felony, use of mail and wire communications to commit insurance fraud, and attempted arson And during closing arguments at Myers' trial, his attorney highlighted the fact that no forensic evidence supported the government's contention that Myers had poured gasoline on the floor of Against All Odds. Thereafter, in its rebuttal closing argument, the government prosecution with the following argument:

[Defense counsel] says, "Well, the arson people didn't find any gasoline when they went through." Another thing, you've got to remember something, too. Firefighters were there that day. They're pouring a lot of water into that building. It was water. They had hoses, they had to do a defensive attack. You heard about that. They had to break in the doors to fight the fire from the inside. So the fact you might-you didn't see evidence of gasoline apart from the burned gasoline can that you did hear testimony about, any speculation on the part of [defense counsel] about why or why there wasn't gasoline can be easily explained by the fact that there were firefighters that were in there that night trying to extinguish that fire with water. Water has a tendency to sweep through and remove all sorts of different things that might have been on the ground. So, ladies and gentlemen, that's an easy explainable different part of what [defense counsel] was trying to suggest.

Defense counsel did not object to this statement, and the court instructed the jury that the statements of the attorneys were not evidence. The jury subsequently found Myers guilty of attempted arson but acquitted him of all of the other charges.

Myers subsequently appealed, claiming that the prosecution's closing argument was improper and prejudicial, but while the Seventh Circuit agreed that the closing argument was improper, it found that it was not sufficiently prejudicial, especially in light of the fact that defense counsel did not object to it. Myers also claimed that "the Confrontation Clause was violated by the government's argument, because those comments constituted a 'phantom expert witness' that Myers could not confront." The Seventh Circuit, however, rejected this argument as well, concluding that "because there was no witness here, the Confrontation Clause is not applicable."

-CM

Passing By With Every Exit Sign: Delaware Search Seemingly Violates Arizona v. Gant

A recent search of an automobile in Delaware incident to a lawful arrest seems to be exactly the type of search that used to be authorized under New York v. Belton, 453 U.S. 454 (1981), but is now no longer authorized based upon the Supreme Court's recent opinion in Arizona v. Gant.

According to an article in delawareonline on July 3rd, "[t]hree Wilmington men face drug trafficking charges after New Castle County police stopped their car for a seat belt violation near New Castle and found cocaine and money." The three men were Lamar Tann, Quinton Turner, and Clyde Holmes. The article laid out the details of the car stop as follows:

The three were stopped in Holloway Terrace about 7:30 p.m. Tuesday when officers noticed the front passenger was not wearing a seat belt, said police Cpl. Trinidad Navarro.

When they stopped the car, Turner had no identification.

He was asked to step out and was found to be wanted by New Castle County Court of Common Pleas.

Twelve grams of cocaine were found under the driver's seat, Navarro said.

When officers searched Holmes, his pocket was stuffed full of cocaine that was in sight of the officers, he said.

The cocaine weighed 56 grams, Navarro said.

In addition to the drugs, officers seized $695 and drug paraphernalia, police said.

Subsequently, all three were charged with trafficking cocaine and other offenses. But, if I am reading the article correctly, the drugs taken from the car will likely have to be suppressed pursuant to Arizona v. Gant. It seems to me that the article is saying that the police properly stopped the car based upon the seatbelt violation, the police lawfully arrested Turner because he was wanted for some crime, and then the police searched the car incident to that lawful arrest.

And if that's what happened, the search of the car would have been a valid search incident to a lawful arrest under New York v. Belton, which held that officers can always search the passenger compartment of a vehicle as an incident to the lawful arrest of its (recent) occupant. Arizona v. Gant, however, repudiated (this reading of) Belton, finding that officers can "search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search." (or when it is “reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.”).      

It thus seems that the Delaware search was unconstitutional, but it is impossible for me to say so with any certainty without learning more about the facts of the arrest/search.

(Hat tip to reader Paula for the link)

-CM