August 8, 2009
A Question Of Your Honesty: Supreme Court Of New Hampshire Finds That Receiving Stolen Property Is Not A Crime Of Dishonesty/False Statement
For the purpose of attacking the character for truthfulness of a witness,...evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
A question that has divided courts across the country is whether a conviction for receiving stolen property/theft qualifies for admission as a crime of dishonesty and/or false statement under Federal Rule of Evidence 609(a)(2) and state counterparts. The most recent court to weigh in was the Supreme Court of New Hampshire in its recent opinion in State v. Holmes, 2009 WL 2366291 (N.H. 2009), in which it answered this question in the negative.
In Holmes, Jeremiah Holmes was convicted of one count of being a felon in possession of a firearm, two counts of falsifying physical evidence, and one count of criminal threatening with a deadly weapon. Holmes was convicted after the trial court precluded him from impeaching a witness for the prosecution through evidence of his prior misdemeanor conviction for receiving stolen property, and this evidentiary ruling formed the basis for his appeal.
And Holmes had some precedent in support of his position. The Supreme Court of New Hampshire noted that it had never addressed the admissibility of receiving stolen property under New Hampshire Rule of Evidence 609(a)(2) and that several state courts, such as courts in Washington and Pennsylvania "do hold that theft, analogous to receiving stolen property, is per se dishonest and thus admissible under their state rules of evidence." At the same time, the New Hampshire Supremes noted that "the majority view among federal courts is that theft is not a crime of dishonesty under Federal Rule of Evidence 609(a)(2)."
There is good reason for this. The court noted that:
The crux of the defendant's argument lies in his broad construction of the phrase "dishonesty or false statement." He argues that such acts embrace receiving stolen property because one who commits that crime is "void of integrity; faithless; ... not trustworthy." This is one of many sound characterizations, and we note that some definitions of "dishonesty" specifically contemplate theft, and vice versa.
crimes such as perjury or subordination of perjury, false statement, criminal fraud, embezzlement or false pretense, or any other offense, in the nature of crimen falsi the commission of which involves some element of untruthfulness, deceit, or falsification bearing on the accused's propensity to testify truthfully.
According to the court, this language means that receiving stolen property is not a crime of dishonesty or false statement because
[a]lthough this list is not exhaustive, it clearly illustrates that Rule 609(a)(2) was intended to include a "narrow subset of criminal activity."...At its broadest, the rule contemplates only crimes involving deceit, untruthfulness, or falsification. Only a limited number of crimes necessarily involve these elements, and receiving stolen property is not among them.
August 7, 2009
The Only Easy Day Was Yesterday: Former Navy SEAL Trainee First To Have Murder Conviction Erased By New Virginia Writ Of Actual Innocence Rule
The date was June 19, 1995. I had just graduated from First Colonial High School in Virginia Beach. Down the street from the school, Jennifer Evans, a 21 year-old premedical student from Georgia was being murdered outside a nightclub. Two friends and fellow Navy SEAL trainees, Billy Joe Brown and Dustin A. Turner, were eventually convicted of her murder. Years later, Brown converted to Christianity and admitted in a taped confession that he was Evans' sole killer, spontaneously choking her in a car parked outside a nightclub. That confession formed the basis for the Court of Appeals of Virginia, in Turner v. Commonwealth, 2009 WL 2369552 (Va.App. 2009), to grant Turner's petition for writ of actual innocence. Before 2004, however, Turner would have been out of luck.
This law, however, would not have helped Turner because his evidence -- Brown's confession -- was non-biological, meaning that the 21-Day Rule still applied. This all changed in 2004, with the passage of what is now Code of Virginia Section 19.2-327.10, which provides that
Notwithstanding any other provision of law or rule of court, upon a petition of a person who was convicted of a felony upon a plea of not guilty, the Court of Appeals shall have the authority to issue writs of actual innocence under this chapter. Only one such writ based upon such conviction may be filed by a petitioner. The writ shall lie to the court that entered the conviction; and that court shall have the authority to conduct hearings, as provided for in this chapter, on such a petition as directed by order from the Court of Appeals. In accordance with §§ 17.1-411 and 19.2-317, either party may appeal a final decision of the Court of Appeals to the Supreme Court of Virginia. Upon an appeal from the Court of Appeals, the Supreme Court of Virginia shall have the authority to issue writs in accordance with the provisions of this chapter.
Because this Section does not contain a time limit, Turner was able to present Brown's confession in support of his petition, and the Court of Appeals of Virginia granted that petitionin, in a split decision. This was only the second writ of actual innocence issued under the new Section, and the first time that such a writ erased a murder conviction. It is important to note, tough, that this isn't the classic "wrongful conviction case; the court found that while Turner was not guilty of murder, he was still guilty of being an accessory after the fact by helping Brown conceal Evans' body after the murder. A hearing has been set to determine Turner's punishment for that crime, a misdemeanor that has a maximum punishment of one year in jail. And the Commonwealth might also still appeal the appellate court's ruling.
August 6, 2009
Stop Snitchin', The Aftermath: Maryland Case Might Be First To Apply State's Forfeiture By Wrongdoing Rule
Some readers might remember the infamous Stop Snitchin' DVD that surfaced on Baltimore's streets in 2004, featuring homegrown NBA player Carmelo Anthony and made to convince criminal informants to stop "snitching," or informing, to law enforcement, lest they face injury or death. What many likely do not know is that the DVD as well as numerous witnesses being murdered in Baltimore led Maryland to adopt Maryland Rule of Evience 5-804(b)(5), a counterpart to the federal forfeiture by wrongdoing rule. And now, the State may finally have an opportunity to use its new forfeiture rule.
In May 2007, Bobby Ennels was arrested and charged with first degree murder in connection with the 2006 death of Raymond Brown, also known as Scottie Beats. Ennels eventually struck a plea deal with the prosecution in exchange for his testimony against Jamaal Alexis, whom the State believed fired the fatal shot that felled Brown. Only weeks before Ennels was expected to testfy against Jamaal, however, he was killed, with the prime suspect being Jamaal's brother, Rashaad Alexis. If the State has its way, the case will be the first in the state to employ Maryland Rule of Evience 5-804(b)(5), allowing the jury to hear allegations made to the police by Ennels against Jamaal.
Under the rule, hearsay by a prospective witness is admissible against a party if the party procured the witness' unavailability through his wrongdoing, and the prosecution's theory is that Jamaal asked Rashaad to kill Ennels. Defense counsel has countered that his client is not guilty in Brown's murder and that he did not ask his brother to kill Ennels. It is important to note that if the judge follows the lead of federal judges applying the federal forfeiture by wrongdoing rule, the judge would merely need to be satisfied by a preponderance of the evidence that Jamaal procured the unavailability of Ennels through his wrongdoing to allow for the admission of Ennels' hearsay statements. See, e.g., United States v. Stewart, 485 F.3d 666, 670 (2nd Cir. 2007). The trial judge is expected to rule on the evidentiary issue this week.
August 5, 2009
Preemptive Strike: Eighth Circuit Finds Defendant's Testimony On Prior Convictions Waives Ability To Appeal
Federal Rule of Evidence 609(a)(1) provides that
evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403 , if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.
Obviously, it can be very damaging to a defendant if testifies during direct examination and then the prosecutor impeaches him through some prior conviction during cross-examination. It is easy to see how jurors would partially or entirely discredit what the defendant said based upon such impeachment. And that is why defense counsel will sometimes diminish the taint of such impeachment by eliciting such impeachment evidence from the defendant himself during cross-examination. The problem: such a tactic forecloses an appeal on the impeachment issue, as is made clear by the recent opinion of the Eighth Circuit in United States v. El-Alamin, 2009 WL 2366384 (8th Cir. 2009).
In El-Alamin, Malik El-Alamin was convicted by a jury of possession with intent to distribute cocaine base and being a felon in possession of a firearm. Before trial, El-Alamin filed a motion in limine seeking to exclude any reference to his 1998 aggravated robbery conviction and 1997 drug conviction. The district court, however, denied that motion, and at trial, rather than allowing the prosecutor to impeach El-Alamin on cross-examination through these convictions, defense counsel had El-Alamin testify about the convictions during his own direct examination.
After El-Alamin was convicted he appealed, claiming, inter alia, that the district court erred in deeming his prior convictions admissible for impeachment purposes. The problem: the Supreme Court's opinion in Ohler v. United States, 529 U.S. 753 (2000), which held "that a defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error." Applying this precedent, "the Eighth Circuit found that "By choosing to preemptively introduce the convictions, El-Alamin waived his right to appeal the trial court's denial of his motion in limine."
While the Eighth Circuit correctly followed this Supreme Court precedent, I wanted to note that the district court almost certainly acted incorrectly, at least with regard to the prior drug conviction. Drug convictions are thought to have low probative value for impeachment purposes, the conviction was about ten years old, and, while the opinion does not mention the specifics of the prior drug convictions, it seems likely that it was somewhat similar to the present charges against El-Alamin, ratcheting up its prejudicial effect. Given these factors, the district court almost certainly should have found that conviction inadmissible for impeachment purposes.
August 4, 2009
Bad Cops, Bad Cops: Tenth Circuit Questionably Affirms District Court Decision Limiting Cross-Examination Of Undercover Officer
Federal Rule of Evidence 609(a)(1) provides that
evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused.
As I have noted several times on this blog (such as here), courts have generally applied this Rule and state counterparts liberally and admitted evidence of convictions even when they (in my opinion) really should not have. Meanwhile, in relevant part, Federal Rule of Evidence 608(b) provides that
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.
This begs the question: Have courts similarly been liberal in allowing cross-examination of witness regarding specific instances of (mis)conduct? I haven't read enough case law on the issue to reach a definitive conclusion, but if the recent opinion of the Tenth Circuit in United States v. Beltran-Garcia, 2009 WL 2231667 (10th Cir. 2009), is representative, the answer would be "no."
In Beltran-Garcia, Edgar Beltran-Garcia and Martin Mendoza-Castillo were convicted of aiding and abetting possession, with intent to distribute, Schedule II controlled substances (methamphetamine and cocaine). These convictions were secured in large part through the testimony of an undercover officer, Officer M.R., who purchased the drugs from another man in the defendants' presence and identified Beltran and Mendoza as participating in the transaction. At trial, the defendants sought to impeach Officer M.R.'s testimony by asking questions about his misconduct during a separate, unrelated incident four years earlier. In that incident, the police department had reprimanded the Officer M.R. for exchanging heated words with and threatening to fight a suspect, and for allowing a search to continue that violated the Fourth Amendment. The district court, however, precluded this impeachment, prompting Beltran-Garcia and Mendoza-Castillo to appeal.
On that appeal, the Tenth Circuit affirmed, concluding that while the impeachment was permissible under Federal Rule of Evidence 608(b), the district court implicitly but properly foreclosed it under Federal Rule of Evidence 403, which provides that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. According to the court, Several times the district court mentioned its concern that the allegations were too old. The prior sustained allegations were approximately four years old at the time of the arrest, which is less than the amount of time for admission of prior convictions under Rule 609, as Mr. Beltran and Mr. Mendoza point out....Nonetheless, remoteness in time affected the probative nature of the evidence. Really? As the opinion noted, a four year old conviction is not considered remote under Rule 609, and I have never seen a court deem a four year gap between prior conviction and present trial a factor against the conviction's admission. Also, according to the court, "the misconduct occurred under different circumstances, during an arrest at a residence that did not involve undercover work." Now, in the Rule 609 context, this would be a factor supporting admission because the more similar the prior conviction to the present charge(s), the more likely that the jury will misuse the prior conviction as propensity character evidence." But apparently the Tenth Circuit sees things diferently in the Rule 608(b) context. Now, the court did find also find that Officer M.R.'s prior misconduct was not directly relevant on the issue of his (un)truthfulness and that the misconduct could be confusing to the jury. These concerns, however, are always at play with prior convictions under Federal Rule of Evidence 609(a)(1), and I see no reason why they substantially outweighed the probative value of Officer M.R.'s prior misconduct. -CM
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
According to the court,
Several times the district court mentioned its concern that the allegations were too old. The prior sustained allegations were approximately four years old at the time of the arrest, which is less than the amount of time for admission of prior convictions under Rule 609, as Mr. Beltran and Mr. Mendoza point out....Nonetheless, remoteness in time affected the probative nature of the evidence.
Really? As the opinion noted, a four year old conviction is not considered remote under Rule 609, and I have never seen a court deem a four year gap between prior conviction and present trial a factor against the conviction's admission. Also, according to the court, "the misconduct occurred under different circumstances, during an arrest at a residence that did not involve undercover work." Now, in the Rule 609 context, this would be a factor supporting admission because the more similar the prior conviction to the present charge(s), the more likely that the jury will misuse the prior conviction as propensity character evidence." But apparently the Tenth Circuit sees things diferently in the Rule 608(b) context.
Now, the court did find also find that Officer M.R.'s prior misconduct was not directly relevant on the issue of his (un)truthfulness and that the misconduct could be confusing to the jury. These concerns, however, are always at play with prior convictions under Federal Rule of Evidence 609(a)(1), and I see no reason why they substantially outweighed the probative value of Officer M.R.'s prior misconduct.
August 3, 2009
Rescue 911: Oklahoma Appellate Court Reverses Murder Conviction Based Upon Confrontation Clause Violation
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court found that that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. The Court in Crawford set forth various formulations of the term "testimonial," with the most commonly adopted one defining a "testimonial" statement as one that "was made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against an accused at a later trial." The Supreme Court later expanded upon this analysis in Davis v. Washington, 547 U.S. 813 (2004), and Hammon v. Indiana. I think that these latter two opinions explain the recent opinion of the Court of Criminal Appeals of Oklahoma in Hunt v. State, 2009 WL 2195422 (Okla.Crim.App. 2009), but that court only cited Crawford and did not cite either of these opinions, making its conclusion confusing.
In Hunt, Randal Hunt was convicted of the first degree murder of Wynona Reames, with whom he shared an apartment and a turbulent relationship. Hunt was convicted in large part based upon the prosecution's introduction into evidence of an audio recording of a 911 call made a couple of months before Reames' death. That 911 call was made during the following sequence of events:
The police initially went to the decedent's apartment after receiving a hang-up 911 call on the evening of the 18th. After making contact with the decedent, the police left at her urging, despite observing evidence that she had been beaten. Approximately two and half hours later she called the police back and described the beating she received from Appellant and her resulting injuries. Yet, she told the dispatcher she was ambivalent towards having Appellant arrested. At the time of the call, Appellant was asleep on the decedent's couch.
The trial court overruled Hunt's objection that this recording was inadmissible under the Confrontation Clause, prompting his appeal to the Court of Criminal Appeals of Oklahoma. That court agreed with Hunt, concluding that
Certain statements on the tape clearly illustrate the decedent's fear of Appellant and therefore her state of mind. However, there are also statements on the tape accusing Appellant of causing her injuries due to a beating she received from him two and half hours earlier because she asked him to drive her to a nearby fast food restaurant.These accusatory statements, relating past events, would be the same as live testimony if Appellant had gone to trial for the assault on the decedent. Therefore, those portions of the 911 tape were inherently testimonial and subject to the confrontation requirement.
I think that this is the right conclusion, but I don't see how it follows from Crawford. Reames 911 call was either made under circumstances which would lead an objectively reasonable declarant to believe or anticipate that the statement would be available for use against Hunt at a later trial, or it was not. I don't see how it makes any difference under Crawford whether she was discussing her current fear or what happened two and a half hours ago.
Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
Under this test, the court's opinion makes sense because statements concerning current fear would be directed toward police meeting an ongoing emergency while statements relating to what happened two and a half hours ago (likely) would be made in the absence of an ongoing emergency.
August 2, 2009
But It Was Harmless: Court Of Criminal Appeals of Tennessee Finds Erroneous Impeachment Ruling To Be Harmless Error
Tennessee Rule of Evidence 609(a)(3) provides that
For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime may be admitted if the following procedures and conditions are satisfied:...
(3) If the witness to be impeached is the accused in a criminal prosecution, the State must give the accused reasonable written notice of the impeaching conviction before trial, and the court upon request must determine that the conviction's probative value on credibility outweighs its unfair prejudicial effect on the substantive issues. The court may rule on the admissibility of such proof prior to the trial but in any event shall rule prior to the testimony of the accused. If the court makes a final determination that such proof is admissible for impeachment purposes, the accused need not actually testify at the trial to later challenge the propriety of the determination.
As the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Johnson, 2009 WL 2226171 (Tenn.Crim.App. 2009), makes clear, drug convictions are generally inadmissible under this Rule. But, as that opinion also makes clear, even when trial courts erroneously admit evidence of such convictions, appellate courts often find that the error was harmless.
In Johnson, a Knox County Criminal Court jury convicted Willie Douglas Johnson, of attempted second degree murder, two counts of aggravated assault, and three counts of unlawful possession of a weapon. These convictions were based in large part on the testimony of the victim, who identified Johnson as his shooter, and the testimony of Johnson's ex-girlfriend, who claimed that Johnson said that he was "going to get" the victim shortly before the subject shooting.
The convictions, however, were not based upon the testimony of Johnson because he did not testify. And he ostensibly did not testify at least in part because the trial judge ruled that if Johnson did testify, he could be impeached through, inter alia, evidence of two prior cocaine possession convictions.
After he was convicted, Johnson appealed, claiming, inter alia, that this ruling was erroneous because "the probative value of his 2004 and 2006 convictions of possession of cocaine was outweighed by the unfair prejudicial effect of the convictions." And the Court of Criminal Appeals of Tennessee agreed, finding that
In State v. Weller, 118 S.W.3d 368 (Tenn. 2003), our supreme court concluded that convictions for the possession, sale, manufacture, or delivery of illegal drugs do not involve dishonesty,...and, as such, are "only slightly probative" on the issue of credibility....The supreme court also concluded that before such convictions are used as impeachment evidence, the trial court must "carefully balance the impeaching conviction's relevance with regard to credibility against its unfair prejudicial effect on substantive issues."...Here, the trial court did not engage in such an analysis. Instead, the court ruled simply that “if [the defendant] does testify [the State] may use those” convictions.
But the problem for Johnson was that the court found this error to be harmless. According to the court,
Although the defendant correctly asserts that case law does not require the defendant to make an offer of proof to preserve the issue of the erroneous admission of previous convictions for impeachment, our courts have consistently held that "an offer of proof may be the only way to demonstrate prejudice."...Here,...the defendant did not testify at trial, did not make an offer of proof, and offers no summation of his intended testimony on appeal. Moreover, because the defendant presented no proof at trial, it is difficult to ascertain any specific theory of defense against which we could gauge the strength of the prosecution's case....The evidence adduced at trial established that the defendant told Ms. Banks he was "going to get" the victim shortly before he arrived at the victim's residence and shot him in the back. The victim positively identified the defendant as the shooter. Without any idea as to how the defendant intended to refute this evidence, we hold that the error was harmless.