January 31, 2009
Thy Son And Daughters True: False Imprisonment Appeal Reveals Broadness Of Minnesota's Prior Consistent Statement Rule
The recent opinion of the Court of Appeals of Minnesota in State v. Samuel, 2009 WL 170772 (Minn.App. 2009), reveals that Minnesota's prior consistent statement rule, Minnesota Rule of Evidence 801(d)(1)(B), is much broader than its federal counterpart, Federal Rule of Evidence 801(d)(1)(B). And the consequence of that difference was that a statement that would have been inadmissible under the federal rule was admissible under the Minnesota rule in Samuel.
In Samuel, a jury found Meron Samuel not guilty of charges of burglary and criminal sexual conduct, but guilty of false imprisonment based upon an encounter in an apartment building during a late-night party. BD was the alleged victim of Samuel's criminal sexual conduct and one of the alleged victims of his false imprisonment. After the late-night party, BD gave a recorded police statement in which she claimed that Samuel committed acts of sexual assault and false imprisonment against her, and she later provided testimony consistent with that statement at trial. Then, without defense counsel claiming that BD had recently fabricated her testimony or that her testimony was based upon an improper motive or influence, the prosecution introduced into evidence BD's recorded police statement.
On appeal, Samuel claimed, inter alia, that the trial court erred in admitting BD's recorded police statement as a prior consistent statement. And if his case were being heard under the Federal Rules of Evidence, he would have been correct. Federal Rule of Evidence 801(d)(1)(B) indicates 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."
Minnesota Rule of Evidence 801(d)(1)(B), however, indicates 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 helpful to the trier of fact in evaluating the declarant's credibility as a witness."
And the 1989 Committee Comment to Minnesota Rule of Evidence 801 makes clear that this difference in language is not merely a stylistic deviation but an intentional substantive departure from the Federal Rule. According to the Committee Comment,
"As amended, Rule 801(d)(1)(B) permits prior consistent statements of a witness to be received as substantive evidence if they are helpful to the trier of fact in evaluating the credibility of the witness. Originally, Rule 801(d)(1)(B) applied only to statements that were offered to rebut a charge of recent fabrication or undue influence or motive. The language of the original rule, if read literally, was too restrictive. For example, evidence of a prior consistent statement should be received as substantive evidence to rebut an inference of unintentional inaccuracy, even in the absence of any charge of fabrication or impropriety. Also, evidence of prompt complaint in sexual assault cases should be received as substantive evidence in the prosecution's case in chief, without the need for any showing that the evidence is being used to rebut a charge of 'recent fabrication or improper influence or motive.'"
And, as is clear from this last sentence, BD's prompt complaint of sexual assault was admissible without the need for any showing that it was being used to rebut a charge of recent fabrication or improper influence or motive.
January 30, 2009
Let's Make A Deal: Supreme Court Of Pennsylvania Correctly Affirms Rule 410 Ruling But On Wrong Grounds
I agree with the conclusion of the Supreme Court of Pennsylvania in Commonwealth v. VanDivner, 2009 WL 153221 (Pa. 2009), but disagree with its reasoning.
In VanDivner, James VanDivner was convicted of the first-degree murder of Michelle Cable, criminal attempt to commit criminal homicide with respect to Billy Cable, and the aggravated assault of Cable family friend Larry Newman. VanDivner was later given a death sentence (as well as a consecutive sentence of 20 to 40 years for the attempted homicide of Billy Cable and a sentence of 10 to 20 years for the aggravated assault of Larry Newman). Frankly, I am a bit confused from the VanDivner opinion and articles on the case as to whether VanDivner knew the Cables before the subject crimes, but I do know that VanDivner subsequently appealed, claiming, inter alia,
(1) that the death penalty was improperly imposed because he was mentally retarded (the Pennsylvania Supremes found that the trial court acted properly in finding that VanDivner was not mentally retarded); and
(2) that the trial court improperly admitted evidence of his plea discussions in violation of Pennsylvania Rule of Evidence 410.
The alleged plea discussions occurred when VanDivner was being taken into an interview room at the Pennsylvania State Police barracks after the subject crimes, and he blurted out to Trooper James Monkelis, "This is a death penalty case and I don't want the needle, life for a life. Tell the DA I will plead guilty to life. I would have killed myself if I knew Michelle was dead."
Pennsylvania Rule of Evidence 410 states in relevant part that:
(a) General rule. Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the course of any proceedings under Rules 409, 414, 424, 311, 313, or 590 of the Pennsylvania Rules of Criminal Procedure, Fed. R. Crim. P. 11, or any comparable rule or provision of law of Pennsylvania or any other jurisdiction regarding the pleas identified in subsections (1) and (2) of this rule; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty later withdrawn."
Therefore, VanDivner was invoking Pennsylvania Rule of Evidence 410(a)(4), and according to the Supreme Court of Pennsylvania, he did so unsuccessfully. According to the court,
"Rule 410 of the Pennsylvania Rules of Evidence provides that statements made during plea negotiations are not admissible in evidence against the defendant participating in the plea negotiations. Here, however, there is no suggestion that plea negotiations were ongoing at the time appellant made his statement to police. Rather, he had been apprehended a short time before spontaneously making the challenged statement to police. Appellant takes an absolute position on this, resting upon his suggestion that the statement was a negotiation. But the very word 'negotiation' posits the participation of two parties and not unilateral conduct. Here, there was no such negotiation, and thus, Rule 410 exclusion is not implicated."
As I noted above, I agree with this conclusion, but I disagree with the court's reasoning. And the reason for my disagreement is that the court did not even need to address the unilateral nature of VanDivner's conduct because it was apparent that he was not talking with "an attorney for the prosecuting authority" or its agent. As I noted in my article, Caveat Accused,
"Based on disputes among courts over how to apply Federal Rule of Criminal Procedure 11(e)(6) and Federal Rule of Evidence 410 (and upon which Pennsylvania Rule of Evidence 410 is based)..., the Rules were amended in 1979 to provide clarification. The first dispute was over whether the Rules operated to make plea negotiations between an accused and law enforcement officials inadmissible or whether they only applied when the discussion was between the accused (or his attorney) and a government attorney. The Advisory Committee found that 'a literal reading of these two rules could reasonably lead to the conclusion that a broader rule of admissibility obtains....' The Advisory Committee decided that this broader rule was incorrect because the legislative history behind the Rules indicated that their purpose was to allow candor in plea negotiations between the 'attorney for the government and the attorney for the defendant or the defendant when acting pro se ....' Because this purpose related solely to communications with a government attorney, the Rules were amended so that plea negotiations with law enforcement officials were not covered by it, but were instead covered by the 'body of law dealing with police interrogations.'"
In other words, even if there were a bilateral exchange, VanDivner's statements still would have been inadmissible because he was not speaking to a prosecutor or his agent.
January 29, 2009
Must Love Dogs: Texas Appellate Court Finds Trial Court Properly Excluded Habit Evidence In Animal Cruelty Case
In its recent opinion in Vevrecka v. State, 2009 WL 179203 (Tex.App.-Hous. 2009), the Court of Appeals of Texas found that a trial court did not err in precluding a defendant from presenting evidence of her habit of taking care of other animals in her trial for cruelty to her five dogs. And I agree with the court's opinion.
In Vavrecka, a police officer responded to a complaint that several dogs on the property of Jill Young Vavrecka appeared to be abandoned and in distress. That officer spotted two dogs that looked malnourished and emaciated, with no visible food or water nearby. After entering the property, the officer noticed that the dogs' food was infested with bugs and strewn with trash, with an unreachable water barrel some distance away.
The two dogs were covered with fleas, and the officer subsequently found three other dogs in similar condition in a back-yard pen. He also noticed the strong smell of urine and fecal matter, which covered the areas where the dogs were confined. The officer thereafter called Animal Control, which eventually removed the dogs from the property.
When Vevrecka learned that Animal Control had removed the dogs, she attempted to get the dogs back. Understandably, Animal Control petitioned a justice of the peace to release the animals to its care to prevent the animals from being returned to Vevrecka. The justice of the peace granted that petition and ordered the dogs to be released to Animal Control. But heartbreakingly, while one of the dogs was adopted, the other four had to be euthanized because they suffered from disease.
Vevrecka was later charged with a misdemeanor offense of cruelty to animals and convicted after a jury trial. Vevrecka subsequently appealed, claiming, inter alia, that the trial judge incorrectly prevented her from presenting habit evidence under Texas Rule of Evidence 406, which states that:
"Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice."
Under this Rule, the trial court actually permitted a line of questioning as to Vavrecka's habit and routine of care as to the five dogs at issue. But the court precluded her from presenting evidence concerning her past practice and routine of caring for other stray animals and nursing them to health because it was inadmissible character evidence, not permissible habit evidence.
"Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. 'Habit,' in modern usage, both lay and psychological, is more specific. It describes one's regular response to a repeated specific situation. If we speak of character for care, we think of the person's tendency to act prudently in all the varying situations of life, in business, family life, in handling automobiles and in walking across the street. A habit, on the other hand, is the person's regular practice of meeting a particular kind of situation with a specific type of conduct, such as the habit of going down a particular stairway two stairs at a time, or of giving the hand-signal for a left turn, or of alighting from railway cars while they are moving."
Looking at this Note, we can see why the habit evidence regarding Vevrecka's habit and routine of care as to her five dogs was admissible. Ostensibly, that evidence (which is not explained in any detail in the opinion) revealed that she had the regular response of diligent care to the specific situation of having those five dogs on a day in, day out basis (although the facts of the case would suggest that it was not so regular).
Conversely, the evidence regarding her care for other stray animals was either simply generalized character evidence regarding her character for care (of animals), or it was indeed habit evidence, but not evidence of a habit relevant to her trial. It was evidence that she had a regular response of diligent care to the repeated specific situation of having these other stray animals temporarily.
I think an analogy explains why this was not sufficient habit evidence. Assume that Vevrecka were accused of child endangerment/abandonment regarding her children and wanted to present "habit" evidence concerning her diligent care of children in her role as a Big Sister or temporary foster parent. This might be evidence of some type of habit by the accused, but it would not be evidence of a habit relevant to her trial for child endangerment/abandonment regarding her children on an everyday basis.
January 28, 2009
Used To Love Her: Florida Appellate Court Upholds Admissibility Of Google Searches In Murder Appeal
In its recent opinion in Barber v. State, 2009 WL 151026 (Fla.App. 5 Dist. 2009), the District Court of Appeal of Florida, Fifth District, rejected the defendant's argument that the trial court improperly allowed for the admission of Google searches recovered from his computer. Unfortunately, the court neither stated that grounds for his appeal nor its reason for rejecting it.
In Barber, Justin Barber was convicted of first-degree murder with a firearm for the killing of his wife and sentenced to life in prison. It was undisputed at trial that Barber and his wife were celebrating a belated third wedding anniversary in April 2002 on a desolate strip of beach located between Ponte Vedra and St. Augustine. According to Barber, his wife and he were accosted by an unknown assailant as they walked along the ocean, the assailant shot and killed his wife at the surf's edge, and Barber dragged her body to the dune walkover before going for help. But according to the State, Barber half-drowned his wife in the ocean, then dragged her to the end of the dune walkover, where he shot and killed her.
The State's theory was bolstered by its investigation, which revealed that
(1) a $2 million life insurance policy covering the lives of both Barber and his wife had been obtained the year before;
(2) in the months prior to the murder Barber had conducted a Google searches of terms such as "trauma, cases, gunshot, right chest" and "Florida & divorce;"
(3) Barber had several affairs during his marriage, including a few months prior to the murder;
After Barber was convicted, Barber appealed, claiming, inter alia,
"that the trial court erred in denying his motions in limine directed at precluding the State from introducing evidence of (a) his extramarital affairs; (b) his computer search of the terms mentioned; and (c) the $2 million life insurance policy insuring the lives of Barber and his wife."
Unfortunately, the opinion in Barber did not explain how Barber claimed that these pieces of evidence were inadmissible, and the court simply affirmed the trial court's rulings "without further discussion." Filling in the first and third blanks, I would guess that Barber claimed that any probative value that the insurance policy and extramarital affairs had on the issue of his motive under F.S.A. Section 404(b) was substantially outweighed by the danger of unfair prejudice, making the evidence inadmissible under F.S.A. Section 90.403. Unfortunately, the brevity of the court's opinion doesn't give me the ability to address this issue with much detail, but I think it suffices to say that both of these pieces of evidence would potentially be strong evidence of motive.
Next, with regard to the Google searches, I would guess that Barber claimed that they were inadmissible hearsay. But even if these were "statements" by him offered by the prosecution to prove the truth of the matter asserted, they were the statements of a party opponent -- the criminal defendant -- and thus admissible under F.S.A. Section 90.803(18)(a). Indeed, similar internet searches have been deemed admissible in the recent Jensen trial from Wisconsin and a few other trials mentioned by cnet in an article on the case.
January 27, 2009
Lost In Translation: Court Of Appeals Of Texas Opinion Indicates That Texas Has A Ninth Rule Of Evidence Under Article X
The recent opinion of the Court of Appeals of Texas in Onwuteaka v. Commission For Lawyer Discipline, 2009 WL 136886 (Tex.App.-Houston 2009), reveals that the Texas Rules of Evidence have one more Rule of Evidence under Article X than do the Federal Rules of Evidence.
In Onwuteaka, Edin Perez and Erwin Jimenez sustained personal injuries in an automobile accident and hired attorney Joseph Onwuteaka to represent them in their personal injury matters. Upon becoming dissatisfied with Onwuteaka's representation, Perez filed a Spanish language grievance with the State Bar of Texas. Thereafter, Onwuteaka elected to have his disciplinary matter tried in district court before a judge, who entered a judgment against Onwuteaka and imposed a three-year fully probated suspension from the practice of law and monetary sanctions.
Onwuteaka subsequently appealed, claiming, inter alia, that that the trial court abused its discretion by admitting a translated version of Perez's State Bar complaint. Onwuteaka claimed that the English translation of Perez's complaint failed to comply with Texas Rule of Evidence 1009(a), which states that:
"[a] translation of foreign language documents shall be admissible upon the affidavit of a qualified translator setting forth the qualifications of the translator and certifying that the translation is fair and accurate. Such affidavit, along with the translation and the underlying foreign language documents, shall be served upon all parties at least 45 days prior to the date of trial."
According to Onwuteaka, the affidavit submitted by the Commission For Lawyer Discipline failed to articulate the translator's qualifications. The Court of Appeals of Texas, however, found this argument to be without merit because:
"the trial court did not admit the English translation. Rather, the court sustained Onwuteaka's objection with respect to the English-translated version and admitted only the original Spanish version."
Notwithstanding the inapplicability of Texas Rule of Evidence 1009(a) to Onwuteaka's trial, I think it makes Article X of the Texas Rules of Evidence an improvement over Article X of the Federal Rules of Evidence, which ends with Federal Rule of Evidence 1008. It seems to me to be the necessary compliment to Rule of Evidence 604, which states that:
"[a]n interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation."
January 26, 2009
Area Of Expertise: Iowa District Court Finds that Experts Can't Render Duress/Coercion Testimony In Drug Trial
The recent opinion of the United States District Court for the Southern District of Iowa in United States v. Ceballos, 2009 WL 105692 (S.D. Iowa 2009), provides a nice illustration of some of the expert testimony that a criminal defendant cannot present regarding her mental condition pursuant to Federal Rule of Evidence 704(b).
In Ceballos, Heather Marie Ceballos was charged with acting as an interpreter during a drug transaction for her boyfriend and interpreting another drug transaction for Gomez. Before trial, Ceballos informed the government that she planned to present evidence of Gomez's repeated acts of domestic violence against her to prove that her actions were involuntary and/or the product of coercion/duress. This evidence was to take three forms:
-(1) "family members' testimony regarding the abuse she received from Gomez;"
-(2) her "testimony about the abuse;" and
-(3) "expert testimony on her mental condition and domestic violence in general."
The government subsequently submitted a motion in limine seeking to exclude this testimony, and the district court understandably found that this testimony was irrelevant to the issue of whether Ceballos acted voluntarily. Conversely, the court found that this testimony was relevant on the issue of coercion/duress and admissible, with one notable exception.
That exception was based upon Federal Rule of Evidence 704(b), which states that:
"No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone."
The district court noted that Ceballos' proposed "expert testimony on her mental condition" consisted of "statements regarding the law on coercion, duress, and voluntariness and statements applying that law to [Ceballos]." The court correctly found that this proposed testimony was "a clear violation of the Federal Rules of Evidence including Rule 704(b)," rendering it inadmissible at trial.
January 25, 2009
Rock, Chalk, Recorded Talk?: Kansas To Consider Bill Requiring Recording Of Interrogations Of Suspects
Under a new bill sponsored by Kansas State Senator David Haley, law enforcement officers across Kansas would have to videotape their interrogations of suspects, with any untaped statements being inadmissible at trial. According to Haley, various police agencies in 48 states, including some in Kansas, videotape interrogations of people in custody. Indeed, as I noted last year, Illinois has a law requiring officers to videotape their interrogations after Barack Obama was able to get legislation passed over severe opposition.
There is similar opposition in Kansas, and it comes from the expected source: law enforcement officials and prosecutors. They have claimed that the if the bill were passed, it would be costly and raise the issue of whether questioning someone before arrest could be used as evidence if not videotaped.
I tend to side, however, with those courts which have found that not recording interrogations increases costs, on balance. For instance, the Supreme Judicial Court of Massachusetts found in Commonwealth v. DiGiambattista, 813 N.E.2d 516, 529 (Mass. 2004), that:
"As is all too often the case, the lack of any recording has resulted in the expenditure of significant judicial resources (by three courts), all in an attempt to reconstruct what transpired during several hours of interrogation conducted in 1998 and to perform an analysis of the constitutional ramifications of that incomplete reconstruction."
And as the Supreme Court of Iowa found in State v. Hajtic, 724 N.W.2d 449, 454 (Iowa 2006),
"We are aided in our de novo review of this case by a complete videotape and audiotape of the Miranda proceedings and the interrogation that followed."
And while requiring that interrogations be recorded creates some problems, I agree with the Supreme Court of Arizona's conclusion in State v. Jones, 49 P.3d 273, 279 (Ariz. 2002), that:
"[r]ecording the entire interrogation process provides the best evidence available and benefits all parties involved because, on the one hand, it protects against the admission of involuntary or invalid confessions, and on the other, it enables law enforcement agencies to establish that their tactics were proper."