January 2, 2010
Objection, Your Honor!: Supreme Court Of Rhode Island Opinion Demonstrates Importance Of Stating Correct Grounds For Objections
You've seen it a million times in legal movies and TV shows. A lawyer asks a witness a question, opposing counsel stands up and exclaims, "Objection, your Honor," and the judge overrules (or sustains) the objection. Like many other aspects of legal movies and TV shows, this is not the way that things are usually done in courtrooms across the country. If an attorney merely stood up and said, "Objection," in response to a question without stating the grounds for that objection, that attorney would not have preserved the issue for appellate review. Indeed, as the recent opinion of the Supreme Court of Rhode Island in State v. Reyes, 2009 WL 4730822 (R.I. 2009), makes clear, even if an attorney does state a ground for his objection, but it is the wrong ground, he has not preserved the issue for appellate review.
In Reyes, Pedro Muriel Reyes, was convicted of second-degree murder, discharging a firearm during the commission of a crime of violence resulting in the death of another, and the unlicensed possession of a firearm. Before trial, Joseph Parra told a detective that he saw Reyes leaving the scene of the subject shooting in a burgundy Lincoln Navigator. At trial, however, Parra recanted this statement and testified that he didn't see anyone, let alone Reyes, enter a Lincoln Navigator, leading to the following exchange:
“[Prosecutor]: Mr. Parra, do you remember the first question being addressed to you that, 'Joseph, this department is presently investigating the homicide that occurred on the 26th of November 2000. Prior to recording of this statement you indicated you possessed certain knowledge that may assist in our investigation. Drawing your attention to the early morning hours of that same date, the 26th, can you explain what you know?' And do you recall your answer being, 'It was after 2:00 A.M.-'
“[Defense Counsel]: Objection, Your Honor.
“The Court: The basis for the objection?
“[Defense Counsel]: The basis is there's no foundation for him to ask this particular question. Just continuing reading from the document. First part of that obviously a condition precedent as to why he was there giving a statement. I think that was objectionable. If he's going to read the entire statement it's not proper before the Court.”
The court then overruled this objection and allowed for admission of Parra's prior inconsistent statement. After he was convicted, Reyes appealed, claiming, inter alia, that Parra's prior statement was inadmissible hearsay. That appeal eventually reached the Supreme Court of Rhode Island, which found that Reyes failed to preserve the issue for appellate review, concluding that:
On its face, th[e above] objection does not raise hearsay....What is clear from the context is that defendant objected to the prosecutor reading into evidence Parra's prior statement without first giving Parra an opportunity to confirm or deny that he remembered providing it to [the detective]. Nothing in the objection even suggests that the prior statement was inadmissible hearsay. We consider the defendant to have waived appellate review of this argument because he failed to object on hearsay grounds to Parra's prior statement.
In other words, defense counsel messed up, precluding appellate review. Now, the Rhode Island Supremes went on to note that even if Reyes had preserved the issue, he still would have lost because Parra's prior inconsistent statement was admissible nonhearsay under Rhode Island Rule of Evidence 801(d)(1)(A). At first, I thought that the court had also messed up because Federal Rule of Evidence 801(d)(1)(A) defines a prior inconsistent statement as nonhearsay only if it "was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition." Rhode Island Rule of Evidence 801(d)(1)(A), however, contains no such requirement, meaning that Parra's statement would have been admissible not only to impeach Parra but also to prove the truth of the matter asserted in it because it was nonhearsay.
January 1, 2010
The (Un)Truth of the Matter: Court Of Appeals Of Texas Ostensibly Broadly Defines "Untruthful" Under Rule 608
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations:(1) the evidence may refer only to character for truthfulness or untruthfulness; and(2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
My question is: How broadly do we construe the words truthfulness and untruthfulness? Obviously, if defense counsel calls a witness to testify that, in his opinion, a witness for the prosecution is a liar, defense counsel has labeled the witness untruthful, opening the door for the prosecution to present evidence that the witness is truthful. But let's say that you have a child witness for the prosecution. And let's say that defense counsel tells the jury during opening statements that children generally have bad memories. Let's say that he tells them that children are subject to being coached. Let's say that he tells them that children fantasize about things that didn't happen. In that case, has defense counsel labeled the child witness untruthful, opening the door for he prosecution to present evidence that the witness is truthful? That was the issue facing the Court of Appeals of Texas, Texarkana, in its recent opinion in Alberts v. State, 2009 WL 4724362 (Tex.App.-Texarkana 2009).
The facts in Alberts were basically as listed above, with Michael Lee Alberts, Sr. being the defendant on trial for two counts of indecency by contact with D.G., a child, and one count of indecency by exposure to D.G., and D.G. being the child witness for the prosecution.
During opening statements, counsel for Alberts made the following comments: "[T]here are adults that are present when all this supposedly took place...that will say it never happened. It never happened," "You're going to find out that sometimes people with-children's minds don't have the memory that you and I have," and "Children are subject to not recalling it as it really happened. They are subject to be coached." During cross-examination, Peavy was asked, "what percentage of those children interviewed do not tell it like it is," "[h]ow often do children fantasize about things that did or didn't happen," and "how many times do interviewers such as yourself come in and coach the children into leading them with questions."
Thereafter, during trial, the court permitted D.G.'s mother to testify about how her son is honest and trustworthy. After Alberts was convicted, he appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his attorney did not object to this testimony despite it being inadmissible under Texas Rule of Evidence 608(a)(2) because he did not attack D.G.'s truthfulness. The Court of Appeals disagreed, noting that
The test for determining whether D.G.'s credibility was attacked, such that reputation testimony was proper is "whether a reasonable juror would believe that a witness's character for truthfulness has been attacked by ... evidence from other witnesses, or statements of counsel (e.g.[,] during voir dire or opening statements."...Despite the language relating to memory, it appears that the defensive strategy was to suggest that D.G. was coached by adults to fabricate and lie about an incident that did not occur. In this case, a reasonable juror might interpret counsel's questioning and comments as attacks on D.G.'s credibility. Because the record is silent, we may presume this logic drove counsel's failure to object. Therefore, we conclude counsel was not deficient in failing to object to the rebuttal testimony regarding D.G.'s reputation for truthfulness, as well as testimony specifically rebutting the defensive theory that D.G. was coached.
I think that I agree with the court, but I am not sure. I guess that it basically comes down to how you define "untruthful." If you simply define it as "not containing or telling the truth," it seems clear that defense counsel did label D.G. as untruthful because he was telling the jury that what D.G. had said did not contain the truth. But if you find that an "untruthful" person must be "deceitful" or "deceptive," it seems clear that defense counsel did not label D.G. as untruthful. Defense counsel claimed that D.G. might have been mistaken and that there might have been deceitful people coaching him, but I don't think that defense counsel was saying that D.G. himself was being deceitful or deceptive.
December 31, 2009
What Are Your Intentions?: Seventh Circuit Finds Prior Drug Crimes Admissible To Prove Intent Under Rule 404(b) In New Year's Eve Related Case
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, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
So, can the prosecution present evidence of a defendant's prior drug conviction(s) in a subsequent drug prosecution where intent is an element? That was the question faced by the Seventh Circuit in its recent opinion in United States v. Harris, 587 F.3d 861 (7th Cir. 2009). The court's answer? There is tension in its case law on the issue in general, but evidence of a defendant's prior drug conviction is always admissible in cases in which the defendant, while admitting possession of a drug, denies the intent to distribute it.
a citizen approached three Chicago police officers on patrol and told them about suspicious activity in a nearby alley. The officers drove to the alley in their unmarked police car. There, the officers saw that after Jerome Harris noticed their car, he threw a clear plastic bag to the ground and began to walk away. The officers picked up the bag and discovered that it had twelve individual bags inside it. Each contained a white, rock-like substance. Harris was arrested on the suspicion, later confirmed, that the substance was illicit...Harris told the officers that he knew of an apartment where guns and drugs were kept. Police went to the address Harris provided and found an inoperable .32 revolver. Harris also told one of the officers that he had stored two firearms that morning at the residence of his girlfriend, Porsche Andrews....Officers went to Andrews's apartment....After the officers' initial search did not yield any guns, the officers brought a handcuffed Harris into the home. Harris indicated the location of the guns to the officers, and the officers recovered a loaded .40 semi-automatic handgun and a loaded .45 pistol from a storage container inside Andrews's bedroom. In response to an officer's question of whether the guns were operable, Harris responded with something along the lines of, "Hell, yeah, they work. I shot them both on New Year's Eve."
Harris was thereafter convicted of being a felon in possession of a handgun and possession with the intent to distribute a mixture containing cocaine base in the form of crack cocaine. Harris subsequently appealed, claiming, inter alia, that the district court erred in allowing the prosecution to present evidence at trial that he had sold drugs on at least five occasions before his arrest.
The Seventh Circuit disagreed, finding that the evidence of these prior drug crimes was admissible to prove Harris' intent under Federal Rule of Evidence 404(b). The court did acknowledge that "there is tension in our case law as to whether prior drug convictions are always admissible in a subsequent drug prosecution where intent is an element." The court found, however, that it did not need to resolve this tension because tension because Harris admitted that he possessed cocaine and simply denied that intended to distribute it. According to the court,
Under the circumstances of Harris's case, however, our cases are in harmony. "The most obvious justifiable situation in which prior convictions are admissible in drug prosecutions on the issue of intent are in those situations in which the defendant, while admitting possession of the substance, denies the intent to distribute it.
I'm not sure that I agree with this conclusion because I think that jurors will use this evidence to conclude, "Once a drug dealer, always a drug dealer." But, as things stand, the Seventh Circuit will always find this evidence admissible.
December 30, 2009
Rejecting The Twinkie Defense: Court Of Appeals Of Utah Finds Expert Testimony On Intoxication Inadmissible To Establish Diminished Capacity
Probably the most famous trial where a defendant raised the defense of diminished capacity was the trial of Dan White for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. This defense is much maligned because most people think that White was able to convince the jury that he was merely guilty of voluntary manslaughter and not murder in the first degree by using the "Twinkie defense" to prove diminished capacity, i.e., that he should not have been held fully responsible for the killings because he was "suffering" from the sugar rush of eating a lot of Twinkies. But that's not actually what happened. Instead, as Michael R. Dreeben notes in The Right to Present a Twinkie Defense, 9 Green Bag 2d 347, 348 n.5 (2006),
The "Twinkie defense" owes its name to the 1979 trial of Dan White in San Francisco for the shooting deaths of Mayor George Moscone and Supervisor Harvey Milk. In fact, White did not use a “junk food” defense, but instead argued diminished capacity because of his episodes of depression. White's allegedly poor diet played only a small part in his lawyers' attempt to explain his plunge into a depressed state that led him to snap. Nevertheless, the phrase "Twinkie defense" has entered the lexicon to describe a seemingly absurd defense strategy that somehow works.
In its recent opinion in State v. Argumendo-Rodriguez, 2009 WL 4681285 (Utah. App. 2009), the Court of Appeals of Utah was presented with a quasi-Twinkie defense, but the court found the defense to be without merit.
In Argumendo-Rodriguez, Jesus Argumedo-Rodriguez was convicted for disarming a police officer. This disarming occurred after Argumedo-Rodriguez was pulled over on suspicion of driving under the influence, and "[t]here [wa]s no dispute that Argumedo-Rodriguez was extremely intoxicated when arrested and that he was physically impaired as a result." At trial, the court precluded Argumedo-Rodriguez from presenting the testimony of expert witness, Dr. James L. Poulton, who he claimed would have testified "regarding the effect of alcohol on Argumedo-Rodriguez's intent to commit the crime."
On Argumedo-Rodriguez's appeal, the Court of Appeals of Utah disagreed, finding that
testimony from Dr. Poulton was not germane to Argumedo-Rodriguez's defense of diminished capacity. To prevail on a diminished capacity or voluntary intoxication defense, Argumedo-Rodriguez had the burden to show that his "intoxication deprived him of the capacity to form the mental state necessary" for conviction on the charge of disarming a police officer....Thus, to prevail on a defense of diminished capacity, Argumedo-Rodriguez had to prove that, due to his intoxicated state, he did not intentionally attempt to take Officer Freir's weapon.Dr. Poulton's testimony could not assist the trial court, as the trier of fact, in determining whether Argumedo-Rodriguez's level of intoxication negated the existence of Argumedo-Rodriguez's intent to take the gun. Rather than testifying as to Argumedo-Rodriguez's mental capacity, Dr. Poulton [would have] offered evidence about the effects of the alcohol on Argumedo-Rodriguez's physical ability to "follow through with any intent that he formed." That testimony is simply not relevant to whether Argumedo-Rodriguez was capable of forming the requisite intent.
In other words, under Utah Rule of Evidence 702, Dr. Poulton's testimony would not have "assist[ed] the trier of fact to understand the evidence or to determine a fact in issue," rendering it inadmissible.
December 29, 2009
As I Lay (Not Quite) Dying: Ohio Opinion Reveals Why Excited Utterance Exception Is Useful Backup To Dying Declaration Exception
A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
a statement made by a declarant, while believing that his or her death was imminent, concerning the cause or circumstances of what the declarant believed to be his or her impeding death.
At a motions hearing..., the trial court received the testimony of Detective Douglas Bobovnyik for the purpose of ruling on [McGee]'s motion in limine to exclude Bush's alleged "dying declaration." According to his testimony, he responded to a call on the police radio involving a shooting....He found Bush lying on his back in the living room. He was the first officer on the scene....According to Bobovnyik, there was one woman and two or three men in the room with Bush, including Mr. Tondo....Bush appeared to be shot in the chest just below the armpit on his left side....There was no bleeding outside of his body, but he was struggling to breathe. Based upon the location of the bullet wound, Bobovnyik believed that Bush was going to die....Bobovnyik testified that he told Bush that he was shot in the side and "[t]hat's real serious."...He told Bush that he may not recover from his wounds, and Bush acknowledged that he was hurt "real bad" and that he might die...Bush identified "Greg McGee" as the man who shot him.
Moore testified that Bobovnyik told Bush that, "it doesn't look good and he may not make it," but that Bush did not respond to Bobovnyik's statements....Tondo testified that Bobovnyik's conversation with Bush consisted of little more than the acknowledgement that "Greg McGee" was the man who shot him.
After he was convicted, McGee appealed, claiming, inter alia, that he received the ineffective assistance of counsel because his trial counsel failed to subpoena Moore or Tondo to testify at the motions hearing, which would have led to Bush's statement being deemed inadmissible at trial. According to McGee, their testimony would have contradicted Bobovnyik's testimony and shown that Bush's statements were not made while he believed his death to be impending.
The Court of Appeals disagreed, finding that "Even assuming that the trial court would have refused to admit Bush's statement as a dying declaration, the statement could have been admitted as an excited utterance." In other words, the startling event was the shooting, Bush was under the stress of the shooting when he spoke, and his statement concerned the shooting, rendering it admissible as an excited utterance.
As you can see from McGee, the excited utterance exception typically applies when the dying declaration doesn't quite apply. So, if you face a case where a speaker is knocking on heaven's door, but the door isn't yet open, you should be able to admit the speaker's statements as excited utterances even if they don't quite qualify as dying declarations.
December 28, 2009
Expert In Lay Witness Clothing: Louisiana Opinion Reveals Rule 704 Problem With Police Officers Testifying As Lay Witnesses
Federal Rule of Evidence 701 provides that
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
As the Advisory Committee Note to the amendment to Rule 701 makes clear, Rule 701(c) was added in the wake of the Supreme Court's opinion in Daubert v. Merrdll Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), "to eliminate the risk that the reliability requirements set forth in Rule 702 will be evaded through the simple expedient of proffering an expert in lay witness clothing." I am equally worried now, however, that prosecutors are evading the requirements set forth in Federal Rule of Evidence 704 and state counterparts through the simple expedient of proffering an expert in lay witness clothing. A good example of this can be found in the recent opinion of the Court of Appeal of Louisiana, Fifth Circuit, in State v. Collins, 2009 WL 4640646 (La. App. 5 Cir. 2009).
In Collins, Dwight Collins, Jr., appealed his conviction of possession with intent to distribute heroin. That heroin (along with a razor, scale, sandwich bags, and money) was recovered by Detective David Canas and other employees of the Jefferson Parish Sheriff's Office from a hotel room from which Collins had just left.
After discussing his background, the prosecutor asked Detective Canas what he believed the packaging of the heroin was indicative of, based on his experience as a narcotics detective for six years and in making numerous narcotics arrests. Defense counsel objected, stating that the witness had not been qualified as an expert and could not render an opinion. The prosecutor said, "I'm asking his experience [sic] of six years as a narcotics detective, has he come across that type of packaging, and what has it meant to him." The trial judge said the witness could answer that question. Afterwards, Detective Canas testified, "That's for distribution purposes."Detective Canas later testified without objection that, based on his experience, the scale and the razor were indicative of the sale of narcotics. Defense counsel did object when the prosecutor began to ask what the presence of sandwich bags indicated to him based on his experience. However, there was no ruling on that objection, and the detective continued his testimony, noting the sandwich bags were indicative of possession with intent to distribute.The prosecutor subsequently asked Detective Canas what he believed was occurring when he saw the razor blade, digital scale, money, and the other items in the hotel room. The detective responded that he thought that narcotics were being sold. When asked why he arrested all three people, the detective replied that anyone who walked into that room would have knowledge that illegal narcotics activity was going on, as the drugs were in plain view and in sandwich bags. Furthermore, the detective stated he knew there were three people in the room.On cross-examination, Detective Canas testified that he arrested the Defendant for possession with intent to distribute because of the way the heroin was packaged, "and the baggies, the scale, and all that."
After he was convicted, Collins appealed claiming, inter alia, that Detective Canas' testimony was improperly received under Louisiana Code of Criminal Procedure article 704, which provides that:
Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However, in a criminal case, an expert witness shall not express an opinion as to the guilt or innocence of the accused.
According to the Court of Appeal of Louisiana, however, Collins faced a fundamental problem in this regard: Detective Canas was not qualified as an expert witness and thus testified as a lay witness. Now, I am not going to get into the issue of whether Detective Canas should have been able to offer the above testimony as a lay witness. Assuming, though, that he should have been able to offer this testimony, he clearly was a quasi-expert, and I don't see any reason why he should have been able to express opinions as to the guilt of the accused simply because he was an expert in lay witness clothing.
December 27, 2009
Unlimited: Court Of Appeals Of Texas Opinion Reveals That Most Hearsay Admitted Under An Exception Is Not Subject To A Limiting Instruction
Texas Rule of Evidence 105(a) provides that
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court's action in admitting such evidence without limitation shall not be a ground for complaint on appeal.
As the recent opinion of the Court of Appeals of Texas, Houston, in Green v. State, 2009 WL 4575146 (Tex.App.-Houston [14 Dist.] 2009), makes clear, however, statements offered under an exception to the rule against hearsay are usually admissible for all purposes, meaning that they are not subject to limiting instructions.
In Green, Curtis Green, Jr. was convicted of murder after he allegedly stabbed Patrick Gims. Someone who allegedly saw the stabbing then called 911 and said, ostensibly with regard to the victim: (1) "That man ain't never did nothing to nobody. He may be drunk all the time but that man ain't never did nothing to nobody[;]" (2) "[t]hat man never did nothing to nobody, dog[;]" and (3) "[h]e never did nobody no harm." The trial court admitted these statements under the present sense impression exception to the rule against hearsay.
Now, obviously, these statements contained character evidence, but the trial court found that Green opened the door for their admission by injecting the issue of character into trial, and the Court of Appeals agreed. Green also "requested an oral limiting instruction telling the jury 'that they can only consider [the 9-1-1 tape] as the present-sense impression of the witness and you can't consider this as testimony for you to rely upon in convicting the defendant.'"
The trial court refused to give such an instruction, and the Court of Appeals affirmed that decision on appeal. The Court of Appeals correctly found that
Statements admitted as present sense impressions or excited utterances are admissible for all purposes and are not subject to a limiting instruction. See Green v. State, No. 07-06-0367-CR, 2007 WL 923081, at *2 (Tex.App.-Amarillo March 28, 2007, no pet.) (mem. op., not designated for publication) (“Being an excited utterance, [the statement] was admissible free of any limiting instruction despite its supposed hearsay nature.”); Cockrell v. State, No. 04-05-00767-CR, 2006 WL 2955325, at *3 (Tex.App.-San Antonio Oct. 18, 2006, pet. ref'd) (mem. op., not designated for publication) (“A statement admissible as an excited utterance is admissible as an exception to the hearsay rule. Accordingly, if the trial court admitted the statements as excited utterances, the statements were admissible for all purposes and were not subject to a limiting instruction.”); Alli v. State, No. 01-04-00448-CR, 2005 WL 428231, at *3 (Tex.App.-Houston [1st Dist.] Feb. 24, 2005, no pet.) (mem. op., not designated for publication) (“The record shows that Magdalene's statements to the peace officers were admissible as excited utterances. A limiting instruction would thus have been improper because her statements were admitted for all purposes at trial and could be properly used by the jury as primary evidence of appellant's guilt.”). Therefore, the trial court did not err in denying appellant's request for a limiting instruction.
In other words, when a statement meets a hearsay exception, it is admissible to prove the truth of the matter asserted, not anything less. Thus, there typically is no basis for requesting a limiting instruction when hearsay is admitted under an exception to the rule against hearsay.