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Univ. of South Carolina School of Law

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Monday, October 4, 2010

Sympathy For The Devil?: Court Of Criminal Appeals Of Texas Finds Evidence Of Defendant's Conversion To Satanism Admissible To Prove Future Dangerousness

A defendant has been convicted of murdering a victim in the course of committing or attempting to commit aggravated sexual assault. The prosecution is now trying to get the jury to sentence the defendant to death, and, in an attempt to prove his future dangerousness, it seeks to present evidence that the defendant is a Satanist. How should the court rule? According to the recent opinion of the Court of Criminal Appeals of Texas in Davis v. State, 2010 WL 3782212 (Tex.Crim.App. 2010), such evidence is admissible. I disagree.

The facts in Davis were basically as stated above. The defendant, Irving Davis, was actually initially convicted and sentenced to death in 2002, but the Court of Criminal Appeals of Texas reversed Davis' death sentence in 2007, resulting  in a new punishment hearing in 2008. While on death row, Davis became a Satanist. Before trial,

anticipating that the state would "attempt to offer into evidence expert testimony indicating Defendant's religious beliefs," [Davis] filed a motion in limine asking the trial court to bar testimony on that subject. At the hearing on the motion in limine, defense counsel argued that the state should not be allowed to get into "the issue of satanism" because it was not relevant, it would violate his rights to freedom of religion and freedom of association, and its probative value was outweighed by any prejudicial effect.

In response, the prosecutor claimed that

the state intended to introduce [Davis]'s prison records, writings, drawings, and "a pentagram that is etched into his body that was either carved or burned" to show that, in 2006, [Davis] had declared that he had been a Satanist since 2005. The prosecutor added, "We have evidence that will come in through our expert witness that he will testify about satanists and illegal activities and violent activities that have been committed on the part of satanists." The prosecutor explained that "there is no need for the State to prove that the Defendant himself engaged in all of those illegal violent acts, only that the group is known to do that, and that the Defendant is a member of that group." The prosecutor further stated that [Davis]'s “belief in satanism is being offered as evidence of his character, to show his belief systems” and how they relate to future-dangerousness; the issues of character and future dangerousness "are at the heart of the sentencing phase in a capital murder case." Following the parties' arguments, the trial court granted the motion in limine "until such time as [the state's] expert can establish outside the hearing of the Jury that, in fact, there is a propensity in this organization or this faith or this religion...for illegal activities or an [sic] engaging in violent activities."

Thereafter,

The state's expert witness, Donald Vaughn Haley,...testified on voir dire examination outside the presence of the jury that Satanism advocates violence, as evidenced by the discussion of human sacrifice in The Satanic Bible and the "rituals of destruction" contained in The Satanic Rituals. Haley also gave several examples of people who committed murder and mutilation "in the name of Satan." Over defense counsel's objections on relevance and the First Amendment, the trial court ruled that Haley would be permitted "to testify in the area of the satanic religion" and that "all of that evidence is relevant to the issue of future dangerousness and it is outside the protection of the First Amendment." [Davis] also filed written objections to the court's ruling, arguing that the evidence was "irrelevant" and that its admission violated Rule 403 and his rights of freedom of religion and freedom of association under the First Amendment of the United States Constitution.

Haley subsequently gave in depth testimony about Satanism as it bore upon the issue of Haley's future dangerousness. After the jury again sentenced Davis to die, he appealed, and the Court of Criminal Appeals affirmed, finding (1) that "the Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing merely because those beliefs and associations are protected by the First Amendment;" and (2) that Haley's testimony was relevant of Davis' future dangerousness and that its probative value was not substantially outweighed by the danger of unfair prejudice under Texas Rule of Evidence 403.

But what if Davis had made his argument under a different rule of evidence? Texas Rule of Evidence 610 provides that:

Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced.

If Davis raised this Rule, the problem would have been that the prosecution was using evidence of his Satanism to prove his future dangerousness, not to impeach him. This, however, leads us to Texas Rule of Evidence 404, which precludes the admission of propensity character evidence. As I noted in a previous post,

let's look at the opinion of the Third Circuit in Government of the Virgin Islands v. Petersen, 553 F.2d 324 (3rd CIr. 1977).  There, a Rastafarian man appealed his conviction for two counts of second degree murder by claiming that the trial court erred by precluding him from presenting testimony that Rastafarians believe in nonviolence.  The Third Circuit rejected this argument, finding that,

-"A person may or may not act in accordance with a professed belief; it is the observation of the defendant's behavior over a length of time which is the recognized basis for both reputation and opinion testimony....This longstanding limitation reflects an accommodation between logical relevance on the one hand and the desire to avoid prejudice, confusion, surprise and consumption of trial time on the other. We believe that the appropriate means to elicit opinion testimony under the rule is to inquire directly as to the witness' opinion concerning the relevant character trait of the accused. The district court did not err in refusing to admit the proffered testimony."

In other words, evidence of an individual's religious or anti-religious beliefs should be inadmissible to prove that the individual had a propensity to act non-violently or violently. Thus, because the Texas Rules of Evidence do apply to the sentencing phases of trials in Texas, if Davis had raised Texas Rule of Evidence 404 in response to Haley's testimony, the court should have deemed it inadmissible as propensity character evidence under Texas Rule of Evidence 404.

(For some interesting comments about the opinion, check out this post by Eugene Volokh at The Volokh Conspiracy).

-CM

http://lawprofessors.typepad.com/evidenceprof/2010/10/satanic-irving-alvin-davis-appellant-v-the-state-of-texas-sw3d-2010-wl-3782212texcrimapp2010.html

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