April 17, 2010
Raising Arizona: Second Circuit Finds Statement Against Interest Was Properly Admitted To Prove Interstate Component Of Hobbs Act Violation
The Hobbs Act, 18 U.S.C. Section 1951(a), provides that
Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined under this title or imprisoned not more than twenty years, or both.
Usually, the fact that a defendant was charged with violating the Hobbs Act would not play a factor in an evidentiary ruling. But the fact that the defendants were charged with violating the Act possibly played a large role in an evidentiry ruling in United States v. White, 2010 WL 1461645 (2nd Cir. 2010).
In White, O'Kene White and Antonio Scott were convicted of conspiracy to commit and attempted robbery in violation of the Hobbs Act, attempted possession of marijuana with intent to distribute, and possession and discharge of firearms during and in furtherance of the charged crimes. One of the victims of the attempted robbery was Christopher Farquharson, a/k/a "Blacks," and
Stacy Roberts, Blacks's girlfriend and one of the victims of defendants' robbery attempt, testified, inter alia, that defendants had asked her, "where's Blacks's stuff," and that Blacks had told her that he bought and sold two types of marijuana: "regular" and "Arizona." Drug Enforcement Administration Special Agent Craig Phildius testified that “Arizona” marijuana is grown in Mexico (and to a lesser degree in Arizona) and shipped through Arizona, and that “regular” marijuana is also grown primarily in Mexico.
The district court allowed for the admissio of Roberts' testimony, finding that Blacks' statement qualified as a statement against penal interest under Federal Rule of Evidence 804(b)(3). Among other things, this ruling led to the defendants' appeal, with the defendants claiming that the probative value of Blacks' statement was substantiall outweighed by the danger of unfair prejudice under Federal Rule of Evidence 403. The Second Circuit, however, did not address this argument in great detail, finding that Blacks' statement was relevant to proving that defendants' robbery would have had the requisite "slight, subtle or even potential" impact on interstate commerce necessary to prove a violation of the Hobbs Act.
April 16, 2010
Eyewitness Account: Supreme Court Of Louisiana Precludes Expert Testimony On Inaccuracy Of Eyewitness Identifications
I have done several posts on this blog (here, here, here, here, here, and here) about the inaccuracy of regular and cross-racial eyewitness identifications and whether expert testimony about this inaccuracy should be allowed. In a recent post, I noted that "My general sense is that most courts allow such expert testimony although a decent number of courts, such as the Eleventh Circuit and Minnesota courts, preclude it." That post addressed a recent opinion in which the Supreme Court of Utah reversed past precedent and allow for the admission of expert testimony on the inaccuracy of eyewitness identifications. This post addresses a recent opinion, State v. Young, 2010 WL 1286933 (La. 2010), in which the Supreme Court of Louisiana adhered to prior precedent and refused to allow for the admission of expert testimony on the inaccuracy of eyewitness identifications.
East Baton Rouge Parish detectives responded to the late night shooting of two persons in a restaurant parking lot. Upon their arrival, the male victim, Aaron Arnold, was unresponsive with gunshot wounds to his upper body. He never regained consciousness and ultimately died from his injuries. The female victim, Dionne Grayson, was lying on the ground with gunshot wounds to her legs. She provided statements to detectives at the scene and hours after her admission to the hospital. Ms. Grayson informed detectives that, after leaving work, she and Mr. Arnold were in the process of putting gasoline in her vehicle when a white automobile occupied by two men pulled alongside them. She stated a black male brandishing a semiautomatic handgun exited the passenger front seat and demanded their wallets. Ms. Grayson claimed the individual shot them before they could fully comply with his request. She gave a description of the gunman's physical features.
Nancy Segura witnessed the attempted robbery and shootings. She was sitting in a vehicle in close proximity to Ms. Grayson's car, while waiting for a friend to leave work. She was not noticed by the assailants....
During the course of the police investigation, a confidential informant provided detectives with information regarding the involvement of Sanchez Brumfield, the getaway driver and the defendant's cousin. This led to information from Mr. Brumfield linking the defendant and his vehicle to the crime. Ms. Segura identified the defendant from a photographic lineup as the individual who shot Mr. Arnold and Ms. Grayson. Detectives ran the defendant's name in their computer files and learned that a white vehicle similar to the model described as being involved in the crime was registered to the defendant's home address. The defendant was later arrested. Near the time of the arrest, Ms. Grayson was presented with a photographic lineup and identified the defendant as the gunman.
The defendant, Tracey Young, was eventually charged with first degree murder in connection with these crimes, and he sought, inter alia, to present expert testimony regarding the unreliability of eyewitness identifications. The trial court noted that in State v. Stucke, 419 So.2d 939 (La. 1982), the Supreme Court of Louisiana had deemed such testimony inadmissible because it improperly invades the province of jurors. The court, however, bought defense counsel's argument "that scientific advances in the study of eyewitness identifications since Stucke indicate[d] the probative value of the admission of expert testimony on the subject, when properly admitted, outweighs any prejudicial effect on the jury's decision-making process." Specifically, at a Daubert hearing,
The defendant's proposed expert, Dr. Roy S. Malpass, Ph.D., a Texas psychology professor, testified regarding his credentials and education. He summarized his publications, professional affiliations, past and present research in facial recognition and eyewitness identification, and prior acceptance in other jurisdictions as an expert in the psychology of eyewitness identifications. Following cross-examination, the State conceded the witness was an expert in the field of psychology, but urged that the psychology of eyewitness identification is not a discipline recognized in the scientific community. The court directed its own questions to Dr. Malpass. Subsequently, the court accepted the witness as an expert in the science of psychology with a special emphasis in the field of eyewitness identification.
Thereafter, Dr. Malpass testified that he had reviewed the police reports and found that the case presents issues of cross-race identification, gun focus, the effects of stress, estimates of confidence, and the impact of identification protocol on the outcome. He testified in general about these factors based on his research. Following the parties' submission of written argument on the issue of the admissibility of Dr. Malpass' testimony, the district court ruled that the defense's expert would be permitted to testify at trial.
Subsequently, the Supreme Court of Louisiana granted the State's application for certiorari and found that
Unquestionably, eyewitness identifications can be imperfect. However, upon review, the touted advances in the social sciences regarding the validity of eyewitness identifications do not render obsolete the underlying premise for which such evidence was held to be inadmissible in Stucke. There is still a compelling concern that a potentially persuasive expert testifying as to the generalities of the inaccuracies and unreliability of eyewitness observations, that are already within a juror's common knowledge and experience, will greatly influence the jury more than the evidence presented at trial....By merely being labeled as a specialist in eyewitness identifications, an expert has the broad ability to mislead a jury through the "education" process into believing a certain factor in an eyewitness identification makes that identification less reliable than it truly is....Moreover, expert testimony on eyewitness identifications can be more prejudicial than probative because it focuses on the things that produce error without reference to those factors that improve the accuracy of identifications. The expert testimony presumes a misidentification, in the absence of presenting factors which support the validity of the identification. This fosters a disbelief of eyewitnesses by jurors.
This Court has long been reluctant to allow experts to offer opinions on the credibility of another witness for fear of the expert invading what is considered the exclusive province of the jury. Moreover, the concept of promoting battles of experts over whether the testimony of every witness is truthful and reliable is not desirable. These considerations are especially compelling in cases involving eyewitness identifications where any alleged deficiencies could easily be highlighted through effective cross-examination and artfully crafted jury instructions....
With this in mind, we decline to overrule our decision in Stucke barring the admissibility of eyewitness identification testimony.
Thus, in Louisiana, expert testimony about the inaccuracy of eyewitness identifications is still inadmissible.
April 15, 2010
Event Horizon: Eighth Circuit Finds District Court Failed To Identify Entirety Of Startling Event For Excited Utterance Purposes
Federal Rule of Evidence 803(2), the excited utterance exception, provides an exception to the rule against hearsay for
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.
Absent an abuse of discretion, an appellate court will not reverse a trial court's ruling under the excited utterance exception. In its recent opinion in Brunsting v. Lutsen Mountains Corp., 2010 WL 1440350 (8th Cir. 2010), however, the Eighth Circuit found just such an abuse of discretion. And one of its reasons for doing so was that the district court failed to identify the entirety of the startling event for excited utterance purposes, which, according to the Eighth Circuit includes not just the underlying startling event, but its aftermath.
In Brunsting, Keith Brunsting and his friend, Trace Benson, were skiing at Lutsen and began skiing down the Alpha run,
a groomed, intermediate-level run that runs near or below the Timberwolf chairlift. After reaching the bottom, the men took the Timberwolf chairlift back to the top of the mountain. Brunsting then proceeded down the Alpha run again, while Benson waited behind at the top of the mountain. As Brunsting made his way down, he was spotted by two off-duty Lutsen employees-Sherry Christiansen and Henry Walch-who were on the Timberwolf chairlift. They witnessed Brunsting skiing down the run, then lose control and crash headfirst into a tree near the edge of the Alpha run. There was a partially exposed tree stump near the area where Brunsting had lost control and crashed.
Shortly thereafter, Benson-who did not witness the accident-began making his way down Alpha and soon came across Brunsting lying unconscious in the snow and bleeding from the mouth. From the chairlift, Christiansen saw Benson approach Brunsting and she yelled down at him to alert him of the accident. Christiansen and Walch arrived at the scene a short time later, having alerted Lutsen personnel at the top of the mountain of the accident. At that point, according to Benson, Christiansen told him that she "saw [Brunsting] stumble on a stump, then fall into a tree, hitting the tree with his head." A few moments later, a group of off-duty nurses who happened to have been skiing in the vicinity joined the scene. Because Brunsting was seriously injured and did not appear to be breathing, and looked blue, the nurses began performing CPR. They were able to get Brunsting breathing again, after which ski patrol personnel arrived and took Brunsting down the mountain for further medical attention. As a result of the brain injury Brunsting suffered that day, he has no memory of the accident or anything else about the trip to Lutsen Mountains. He is permanently disabled and is no longer able to work.
Brunsting thereafter sued Lutsen, claiming that Lutsen was negligent in the design, maintenance, operation, and supervision of its ski facilities by failing to remove a tree stump that caused Brunsting to lose control and crash. The district court granted Lutsen's motion for summary judgment, finding that Christiansen's statement regarding the stump
did not qualify as an excited utterance where it was made four to five minutes after witnessing Brunsting's fall, it was made in response to Benson's inquiry and not spontaneously, Christiansen showed no outward signs of being in an excited state when she made the statement, and Christiansen and Brunsting were strangers.
On Brunsting's ensuing appeal, the Eighth Circuit disagreed, finding, inter alia, that
the district court abused its discretion...in its analysis of whether Christiansen's statement was made in reaction to a truly startling event, and whether the statement was made under the stress of excitement caused by that event. As to the first element regarding the existence of a truly startling event, perhaps the error of the district court is best articulated as its failure to identify the entirety of the "event" for purposes of the Rule 803(2) discussion. The court seems to have truncated the event, limiting its discussion of Christiansen's statement relative only to the singular event of Christiansen's witnessing of Brunsting's impact with the tree. For example, the court discusses the "four to five minutes" between the accident and Christiansen's statement to Benson, necessarily implying that the "startling event" occurred on the chairlift. Limiting the discussion in that manner was an abuse of discretion. It was the whole of the event that is relevant for purposes of the Rule 803(2) analysis: witnessing a near-fatal traumatic accident from the chairlift and immediately rushing to the scene where Brunsting was unconscious, bleeding from the mouth, turning blue and believed to be near death, as others tried to stabilize him until medical assistance arrived. It was a chaotic scene and Christiansen realized the gravity of the accident-that she might indeed be witnessing a man's death. The difference between the two definitions of what constitutes the "event" for purposes of the Rule 803(2) analysis is pivotal, as there was little or no time lapse between the latter-defined “event” and the statement at issue because the statement was made contemporaneously with the singular startling event.
April 14, 2010
Show Me Case: Missouri Court Of Appeals Finds Subsequent Remedial Measure Rule Applies To Inverse Condemnation Cases
Federal Rule of Evidence 407 provides that
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.
Missouri doesn't have codified rules of evidence (and while the Missouri constitution authorizes the Supreme Court of Missouri to create rules, that authorization specifically excludes rules of evidence). That said, Missouri courts have in effect applied Federal Rule of Evidence 407 in their precedent, and in its recent opinion in Rader Family Ltd. Partnership, L.L.L.P. v. City of Columbia, 2009 WL 1439017 (Mo.App. W.D. 2010), the Missouri Court of Appeals, Western District, found that the exclusionary portion of this Rule applies in nuisance cases generally and inverse condemnation cases specifically.
In Rader, the sewer backed up into the finished basement of a downtown building owned by Rader. It was later determined that the cause of the backup was grease in the sewer line and that the grease originated from restaurants upstream of the blockage. After incurring cleanup and removal costs, Rader sued the City of Columbia under, inter alia, a theory of inverse condemnation, contending that its building had been reduced in value because of the damage to the basement. At trial, Rader sought to present evidence of measures the City implemented to prevent grease-related sewage backups after Rader's building was damaged, but the trial court deemed this evidence inadmissible.
After the jury entered a verdict in favor of the City, Rader appealed, claiming, inter alia, that the trial court erred in deeming this evidence inadmissible. In response, the Missouri Court of Appeals, Western District, quoted the language of Federal Rule of Evidence 407 and noted that
Two primary reasons for the rule are: (1) "if precautions taken could be used as evidence of previous improper conditions, no one, after an accident, would make improvements"; and (2) subsequent changes are irrelevant to proving the previous condition.
The court then noted that the case before it was not the classic case of subsequent remedial measures being excluded when a plaintiff claims negligence and that the rule does not apply to all tort claims. The court then noted that the issue of whether evidence of subsequent remedial measure is admissible in nuisance/inverse condemnation cases was an issue of first impression in Missouri. And the court decided that such evidence is inadmissible in such cases, holding
we believe the public policy rationale for the exclusion applies here, perhaps even more so than in a typical negligence case. If plaintiffs were allowed to introduce evidence of subsequent remedial measures to prove a prior nuisance by an entity with the power of eminent domain, this could deter these entities from implementing preventative measures protecting the public. We also believe the evidentiary rationale has some application to inverse condemnation cases: while that the entity subsequently takes preventative measures could be probative of whether its prior operation was reasonable, such measures are not pertinent to showing the entity had prior notice of a problem. Hence, the trial court's decision to apply the rule against admission of subsequent remedial measures to this inverse condemnation suit was not arbitrary, unreasonable, or against the logic of the circumstances.
April 13, 2010
Forgive Me Father, Take 2: Supreme Court Of New Jersey Reverses Cleric-Penitent Privilege Ruling
Back in August 2008, I posted an entry about State v. J.G., 2008 WL 3850772 (N.J.Super.A.D. 2008), in which the Superior Court of New Jersey, Appellate Division reversed a trial court's decision to apply New Jersey's cleric-penitent privilege in the case of a man accused of sexually molesting his daughters. In response to the court's ruling, I wrote, "I agree with the court's conclusion but not its reasoning." Well, after the appellate division ruled against the defendant, he appealed to the Supreme Court of New Jersey, and that court disagreed both with the appellate division's reasoning and its conclusion in its recent opinion in State v. J.G., 2010 WL 1328844 (N.J. 2010).
I listed the relevant facts in J.G. in my earlier post:
In J.G., in 2000, the defendant's children reported to their mother that their father had sexually abused them. The mother then contacted her pastor, Glenford Brown, and reported the children's allegations. While the defendant knew Brown from their native Jamaica, the defendant did not attend Brown's church in New Jersey.
Believing that he had a duty to protect the wife and children, Brown arranged to meet the defendant outside Brown's townhouse. During that meeting, the defendant, "without directly saying [he] sexually molested them,...acknowledged what he did” and asked Brown, inter alia, "to counsel" him, but Brown declined because he was too angry with defendant and felt that he "needed real psychological help which [Brown] was not qualified to give." A few weeks later, the defendant went to Brown's church, where he talked with Brown and "acknowledged what he did." The defendant then asked Brown to baptize him, but Brown told the defendant he could not baptize him because Brown "thought he wanted cover for his actions" and urged the defendant to turn himself in to the police.
The defendant was subsequently charged with molesting his daughters, and he moved to preclude Brown from testifying about his confession pursuant to New Jersey Rule of Evidence 511, its cleric-penitent privilege, which states that:
"Any communication made in confidence to a cleric in the cleric's professional character, or as a spiritual advisor in the course of the discipline or practice of the religious body to which the cleric belongs or of the religion which the cleric professes, shall be privileged. Privileged communications shall include confessions and other communications made in confidence between and among the cleric and individuals, couples, families or groups in the exercise of the cleric's professional or spiritual counseling role."
The trial court granted his motion, but the Appellate Division reversed, finding that its analysis was governed by its previous opinion in State v. Cary, 751 A.2d 620 (N.J.Super.A.D. 2000), where it found that to warrant protection under the cleric-penitent privilege, "a person's communication must be made: (1) in confidence; (2) to a cleric; and (3) to the cleric in his or her professional character or role as a spiritual advisor."
The Appellate Division then found that these elements were not satisfied because:
"(1) defendant did not ask and Brown did not offer to keep the conversation confidential; (2) Brown reached out to defendant-not as a spiritual advisor-but to protect defendant's children; and (3) Brown specifically told defendant he could not counsel him or even baptize him because defendant needed professional help."
At the time, I contended that
the court was wrong on the first point because none of the professional privileges requires a request that the communication at issue be kept confidential. Could you imagine if we required clients to tell their lawyers to keep their communications confidential before applying the attorney-client privilege or if we required patients to tell their psychiatrists to keep their communications confidential before applying the psychotherapist-patient privilege? It seems to me that the court placed a burden on the defendant that does not exist under the law.
With regard to the second point, the court wrongfully focused on the state of mind of Brown -- the pastor/cleric -- not the state of mind of the defendant -- the alleged penitent. In the professional privilege context, it is the state of mind of the possible client/patient/penitent that controls, not the state of mind of the attorney/psychotherapist/clergyperson. If the former made statements to the latter for the purpose of retaining his services, the statements are covered by the relevant privilege, regardless of the state of mind of the latter.
That said, I agreed with the appellate division's conclusion, noting that
There is, however, an exception to this general rule, and that is why the court's third point was correct. When an attorney/psychotherapist/clergyperson affirmatively tells a prospective client/patient/penitent that he will not render him services, any subsequent conversation is not covered by the relevant privilege. See, e.g., People v. Gionis, 9 Cal. 4th 1196 (Cal.App.4th 1995). And that's exactly what happened in J.G.. Brown told the defendant that he would not counsel him, and the defendant subsequently told him that he molested his daughters.
The Supreme Court of New Jersey agreed with me on the first two points, applying the objective reasonable person test, i.e., whether J.G. could reasonably have expected that his communications to Brown were confidential and that Brown was acting as a spiritual advisor." It, however, disagreed with the appellate division on the third point, finding that
Brown's refusal [to counsel Brown or baptize him] might lend support to the State's position that the Pastor was acting in a secular, and not a clerical, role. The [Association of Criminal Defense Lawyers of New Jersey], on the other hand, points out that a cleric's refusal to grant forgiveness does not necessarily strip a penitent's admissions and plea for help of protection. Indeed, Brown himself conceded that as part of his regular pastoral duties, he does refuse to baptize people. Faced with different views, the trial court was well within its right to rely on J.G.'s requests to be baptized in concluding his communications were privileged.
Interesting. I don't claim to be an expert on religious matters, so I will defer to the New Jersey Supremes on this issue. And if other courts defer, it means that a clergyperson's refusal to render spiritual advice will is not fatal to operation of the cleric penitent privilege (whereas an attorney's refusal to render legal advice is fatal to operation of the attorney-client privilege).
April 12, 2010
Follow My Voice: Seventh Circuit Notes "Minimal Familiarity" Standard Under Rule 901(b)(5) But Still Reverses
Federal Rule of Evidence 901(b)(5) provides the following as an example of proper authentication:
Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker.
And as the recent opinion in United States v. Jones, 2010 WL 1337741 (7th Cir. 2010), makes clear, the Seventh Circuit (like several other circuits) merely requires that the witness identifying the speaker's voice to have "minimal familiarity" with the speaker's voice. But the prosecution could not even satisfy this standard in Jones.
Brian Jones, Mitchell McGhee, Leonard Hoskins, Jeremy Simmons, Sam Cook, Damand Matthews and several other defendants were charged with conspiring to distribute large quantities of narcotics in Evansville, Indiana. Some of the defendants pled guilty, but the named defendants exercised their right to a jury trial, during which they were faced with evidence that included the description of a controlled buy, the testimony of some alleged members of the conspiracy, and voice identifications from incriminating wiretapped conversations between the defendants. The jury convicted the defendants, and all were sentenced to life except Cook, who received over 20 years' imprisonment.
The prosecution's primary evidence that Sam Cook participated in the conspiracy consisted
of incriminating statements he allegedly made on a number of the wiretapped phone conversations. In order to identify the voice on the wiretaps as being Cook's, the government called Detective Simpson, who testified regarding Cook's voice on two occasions-first as the government put forth its case-in-chief, and then again at the close of the trial as a rebuttal witness in an effort to strengthen the identification.
In laying the foundation for his identification of Cook on the wiretaps in the case-in-chief, Detective Simpson testified that he recognized Cook's voice from having attended some pretrial proceedings and hearing him speak in open court. Detective Simpson testified he compared the voice he heard in the proceedings to that on the wiretapped phone conversations, and that in his opinion Cook was one of the speakers. On cross-examination, Detective Simpson stated that he had heard Cook speak in court on "four or five" occasions, and acknowledged that on these occasions Cook may have only spoken as little as "two or three" sentences. He also admitted on cross that he had never personally interviewed Cook, making Cook the only defendant at trial whose voice identification was not supported by an in-person interview with the identifying agent. Cook objected to Detective Simpson's identification on the basis that it lacked sufficient foundation, and the district court overruled the objection, finding that Detective Simpson had a sufficient level of familiarity to render his opinion.
After he was convicted, Cook appealed, claiming, inter alia, that the few words he spoke in open court could not have provided a sufficient basis for a voice identification. The Seventh Circuit disagreed, finding that it merely requires the witness identifying the speaker's voice under Federal Rule of Evidence 901(b)(5) to have "minimal familiarity" with the speaker's voice and found that Detective Simpson's initial testimony met "the 'low bar of minimal familiarity' required in our case law, if not by much." The problem for the prosecution, though, was that this was not the only testimony that Simpson provided. Instead,
Near the end of trial, Cook introduced rebuttal evidence in the form of court transcripts showing he had only spoken in open court twice, not the “four or five” times Detective Simpson had initially claimed. In response, the government recalled Detective Simpson in an effort to strengthen the voice identification. Detective Simpson then testified, for the first time, that in addition to having heard Cook speak in open court, he had also on one occasion overheard Cook speaking privately with his attorney for ten to fifteen minutes before the judge began the proceedings.
The Seventh Circuit found it troubling that Simpson seemingly eavesdropped on Cook's private conversation, that the prosecution saw fit to have Simpson testify about the conversation, and that Simpson did not mention the conversation during his initial testimony. That said, the court rejected Cook's argument that Simpson's testimony violated the attorney-client privilege because Cook did not testify concerning the subject matter of the alleged conversation.
But the court went on to find that
More fundamentally, Cook challenges whether a conversation between him and his attorney even occurred, and maintains he should receive a new trial because he was unable to test Detective Simpson's claim or impeach his testimony. This is because the only people in a position to rebut Detective Simpson's testimony were Cook or his lawyer, giving rise to a conflict of interest for counsel. On cross-examination of Detective Simpson, defense counsel challenged the idea that there had been any audible conversation between him and Cook and claimed that Detective Simpson was not telling the truth. At oral argument before this court, counsel reiterated that no such conversation occurred, and stated that as a matter of longstanding practice, he never has conversations with clients in open court where they could be overheard. He also told the district court that the detective's testimony "made me a witness in the trial." Cook's attorney moved for a mistrial on the same basis minutes later, as well as on attorney-client privilege grounds, arguing that "it would be difficult for me to represent my client and testify at the same time regarding what was said at counsel table and how it was said and who could have heard it."
The Seventh Circuit then noted that the district court denied Cook's motion for a mistrial and
conclude[d] that the trial court abused its discretion in denying Cook's motion for a mistrial after having admitted Detective Simpson's testimony without affording Cook an opportunity to rebut it. Detective Simpson testified as to a key disputed fact, but because of the unresolved conflict of interest the testimony created, Cook had no opportunity to challenge the testimony by presenting his own version of events. The jury heard only one side of a critical issue as if it were uncontroverted.
April 11, 2010
Pleading Out: Court Of Appeals Of North Carolina Deems Defendant's Statement To Judge During Plea Hearing Admissible
North Carolina Rule of Evidence 410(4) indicates that
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible for or against the defendant who made the plea or was a participant in the plea discussions....Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
So, let's say that there is a hearing before at trial judge during which the prosecutor offers the defendant a plea bargain. The defendant then addresses the trial judge, admits complicity in the crime, and asks if the judge would impose a lesser sentence than that offered by the prosecutor. The trial judge refuses and allows the defendant to discuss the plea bargain with his counsel over the evening recess. The next day, the defendant rejects the plea bargain. Should the statement of complicity be admissible? According to the recent opinion of the Court of Appeals of North Carolina in State v. Haymond, 2010 WL 1286897 (N.C. App. 2010), the answer is "Yes." I disagree.
In Haymond, Gene Haymond was charged with several crimes, including Felonious Breaking or Entering, Felonious Larceny, Felonious Possession of Stolen Property. Thereafter, the sequence of events listed in the introduction occurred. The only event not mentioned in the introduction was the fact that after Haymond asked to address the trial judge, the judge advised him that any statement made by him could be used against him. At Haymond's ensuing trial, his statement of complicity was indeed used against him, and the ruling admitting this statement formed the partial basis for his appeal.
The Court of Appeals of North Carolina rejected that appeal, finding that North Carolina Rule of Evidence 410(4) implies that
"[p]lea negotiations, in order to be inadmissible, must be made in negotiations with a government attorney or with that attorney's express authority."..."In addition, conversations with government agents do not constitute plea discussions unless the defendant exhibits a subjective belief that he is negotiating a plea, and that belief is reasonable under the circumstances."...Here, defendant's statements at the 7 January 2008 hearing appear to have been made in an attempt to ask for either a continuance or the trial court's mercy in imposing a lesser sentence than that offered by the prosecutor. Defendant was clearly aware that the prosecuting attorney was unwilling to accept defendant's plea in exchange for the sentence which defendant requested, and defendant, therefore, made his request of the court....
In response to this request, the trial court indicated that it was not willing to impose any sentence less than what the prosecuting attorney had already offered. After having time to further consider the State's offer, defendant then decided to go to trial. From this evidence, it does not appear that defendant subjectively thought that he was negotiating a plea with the prosecuting attorney or with the prosecutor's express authority when he made statements at the 7 January 2008 hearing. Instead, the statements were made in the course of defendant's various requests to the trial court. Thus, defendant's argument that these statements were made during the course of plea negotiations, and thus inadmissible, fails.
I disagree. As noted above, at the hearing before the trial judge, the prosecutor offered Haymond a plea bargain. At the same hearing, Haymond addressed the judge regarding his complicity and the plea bargain offered, and the judge told him that he would not change the plea bargain and that Haymond could discuss the plea bargain with his attorney over the evening recess. This being the case, how was Haymond's statement regarding his complicity not made in the course of plea discussions with an attorney for the prosecuting authority?
The way I see it, the hearing was the plea discussion, and Haymond's statement was clearly made during the course of that hearing. Sure, Haymond addressed the judge, but the statement was part of the plea hearing and dealt with the plea bargain offered by the prosecutor. The court construed these as "requests to the trial court," but they were requests made during the same hearing at which the plea bargain was offered. And if these requests were not part of the plea discussion, why did the judge respond by telling Haymond that he could consider the plea bargain overnight? If Haymond were talking to the judge outside the presence of the prosecutor, I could see the court's point. But that was not the case in Haymond. (I do not that the judge told Haymond that any statements that he made could be used against him, but that statement was meaningless if Haymond's statements were made in the course of plea discussions).