EvidenceProf Blog

Disinterested?: Court Of Appeals Of Texas Finds Statement Regarding "Burned Or Dirty" Gun Inadmissible As Statement Against Interest

Texas Rule of Evidence 803(24) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, or to make the declarant an object of hatred, ridicule, or disgrace, that a reasonable person in declarant's position would not have made the statement unless believing it to be true. In criminal cases, a statement tending to expose the declarant to criminal liability is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

A defendant is charged with capital murder based upon the victim being shot to death. Part of his defense is that an alternate suspect committed the crime. To prove that the alternate suspect committed the crime, the defendant seeks to introduce testimony that, two weeks after the victim's death, the alternate suspect sought to sell a gun to another individual. When the other individual asked whether the gun was "burned or dirty," the alternate suspect responded, "Yeah, I just did something good." Should this statement qualify as a statement against interest? According to the recent opinion of the Court of Appeals of Texas, Houston, in its recent opinion in Ramirez v. State, 2010 WL 2306112 (Tex.App.-Hous. [1 Dist. 2010]), the answer is "no." I disagree.

In Ramirez, the facts were as listed above, with Jorge Alberto Ramirez being the defendant and Noel Alvarez being the alternate suspect. Specifically, Ramirez

sought to establish that Alvarez, two weeks after the murder of the complainant, while offering to sell to [Gabriel] Guzman a .380 handgun, laughingly told Guzman, "Yeah, I just did something good" in response to Guzman's inquiry as to whether the handgun was "burned or dirty." After the State objected to the evidence, the trial court ruled that "everything comes in except, 'I just did something good.'" It explained "[t]hat's so vague, it's not even-that's not an admission." 

After he was convicted, Ramirez appealed, claiming that Alvarez's statement should have been admissible under Texas Rule of Evidence 803(24) because "this statement indicated that Alvarez had 'used [the handgun] in a crime' and made it 'more likely' that Alvarez was involved in the murder of the complainant or 'another crime' or 'anything.'" The Court of Appeals disagreed, finding that "Alvarez's statement to Guzman that 'I just did something good' is vague in that it could not expose Alvarez to criminal liability for the complainant's death or any specific criminal act."

Really? So, the court is saying that if Alvarez were charged with murder, his statement "Yeah, I just did something good" in response to a question about whether the gun was "burned or dirty" would not have been used by the prosecution/jury to help establish Alvarez's guilt? I admit that the statement was somewhat vague in that it did not indicate that Alvarez used the gun to shoot the victim, but it seems pretty clear based upon the Q & A that Alvarez did something bad with the gun. And that's all that is required for a statement to qualify as a statement against interest. Such a statement does not have to conclusively establish the declarant's guilt. It merely has to be a statement that could be used with other evidence to establish his guilt. It thus seems to me that the Court of Appeals committed serious error.

-CM

You're Giving Me A Headache: Court Of Appeals Of Texas Deems Child's Statements To Therapist About Parents' Drug Use Admissible Under Rule 803(4)

Like its federal counterpart, Texas Rule of Evidence 803(4) provides an exception to the rule against hearsay for

Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment.

So, does a four-and-a-half year-old's statement to her therapist that her parents used drugs and that she saw white powder around her house qualify for admission as a statement for purposes of medical treatment or diagnosis under Texas Rule of Evidence 803(4)? According to the Court of Appeals of Texas, Austin, in its recent opinion in Jesse Calderon and Marixza Melendez v. Texas Department of Family and Protective Services, 2010 WL 2330372 (Tex.App.-Austin 2010), the answer is "yes."

In Calderon, a jury returned a verdict finding that the parental rights of Marixza Melendez and Jesse Calderon to their daughters J.C.C. and J.B.C. should be terminated, and the trial court signed a final decree terminating their parental rights in accordance with the jury's verdict. Calderon thereafter appealed, claiming, inter alia, that the trial court improperly allowed for the admission of statements that his six year-old daughter J.C.C. made to her therapist. Specifically,

J.C.C.'s therapist testified that during play therapy, J.C.C., who was about four and one-half years old, pretended that "she was being arrested for drugs that she did, that she did use drugs and she had found them on the-on the sidewalk. They made her feel weird and that-then a baby had used the drugs and it killed the baby." The therapist later returned to the subject, telling J.C.C., "we are being serious now. I have to know, did you ever use drugs?" J.C.C. said she had not but that "her parents did use drugs and she recalled seeing some white powder," indicating that she had seen the powder on a table. When the therapist asked how J.C.C.'s parents acted when they used drugs, J.C.C. said they "would act weird" and that it caused J.C.C. to "always get a headache, so she would go into her room."  

The Court of Appeals of Texas, Austin, disagreed, finding the therapist's testimony to be admissible under Texas Rule of Evidence 803(4). According to the court,

We agree with the trial court that the therapist's testimony about J.C.C.'s statement about white powder was admissible. The therapist testified that she stressed the importance of J.C.C. telling whether she had used or seen her parents use drugs and that she believed J.C.C. was truthful in her responses, and there is no indication in the record of evidence to negate the child's awareness that her therapist needed accurate information and that being truthful was in her best interest....Finally, the statement was made in the context of therapy....Thus, the trial court would not have abused its discretion in admitting the statement under rule 803(4) of the rules of evidence.

So, according to the court, a child's statement to a therapist regarding her parents' drug use and her resultant headaches (a) is a statement "made for purposes of medical diagnosis or treatment," and (b) describes "medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment."

I'm not sure that I am willing to buy that, but in the end, it doesn't matter because the court also found J.C.C.'s statements admissible under Tex. Fam.Code Ann. § 261.001(1)(I) as "a hearsay statement about abuse, which is defined to include a parent's drug use that causes physical, emotional, or mental harm to a child...if the trial court decides that the child's best interest would be best protected by allowing the statement into evidence."

-CM

Intelligence Quotient: Supreme Court Of Wyoming Denies Plaintiff New Trial Despite Allegations Of Quotient Verdict

Similar to its federal counterpart, Wyoming Rule of Evidence 606(b) provides that

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon his or any other juror's mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith, nor may his affidavit or evidence of any statement by him concerning a matter about which he would be precluded from testifying be received, but a juror may testify on the questions whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror.

As I have noted before, jurors are not allowed to enter a "quotient verdict," which is

an award of money damages set by a jury in a lawsuit in which each juror states in writing his/her opinion of what the amount should be. Then the amounts are totalled and divided by the number of jurors to reach a figure for the award.

That said, can jurors impeach their verdict through testimony that it was a quotient verdict? And can there be a quotient verdict if jurors do not agree beforehand to be bound by the result reached? These were the questions addressed by the Supreme Court of Wyoming in its recent opinion in Lake v. D & L Langley Trucking, Inc., 2010 WL 2292910 (Wyo. 2010).

In Lake, Dallas Lake was involved in an automobile accident with Orval Whited and brought an action against D & L Trucking, alleging that Whited, while in the course and scope of employment for D & L, negligently attempted to pass him as he was making a left hand turn, thereby causing the inevitable collision. Jurors saw it differently, finding Lake 86% at fault for the accident and Whited only 14% at fault, meaning that Lake recovered nothing because he was more than 50% at fault.

During deliberations, the jury requested a calculator. And after deliberations, a juror completed an affidavit that indicated that the jury agreed to estimate individual estimates of fault in reaching its verdict. These and other facts led Lake to file a motion for a new trial based upon, inter alia, jury misconduct.

First, Lake claimed that the juror's affidavit was admissible despite Wyoming Rule of Evidence 606(b) by invoking federal authority. The Supreme Court of Wyoming, however, found that this authority did not support Lake's position. Indeed, the Advisory Committee's Note to Federal Rule of Evidence 606(b) clearly relied upon the Supreme's Court's opinion in McDonald v. Pless for the proposition that the testimony and affidavits of jurors are incompetent to show a quotient verdict.

Second, Lake claimed that he could prove an illegal quotient verdict even without the testimony or affidavits of jurors. According to Lake, the only legitimate use for the calculator would have been the calculation of damages., and because the jury did not award any damages,  the jury could only have been using the calculator to compute an averaged percentage of fault for the respective parties. The Wyoming Supremes turned this argument aside, finding that

Even if we were to move beyond this purely speculative conclusion, the fact the jury may have used a quotient process for determining fault does not warrant the presumption the jury ultimately rendered an impermissible quotient verdict. A verdict that is based upon the average judgment of all the jurors is not impermissible where it does not appear that there was an agreement beforehand to abide by the resulting number. As this Court has explained:

[T]he test to be applied in determining the validity of a quotient verdict is whether the jury agreed "beforehand" to be bound by the result reached, since it is not the mere arriving at the average of the jurors' opinions as to the amount of damage which makes the quotient verdict bad, but the vice consists in an agreement by the jurors to be bound by the result of the addition and division, thus allowing the quotient whatever it may be to stand without subsequent reconsideration. If, however, there is no agreement that the average estimate shall be binding, and the averaging is done merely for the purpose of arriving at a working basis which the jurors are to be free to accept or reject as they see fit, a verdict subsequently agreed to is binding, whether it be for the average or for some other amount.

-CM

Rescue 911: Court Of Appeals Of Indiana Finds Caller's Testimony Sufficient To Authenticate 911 Recording

Like its federal counterpart, Indiana Rule of Evidence 901(a) provides that

The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

So, let's say that a declarant calls 911 after witnessing an alleged battery. A defendant is now on trial facing charges of battery, and the prosecution wants to admit the 911 recording into evidence. Who must authenticate the recording? The declarant? Someone from 911 or the police department? Both? According to the recent opinion of the Court of Appeals of Indiana in Ulshafer v. State, 2010 WL 2224618 (Ind.App. 2010), just the testimony of the declarant is sufficient.

In Ulshafer,

Adam Durham, Sr., and Nancy Brumley lived together in a house in Indianapolis. Also living at the house was their teenage son, Adam, Jr., Brumley's sister, Adeline Blankenship, and Blankenship's boyfriend, Johnny Maxey. Blankenship had also recently been in a relationship with [Ricky] Ulshafer.

On the morning of December 6, 2008,Ulshafer went to Durham and Brumley's home and began knocking on the doors and windows. Eventually, Adam, Jr., answered the door, and Ulshafer asked to speak to Blankenship. While Blankenship and Ulshafer talked on the porch, Adam, Jr., watched them from the side of the house. After learning that Blankenship had spent the night there with Maxey, Ulshafer called her a "lying, cheating, whore" and asked her to return his house keys and a ring he had recently given her....

Brumley and Maxey were standing just inside the house listening to Ulshafer and Blankenship, and they overheard Ulshafer say that he was going to slit Blankenship's throat and let her die. Maxey then went out onto the porch, and he and Ulshafer began arguing. Eventually, they agreed to fight in front of the house.

The two men then engaged in a fist fight. Soon, however, Ulshafer retrieved a knife and began stabbing Maxey with it repeatedly while saying "die, die, die."...Adam, Sr., then came outside and was able to break up the fight. Adam, Jr ., made a 911 call to report the incident; Brumley took over the conversation about halfway into the call. Police apprehended Ulshafer shortly thereafter.

Ulshafer was later charged with felony battery, and, at trial, the prosecution introduced the 911 recording into evidence after "Adam, Jr., himself testified that he had listened to the 911 recording and verified that it was a recording of the call he had made." 

After he was convicted, Ulshafer appealed, claiming, inter alia, that the 911 recording was improperly authenticated. The Court of Appeals of Indiana disagreed, concluding that there was proper authentication under Indiana Rule of Evidence 901(b)(1), which allows for authentication through the "[t]estimony of a witness with knowledge that a matter is what it is claimed to be." According to the court, Adam Jr. had personal knowledge of the 911 call that he made and could thus authenticate the recording.

The court also rejected Ulshafer's argument that someone from 911 or the police department also had to authenticate the recording, finding that Adam Jr. was perfectly capable of authenticating it. My review of precedent from other states reveals that other courts agree. For instance, in State v. Elliott, 2005 WL 352199 (Wash.App. Div. 2 2005), the Court of Appeals of Washington, Division 2, noted:

Steven contends that a 911 recording must be authenticated by a 911 emergency dispatch center employee and cannot be authenticated, as the State did in this case, by the individual calling 911. We rejected this argument in State v. Jackson, 113 Wn.App. 762, 769, 54 P.3d 739 (2002).

There, we held that 'a proponent can authenticate a tape recording with conversation on it by calling a witness who has personal knowledge of the original conversation and the contents of the tape; who testifies that the tape accurately portrays the original conversation; and who identifies each relevant voice heard on the tape.' Jackson, 113 Wn.App. at 769. Steven does not dispute that these elements were met and that his trial counsel conceded below that under Jackson, the 911 tape had been authenticated. Steven's authentication claim is without merit.

-CM

No M.O.: Court Of Appeals Of Minnesota Finds Trial Court Properly Excluded Victim's Sexual History Under Rape Shield Rule

Minnesota Rule of Evidence 412(1)(A)(i) provides that

(1) In a prosecution for acts of criminal sexual conduct, including attempts or any act of criminal sexual predatory conduct, evidence of the victim's previous sexual conduct shall not be admitted nor shall any reference to such conduct be made in the presence of the jury, except by court order under the procedure provided in rule 412. Such evidence can be admissible only if the probative value of the evidence is not substantially outweighed by its inflammatory or prejudicial nature and only in the following circumstance[]:

(A) When consent of the victim is a defense in the case,

(i) evidence of the victim's previous sexual conduct tending to establish a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue, relevant and material to the issue of consent. 

And, as the recent opinion of the Court of Appeals of Minnesota in State v. Koloski, 2010 WL 2265583 (Minn.App. 2010), it is difficult to establish such a common plan or scheme through only a single incident of prior sexual conduct.

In Koloski,

17-year-old S.K. told a[n]...officer that she had been sexually assaulted during the preceding night. Investigator Chad Kleffman of the Brainerd Police Department responded and drove S.K. to a hospital to have a sexual-assault examination. While in the hospital parking lot, S.K. told Kleffman that she had consumed a large amount of alcohol on Halloween night and had become extremely intoxicated. S.K. reported that she "somehow" ended up in an apartment above a bar and that she woke up to find a man she did not know having sex with her.

Appellant Jordan Koloski was identified as S.K.'s assailant. During an interview with Investigator Kleffman, Koloski stated that he had been out drinking with a group of friends and acquaintances on Halloween night. At about the time the bars closed, Koloski and his friends encountered S.K., who was in the back seat of a car. According to Koloski, he and one of his friends helped S.K. out of the car and assisted her to an apartment. The apartment, to which one of Koloski's friends had access, had three bedrooms and was located above a bar. Koloski stated that shortly after entering the apartment, his friends went into two of the bedrooms, and he went into the third bedroom where S.K. had been placed. Koloski admitted that he then took off S.K.'s clothes, performed oral sex on her, and had sexual intercourse with her. Koloski also acknowledged that he had not met S.K. before that night and described her as "wasted" and "in and out of being passed out." Koloski further acknowledged that it was wrong to have sex with S.K. when she was so intoxicated.

Koloski was charged with third-degree criminal sexual conduct, and he later moved to admit evidence of S.K.'s prior sexual conduct under Minnesota Rule of Evidence 412(1)(A)(i). Specifically,

According to Investigator Fagerman's report, S.K. claimed that about two months earlier, she and a couple of friends went to a 37-year-old man's house to use alcohol and cocaine. S.K. claimed that she returned to the man's house two days later, hoping to get more cocaine. After again using alcohol and cocaine with the man, she went with him into a hot tub where the man had sexual intercourse with her. S.K. then went upstairs to the man's room, where he again had sexual intercourse with her. The man had sexual intercourse with S.K. a third time after S.K. took a shower. According to S.K., she "didn't fight it" because she "was just like so out of it." S.K. also indicated that she did not leave until the next morning because she had no gas in her car and her cell-phone battery was dead. Approximately two months later, S.K. reported the incident to her mother after her mother had asked her why she was depressed and "doing bad at school." S.K.'s mother reported the incident to the police. The state, however, declined to press charges, citing insufficient evidence.

The trial court declined to admit this and other evidence of this incident, finding "that Koloski's offer of proof neither established a common scheme or plan nor showed that S.K. had fabricated sexual-assault allegations." After he was convicted, Koloski appealed, but the Court of Appeals of Minnesota affirmed. The court seemed to ignore the fact that Koloski failed to prove that S.K. had fabricated the prior sexual assault allegations, but it did find that

A victim's sexual history does not establish a common scheme or plan unless there is a pattern of clearly similar behavior constituting habit or modus operandi....Here, the prior sexual conduct at issue occurred once. Because a single incident does not constitute a pattern, S.K.'s conduct does not establish a common scheme or plan.

Moreover, the court found that even if a single incident could be sufficient, "the prior incident was different in several distinct ways from the charged offense," making it inadmissible under Minnesota Rule of Evidence 412(1)(A)(i).

-CM

Continuation Rule: Supreme Court Of Georgia Finds Admission Of Eyewitness ID Forms Doesn't Violate Continuing Witness Rule

Apparently, Georgia has an objection which is known as the continuing witness objection:

In Georgia, the continuing witness objection is based on the notion that written testimony is heard by the jury when read from the witness stand just as oral testimony is heard when given from the witness stand. But, it is unfair and places undue emphasis on written testimony for the writing to go out with the jury to be read again during deliberations, while oral testimony is received but once....The types of documents that have been held subject to the rule include affidavits, depositions, written confessions, statements, and dying declarations. Davis v. State, 676 S.E.2d 215, 219 (Ga. 2009).

According to the recent opinion of the Supreme Court of Georgia in Dockery v. State, 2010 WL 2243249 (Ga. 2010), however, eyewitness identification forms are not subject to the rule. Although I don't know much about the continuing witness objection, I find this odd.

In Dockery, Jeremy Dockery was convicted of murder and related charges. Dockery was convicted in large part based upon eyewitness testimony by four eyewitnesses. During jury deliberations, jurors were given, inter alia, four 

pre-printed forms filled out by each of the four eyewitnesses who testified to having identified [Dockery] as the shooter from a pretrial photo lineup. The forms contain the following, limited information: the witness' name and signature, the number of the photograph the witness selected from the lineup, the date and time of the selection, and the name of the detective who conducted the lineup.

After he was convicted, Dockery appealed, claiming, inter alia, that "the trial court erred by allowing [these four] exhibits to go out with the jury during deliberations in violation of the continuing witness rule." The Supreme Court of Georgia disagreed, finding that

Unlike the documents in cases such as Flournoy v. State, 266 Ga. 618, 619-620 (469 S.E.2d 195) (1996) (photo lineup statement reflected that the witness "'positively identified photo # 5 as being the person who committed the offense of murder'" with additional handwritten note stating "'90% as shooter'") and Parks v. State, 199 Ga.App. 736, 738(2) (406 S.E.2d 229) (1991) (finding harmless the submission to the jury of photo identification sheet containing comment that "'(i)t has to be # 2 because the mustache and lips matched the robber'"), no additional information was added to the challenged documents in this case.

Instead, the Georgia Supremes found that each "'photographic lineup file was not a testimonial account of the [witness'] identification of the appellant but was documentary evidence of the event itself.'"

My question is: How were the photographic lineup files not testimonial? Essentially, they were accounts of how each of the eyewitnesses identified the defendant as the perpetrator of the subject crime. In my mind, they were the equivalent of each eyewitness taking the witness stand and pointing to the defendant when asked if the person who committed the crime was in the courtroom. And, if we are looking at it in terms of the Confrontation Clause, the IDs were testimonial because each of these eyewitnesses would reasonably have expected that their IDs would have been available for use at a later trial. I simply don't see the distinction drawn by the court.

-CM

In Bad Company: Western District Of Michigan Finds Employee Admissions Sufficient To Defeat Summary Judgment Motion In Age Discrimination Case

Federal Rule of Evidence 801(d)(2)(D) provides that

A statement is not hearsay if...[t]he statement is offered against a party and is...a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship.

And, as the recent opinion of the United States District Court for the Western District of Michigan in Johnson v. United Rentals, Inc., 2010 WL 1981295 (W.D. Mich. 2010), makes clear, this Rule can be extremely useful to plaintiffs bringing discrimination actions against their employers.

In Johnson, after he was fired, Richard Johnson (born in 1958) brought a diversity action against his former employer, United Rentals, alleging a single claim of age discrimination. United Rentals thereafter brought a motion for summary judgment. According to the United States District Court for the Western District of Michigan,

Between August 2005 and July 2007, Sue Nichani was plaintiff's manager at the Grand Rapids branch...The parties do not dispute that Nichani testified, in other litigation, that Joe Perko, the district sales manager, complained “a lot” to her about plaintiff and Levack [(another employee, born in 1953)]. She said Perko would "talk about how the workforce in my branch particularly was too old, and that we should be replacing inside and outside salespeople with young folks."....She testified Perko told her that "we need a younger sales force."...Nichani testified that Perko asked her to fire plaintiff, although plaintiff was not then terminated...According to plaintiff, Perko agreed to retain plaintiff after Nichani discussed the branch needs with him....The parties do not dispute that Nichani testified that Mike Albers, a regional manager, also told her that “we need young salespeople."

Johnson sought to present Nichani's testimony to oppose United Rentals' motion for summary judgment, but the company claimed that it was inadmissible hearsay. The court disagreed, finding that

Federal Rule of Evidence 801(d)(2)(D) excludes as "not hearsay" those statements made by an "agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship."...In contexts similar to the factual context at bar, the Sixth Circuit has found admissible statements made during employment by an upper-level supervisor to a lower-level supervisor....The Court determines that the statements by Perko and Albers constitute party admissions under Rule 801(d)(2)(D).

Accordingly, the court denied United Rentals' motion for summary judgment.

-CM