December 25, 2010
In Jury, We Trust: Court Of Appeals Of Colorado Allows Juror To Discount Effect Of Prejudicial Article
We trust jurors. We have to. This is the basis for Federal Rule of Evidence 606(b), which 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 that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.
As Justice O'Conner noted in Tanner v. United States, 483 U.S. 107 (1987), "There is little doubt that postverdict investigation into juror misconduct would in some instances lead to the invalidation of verdicts reached after irresponsible or improper juror behavior. It is not at all clear, however, that the jury system could survive such efforts to perfect it." But what happens when jurors are exposed to extraneous prejudicial information or an improper outside influence? Do we still trust jurors when they say that they verdicts were not tainted by such information or influence? According to the recent opinion of the Court of Appeals of Colorado in People v. Moore, 2010 WL 5013681 (Colo.App. 2010), the answer is "yes." I'm not sure that I agree.
In Moore, Lessell Henry Moore appealed the judgment of conviction entered on jury verdicts finding him guilty of attempted first degree murder, two counts of first degree burglary, first degree assault, sexual assault, menacing, and violation of a protection order. One of the grounds for his appeal was that the husband of one of the jurors read an article to his juror-wife. This article, inter alia, contained information about Moore's extensive criminal history which was inadmissible at trial because it contained propensity character evidence. Indeed, the juror-wife revealed this fact at trial, but the trial judge denied Moore's motion to excuse her after she said that she did not really pay attention to the article and could remain fair and impartial.
The Court of Appeals of Colorado allowed the juror-wife to impeach the jury's verdict based upon this allegation because the article constituted extraneous prejudicial information under Colorado Rule of Evidence 606(b). This left the question of whether the juror's exposure to this information required a new trial, and the court found that it did not because
In response to the court's questions, juror S said that: her husband read the article to her while she was in another room; she did not pay much attention to him; she did not remember anything from the article about defendant; and she could remain fair and impartial....
Defendant's citation of [People v. Moore, 701 P.2d 1249, 1252-53 (Colo.App.1985)] for the proposition that a new trial was required, because the prior conviction information would have warranted reversal if offered directly into evidence, is misplaced. Here, the trial court accepted the juror's statement that although she recalled some information from the article, she did not remember any information concerning defendant.
Really? The original basis for precluding jurors from impeaching their own verdicts was that a person testifying to his own wrongdoing was, by definition, an unreliable witness. If it seems that extraneous prejudicial information or an improper outside influence reached the jury, of course this rule needs to be pushed aside because the concern is that someone besides the jurors tainted the verdict. But if the juror was implicated in the wrongdoing (and I would say that the wife-juror was), shouldn't the old rationale apply, and shouldn't the juror be precluded from testifying that the information/influence had no impact on his or her decision (and this is even assuming that jurors should ever be allowed to testify about the effect of information/influence on decisions)?
December 24, 2010
A Misunderstanding: Court Of Appeals Of Texas Precludes Jury Impeachment Based On Juror Misimpression For Video
A defendant is on trial for driving while intoxicated (DWI). At trial, the prosecution shows a videotape to the jury in which the defendant says that he "took responsibility before." After the jury convicts the defendant, jurors approach defense counsel and inform him that they thought based upon the video that the defendant had been convicted of DWI before. In fact the defendant had no prior DWI convictions. Should the jurors be able to impeach their verdict? According to the recent opinion of the Court of Appeals of Texas, San Antonio, in Salazar v. State, 2010 WL 4840491 (Tex.App.-San Antonio 2010), the answer is "no."
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 jury's deliberations, or on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. Nor may a juror's affidavit or any statement by a juror concerning any matter about which the juror would be precluded from testifying be admitted in evidence for any of these purposes. However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror; or (2) to rebut a claim that the juror was not qualified to serve.
And, according to the court, the problem for the defendant was that he made
no allegation of outside influence that was improperly brought to bear upon the jurors. Instead, [defendant] appears to complain that the jurors reached erroneous conclusions from the evidence. In a similar case, S.P., this court, in finding counsel was not ineffective for failing to raise a juror misconduct issue, stated there was no jury misconduct when the jury discussed the thickness of the probation file and speculated that the accused juvenile had been in trouble before....Likewise, this court refused to find jury misconduct when one juror incorrectly informed the other jurors that the court papers that were in evidence reflected that the accused had served jail time for his first two DWI offenses when, in fact, they did not....Rather than outside influence, we described this situation as one in which "a juror misinterpreted documents in evidence."....In another similar case, the Corpus Christi Court of Appeals found no jury misconduct when, during deliberations, the jurors discussed the fact that the accused used his left hand to pick up a cup, which was consistent with the testimony of some other witnesses.
December 23, 2010
Judicial Guidance: Court Of Appeals Of Kentucky Applies Three Factor Test To Judicial Interrogation
Like its federal counterpart, Kentucky Rule of Evidence 614(b) provides that "[t]he court may interrogate witnesses, whether called by itself or by a party." But when does a judge cross the line into advocate for one of the parties, necessitating a new trial? As the recent opinion of the Court of Appeals of Kentucky in Amos v. Clubb, 2010 WL 5018471 (Ky.App. 2010), makes clear, however, many courts have adopted a three-factor test to determine whether judicial interrogation is proper.
In Clubb, Jackie Amos and Patricia Sibley unsuccessfully challenged the validity of the Last Will and Testament of Terry Clubb. They thereafter appealed from the trial court's judgment upholding a jury verdict finding that Terry's will was not the result of undue influence.
That will was executed at the office of attorney Bill Brammel, with Josh Clubb, a law clerk, and Toni Hall, an administrative assistant, witnessing Terry's signature. At trial, Brammel and Hall both testified that Clubb appeared to be competent when he executed his will. After both of the parties interrogated these witnesses, the trial judge stepped in and conducted his own interrogations.
After the trial court found that Terry's will was not the result of undue influence, Amos and Sibley appealed, claiming, inter alia, that the trial judge's questioning of Brammel and Hall unduly enhanced those witnesses' credibility, to the prejudice of their case. In addressing this argument, the Court of Appeals of Kentucky found that
A trial judge, when questioning a witness, should avoid imposing her opinion as to the credibility of that witness and must avoid crossing the line between impartial arbiter and advocate....To guide trial judges, the Supreme Court of Kentucky adopted the three-factor test used in Federal courts.
First, in a lengthy, complex trial, judicial intervention is often necessary for clarification. Second, if the attorneys in a case are unprepared or obstreperous or if the facts are becoming muddled and neither side is succeeding at attempts to clear them up, judicial intervention may be necessary for clarification. Third, if a witness is difficult, if a witness' [sic] testimony is unbelievable and counsel fails to adequately probe, or if the witness becomes inadvertently confused, judicial intervention may be needed.
Moreover, according to the court,
none of the three factors applies to this case. The trial was lengthy, but not overly complex. The attorneys were neither unprepared nor obstreperous. In fact, they appeared to be well prepared and fully cooperative with each other and the court. Finally, neither Brammel nor Hall was a difficult witness. Therefore, under Terry, it appears the trial judge should have resisted the urge to insert herself into the proceedings.
Thus, the court found that the judicial interrogation was erroneous, but it found this error to be harmless because
the trial judge's questioning of Brammel and Hall dealt exclusively with the issue of Terry's competence. That issue, by itself, was not before the jury. The issue before the jury was whether Terry's Will was the product of undue influence and, while competency is a factor in determining undue influence, it is not the only factor.
Several witnesses did testify that Terry was weak, had difficulty speaking in his final days, and sometimes repeated himself; testimony that did not necessarily contradict the testimony of Brammel and Hall. None of the witnesses testified that Terry was unaware of what was taking place on March 22 when he discussed the provisions of his Will with Brammel or on March 25 when he executed his Will. Furthermore, we note that it was Terry who asked Dean to recommend an attorney and that Dean recommended Brammel because he was “an ethical man” and “a good Christian man.” Faced with this evidence, and in particular Dean's testimony regarding Brammel's character, we conclude that any enhanced credibility that Brammel and Hall received by the trial judge's questioning was not prejudicial to Jackie and Patricia's case. Therefore, although unwarranted, we discern no reversible error in the trial judge's questioning of Brammel and Hall.
December 22, 2010
Uncompromising: Eastern District Of Tennessee Precludes Jury Impeachment To Prove Compromise Verdict
A defendant is charged with twelve counts. During deliberations, the jury sends a note to the judge which indicates that some jurors would not vote guilty. The note apparently also contains information about the numerical division of the jury. The judge reads aloud to the prosecutor and defense counsel the portion of the note that says that some jurors would not vote guilty. The judge then informs the parties that the note contains information about the numerical division of the jury, but the judge does not reveal this numerical information. The judge thereafter asks the parties for objections to an Allen charge. When the parties don't object, the judge recalls the jury and gives them the Allen charge. Later that day, the jury returns a verdict convicting the defendant on some charges but acquitting him on others. Should defense counsel be able to see the entire note and/or interview jurors to determine whether there was a compromise verdict? According to the recent opinion of the United States District Court for the Eastern District of Tennessee in United States v. Kennedy, 2010 WL 5057210 (M.D. Tenn. 2010), the answer is "no" on both counts.
In Kennedy, the facts were as stated above. In finding that defense counsel could not interview jurors to determine whether there was a compromise verdict, the court held that "juror testimony is not admissible to show a compromise verdict." Indeed, the Advisory Committee's Note to Federal Rule of Evidence 606(b) clearly indicates that jurors can't impeach their verdicts through allegations of a compromise verdict.
Moreover, in finding that the judge acted properly in connection with the Allen charge, the Middle District of Tennessee held that
Other Circuits have upheld the process the Court utilized in this action. In [United States v. Henry, 325 F.3d 93, 106 (2nd Cir. 2003), the district court received a similar note from the jury and elected not to reveal the exact numerical division to the attorneys, but gave an Allen charge....The Second Circuit rejected the defendant's argument for review of the entire note, but the Circuit ruled that the trial court should have informed counsel that it was not revealing to disclose vote split. Id. The Second Circuit relied on United States v. Robinson, 560 F.2d 507, 511-12 (2d Cir.1977), where the district court received two jury notes and revealed the general nature of the first note, but did not disclose the vote split cited in the note. Upon receipt of a second note, the district court sealed that note without informing counsel of any of its contents. There, the concurring and dissenting judges agreed that not revealing the vote split among jurors was proper. Id. at 524. (Oakes, J., dissenting) ("The trial court here should have revealed to counsel the substance of the juror's note, without disclosing the individual juror's name or the jury vote."). The Fifth Circuit is in accord. United States v. Warren, 594 F.2d 1046, 1049 (5th Cir.1979) (district court did not err in failing to disclose the vote of the jury).
December 21, 2010
It's Settled: Court Of Appeals of Texas Finds Burden Is On Party Raising Rule 408 To Prove Settlement Negotiations
Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice or interest of a witness or a party, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.
As the recent opinion of the Court of Appeals of Texas, Fort Worth, in Vinson Minerals, Ltd. v. XTO Energy, Inc., 2010 WL 6118649 (Tex.App.-Fort Worth 2010), makes clear, however, the burden is on the party objecting to evidence under Rule 408 to show that it was a part of settlement negotiations and not offered for another purpose.
XTO Energy involved oil and gas leases that
originated in 2001 between Johnny Vinson, Vinson Minerals, Ltd., and others as lessors and Threshold Development Company as lessee. Threshold is a Vinson family company in that the owners, officers, and directors are members of the Vinson family. In 2003, Antero Resources Corporation bought Threshold's interests as lessee in the leases for $25 million.
In early 2005, the Vinsons began disputing Antero's calculations of royalty payments to the Vinsons from 2003 to 2005 and commenced an audit of Antero's accounting records of royalties. By letter of January 25, 2005, the Vinsons informed Antero that they were "waiting on requested information to complete [the] audit of production and royalty payments" and that the Vinsons' "potential claim" for royalty underpayment was $2 million. In March 2005, the Vinsons provided Antero with audit exceptions listing, among other complaints, improper deductions from royalty payments for compression, fuel, treating, and transportation charges by an "affiliated" pipeline owned by Antero "to be determined" but "estimated...to be in the range of $600,000."
The relationship between the parties deteriorated as the Vinsons raised other issues, including claims for reassignment of undeveloped acreage, drill site issues, and road and surface damage issues. On July 11, 2005, the Vinsons filed suit against Antero for numerous claims-including trespass, breach of contract, incorrect calculation and underpayment of royalties and other production costs, surface damages, and failure to develop-seeking an unspecified amount of damages and attorney fees.
In the meantime, two months before the Vinsons filed suit, XTO acquired Antero and the leases.
On March 16, 2006, XTO's counsel wrote the Vinsons' counsel, summarizing the current status of the ongoing settlement discussions on all issues and proposing that XTO recalculate all prior royalties under a revised methodology and format and "in due course, make a retroactive payment to bring all prior periods up to the new payment methodology." The letter requested that the Vinsons present a settlement demand "to resolve all issues in the case" as follows:
Please discuss these issues with your client and present XTO a settlement demand to resolve all issues in the case. If we have misunderstood your pleading in any respect, or if you would need to discuss any of these issues prior to submitting a demand, please call me at your convenience.
The Vinsons' attorney responded with a three page letter dated May 12, 2006, which closed with the following paragraph:
Considering each of these factors, [the Vinsons] conservatively believe [ ]this case has a value greatly in excess of $30,000,000. Recognizing the risks of litigation and the costs associated therewith, I have been authorized to settle all claims in exchange for a payment in the amount of $9,500,000 and XTO bringing itself into compliance with the Barnett Shale Project Agreement by signing JOA's correctly identifying Threshold's before and after payout working interests after XTO acquired Sinclair Oil Corporation's interest in said agreement, in the same manner as all previously executed JOA's.
XTO later filed a motion to exclude this May 12th letter under Texas Rule of Evidence 408, and the trial court granted the motion. The Vinsons later appealed, claiming, inter alia, that this "letter was not a compromise settlement demand but was clearly a "Demand Letter" notifying XTO of its obligation to pay an amount that XTO knew it owed but was withholding until all issues could be resolved."
The Court of Appeals of Texas, Fort Worth, disagreed, first noting that "[t]he burden is on the party objecting to evidence under rule 408 to show that it was a part of settlement negotiations and not offered for another purpose." The court then agreed with the trial court, concluding that
The May 12 letter speaks for itself. It begins with a discussion of settlement, states that it is in response to XTO's request for a settlement demand, clearly and unambiguously concludes with a settlement demand for "all claims," and was written during the parties' ongoing negotiations for settlement of an existing lawsuit that included the Vinsons' claim for underpayment of royalties. The May 12 letter also concludes by conceding a right to which the Vinsons believe they are entitled.
December 20, 2010
Let's Go To The Tape: Supreme Court Of South Carolina Finds Prisoner Video Admissible In Death Penalty Appeal
A defendant is convicted of two counts of armed robbery, two counts of murder, one count of burglary of a dwelling, first degree, one count of attempt to burn, and one count of criminal sexual conduct, first degree. During the sentencing phase of trial and over the defendant's objection, the State introduced a video recording showing prison guards using pepper-spray to force the defendant to comply with a pat-down request. The events documented on the tape occurred the night that the defendant was found guilty. The defendant refused to allow prison guards to touch him when the guards requested that he place his hands on the wall for a pat-down. The guards explained that the pat-down was policy and indicated that if he continued to refuse, the defendant would be pepper-sprayed. The defendant continued to resist after several requests for compliance, so the guards used pepper-spray to restrain him. At the end of the sentencing phase of trial, the defendant was given the death penalty. Did the trial court properly allow for admission of the tape? According to the recent opinion of the Supreme Court of South Carolina in State v. Torres, 2010 WL 5071684 (S.C. 2010), the answer is "yes."
The facts in Torres were as stated above. In turning aside the appellant's argument that the video recording was improperly admitted, the Supreme Court of South Carolina cited its previous opinion in State v. Burkhart, 371 S.C. 482, 487, 640 S.E.2d 450, 453 (2007), for the proposition that "[A]daptability to prison life...is clearly admissible and...evidence of the defendant's characteristics may include prison conditions if narrowly tailored to demonstrate the defendant's personal behavior in those conditions."
The South Carolina Supremes then concluded that
The video recording in this case demonstrates exactly the type of evidence that Burkhart permits. The video shows [appellant's] behavior in a routine prison situation where he repeatedly refused to accede to prison guards' numerous requests to submit to a pat-down. Because the video recording is probative on the issue of [appellant's] adaptability to prison life, which is a legitimate concern in the sentencing phase of a capital case, the video does not introduce an arbitrary factor into the jury's determination.
The court did note that the evidence was still subject to South Carolina Rule of Evidence 403, which provides that
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
But the court ultimately held that
the trial judge's ruling was correct because the probative value far outweighs any prejudice stemming from the video and any unfair prejudice is de minimis. The video recording presented the jury with competent evidence to showcase [appellant's] character and adaptability to prison life by illustrating [appellant] in an actual routine prison situation. While prior testimony had already established [appellant's] prior convictions and his problems with maintaining parole conditions, this video recording was unique in its application to a specific parameter held by this Court to not be arbitrary in the sentencing phase of a capital murder trial.
December 19, 2010
Moving Target: Court Of Criminal Appeals Of Texas Clarifies Similar Motive Requirement Under Rule 804(b)(1)
In civil cases, testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in the course of another proceeding, if the party against whom the testimony is now offered, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases, testimony given as a witness at another hearing of the same or a different proceeding, if the party against whom the testimony is now offered had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. In criminal cases the use of depositions is controlled by Chapter 39 of the Code of Criminal Procedure.
But when exactly is there is a similar motive to develop the testimony of a witness? That was the question addressed by the recent opinion of the Court of Criminal Appeals of Texas in its recent opinion in Martinez v. State, 2010 WL 5093405 (Tex.Crim.App. 2010).
In Martinez, Raymond Martinez
was convicted of capital murder in October 1989....Pursuant to the jury's answers to the statutory punishment issues, the trial court sentenced appellant to death....This conviction and sentence were affirmed on direct appeal....In September 2007, this Court granted habeas corpus relief, set aside appellant's death sentence, and remanded the case to the trial court for a new punishment hearing.
Martinez's conviction and sentence were in large part based upon the testimony of Johnny DeAnda, and DeAnda passed away before Martinez's new punishment hearing. The prosecution thus introduced DeAnda's testimony from the first trial pursuant to Texas Rule of Evidence 804(b)(1).
After DeAnda was again sentenced to death, he appealed, claiming, inter alia, that DeAnda's testimony was improperly admitted under Rule 804(b)(1) because "his prior counsel did not have a similar motive for cross-examining DeAnda at the previous trial." Part of the basis for his argument was "that because the punishment charge to the jury in 1989 did not contain a separate mitigation instruction, [he] did not have the same motivation to cross-examine DeAnda regarding mitigation as he did in 2009, when the jury charge contained a separate mitigation instruction."
The Court of Criminal Appeals of Texas disagreed, finding that
While the language of the 1989 supplemental instruction is undeniably different from the language of the 2009 mitigation special issue, the purpose of each instruction was the same: to instruct the jury to consider mitigating evidence that might cause the jury to determine that a life sentence would be a more appropriate sentence than death. The parties, issues, and underlying purpose of the jury charge were the same in both 1989 and 2009. Further, defense counsel in 1989 and 2009 had the similar motive of presenting mitigating evidence to the jury. That appellant is now dissatisfied with the depth of prior counsel's cross-examination of DeAnda does not affect that motive....Therefore, the trial court did not violate appellant's Sixth Amendment right to confront and cross-examine a witness by admitting DeAnda's former testimony.