Tuesday, August 23, 2011
Hairy Situation: D.C. Judge Precludes Investigator From Testifying About Defendant's Inability To Grow A Beard
The Felony Calendars is blogging about the murder trial of Gary Dickens and Antwarn Fenner. Here is the blog's inroductory description of the case:
On August 8, 2008, in the late evening hours, Stanley Daniels was shot to death in the 3500 block of Georgia Avenue, Northwest, in Washington, D.C. Daniels was 48 years old at the time.
Two men are charged with premeditated murder for Daniels' death: Gary Dickens, now 41; and Antwarn Fenner, now 37.
The government's theory is that Daniels' killing was a revenge killing. On July 8, 2008 -- one month to the day before Daniels was killed -- Gary Dickens' estranged wife was stabbed to death. In the days leading up to the shooting, Dickens and Antwarn Fenner -- Dickens' cousin -- understood that Stanley Daniels was the one who killed the wife.
And so, the government will say, Dickens and Fenner conspired to kill Daniels. Documents filed with the court suggest prosecutors will try to prove that both men planned the murder, and then Fenner pulled the trigger.
Fenner and Dickens were both indicted on first-degree murder and conspiracy charges. Fenner alone faces weapons possession charges.
You can check out The Felony Calendars for detailed descriptions of the daily goings-on in the case, but in this post I wanted to focus on an interesting evidentiary ruling in the case dealing with the (in)admissibility of evidence about Fenner's alleged inability to grow a beard.
When asked about the shooting, an eyewitness held his hands out to either side of his face, apparently indicating a beard, and said the shooter's facial hair was "full." At trial, defense counsel, Michael Satin,
sought permission to introduce evidence that Fenner is physically incapable of growing a full beard. His plan had two components: first, Satin's investigator would testify that he's inspected the sides of Fenner's face, and has seen nothing (like stubble) to indicate Fenner can grow hair there. And second, Fenner would give jurors a close-up of the sides of his face, so they could confirm the investigator's testimony.
The judge, however, reserved ruling on the second issue and precluded the investor from testifying, concluding that the private investigator was not qualified to give an opinion about whether the sides of Fenner's face are able to grow hair but leaving open the possibility for testimony from someone better-qualified.
The next week, the judge did permit testimony by Fenner's ex-wife, who testified that when they were married, Fenner's
facial hair was much as it was now: a mustache and hair on his chin. The mustache might have been thicker or thinner sometimes, but she has never seen him with hair on his cheeks -- even when he's gone for a few days without shaving.
Thereafter, the prosecutor presented partially contradictory evidence such as Fenner's booking photo, in which "Fenner had a full mustache and patchy tufts of hair along his jawline."
In the first, People v. Alleyne, 99 Cal.Rptr.2d 737 (Cal.App. 4 Dist. 2000), the Court of Appeal, Fourth District, Division 3, California, affirmed a defendant's conviction for conspiracy to commit murder. In affirming, however, the court noted that
Alleyne's defense at trial focused primarily on Wengert's identification of him as the shooter. Several of his friends testified he did not have a beard, an earring, or sweat suit, all of which Wengert had attributed to the shooter. A dermatologist and a defense investigator provided corroboration Alleyne could not grow a beard.
Interesting. I don't know whether the prosecution objected to this testimony, but the dermatologist presumably provided expert testimony while the investigator presumably provided lay testimony.
Meanwhile, in State v. Jefferson, 516 P.2d 578 (Ariz. 1973), the Supreme Court of Arizona affirmed a defendant's conviction for robbery. At trial, eyewitnesses had testified that the robber had a beard, and the court then allowed an officer to offer his opinion that, at the time of arrest, the defendant had a "[b]eard on the side of the cheeks or jawbone [that] seemed to be about two to four days old."
In affirming, the Supreme Court of Arizona noted that while lay opinion might ordinarily not be allowed on this type of issue, there is an exception to the general rule pursuant to which
A witness may state his impression or inference with respect to the appearance of a person, animal, object, or place, if he has had adequate opportunity for observation, the details of such appearance cannot be reproduced before the jury to enable them to draw a correct inference, and he states as much as possible of the constituent facts.
The court then found that
The testimony to which objection was made could be considered as falling under the exception to the opinion rule, and the most rational means of describing the length of the beard was in terms of days' growth. Obviously the officer's estimate of a two- to four-day growth was not to be considered an exact statement; it was an estimate. The trial judge's ruling permitting the testimony to be admitted was not an abuse of his discretion; hence not error.
Both of these cases would seem to point to the conclusion that the judge in the trial of Dickens and Fenner should have allowed the investigator to testify. That said, D.C. courts apply a weird test for when lay opinion testimony can be admitted and when expert testimony is required. Very weird. In fact, I would say that the test sticks out like a sore thumb compared to the tests applied by all other jurisdictions. In fact, I recently completed an essay on the topic that I will soon be posting here and on SSRN. And, under the test, I can see why the judge excluded the testimony. More details to come.