EvidenceProf Blog

Avoiding A Confrontation, Take 2: The Result Of The Trial In Which Nontestimonial Hearsay Was Excluded Under Bruton

Last October, I posted an entry about the opinion of the opinion of the United States District Court for the Eastern District of Virginia in United States v. Williams, 2010 WL 3909480 (E.D.Va. 2010). In Williams, Marvin Wayne Williams, Jr., Freddie Wigenton, and Deshawn Anderson were charged with conspiracy to distribute crack cocaine, intentional killing while engaged in drug trafficking, and use of a firearm during a drug offense relating in death. And, as I noted, the Eastern District of Virginia became one of the few courts to hold that the Bruton doctrine covers nontestimonial hearsay after Crawford. (Early next week, I should be posting my article on this topic). So, what became of the defendants in Williams? Well as the recent opinion of the Eastern District of Virginia in United States v. Williams, 2011 WL 830289 (E.D. Va. 2011), reveals, they were convicted of conspiracy to distribute more than 500 grams of cocaine and use of a firearm during a drug trafficking offense resulting in the death of Kyle Turner, but they were acquitted on the charge of intentional killing while engaged in drug trafficking. And there was at least on interesting evidentiary issue on appeal.

In Williams, Anderson brought Motions for Judgments of Acquittal on behalf of all three defendants. One of the grounds for Anderson's motion was that the only evidence supporting his participation in the drug conspiracy was the testimony of Annette Sprow. The relevant testimony was as follows:

Q. Let me ask you about Buddha or Defendant Anderson. What would he sell?

A. Crack.

Q. Who was he getting the crack from?

A. Me. 

According to Anderson, "the inference from Sprow's testimony that Anderson actually sold cocaine [wa]s inadmissible hearsay." The Eastern District of Virginia disagreed, concluding, "[t]he Court fails to see how this is hearsay; it goes to what Anderson did, not what he said (not to mention Federal Rule of Evidence 801(d)(2)(E)'s co-conspirator statement exception)." This makes sense to me. Even if Sprow did testify that, for instance, Anderson asked him for drugs, Anderson's statement would have been made during the course of and in furtherance of the conspiracy to traffic in drugs, which would have made it a co-conspirator admission.

-CM

Lacking Conviction: Supreme Court Of Florida Notes Lack Of State Counterpart To FRE 608(b)

Federal Rule of Evidence 608(b) provides in relevant part that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

As the recent opinion of the Supreme Court of Florida in Pantoja v. State, 2011 WL 722374 (Fla. 2011), makes clear, however, Florida does not have a counterpart to Federal Rule of Evidence 608(b) and only specific instances of (mis)conduct leading to convictions can be used to impeach witnesses.

In Pantoja, Juan Pantoja was sentenced to life imprisonment after a jury convicted him of sexual battery on a child under twelve years of age by a defendant less than eighteen years of age and lewd or lascivious molestation by a defendant eighteen years of age or older. Pantoja thereafter appealed, claiming, inter alia, that the trial court erred by failing to allow him to impeach the alleged victim with evidence that she made a prior false sexual assault allegation against her uncle.

The Supreme Court of Florida disagreed, finding that Florida has no counterpart to Federal Rule of Evidence 608(b). Instead, 

-Section 90.608, Fla. Stat. sets forth who may impeach witnesses;

-Section 90.609, Fla. Stat. provides that a witness may be impeached through evidence of his reputation for untruthfulness; and

-Section 90.610, Fla. Stat. provides that a witness may be impeached through evidence of certain convictions.

According to he court, because the alleged victim's prior false allegations did not lead to a conviction, the court found that they were inadmissible as impeachment evidence. As the court noted,

The Florida Legislature's intent regarding section 90.610 is clear. While Federal Rule of Evidence 608(b) permits character impeachment through prior misconduct without a criminal conviction requirement, Florida's Legislature adopted our evidence code without this language....Professor Charles Ehrhardt distinguished section 90.610 from Federal Rule of Evidence 608(b):

Occasionally decisions ignore the limitation and permit impeachment with prior acts of misconduct of a witness when they involve prior false accusations of a crime by the witness....The drafters of the Code specifically intended not to adopt provision similar to Federal Rule 608(b)because it did not reflect the existing Florida law and because they felt the possibility for abuse of this type of evidence was great.

-CM

 

 

The Ecstacy And The Agony: Court Of Appeals Of Minnesota Finds Ecstacy Testimony Violated Rule 704 But Was Harmless Error

Federal Rule of Evidence 704 indicates that

(a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

(b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

Meanwhile, Minnesota Rule of Evidence 704 merely provides that

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

As the recent opinion of the Court of Appeals of Minnesota in Haaland v. State, 2011 WL 781229 (Minn.App. 2011), makes clear, however, Minnesota court apply the logic of Rule 704(b).

In Haaland,

Monty Haaland was driving his friend J.F.'s Cadillac on July 6, 2007. Moorhead Police Officer Adam Torgerson ran a license-plate check, which revealed that J.F.'s driving privileges were suspended. Because Haaland matched the available description of J.F., Officer Torgerson initiated a traffic stop.

Haaland identified himself with a driver's license that had a clipped corner, explaining that he had misplaced his new license. While talking to Haaland, Officer Torgerson noticed several empty cans of energy drink in the vehicle and an air freshener. He also noticed that Haaland avoided eye contact, seemed unusually nervous, and gave evasive and nonresponsive answers to questions. After a license check confirmed that Haaland had a valid license, Officer Torgerson told Haaland that he was free to go. But because the circumstances of the stop led Officer Torgerson to believe that the vehicle contained drugs, he asked Haaland if he could “talk to him for a minute.” Haaland did not respond orally but did not leave. Officer Torgerson asked Haaland if he could search the vehicle, and Haaland responded that it was not his car. Officer Torgerson asked multiple times, but Haaland did not provide a yes or no answer. Eventually, Haaland consented to a search. Officer Torgerson advised Haaland that he could withdraw his consent at any time, but Haaland did not do so.

Officer Torgerson searched the vehicle with the assistance of Officer Shawn Carlson. During the search, they discovered several items: a small plastic bag of marijuana concealed behind the roof paneling; a large plastic bag of marijuana concealed under the carpeting in the trunk; and a plastic bag with several smaller bags inside containing a total of 288 ecstasy pills concealed in the engine compartment. Haaland was arrested, and a search of his person revealed more than $800 in cash.

Haaland was thereafter charged with first-degree controlled-substance crime (sale); second-degree controlled-substance crime (possession); and fifth-degree controlled-substance crime (sale). At trial, the court allowed the prosecution to present "expert testimony from...police officers as to whether Haaland intended to sell the ecstasy pills found in the vehicle."

After Haaland was convicted, he appealed, claiming, inter alia, that this testimony should have been deemed inadmissible. The Court of Appeals of Minnesota agreed, finding that

Intent is a mixed question of law and fact, and an “expert inference” on the issue of intent is impermissible....

Haaland contends that the officers' testimony was not merely informative but “in the form of a legal conclusion that the drugs were in fact for resale.” We agree. An expert in a controlled-substance case may offer context by testifying as to the quantities of a particular drug that one would possess for personal use or the relevance of the purity or packaging of drugs but may not opine as to the defendant's intent or draw conclusions for the jury.

That said, the court found this error to be harmless, concluding that

Although the record is devoid of evidence as to the typical quantity possessed for personal use, it is unlikely that the jury would have concluded, even without the officers' opinion testimony, that 288 ecstasy pills packaged in multiple small bags were intended for personal use. Moreover, Haaland had more than $800 in cash when he was arrested, which is consistent with drug sales....On this record, we conclude that the error in permitting the officers' conclusory opinions regarding Haaland's intention to sell the ecstasy was harmless and does not warrant postconviction relief.

I think that in every case that I have addressed on this blog in which an appellate court has found a Rule 704 violation, the court has also found harmless error. I'm sure that's not always the case, but I'm guessing that courts usually find harmless error in Rule 704 cases because the impermissible legal conclusion is usually just the cherry on top of the prosecutorial sundae. Maybe one day I will do an empirical analysis of the issue.

-CM

Excused Absence: First Circuit Finds Lack Of Notes About Calls Inadmissible Under Rule 803(7)

Federal Rule of Evidence 803(7) provides an exception to the rule against hearsay for

Evidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

As the text of this Rule and the recent opinion of the First Circuit in McInnis v. Maine, 2011 WL 769075 (1st Cir. 2011), make clear, a party cannot merely point to the absence of an entry about some matter to establish admissibility under Rule 803(7). Instead, the party must point to the absence of an entry about a matter which was of a kind of which a record was regularly made and preserved.

In McInnis,

James McInnis was convicted of both federal and state offenses, and sentenced to a period of probation on the state charge, set to begin at the conclusion of the term of his state incarceration. On January 5, 2007, during what McInnis's probation officer believed to be the probation period, he authorized McInnis's warrantless arrest for violating probation and a warrantless search for drugs suspected to be in his possession. Actually, the probation period had expired before the search and arrest, apparently because the original sentence had been reduced unbeknownst to the state probation department.

McInnis (and other plaintiffs) thereafter brought actions under 42 U.S.C. § 1983 and state tort law against the State of Maine, York County and a series of state and county officers and their superiors, who made the warrantless search and arrest. The magistrate judge granted summary judgment to the defendants based upon

In 2006, after McInnis was released from his earlier custody on completion of his sentence, he spoke by phone with a state probation officer, Lew Randall, who told McInnis to report to him in accordance with the probation terms. McInnis responded (correctly as it turns out) that he was not on probation at that point and said that he would have his lawyer explain his status to Randall. This was not done, though for his part Randall took no immediate action against McInnis until he got a call from the defendant Kenneth Hatch, a Lincoln County deputy sheriff, who is McInnis's half-brother (and is said to have been the victim of McInnis's state criminal offense).

Hatch said that he had spoken with an informant who had previously given information that had never been subject to question and who was known to be acquainted with McInnis. According to the informant, McInnis and his son had “ripped off” someone of twenty-five pounds of marijuana, which was then in McInnis's possession at the dwelling of the plaintiff Dee McInnis. Randall confirmed (as he believed) that McInnis was on probation. Hatch had his supervisor's approval to pass the information along to other law enforcement officials as was customary, Randall being the first he called. Hatch also called defendant William Deetjen, an officer of the Maine Drug Enforcement Administration. Deetjen contacted Randall, who gave him authority both to arrest McInnis for violating probation and to search for the drugs, in each instance without a warrant, which the standard probation conditions made unnecessary. Deetjen himself knew that a federal judge had recently revoked an order authorizing McInnis's supervised release because he had lied to a federal probation officer, failed to report to him, and possessed marijuana.

When Deetjen and several other defendant state officers went to the McInnis house, McInnis claimed that he was not on probation. Deetjen called Randall, who repeated that he was. The officers then arrested him for violating probation and searched the premises for the stolen marijuana, though finding only some marijuana seeds and drug paraphernalia drug paraphernalia.

McInnis thereafter appealed, claiming, inter alia, that he contested Deetjen's claim that he conversed with Randall twice, noting that Randall made notes of his telephone conversations but had no such notes concerning his alleged conversations with Deetjen. As the First Circuit noted, however, "[t]he magistrate held these responses insufficient to raise a fact dispute because McInnis failed to support the claimed qualification with a citation to the record, as required by the District of Maine's Local Rule 56(c)."  The First Circuit also noted, however, that "McInnis now suggests that the citation requirement is inapt by force of Federal Rule of Evidence 803(7), which he treats as entitling him to rely on the very absence of a record as a basis for disputing a fact claim."

The First Circuit found that McInnis waived this issue by not raising it before but went on to find that "even on its own terms it goes nowhere, since McInnis provides no grounds for applying the Rule even if he were offering the phone notes in evidence. Rule 803(7) conditions admissibility on a foundational showing that records were kept in such a way that the occurrence claimed 'was of a kind of which a...record...was regularly made and preserved.' McInnis attempts no such showing."

-CM

Double Down: Court Of Appeals Of Arkansas Finds Police Interrogation Improperly Admitted As Recorded Recollection

Like its federal counterpart, Arkansas Rule of Evidence 803(5) provides an exception to the rule against hearsay for

A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. 

And, as the recent opinion of the Court of Appeals of Arkansas in Hancock v. State, 2011 WL 714674 (Ark.App. 2011), makes clear, when someone else records the alleged recorded recollection of a declarant, both participants must ordinarily testify, the reporter vouching for the accuracy of the oral report and the recorder for the accuracy of the transcription.

In Hancock, Charles Hancock was convicted of possession of ephedrine, pseudoephedrine, or phenlypropanolamine with intent to manufacture methamphetamine. Joseph James was in the van drive by Hancock when Agent Jason Akers of the Tenth Judicial District Drug Task Force pulled the van over, searched the van, and discovered drugs. James thereafter interrogated James and transcribed his statement.

At trial, James testified but indicated that he did not recall giving a statement to Agent Akers. The prosecution thereafter had Akers read the statement to the jury pursuant to Arkansas Rule of Evidence 803(5).

After he was convicted, Hancock appealed, claiming, inter alia, that James' statement was inadmissible under Rule 803(5). The Court of Appeals of Arkansas agreed, initially noting that when someone else records the alleged recorded recollection of a declarant, "[b]oth participants must ordinarily testify, the reporter vouching for the accuracy of the oral report and the recorder for the accuracy of the transcription." The court then found that this standard had not been satisfied because

nothing in the portions of the statement read into the record by Akers made any mention of whether James affirmed the statement to be true. Additionally, James never testified about whether the statement he gave to Akers was true. At best, James testified that the police asked him questions and then wrote the questions and James's answers on a piece of paper, which James subsequently initialed. Moreover, Akers also failed to verify the accuracy of the transcription of James's statement. Although Akers acknowledged that he took the statement from James and explained the process by which he took it, Akers never testified that the statement was accurately recorded...Because there was neither evidence that the recordation was adopted by the declarant nor evidence that the recordation was accurately recorded, we conclude that the circuit court erred in allowing Akers to read the statement into the record. Although the State asserts that the introduction of the statement was not prejudicial, we disagree. The circuit court specifically referenced James's statement in denying Hancock's motion for directed verdict, relying on it as evidence of Hancock's intent to manufacture methamphetamine. As such, we conclude that the introduction of James's statement constituted reversible error.

-CM

Loyola L.A.'s "11" On "11" Series & Victor's Gold's You've Got Mail--But No Privilege

One of the best law faculty blogs out there is the relatively new blog, Summary Judgments, which contains posts by the faculty of the Loyola Law School Los Angeles. Recently, the blog hosted an "11" on 11" series, in which Loyola Law School professors weighed in on what they expect to be the biggest legal issues in their fields in 2011. Today, Dean Victor J. Gold posted the last entry in the series: You've got mail--but no privilege. The post concerns a recent opinion of the California Court of Appeals, Holmes v. Petrovich Development Company,---Cal.Rptr.3d---, 2011 WL 117230 (Cal.App.3d, 2011), which dealt with one of the hottest issues out there now: the privacy of e-mails sent by an employee from a work computer or a smartphone supplied by his employer. Specifically, it addressed the question of whether attorney-client privilege applies to such e-mails.

I would highly recommend the post to readers of this blog and would recommend the "11" on 11" series in general to all those interested in some of the best short form legal scholarship out there.

-CM

The Informant(s)!: Court Of Appeals Of Texas Finds No Exception To Confidential Informant Privilege In Drug Appeal

Texas Rule of Evidence 508(a) provides that

The United States or a state or subdivision thereof has a privilege to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of a law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation.

Texas Rule of Evidence 508(c)(2), however, provides an exception to this confidential informant privilege

If it appears from the evidence in the case or from other showing by a party that an informer may be able to give testimony necessary to a fair determination of a material issue on the merits in a civil case to which the public entity is a party, or on guilt or innocence in a criminal case, and the public entity invokes the privilege, the court shall give the public entity an opportunity to show in camera facts relevant to determining whether the informer can, in fact, supply that testimony. The showing will ordinarily be in the form of affidavits, but the court may direct that testimony be taken if it finds that the matter cannot be resolved satisfactorily upon affidavit. If the court finds that there is a reasonable probability that the informer can give the testimony, and the public entity elects not to disclose the informer's identity, the court in a civil case may make any order that justice requires, and in a criminal case shall, on motion of the defendant, and may, on the court's own motion, dismiss the charges as to which the testimony would relate. Evidence submitted to the court shall be sealed and preserved to be made available to the appellate court in the event of an appeal, and the contents shall not otherwise be revealed without consent of the public entity. All counsel and parties shall be permitted to be present at every stage of proceedings under this subdivision except a showing in camera, at which no counsel or party shall be permitted to be present.

As the text of this rule implies, and as the recent opinion of the Court of Appeals of Texas, Waco, in Griffin v. State, 2011 WL 754349 (Tex.App.-Waco 2011), makes clear, to be entitled to an informant's identity under this exception, the defendant bears the threshold burden of making a plausible showing, based on more than mere conjecture and speculation, that the informant could give testimony necessary to a fair determination of guilt.

In Griffin, Henry Griffin was convicted by a jury for possession of one or more but less than four grams of a controlled substance in a drug-free zone. The evidence presented at trial established the following:

On September 11, 2008, Detectives Fletcher, Padgett, and Bolin of the Denton Police Department supervised three controlled buys at 625 Park Lane, Denton using two CIs. The detectives executed a search warrant for the home the next day. Both [Griffin] and his son, Javier Johnson, were present. When the police searched [Griffin], they found six rocks of cocaine in his pocket.

After he was convicted, Griffin appealed, claiming, inter alia, that the trial court erred in denying his pretrial motion seeking the identity of the CI or CIs from which the officers got their information to do the buys. The Court of Appeals of Texas, Waco, disagreed, concluding that

To be entitled to an informant's identity under the second exception, the defendant bears the threshold burden of making a plausible showing, based on more than mere conjecture and speculation, that the informant "could give testimony necessary to a fair determination of guilt."...

Here, [Griffin] did not dispute at the hearing that officers found him with six rocks of cocaine in his pants pocket when they executed the search warrant. [Griffin] did not raise any potential defenses or affirmative defenses except that the informer may have had information about whether appellant was involved in the delivery of the substances. As the trial court pointed out, even if both CIs testified that [Griffin] was not involved in the delivery or even possession of the drugs on the day of the controlled buys, that did not necessarily mean that he did not possess with the intent to deliver on the 12th.

-CM

I Want The Truth: 8th Circuit Opinion Notes That Rule 608(b) Only Covers Instances Of (Un)Trustworthiness

Federal Rule of Evidence 608(b) provides that

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified.

As the text of this Rule and the recent opinion of the Eighth Circuit in United States v. Tate, 2011 WL 692013 (8th Cir. 2011), make clear, Rule 608(b)(1) only covers specific instances of (un)truthfulness, and (2) does not allow for the admission of extrinsic evidence.

In Tate, Donald Ray Tate was convicted of being a felon in possession of a firearm. One of the witness who testified for the prosecution at trial was Officer Adam Siegfried. The prosecution, however, failed to inform Tate that Officer Siegfried was involved in an altercation in which he allegedly punched and kicked a bartender while off-duty and attending a police department SPPD holiday party.

After he was convicted, Tate appealed claiming, inter alia, 

that, had the government disclosed before trial the allegedly suppressed evidence, at trial Tate would have been entitled under Fed.R.Evid, 608(b) to ask Officer Siegfried on cross-examination "whether an allegation had been made against him; inquire into the nature of the allegation; who made it and when; and the current status and details of any investigation" because "[t]he fact that the Minneapolis City Attorney's Office ultimately brought charges...confirms that the State did not believe Officer Siegfried" when he denied punching and kicking the bartender.

But according to the Eighth Circuit, "Tate misunderst[ood] Rule 608(b)" because "[t]he fact Officer Siegfried may have assaulted the bartender is not probative of Officer Siegfried's character for truthfulness...." Moreover, the court concluded that

Even if we assume Rule 608(b) would have permitted Tate to ask Officer Siegfried on cross-examination whether Officer Siegfried lied when he stated he did not punch and kick the bartender, Officer Siegfried more than likely would have denied the accusation. Officer Siegfried had not yet been charged and had consistently denied assaulting anyone. Unable to introduce extrinsic evidence to rebut Officer Siegfried's denial, Tate's inquiry necessarily would have ended. 

-CM