EvidenceProf Blog

Triple Play: D.C. Court Of Appeals Reverses Murder Conviction Based Upon 3 Serious Error By Trial Court

Federal Rule of Evidence 806 provides that

When a hearsay statement, or a statement defined in Rule 801(d)(2)(C), (D), or (E), has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. Evidence of a statement or conduct by the declarant at any time, inconsistent with the declarant's hearsay statement, is not subject to any requirement that the declarant may have been afforded an opportunity to deny or explain. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination.

The District of Columbia does not have codified rules of evidence, but as the recent opinion of the District of Columbia Court of Appeals in Smith v. United States, 2011 2899126 (D.C. 2011) (Download Smith v. United States), makes clear, it has adopted the Rule in case law, and the trial court's failure to adhere to the Rule led to a reversal of the defendant's conviction.

In Smith, Damon Smith was found guilty of second-degree murder while armed, possession of a firearm during a crime of violence, carrying a pistol without a license, unlawful possession of ammunition, and possession of an unregistered firearm, in connection with the March 2004 shooting death of Bradley Gant. At trial, Laura Brown, who had known both Smith and Gant since elementary school, testified, inter alia, that she

saw that Smith and Gant were "hav[ing] some words" and punching each other. Smith eventually ran away, at which point Brown noticed that Gant's shirt was wet with blood from a wound on his left hip. Brown told the jury that she went into the house to call an ambulance, and when she came back outside a few minutes later, Gant said: "[H]e cut me," meaning Smith. Smith's counsel objected on hearsay grounds to Gant's statement, but the trial court admitted it as an excited utterance. Brown also testified that she lied when she spoke to the emergency dispatchers. She told them that she "w[as] just walking past [Gant] ... [and saw] him sitting on the steps." Brown also provided an incorrect address for the location of the fight, claimed not to know what had happened to Gant, did not mention Smith, and tried to minimize her role because she did not want "to be involved in anything."

During his case, 

Smith tried to call MPD Detective McCloud, who responded to Brown's 911 call after the stabbing and questioned Gant before Gant was taken away in an ambulance. According to Smith's counsel's proffer, Gant told Detective McCloud "that he was approached by six or seven black men" and that he "ha[d] no idea who stabbed him." In response to the prosecution's hearsay objection, Smith's counsel argued that she was offering Detective McCloud's testimony to impeach Brown. The trial court held that Smith could not "use what Bradley Gant told [Detective McCloud] to impeach [Brown] because it's not [Brown's] statement you are impeaching....What impeaches [Brown] is if she says two different things or if Bradley Gant says two different things. You can't use two different people saying two different things to impeach one another." Smith's counsel later faxed to the trial court additional arguments for why Gant's statement to Detective McCloud was admissible, including that it was an exception to the hearsay rule as an excited utterance and a present sense impression. The trial court dispensed quickly with the excited utterance argument: "I don't think it's excited utterance. To me it's testimonial, you are telling the police who stabbed you. You're certainly not telling them so they won't get them. That's exactly why you are telling them, so they can be prosecuted." The trial court also rejected Smith's argument that the statement was a present sense impression: "I don't think you are offering this as [a] present sense impression. You are offering this that your man didn't do it. It was six or seven other black men that did it....[You] are trying to get it in for the truth of the matter asserted therein." Because the trial court refused to let Smith ask Detective McCloud about Gant's statement to her, the jury never heard that Gant said he "ha[d] no idea who stabbed him."

After he was convicted, Smith appealed, and the District of Columbia Court of Appeals found that the trial court committed three fundamental errors which, in addition to other errors, required reversal.

First, the trial court deemed McCloud's prospective testimony about Gant's statement inadmissible because it was "testimonial," i.e., because it violated the Confrontation Clause as interpreted by the Supreme Court in Crawford v. Washington. But as the District of Columbia Court of Appeals correctly noted, the Confrontation Clause only applies to statements introduced against an accused, not statements introduced by an accused, meaning that the trial court erred.

Second, the trial court found that McCloud's prospective testimony about Gant's statement was inadmissible because Smith was offering it to prove the truth of the matter asserted. Again, the District of Columbia Court of Appeals correctly concluded that this merely meant that Gant's statement was hearsay, not that it failed the test to qualify as a present sense impression, and exception to the rule against hearsay.

Third, the trial court found that McCloud's prospective testimony about Gant's statement was inadmissible to "impeach" Gant. The District of Columbia Court of Appeals correctly held that

If Gant had been alive to testify at trial that Smith stabbed him, Detective McCloud's testimony certainly would have been admissible to impeach him....Gant did not testify, of course, but once the trial court admitted his earlier statement to Brown, Gant became "in essence, [a] witness[ ], and should [have] be[en] treated as such for credibility purposes."....According to Federal Rule of Evidence 806, an out-of-court declarant's "'credibility should in fairness be subject to impeachment and support as though he had in fact testified.'"..."While this jurisdiction has not adopted the Federal Rules of Evidence, this court will look to those rules for guidance,"...and we hold that the trial court erred by refusing to permit Smith to use Detective McCloud's testimony to impeach Gant.

-CM 

Total Recall: 7th Circuit Finds No Problem With Introducing Prior ID After Declarant Testifies

Federal Rule of Evidence 801(d)(1)(C) provides that

A statement is not hearsay if...[t]he declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...one of identification of a person made after perceiving the person...

But does the statement of identification have to be introduced contemporaneous with the declarant's testimony, or can it be introduced later as long as the opposing party is allowed to recall the declarant as a witness? According to the recent opinion of the Seventh Circuit in United States v. Foster, 2011 WL 2909455 (7th Cir. 2011), contemporaneity is not required.

In Foster, Napoleon Foster was found guilty of orchestrating an armed robbery of a Acme Continental Credit Union and related firearms charges. At trial, the prosecution introduced

a photographic array admitted as proof that Foster owned the black Cadillac used in the Acme robbery and that Foster was with [an accomplice] on the day of the robbery. At trial, Daniel Kotlajich testified that he had sold a black Cadillac to Foster in October 2005. He identified the bill of sale and vehicle title that Foster had signed in that sale. Kotlajich also testified that Foster had accompanied [the accomplice] when she purchased a black Olds-mobile from Kotlajich on the day of the Acme robbery.

That said,

Kotlajich could not identify Foster at trial. Kotlajich did say, however, that when previously shown a photographic array, he was able to identify the man who had purchased the black Cadillac and who had accompanied [the accomplice] when she purchased the black Oldsmobile. He testified that he had initialed the photo of the man he identified in that array.

After, calling Kotlajich,

The government later called FBI Special Agent Lori Warren, who testified that she had spoken to Kotlajich and shown him a photo array that included a photo of Foster. According to Agent Warren, Kotlajich had identified and initialed Foster's photo in that array. The government then offered the photo array into evidence. Foster objected on the ground that he had not been able to cross-examine Kotlajich regarding that array. The district court agreed that Foster had not been given sufficient opportunity to cross-examine Kotlajich about the photo array, but overruled that objection after granting Foster the opportunity to recall and cross-examine Kotlajich during his case-in-chief. Foster never took advantage of that opportunity to recall Kotlajich, however, and rested his case without calling any witnesses in his defense.

After he was convicted, Foster appealed, claiming, inter alia, that "he was denied an opportunity to cross-examine a witness who identified him in a photographic array." The Seventh Circuit disagreed, holding that

The better course, obviously, is to provide the photo array or other evidence of the prior identification immediately, while the declarant is still on the witness stand. But events at trial sometimes make the better course impractical. In such circumstances, a meaningful opportunity to cross-examine a declarant regarding his prior identification is enough to satisfy the requirements of Rule 801, even if the defendant chooses not to use the opportunity....The district court provided Foster such a meaningful opportunity to cross-examine Kotlajich when it granted Foster permission to recall Kotlajich as a witness to pursue this matter further.

-CM

A Shock To The System: TN Court Finds No Problem With Admission Of Excited Utterance Following Subsequent Startling Event

Like its federal counterpart, Tennessee Rule of Evidence 803(2) 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.

So, let's say that a child is allegedly sexually abused, and the next day her mother tells her to urinate before taking a bath. Instead of complying, the child cries and screams out that she was sexually abused by her uncle. Does this qualify as an excited utterance under Rule 803(2)? According to the Court of Criminal Appeals of Tennessee in its recent opinion in State v. Taylor, 2011 WL 2767032 (Tenn.Crim.App. 2011), the answer is "yes."

In Taylor, the facts were at stated above.  The mother testified that after she told her child to urinate before taking a bath,

She started screaming. I mean, she was crying. Tears were just rolling down her face crying, no Nana, no. Don't wash my goose. Don't touch my goose, Nana. She said, ow. She said he lost his ring in it and he put a hole in my goose. And I went, what? She said, he couldn't find his ring, Nana, so he stuck his finger up my butt. I said, what do you mean? She said, Uncle Al. She said, he put his ring up in my goose and then he put his finger in and couldn't find it so then he put his finger up my butt.

After he was convicted, the uncle appealed, claiming that the child's statement was inadmissible hearsay and did not qualify as an excited utterance. The Court of Criminal Appeals of Tennessee disagreed, concluding that

In this case, the trial court concluded that the victim's statement to Ms. Tate implicating the defendant met the requirements for admission because the victim made it while still experiencing physical pain caused by the defendant's digitally penetrating her.

The record supports the ruling of the trial court. The victim's statement to her grandmother came about as a spontaneous reaction to her physical pain and the fear of the pain she might experience in the bath. The statement clearly relates to a startling event, the defendant's placing his finger in the victim's vagina, because it explains the genesis of the pain in her genital area. Despite the temporal distance between the event and the statement, the continued pain caused by the offense clearly placed the victim under stress at the time she made her revelation. Moreover, the victim's age militates against any finding of fabrication and supports a finding of spontaneity. Accordingly, based upon a de novo application of the law to the factual findings of the trial court, we conclude that the trial court did not err by admitting the victim's hearsay statement.

I agree, but not just based upon the age of the child and her continuing pain. A parent could attack a child, and the child could still feel the pain of her bruises a week later, but I don't think that anyone would say that a statement made at that point could qualify as an excited utterance. I'm not even sure that a statement the day after a sexual assault could qualify as an excited utterance, unless there were a subsequent startling occurrence. But there was such an occurrence as the child in Taylor was told to urinate and made her statement while facing the prospect of new pain. And, as I noted in my article, A Shock to the System:  Analyzing the Conflict Among Courts Over Whether and When Excited Utterances May Follow Subsequent Startling Occurrences in Rape and Sexual Assault Cases, 12 WM. & MARY J. WOMEN & L. 49 (2005), such statements should qualify as excited utterances.

-CM

Polly Wants A New Trial: DDC Seemingly Errs Badly In Finding Harmless Error In Connection With Rule 703 Ruling

Federal Rule of Evidence 703 provides that

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their  prejudicial effect.

So, let's assume that the plaintiff's expert relies upon an inadmissible report to offer opinion testimony at trial. And, assume that the court improperly allows the plaintiff to "parrot" the report's conclusions to the jury. Also, assume that the report is really good. So good, in fact, that the defendant's expert endorses the report. That has to be reversible error, right? Not according to the recent opinion of the United States District Court for the District of Columbia in Huthnance v. District of Columbia, 2011 WL 2836363 (D.D.C. 2011).

In Huthnance, 

Officers Acebal and Antonio arrested [Lindsay] Huthnance on November 16, 2005 for disorderly conduct, loud and boisterous. Huthnance claims that she was a victim of "contempt of cop," meaning the officers didn't have probable cause to believe she had committed any crime and instead arrested her merely because she had criticized the police. After her arrest, officers transported her to the station and locked her in a cell while her arrest was processed. She resolved her arrest through the District's "post and forfeiture" procedure, meaning she posted $25 collateral and was released from custody several hours later. After posting and forfeiting, no criminal charges were ever brought against Huthnance, so no one ever reviewed her arrest. As a result of her arrest, Huthnance spent several hours in jail, paid $25 to secure her release, claims she experienced mental anguish, fear, and humiliation, and was saddled with a permanent arrest record she claims she didn't deserve.

Huthnance filed suit against Officers Acebal and Antonio and the district of Columbia asserting claims of false imprisonment, intentional infliction of emotional distress, assault and battery, violations of her constitutional First, Fourth, Fifth, and Eighth Amendment rights, and violations of the Code of the District of Columbia, arising from her arrest and detention on November 15th and 16th, 2005. 

At trial, the plaintiff's expert witness offered opinion testimony that the District was on constructive notice of problems with arrests in part based upon an inadmissible "study performed by Dr. James Ginger that found over 34% of disorderly conduct arrest reports from the first six months of 2005 failed to state probable cause for arrest." Thereafter, the defendant's expert endorsed Dr. Ginger's report.

After the jury found for Huthance, defense counsel then timely renewed a prior Rule 50 motion and moved in the alternative for a new trial and remittitur. According to defense counsel, the district court improperly allowed the plaintiff's expert to "parrot" Dr. Ginger's conclusions such that it was as if the plaintiff were admitting the report into evidence under Federal Rule of Evidence 703. But according to the United States District Court for the District of Columbia,

it is abundantly clear that—in this case—even if allowing reliance on Ginger's report was error, it was harmless. Federal Rule of Evidence 703 permits a testifying expert to rely on reports prepared by others for the specific purpose of providing a basis for the testifying expert's opinions as long as they are "of a type reasonably relied upon by experts in the particular field." Both experts testified that Ginger's report is of a type reasonably relied upon by experts in the field....Moreover, to the extent that the testifying experts "parroted" Ginger's conclusions, nothing prevented counsel from challenging those conclusions by cross-examining the parroting expert witness. True, that would have been difficult for defendants in light of the fact that their own expert endorsed Dr. Ginger's report, but that only shows that the defendants weren't at all prejudiced by the inclusion of this testimony. In short, the parties' reliance on the Ginger report simply doesn't require a new trial.

What!? Assume that a defendant is charged with murder, and the prosecution has a DNA report or fingerprint report prepared by a non-testifying expert, making the report inadmissible. And assume that a prosecution expert offers opinion testimony that the defendant killed the victim and improperly "parrots" the conclusions of the analyst who prepared the report to the jury. Finally, assume that there's nothing facially wrong with the report. Everything about it looks kosher. So, the defense expert adopts the report. What else can he do? Defense counsel has not been able to cross-examine the analyst who prepared the report regarding his credentials or how the report was created.

According to the United States District Court for the District of Columbia in both this hypothetical case and Huthnance, the "parroting" of such a report does not prejudice the defendant at all because the defense expert adopts the report. But doesn't it prove the exact opposite? Doesn't it prove that the report was (extremely) prejudicial because, without the analyst to cross-examine, defense counsel could not attack the reliability/validity of the report? I'm baffled by the court's conclusion.

-CM

Character Of The Matter: 8th Circuit Case Reveals Rule 405(a) Limitation On Rule 404(a)(2) Evidence

Back on Sunday, I posted an entry about how defendants seeking to present good character evidence about themselves under the "mercy rule" of Federal Rule of Evidence 404(a)(1) can only present reputation and/or opinion testimony under Federal Rule of Evidence 405(a) unless character is an essential element of his defense. As the recent opinion of the Eighth Circuit in United States v. Drapeau, 2011 WL 2652317 (8th Cir. 2011), makes clear, the same principle applies when defendant seek to present bad character evidence about victims under the "mercy rule" of Federal Rule of Evidence 404(a)(2).

In Drapeau, Harold Drapeau, Jr., was convicted of assaulting, resisting, or impeding a federal officer resulting in bodily injury based upon an attack against Bureau of Indian Affairs Officer Marlin Robert Mousseau, Jr. At trial, Drapeau sought to present into evidence

seven tribal resolutions and an unsigned memo to United States Senator John Thune. The first resolution was written by the Nebraska Winnebago Tribe in 2005, describing Mousseau's misconduct and requesting his permanent removal as a police officer from the Winnebago Law Enforcement Services Department. Thereafter, Mousseau transferred to the Crow Creek BIA duty station, whereupon the Crow Creek Sioux Tribal Council adopted the other six resolutions and memo in response to numerous complaints against Mousseau and requested his removal from the Crow Creek Sioux Indian Reservation. In the memo to Senator Thune, a Crow Creek Sioux Tribe civil rights group requested an internal investigation of Mousseau and the police department. During the pretrial conference, the district court preliminarily denied the 2005 Winnebago resolution based on relevancy and hearsay and the last two Crow Creek resolutions because they postdated the incident, and stated that the remaining four resolutions might become admissible if Drapeau testified that he was aware of them.

The district court deemed this evidence inadmissible, and the Eight Circuit agreed with this decision on appeal. The Eighth Circuit acknowledged that Drapeau could present bad character evidence about Mousseau pursuant to Federal Rule of Evidence 404(a)(2), which provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...[i]n a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor....

But the problem for Deapeau was that Federal Rule of Evidence 405(a) only allows for the admission of reputation and/or opinion testimony, and "the tribal resolutions and memo were not in the form of witness testimony...." Moreover, Mousseau's character was not an essential element of Drapeau's defense, meaning that the evidence was not admissible under Federal Rule of Evidence 405(b), and the evidence established that Drapeau had no prior knowledge of the acts references in the resolution and memo before the subject assault.

-CM

Attention, Wal-Mart Shoppers: Court Of Appeals Of Texas Seemingly Botches Best Evidence Analysis

Like its federal counterpart, Texas Rule 1002, Texas' Best Evidence Rule, provides tha

To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required except as otherwise provided in these rules or by law.

But, like its federal counterpart, Texas Rule of Evidence 1003 provides that

A duplicate is admissible to the same extent as an original unless (1) a question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original.

In its recent opinion in Massey v. State, 2011 WL 2698608 (Tex.App.-Dallas 2011), the Court of Appeals of Texas, found that a videotape cobbled together from numerous surveillance cameras at Wal–Mart was properly admitted under Rule 1003, but was this the correct decision?

In Massey, the evidence presented at trial revealed that Randall Massey

went to a Wal–Mart store in Murphy, Texas and filled his shopping cart with items valued at $186.90. [Massey] attracted the attention of the store's loss prevention officer, Wayman Gilley, because he was stacking items in his cart in a "fort style," by placing large bulk around the edges of the cart and placing smaller items in the center. Gilley watched Massey in the produce area at the front of the store. Two store employees were nearby. When the employees left the area, Massey pushed his basket out the door passed [sic] the last point of sale. Gilley then stopped Massey, who explained that a store associate told him that drink vending machines were located outside and he had gone out the doors with his cart to buy a drink. Gilley, however, testified several drink machines were located inside the store, specifically around the cashiers' lanes at the front of the store. Gilley also said shoppers regularly drank beverages they picked up inside the store and then paid for at checkout.

Gilley called the police and told Massey that if he paid for the items in the cart, Wal–Mart would only press charges against him for criminal trespass, not theft. Massey attempted to pay for the items with a corporate credit card, but the card was rejected at the register. Wal–Mart refused to accept a check linked to the same account as the corporate card. Massey told the police he did not have any money. When they arrested him for theft, they found $11 in cash and at least seven credit cards in his wallet. After hearing all the evidence, the jury convicted [Massey] of theft.

At trial, the prosecution also introduced

a videotape put together by Gilley from Wal–Mart's numerous surveillance cameras. Gilley testified Wal–Mart used a "multiplexer" surveillance system, which recorded video from cameras throughout the store. Gilley said the store had four videocassette recorders; on each VCR was a "multiplex," and each multiplex had sixteen camera angles. To get a useable tape, Gilley explained he had to "dub" from the multiplexer system to a regular videotape by selecting the particular cameras and times to be dubbed....

The seven-minute tape dubbed by Gilley depicted [Massey] in the produce area before walking out the doors with a cart of groceries and coming back into the store with Gilley. Gilley said the tape is "boiled down" to angles relevant to the case. 

After he was convicted, Massey appealed, claiming, inter alia, that

the trial court abused its discretion in admitting the video, over objection, because it was "an incomplete video of the time he was in the store." He assert[ed] the video does not portray his "contact or possible conversation" with a Wal–Mart employee in the produce section shortly before he left the store. He contends this "absence of critical evidence" raises a question about the authenticity of the video. As support for his argument, he relie[d] solely upon Texas Rule of Evidence 1003.

The Court of Appeals of Texas disagreed, concluding that

Rule 1003 authorizes the use of copies to the same extent as an original unless one questions the authenticity of the original or demonstrates it would be unfair to admit the duplicate....Here, [Massey] is not complaining about the authenticity of the original recording; he is complaining that the videotape admitted has been "edited" from its original content. Thus, rule 1003 does not apply. The evidence at trial showed that the only videotape in the State's possession was the one shown at trial; the original recording was in Wal–Mart's possession. The record does not show appellant made any effort to obtain the original recording from Wal–Mart. Under these circumstances, we cannot say [Massey] has shown any error in the admission of the videotape. See TEX.R.EVID. 106 (providing that where only a portion of a recording is admitted, the other party may introduce "any other part...which ought in fairness to be considered contemporaneously with it").

Now, the Court of Appeals of Texas was certainly correct that Texas Rule of Evidence 1003(1) did not apply. But what about Texas Rule of Evidence 1003(2)? As noted in Colin Miller, Even Better than the Real Thing: How Courts Have Been Anything But Liberal in Finding Genuine Questions Raised as to the Authenticity of Originals Under Rule 1003, 68 Md. L. Rev. 160, 172 (2008),

The exception contained in subsection (2) of Rule 1003 applies where only part of an original document or recording is reproduced in a duplicate, and the remainder is needed for some purpose, such as cross-examination. Courts have consistently found that the exception contained in Rule 1003(2) applies when duplicates fail to fully reproduce important or critical parts of an original document or recording.  

Isn't this exactly what Massey was claiming? His argument was that he went outside because a store associate told him that the drink vending machines were located outside and that the original surveillance videos would have shown this interaction. Now, I admit that (the Court of Appeals' characterization of) Massey's argument under Texas Rule of Evidence 1003 was unclear, but it seems clear to me that Massey raised a viable claim that the court unfairly turned aside.

-CM

Not Too Helpful: Fourth Circuit Finds Character Evidence Regarding Helpfulness Was Properly Excluded

Federal Rule of Evidence 404(a)(1) provides that

Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except...[i]n a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if  evidence of  a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 (a)(2),  evidence of the same  trait of character of the accused offered  by the prosecution....

Meanwhile, Federal Rule of Evidence 405 provides that

(a) Reputation or opinion.

In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct.

(b) Specific instances of conduct.

In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

What this means is that while a criminal defendant can use Rule 404(a)(1)'s "mercy rule" to present evidence of a pertinent character trait, he can only prove that trait through opinion and/or reputation testimony unless that trait is an essential element of the charge against him or his defense. And this limitation was a problem for the defendant in United States v. Lecco, 2011 WL 2708416 (4th Cir. 2011).

In Lecco, George Lecco was convicted of one count of conspiracy to distribute cocaine; one count of use of a firearm in furtherance of drug trafficking; two counts of possessing a firearm as a convicted felon; four counts of distribution of cocaine; one count of murder with a firearm during a cocaine conspiracy; one count of witness tampering by killing; one count of witness retaliation by killing; and one count of conspiracy to destroy and conceal evidence. These convictions arose from Lecco's alleged "cocaine distribution and hiring of Patricia Burton and Valeri Friend to murder Carla Collins in retaliation for her telling police that Lecco continued to deal cocaine and carry firearms after agreeing to assist police in their drug investigation."

After he was convicted, Lecco appealed, claiming, inter alia, "that the district court abused its discretion when it excluded evidence of his helpfulness." Specifically, Lecco sought to introduce evidence that he had helped people in his community on several occasions in an attempt to show that he only helped his friends bury Collins after the murder." 

The Fourth Circuit did not even need to address the seeming irrelevance of this evidence because Lecco's character for helpfulness was not an essential element of his defense, i.e., the jury still could have accepted his defense without the evidence. An example of such a case would be a case in which a defendant-blogger called the plaintiff an adulterer and the plaintiff sued the defendant for a defamation. In such a case, the plaintiff's (character for) adultery would be an essential element of the defendant's truth defense because he could not prove the defense without proving that the plaintiff was an adulterer. Conversely, Lecco's character for helpfulness was not an essential element of his defense, which meant that he could only present reputation and/or opinion testimony and not specific act evidence.

-CM