EvidenceProf Blog

Highway Robbery?: ND Ill Makes 2 Seeming Errors In Deeming Armed Robbery Conviction Inadmissible

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

In its recent opinion in Blackwell v. Kalinowski, 2011 WL 3046320 (N.D. Ill. 2011), the the United States District Court for the Northern District of Illinois made two seeming errors in applying this Rule to a plaintiff's felony armed robbery conviction.

In Kalinowski, (1) Vincent Blackwell brought an action against Andrew Kalinowski, Pawel Ryszka, and the City of Chicago, alleging that Officers Kalinowski and Ryszka falsely arrested him and that the City of Chicago maliciously prosecuted him; and (2) Angela Ford brought a claim against the same defendants, claiming that Officers Kalinowski and Pawel Ryszka unlawfully searched her vehicle. 

After the jury found in favor of Blackwell (but against Ford), the defendants brought a motion for a new trial under Federal Rule of Civil Procedure 50. According to the defendants, the court erred by precluding them from impeaching Blackwell through evidence of his conviction for felony armed robbery in 1998. According to the United States District Court for the Northern District of Illinois,

Blackwell was convicted of felony armed robbery in 1998 and sentenced to ten years in prison. He was released on September 17, 2007, exactly one month before his arrest in this case. Defendants argue that Blackwell's 1998 robbery conviction should have been admitted under Federal Rule of Evidence 609(a)(1), which provides that a prior conviction may be used to attack the credibility of a witness if the conviction is less than ten years old and the crime was punishable by death or more than one year in prison....Under Rule 609(b), evidence of a conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction....Because Blackwell was released in September 2007, his 1998 robbery conviction meets the requirements of Rule 609. However, admission under Rule 609 is subject to Rule 403, which excludes evidence when its potential for unfair prejudice substantially outweighs its probative value....Therefore, we must balance the potential for unfair prejudice against the probative value of the evidence.

Defendants concede that Rule 609 only covers admission of the 1998 robbery conviction for purposes of attacking Blackwell's character for truthfulness. They argue that the probative value of the conviction outweighs the prejudicial effect to Blackwell because Blackwell testified extensively about his church-going habits and diligent care for his sick brother. On its own, we find that the 1998 robbery conviction is simply not probative of the truthfulness of the witness.

The first error made by the court was in holding that "Under Rule 609(b), evidence of a conviction is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction." Not true. Federal Rule of Evidence 609(b) provides that

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than 10 years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

So, evidence of these older convictions is rarely admissible, but it can sometimes be admitted. The second seeming error made by the court was its curt conclusion that the robbery conviction was "simply not probative of the truthfulness of the witness." Not at all? Why? On past occasions, the Northern District of Illinois has found armed robbery convictions to be at least somewhat probative of the credibility of witnesses, see, e.g., Coles v. City of Chicago, 2005 WL 1785326 (N.D. Ill. 2005), and that is the conclusion I have seen by every other court to address the issue.

Now, that's not to say that the court's ultimate conclusion to deem the conviction inadmissible was wrong. In fact, I think that the court's ultimate conclusion was correct. I just don't get some of its reasoning.

-CM 

Say Cheese: Tenth Circuit Finds Subsequent Remedial Measure Evidence Properly Excluded For Irrelevance

Federal Rule of Evidence 407 provides that

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction.  This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment.

But while a party can use evidence of subsequent remedial measures to impeach witnesses, it can only do so if such evidence is relevant, which was a problem for the defendant in Leprino Foods Co. v. Factory Mut. Ins. Co., 2011 WL 3134625 (10th Cir. 2011).

In Leprino, Leprino Foods Company, a Denver-based mozzarella manufacturer, customarily stored its products in third-party warehouses.

In one of these warehouses, flavoring compounds derived from nearby-stored fruit products contaminated a large quantity of cheese. Leprino's "all-risk" insurance policy with Factory Mutual Insurance Company excluded contamination unless it was caused by "other physical damage." When Factory Mutual refused coverage on the basis of the contamination exclusion, Leprino brought suit. A jury determined the contamination was caused by other physical damage and therefore covered by the insurance policy.

Factory Mutual thereafter appealed, claiming, inter alia, that the district court erred by precluding it from impeaching witnesses for Leprino through evidence of a subsequent remedial measure. According to Factory Mutual, these witnesses "claimed that the storage of cheese with high-aroma items like fruit products was 'no problem.'" Thereafter, Factory Mutual sought to impeach these witnesses through evidence that, after the contamination in 2001, Leprino revised its cold-storage guidelines. These 

guidelines show Leprino's cold-storage guidelines originally did not mention odors. A 2001 revision added a requirement that Leprino's products be stored "in an environment free of odors."...A second revision in June 2002 rephrased this requirement to "a rodent free, odor free, warehouse, way [sic] from glass products or other chemicals, materials, or agents that could taint the products." the products."

In addressing this argument, the Tenth Circuit acknowledged that evidence of subsequent remedial measures can be used to impeach witnesses, but it found that the subject evidence was irrelevant. Why? According to the court,

Leprino's witnesses did not characterize undamaged fruit products as "high-aroma" items that would be prohibited by the new guidelines. Rather, they testified the only problem with storing mozzarella near fruit products is a greater risk in the instance of "a major spill or something like that where the material was out of the packaging," but "with proper maintenance and proper guidelines, there's not a problem."...During a major spill or any other situation in which proper maintenance was not followed, the revised guidelines would reduce the risk of damage to Leprino's products. Tellingly, the revised guidelines, if implemented, would have reduced Leprino's loss in the Gress warehouse if the damaged goods were the sole source of the contamination, as Leprino claims. As a result, the new guidelines are not inconsistent with the testimony presented.

-CM

The Bullet & The Damage Done: Court Of Appeals Of Mississippi Finds No Error In Admission Of Dying Declaration Based On Nature Of Wound

Like its federal counterpart, Mississippi Rule of Evidence 804(b)(2) provides an exception to the rule against hearsay

In a prosecution for homicide or in a civil action or proceeding, [for] a statement made by a declarant while believing that his death was imminent, concerning the cause or circumstances of what he believed to be his impending death.

But let's say that a declarant makes a statement relatively soon before dying without being told that his death is imminent or any overt indication that he believes his death to be imminent. Can the court infer such a belief based solely on the nature of the declarant's injuries? According to the recent opinion of the Court of Appeals of Mississippi in Moore v. State, 2011 WL 3066211 (Miss.App. 2011), the answer is "yes."

In Moore, Joshua Moore was convicted of conspiracy to commit armed robbery, six counts of armed robbery, and manslaughter. The evidence adduced at trial indicated that

On the evening of March 18, 2007, Leon Andrews had approximately twelve individuals at his home to shoot dice in Columbia, Mississippi. The gamblers were in the game room, which was a separate building from Andrews's house. At approximately 10:15 p.m., two men with dark stockings over their heads burst into the game room. One of the men said "stop playing," raised a gun, and fired it. Everyone was ordered to get on the floor. The two men demanded everyone's money or they would kill someone. The gamblers put their money on or near a pool table in the room. At least two other shots were fired during the robbery. Before leaving, the two robbers forced the gamblers to remove their clothes. Once the robbers left, most of the gamblers quickly exited the game room, leaving through the window or door. At some point during the robbery, Flowers was shot; later he was pronounced dead at the hospital. Several individuals at the dice game identified the two robbers as Moore and Carlos Varnado.

Moreover, at trial, a witness testified 

that during the incident, but after several shots had been fired and everybody had gotten down on the floor, Flowers told him: "One of those boys just shot me." Defense counsel promptly moved for a mistrial because the deceased Flowers could not be cross-examined. The trial judge denied the motion.

After he was convicted, Moore appealed, claiming that Flowers' statement was improperly admitted. The Court of Appeals of Mississippi disagreed, finding that the statement qualified as a dying declaration under Mississippi Rule of Evidence 804(b)(2). According to the court, while there was no explicit evidence indicating that Moore believed his death to be imminent at the time that he made the statement,

it can be inferred from the situation that at the time Flowers made the statement to Holmes, Flowers knew of his impending death and had no hope of recovery even if he did not specifically declare it. As Dr. Hayne testified, Flowers had been shot through the heart, and the bullet was lodged in his lung cavity. He was profusely bleeding internally, and while he might not have passed away immediately after being shot, he did shortly thereafter. One of the officers that first responded to the dispatch call stated Flowers was lying on his back on the floor in the game room, and he did not appear conscious. Another officer testified that Flowers was pronounced dead upon his arrival at the hospital. We find because of the circumstances surrounding Flowers's shooting, the trial court did not err in admitting Holmes's testimony about Flowers's dying declaration.

-CM

Not Surprising: Court Of Appeals Of Ohio Reverses Conviction Based On Prosecution's Improper Impeachment Of Own Witness

Ohio Rule of Evidence 607(A) provides in relevant part that

The credibility of a witness may be attacked by any party except that the credibility of a witness may be attacked by the party calling the witness by means of a prior inconsistent statement only upon a showing of surprise and affirmative damage.

And because the prosecution impeached its own witness through a prior inconsistent without a showing of surprise and affirmative damage in State v. Holloway, 2011 WL 2899596 (Ohio App. 8 Dist. 2011), the Court of Appeals of Ohio, Eighth District, had to reverse the defendant's conviction.

In Holloway, Reginald Holloway and Stephanie Webb were involved in multiple domestic disputes. 

The following day,...Webb went to Holloway's home and when she walked in the door, he grabbed her. Webb testified that Holloway was mad at her because he had a black eye and the detective was there the day before. After asking her why she called the police, he ordered her to look at him, and then he slapped her in the face. He then tripped her and she fell to the ground, where he continued to slap her and scratch her face. After five to fifteen minutes, she got up without any restraint, and left his house. According to Webb, she was able to leave freely and at no time did Holloway prevent her from leaving. After leaving Holloway's home, she called the police.

After Webb testified at Holloway's trial for kidnapping, intimidation, and domestic violence,

The trial court, over objection, allowed Webb to read her written statement in open court as part of her direct testimony. Her statement provided that Holloway slapped, punched, and dragged her across the room, where he then sat on her, continued to slap her, and refused to let her up. According to her statement, had Holloway's cousin not intervened, she would not have been able to leave. Further, when she was able to leave, Holloway chased her and tried to drag her down the street.

After Holloway was convicted, he appealed, claiming, inter alia, that the trial court improperly allowed for the admission of Webb's prior written statement. The State countered that it properly impeached Webb with the statement, a prior inconsistent statement, under Ohio Rule of Evidence 607(A). The Court of Appeals of Ohio, Eighth District, disagreed, concluding that 

The statement was not admissible pursuant to Evid.R. 607, because there was no showing of surprise and affirmative damage that Webb's testimony was inconsistent with her written statement. Moreover, even if Webb's testimony were considered inconsistent, the proper foundation was not made prior to her reading her statement.

-CM

D.C. Follies: D.C. Court Errs In Analysis Of (In)Admissibility Of Plaintiff's Conviction For Distributing A Controlled Substance

Federal Rule of Evidence 609(a)(1) provides that

For the purpose of attacking the character for truthfulness of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused....

Sometimes, courts apply Rule 609(a)(1) correctly. Other times, they badly botch the analysis as was the case with the United States District Court for the District of Columbia in its recent opinion in Jennings v. Thompson, 2011 WL 2976936 (D.D.C. 2011).

In Thompson, Lolita Bobbitt

was the tenant at the premises and the plaintiff was her guest for a Labor Day cookout....On the afternoon of Monday, September 1, 2008, while at the premises, the plaintiff lowered a trash bag to the backyard below the second floor rear balcony....As he did so, the balcony's metal railing broke free and plaintiff fell to the ground approximately ten feet below....The plaintiff suffered multiple fractures to his left wrist that required surgery, and he claim[ed] to be left with a permanent and painful injury that requires additional surgery.

Approximately one month before the incident, on August 5, 2008, a D.C. Building Inspector had inspected the premises and found, inter alia, that the handrail for the balcony at the rear of the premises was not secure....The defendant claim[ed] that she hired a contractor to repair the balcony handrail prior to plaintiff's fall and expected the repair work to be completed by September 3, 2008.

After the fall, the plaintiff brought an action against the defendant, claiming that she "was negligent in allowing a dangerous condition to exist for an unreasonable period of time, without providing a warning of the danger, and that this negligence was the proximate cause of his fall." 

Before trial, the defendant brought a motion in limine "to allow the introduction of evidence of an arrest and criminal conviction of the plaintiff for distributing a controlled substance." The United States District Court for the District of Columbia, however, denied the motion, finding

that evidence of the plaintiff's August 2009 arrest and January 2011 conviction is not directly relevant to or probative of any claims at issue and that associating the plaintiff with serious drug trafficking activity would be highly prejudicial. This civil lawsuit involves a tort claim related to the plaintiff's fall from an allegedly defective balcony railing in September 2008. Since this alleged tort occurred almost a full year prior to the plaintiff's narcotics arrest and over two years prior to his conviction, the arrest and conviction are not directly probative of any issues relating to liability for the tort, especially since the defendant has made no allegation that the plaintiff was under the influence of any drugs or alcohol at the time of the fall from the balcony.

Moreover, the court rejected the defendant's citation to United States v. Ortiz, in which the Second Circuit found that the district court did not err in allowing the prosecution to impeach a defendant charged with selling cocaine through evidence of his prior conviction for selling heroin. According to the United States District Court for the District of Columbia, Ortiz was not analogous because

Ortiz involved a criminal prosecution for "distributing cocaine, possessing cocaine with intent to distribute it, and conspiring to distribute."...In that context, evidence of a prior conviction for selling heroin would plainly be more relevant than in this civil negligence action involving a fall from a balcony railing.

Simply put, the analysis of the United States District Court for the District of Columbia in Thompson is dead wrong. Jurors are supposed to use impeachment evidence as evidence that a witness is untrustworthy on the witness stand. They are not supposed to impeachment evidence as propensity character evidence, i.e., to prove, "Once a drug dealer, always a drug dealer." Thus, the similarity of the the prior conviction in Ortiz and the charges against Ortiz did not increase the probative value of the prior conviction; instead, the similarity merely made the prior conviction more prejudicial. And the dissimilarity of the plaintiff's conviction in Thompson and the nature of his lawsuit did not decrease the probative value of the conviction; instead, the dissimilarity made the conviction less prejudicial.

-CM 

Call The Police: Eastern District Of Pennsylvania Finds Testimony From Police Expert Inadmissible Under Rule 704(a)

Federal Rule of Evidence 704(a) states that

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.

But while witnesses can embrace ultimate issues in their testimony, they cannot feed ultimate legal conclusions to jurors. And this limitation was a problem for the plaintiff in the recent opinion of the United States District Court for the Eastern District of Pennsylvania in Quagliarello v. Dewees, 2011 WL 2937396 (E.D.Pa. 2011) 

Dewees, arose 

out of an incident that occurred on the morning of January 29, 2009, when Plaintiff Julia Quagliarello ("Plaintiff"), then an 18–year–old student, was driving to Widener University...The Complaint allege[d] that Plaintiff made a left-hand turn from East 22nd Street onto Melrose Avenue and drove approximately four to six blocks when she saw a police vehicle with flashing lights behind her....Plaintiff pulled over her vehicle at the intersection of East 14th Street and Melrose Avenues....Chester Police Officer Joshua Dewees ("Officer Dewees") exited the police vehicle with gun drawn, ordered Plaintiff to get out of the car, and Plaintiff complied. Compl....Officer Dewees forcibly handcuffed Plaintiff and took her to the Chester Police Department, where she was charged with fleeing or attempting to elude a police officer and disorderly conduct, and held for three hours....Following a hearing on July 8, 2009 in the Court of Common Pleas, Delaware County, all charges against Plaintiff were withdrawn.

Quagliarello thereafter brought an action against Officer Dewees and the City of Chester, alleging violation of her Fourth Amendment right to be secure in one's person; false arrest and false imprisonment; deprivation of Fourth and Fourteenth Amendment Rights; negligent failure to train and supervise; assault and battery; malicious prosecution; and intentional infliction of emotional distress.

Before trial, the defendants brought a motion in limine, seeking to preclude Quagliarello from presenting certain opinion testimony by a police expert:

These opinions include[d] whether the police had probable cause to stop and arrest Plaintiff, whether the police used unreasonable and unnecessary force, whether Officer Dewees acted in a reasonable or necessary manner, whether the City of Chester was indifferent to Plaintiff, and whether Plaintiff's actions were a "public annoyance." 

In granting the motion, the Eastern District of Pennsylvania concluded that

Federal Rule of Evidence 704(a) provides that, in general, "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." "Rule 704 of the Federal Rules of Evidence 'provides that opinion testimony is not objectionable because it embraces an ultimate issue to be decided.'"...However, such testimony can be excluded if it is not "otherwise admissible."...As the Rules Advisory Committee explained, "[t]he abolition of the ultimate issue rule does not lower the bars so as to admit all opinions," because the expert testimony must be helpful to the trier of fact and not waste time pursuant to Rules 701, 702, and 403....Collectively these rules of evidence "afford ample assurances against the admission of opinions which would merely tell the jury what result to reach," and require the court to "exclude opinions phrased in terms of inadequately explored legal criteria."...An expert's "opinion on a question of law" is not admissible.

-CM

In Plain Sight? Colorado Court Fins Probation Records Qualify For Admission Under Public Records Exception To Hearsay Rule

Like its federal counterpart, Colorado Rule of Evidence 803(8)(B) provides an exception to the rule against hearsay

Unless the sources of information or other circumstances indicate lack of trustworthiness, [for] records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth...matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel....

So, are probation records admissible under Rule 803(8)(B) or inadmissible under its criminal case restriction? According to the recent opinion of the Colorado Court of Appeals in People v. Gregg, 2011 WL 2899622 (Colo.App. 2011), they are admissible. But was the court correct that the plain language of the Rule compels this conclusion?

In Gregg, William Allen Gregg was convicted of three counts of aggravated robbery and adjudicated as a habitual criminal. At trial to establish that Gregg was a habitual offender,

the prosecution presented the testimony of defendant's former probation officer and the documents she had received from California regarding defendant's conviction there....

The probation officer...testified that when she receives a request through the interstate compact, it includes a set of documents, which usually includes a request for supervision, a request for residence check, sentencing information from the state, presentence reports, complaints, and the court order requiring probation.

The probation officer identified the documents that she had received through the interstate compact regarding defendant's California conviction, and she testified that the probation department keeps them in the normal course of business and used them to supervise defendant's probation.

The documents included an "Order Granting Probation" from the Superior Court of California, County of Lake, filed on May 2, 2000, suspending defendant's sentence for "felony-burglary second degree" pending his completion of three years probation. The order states that the felony conviction resulted from defendant's guilty plea. The documents also included a California probation officer's report and recommendation, which identified defendant by his full name, date of birth, and Social Security number.

After he was convicted, Gregg, inter alia, appealed his adjudication as a habitual offender, claiming that the California documents were inadmissible hearsay. The Colorado Court of Appeals disagreed, first noting that "[a]s a general rule, the proponent of admitting a public record into evidence as an exception to the hearsay rule is not required to provide foundation testimony about the way in which the public record was generated or maintained" and that Gregg did "not allege that the authenticated probation order [wa]s factually inaccurate, and [that] there [wa]s no reason to believe that the source of the information, the Superior Court of Lake County, California, lacked trustworthiness or had any motive to falsify the order." Therefore, the court concluded that

the authenticated probation order is admissible under the CRE 803(8)(B) public records exception to the hearsay rule if the order sets forth matters the court observed "pursuant to duty imposed by law as to which matters there was a duty to report." "It is undisputed that sentencing a defendant is a duty imposed on the courts by law."...Under the plain language of the public records exception, the order is admissible. (emphasis added).

I have emphasized the last sentence in the court's opinion because I don't think it is correct. As noted, Colorado Rule of Evidence 803(8)(B) provides an exception to the rule against hearsay for public records

setting forth matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel....

Well, don't probation orders set forth matters observed by law enforcement personnel? Now, many courts have found that public records setting forth "routine and unambiguous matters" do not fall under the exception to Rule 803(8)(B), see, e.g., United States v. Weiland, 420 F.3d 1062 (9th Cir. 2005), and this is seemingly what the Court of Appeals of Colorado did. But to say that the plain language of Rule 803(8)(B) allows for the admission of such records seems to me to be a misstatement of the law.

-CM