EvidenceProf Blog

The Other Blue Book, Take 2: AZ Court Finds Trial Court Erred In Deeming Blue Book Evidence Inadmissible

Like its federal counterpart, Arizona Rule of Evidence 803(17) provides an exception to the rule against hearsay for 

Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

So, are portions of the Kelley Blue Book admissible under Rule 803(17)? According to the recent opinion of the Court of Appeals of Arizona,Division 1, Department A, in Colvin v. Ameri-National Corp., 2011 WL 4575607 (Ariz.App. Div. 1 2011), the answer is "yes."

In Colvin, Gary Colvin appealed the trial court's entry of summary judgment in favor of Ameri–National Corporation d/b/a Heritage Bank, N.A. on his claims that the Bank caused him damage by failing to immediately provide him cash in exchange for a validly presented cashier's check. According to Colvin, the Bank's failure to provide him with cash precluded him from being able to purchase a Honda at a terrific price.

The trial court precluded Colvin from presenting evidence from the Kelley Blue Book to prove his damages: the difference between the purchase price for the Honda ($13,500) and its Kelley Blue Book value ($24,000). After the trial court entered summary judgment in favor of the bank, Colvin appealed, claiming that the evidence from the Kelley Blue Book was admissible under Arizona Rule of Evidence 803(17).

The Court of Appeals of Arizona,Division 1, Department A, agreed with Colvin, concluding that

Although Arizona courts have not addressed the question, cases from other jurisdictions establish that the Kelley Blue Book falls within this exception. See State v. Dallas, 695 S.E.2d 474, 477 (N.C.Ct.App.2010); State v. Shaw, 86 P.3d 823, 824 (Wash.Ct.App.2004); Neloms v. Empire Fire & Marine Ins. Co., 859 So.2d 225, 232–33 (La.Ct.App.2003); State v. Erickstad, 620 N.W .2d 136, 145, ¶ 32 (N.D.2000) (citing additional cases from other jurisdictions); see also Michael A. Rosenhouse, Annotation, Construction and Application of Uniform Rule of Evidence 803(17), Providing Hearsay Exception for Market Reports, and Commercial Publications, 54 A.L.R.6th 593, § 12 (2010). The Bank has provided no authority to the contrary. Accordingly, discerning no reason to depart from the majority view, we decide the court erred by excluding evidence of the Kelley Blue Book.

Indeed, I previously posted an entry about a court in Maine reaching the same conclusion.

(That said, the court still found that the trial court correctly entered summary judgment in favor of the Bank).

-CM

Reelin' In The Years: NJ Case Reveals The State Has No Counterpart To Rule 609(b)

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.

And, according to the Advisory Committee's Note to the Rule

Although convictions over ten years old generally do not have much probative value, there may be exceptional circumstances under which the conviction substantially bears on the credibility of the witness.

The New Jersey Rules of Evidence, however, do not have a counterpart to Federal Rule of Evidence 609(b); instead, New Jersey Rule of Evidence 609 generally provides that

For the purpose of affecting the credibility of any witness, the witness' conviction of a crime shall be admitted unless excluded by the judge as remote or for other causes. Such conviction may be proved by examination, production of the record thereof, or by other competent evidence.

So, is a 12 year-old conviction too remote under New Jersey Rule of Evidence 609? According to the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Joseph, 2011 WL 4577401 (N.J.Super.A.D. 2011), the answer is "no" (or at least "not necessarily").

In Joseph, Richard Joseph was convicted of second-degree possession of a weapon for unlawful purposes and fourth-degree aggravated assault by pointing a firearm. After he was convicted, Joseph appealed, claiming, inter alia, that the trial court erred by permitting the prosecution to impeach a defense witness through his 12 year-old conviction for mail fraud.

In his appeal, Joseph "relie[d] on the federal analog to N.J.R.E. 609 in advancing the 'ten-year' rule. See Fed.R.Evid. 609(b)." The Superior Court of New Jersey, Appellate Division, rejected this argument, finding that

In contrast to N.J.R.E. 609, the federal analog, Fed.R.Evid. 609(b), expressly prohibits a prosecutor from seeking to impeach a defendant's credibility with evidence of a conviction if "more than ten years has elapsed since the date of the conviction or of the release from confinement imposed for that conviction, whichever is the later date" unless the judge determines that "the probative value of the conviction...substantially outweighs its prejudicial effect." Thus, unlike  Fed.R.Evid. 609(b),...N.J.R.E. 609 contain[s] no benchmark or brightline rule to assist trial judges in making the determination of when a conviction has become so remote that its probative value for impeachment purposes is outweighed by its potential for undue prekudice.

Thus, the court was able to conclude that

the judge did not abuse its discretion in permitting the State to impeach Takacs with his prior conviction for mail fraud. Fraud goes directly to the credibility of the witness. The twelve-year-old conviction was not too remote, as the fraud arose out of an incident in 1995 and he testified in 2007. We reject defendant's argument.

-CM

Defusing Confrontation: Supreme Judicial Court Of Massachusetts Applies Bryant To Find No Confrontation Clause Violation

Back in February, the Supreme Court decided Michigan v. Bryant, its latest Confrontation Clause case decided in the wake of its landmark opinion in Crawford v. Washington, 541 U.S. 36 (2004). Part of what the Court did in Bryant was to flesh out a dichotomy it created in Davis v. Washington, 547 U.S. 813 (2004). In Crawford, the Court in effect held

that the Confrontation Clause of the U.S. Constitution is violated when hearsay is "testimonial," admitted against a criminal defendant, and the hearsay declarant does not testify at the defendant's trial, unless (1) the declarant was unavailable for trial, and (2) the defendant was previously able to cross-examine the declarant. 

Thereafter, in Davis, the Court concluded that

Statements are nontestimonial [and thus nonviolative of the Confrontation Clause] when made in the course of police interrogation under circumstances objectively indicating that the primary purpose  of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. 

In Bryant, the Court thereafter laid out a nonexhaustive list of circumstances to consider when determining whether an ongoing emergency exists, rendering the declarant's statement nontestimonial. So, what will courts do with these factors? The recent opinion of the Supreme Judicial Court of Massachusetts in Commonwealth v. Smith, 2011 Wl 3505497 (Mass. 2011), might provide a pretty good indication.

In Smith, Darrell Smith was convicted of armed robbery, possession of a firearm without a license, as a subsequent offender, and as an armed career criminal, and various other firearm offenses. Smih allegedly robbed Elizabeth Splaine in her car; Mahogany Penn was also in the car. Police later arrived at the scene of the crime and began speaking with Splaine. During this interrogation, Penn emerged from an apartment building and then later returned to the apartment building. One of the officers recognized Splaine from an incident in an apartment at the apartment building that occurred one week earlier. The officers then proceeded to that apartment,

knocked on the door, announced, "Boston Police," and asked if anyone was home; there was no answer. As the officers began to leave the hallway, Penn quickly ran out of the apartment with her hands up. According to the officers, she appeared "visibly shaken," "very nervous" and "frantic." Penn stated, "He has a gun. He's wrapping it in a black sock."

The "he" was Smith, and, at trial, the prosecution introduced Penn's statement despite the fact that she did not testify. The Supreme Judicial Court of Massachusetts later determined in response to Smith's appeal that the statement was admissible under an exception to the rule against hearsay for spontaneous utterances. That left the question of whether the admission of Penn's statement violated the Confrontation Clause.

According to the court, in Michigan v. Bryant, the Supreme Court

enumerated a nonexhaustive list of circumstances to consider when determining whether an emergency exists: (1) whether an armed assailant poses a substantial threat to the public at large,...(2) the type of weapon that has been employed,...(3) the severity of the victim's injuries,...(4) the formality of the interrogation,...and (5) the involved parties' statements and actions....Additional considerations include whether the victim's safety is at substantial imminent risk....

And, according to the court, application of these factors compelled the conclusion that Penn's statement was nontestimonial:

Although the defendant was inside his apartment, the apartment door was open, exposing innocent neighbors to the whims of a gun-wielding suspect....Similarly, it is significant that the weapon at issue was a firearm that could have been used against police with lethal force....Further, the statement was informal and not prompted by police questioning....At the moment Penn emerged from the apartment, the police had already turned to leave, and they reinserted themselves into the situation for the sole purpose of meeting the potential new threat. The officers pulled Penn to safety, drew their weapons, aimed them on the door, called for backup, and prepared for a possible confrontation....Finally, the whereabouts of the suspect were unknown....The police did not know whether he was edging toward the apartment door or edging toward the balcony.

Thus, the court found no Confrontation Clause violation.

-CM

Tough Guise: Court Of Criminal Appeals Of Alabama Seemingly Errs In Rule 607 Appeal

Like its federal counterpart, Alabama Rule of Evidence 607 provides that

The credibility of a witness may be attacked by any party, including the party calling the witness.

That said, Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible. And yet despite citing this principle, the Court of Criminal Appeals of Alabama found no problem with exactly this type of subterfuge in its recent opinion in Trawick v. State, 2011 WL 4511235 (Ala.Crim.App. 2011).

In Trawick, Vincent Martez Trawick was convicted of murder and was given a sentence of 99 years' imprisonment based upon the fatal shooting of Zach "Big Dothan" Severson. After making an oral motion for a judgment of acquittal and filing a motion for a new trial, which were both denied, he appealed.

Part of the basis for his appeal was that the trial court erred by permitting the prosecution to impeach two witnesses for the prosecution through prior inconsistent statements. At trial, Kenya Jackson testified as a witness for the prosecution that he did not see Trawick shoot Severson. Cornelius Garlington later testified and denied that he spoke with law enforcement about Severson's murder and denied that he knew Vincent Trawick and Alex Trawick. After these witnesses made these claims, the prosecution impeached them with statements that they made to law enforcement officials implicating Vincent Trawick in the shooting.

In his appeal, Trawick claimed that this impeachment violated  Alabama Rule of Evidence 607. In response, the Court of Criminal Appeals of Alabama preliminarily noted that Rule 607

authorizes a party to bring against his own witness all weapons from the arsenal of impeachment that historically were reserved generally for opposing witnesses. This power resides in the prosecution in a criminal case, the criminal defense, and any civil party. One may, for example, impeach his own witness by showing that the witness made a statement or performed an act that is inconsistent with the witness' present testimony. Bias-indicating acts or statements could likewise be used for such an attack. Other witnesses may be called to contradict the witness' version of the facts.

It then cautioned, however, that

the government must not knowingly elicit testimony from a witness in order to impeach him with otherwise inadmissible testimony....Impeachment is improper when employed as a guise to present substantive evidence to the jury that would be otherwise inadmissible....A determination must be made as to whether the government examined the witness for the primary purpose of placing before the jury substantive evidence which is otherwise inadmissible....

As this court stated in Burgin, '"'[i]t would be an abuse of the rule...for the prosecution to call a witness that it [knows will] not give it useful evidence, just so it [can] introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence.'" 

That said, the Court of Criminal Appeals of Alabama found that this did not occur in the case before it. According to the court,

Garlington's and Jackson's statements to police were not admissible as substantive evidence, but were only admissible as impeachment evidence to show that Garlington and Jackson were not "worthy of belief."...As this Court stated in Burgin v. State,...the prosecution was not entitled to present Garlington's and Jackson's statements to the jury as evidence that Trawick caused Severson's death. Further, as to Jackson's statement, the trial court instructed the jury that the statement was admitted as a prior inconsistent statement....Later, when the trial court charged the jury before deliberations, it stated: "A prior inconsistent statement of a witness who is not a defendant, although usable for impeachment purposes, cannot be used as substantive evidence of an accused's guilt."...Therefore, this evidence was not admitted as substantive evidence and could not have been considered by the jury as such.

Really? Of course, the evidence was technically not admitted as substantive evidence, but that's not really the point, is it? The point is that the prosecution ostensibly called Jackson and Garlington knowing that they would not implicate Trawick in the shooting just so that it could impeach them through their prior statements and hope that the jury used those statements as substantive evidence of Trawick's guilt. And if that was the case, the trial court erred in deeming this impeachment permissible under Alabama Rule of Evidence 607.

-CM

In Rebuttal: 2nd Circuit Finds Rebuttal Waiver Triggered In American Airlines/Cocaine Case

Federal Rule of Evidence 410 states that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). Thereafter, every court that has addressed the issue has found that a prosecutor can force a defendant to sign a "rebuttal waiver" to get to the plea bargaining table, pursuant to which a the proseuctor can introduce the defendant's statements during plea discussions if the defendant presents any contradictory evidence, testimony, or arguments at trial. But when is such a waiver triggere? That was the question addressed by the recent opinion of the Second Circuit in United States v. Roberts, 2011 WL 4489813 (2nd Cir. 2011).

In Roberts, O'Neal Roberts was convicted of crimes committed while working for American Airlines at John F. Kennedy International Airport, specifically, conspiracy to import and actual importation of five or more kilograms of cocaine and conspiracy and attempt to distribute and possess with intent to distribute the same quantity of cocaine.

Before trial and before plea bargaining, Roberts signed a rebuttal waiver permitting the government to use statements made by Roberts during plea discussions as substantive evidence to "rebut, directly or indirectly, any evidence offered or elicited, or factual assertions made, by or on behalf of [Roberts] at any stage of a criminal prosecution." During plea discussions, Roberts thereafter, inter alia, admitted that he was present during the unloading of the November 5th flight from Barbados in which the cocaine was discovered.

Thereafter, at trial, Roberts did not testify, but defense counsel presented arguments, evidence, and testimony which the Second Circuit found sufficient to trigger the rebuttal waiver and allow for the admission of some of Roberts' statements during plea discussions.

After he was convicted, Roberts appealed, claiming, inter alia, that this decision was erroneous. The Second Circuit disagreed, concluding that

On this record, we identify no merit in Roberts's contention that the district court abused its discretion in finding that his attorney's actions triggered the waiver provision of his proffer agreement. To the extent defense counsel used argument and cross-examination to imply facts contradicted by Roberts's proffer statements, the district court was prepared to address such conduct simply through jury instructions advising that attorney statements were not evidence. Defense counsel, however, went further, insisting that documentary evidence be put before the jury that strongly implied that Beckford could not have been at the gate on November 5 when the Barbados flight was offloaded. Passenger-list documents showed that Beckford's flight from Miami to New York did not land at JFK until 9:38 p.m., while swipe-card records showed, in defense counsel's own characterization, that Beckford "did not swipe into work until November 6th at three minutes after midnight."...Had counsel limited his proffer to the flight information, his argument that the proof impeached only Beckford's testimony that he had been working at JFK on the afternoon of November 5 might have been more convincing. But that representation is undermined by counsel's simultaneous proffer of the swipe-card evidence. Roberts had no reason to offer those documents except to suggest that Beckford did not report for work at JFK until just after midnight on November 6, by which time it would have been too late to witness events occurring more than an hour earlier with respect to the offloading of the Barbados flight. Indeed, in his closing argument to the jury, defense counsel used the documentary evidence to urge just such a factual inference.

-CM

More on the Future of Present Sense Impressions

I previously blogged about the challenges presented to the present sense impression hearsay exception by new methods of electronic communication.  The exception is also under siege on another front – from the increased use of recording devices by police departments.  With the inevitable march of technology, once can imagine a time when everything a police officer observes and says while on duty will be recorded.  Fans of the movie Aliens can think of the space marines who blast their way into the Aliens’ den while feeding live video and audio to a command post (staffed by Paul Reiser!?!).

An inevitable evidentiary issue that arises from such a possibility is what to do with the recorded officer’s own narrative description of the things he or she perceives.  An interesting preview of the courts’ answer can be found in the Texas case of Fischer v. State, 252 S.W.3d 375 (2008).  There, the Texas Court of Criminal Appeals rejected the prosecution’s effort to introduce an officer’s recorded real-time narration of a DWI stop.  Over a vigorous dissent, the Court struggled to explain why the officer’s statements, such as that he smelled “the strong odor of alcoholic beverage” on the suspect’s breath, did not fall within the present sense impression exception.  Id. at 376-77.

Here is the pertinent text of the hearsay exception:

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present sense impression.A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

Reading the thorough opinion, you get the sense that the Court just didn’t like the idea of allowing police officers to generate evidence this way.  The Court explains at one point that, in the context of a DWI stop:  “Calculation and criminal litigation shimmer in the air.”  Id. at 384.  It is hard not to agree with the Court that something seems amiss if a police officer anticipating litigation can consciously generate admissible recorded statements.  Indeed that intuition seems to animate the post-Crawford Confrontation Clause jurisprudence (which not coincidentally will block such police-generated statements offered against a criminal defendant unless the declarant testifies).  But that something seems amiss (or shimmering air) is not that solid a ground for departing from the text of a hearsay rule, and one expects that other courts will disagree with the Texas Court ruling described above.  As police officers (and private citizens) increasingly record themselves and their observations, courts will either have to come up with a better explanation for why such running narratives are not “present sense impressions” or begin allowing them into evidence over a hearsay objection.

- Jeff Bellin

Disinterested: Supreme Court Of New Hampshire Finds Hearsay Error Of Trial Court Harmless In Murder Appeal

Similar to its its federal counterpart, New Hampshire Rule of Evidence 804(b)(3) provides an exception to the rule against hearsay for

A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in this position would not have made the statement unless the person believed it to be true....

As the recent opinion of the Supreme Court of New Hampshire in State v. Garcia, 2011 WL 4397490 (N.H. 2011), makes clear, however, if a trial court improperly precludes a defendant from presenting a statement against interest by another declarant that also implicates the defendant in the crime charged, an appellate court is likely to find harmless error.

In Garcia, Robinson Garcia was convicted of second-degree murder.

The defendant's convictions ar[o]se out of the August 11, 2005 beating of Stephen Raymond in Manchester. After Raymond's death in 2006, the defendant was charged with second-degree murder, in that, acting in concert with Larry Barbosa, he caused the death of Raymond under circumstances manifesting extreme indifference to the value of human life by striking Raymond in the head with a baseball bat. 

At trial, the court precluded Garcia from presenting letters allegedly written by Barbosa which had emboldened words, such as "I hit the dude with the bat," "he seen me with the bat," "I did it" and "he knew I did do this and he knows." The court also precluded Garcia from having a witness testify that Barbosa told her that he hit Raymond with a bat.

After he was convicted, Garcia appealed, claiming, inter alia, that these statements by Barbosa constituted statements against interest under New Hampshire Rule of Evidence 804(b)(3) and that the trialcourt erred in excluding.

The Supreme Court of New Hampshire assumed without deciding that the trial court erred in deeming these statements inadmissible hearsay. This was because the problem for Garcia was that the State's theory of the case was that Garcia handed the bat to Barbosa so that he could hit the victim with it. And because the State presented substantial evidence in support of this theory, any error committed by the trial court in excluding the statements was harmless because their admission would have hurt, not helped, Garcia's defense.

-CM

Waive Goodbye: Alabama Court Of Criminal Appeals Finds Defendant Can Waive Statutory Right To Credit For Time Served

Federal Rule of Evidence 410 states that

Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:

(1) a plea of guilty which was later withdrawn;

(2) a plea of nolo contendere;

(3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or

(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.

However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

That said, in its opinion in United States v. Mezzanatto, 513 U.S. 196 (1995), the Supreme Court held that a defendant can waive the protections of this Rule under certain circumstances and permit the prosecutor to present evidence otherwise excludable under it to impeach the defendant (i.e., an impeachment waiver). So, does this mean that prosecutors can get defendants to waive other rules/protections to get to the plea bargaining table? Could a prosecutor get a defendant to waive the ban on the admission of propensity character evidence to get to the plea bargaining table? The rule against hearsay? The recent opinion of the Alabama Court of Criminal Appeals in Lay v. State, 2011 WL 4511228 (Ala.Crim.App. 2011), implies that the answer is "yes."

In Lay, Steven Lye appealed a circuit court's summary denial of his petition for postconviction relief.

The petition challenged his 2001 convictions for two counts of third-degree robbery...and one count of unlawful possession of a controlled substance,...and the resulting concurrent sentences, as an habitual offender, of life imprisonment for each of the robbery convictions and 15 years' imprisonment for the possession-of-a-controlled-substance conviction. The convictions resulted from guilty pleas entered by Lay pursuant to plea agreements with the State, in which Lay agreed to waive all jail credit in exchange for the State's reducing the charges against him from first-degree robbery to third-degree robbery.

In his appeal, Lye asserted that the statutory right to credit for time spent in pretrial incarceration may not be waived as part of a negotiated plea agreement.

In response, the Alabama Court of Criminal Appeals initially noted that it could locate no Alabama precedent on point. That said, the court then

conclude[d] that, because many other constitutional, statutory, and procedural protections—even some that contain mandatory language—have been found to be waivable, a criminal defendant can waive his right to credit for time spent in incarceration pending trial pursuant to a negotiated plea agreement. For instance, in United States v. Mezzanatto, 513 U.S. 196 (1995), the United States Supreme Court, in holding that a criminal defendant had waived the protections of [Federal Rule of Evidence 410], recognized that a criminal defendant could waive beneficial provisions of federal statutes, procedural and evidentiary rules, and even fundamental constitutional protections...

The court then found further support for its conclusion in the fact that

Although the appellate courts of Alabama have not previously been presented with exactly this question, other states addressing the issue whether credit for jail time can be waived have drawn essentially the same conclusion that we draw in this case.

So, does this mean that a defenant could waive the character evidence rules, the rule against hearsay, etc.? I think that the answer is "yes." Should it be that way? I don't know.

-CM