EvidenceProf Blog

Did You Get My Message: Court Of Appeals Of Ohio Finds No Error W/Admission Of Handwritten Transcripts Of Text Messages Under Rule 803(5)

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

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

So, let's say that the victim and the defendant send e-mails back and forth on the same night that the defendant allegedly committed a burglary and other crimes. And let's say that, in the wake of the crimes charged, the victim handwrote transcripts of the text messages. At trial, can the victim read the transcripts pursuant to Rule 803(5)? According to the recent opinion of the Court of Appeals of Ohio, Eighth District, in State v. Roseberry, 2011 WL 5588725 (Ohio App. 8 Dist. 2011), the answer is "yes."

In Roseberry, the facts were as stated above, with Wayman Roseberry being charged with one count each of aggravated burglary and kidnapping, each containing firearm and forfeiture specifications; one count of having weapons while under disability, with a forfeiture specification; and one count each of burglary, theft, and receiving stolen property. At trial,

The victim, Danielle Adams..., testified that Roseberry was her ex-boyfriend, and that when they were dating, he stayed at her residence every night, kept personal belongings there, and had a house key. In the spring of 2010, they ended their relationship, but Roseberry still visited Adams at her home even though she had taken her key back from him.

The trial court also allowed Adams to read written transcripts that she created from text messages exchanged between Roseberry on the night that he allegedly committed the crime charged:

“Roseberry: Man u did smething ill brak da window.

* *

“Adams: Wht?

“Roseberry: I dnt wnt to brake nothing to get n and u blocked da door so I cant get n

* *

“Adams: So you got my key huh

* *

“Roseberry: OK can u un block da door I dnt have no where to go

“Adams: Y u say u didn't have the key

“Roseberry: Cuz who wnt ti be left n da streets

“Roseberry: Man pease dnt make me do smething I dnt wnt please open dat door

“Roseberry: Man ima get n

“Adams: I hope u aint breakin no window

“Adams: Im at work go wit your best friend, he always got ur bck remember

“Roseberry: I neva said that im tryna get away I don't wnt to do sht stupid so please let me n

“Adams: I said i'm at work

“Roseberry: Ok how do i get in” 

After he was convicted, Adams appealed, claiming "that the trial court abused its discretion in allowing Adams to read her handwritten transcription of the text messages out loud in open court on direct examination." The Court of Appeals of Ohio, Eighth District, disagreed, concluding that

In this case, Adams testified that when she went to the police station, she took her cell phone and wrote down the text messages exchanged between her and Roseberry the night of July 24 through July 25. On direct examination, Adams stated she could not recall the exact content of the messages she received, but when she wrote down the text messages, her recollection of the content of the text messages was fresh in her mind. When presented with the handwritten list, Adams also positively identified it as her transcribed compilation of the text messages exchanged between her and Roseberry. She testified that she knew the text messages were coming from Roseberry's phone because she knew his cell number at the time, although she admitted she currently could not recall the number. Accordingly, the trial court did not abuse its discretion by allowing Adams to read the series of text messages out loud pursuant to Evid.R. 803(5), and the trial court's exclusion of the handwritten compilation as an exhibit was proper.

(That said, the police took photographs of other text messages and admitted them at trial, and the appellate court deemed the admission of these photographs to be reversible error with regard to the burglary conviction).

-CM

Resident Evil?: Colorado Court of Appeals Finds 1st Year Resident Qualified As "Expert Of Medicine"

Similar to its federal counterpart, Colorado Rule of Evidence 702 provides that

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

So, can a first-year resident be qualified as an "expert of medicine" under Rule 702? According to the recent opinion of the Colorado Court of Appeals, Div. I. in People ex rel. Strodtman, 2011 WL 5084951 (Colo.App. 2001), the answer is "yes."

In Strodtman, Joyce A. Strodtman, appealed a magistrate's order authorizing the Denver Health Medical Center, upon the People's petition, to forcibly administer her antipsychotic medications. The magistrate's order was partially based upon the expert testimony of Dr. O'Flaherty, a first-year resident. In her appeal, Strodtman claimed, inter alia, that the magistrate erred by allowing Dr. O'Flaherty to be qualified as an "expert of medicine." 

According to the Colorado Court of Appeals,Div. I., the People sought to qualify Dr. O'Flaherty as an "expert in medicine" because she had not yet been board certified in psychiatry. Strodtman took issue with this decision, "contend[ing] qualification in the general field of medicine violate[d] CRE 702, and thus her due process rights."

In response, the court found that "[a]s an issue of first impression, we must determine whether CRE 702 permits a physician to testify without a specialty, as 'an expert in medicine.'" The court then found that it does. The court held that

Case law from other jurisdictions indicates the generally prevailing rule is that "otherwise qualified physicians or surgeons are not incompetent to testify as experts merely or necessarily because they are not specialists in the particular branch of their profession involved in the case."...

Supporting the adoption of this rule in Colorado is the broad scope of CRE 702 governing the admissibility of expert testimony. Witnesses may be qualified as experts by virtue of their "knowledge, skill, experience, training, or education."...Under this liberal rule, a court may admit expert testimony if the witness can offer "appreciable" assistance on a subject beyond the understanding of an "untrained layman."...Thus, in a particular case, the certification of a resident physician as a general medical expert may be consistent with this rule.

Additionally, an important safeguard offsets any concerns Strodtman may have regarding this liberal construction of CRE 702. If an expert is qualified, the decision-maker determines the weight and the credibility of his or her testimony.

Thus, the court 

conclude[d] that a physician may be qualified as an "expert in medicine" so long as his or her knowledge, skill, experience, training, or education supports the qualification, and he or she is capable of providing specialized knowledge that will assist the decision-maker in determining the issues.

-CM

The Space Between: Judge Takes Judicial Notice Of Google Maps Distance In Mob & Thanksgiving Related Case

Judicial notice is a doctrine of evidence applied by a court that allows the court to recognize and accept the existence of a particular fact commonly known by persons of average intelligence without establishing its existence by admitting evidence in a civil or criminal action. Federal Rule of Evidence 201(b) provides that

A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

So, let's say that a member of a crime family is charged with several crimes, including conspiring to kill a victim. And let's say that the defendant claims that the prosecution erred by failing to disclose to him police reports that contradict testimony given by a key witness for the prosecution regarding exactly where the the victim was on the day of the murder. Can the court take judicial notice of the distance between 2 locations based upon a search on Google Maps? According to the recent opinion of the United States District Court for the Eastern District of New York in United States v. Sessa, 2011 WL 256330 (E.D.N.Y. 2011), the answer is "yes."

In Sessa, the facts were as stated above, with Michael Sessa of the Colombo organized crime family of La Cosa Nostra being the defendant. One alleged intended victim of the crime family was Billy Cutolo, a captain in the Colombo Family aligned with the Orena Faction. Specifically, Sessa and others

planned to murder Cutolo on Thanksgiving Day....[cooperating witness Joseph] Ambrosino testified that he, [Sessa], and [fellow crewmember Larry] Fiorenza "were going to dress up as Hasidic Jews in costumes and murder [Cutolo] in front of his girlfriend's grandmother's home in Brooklyn, [at] 60th Street and 13th Avenue."....As the "neighborhood that [Cutolo] was going to was an Hasidic neighborhood, [[Sessa], Ambrosino and Fiorenza] figured [they] could blend in with the crowd."...[Sessa] instructed Ambrosino to give six hundred dollars to [crewmember Anthony "the Arab"] Sayegh so that he could purchase costumes from a store in Brooklyn, and the costumes were stored at Fiorenza's girlfriend's home, where she testified to seeing them....However, on Thanksgiving morning, a New York Post article implicated [Gregory] Scarpa [a made man of the Colombo family] as a government informant, and fearing that Scarpa "knew about the plan and if he was cooperating he would tell the law what [they] were going to do," [Sessa] called off the murder.  

Sessa, however, apparently did not call off the murder of crewmember Anthony Coluccio. At trial, Ambrosino testified about Coluccio arriving at 13th Avenue and 69th Street at 3:00 p.m., the day that he was murdered, while another witness told police that Coluccio left a McDonalds restaurant at 4th Avenue and 39th Street at 3:30 p.m. on the day of the murder.

The prosecution, however, did not turn over police reports containing this witness' statement. According to Sessa, these reports were material and the prosecution's faulure to disclose them constituted a Brady violation. The Eastern District of New York disagreed, concluding that "[a]s the locations are merely a few miles apart, the minor inconsistencies in timing are not sufficiently material to raise a reasonable probability of a different result had they been introduced at trial."

As support for this proposition, the court noted that the distance between the two locations

was calculated by reference to Google Maps. See http://maps.google.com/maps [last checked January 23, 2011]. A court may take judicial notice of facts that are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. R. 201(b). "Courts commonly use internet mapping tools to take judicial notice of distance and geography." 

=CM

We The Jury, Take 2: Western District Of Pennsylvania Denies Habeas Corpus In Racist Juror/Death Penalty Case

Three years ago, I posted an entry about the case of Roland Steele. I then used Steele's case as the launching point for my article, Dismissed with Prejudice. Here's what I wrote about Steele's case in my article:

After a jury trial in Pennsylvania in 1986, Roland William Steele, an African-American man, was convicted of three counts of first-degree murder and related charges based upon his alleged killings of three Caucasian women. In 1996, he unsuccessfully filed a Post-Conviction Relief Act (PCRA) petition, in which he claimed, inter alia, “that his due process rights and right to a fair and impartial jury were violated by the racial prejudice of one of the jurors.” The basis for Steele’s petition, which the PCRA court deemed inadmissible, was the declaration of a juror, “who stated that race was an issue from the inception of the trial. The juror stated in his declaration that ‘early in the trial one of the other jurors commented on the race of the defendant.’” According to the declaration, the racist juror “‘also noted the race of three victims and stated that, on that basis alone, the defendant was probably guilty.’” The juror additionally alleged that the racist juror’s “‘comments continued at other breaks and he made very racist remarks. First one juror, then two or three more gradually became drawn to his position as the first week wore on.’” Finally, the declaration asserted that the racist juror said during trial that Steele should “‘fry, get the chair or be hung.’”

Devastatingly, the racist juror’s death wish will likely come true because Steele was given three separate death sentences. In 2008, Steele’s appeal from the PCRA court’s ruling finally reached the Supreme Court of Pennsylvania, which found in Commonwealth v. Steele that it could not consider the juror’s declaration. The court noted that under Pennsylvania Rule of Evidence 606(b):

Upon an inquiry into the validity of a verdict,...a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions in reaching a decision upon the verdict or concerning the juror’s mental processes in connection therewith, and a juror’s affidavit or evidence of any statement by the juror about any of these subjects may not be received. However, a juror may testify concerning whether prejudicial facts not of record, and beyond common knowledge and experience, were improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.

According to the Supreme Court of Pennsylvania, this Rule precluded the admission of the juror’s declaration because its exceptions apply only to “outside influences, not statements made by the jurors themselves.”

Recently, Steele filed a petition for writ of habeas corpus with the United States District Court for the Western District of Pennsylvania. So, how did he fare?

Not well. At the evidentiary level, the Western District of Pennsylvania concluded that, pursuant to the rules governing petitions for writs of habeas corpus,

I may not re-examine the Pennsylvania Supreme Court's determination that [the juror]'s testimony was inadmissible to support this claim....For that reason alone, this claim fails.

The court then noted that Steele also claimed that the exclusion of the juror's testimony violated his Sixth Amendment right to an impartial jury:

Steele insists that his Sixth Amendment right to an impartial jury trumps the state court's evidentiary ruling. In support, he relies upon a decision by the U.S. Court of Appeals for the Ninth Circuit, United States v. Henley, 238 F.2d 1111 (9th Cir 2001), and other lower federal court cases which have suggested that the “no impeachment” rule is inapplicable where racial bias is alleged. 

The court, however, quickly dispatched with this argument concluding that

None of the cases cited by Steele represent “clearly established Federal law, as determined by the Supreme Court of the United States[.]”....Moreover, Steele's argument is foreclosed by the Third Circuit Court of Appeals' decision in Williams v. Price, 343 F.3d 223 (3d CIr. 2003). In that case, the court expressly rejected Henley and held that the Pennsylvania Supreme Court did not violate "clearly established Federal law, as determined by the Supreme Court” in refusing to consider a juror's statements under Rule 606(b)'s “no impeachment” rule....Accordingly, there is no merit to this claim and it is denied.

-CM

The Claim: 3rd Circuit Lays Out Principles For Deciding When There's A Claim For Rule 408 Purposes

Federal Rule of Evidence 408 provides that

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and

(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

So, Rule 408 precludes the admission of evidence of, inter alia, settlements negotiations connected to "a claim that was disputed as to validity or amount" when offered for certain purposes. But at what point is there a "claim for Rule 408 purposes. If Dan allegedly breached a contract with Paul and Paul brings a lawsuit against Dan, obviously there is a claim. But what if Paul merely threatens to bring a lawsuit? Or what if Paul intimates that he might sue but doesn't actually threaten litigation? What's the standard for determining whether there is a claim? Well, let's take a look at the recent opinion of the Third Circuit in ECEM European Chemical Marketing B.V. v. Purolite Co., 2011 WL 5517319 (3rd Cir. 2011).

Purolite Co. arose "out of a contractual dispute between ECEM European Chemical Marketing, B.V. ("ECEM") and The Purolite Company ("Purolite") for the sale of an organic compound called styrene monomer." After the district court entered judgment in favor of Purolite, ECEM appealed, claiming, inter alia,

that the District Court abused its discretion by excluding statements the parties made during their email communications between January and June 2005. Specifically, ECEM contend[ed] that because there was no "dispute" between ECEM and Purolite as to the validity or amount of payment due under the 2004 Contract, the District Court erred by excluding the parties' emails. Purolite respond[d] that the Court did not abuse its discretion because, during the early 2005 time frame in question, Purolite put ECEM on notice of a potential "compensation claim" based on ECEM's failure to deliver two styrene shipments in November 2004, and because the parties were negotiating to avoid a breakdown in their business relationship.

In addressing this issue, the Third Circuit found that

Rule 408 applies where there is a "dispute" between parties, or "at least an apparent difference of view...concerning the validity or amount of a claim."...A dispute need not "crystallize to the point of threatened litigation"; a mere difference of opinion will suffice to warrant the exclusion....In determining whether a dispute exists, the facts of each case are critical to a district court's exercise of discretion....Ultimately, when in doubt, the district court should err on the side of excluding compromise negotiations. 

Applying these principles, the Third Circuit found that 

The District Court here did not abuse its discretion by excluding statements made by the parties during their compromise negotiations between January and June 2005. The record reveals that the threat of litigation loomed over the parties as early as December 10, 2004. On that date, Purolite put ECEM on notice by email that if Purolite exhausted its supply of styrene as a result of ECEM's untimely shipment, "a considerable compensation claim [would] be lodged with whoever [was] responsible for the delay."...At a minimum, Purolite's email demonstrates that ECEM was aware that Purolite considered filing a lawsuit to recoup losses it sustained as a result of the late shipments, and that Purolite was serious enough to make its intentions known. In addition, ECEM confirmed the existence of a dispute between the parties when it terminated its deliveries to Purolite, thus showing the failure of negotiations.

-CM

Can I Ask You A Question?: Court Of Special Appeals Of Maryland Approves Jury Questions

A defendant is on trial for first-degree murder. During trial, the judge takes questions from the jury and asks them to jurors. Here are two examples:

To an Eyewitness for the Prosecution

First

THE COURT: And sir, what effect, if any, did the fact that he had cornrows in that photographs have on your determination of whether or not to pick out that photograph?

THE WITNESS: Well, I have to say, of course, it was part of the, the whole picture, but the facial expression, the, it looks like the, the overall body size, just the face in general, the complexion, that taken into account as a whole, including the cornrows is what—

THE COURT: Okay. That was a juror's question.

Second

THE COURT: Sir, when you saw, were you able, saw the shooting, were you able to look directly at the shooter's face?

THE WITNESS: Yes. Yes, sir.

THE COURT: Is that as he ran by you?

THE WITNESS: Well, they were, when he started the shooting and then as he ran by, the, as he ran by was, he wasn't looking at the medic unit, but he was, you know, at a slight angle maybe looking down, but I had a good view of his face. The time when I saw his face fully as closely as it would represent the mug shot was when he came from the left side of Mr. Jones and started shooting, and then started running past us.

THE COURT: All right. That was a juror's question.

Was this proper? According to the recent opinion of the Court of Special Appeals of Maryland in Handy v. State, 2011 WL 5084570 (Md.App. 2011), the answer is "yes."

In Handy, the facts were as stated above. After the jury was seated, the judge gave jurors the following plenary instruction:

Now, there's a split of authority on whether or not you are entitled to ask questions. I'm of the opinion that you are. So if you have any question concerning the testimony while that witness is still in this room, pass me up a note. And if the witness is up from the jury stand, I'll stop him or her if you let me know you've got a question. Say Judge, I got a question, or pass it up and I'll see you passing it up and I'll have [the law clerk] get it. Then I'll read it. If I can't ask it, if there's—because a lot of time questions are very interesting, but they have no legal value, no probative value into the issues that you're going to have to decide.

If it has no probative value, I'm not going to ask it, because if they had asked the same question, I would have sustained an objection and when that happens, the witness can't answer the question. I'm the legal umpire during the course of the trial. I call legal balls and strikes. I'm obliged to do two things during the course of the trial, and—I guess it's three really—and make sure that I explain the law to you in language that allows you to do your job.

After the defendant was convicted, he appealed, claiming, inter alia, that the trial judge erred by asking jury questions. In response, the Court of Special Appeals of Maryland noted several things:

•"The majority of federal courts to address the issue have held that whether to permit juror questioning is a matter of trial court discretion;"

•"The majority of state courts that have considered the question have also held that the practice is left to the sound discretion of the trial court;"

•"A number of journals and law reviews are also in support of permitting questioning from jurors;"

•"In contrast, a few courts have held that juror questioning of witnesses amounts to error or an abuse of discretion;" and

•"[O]f the courts that do allow juror questioning of witnesses, many suggest procedures a trial court should use in such circumstances."

The Court of Special Appeals of Maryland ultimately sided with the authorities giving courts discretion to allow jury questions, finding as follows:

In sum, we find no prohibition of a process by which jurors may post questions to witnesses, albeit under carefully developed, explained, and monitored procedures consistent with Md. Rule 4-326. Ultimately, such a process is within the sound discretion of the trial court, a discretion that is to be carefully exercised. It is paramount that jurors not be permitted to be partisans for either party. While we assign the process to the discretion of the trial court, we caution that juror questioning is a procedure that may be best left to the more complex or protracted litigation, as opposed to garden variety, everyday trials. In reaching that conclusion we do not suggest that some trials are less significant than others; indeed, to the parties there is no such event as “a little case in the circuit court.”

In the exercise of sound discretion, trial courts should develop, and explain, a detailed procedure for juror questioning. At minimum, the court's intent to engage the process should be explained to counsel in advance and allow counsels' comments or concerns. The process should be explained to the seated jury with a caution that questions, if submitted, must be offered while the witness remains on the stand. The court should also explain to the jury that not all questions will be asked and, further, that questions are subject to objection by counsel and must seek only evidence admissible under the rules of evidence. Questions must be shared with counsel before being asked, giving counsel the opportunity to pose objections. When a juror's question is asked, counsel must be afforded the opportunity to ask follow-up questions. Finally, in the exercise of discretion, the court may terminate the process should there be any appearance of impropriety or partisanship. 

-CM

A History Of Violence: 4th Circuit Deems Evidence Of Wife's Alleged Habitual Violence Inadmissible Under Rule 406

Federal Rule of Evidence 406 provides that

Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

So, let's say that a defendant is charged with interstate domestic violence and seeks to present evidence of his wife's habitual violent nature. Would that evidence be admissible under Federal Rule of Evidence 406? According to the recent opinion of the Fourth Circuit in United States v. Hurley, 2011 WL 5588810 (4th Cir. 2011), the answer is "no."

In Hurley, the facts were as stated above with Marvin Hurley being charged with interstate domestic violence, which is a crime if a defendant

cause[d] a spouse, intimate partner, or dating partner to travel in interstate or foreign commerce or to enter or leave Indian country by force, coercion, duress, or fraud, and who, in the course of, as a result of, or to facilitate such conduct or travel, commits or attempts to commit a crime of violence against that spouse, intimate partner, or dating partner[.] dating partner[.]

After he was convicted, Hurley appealed, claiming, inter alia, "that the district court erred by not allowing him to present evidence of his wife's habitual violent nature." In response, the Fourth Circuit initially acknowledged that "[u]nder Rule 406 of the Federal Rules of Evidence, habit evidence may be admissible to prove that the conduct of a person was in conformity with habit or routine practice." But the court then concluded that the district court did not err because "[h]ere, the proffered instances of prior conduct was simply too few and far between to show that Hurley's wife had a habit of reacting violently to a repeated set of circumstances." 

In other words, propensity character evidence is inadmissible under Federal Rule of Evidence 404 to prove an alleged victim's propensity to engage in acts of violence and her likely conformity with that propensity at the time of the crime charged. But when a defendant can present evidence that the alleged victim's responds to a specific set of stimuli with a violent response with sufficient frequency and regularity, the evidence is admissible habit evidence under Rule 406 (e.g., "I always come home lte on Wednesday nights, and she always attacks me when I come home.").

But what about Federal Rule of Evidence 404(a)(2)? That Rule 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:....

(2) Character of alleged victim - In 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....

So, why couldn't Hurley present evidence about his wife's repeated acts of violence under this mercy rule? Well, the mercy rule in Rule 404(a)(2) is subject to Federal Rule of Evidence 405(a), which provides that

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.

But what about that fact that Hurley presumably had knowledge of his wife's past acts of violence and thus ostensibly could have presented them not to prove her violent nature but to prove his reasonable apprehension of her? Apparently, Hurley didn't make this argument.

-CM