Thursday, December 27, 2012
Dead Man Talking: Court of Appeals of Michigan Finds No Problem With Forfeiture by Wrongdoing Jury Instruction
I've written a good deal recently about the doctrine of forfeiture by wrongdoing. My main focus has been upon whether there is a transferred intent doctrine of forfeiture by wrongdoing, i.e., whether forfeiture applies when a defendant on trial for murdering a prospective witness killed that prospective witness to prevent him from testifying at some other trial (e.g., a robbery trial). The recent opinion of the Court of Appeals of Michigan in People v. Cooley, 2012 WL 6633989 (Mich.App. 2012), however, addressed a different question relating to the doctrine of forfeiture by wrongdoing, albeit one that raises an interesting question connected to transferred intent.
In Cooley, Darnell Cooley entered a conditional no contest plea to charges of attempted manslaughter. Anthony Allis was to be a witness against Cooley at his trial on these charges, but he died before such a trial could occur. The trial judge determined by a preponderance of the evidence that Cooley intentionally procured the unavailability of Allis by killing him or arranging his death (the court's opinion is unclear on who allegedly killed Allis).
Cooley thus entered the conditional no contest plea,with Cooley being allowed to withdraw that plea if the Court of Appeals of Michigan found that the trial judge erred in applying the doctrine of forfeiture by wrongdoing. Part of the trial judge's application of the doctrine was the proposed instruction that he told Cooley that he would give if the case proceeded to trial. That instruction would have informed the jury:
Two witnesses for the prosecution are unavailable for trial. Anthony [A]lls was the victim of a homicide and the [c]ourt has ruled that his statements are admissible through...other evidence.
You may not speculate as to the circumstances surrounding his death or consider it any way [sic] or any purpose in rendering your verdict.
The Court of Appeals of Michigan concluded that
Defendant has failed to show that the trial court erred in deciding to give a jury instruction that Alls's unavailability was due to his homicide. The prosecution was permitted to give an explanation to the trier of fact regarding why Alls was unavailable....Additionally, the jury instruction directed the jurors not to speculate regarding the circumstances surrounding his death or consider it for the purpose of rendering a verdict. Thus, that instruction would have cured any possible prejudice toward defendant, as jurors are presumed to follow the court's instruction.
Do you agree? Personally, I don't know. Would it have been sufficient for the instruction to say that Allis was unavailable? Would it have been sufficient to say that Allis had passed away? Or would it have been sufficient to say that Allis had been killed without calling the killing a homicide? Again, I'm not yet sure how I feel about the issue.
As I said, though, the question in Cooley raises an interesting question with regard to the transferred intent doctrine of forfeiture by wrongdoing. Let's say that Cooley is later prosecuted for murdering Allis. And let's say that the prosecution wants to introduce Allis' statements under the doctrine of forfeiture by wrongdoing? If the court deems the statements admissible, what type of instruction should the judge give? Wouldn't an instruction that Allis was the victim of a homicide feed the jury the answer to the guilt/innocence question before it?