EvidenceProf Blog

Spring Break

I will be traveling for the next week or so and won't have any new entries during that time.

Lack Of Immediacy: Court Of Appeals Of North Carolina Finds Statements Were Excited Utterances & Present Sense Impressions

Like their federal counterparts, North Carolina Rules of Evidence 803(1) and (2) provide exceptions to the rule against hearsay for

A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

and

A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

Often both of these exceptions apply in the same case as was the case with the recent opinion of the Court of Appeals of North Carolina in State v. Moore, 2012 WL 698593 (N.C.App. 2012). Or was it?

In Moore, Xavier Moore was convicted of second-degree murder based upon the stabbing death of Keanan Odom. The evidence presented at trial tended to show that the

defendant went to Northgate Mall in Durham on the night of 13 October 2007 with friends. Keanan Odom (Odom) and his girlfriend, Courtnie Scott (Scott), were also at the mall that evening along with some of Odom's friends, including Jamarcus Umstead (Umstead). Scott noticed defendant and informed Odom that he was at the mall too. Odom and his friends then went looking for defendant and as they approached him Umstead hit defendant in the face. Defendant stumbled back and then grabbed Odom and began to fight him. Defendant held onto Odom's jacket and jabbed at his body several times before defendant was wrestled away. After the fight concluded, defendant attempted to leave the mall but was pursued by security and cited for trespass.

Odom, on the other hand, was rushed to the hospital by Scott and later died from his injuries. While at the hospital, Scott spoke to Umstead and learned that he hit defendant because defendant pulled out a knife. Umstead also told Odom's mother that he hit defendant because defendant pulled out a knife. However, Umstead was unavailable to testify at defendant's trial because he died in 2009. Over defendant's objections, Umstead's statements were introduced into evidence.

After Moore was convicted, he appealed, claiming that Umstead's statements were inadmissible hearsay. The Court of Appeals of North Carolina disagreed, finding that the statements qualified as both present sense impressions and excited utterances because

The record demonstrates that Umstead's statement to Scott about defendant having a knife was made a short time after the fight occurred and in which Umstead participated. Further, Umstead's statement to Scott was made spontaneously while he was under the stress of excitement of the fight as well as immediately after learning that Odom had just died as a result of the fight with defendant.

I certainly agree that the statements were excited utterances, but were they present sense impressions? Were they really made immediately after seeing Moore with the knife? The court's opinion doesn't give us an exact timeline, but it seems that a decent amount of time passed between this event and Umstead making his statements at an entirely different location. I think that too much time and distance likely passed for Umstead's statements to qualify as present sense impressions, which, of course, doesn't matter as long as they qualified as excited utterances.

-CM

Death Valley: Court Of Appeals Of South Carolina Finds Statement About Will Inadmissible Under State Of Mind Exception

Similar to its federal counterpart, South Carolina Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

In Estate of Gill ex rel. Grant v. Clemson University Foundation, 2012 WL 720378 (S.C.App. 2012), the Court of Appeals of South Carolina found that a special referee did not err in excluding testimony about a statement made by the drafter  of a will because the statement came one year after the will was executed. But does this decision make sense given the language of Rule 803(3)?

In Estate of Gill, pursuant to Caroline's Gill's estate,

Gill bequeathed $100,000 to Clemson to establish [a] Scholarship. The Will specified that the Scholarship fund "shall be administered by the said legatee [Clemson] by using the income therefrom (but never any of the principal) to provide scholarships at [Clemson] for academically deserving football players." The Will further stated the money was "to be used to defray the expenses of tuition, books, activities, and related living expenses such as room and board." The Estate contend[ed] that to provide a funding mechanism for the Scholarship, Gill specifically designated the Scholarship as the beneficiary of $100,000 contained in an IRA account with Morgan Stanley. The Agreement, implemented almost one year after Gill executed the Will, list[ed] the designated primary beneficiaries as "Clemson University Foundation $100,000 Danny Ford Scholarship Fund" and "Caroline B. Gill Estate." The Estate assert[ed] the gift was structured that way to provide the most tax-efficient method to fund the new endowment created by the Will. Clemson maintain[ed] it [wa]s entitled to both the $100,000 from the Morgan Stanley IRA account and $100,000 from the Will. As such, Clemson requested and received from Morgan Stanley $100,000 from Gill's IRA.

Thereafter,

The Estate filed an amended complaint in probate court on July 13, 2009, seeking a declaratory judgment and a temporary injunction, adding Morgan Stanley as a party. Clemson filed a motion for removal of the matter to circuit court, which the probate court granted. The matter was referred to a special referee by consent order. On November 18, 2009, the Estate filed a second amended complaint, removing the cause of action for a temporary injunction and Morgan Stanley as a party. A non-jury trial was held on November 30, 2009, and the special referee took the matter under advisement. The special referee issued his order on December 15, 2009, finding the Will was unambiguous, and therefore, no extrinsic evidence could be considered to determine Gill's intent. The referee further found the IRA was a non-testamentary asset that passed outside the Will. The Estate filed a motion to reconsider, which was denied.

The Estate thereafter appealed, claiming, inter alia, that the special referee erred by precluding the Estate from presenting the testimony of Gill's personal representatives, J. Louis Grant, whom would have testified that "Gill told him she intended for the IRA designation to fulfill the Clemson bequest created in the Will." The Estate contended that

Grant's testimony should have been admissible to show that "the IRA Beneficiary Designation was part of [Gill's] overall scheme and that the designation was part of the plan to fund the gift expressed in [the] Will" and the "testimony is relevant because it goes to [Gill's intent]."

The Court of Appeals of South Carolina disagreed, concluding that

Grant's testimony related to a statement made by Gill almost a year after she created the Will; therefore, her statement was not made at the time of the making of the Will to show her belief at that time, and the hearsay exception provided in Rule 803(3) does not apply to the testimony. Accordingly, we hold the special referee did not err in prohibiting Grant's proffered testimony because it was not admissible under Rule 803(3), SCRE, as an exception to the hearsay rule.

But was this the correct ruling? Rule 803(3) covers statements concerning a declarant's then existing state of mind "not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will." (emphasis added). Doesn't this mean that Rule 803(3) does cover a statement of memory or belief it relates to the terms of the declarant's will and that Grant's testimony should have been admitted?

-CM

Going Retro: Appellate Court Of Illinois Finds Illinois Rules Of Evidence Apply Retroactively

Similar to its federal counterpart, Illinois Rule of Evidence 409 provides that

In addition to the provisions of section 8–1901 of the Code of Civil Procedure (735 ILCS 5/8–1901), evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

But unlike its federal counterpart, Illinois Rule of Evidence 409 only took effect on January 1, 2011. But does it apply retroactively? That was the question addressed by the recent opinion of the Appellate Court of Illinois, Fourth District, in its recent opinion in Lambert v. Coonrod, 2012 WL 697855 (Ill.App. 4 Dist. 2012).

In Coonrod, Richard Wayne Lambert and Billie Jo Lambert filed a two-count complaint against defendant, Tim Coonrod, to recover damages for injuries sustained by Richard at Coonrod's residence. After the accident at Coonrod's residence, Coonrod made a statement to Billie Jo that he was sorry about the incident and would take care of the expenses. The court found that Coonrod's statement that he was sorry about the incident was admissible but testimony about payment of medical expenses was not.

After the jury found in favor of Coonrod, the plaintiffs appealed, claiming, inter alia, that the trial court erred by excluding evidence of Coonrod's offer to pay medical expenses. In their brief on appeal, the plaintiffs argued that the newly effective Rule 409 did not apply because Richard's accident took place in October 2008 and the first complaint was filed August 2009. The appellate court disagreed, finding that the

plaintiffs offer[ed] no support for their contention. The supreme court stated the rules became effective on January 1, 2011, and nowhere did the court state that they did not apply to cases that were pending but had not yet gone to trial. Moreover, a change in a rule affecting matters of procedure, such as a rule of evidence, and not substantive rights, applies retroactively to pending cases....Rule 409 involves matters of evidence, a procedural issue, and thus the rule applied here since plaintiffs' trial took place after the rule's effective date.

-CM

Copping A Plea: District Of Puerto Rico Finds Prosecutorial Compliance W/Witness Request Didn't Breach Plea Deal

The vast majority of criminal cases in this country are now resolved via plea agreement rather than through a criminal trial. In the typical plea bargaining scenario, the defendant agrees to plead guilty to a certain crime or crimes in exchange for the prosecutor recommending that the judge impose a certain sentence. But to what extent is the prosecutor bound to defend the plea agreement and the recommended sentence in the face of skepticism from the trial judge? That was the question addressed by the recent opinion of the United States District Court for the District of Puerto Rico in its recent opinion in United States v. Sevilla-Oyola, 2012 WL 642467 (D.Puerto Rico 2012).

In Sevilla-Oyola, Carlos Sevilla-Oyola reached a plea agreement with the prosecutor, who then presented that agreement to a judge. The judge then asked the prosecutor to  produce a cooperating witness to testify concerning a murder in which Sevilla-Oyola allegedly played a role. The prosecutor complied, the witness testified, and the judge used this testimony in imposing a higher sentence than the sentence agreed upon by the prosecutor and defense counsel.

After the imposition of sentence, Sevilla-Oyola appealed, claiming, inter alia, that that the government breached the plea agreement because it was "duty bound to defend [it] in all its aspects." The United States District Court for the District of Puerto Rico disagreed, finding that

Among other things, the agreement contains the sentence recommended by the government and warns the Defendant that the court "may impose a harsher or lesser sentence" despite the recommendation, but it remains silent on the topic of the government's response to requests by the court for witnesses or additional facts....By its own terms, the agreement disavows the existence of any "additional promises" not contained within the document and, as such, is a fully integrated agreement....We will not interpret its silence to carry an implicit promise by the government to stymy legitimate requests by this court for relevant information. Defendant got what he bargained for; the government recommended the sentence as it promised and did not breach the agreement.

Interestingly, the court then criticized the way that state courts have conducted plea bargaining, pointing

to a practice observed in state-court criminal prosecutions which, like an epidemic, is infecting federal practice in this district. The volume of criminal litigation in state court is so high that plea agreements are never or rarely ever questioned at the time of sentencing. This is creating a scenario where there is almost absolute certainty that the criminal sentence recommended by the parties is going to govern the disposition of the case. Attorneys set the sentence, the judge endorses it. Some federal practitioners are trying hard to impose that custom in federal court. That practice sets a dangerous precedent for federal court because at the federal level, district judges should strive to carry out honesty in sentencing. A recommendation as to sentencing is precisely that—a recommendation, and we advise the bar not to expect that we will rubber-stamp all kinds of plea-bargained issues and recommendations to finalize criminal cases. Federal judges should, and this judge will, look at the picture in the post-presentence report and decide the final disposition on the merits of the post-presentence report status, in light of the plea agreement. Copying the state practice is an abdication of sentencing responsibility and something we are not ready to do. Exercising full and independent sentencing authority is not grounds for recusal, the same way that exercising our sentencing prerogatives and demanding more from the government does not constitute a breach of the plea agreement. Judges in the federal system can call witnesses and even interrogate them. We are not passive observers.

-CM

What Were You Thinking DNJ Finds Statement By Minor Victim Wasn't Admissible Under State Of Mind Exception

Federal Rule of Evidence 803(3) provides an exception to the rule against hearsay for

A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.

As Rule 803(3) makes clear, this state of mind exception only covers statements indicating the declarant's then-existing state of mind, not statements that reflect the declarant's state of mind at a prior time. This was also made clear in the recent opinion of the United States District Court for the District of New Jersey in Mayfield v. United States, 2012 WL 664806 (D.N.J. 2012).

In Mayfield, Kevin Mayfield was arrested pursuant to a federal criminal complaint, charging him with conspiring to transport minors in interstate commerce with the intent that they engage in prostitution. Thereafter, Mayfield brought an action pursuant to vacate, set aside, or correct his sentence pursuant to 28 USC § 2255.

One of Mayfield's arguments was that he received the ineffective assistance of counsel because his trial attorney did not 

investigate and interview his brother, Darrick Mayfield. In support of his argument, Petitioner submit[ted] an affidavit of Darrick Mayfield, who aver[red] that, if asked, he would have testified that on June 7, 2007, Darrick Mayfield was in the car when Petitioner dropped [one of the alleged victims] J.B. off in Philadelphia, and that after J.B. exited Petitioner's car, she stated, "I am a grown woman, I can take care of myself."

The United States District Court for the District of New Jersey disagreed, finding that

Even if the jury had heard that J.B. told Petitioner that she was a "grown woman" when she was dropped off in Philadelphia, it would not have been relevant to the jury's determination that Petitioner believed that J.B. was a minor at the time that he photographed her, which is the critical point in time. Further, as set forth above, the government presented other evidence which the jury could have concluded that at the time that Petitioner took nude photos of J.B. and posted them on Craig's List, he believed that she was a minor. Petitioner concede[d] that the jury would have been free to weigh the credibility of Darrick Mayfield and find that his testimony was less credible because he is the brother of the Petitioner. 

Moreover, the court found that it was

doubtful these alleged statements made to Darrick Mayfield would have been admitted. First, the alleged statements of J.B. that she was a "grown woman" and "could take care of [her]self" are inadmissible hearsay....That J.B. allegedly said she was "grown" and "could take care of [her]self" after Petitioner took sexually explicit photos of her and after Petitioner posted them on Craig's List could not be offered to show Petitioner's state of mind regarding J.B.'s age at the time he took those photographs and posted them on Craig's List....

-CM

Going Unnoticed: District Of Colorado Finds Exhibit List Is Insufficient Notice Under Rule 609(b)

Federal Rule of Evidence 609(b) states that

This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if:

(1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

(2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.

So, what exactly constitutes reasonable written notice under Rule 609(b)(2)? That was a question referenced by the recent opinion of the United States District Court for the District of Colorado in its recent opinion in Doyle v. Denver Dept. of Human Services, 2012 WL 652673 (D.Colo. 2012).

In Doyle, Celeste Doyle brought an action against the Denver Department of Human Services, alleging employment discrimination. At trial, defense counsel began her cross-examination of Doyle by asking, "Ms. Doyle, you have a felony conviction for passing counterfeit $100 bills at a gambling casino, is this correct?" Doyle counsel immediately objected pursuant to Federal Rule of Evidence 609(b), claiming that the conviction was more than ten years old and that any probative value of the evidence was outweighed by the danger of unfair prejudice. The trial court thereafter sustained the objection, finding both that the defendant t did not give adequate notice of its intent to use Rule 609(b) evidence and that the prejudicial effect of the evidence sought to be elicited substantially outweighed its probative value.

After the jury found for the defendant, Doyle moved for a new trial, claiming, inter alia, that she was denied a fair jury trial due to the tainting of the jury "by the wrongful, deliberate and calculated conduct of Defendant's counsel in violating the provisions of Rule 609." The judge initially found that his ruling was correct:

I found at trial that Defendant did not give actual written notice of its intent to use the Rule 609 evidence, but instead relied on the fact that certain exhibits had been listed relevant to the conviction in the Pretrial Order. I further found that this is not sufficient to constitute notice. In support of that finding, I note that the Tenth Circuit in United States v. McConnel, 464 F.3d 1152, 1161 (10th Cir.2006) held that a notice of intent to use prior convictions is required under Fed.R.Evid, 609(b). Indeed, the advance written notice is required "to allow[] parties to formulate trial strategies based upon a court's preliminary ruling" and to prevent unfair surprise....In the instant case, there was no opportunity for the Court to rule on the admissibility of the evidence before trial or even before the question was posed by defense counsel since no advance written notice of intent to use this evidence was provided. My ruling is further enforced by the fact that Plaintiff's counsel was under the impression that defense counsel had agreed before trial to withdraw those exhibits.

This left the question of whether a new trial was warranted. The court began by acknowledging that any questions defense counsel's conduct raised in the jury's mind about Plaintiff's felony conviction "cannot be discounted", despite the fact that the jury was instructed that they were to not consider the question. That said, the court found, inter alia, that it gave a curative instruction and that there was substantial evidence supporting the jury's determination, so it denied Doyle's motion.

-CM