February 11, 2012
It's My Space, That's Why They Call It MySpace, Take 7: Court Of Criminal Appeals Of Texas Upholds Authentication Ruling
Back in October 2010, I posted an entry about the Court of Special Appeals of Maryland finding in Griffin v. State, 2010 WL 2105801 (Md.App. 2010), that the prosecution properly authenticated a MySpace page as one belonging to the defendant's girlfriend pursuant to distinctive characteristics under Maryland Rule of Evidence 5-901(b)(4). Then, last May, I posted an entry about the opinion of the Court of Appeals of Maryland (the state's supreme court), in Griffin v. State, 2011 WL 1586683 (Md. 2011), in which the court reversed the Court of Special Appeals and found that distinctive characteristics were insufficient to authenticate the MySpace page. Recently, in Tienda v. State, 2012 WL 385381 (Tex.Crim.App. 2012), the Court of Criminal Appeals of Texas reviewed a ruling in which a court relied solely upon the opinion of the Court of Special Appeals of Maryand in Griffin to find that a MySpace page was properly authenticated. SO, how did the court rule?In Tienda, Ronnie Tienda, Jr. was convicted of murder based upon the killing of David Valadez.
During preparation of the State's case against the appellant, the deceased's sister, Priscilla Palomo, provided the State with information regarding three MySpace profile pages that she believed the appellant was responsible for registering and maintaining. After subpoenaing MySpace.com for the general “Subscriber Report” associated with each profile account, the State printed out images of each profile page directly from the MySpace.com website, and then marked the profile pages and related content as State's exhibits for trial. The State used Palomo as the sponsoring witness for these MySpace accounts at guilt/innocence, and, over the appellant's running objection as to the authenticity of the profile pages, the State was permitted to admit into evidence the names and account information associated with the profiles, photos posted on the profiles, comments and instant messages linked to the accounts, and two music links posted to the profile pages....
The main profile pages of the MySpace accounts contained quotes boasting “You aint BLASTIN You aint Lastin” and “I live to stay fresh!! I kill to stay rich!!” Under the heading “RIP David Valadez” was a link to a song that was played by Valadez's cousin at Valadez's funeral. Another music link posted to one of the profiles was a song titled “I Still Kill.” The instant messages exchanged between the account holder and other unidentified MySpace users included specific references to other passengers present during the shooting, circumstances surrounding the shooting, and details about the State's investigation following the shooting. The author of the messages made specific threats to those who had been “snitchin” and “dont run shit but they mouth,” assigning blame to others for being the “only reason im on lock down and have this shit on my back.” The author also generally boasted to another user that “WUT GOES AROUND COMES AROUND” and “U KNO HOW WE DO, WE DON'T CHASE EM WE REPALCE EM.” The author accused: “EVERYONE WUZ BUSTIN AND THEY ONLY TOLD ON ME.” Several of the instant messages also complained about the author's electronic monitor, which was a condition of the appellant's house arrest while awaiting trial.
After he was convicted, Tienda appealed, claiming, inter alia, that the MySpace page was not properly authenticated, but the Court of Appeals of Texas disagreed, finding that the prosecution properly authenticated the page as one belonging to Tienda under Texas Rule of Evidence 901(b)(4). As the sole support for this conclusion, the Court of Appeals cited to the opinion of the Court of Special Appeals of Maryland in Griffin.
In addressing Tienda's appeal, the Court of Criminal Appeals of Texas recognized that Griffin had been reversed but still found that the trial court acted correctly. The court cited to a laundry list of distinctive characteristics contained in the MySpace account and found that
This combination of facts—(1) the numerous photographs of the appellant with his unique arm, body, and neck tattoos, as well as his distinctive eyeglasses and earring; (2) the reference to David Valadez's death and the music from his funeral; (3) the references to the appellant's “Tango Blast” gang; and (4) the messages referring to (a) a shooting at “Rumors” with “Nu–Nu,” (b) Hector as a “snitch,” and (c) the user having been on a monitor for a year (coupled with the photograph of the appellant lounging in a chair displaying an ankle monitor) sent from the MySpace pages of “ron Mr. T” or “MR. SMILEY FACE” whose email address is “ronnietiendajr@”—is sufficient to support a finding by a rational jury that the MySpace pages that the State offered into evidence were created by the appellant. This is ample circumstantial evidence—taken as a whole with all of the individual, particular details considered in combination—to support a finding that the MySpace pages belonged to the appellant and that he created and maintained them.
February 10, 2012
The Oh In Ohio: Court Of Appeals Of Ohio Finds Improper Admission Of Learned Treatise As Exhibit Was Harmless Error
Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits.
I'm inclined to believe that, as with a recorded recollection under Rule 803(5), an appellate court is unlikely to reverse based upon a trial court correctly allowing for the admission of a learned treatise but incorrectly allowing for admission of a learned treatise as an exhibit. And that inclination is born out in the recent opinion of the Court of Appeals of Ohio, Tenth District, in Bradley v. Ohio Dept. of Transp., 2012 WL 385636 (Ohio App. 10 Dist. 2012).
In Bradley, Laura M. Bradley, appealed a judgment of the Franklin County Court of Common Pleas in favor of the Ohio Department of Transportation ("ODOT" and Marsha P. Ryan, Administrator of the Bureau of Workers' Compensation ("BWC"), in connection with her claim for workers' compensation for reflex sympathetic dystrophy of the right foot. According to Bradley, this dystrophy came as a result of her employment with ODOT.
In her appeal, Bradley claimed, inter alia, that the court of common pleas "erred in admitting into evidence section 16.5e of Guides to the Evaluation of Permanent Impairment, entitled “Complex Regional Pain Syndromes (CRPS), Reflex Sympathetic Dystrophy (CRPS I), and Causalgia (CRPS II). The Court of Appeals of Ohio, Tenth District agreed, finding that while the guides were admissible as learned treatises under Ohio Rule of Evidence 803(18), they were inadmissible as exhibits under the plain language of the Rule. That said, the court ultimately
conclude[d] that the erroneous admission of the text did not materially prejudice Bradley. In its findings of fact and conclusions of law, the trial court did not refer to or rely on any portion of the text that Steiman had not discussed and explained in his testimony. Consequently, the judgment did not result from a misinterpretation or misapplication of technical information in the text. As the danger that independent analysis poses did not arise, the admission of the text itself amounted to only harmless error.
February 9, 2012
No Bull: Court Of Appeals Of North Carolina Finds No Rule 612 Error In Dog Larceny Appeal
Similar to its federal counterpart, North Carolina Rule of Evidence 612 allows an attorney to refresh a witness' recollection through a "writing." If this works, the witness may now testify based upon his refreshed recollection but may not red the "writing" to the jury. In State v. Harrison, 2012 WL 387844 (N.C.App.), the defendant appealed his conviction for larceny of a dog, claiming, inter alia, that the trial court erred by allowing a witness for the prosecution to read her prior statement to the jury pursuant to Rule 612. So, he won right? Well, not exactly.
In Harrison, Lavorace Harrison was convicted of larceny of dog after he allegedly stole aone-year-old white pit bull with a brown patch over his eye. Harrison was convicted in large part due to the testimony of Kristyn Stanco, who was friends with Harrison and also braided his hair. After Harrison was arrested, Stanco gave the following statement to an investigator:
On 02–04–09, Lavorace Harrison came to my house and was talking to me [,] Charleston, and Travis. Lavorace said that the police came and talked to him about stolen dogs and speakers. Lavorace then said that the police asked him about a blue pitt [sic] bull and Judy's white pitt [sic] bull with a brown patch. Lavorace then said that they will never find those dogs because I had pictures of them on my phone but I erased them and I also took them to Rocky Mount where they will never look. Lavorace then said that Buck Wheless helped them get Judy's dog the night it was stolen. Lavorace then stated that Buck then went back and broke into Judy's property after he helped them get the white pitt [sic] bull. I saw the pictures of the dogs in Lavorace's phone. He had four pictures of the blue pitt [sic] bull and 2 pictures of Judy's white pitt [ sic ] bull with the brown patch on his left eye.
At trial, Stanco took the witness stand and indicated that she lacked complete recollection of her encounter with Harrison. Thereafter, the prosecutor showed her the above written statement. As noted, in his appeal, Harrison claimed that the court then improperly allowed Stanco to read this prior statement to the jury.
But according to the Court of Appeals of North Carolina, that's not what happened. Instead, the court found that
Stanco had an independent recollection of her conversation with defendant as well as of making her statement to the investigator. When asked, she affirmed that her recollection had been refreshed. She then testified from memory, and that testimony included some details that were not contained in the statement, such as braiding defendant's hair and seeing defendant erase the photos of the dogs from his phone. Her testimony shows that she was not using her prior statement as a testimonial crutch for something beyond her recall. Accordingly, the trial court properly allowed Stanco to use her statement to refresh her recollection....
February 8, 2012
Going Unnoticed: Sixth Circuit Refuses To Take Judicial Notice In Door-To-Door Canvassing Case
Federal Rule of Evidence 201(b) provides that
The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
So, let's say that a public interest group files a § 1983 action challenging the constitutionality of an ordinance passed in a suburb of Dayton banning all door-to-door canvassing and soliciting between 6 P.M. and 9 A.M. Can the court take judicial notice
-that like many metropolitan areas in the United States, Dayton and its surroundings face difficult, if not severe, economic times; and/or
-of the transformation of American society since 1943 to conclude, as the City urges, that the safety of Englewood's residents depends upon prohibiting door-to-door canvassing after 6 P.M.?
Well, let's take a look at the recent opinion of the Sixth Circuit in Ohio Citizen Action v. City of Englewood, 2012 WL 310816 (6th Cir. 2012).In Ohio Citizen Action, the facts were as stated above, with Ohio Citizen Action claiming that the ordinance was overbroad and thus facially invalid under the First Amendment because it proscribed "a 'substantial' amount of constitutionally protected speech...."
In response, the City of Englewood responded, inter alia,
that the 6 P.M. curfew simply reflects both the "harsh realities" of modern existence and how different America is today compared to 1943, when the Supreme Court observed that "[f]or centuries it has been a common practice in this and other countries for persons not specifically invited to go from home to home and knock on doors or ring doorbells to communicate ideas to the occupants or to invite them to political, religious, or other kinds of public meetings."....Englewood note[d] that the population of the United States has more than doubled since these words were written, and that crime rates have risen at an even greater pace. The period since 1943 has also seen the advent of computers, satellite television, cell phones, and other technologies that have revolutionized human interactions; indeed, Englewood point[ed] out, OCA itself uses the internet and email to communicate with its members.
Accordingly, the City of Englewood asked the court
to take judicial notice of "the fearful times we live in... the unprecedented and difficult economic times facing the geographic region where Englewood is located," and of the fact that "door-to-door communications are no longer a centerpiece of communications in this country."
In response, the court first found that
we may certainly take judicial notice that like many metropolitan areas in the United States, Dayton and its surroundings face difficult, if not severe, economic times.
That said, the court then concluded that
we cannot simply take judicial notice of the transformation of American society since 1943 to conclude, as the City urges, that the safety of Englewood's residents depends upon prohibiting door-to-door canvassing after 6 P.M. To do so would "turn [judicial notice] into a pretext for dispensing with a trial."
February 7, 2012
Evidence: Rape Shield Rule Now Available For Free As Part Of The eLangdell Project
Recently, I've been working on some chapters for the eLangdell Project. The first of these chapters, covering the Rape Shield Rule, is now available here. You can download a PDF, Word, Kindle, or iPad version for free, and professors can access a teacher's manual from the website. You can also purchase hardcover and paperback versions of the chapter.
Parental Warning: Court Of Criminal Appeals Of Tennessee Finds Parents' Statements Not Covered Under Rule 803(4)
Statements made for purposes of medical diagnosis and treatment describing medical history; past or present symptoms, pain, or sensations; or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis and treatment.
So, let's say that a child victim is allegedly molested by the defendant. And let's say that the alleged victim's parents, but not the alleged victim herself, then tells a doctor about her statement. Does the parents' statement qualify as a statement for purposes of treatment or diagnosis under Rule 803(4). According to the recent opinion of the Court of Criminal Appeals of Tennessee in State v. Hudson, 2012 WL 344740 (Tenn.Crim.App. 2012), the answer is "no."
In Hudson, the facts were as stated above. In answering the question posed in the introduction, the Court of Criminal Appeals of Tennesse cited to its prior opinion in State v. Rucker. According to the court,
In State v. Rucker, 847 S.W.2d 512 (Tenn.Crim.App. 1992), this court addressed whether statements given by third parties to treating medical personnel, as opposed to statements given by a minor patient to medical personnel, fell within the exception to the hearsay rule for medical treatment and diagnosis. In Rucker, the victim's mother took the victim to the hospital after discovering her estranged husband in the hallway of her home with the victim....When they arrived at the hospital, the victim's mother told the nurse that she found her husband and daughter in the hall. She also told the nurse that the victim replied "yes" when the victim's mother asked her if the defendant had been "mess[ing]" with her....The court held that the mother's description of finding the defendant and the victim in the hallway could come in under the medical diagnosis and treatment exception to the hearsay rule because it constituted medical history....However, with regard to the victim's affirmance that the defendant had "messed" with her, the court concluded that it would only be "admissible if the statement falls within the purview of another exception to the hearsay rule."...This Court ultimately held the victim's statement to the mother as admissible as an excited utterance....It thus appears fromRucker, that statements made by the victim directly to a third party and then relayed to a treating medical professional by the third party do not fall within the medical diagnosis and treatment exception to the hearsay rule.
Thus, the court found that the parents' statement was inadmissible unless it satisfied an independent exception to the rule against hearsay. And, according to the court, it was "unable to find a hearsay exception under which this statement would fall." That said, the court found this error to be harmless giving the overwhelming other evidence of the defendant's guilt.
February 6, 2012
Got Yourself A Gun: 7th Circuit Finds ATF Agent's Testimony About Gun Possession Didn't Violate Rule 704(b)
Federal Rule of Evidence 704(b) provides that
No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.
So, let's say that a defendant is charged with one count of manufacturing marijuana, one count of possession of a firearm in furtherance of a drug-trafficking crime, and one count of possession of a firearm by an unlawful user of a controlled substance. And let's say that an ATF agent testifies that a loaded gun found in the defendant's house "was there to protect a marijuana grow operation." Does this testimony violate Rule 704(b)? According to the recent opinion of the Seventh Circuit in United States v. Eller, 2012 WL 350899 (7th Cir. 2012), the answer is "no."In Eller, the facts were as stated above, with Gregory Eller being convicted of the aforementioned crimes. At trial, ATF special agent Laurie Jolley,
who had extensive experience working on drug cases, both as a narcotics officer and an ATF agent, provided expert testimony for the prosecution. Jolley had specialized training in firearms and drug trafficking and she testified that drug traffickers often possess firearms as part of their business operations in order to protect large sums of cash and inventory. Jolley spoke generally of the factors she considers when determining whether a firearm is used in connection with a drug operation and she ultimately testified that based on her experience and opinion, the loaded firearm found in Eller's home "was there to protect a marijuana grow operation."
After he was convicted, Eller appealed, claiming, inter alia, that this testimony violated Rule 704(b) because it "agent Jolley's testimony implied she had personal knowledge of Eller's mental state, with specific regard to his intent for possessing the firearm."
The Seventh Circuit disagreed, concluding that
It was made reasonably clear to the jury that agent Jolley was not familiar with Eller, and that she was not present during the search of his home or assigned to the investigation. Agent Jolley testified that her knowledge was based on common criminal practices, her experience, and her expert opinions. Accordingly, and in conformity with this Court's precedent, we do not find that the district court erred in allowing the expert testimony.
February 5, 2012
In Plain Sight?: 10th Circuit Finds Introduction Of Co-Conspirator Admissions Wasn't Plain Error
Federal Rule of Evidence 801(d)(2)(E) provides that
A statement that meets the following conditions is not hearsay:....The statement is offered against an opposing party and...was made by the party’s coconspirator during and in furtherance of the conspiracy.
I'm not going to say that the recent decision of the Tenth Circuit in United States v. Braden, 2012 WL 287185 (10th Cir. 2012), which deals with Rule 801(d)(2)(E), was wrong, but I will say that it is oddly worded.
In Braden, Cami Braden was convicted of participating in a conspiracy to obtain methamphetamine from suppliers in Utah and transport it to Wyoming for resale. After she was convicted, Braden appealed, claiming, inter alia, that the district court erred by permitting the prosecution to present into evidence "testimony from Ms. Braden's co-conspirators..."
Braden did not object to the admission of this testimony at trial, meaning that the Tenth Circuit could only reverse for plain error. The Tenth Circuit didn't specifically cite to Federal Rule of Evidence 103(e), which provides that "[a] court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved." But the court did find that
most of the statements she points to are offhand comments by witnesses that simply provide context for admissible testimony about those witnesses' actions. They do not go to the core of the conspiracy or Ms. Braden's involvement with it and we can see no plain error in their admission.
There are two ways to look at this statement. First, it seems clear to me that the error of the district court was "plain." If the subject statements were merely "offhand comments," then they weren't in furtherance of the conspiracy, and they weren't admissible under Federal Rule of Evidence 801(d)(2)(E). But of course the phrase "plain error" has legal meaning, and it seems clear that the admission of "offhand comments" did not affect Braden's substantial rights. Therefore, I can see why the Tenth Circuit affirmed Braden's conviction.