March 3, 2012
Anatomy Of A Murder: Court Of Appeals Of Texas Finds No Problem With Admission Of 93 Autopsy Photos
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.
As the recent opinion of the Court of Appeals of Texas, Corpus Christi–Edinburg, in Cantu v. State, 2012 WL 664939 (Tex.App.-Corpus Christi 2012), makes clear, however, (1) the rules of evidence don't apply strictly at sentencing; and (2) autopsy photos are generally deemed admissible under Rule 403.
In Cantu, Jose Cantu pleaded guilty to murder and was sentenced by a jury to fifty-five years' incarceration. After he was sentenced, Cantu appealed, claiming, inter alia, that the trial court erred in admitting seven photographs from the deceased's autopsy. The Court of Appeals of Texas, Corpus Christi–Edinburg began by noting that the definition of "relevant" under the rules of evidence "is not a perfect fit in the punishment context." The court then noted, however, that "[a]lthough it is not a 'perfect fit' for our analysis, we are nonetheless guided by what the rules ofevidence provide regarding relevance."
The court thereafter detailed the autopsy evidence admitting during the sentencing phase:
Here, the challenged photographs show that the deceased's body was in a state of decomposition. All of the photos show severe discoloration of the skin and bloating. Fulgencio Salinas, M.D., the Hidalgo County forensic pathologist who performed the autopsy on the deceased, testified as to each of the seven photographs, describing the deceased's injuries depicted in each photograph. As described by Dr. Salinas, State's exhibit 1 is a close-up of the deceased's neck and shows the groove in her skin made by the cord that strangled her. State's exhibit 2 depicts the autopsy dissection of the deceased's neck, which shows the injuries caused by the strangulation to her esophagus and the blood vessels in her neck. State's exhibits 4 and 5 show the deceased's left and right hands; both hands are in a state of decomposition. State's exhibit 6 is a photograph of the backside of the deceased's body; the backside of her body exhibits white marks where her clothing was, which is a further indication of decomposition. State's exhibit 7 is another picture of the deceased's neck, which also shows the injury to her neck caused by the cord. Finally, State's exhibit 8 is a photograph of the deceased's body as it came to the morgue, fully clothed and in an obvious state of decomposition. As they appear in the record, the photographs are in color and have not been enlarged. Exhibits 6 and 7 show parts of the deceased's naked body; exhibit 6 shows her buttocks, and exhibit 7 shows the top of her breasts. The State admitted a total of ninety-three photographs at trial.
Cantu claimed "that the photographs were not relevant to any disputed issue at trial, as he never contested the cause of death or the type of injuries the deceased suffered, and the photographs were therefore not probative of any issue that was in dispute and were more prejudicial than probative." The court disagreed, concluding that
other factors weighed heavily in favor of the photographs' admission. Primarily, although the photographs were gruesome, as visual depictions of the injuries Dr. Salinas was describing, the photographs were highly relevant. The photographs were useful to the jury in understanding the extent of the deceased's injuries. And the depiction in the photographs of the severely decomposed state of the deceased's corpse was directly relevant to the State's rebuttal of Cantu's sudden passion defense. See id. The fact that Cantu left the deceased's body to decompose in her parents' backyard rebutted his assertions at trial that he cared deeply about the deceased and merely acted out of sudden passion in killing her. In other words, the jury could have decided that Cantu's decision to leave the deceased's body to decompose contradicted his claim that he had strong feelings for the deceased, and the photographs were highly relevant in that regard.
March 2, 2012
An Inconsistent Truth: Arizona Case Reveals Different Prior Inconsistent Statement Rule
Federal Rule of Evidence 801(d)(1)(A) provides that a statement is not hearsay if
The declarant testifies and is subject to cross-examination about a prior statement, and the statement:....is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition....
Meanwhile, Arizona Rule of Evidence 801(d)(1)(A) provides that
A statement is not hearsay if....The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is...inconsistent with the declarant's testimony....
What this means is that a prior inconsistent statement not given under the penalty of perjury is hearsay under the Federal Rules of Evidence but is not hearsay under the Arizona Rules of Evidence as is made clear by the recent opinion of the Court of Appeals of Arizona, Division 2, Department B, in State v. Bacon, 2012 WL 642867 (Ariz.App. Div. 2 (2012).
In Bacon, Leonard Bacon, Jr. was convicted of first-degree murder, possession of a deadly weapon by a prohibited possessor, and theft of a means of transportation. After he was convicted, Bacon appealed, claiming, inter alia, that the trial court erred by allowing for the admission of a prior inconsistent statement made by his sister.
Specifically, Bacon allegedly killed his mother, and his sister testified at trial that her relationship with her mother was "real close." The prosecution thereafter called a witness who testified that the sister told her that she wanted her mother dead.
Now, if Bacon's case were being resolved under the Federal Rules of Evidence, this statement would have been hearsay that was admissible to impeach the sister but not to prove the truth of the matter asserted: that the sister wanted her mother dead. But because Bacon's case was being resolved under the Arizona Rules of Evidence, the sister's statement was nonhearsay even though it was not given under oath, meaning that it was admissible to prove the truth of the matter asserted. Thus, the appellate court affirmed Bacon's conviction.
March 1, 2012
The Whole Truth: Court Of Appeals Of Minnesota Finds Trial Court Improperly Rejected Defendant's Oath
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so.
Of course, the traditional oath involves a witness placing his or her hand on the Bible and answering, "I do" to the question, "Do you swear to tell the truth, the whole truth, and nothing but the truth, so help you God?" But what if a witness doesn't want to be given this traditional oath for religious or other reasons? What if, for instance, the defendant simply wants to declare, "I solemnly undertake to tell the truth." If the trial court thereafter refuses to allow him to testify, is the defendant entitled to a new trial? According to the recent opinion of the Court of Appeals of Minnesota in State v. Corrigan, 2012 WL 612313 (Minn.App. 2012), the answer is "yes."
In Corrigan, the facts were as stated above, with John Corrigan being convicted of of not driving as nearly as practicable entirely within a single lane of traffic after not being allowed to testify. Corrigan thereafter appealed, claiming, inter alia, that his affirmation was calculated to awaken his conscience and impress his mind with the duty to do so in compliance with Minnesota Rule of Evidence 603.
The Court of Appeals of Minnesota agreed, finding that "[n]o specific language is statutorily required in an affirmation." As support, the court cited its own opinion in State v. Mosby, 450 N.W.2d 629, 633 (Minn.App.1990), for the proposition that "[w]itnesses must be sworn by oath or affirmation.... Affirmation is simply a solemn undertaking to tell the truth; no special verbal formula is required." The court then cited to United States v. Looper, 419 F.2d 1405 (4th Cir.1969), for the proposition that
All that the common law requires is a form or statement which impresses upon the mind and conscience of a witness the necessity for telling the truth. Thus, defendant's privilege to testify may not be denied him solely because he would not accede to a form of oath or affirmation not required by the common law.
The court then concluded that
Similarly, appellant in this case would not take the standard oath, but solemnly stated that he would tell the truth. The court in Looper and this court in Mosby both acknowledged that there is no particular verbal formula for an affirmation, holding instead that the purpose of the oath or affirmation is to emphasize the need for truthfulness. This purpose was clearly met by appellant's offered affirmation. The denial of appellant's testimony by the district court was error.
Finally, the court acknowledged that there was overwhelming evidence of Corrign's guilt but refused to find harmless error because the trial court deprived Corrigan of his Constitutional right to testify on his own behalf.
February 29, 2012
Leafy Greens: Court Of Appeals Of Mississippi Finds (Harmless) Error In Admission Of Marijuana Evidence To Prove Motive
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
So, let's say that a defendant is charged with armed robbery. And let's say that when the defendant was arrested for this crime, a "green leafy substance" was recovered from his vehicle. Is evidence of this substance admissible to prove his motive for committing the robbery. Let's take a look at the recent opinion of the Court of Appeals of Mississippi in State v. Smith, 2012 WL 613324 (Miss.App. 2012).
The facts in Smith were as stated above, with Antonio Smith being convicted of armed robbery based upon a gas station robbery. Before trial, Smith filed a motion in limine, arguing that evidence of the green leafy substance was inadmissible under Mississippi Rule of Evidence 404(b) to prove motive. In response, however,
The trial judge apparently misinterpreted the nature of the 404(b) issue. Instead, he seemed primarily concerned about the substance being authenticated as marijuana. He deferred ruling on the admissibility of the evidence, instructing:
[T]he defendant states that there is indication that witnesses may say the defendant was in possession of marijuana. The court finds that that will not be admissible unless there is someone that will give testimony that the substance was indeed marijuana that was found in the automobile. Otherwise, it would be hearsay and it would not be admissible unless the substance was indeed tested and determined to be marijuana.
After the prosecution later presented testimony authenticating the green leafy substance as marijuana, the trial court allowed for admission of the subject evidence.
After he was convicted, Smith appealed, and the Court of Appeals of Mississippi correctly noted that the trial court incorrectly skirted the Rule 404(b) issue. And the court then agreed with Smith that the subject evidence was inadmissible to prove motive because "[t]he State presented no evidence that Smith robbed the gas station for money to purchase drugs, nor did it even mention this purported motive to the jury during closing arguments."
That said, the appellate court deemed the trial court's error in admitting the marijuana evidence to be harmless given the other evidence of Smith's guilt and affirmed his conviction.
February 28, 2012
Shepard's Pie: Kyle Graham And The Real Facts Of Shepard v. United States
If you've taught Evidence, you've likely taught Shepard v. United States, 290 U.S. 96 (1933), the (in)famous dying declaration case. If you taught the case, you know the basic facts. Zenana Shepard had taken ill and told a nurse that her husband, Dr. Charles A. Shepard poisoned her. Zenana thereafter died and her husband was charged with her murder. An autopsy determined that Zenana died from poisoning by bichloride of mercury, which Dr. Shepard kept in his medicine chest. At trial, the nurse testified to Zenana's accusatory statement, and Dr. Shepard was convicted of murder, with the alleged motive being that he wanted to take up with another woman. Dr. Shepard thereafter appealed, with the Supreme Court ultimately concluding in an opinion drafted by Justice Cardozo that Zenana's statement was not admissible as a dying declaration because it was not given while Zenana believed that she was knockin' on heaven's door. Instead,
Her illness began on May 20. She was found in a state of collapse, delirious, in pain, the pupils of her eyes dilated, and the retina suffused with blood. The conversation with the nurse occurred two days later. At that time her mind had cleared up, and her speech was rational and orderly. There was as yet no thought by any of her physicians that she was dangerously ill, still less that her case was hopeless. To all seeming she had greatly improved, and was moving forward to recovery. There had been no diagnosis of poison as the cause of her distress. Not till about a week afterwards was there a relapse, accompanied by an infection of the mouth, renewed congestion of the eyes, and later hemorrhages of the bowels.
The opinion in Shepard tells a good story, and it is a good way to illustrate the scope and limitations of the dying declaration exception to the rule against hearsay. But what's the full story? That question is taken up by Kyle Graham, a professor at the Santa Clara University School of Law in a recent post on his blog, noncuratlex.com.
In the post, Graham passes along several salacious details gained from combing historical sources. Among these facts:
•The "other woman" was 35 years Dr. Shepard's junior;
•Dr. Shepard asked this other woman to marry him eight times;
•After the Supreme Court reversed his conviction, Dr. Shepard went back to work at a Denver hospital; and
•Dr. Shepard was found "not guilty" upon retrial, validating Justice Cardozo's conclusion that the erroneous admission of Zenan's statement was not harmless error.
February 27, 2012
Conduct Unbecoming An Officer: Appellate Court Affirms Court-Martial's Finding Despite Character Evidence Error
Similar to its federal counterpart, Military Rule of Evidence 414 states in relevant part that
(a) In a court-martial in which the accused is charged with an offense of child molestation, evidence of the accused's commission of one or more offenses of child molestation is admissible....
(d) For purposes of this rule, “child” means a person below the age of sixteen....
In its recent opinion in United States v. Reynard, 2012 WL 592774 (Army Ct.Crim.App.,2012), the U.S. Army Court of Criminal Appeals found that a military judge improperly admitted evidence that was not admissible under Rule 414, and yet the court still affirmed the court-martial's finding of guilty and the appellant's sentence. Why?
Unfortunately, the court's opinion doesn't divulge many facts, but it does tell us that Master Sergeant Raymond J. Reynard was subjected to a court-martial based upon hugging the alleged victim and touching her bottom and was found guilty of one specification of indecent assault and count of carnal knowledge. Reynard was thereafter sentenced to a dishonorable discharge and confinement for seven years. The convening authority then dismissed the carnal knowledge specification and approved the remaining findings of guilt and the adjudged sentence.
Reynard thereafter appealed, claiming that the military judge erred in admitting evidence that he had previously committed a child molestation offense against the alleged victim, LK, and the U.S. Army Court of Criminal Appeals agreed, finding that
The victim in this case, LK, was born on 8 May 1990 and was no longer considered a child for Mil.R. Evid. 414 purposes as of 8 May 2006, when she reached the age of sixteen. In response to a defense motion to suppress evidence, the military judge erred in finding Charge II to be a child molestation offense. During the time period alleged in the specification, between on or about 1 May 2007 and 30 September 2007, LK was over the age of sixteen. Pursuant to Mil. R. Evid. 414, Charge II was not a child molestation offense because the alleged victim was not below sixteen. Similarly, the military judge erred in concluding appellant's alleged digital penetration of LK in 2007 was an act of child molestation and admissible under Mil. R. Evid. 414 because LK was not under sixteen at the time of the incident and therefore not a child.
That said, the court also found that the military judge deemed evidence of the 2007 act to be admissible under Military Rule of Evidence 404(b) "to show absence of mistake and indicate the [appellant's] intention to resume their sexual relationship." The appellate court agreed with this, finding that "the military judge properly admitted this incident under Mil. R. Evid. 404(b) as proof of appellant's intent and absence of mistake."
I disagree with this conclusion unless Reynard's claim was that his conduct was accidental, i.e., that his hand slipped and that he did not intend to touch the alleged victim's bottom. Even if this were Reynard's defense, I'm not sure that the evidence should have been deemed admissible, but if it wasn't his defense, the evidence was classic propensity character evidence and should have been deemed inadmissible.
February 26, 2012
Believe In Me: Court Of Appeals Of Indiana Finds Fundamental Error With Expert Witness Vouching
Indiana Rule of Evidence 704(b) provides that
Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.
So, if such testimony is offered and opposing counsel fails to object, would the admission of such testimony constitute plain error necessitating a new trial? According to the recent opinion of the Court of Appeals of Indiana in Gutierrez v. State, 2012 WL 560048 (Ind.App. 2012), the answer is "yes."
In Gutierrez, Ernesto Gutierrez was charged with two counts of Child Molesting. After he was convicted, Gutierrez appealed, claiming, inter alia, that the trial court erred by allowing for the admission of testimony by sexual assault nurse Michelle Ditton and Penny Hasselman, a case manager with the Department of Child Services, both of whom interviewed M.L., the alleged victim. At trial,
when Ditton was asked about whether she believed M.L., counsel objected on the grounds that such testimony would damage "the province of the jury as to whether she's telling the truth or not."...The trial court overruled the objection, and responded, "I agree, but I think it's up to the jury to give that opinion whatever weight it deems appropriate, so I'll overrule that objection."....Ditton then responded as follows:
I believe based on the time frame since the last occurrence, based on the fact that she told me she never had any bleeding, based on the fact that it felt good that it probably was—when the penis was on the clitoris, based on the fact of how easily, even if there was minor injury to that tissue, based on the fact, again, probably the most important that that tissue is very estrogenized thick, could easily accommodate a speculum, a penis, a baby's head, I didn't expect to find any injury before I even looked at her.
the deputy prosecutor asked Hasselman: "With your time being spent with [M.L.], and hearing what happened in the deposition, did you believe what she was saying?"...Hasselman responded, "absolutely."...The deputy prosecutor then asked if Hasselman could explain why she believed M.L., and Gutierez's counsel objected on the grounds of relevance....The deputy prosecutor then remarked that "I think [the jury] should hear why she believes from her past experience."... The trial court then sustained defense counsel's objection to this comment on the grounds of relevance.
The Court of Appeals found error with the admission of Ditton's testimony, but it is unclear whether that error alone was enough to reverse. The court also found error with the admission of Hasselman's testimony and found that Gutierrez had failed to preserve the issue by failing to object under Rule 704(b). That said, the court then found that
When examining the exchange between the deputy prosecutor and Hasselman, it is readily apparent that the provisions of Indiana Rule of Evidence 704(b) were violated, which resulted in an invasion of the province of the jury to judge the credibility of the witnesses. As noted above, Hasselman testified that she "absolutely" believed M.L.'s testimony....And the deputy prosecutor contemporaneously inserted his own opinion that he believed M.L. Therefore, the admission of Hasselman's testimony amounted to fundamental error.