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Univ. of South Carolina School of Law

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Thursday, August 22, 2013

"Tell My Father That I Love Him": Admissible or Inadmissible?

In our suite of my first year dorm, we had two 24-hour periods where we played something over and over again. The first was Stanley Kubrick's Vietnam War classic, "Full Metal Jacket." The other was David Bowie's "Space Oddity." Indeed, we even built a shrine to Ziggy Stardust. Yes, we were a strange lot. 

After the latter experience, I will never get the words, "Tell my wife I love her very much, she knows" out of my head. And those lyrics were the first things that I though about after reading the recent opinion of the Supreme Court of Rhode Island in State v. Covington, 2013 WL 3337275 (R.I. 2013).

In Covington

a street fight erupted among several women in Pawtucket, Rhode Island. The fracas was viewed by a large throng of onlookers, including one group consisting of Claudio Nieves (Nieves) and his friends and another comprising the defendant, Blake Covington, and his companions. After the street fight, tensions between these two groups remained high. This animosity culminated in a shooting that left Nieves paralyzed. The defendant was identified as the gunman.

Thereafter, Covington was charged with

a host of offenses, including: assault with intent to murder Nieves (count 1); three counts of felony assault of Nieves (counts 2, 3, and 6); three counts of using a firearm while committing a crime of violence (counts 4, 8, and 10); discharging a firearm within a compact area (count 5); felony assault of Arias (count 7); felony assault of Ortega (count 9); and carrying a pistol or revolver without a license (count 14).

Before trial, Covington filed a motion in limine, seeking 

to exclude, under Rule 403 of the Rhode Island Rules of Evidence, Nieves's statement to the police, "Tell my father that I love him." The defendant argued that the statement was not probative of any issue in the case and was highly prejudicial because of the danger that it would evoke an emotional response from the jury. The trial justice denied defendant's motion, explaining that the statement was relevant to show that Nieves knew he was injured and appreciated the seriousness of his injuries. The trial justice also found that there was no undue prejudice arising from the statement because it did not implicate defendant in the attack and the contention that the statement would result in an emotional response from the jurors overlooked the fact that Nieves would be testifying from a wheelchair—an equally emotional circumstance.

After Covington was convicted, he appealed. First, he claimed that Nieves's statement was irrelevant under Rhode Island Rule of Evidence 401, which states that

"Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Second, he claimed that, even if the statement were relevant, it should have been deemed inadmissible under Rhode Island Rule of Evidence 403, which states that

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, waste of time, or needless presentation of cumulative evidence.

Initially, the Rhode Island Supremes disagreed with Covington's first argument, concluding that

we are satisfied that Nieves's statement surmounted the relevancy threshold for admissibility. Count 4 of the criminal information charged defendant with discharging a firearm while committing a crime of violence resulting in injury to Nieves in violation of G.L.1956 § 11–47–3.2(b)(2). Subsection (b)(2) of § 11–47–3.2 provides for a punishment of twenty years "if a person other than a police officer is injured by the discharge of the firearm" during the commission of a crime of violence....Evidence that, when confronted with questions from the responding officer, all that Nieves could muster was, "Tell my father that I love him[,]" tends to establish that Nieves was "injured by the discharge of the firearm[,] as § 11–47–3.2(b)(2) contemplates. "Therefore, the statement was relevant.

In reaching this conclusion, the court found that it was of no consequence that Covington "may not have disputed the existence or extent of Nieves's injuries," concluding that "the state has the right to establish the existence of th[e] elements [of a crime] as it deems just." 

The court then rejected Covington's second argument, finding that

With respect to defendant's Rule 403 argument, we agree with the trial justice that the probative value of this evidence was not substantially outweighed by the danger of unfair prejudice. As the trial justice recognized, this statement in no way implicated defendant as the party responsible for Nieves's injuries. Moreover, although we agree with defendant that this statement may have had an emotional impact on the jurors, we note, as did the trial justice, that Nieves was testifying from a wheelchair, where he will spend the remainder of his life. Any emotional impact that Nieves's statement may have had pales in comparison to the impact of observing a wheelchair-bound victim—with a bullet still lodged in his spine—testify about the events leading to his paralysis....In light of our deferential standard of review, we cannot say that the trial justice abused his discretion in admitting this statement.

It looks to me like the Supreme Court of Rhode Island tied itself into a knot with its analysis. According to the court, Nieves's statement was (1) relevant to prove that Covington's crime of violence resulted in injury to Nieves; and yet (2) not unduly prejudicial because Nieves would be testifying from a wheelchair with the bullet still lodged in his spine. But given (2), doesn't that mean that it was unnecessary to admit Nieves's statement to prove that he was injured? The jurors could actually see Nieves's injuries, and yet the court thought that it was necessary for the jury to hear Nieves's statement about loving his father so that it could infer from the statement that he was likely injured? That analysis just doesn't hold water for me.

And since when does the fact that there will already by some unfair prejudice preclude a court from preventing the prosecution from upping the emotional ante. Of course the jury would have a response to Nieves testifying from a wheelchair. But does that mean that there was no point in the court still deciding whether other evidence was too emotional (and cumulative) to be admissible? I think not.

(Hat tip to Mark Ginsberg for the link)

-CM

http://lawprofessors.typepad.com/evidenceprof/2013/08/in-our-suite-of-my-first-year-dorm-we-had-two-24-hour-periods-where-we-played-something-over-and-over-again-the-first-wasst.html

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Comments

CM: You ask whether, given that the victim would be testifying with obvious injury, is it “unnecessary” to admit the victim’s statement that he was injured.

I think the court answered that concern when it noted RI case law holding that the state has the right to establish the existence of the elements of a crime as it “deems just.” The state doesn’t limit its facts to what’s “necessary.” The state is allowed to tell its own narrative version of the story with its own facts. If the defense argued “Judge, it’s not necessary to admit this fact of injury, we stipulate he was injured,” the prosecutor should have referred the court to Old Chief v. US 519 U.S. 172.

Your subsequent point on 403 and stacking up the emotional evidence makes sense, though. But I see that as a discretionary call that could have gone either way, and likely harmless error.

Posted by: TJ | Aug 22, 2013 4:01:09 PM

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