EvidenceProf Blog

That is So Not True: 6th Circuit Finds Theft of Services Conviction Not Covered by Rule 609(a)(2)

Federal Rule of Evidence 609(a) provides that

The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction:  

(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:  

(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and  

(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and  

(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.

So, let's say that a witness has been "convicted of misdemeanor theft of services and fined fifty dollars after he had a friend, who worked for a utility company, surreptitiously hook services up to his home." Because this crime was a misdemeanor, it cannot be admissible under Rule 609(a)(1). But should it be admissible under Federal Rule of Evidence 609(a)(2)? According to the recent opinion of the Sixth Circuit in United States v. Washington, 2012 WL 6682015 (6th Cir. 2012), the answer is "no." I disagree.

In Washington, the facts were as stated above. Mario Washington was convicted of carjacking, and he thereafter appealed, claiming, inter alia, that the district court erred by precluding him from impeaching a witness for the prosecution with evidence of his conviction for theft of services.

The Sixth Circuit disagreed, finding that

Establishing the elements of theft of services under Tennessee law does not "require[ ] proving—or the witness's admitting-a dishonest act or false statement." See Fed.R.Evid. 609(a)(2). The relevant state statute proscribes "[i]ntentionally obtain[ing] services by deception, fraud, coercion, forgery, false statement, false pretense or any other means to avoid payment for the services." Tenn.Code Ann. § 39–14–104. Although a violation of the statute could indeed involve dishonesty or false statement—as is clear by the statute's references to deception, fraud, false statement, and the like—a defendant could also be convicted for using "any other means to avoid payment," so the statute clearly implicates conduct that does not fall within the ambit of Rule 609(a)(2). Therefore, "establishing the elements of the crime" does not require establishing dishonesty or false statement. Indeed, under the circumstances of [the witness]'s conviction, it does not appear that he engaged in any of the specifically enumerated acts contained in the statute, although he did use "other means to avoid payment."

Instead, the court found that the witness's

crime fits more comfortably in the class of crimes that this court and others have concluded fall outside the scope of Rule 609(a)(2). Theft is a prime example of a crime of stealth, and it has been distinguished from crimes of dishonesty in most federal circuits. For instance, "[i]t is established in [the Eleventh] Circuit...that crimes such as theft, robbery, or shoplifting do not involve 'dishonesty or false statement' within the meaning of Rule 609(a)(2)."...The Eighth Circuit has reasoned that "[t]heft, which involves stealth and demonstrates a lack of respect for the persons or property of others, is not 'characterized by an element of deceit or deliberate interference with a court's ascertainment of truth.'"... Likewise, the Fifth Circuit has noted that shoplifting does not involve dishonesty or false statement within the meaning of the rule.

I'm not sure that I can agree with the Sixth Circuit here. First, I'm not sure exactly what the court is saying. In the first block quote above, the Sixth Circuit seems to be saying that Rule 609(a)(2) does not apply because theft of services does not require a dishonest act or false statement. But as the Advisory Committee Note to the 2006 amendment to Federal Rule of Evidence 609 makes clear, such an interpretation wouod be incorrect. According to the Note,

Ordinarily, the statutory elements of the crime will indicate whether it is one of dishonesty or false statement. Where the deceitful nature of the crime is not apparent from the statute and the face of the judgment—as, for example, where the conviction simply records a finding of guilt for a statutory offense that does not reference deceit expressly—a proponent may offer information such as an indictment, a statement of admitted facts, or jury instructions to show that the factfinder had to find, or the defendant had to admit, an act of dishonesty or false statement in order for the witness to have been convicted.

This then seems to be the focus of the second block quote: construing the witness's crime as a crime of stealth like ordinary theft or shoplifting. But this clearly wasn't the nature of the witness's crime. Instead, as the Sixth Circuit noted, the witness's crime was a surreptitious crime which consitsed of impliedly making the assertion to the utility that he did (or did not) have service. Therefore, I clearly see the witness's crime as one that involved dishonesty or false statement.

-CM

Hierarchy of Needs: Texas Case Reveals Explicit Texas Rule of Evidence on Evidentiary Hierarchy

I always teach my students that the Constitution trumps the Federal Rules of Evidence. There is, however, no specific Rule in the Federal Rules of Evidence that sets forth this hierarchy. As the recent opinion of the Court of Appeals of Texas, Texarkana, in Clay v. State, 2012 WL 6721012 (Tex.App.-Texarkana 2012), makes clear, however, there is such a Rule in the Texas Rules of Evidence. And the opinion also makes clear that there is another important difference between the two sets of Rules.

In Clay, Cedric Charles Clay was convicted of two counts of sexual assault and one count of engaging in organized criminal activity. These crimes were allegedly admitted against teenage girls, and, at trial, Clay unsuccessfully tried to cross-examine them regarding the fact that they lied to their parents about where they were going on the night in question.

After Clay was convicted, he appealed, claiming, inter alia, that the trial court erred in precluding him from engaging in this cross-examination. Under Federal Rule of Evidence 608(b), Clay would have a good argument. That Rule provides that

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:  

(1) the witness; or  

(2) another witness whose character the witness being cross-examined has testified about.  

But Clay's case was not heard under the Federal Rules of Evidence. Instead, it was heard under the Texas Rules of Evidence, and Texas Rule of Evidence 608(b) provides that 

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be inquired into on cross-examination of the witness nor proved by extrinsic evidence.

Therefore, the Court of Appeals of Texas, Texarkana, found no evidentiary error with the trial court's ruling because

Whether the victims fabricated a story that they were going to one of the girls' homes to watch a niece that night is irrelevant as to whether Clay sexually assaulted Marie that night. This is primarily an attack on general credibility....

Clay also argued that application of Rule 608(b) to prevent his proposed cross-examination violated the Confrontation Clause, and the appellate court acknowledged that Texas Rule of Evidence 101(c) provides that

Hierarchical governance shall be in the following order: the Constitution of the United States, those federal statutes that control states under the supremacy clause, the Constitution of Texas, the Code of Criminal Procedure and the Penal Code, civil statutes, these rules, and the common law. Where possible, inconsistency is to be removed by reasonable construction.

But because the appellate court found that the proposed cross-examination was lacking in relevance, it found no such constitutional violation.

-CM

Failure of Confrontation: Court of Criminal Appeals of Alabama Reverses Burglary Adjudication Based on Bruton Violation

Pursuant to the Bruton doctrine, the Confrontation Clause is violated by the admission at a joint jury trial of a nontestifying co-defendant's confession that facially incriminates another defendant. A textbook application of the doctrine can be found in the recent opinion of the Court of Criminal Appeals of Alabama in C.L.H. v. State, 2012 WL 6554144 (Ala.Crim.App. 2012).

In C.L.H., C.L.H. was adjudicated delinquent based on a charge of second-degree burglary. At trial,

To establish that C.L.H. was involved in the burglary, the State presented uncontested evidence that C.L.H. was in a relationship with H.S....The State also offered an out-of-court statement given by A.R. to police. The circuit court admitted the statement over an objection by C.L.H. on the ground that admission of the statement would violate the Confrontation Clause. In his statement, A.R. said: 

"'My name is [A.R.], I'm 19 years old and I live at 1016 6th Avenue, Southwest. I met up with [H.S.], [J.H.] and [H.S.]'s girlfriend. She is a white girl. They were in a gray Honda. We went riding and we picked [P.T.] up from his apartment at the Willows. After that we went to the apartments on 8th Street, Southwest by 2nd Avenue. [J.H.] said he knew an apartment we could break into. We went to the front door and walked in. Me, [H.S.], [J.H.] went in the apartment. Inside the apartment they took a TV and an Xbox from the living room. They wrapped them up in a blanket and we went out the back door. Me and [P.T.] walked off. [H.S.], his girlfriend and [J.H.] all left in the Honda with the TV and Xbox. They were supposed to sell it and split the money with us. Me and [P.T.] got stopped down the street. We were running to [T.A.]'s house. I know it was wrong to go in and take that girl's stuff.'" 

After her adjudication, C.L.H. appealed, repeating her Confrontation Clause contention. The Court of Criminal Appeals of Alabama agreed with her, finding that A.R.'s statement facially incriminated her based upon the evidence presented at trial that she was the girlfriend of H.S. Moreover, the court found that the erroneous admission of this statement was not harmless because the other evidence admitted at trial was insufficient to sustain her conviction. Accordingly, the court reversed and remanded.

-CM

Gas Stop: Court of Appeals of Minnesota Finds Trial Court Erred in Allowing for Admission of Gas Station Transaction Journal

Similar to its federal counterpart, Minnesota Rule of Evidence 803(6) provides an exception to the rule against hearsay for 

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness. The term "business" as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. A memorandum, report, record, or data compilation prepared for litigation is not admissible under this exception.

As the language of Rule 803(6) makes clear, for a business record to be admissible under the rule, there must be foundation testimony from either the custodian of the record or another qualified witness. The problem for the State in State v. Johnson, 2012 WL 6734450 (Minn.App. 2012), was that it had neither.

In Johnson, 

On August 25, 2010, a customer used another individual's debit card to make two separate purchases at a gas station. The owner of the debit card noticed the purchases on his bank statement and reported it to police and his debit-card company. A sheriff's deputy investigated the incident. He obtained the gas station's "transaction journal," which confirmed the two purchases, as well as a security video, which depicted the person making the two purchases. The deputy then produced a still photograph from the video and sent out a tri-county crime alert. A police officer from another police agency notified the deputy that the man in the still photograph may be appellant. The deputy then assembled a six-photograph lineup that included appellant. After the gas-station clerk identified the photograph of appellant as the man who made the two purchases at issue, appellant was charged with financial-transaction-card fraud.

At the appellant's trial,

At trial, the state offered into evidence the transaction journal that the investigating deputy obtained from the gas station. The state offered the journal into evidence through the deputy, and defense counsel did not object to its admission into evidence. The journal indicated that the debit card was used twice on August 25, 2010, to make purchases of $226.30 and $54.95.

After he was convicted, the appellant appealed, claiming, inter alia, that the State failed to lay a proper foundation for admission of the transaction journal as a business record under Minnesota Rule of Evidence 803(6). 

The Court of Appeals of Minnesota agreed, finding that 

The district court erred by admitting the transaction journal into evidence without requiring the state's witness to lay the foundational requirements of Minn. R. Evid. 803(6). Although a gas-station employee presumably recorded the transactions in the journal, the state offered the transaction journal into evidence through the investigating deputy. Because the deputy was not the custodian of the transaction journal, he was required to show that he was at least familiar with how the gas station compiled its business records....The deputy did not testify whether these transactions were recorded in the course of a regularly conducted business activity, whether it was the regular practice of the gas station to record these transactions in a journal, or whether he was familiar with how and when the gas station recorded these transactions. The gas-station clerk, who might have established foundation for admission of the record, did not testify regarding the journal. The district court erred by admitting the transaction journal without requiring the state to lay further foundation.

That said, because the appellant did not object to the admission of the journal at trial, the appellate court could only reverse for plain error, which it did not find.

-CM

It's in My Report: Court of Appeals of Utah Reverses Receiving Stolen Property Report Based on Improper Admission of Incident Report

Similar to its federal counterpart, Utah Rule of Evidence 803(8) provides an exception to the rule against hearsay for

A record or statement of a public office if:  

(A)   it sets out:

(i) the office’s activities;  

(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or  

(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and  

(B) neither the source of information nor other circumstances indicate a lack of trustworthiness.

What this means is that, pursuant to Utah Rule of Evidence 803(8)(A)(ii), a police or incident report is not admissible at a criminal trial. And what that means is that the defendant in State v. Gonzalez-Camargo, 2012 WL 6720459 (Utah App. 2012), was entitled to a new trial.

In Gonzalez-Camargo, Fernando Gonzalez-Camargo was convicted of possession of methamphetamine and receiving stolen property. To prove that Gonzalez-Camargo committed the latter crime, the State offered evidence that a computer recovered from a bedroom in an apartment in which he and others resided

had been stolen. Detective Kim Ellis of the Utah State University police relied on an incident report to confirm that the make, model, and serial number of the computer matched a laptop reported missing from [Utah State U]niversity in August 2009. Although Gonzalez–Camargo objected to the testimony as hearsay, the trial court admitted the evidence contained in the incident report as a business record.

After he was convicted, Gonzalez-Camargo appealed, claiming, inter alia, that the incident report was inadmissible hearsay and that it could not be admitted pursuant to Utah Rule of Evidence 803(8)(A)(ii). In response, 

The State concede[d] that the admission of the incident report was prejudicial error. See...State v. Bertul, 664 P.2d 1181, 1184 (Utah 1983) ("Police records of routine matters are admissible ... such as the day a crime was reported....On the other hand, police reports containing non-routine information as to which the memory, perception, or motivation of the reporter may raise a serious question of reliability, are inadmissible."...; State v. Morrell, 803 P.2d 292, 298 (Utah Ct .App.1990) (stating the general rule that "[p]olice reports are not eligible for admission" under the business or public records exceptions of rule 803 of the Utah Rules of Evidence).

Accordingly, the court "reverse[d] Gonzalez–Camargo's conviction of receiving stolen property and remand for a new trial on that charge."

-CM