EvidenceProf Blog

No Exit: Florida Court Deems Evidence of Attempted Suicide Admissible to Prove Consciousness of Guilt

An individual is a suspect in a crime. That individual flees from the relevant jurisdiction and hides out in another jurisdiction before being apprehended and charged with the subject crime. At trial, the prosecution will be able to present evidence of the defendant's flight as circumstantial evidence of his consciousness of guilt.

An individual is a suspect in a crime. The individual tries to kill himself. At trial, will the prosecution be able to present evidence of the defendant's suicide attempt as circumstantial evidence of his consciousness of innocence? According to the recent opinion of the District Court of Appeal of Florida, Fourth District, in Sloan v. State, 2013 WL 85449 (Fla.App. 4 Dist. 2013), the answer is "yes."

In Sloan, Thomas Sloan was convicted of three counts of Lewd or Lascivious Molestation–Offender 18 or Older, Victim Under 12. On the same day that these crimes were reported by the alleged victim's mother,

the defendant called in sick at work. He reported to work the following day, but left early and did not return. He said that he traveled to Arkansas to seek employment. In explaining why, he said the state of the economy and the incident with the victim produced "very stressful circumstances." One of the defendant's co-workers testified that he fled the area because the mother was threatening to have him arrested and he needed to "take a drive and clear his head." The defendant ultimately returned to Florida before the arrest warrant was issued. Law enforcement later found the defendant after he ingested some pills in an attempted suicide. The defendant was arrested approximately two weeks later.

After he was convicted, Sloan appealed, claiming that

the trial court abused its discretion in admitting testimony relating to his suicide attempt because there was insufficient evidence to suggest it was an effort to evade prosecution or indicative of consciousness of guilt. The State respond[ed] that the evidence was properly admitted because it evinced the defendant's consciousness of guilt.

In addressing this issue, the court noted that

"'[E]vidence that a suspected person in any manner endeavors to evade a threatened prosecution by any ex post facto indication of a desire to evade prosecution is admissible against the accused where the relevance of such evidence is based on consciousness of guilt inferred from such actions.'"

This language comes from the opinion of the Supreme Court of Florida in Penalver v. State, 926 So.2d 1118 (Fla. 2006), in which the court noted that

Three states have allowed evidence of a suicide threat as proof of consciousness of guilt. See People v. O'Neil, 18 Ill.2d 461, 165 N.E.2d 319, 321 (1960) (noting that the threat of suicide was similar to flight because it tended to show consciousness of guilt); Commonwealth v. Sanchez, 416 Pa.Super. 160, 610 A.2d 1020, 1028 (1992) (observing that "manifestations of mental distress tend to demonstrate a defendant's consciousness of guilt"); State v. Seffens, No. 01–C01–9107CR00190, 1992 WL 75831, *4 (Tenn.Crim.App. Mar.16, 1992) (finding evidence that defendant threatened to kill himself and his wife was admissible because some courts "have held this evidence is analogous to evidence of flight to show a consciousness of guilt").

Of course, for such evidence to be admissible, it must be clear that the defendant in fact attempted to kill himself. And, in Penalver, that wasn't the case because the defendant actually turned himself in after saying "I might as well be dead" or "I want to kill myself." But this wasn't a problem in Sloan because

the defendant actually attempted suicide. While that attempt preceded the issuance of the arrest warrant, it occurred after the defendant was aware that law enforcement had been notified of the incident by the victim's mother. In fact, the defendant left work and the state after law enforcement was notified. A co-worker testified that the defendant fled the area due to the threat of arrest.

As such, "there was a sufficient nexus between the defendant's suicide attempt and the crime to render it admissible."

(Hat tip to Marc Ginsberg for the link)

-CM

Joe Paterno, Grand Jury Presentments, and the Rule Against Hearsay

Last week, Brian Gallini presented the paper, Bringing Down a Legend: How an 'Independent' Grand Jury Ended Joe Paterno's Career, at the University of South Carolina School of Law. The paper deals with Pennsylvania's grand jury presentment, a grand jury communication to the public concerning the grand jury's investigation. While Federal Rule of Criminal Procedure 6(e)(2) and many state counterparts ensure the secrecy of grand jury proceedings, the presentments issued in Pennsylvania and other states allow grand juries to serve as the mouthpiece of prosecutors, who can prove their cases in the court of public opinion. Sometimes, however, a grand jury presentment isn't just about proving a case. Professor Gallini uses the Jerry Sandusky/Joe Paterno imbroglio as an avenue through which to discuss the conceptual problem of grand jury presentments and third parties who are not the subjects of grand jury investigations. This was certainly the case in Pennsylvania when a grand jury was convened to investigate allegations of child molestation against Jerry Sandusky and ended up issuing a presentment that ensnared the legendary coach in its net. The result of the presentment for Sandusky was that his case could proceed to trial. The result for Paterno was that he could be fired from his job. We might think that both of these were the correct results, and they might indeed both have been proper outcomes.

But that's not really that question. The question, according to Gallini, is the process (not) afforded to Paterno and other third parties mentioned in grand jury presentments. Most grant juries proceed with a prosecutor presenting his case to grand jurors with no role for defense counsel to present any evidence or cross-examine any witnesses. Prosecutors generally have no obligation to present exculpatory evidence to grand jurors, and they can present evidence that was unconstitutionally obtained and inadmissible under the rules of evidence. To what extent should the press report, and the public believe, findings in a grand jury presentment? What about employers? And to what extent does the analysis change when those findings relate to third parties rather than the target of the grand jury investigation? These are fascinating questions, and they have already led my colleague Derek Black to write an interesting post on the subject at The Faculty Lounge.

In this post, I will focus on Evans v. Com., Unemployment Compensation Bd. of Review, 484 A.2d 822 (Pa.Cmwlth 1984), which deals with some of these issues and the question of whether a grand jury presentment is hearsay when admitted to prove the reason why a third party mentioned in it was fired.

In Evans,

Thomas J. Evans, Gilbert J. Falvo, Ralph Mazzocchi and Manuel G. Ganopules, former employees of the Pennsylvania Department of Auditor General, appeal[ed] decisions of the Unemployment Compensation Board of Review, which affirmed a referee's denial of benefits to each claimant pursuant to section 3 of the Unemployment Compensation Law-that persons unemployed through fault of their own are ineligible for benefits.

These firings came after a grand jury was convened to investigate allegations that numerous governmental workers had paid money to obtain employment. The grand jury eventually issued a presentment, which listed Evans, Falvo, Mazzocchi and Ganopules as employees who had paid money to obtain governmental employment, but these men were not the targets of the grand jury investigation and they were not indicted by the grand jury. Instead, the individuals being investigated and the individuals who were indicted were the governmental employees who took the money as part of a job-selling scheme.

Nonetheless, after the presentment was issued, the Department of Auditor General terminated the employments of Evans, Falvo, Mazzocchi and Ganopules. These men then moved for unemployment compensation, but that motion was denied by a referee who used the grand jury presentment to determine that the men were ineligible for such benefits.

The men thereafter appealed, claiming that the presentment was inadmissible hearsay, but the Commonwealth Court of Pennsylvania disagreed, finding that

The referee allowed the document, not to prove the truth of its contents-that the claimants had purchased their jobs-but to show that it had named the claimants, for the purpose of showing the negative impact on their effectiveness as employees. The law is well-established that a hearsay objection is only appropriate where a party offers a statement to prove the truth of its contents...; therefore, we must reject claimants' hearsay objection as inapposite.

Evans seems to be a good illustration of the problem that Gallini identified. Looking at the court's opinion, it seems that the men in Evans did pay money in exchange for employment just as Joe Paterno likely knew enough that he should have done more. But again, that's not the question. In Evans, we have four men both being fired and denied unemployment compensation, seemingly solely based upon being named in a grand jury presentment that resulted from a one-sided grand jury investigation...of other people. Is there anyone who thinks that what these men received was anything resembling due process of law?

-CM

The Rule of Evidence That's Never Applied, Take 2: Former Juror as Witness

Federal Rule of Evidence 606(a) provides that

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

As noted in yesterday's post, I have yet to come across a case in which a member of the jury testified or was precluded from testifying pursuant to Rule 606(a). But I have come across two cases in which former jurors were precluded from testifying. One of those cases is Broadhead v. State Farm Mut. Auto. Ins. Co., 579 N.W.2d 761 (Wis.App. 1998), which I discussed yesterday. The other case is People v. Knox, 157 Cal.Rptr. 238 (Cal.App. 1979), which I will discuss today. 

In Knox, Donald Knox was convicted of several charges connected with the killing of John Flanery. After he was convicted, Knox appealed, claiming, inter alia,

that the trial court erred in refusing to allow appellant to call a former juror to testify concerning a conversation between a sheriff's officer and the witness Bethony which the juror allegedly overheard. According to one juror, Kramer, the juror in question, Conley, said to him, "Did you hear the officer? They framed that man." Juror Kramer assumed that Conley was referring to the defendant, but immediately terminated the conversation and informed the court of the occurrence. Conley denied in chambers that he had made such a statement, and further denied that he had had the impression that the officer was coaching the witness. His testimony [wa]s confused, however....

In response, the Court of Appeal noted that

A juror in the trial of an action may not testify as a witness before the jury in that trial against the objection of a party....As the comment to that section says, "A juror-witness is in an anomalous position....A party affected adversely by the juror's testimony is placed in an embarrassing position. He cannot freely cross-examine or impeach the juror for fear of antagonizing the juror and perhaps his fellow jurors as well. And, if he does not attack the juror's testimony, the other jurors may give his testimony undue weight...." It would appear that some weight should be given to these considerations in the case of the testimony of a former juror as well. The jury may continue to identify with a witness who was until recently a member of their group in the same way they are presumed to identify with an active member of the jury. In the instant case the prosecution objected to former Juror Conley's appearing as a witness.

The court then pointed out, however, that "[a]lthough a consideration, clearly the above discussion does not strictly apply to the situation in this case. The admissibility of Mr. Conley's testimony must be considered independently of his former status of a juror." After conducting such an independent analysis, the court then concluded that

Both the officer in question, Detective Carter, and Bethony were questioned at length by the court in chambers, and neither admitted that the conversation had consisted of anything but the officer's urging Bethony to "tell it like it is." The trial judge weighed the conflicting accounts, believed those of Carter and Bethony and accordingly decided that Conley's testimony would be unduly prejudicial, time consuming and confusing to the jury in view of its slight probative value.

-CM

The Rule of Evidence That's Never Applied: Federal Rule of Evidence 606(a) and Jurors as Witnesses

Federal Rule of Evidence 606(a) provides that

A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

As long as I have been teaching Rule 606(a), I haven't come across a single case in which the Federal Rule of a state counterpart has been applied. If any readers are aware of any such cases, please pass them along. Meanwhile, in the next 2 days, I will post entries about cases that almost involved application of Rule 606(a). Both of them involve similar fact patterns: a juror discharged by the judge later being called as a witness by one of the parties.

The first of these cases is Broadhead v. State Farm Mut. Auto. Ins. Co., 579 N.W.2d 761 (Wis.App. 1998). In Broadhead, 

State Farm Mutual Automobile Insurance Company appeal[ed] a judgment awarding Peggy Broadhead damages and costs for personal injuries she sustained as a result of an automobile accident with State Farm's insured.

After Broadhead's husband testified on the first day of trial,

juror Patrick Nolan realized that his assertion during voir dire that he did not know Broadhead was incorrect, and he so informed the bailiff when testimony had concluded for the day. Nolan subsequently explained to the court that he initially had not recognized Broadhead during jury selection, but that he recalled his acquaintance with her when hearing her husband's testimony. Specifically, Nolan recalled that Broadhead and her husband had done some work on a roof at his farm in 1995. Nolan went on to explain that he observed Broadhead carry five gallon buckets of roof coating material up a ladder and then apply the material to his roof. The activities which Nolan witnessed took place some two or three years after Broadhead's car accident.  

After this revelation, the trial court dismissed Nolan as a juror but denied State Farm's request to call Nolan, his wife or his father as a witness in the trial. State Farm subsequently moved for a mistrial which the court also denied. The next day, State Farm again moved for a mistrial, or in the alternative, for a new trial because of "newly discovered evidence." The trial court denied these motions. The jury returned a verdict which awarded Broadhead a total of $38,116.25 in damages for her injuries.

In addressing State Farm's ensuing appeal, the Court of Appeals of Wisconsin noted that

While "[e]very person is competent to be a witness,".... the Wisconsin rules of evidence contain an exception in the case of jurors:  

A member of the jury may not testify as a witness before that jury in the trial of the case in which the member is sitting as a juror. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. Section 906.06(1), STATS.

The court then acknowledged, however, that "Nolan, of course, ceased to be a member of the jury once he was discharged by the court." But the court still found that

inasmuch as he had been a member of the jury during voir dire and an entire day of testimony, most of the problems which the juror incompetence rule implicitly seeks to avoid would have been present had Nolan been allowed to testify....

It is likely that Nolan's testimony would be accorded considerable weight and credibility by his former colleagues on the jury, regardless of whether it was merited, for no other reason than Nolan had been one of them. Broadhead's counsel might well have been unable to freely cross-examine or impeach Nolan due to a concern that it might antagonize the remaining jurors. Conversely, if Broadhead did not attack Nolan's credibility, the remaining jurors might have yet another reason to accord his testimony undue weight. The trial court succinctly stated its rationale for excluding any testimony from Nolan when it noted: "The reason is although we want to achieve justice, we can't be turning jurors into witnesses in front of the same jury that they sat on." We agree and find it hard to envision any circumstance under which it would be appropriate to allow a person who has been discharged from a jury in mid-trial to testify before that same jury.

This left the question of whether the trial court should have declared a mistrial, with the Court of Appeals of Wisconsin answering this question in the negative, finding that (1) Nolan was uncertain of exactly what he saw; and (2) that State Farm presented significant other evidence that Broadhead was exaggerating the extent of her injuries.

-CM

Structural Integrity: District of Minnesota Finds Judicial Testimony is Not Normally Structural Error

Federal Rule of Evidence 605 provides that

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

But while a party does dot need to object to a judge's testimony to preserve the issue for appellate review, is judicial testimony normally structural error necessitating a new trial without a showing of actual prejudice? According to the recent opinion of the United States District Court for the District of Minnesota in Kachina v. Roy, 2012 WL 6965116 (D. Minn. 2012), the answer is "no."

In Roy, Gary Allen Kachina was convicted of receiving stolen property.

At trial, the district court allowed evidence of [Kachina's] 2004 burglary because it believed the State's evidence on the element of Petitioner's intent was weak....The court also believed that evidence of the 2004 burglary showed Petitioner acted with a common plan....Petitioner objected, asserting the evidence of his intent was not weak and the 2004 burglary evidence was more prejudicial than probative....The district court ruled that the evidence's probative value outweighed any potential prejudice to Petitioner....The court then permitted the transcript of a witness to the 2004 burglary to be read to the jury....The district court gave a limiting instruction prior to admitting the transcript and again at the close of trial....The jury heard testimony from the 2004 burglary trial about a man being found inside a home....The district court clarified that the testimony was referring to Petitioner....The court explained: "the person that [the witness] was talking about as it relates to the event on May [10,] 2004...[is] Mr. Kachina."...Petitioner objected to the judge's statement and was overruled.

Kachina thereafter filed a habeas petition in federal court, claiming that the judge's statement was improper because, inter alia, it constituted improper judicial testimony under Federal Rule of Evidence 605. The District of Minnesota, however, found that, even if the judge's statement were judicial testimony, the admission of such testimony is not normally structural error:

[V]iolations of Federal Rule of Evidence 605 normally do not rise to the level of structural error.

Rule 605 of the Federal Rules of Evidence states that a judge may not testify at trial as a witness....In Berber–Tinico, the defendant claimed a "judge's interjections in violation of Rule 605 destroyed the court's image of impartiality and thus violated a defendant's constitutional right to an unbiased trial judge."...The Ninth Circuit held, however, that "a Rule 605 error, without more, does not rise to the level of a structural constitutional error."...The court instead applied the harmless error standard and found that, although the judge violated Rule 605, there was "no serious concern here that the judge's comments and personal knowledge influenced any aspect of the trial or hearing...."...Even assuming the trial judge's comment violated Rule 605, a suspect conclusion in itself, the clarifying comment was harmless.

-CM