Saturday, August 14, 2010
Inadmissible But Harmless: Fouth Circuit Affirms Conviction Despite Erroneous Admission of Evidence of Uncharged Murder
In United States v. Wilson, --- F.3d ---, 2010 WL 3156775 (4th Cir. Aug. 11, 2010), the U.S. Court of Appeals for the Fourth Circuit upheld a conviction despite the erroneous admission at trial of evidence concerning an uncharged murder.
Lorenzo A. Wilson appealed from his conviction for conspiracy to kidnap, in violation of 18 U.S.C. § 1201(c) and § 2, and his sentence of life imprisonment for that offense. The prosecution argued at trial that Wilson assisted in the kidnapping (in Washington, D.C.) and murder (in Maryland, bringing the case into the Fourth Circuit) of Eric Hayes on the evening of January 3, 2002. Id. at 2-6 [pin cites refer to the PDF of the opinion]. Wilson's trial was severed from the other defendants because of statements Wilson made implicating his coconspirators. (The court's opinion in United States v. Lighty, ---F.3d ---, 2010 WL 3156777, affirming the convictions of co-defendants tried separately, was issued on the same day.)
At Wilson's trial, the prosecution introduced evidence of a January 30, 2002 drive-by shooting which resulted in the death of Antoine Newbill. As in the Hayes murder, Wilson participated in the drive-by shooting of Newbill but did not kill the victim. The same shooter, Kenneth Jamal Lighty, killed Hayes and Newbill. Wilson, at 6-7. Lighty was sentenced to death for the Hayes killing. Lighty, at 3.
Although not charged with any crime related to the Newbill shooting, Wilson faced the following evidence at his trial, which he maintains should have been excluded under Federal Rule of Evidence 404(b) as evidence of "other wrongs or acts solely to prove [Wilson’s] bad character," Wilson, at 9:
[A witness] testified that Wilson told him that he 'and a couple of guys went [to Afton Street] and started shooting' 'at a crowd of guys down there' in order to confront a man known as 'Boo-Boo.' According to what Wilson told [the witness], 'they pulled up, [Wilson’s] window was rolled down and . . . he started firing at Boo-Boo.' Wilson claimed to have 'two guns in his hand,' and [the witness] recalled that Wilson thought 'one of them was probably a .25 or a .380, and the other one was probably a 9-millimeter.'
"Thomas Hart, one of the Afton Street Shooting victims, then testified that he, Newbill, and a man known as 'Boo- Boo' were standing on the street when a Ford Taurus drove by and shots were fired at them from the front passenger side and the rear of the car. Boo-Boo was not injured. Hart was shot in the foot, the arm, and the chest, and Newbill died as a result of gunshot wounds he received. [ ... ]
The Government then called Marlon Hines, who lived off of Afton Street and was in his home the day of the shooting, as a witness. Hines described Hart, Newbill, and Boo-Boo entering his home after the gunshots were fired. Newbill told Hines he could not catch his breath and that he thought he was shot. Hines testified that Newbill died in his (Hines’) home shortly thereafter. Hines also described an incident a day or two before the shooting. He and Newbill were driving together on Afton Street when Hines observed Boo-Boo, Wilson, Lighty, and another man engaged in a heated argument.
Wilson, at 9-11. Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action 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, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
Wilson argued that the evidence should also have been barred by Rule 403, which allows exclusion of evidence "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."
The test for admissibility was the following:
We have adopted a four-prong test for assessing the admissibility of evidence under Rule 404(b): (1) it must be relevant to an issue other than character; (2) it must be necessary to prove an element of the crime charged; (3) it must be reliable; and (4) it must be admissible under Rule 403, in that the probative value of the evidence must not be substantially outweighed by its prejudicial effect. United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997).
Wilson, at 13. Based on that test, the Fourth Circuit agreed that much of the Afton Street shooting evidence was improperly admitted. "The testimony of Hart, Hines, and the law enforcement personnel was even more tangential than [other] testimony. Their testimony did not connect the Afton Street Shooting and the Hayes kidnapping and murder because no connection existed. The events occurred at different times, at different places, and involved completely different motives. ... The Afton Street Shooting evidence was not inextricably intertwined with the Government’s case against Wilson for the Hayes kidnapping and murder." Id., at 14-15.
Unfortunately for Wilson, the court then held that the admission was harmless error, allowing his conviction to be affirmed.
"Having reviewed the record of Wilson’s trial, we conclude with fair assurance that the admission of the Afton Street Shooting evidence did not affect the judgment against him. The evidence of Wilson’s participation in the conspiracy to kidnap Hayes was overwhelming. Wilson confessed to his role in the kidnapping to two individuals ...
Wilson said that Lighty shot Hayes, and that Lighty had been arrested with the firearm he used to shoot Hayes. Ballistics evidence indicated the .380 caliber handgun Lighty possessed at the time he was arrested shared numerous rifling characteristics with the firearm used to shoot Hayes.
Id., at 17-18 (also reciting other evidence). While affirming the conviction, the court expressed its annoyance with the prosecutors. "As we recognized and cautioned with regard to Lighty, the admission of evidence of an uncharged murder is undoubtedly prejudicial. ... As in Lighty, the AUSAs exercised poor judgment in putting the Afton Street Shooting evidence before the jury in the guilt phase of Wilson’s trial. We explained above that such evidence was not necessary and its use pointlessly introduced error into the case. In different circumstances, such a misjudgment by the prosecutors could lead to the reversal of an otherwise valid conviction. We caution the U.S. Attorney’s office to exercise more prudent judgment in the future." Id. at 19-20 & n.17.
This case shows the tremendous power of harmless error analysis. As far as introducing error into a case with prejudicial evidence, one can hardly do better than informing a murder jury that the defendant was involved in an unrelated homicide weeks after the charged offense. But with sufficient evidence offered to prove the crime charged, an appeals court can chastise the prosecutor, hold that the trial judge has committed an abuse of discretion, and then affirm the conviction.