EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Saturday, September 22, 2012

Unauthorized Transfer, Take 5: Court Of Criminal Appeals Of Tennessee Rejects Transferred Intent Doctrine Of Forfeiture By Wrongdoing

In my recent writings about the doctrine of forfeiture by wrongdoing, I have focused upon cases that have either explicitly or implicitly applied transferred intent principles to the doctrine. I thought that with today's post, I would focus upon a case that (kind of) falls on the other side of the issue. So, let's take a look at the opinion of the Court of Criminal Appeals of Tennessee in State v. Ivy, 2004 WL 3021146 (Tenn.Crim.App. 2004).

In Ivy, David Ivy was convicted of the June 2001 murder of Lakisha Thomas. At trial, the prosecution admitted statements made by Thomas pursuant to the doctrine of forfeiture by wrongdoing. The prosecution did not (and could not) claim that Ivy's intent was to render Thomas unavailable at the trial for her murder; instead, it claimed that he killed her to prevent her from testifying against him in an aggravated assault case and/or his parole revocation hearing.

After he was convicted, Ivy appealed, with the Court of Criminal Appeals of Tennessee framing the issue as follows:

The prosecution argued that because the Appellant murdered Ms. Thomas to prevent her from testifying against the Appellant in the aggravated assault case and/or parole revocation hearing, her statements are admissible in his trial for her murder under this exception. The Appellant concedes that the statements would be admissible in proceedings regarding the aggravated assault of June 6 or parole revocation proceedings. However, he asserts that the "forfeiture by wrongdoing" exception allows for the admission of witness statements in a proceeding if the witness was murdered to prevent him or her from testifying in that same proceeding....Thus, for example, if the Appellant murdered Ms. Thomas to prevent her from testifying at a parole revocation hearing, Ms. Thomas' statements would be admissible in the parole revocation hearing. Appellant continues to assert that the rule is not intended to permit the wholesale introduction of hearsay statements made by a murder victim against a defendant in the murder trial simply because the parties were involved in or about to be involved in other litigation at the time of the alleged murder....In essence, the Appellant argues that the "forfeiture by wrongdoing" exception is to be generally limited to the introduction of hearsay statements in the proceeding at which the deceased was expected by the accused to testify.

The court then found that Thomas' statements were improperly admitted, concluding that

We cannot conclude that the proof established by a preponderance of the evidence that the Appellant acted with the intent to procure the victim's unavailability as a witness. First, we would note that the record is absent sufficient proof establishing that the Appellant was even aware that a warrant for his arrest had been issued regarding the June 6 aggravated assault incident. Rather, the record reflects that, although issued on June 7, 2001, the warrant was not served until June 27, 2001, nineteen days after the victim's murder. Additionally, although the Appellant was on parole at the time of both the June 6th incident and the victim's June 8th murder, there is no evidence that a parole revocation proceeding had been initiated. Thus, any finding that the Appellant murdered the victim to prevent her from testifying against him at a future proceeding yet to be scheduled is at best speculative. As much as the proof indicated that the Appellant's intent was to prevent Ms. Thomas from testifying against him, e.g., "he wasn't going back to jail" and "he told me if I put the police in his business he was going to fuck me up," there was also evidence that Ms. Thomas had endured the Appellant's abusive behavior throughout the existence of their relationship. To conclude that the murder was committed for the purpose of preventing Ms. Thomas from testifying at potential future proceedings would expand the Rule beyond the scope of its intended purpose. Moreover, it is conceivable that such a broad application of the Rule would lead to wide-spread abuse by parties seeking admission of out-of-court statements of an unavailable declarant. Accordingly, we conclude that the trial court abused its discretion in admitting hearsay statements under the forfeiture-by-wrongdoing exception.

I'm not sure what to make of the court's opinion. You could read it simply as saying that Ivy didn't have the requisite intent to render Thomas unavailable at any trial, meaning that Ivy is not even a case about transferred intent. That said, Ivy himself acknowledged that Thomas' statements were admissible against him at his aggravated assault case and/or his parole revocation hearing. And the court's conclusion about the possibility of "wide-spread abuse" seems much more directed at the argument that Thomas' statements might be admissible at the murder trial and not at the aggravated assault case or parole revocation hearing.

Of course, Ivy also predates Giles, in which Justice Scalia found that 

Where...an abusive relationship culminates in murder, the evidence may support a finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities or cooperating with a criminal prosecution—rendering her prior statements admissible under the forfeiture doctrine.



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The Tennessee Supreme Court disagreed, however, and found that the statements were properly admitted in the murder trial under the forfeiture rule. State v. Ivy, 188 S.W.3d 132 (Tenn. 2006). The Supreme Court's Ivy decision held that the admission of the statements is not limited to the proceeding where the witness would have testified, so it seems consistent with your idea of transferred intent.

Posted by: Ellen | Sep 24, 2012 12:34:03 PM

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