EvidenceProf Blog

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

Wednesday, September 12, 2012

Unauthorized Transfer, Take 2: People v. Banos & The Transferred Intent Doctrine Of Forfeiture By Wrongdoing

[9/13/12 Update: Here is my essay on the issue: The Purpose Driven Rule: Drew Peterson, Giles v. California, and the Transferred Intent Doctrine of Forfeiture by Wrongdoing]

Yesterday, I posted an entry questioning the legitimacy of a transferred intent doctrine of forfeiture by wrong. A commenter then responded by asking for my thoughts on People v. Banos, 100 Cal.Rptr.3d 476 (Cal.App. 2 Dist. 2009). Here's my post on Banos, which I follow with a post on what I think is the key portion of Justice Scalia's opinion in Giles v. California.

In Banos, a jury convicted Manuel Banos of the second degree murder of his ex-girlfriend, Mary Ann Cortez, and two counts of first degree burglary. At trial,

Defendant testified that he moved in with Cortez in late 2001. She practiced witchcraft, and defendant believed she had the power to cast spells. Six months after moving in with her, defendant began having headaches, which he believed Cortez was causing. Even after Cortez caused him to be arrested several times, defendant reunited with her because he was bewitched and completely under her control.

Thereafter, Banos allegedly assaulted Cortez, and, "[o]n July 23, 2003, a protective order was issued which restrained defendant from annoying, harassing, striking, threatening or disturbing Cortez for a period of three years." Subsequently, Banos allegedly violated the restraining order twice, with a hearing on the alleged violation(s) scheduled for April 19, 2004. Cortez, however, never made it that hearing; instead, she died 9 days earlier, with Banos being charged with her murder. At Banos' murder trial, the prosecution introduced into evidence statements that Cortez made to two officers prior to hear death. After he was convicted, Banos appealed, claiming that these statements were improperly admitted under the doctrine of forfeiture by wrongdoing.

In addressing Banos' appeal, the Court of Appeal first addressed the issue of whether forfeiture by wrongdoing applies only when the defendant prevents a potential witness from testifying or also when he intends to prevent her from cooperating with law enforcement authorities. The court ultimately concluded that forfeiture applies in both settings:

Although the United States Supreme Court in Giles II narrowed the exception by requiring an intent to prevent the witness from acting in a certain manner, the court stated in broad terms the type of act that triggered the exception. The court's discussion of this point came in reaction to an observation made by the dissent that if the majority would have adopted a forfeiture by wrongdoing rule that was not limited by Crawford and Davis, the rule "would be particularly helpful to women in abusive relationships—or at least particularly helpful in punishing their abusers."...The majority chided the dissent for essentially proposing one confrontation clause for domestic violence cases and another for all criminal prosecutions. The court went on to say: "Acts of domestic violence often are intended to dissuade a victim from resorting to outside help, and include conduct designed to prevent testimony to police officers or cooperation in criminal prosecutions. Where such 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. Earlier abuse, or threats of abuse, intended to dissuade the victim from resorting to outside help would be highly relevant to this inquiry, as would evidence of ongoing criminal proceedings at which the victim would have been expected to testify."...

The use of the disjunctive "or," in our view, reflects the court's intent to designate two alternative ways of satisfying the factual predicate for application of the forfeiture by wrongdoing doctrine: evidence that the defendant (1) intended to stop the witness from reporting abuse to the authorities; or (2) intended to stop the witness from testifying in a criminal proceeding.

The court then went on to find that there was evidence to support the finding that Banos had at least one of these intentions and maybe both. In terms of preventing the reporting of abuse, the court noted:

That defendant killed Cortez to stop her from reporting his assaultive behavior to the police can reasonably be inferred from the statements defendant is heard making on the tape of Cortez's June 7, 2003, call to 911, as to which there is no evidentiary challenge: "Do you want to speak to the police?" "Are you going to talk?" "Are you going to speak with the cops? Are you going to speak?" That the killing occurred 10 months later does not minimize the significance of that evidence as defendant was twice arrested for violating the July 2003 restraining order during the intervening months, one time just weeks before the killing. The evidence suggests during the entire period defendant had the intent to dissuade Cortez from cooperating with police.

And, with regard to preventing Cortez from testifying, the court noted:

At the time of her death, there was pending a hearing on defendant's violation of the restraining order. That defendant killed Cortez to stop her from testifying against him at the hearing is supported by evidence that he was arrested multiple times at Cortez's apartment by police responding to a call about violation of a court order and domestic violence. The trial court reasonably could have found that defendant knew he would be prosecuted for these actions and that Cortez would testify at those proceedings. Substantial evidence also supports the implied finding that once defendant broke into Cortez's home on April 10th, he knew that criminal proceedings would be commenced and as she had cooperated with the police before, Cortez was likely to testify at those proceedings.

The court then acknowledged that these might not have been the only reasons why Banos killed Cortez but found that this acknowledgement didn't matter:

Our final observation is that nothing in Crawford, Davis, Giles I or Giles II suggests that the defendant's sole purpose in killing the victim must be to stop the victim from cooperating with authorities or testifying against the defendant. It strikes us as illogical and inconsistent with the equitable nature of the doctrine to hold that a defendant who otherwise would forfeit confrontation rights by his wrongdoing (intent to dissuade a witness) suddenly regains those confrontation rights if he can demonstrate another evil motive for his conduct. In the absence of clear directions on this point from the United States Supreme Court or our Supreme Court, we decline to create such a rule.  

Substantial evidence exists that defendant harbored the requisite motive. That he may have simultaneously intended revenge for Cortez, or to stop what he believed was her supernatural control over him, is of no assistance to him.

So, Banos is important for three reasons: (1) it recognized the transferred intent doctrine of forfeiture by wrongdoing; (2) it found that this transferred intent doctrine applies even if the defendant merely sought to prevent the declarant from cooperating with police; and (3) it found that an intention to render the declarant unavailable does not need to be the sole intention for the act of killing or incapacitation.



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The term "transferred intent" is confusing to me; I think the better phrase in this situation is "inferred intent". The goal isn't to transfer the intention from Crime A to Crime B. What we are actually trying to determine is the intent of the defendant towards the alleged victim taking the situation as a whole. I think it's important to focus in on the fact that almost all of these cases either arise from a history of or a direct accusation of domestic violence. As the Souter/Ginsburg concurrence emphasizes the goal in classic domestic abuse is to silence the potential witness not from crime A or Cime B but for any crime related to the abuser.

So the better question is to ask: what can we infer about the intent of the defendant towards the victim of the crime. Giles was problematic because there was plenty of evidence that the relationship in the background was mutually acrimonious and his claim of self defense was at least plausible. On the other hand, the facts in Banos are quite different. In Banos there is at least circumstantial evidence that Banos wanted to silence the witness and he never offered any claim to self defense or any other explanation for his actions towards the victim. It's important in this regard that in both Banos and in Giles there was never any dispute by the defendant that they engaged in acts of violence towards the victim.

In this sense both Banos and Giles are "easy" cases because the only dispute is what the intent of the defendant was. Perterson is more difficult precisely because not only did there need to be evidence of intent, there needed to be evidence of an underlying crime. It is precisely the inherent circularity that this situation presents that the SOuter/Ginsburg concurrence rejects. Intent frees us from the circularity but this intent is not untethered from the underlying fact pattern. Intent must be objectively evaluated with the presumption of innocence in mind. I'd argue that there are indeed situations where the evidence of intent is too weak, the circularity kicks in, and the testimony must be denied. Even when, as in Giles, there is no dispute that the defendant killed the victim. If intent must be evaluated objectively even with there is no dispute that the defendant killed the victim it is infinitely more important when the responsible party for the killing is disputed. I haven't studied the Peterson case in great detail but my superficial reaction is that it seems to me to be exactly that type of case. As far as I understand it nearly the exact same testimony was used to infer intent to silence the witness and used to convict Peterson of the crime. That is too much and animates the concern that underlies the Scalia language you quoted earlier.

Posted by: Daniel | Sep 12, 2012 10:42:17 AM

Daniel: I certainly understand what you are saying about inferred intent, but, in my opinion, transferred intent has to apply for forfeiture to be triggered in a case like the Drew Peterson trial. Peterson obviously could not have intended to prevent Savio from testifying at Peterson's trial for murdering Savio, a trial that couldn't have existed before Peterson completed his act of killing Savio. Therefore, the only way that Savio's statements could be admissible at Peterson's murder trial was if his intent to render her unavailable to testify at the property distribution hearing (Trial A) transferred to the murder trial (Trial B). I break it down more in the essay that I just posted:


Posted by: Colin Miller | Sep 13, 2012 6:09:12 AM

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