EvidenceProf Blog

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

Monday, November 26, 2012

Unauthorized Transfer, Again: Court Of Appeals Of Indiana Applies Transferred Intent Doctrine Of Forfeiture By Wrongdoing

The question of whether there is a transferred intent doctrine of forfeiture by wrongdoing has occupied this blog quite a bit over the last few months. The series of posts on this topic was prompted by the Drew Peterson case, with the question there being whether Drew Peterson killing two ex-wives to prevent them from testifying at existing or hypothetical future divorce proceedings could lead to application of forfeiture by wrongdoing at his murder trial for killing one of the ex-wives. The answer to that question, at least according to the Illinois courts, was "yes," and now, Illinois' neighbor to the east has reached a similar conclusion based upon similar facts in White v. State, 2012 WL 5875681 (Ind.App. 2012).

In White, Tyler White

and Amy Meyer began dating in 2005, got married, and, in June 2008, Amy gave birth to a son, M.W. White was verbally abusive to Amy throughout their relationship, and the couple separated shortly after M.W.'s birth. In July, Amy moved in with her boyfriend, Lee Flueckiger. White filed for divorce shortly thereafter..

White and Amy shared custody of M.W. pending the provisional custody hearing, which was scheduled for October 28, 2009. White continued his verbal abuse of Amy, and he and Amy frequently argued regarding the parenting time schedule. Amy began using her cell phone to record the custody exchanges, and she intended to use those recordings as evidence against White at the provisional custody hearing. During one exchange when Flueckiger was present, White "pointed his finger at [Flueckiger] like he was shooting a gun."...In March 2009, White purchased a handgun, and he carried that gun on his person most of the time thereafter.  

On October 27, one day before the provisional custody hearing, Amy arrived at White's parents' house, where White was living, to pick up M.W. White asked Amy whether he could keep M.W. for an additional thirty minutes, but Amy denied that request and told White that she wanted to leave with M.W. immediately. An argument ensued, and White shot Amy twice in the abdomen.  

Amy died from the gunshot wounds, and White was thereafter charged with her murder. At White's murder trial, the prosecution introduced statements made by Amy pursuant to the doctrine of forfeiture by wrongdoing.

After he was convicted, White appealed, claiming that the doctrine of forfeiture by wrongdoing was inapplicable. In response, the Court of Appeals of Indiana found that

The State asserted two arguments on this issue at the admissibility hearing. First, the State alleged that White killed Amy to prevent her from testifying at his murder trial. Second, the State alleged that White killed Amy to prevent her from testifying at the provisional custody hearing, which was scheduled for the day after the shooting. We hold that the preponderance of the evidence supports a determination that White killed Amy to prevent her from testifying at the provisional custody hearing. Accordingly, we need not address the State's first theory.

The court then explained its reasoning as follows:

In support of his contention that White did not kill Amy to prevent her from testifying at the provisional custody hearing, White asserts that such a theory "ma[kes] no sense."...White points out that the hearing was "provisional" and would not have been the final custody determination....And White states that there was no evidence that he had wanted to continue the hearing. Finally, White maintains that "unlike an essential witness in a criminal case, [White] could not automatically prevail in the provisional custody hearing by killing Amy. To the contrary, shooting [M.W.]'s mother would almost certainly result in [M.W.'s] placement somewhere else."...We are not persuaded.  

The State presented ample evidence that White and Amy had fought bitterly over custody of M.W. since their separation. Immediately preceding the shooting, White had requested an additional thirty minutes of parenting time with M.W., which Amy denied. An argument ensued, which ended with White shooting and killing Amy. In her petition for a provisional custody order, Amy had requested full custody of M.W. pending the final decree. At the 804(b)(5) hearing, the State presented evidence that Amy had been using her cell phone to record custody exchanges to use at the provisional custody hearing and that White was aware of those recordings. Moreover, during his statement to police after the shooting, White admitted that he had "mocked" Amy just prior to the shooting because she had frequently pointed out his conduct that would "look bad" for him "in court."...And the State maintains that, had White prevailed in his claim of self-defense, White would likely have been granted full custody of M.W.

Thus, a preponderance of the evidence supports a reasonable inference that White's intent in killing Amy was, at least in part, to keep her from testifying against him at the provisional custody hearing, which was to take place the next day. The evidence shows that the couple's custody battle was the source of the ongoing conflict between them. The fact that the conflict escalated one day before a custody hearing is substantial evidence of White's intent when he shot Amy. Contrary to White's assertion on appeal, it is entirely plausible, if not likely, that had White succeeded in his self-defense to the murder charge, White, as the only surviving biological parent, would have been granted sole custody of M.W. Under Evidence Rule 804(b)(5), because White was at least partially motivated to kill Amy to prevent her from testifying at the provisional custody hearing, the trial court properly allowed the challenged hearsay evidence.



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I disagree with the court.

I don't think the inference is at all reasonable. Yes, there is evidence that they two had a contentious relationship. So what? The mere fact that a couple had a contentious relationship doesn't mean he killed her to prevent her from /testifying/. In fact, it could be strongly argued that this cuts the opposite way. The fact that had a contentious relationship means it's more likely than not he killed her in the heat of passion rather than to stop her from testifying.

The problem with this analysis is that the court focuses on the wrong thing: violence. The proper focus is testifying. The court offers no data to support the fact that there is any /connection/ between the violence and the testifying other than by subscribing to the historical fallacy.

Posted by: Daniel | Nov 26, 2012 10:10:12 AM

I think it is this type of case that illustrates why I'm uncomfortable with the "transfer of intent" doctrine. In practice, the doctrine serves to reintroduce the "benefit test" through the back door and we will be left with a causation + benefit test all over again only without calling it that. The fact that a future legal proceeding exists causes judges to work backwards through the chain of causation rather than forward. The problem with a transfer of intent theory is that by necessitating a legal proceeding we are right back to focusing in on what the /victim's/ intent was and since the wrongdoer interfered with the victim's intent by causing them to be absent then that is what the wrongdoer must have intended.

Imagine the follow hypothetical. There are four people Susy, John, Paul and Mary. Suzy and John are married, Mary is Suzy's best friend, and Paul is John's best friend. Suzy and John have been going through a rough patch in their relationship and he is abusing her. John is concerned that she might file for a divorce so he has Paul follow her. Susy and Mary are talking in a diner one night having tea and Paul enters the diner and he hears Mary tell Suzy that John is abusing her and then she says "Yeah, I'm gonna do it" which Paul takes to mean file a divorce. He calls John on the phone and says that Suzy is going to divorce him. John drives to the diner and there is a confrontation in the parking lot late at night and Suzy is shot dead.

At trial, John claims that he fired in self-defense after she tried to hit him. The prosecution wants to admit Suzy's comments to Mary under FBW. The problem is that under cross Mary testifies that Paul was wrong; Suzy had no intention of filing for a divorce. What Paul heard Suzy agreeing to was Mary's advice to take a cab home rather than calling John for a ride. So the legal proceeding that concerned John is simply a figment of his own imagination. There was never any formal legal proceeding and the victim never even contemplated a legal proceeding.

Now it seems to me under this hypo a transfer of intent doctrine must fail. Why? Because there is no legal proceeding to transfer the intent to. There's no actual legal proceeding in a formal sense and there is no prospective legal proceeding for the victim to to be involved in.

Yet I'd argue that under a true intent + causation standard Suzy's comments to Mary should be allowed under FBW. Why? Because it is the wrongdoer's intent that matters. The fact that the legal proceeding was entirely fictional is irrelevant; he still had the "guilty mind" to qualify as intent. Then he caused her to be absent from his fictional (and any future real) legal proceeding.

Which leads us back to the current case. What evidence does that prosecution have in regards to White's intent? None whatsoever. Yet that didn't stop them from "transferring" the intent because they are only going to transfer the intent forward after they have already transferred it backwards!

Posted by: Daniel | Nov 26, 2012 4:42:47 PM

Yes, I agree with you that courts seem to be stretching, with the Drew Peterson case maybe being one of the more egregious cases.

Posted by: Colin Miller | Nov 28, 2012 11:35:58 AM

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