EvidenceProf Blog

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

Sunday, November 11, 2012

He's A Character Guy: 4th Circuit Finds No Ineffective Assistance Despite Failure To Object To Character Evidence

Pursuant to West Virginia Rule of Evidence 404(a), "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving that he or she acted in conformity therewith on a particular occasion, except" in limited circumstances that usually consist of a criminal defendant opening the door to the admission of propensity character evidence. In Estep v. Ballard, 2012 WL 5417556 (4th Cir. 2012), the defendant did not open the door to the admission of character evidence and yet the prosecution still admitted it. So, did the defendant received the ineffective assistance of counsel because his trial attorney did not object to the admission of this evidence?

In Estep, James N. Estep petitioned for a writ of habeas corpus in connection with his sentence of life without possibility of parole for first-degree felony murder. The character evidence at issue concerned the victim, Donovan Barringer, and in came in several forms. For instance, the prosecutor told the jury:

Donovan Barringer is going to be remembered in this courtroom during this trial as a kind and gentle man who sought out a very simple lifestyle, and a man who had a very large heart. The kind of fellow that always was willing to give anything he had to someone else he thought needed it. He was a man that you will find to have been loved by his family, and a man who is now being mourned by his family.
After you discover the facts about this kind and gentle man, you're going to find it especially painful to think that he lost his life while he was attempting to help a stranger....

Meanwhile, Barringer's nephew testified that Barringer

was like a brother, a father, all rolled up into one. He was my sounding board. He and I did all kinds of things together, and he was my encourager. He gave me advice. Taught me all kinds of things. Taught me how to throw a baseball, how to catch a football, how to fish and hunt, and how to drive a car. Just all kinds of things like that. We spent lots of times, a lot of time hunting and fishing. Camping. Just all kinds of things together.

The Fourth Circuit found that Estep easily satisfied the first prong of the ineffective assistance of counsel test, finding that trial counsel's failure to object even once to the substantial quantity of good character evidence elicited by the prosecution constituted deficient performance." 

The court then had to consider whether there was a reasonable probability that the outcome would have been different (i.e., that Estep would have received a lighter sentence) if defense counsel would have objected to this character evidence. The Fourth Circuit found that this second prong was not satisfied because, inter alia

the evidence demonstrates that Estep displayed an alarming absence of remorse in the hours following the gruesome attack by—among other actions—burglarizing Barringer's home (where his ailing, eighty-seven-year-old mother lay in bed); stealing his pickup truck; driving across state lines; checking into a hotel; and frittering away Barringer's money on a CD player, CDs, and posters. Damaging also was the fact that Estep and his girlfriend purchased two packages of hair dye the morning after the murder—from which the jury could have inferred that they were intent on evading capture.



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