Chapter three

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YOU DECIDES


CHAPTER THREE
YOU DECIDE 3.1. Knapp v. State
We are of opinion that the testimony referred to was competent. While appellant's counsel are correct in their assertion that the question was whether appellant had heard a story to the effect

that the deceased had offered serious violence to the old man, yet it does not follow that the testimony complained of did not tend to negative the claim of appellant as to what he had heard.

One of the first principles of human nature is the impulse to speak the truth. “This principle,” says Dr. Reid, whom Professor Greenleaf quotes at length in his work on Evidence .
“Honesty has a powerful operation, even in the greatest liars; for where they lie once they speak truth 100 times.” Truth speaking preponderating, it follows that to show that there was no basis in fact for the statement appellant claims to have heard had a tendency to make it less probable that his testimony on this point was true. Indeed, since this court has not, in cases where self-defense is asserted as a justification for homicide, confined the evidence concerning the deceased to character evidence, we do not perceive how, without the possibility of a gross perversion of right, the state could be denied the opportunity to meet in the manner indicated the evidence of the defendant as to what he had heard, where he, cunningly perhaps, denies that he can remember who gave him the information. The fact proved by the state tended to discredit appellant, since it showed that somewhere between the fact and the testimony there was a person who was not a truth speaker, and, appellant being unable to point to his informant, it must at least be said that the testimony complained of had a tendency to render his claim as to what he had heard less probable.

YOU DECIDE 3.2. Commonwealth v. Holden.
MUSMANNO, J. (dissenting).

The Majority Opinion fails to discuss a very important matter raised by the defendant Charles Holden in his appeal to this Court for a new trial.

On December 31, 1955, between 5:15 and 6:40 a.m., Cora Smith was killed in her home as the result of being struck over the head. The defendant, Charles Holden, was accused, tried, and convicted of her murder. He maintained in his defense that he was innocent since he was not in the victim's home at the time of the brutal attack.

At the time of Holden's arrest, he was taken by the police to the home of a Ralph Jones who had been with Holden for several hours prior to the killing. In Holden's presence, Jones was questioned by the police. The matter of this questioning became a subject for inquiry at the later trial. The assistant district attorney representing the Commonwealth asked Jones if, at the time he was being quizzed by the police in Holden's presence, Holden did anything that was unusual. Jones replied:

"Well, during the period of time that the detectives were questioning me in his presence, I believe one of them noticed him to sort of wink or something."

The assistant district attorney then asked Jones what Holden meant, and Jones replied:

"I didn't rightfully know whether it was a wink or something that was in his eye."

The prosecuting attorney's question was a flagrant violation of the rules of evidence and should not have been permitted. What Jones may have thought that Holden meant by the wink, if it was a wink, was entirely speculative. The prosecuting attorney might just as well have asked: "What was Holden thinking of at the time?" In fact, the question imported that very type of query because obviously the eye, no matter how eloquent it is supposed to be in the minds of poets, novelists, and dreamers, is still not capable, by a blink, to telegraph complicated messages, unless, of course, the blinker and the blinkee have previously agreed upon a code.

When Jones replied that he did not know whether Holden had actually winked or had been troubled by a foreign substance in his eye, the Commonwealth's attorney asked him about a statement he had made to the police some time following the winking incident. On January 11th, a few days after the blinking affair, Captain Flynn of the City Detective Bureau asked Jones: "What did you take this wink to be?" and Jones replied:

"I think he was trying to get me to make an alibi for him to cover up some of his actions and I don't know nothing about any of his actions."

Commonwealth's counsel sought to introduce this statement at the trial and defense counsel properly objected, explaining:

"We object to that. Whatever it was, it wasn't made in the presence of the defendant, Charles Holden."

The objection was overruled and the jury was thus informed that the defendant endeavored to have Jones frame an alibi for him. On what evidence was this information based? On a wink.

And what did the wink say? I repeat:

"I think he was trying to get me to make an alibi for him to cover up some of his actions and I don't know nothing about any of his actions."

It will be noted that the stupendous and compendious wink not only solicited the fabrication of a spurious alibi but specified that it was "to cover up some of his actions." One movement of the eyelid conveyed a message of 21 words. Not even the most abbreviated Morse code could say so much with such little expenditure of muscular and mechanical power.

Although the statement of the interpretation of the wink is preposterous on its face, I can see how it could be made to seem very informative and convincing to the jury, since it was given to the jury with the Court's approval. If Holden had actually spoken to Jones the words which Jones related in his interpretation of the wink, no more effective admission of guilty knowledge could be imagined. Jones and Holden had been together prior to the killing. Holden tells Jones to make up an alibi so that Jones can extend their companionship of the evening to an hour including and beyond the time of the killing. And then Jones not only refuses to do what Holden asks him to do, but relates the criminal attempt on the part of Holden to suborn perjury.

But the fact of the matter is that Holden did not ask Jones to fabricate an alibi. He did not ask him to "cover up some of his actions." All that Holden did was to wink. No one knows whether he was trying to convey a message, whether he was attempting to shut out a strong ray of light, or whether a bit of dust troubled him at the moment. The Court, however, allowed the jury to believe that the wink was a semaphoric signal to Jones to commit perjury.

Was ever more ridiculous evidence presented in a murder trial? What is to happen to our rules of evidence in criminal trials if they can be breached so glaringly, without reproof or criticism by this Court? Holden was convicted and sentenced to life imprisonment. He might have been sentenced to death. On a wink.

And the Majority does not consider the matter of sufficient importance even to mention it.

If a witness is to be allowed to state what he believes a wink said, why should he not be allowed to interpret a cough? Or a sneeze? Or a grunt? Or a hiccough? Why should he indeed not be empowered to testify as to what is passing through an accused's brain? Why not permit mind readers to read a defendant's mind, and thus eliminate the jury system completely because who knows better than the defendant himself whether or not he committed the crime of which he stands accused?

The refusal of this Court to grant a new trial, with so momentous a violation of the defendant's rights, duly noted and excepted to on the record, would suggest that here the law has not only winked but closed both eyes.



YOU DECIDE 3.3. United States v. MacRae

The remaining two claimed errors involve evidentiary rulings by the district court. As to rulings of this sort, it is a commonplace that the trial court enjoys a wide discretion, one which we do not disturb except for abuse.

The first of these complaints is of the admission of various photographs of the deceased and of the death scene. It is said that these should have been excluded under Rule 403, Federal Rules of Evidence, as relevant matter the probative value of which is substantially outweighed by the danger of unfair prejudice. Two of these color prints are indeed as the trial court characterized them gross, distasteful and disturbing. Exhibit 29 is a view of Mrs. McRae's corpse, clothed in her bloody garments, bent forward so as to display an exit wound in the back of her skull produced by part of McRae's dum-dum bullet, which exploded in her brain. Exhibit 22 shows a front view of her body, seated in the chair where she died, her left eye disfigured by the bullet's entry and her head broken by its force. By comparison with these, the other photographs are mild; but these are not pretty even to the hardened eye. Neither, however, was the crime, and these exhibits are not flagrantly or deliberately gruesome depictions of it.. The trial court carefully reviewed the government's photographic exhibits, excluding some of little probative value. It found those admitted important to establishing elements of the offense such as Mrs. McRae's position and that of the rifle when it was fired, as bearing on McRae's defense of accident.

Relevant evidence is inherently prejudicial; but it is only Unfair prejudice, Substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403. Unless trials are to be conducted on scenarios, on unreal facts tailored and sanitized for the occasion, the application of Rule 403 must be cautious and sparing. Its major function is limited to excluding matter of scant or cumulative probative force, dragged in by the heels for the sake of its prejudicial effect. As to such, Rule 403 is meant to relax the iron rule of relevance, to permit the trial judge to preserve the fairness of the proceedings by exclusion despite its relevance. It is not designed to permit the court to "even out" the weight of the evidence, to mitigate a crime, or to make a contest where there is little or none. Here was no parade of horrors. We refuse to interfere with the trial court's exercise of its discretion.

Finally, McRae complains of the admission, on rebuttal, of evidence about his intimate relations with certain women. The first of these commenced two months after his wife's death. We have carefully reviewed McRae's own testimony, which dwelt on his grief and his intense devotion to his wife and family, all in an attempt to cast Mrs. McRae's death as accidental. We note that he introduced medical testimony of his hospitalization during a two-week period following the murder for "grief syndrome." We note also that the trial court excluded some of the more prejudicial portions of the proffered rebuttal testimony, such as that recounting a particularly gross expression of contempt by him for his dead wife. In view of his emphasis on his desolation at her death and on his undying devotion, we cannot say that an abuse of discretion occurred in the admission of this rebuttal evidence.

YOU DECIDE 3.4. People v. Cutchall

In the present case, the evidence of flight consisted of testimony that, immediately following the crime, defendant fled to Jacksonville, Florida, where he was arrested eleven days later. The evidence also showed that defendant had assumed the alias "Robert Kline," which he gave at the time of his arrest.

In ruling this evidence admissible, the trial court found the evidence relevant to the issue of defendant's state of mind and its probative value sufficient to withstand any challenge under MRE 403. The court stated:

Given the fact that the defense in this case is alibi, that is to say that defendant didn't commit this crime, is distinguished from the defense that while the defendant committed certain acts, the acts do not constitute the crime charged but some lesser offense or indeed justified or excused by self-defense, the evidence of flight is relevant to the consciousness of the guilt. One of the dangers in allowing this kind of evidence, that it is equally interpretable as evidence of panic, but if the defense is that the defendant did not commit the crime it is difficult to understand how he might have flown into a panic. Subsequently, I conclude both based on the authorities I have reviewed as well as the logic of the matter, such evidence can be, with Court's discretion of course, admissible to show evidence of consciousness of guilt as one facet of the defendant's state of mind. In this particular case, in addition to flight there is also the further evidence that the defendant attempted to conceal his identity which makes the evidence even more probative, it seems to me, and when not getting into the 403 argument in this issue, I would conclude it is strongly relevant and would easily survive a 403 type challenge. Subsequently, I conclude that the evidence should be admitted and that the instruction requested, which is 401, is appropriate. Defendant's motion with respect to this particular evidence is, therefore, denied.

The trial court did not err in admitting this evidence. The instruction given by the court concerning the use of evidence of flight was accurate. Specific authority supports the court's conclusion that such evidence is admissible to show consciousness of guilt. The circumstantial nature of the evidence does not render the evidence inadmissible pursuant to MRE 403.

We draw no adverse conclusions because the proofs were circumstantial. There is no real distinction between circumstantial and direct evidence; sometimes circumstantial evidence can be more compelling than direct evidence. It is not a less worthy class of evidence; intrinsically, it is not different from testimonial evidence. In any event, any concern about the circumstantial nature of the proofs was dissipated because defendant explicitly testified that he was innocently present at the crime scene. The jury, for good and sound reasons, ultimately rejected his exculpatory claim.

Nor can we say that the jury gave too much weight to the evidence of flight. Many facts, apart from defendant's flight, point ineluctably to his guilt beyond a reasonable doubt. Decades ago, Professor John Henry Wigmore described in his classic exposition of "Conduct as Evidence of Guilt" many of the guilty behaviors exhibited by defendants. See 2 Wigmore, Evidence (Chadbourn rev), §§ 273-276, pp 115-132. Guilt leaves varieties of psychological marks on human beings, which Wigmore termed "consciousness of guilt." See generally 1A Wigmore (Tillers rev), § 173, p 1840 and 2 Wigmore (Chadbourn rev), §§ 266-283, pp 97-187. Applying Wigmore's categories, defendant's flight becomes part of a seamless web of evidence that a rational trier of fact could employ to find the elements of the crime proven beyond a reasonable doubt.

YOU DECIDE 3.5. Virgin Islands v. Parilla
A statutory presumption that requires the jury to infer from proof of injury a necessary element of the crime charged, i.e., that the defendant intended to commit mayhem upon his victim, is the type of error encompassed by Fed.R.Crim.P. 52(b) because it allows his "conviction upon insufficient proof" of intent. Therefore, our review of such an issue in this case is properly exercised.

The task we must first address then is to determine whether the presumption of intent to commit mayhem is permissive or mandatory. The prosecution argues that the presumption in section 1341(b) is an entirely permissive one because the section allows, but does not require, the trier of fact to infer the attacker's intent to "injure, disfigure or disable" from proof of the infliction of injury on the victim. Parrilla contends to the contrary that the presumption is mandatory because the language of the statute compels the finder of fact to find intent without deliberation thereon.

The Supreme Court has instructed us on the methods to employ in evaluating a presumption to determine whether it is permissive or mandatory. In County Court of Ulster County v. Allen,), the Court considered a facial attack upon a New York statute on the grounds that it impermissibly shifted the burden of proof onto the defendant. In its opinion reversing the grant of habeas corpus, the Court noted that the Court of Appeals for the Second Circuit improperly analyzed the statute on its face as if it were a mandatory presumption, while failing to observe that the New York Court of Appeals had, in fact, determined earlier, People v. Lemmons, 40 N.Y.2d 505, 387 N.Y.S.2d 97, 100-101, 354 N.E.2d 836, 840 (1976), that the statute created a permissive presumption. The Court distinguished between permissive and mandatory presumptions and mandated that the constitutionality of the two should be analyzed differently.

The entirely permissive inference or presumption is one which "allows--but does not require--the trier of fact to infer the elemental fact from proof by the prosecutor of the basic one and which places no burden of any kind on the defendant.". In reviewing permissive presumptions, the Court requires the challenger to demonstrate the presumption's invalidity "as applied to him." Id. The Court explained that a facial attack to a statute on grounds of a permissive presumption will fail if the statute creates only a "permissive inference," leaving the trier of fact free to credit or reject the inference. The application of the statute to a particular case, however, can be successfully challenged if there is no rational way the trier of fact could have made the connection permitted by the inference. Id. If such an irrational result were evident in the verdict, that result might be the product of an improper reliance on the presumption by the jury, without the jury having been convinced beyond a reasonable doubt of the existence of the presumed fact. Such an outcome, a verdict arrived at without satisfactory proof of every element of the offense charged, is a constitutionally impermissible conclusion.

With mandatory presumptions, on the other hand, we are faced with a statutory command that, because one fact is proved, another fact must follow. We look to the language of the statute rather than the evidence at trial or the jury instructions to determine the constitutional validity of the mandatory presumption. A statute creating a mandatory presumption is "[a] far more troublesome evidentiary device" because it may "affect not only the strength of the 'no reasonable doubt' burden" but also, if the. The mandatory presumption "tells the trier that he or they must find the elemental fact upon proof of the basic fact...." Id. In effect, the government is spared the burden of having to adduce evidence of the presumed fact at every trial.

Because the elemental fact is to be accepted as proved without a jury finding of proof, the Court commands us to examine the mandatory presumption "on its face to determine the extent to which the basic and elemental facts coincide." Since the trier of fact is forced to abide by the presumption irrespective of particular facts presented by the prosecutor, the analysis of the mandatory presumption's constitutional validity "is logically divorced from those facts and based on the presumption's accuracy in the run of cases."

The Supreme Court in Leary expressed the constitutional test for a mandatory presumption as being whether there is a "rational connection" between the proved and the presumed facts. "[A] criminal statutory presumption must be regarded as 'irrational' or 'arbitrary' and hence unconstitutional, unless it can at least be said with substantial assurance that the presumed fact is more likely than not to flow from the proved fact on which it is made to depend." …

In addition to assessing the rationality of the link between the proved and presumed facts, the Court also instructs us, in assessing the constitutionality of a mandatory presumption, to give substantial weight to the legislature's determinations underlying the presumption:

The process of making the determination of rationality is, by its nature, highly empirical, and in matters not within specialized judicial competence or completely commonplace, significant weight should be accorded the capacity of Congress to amass the stuff of actual experience and cull conclusions from it.

A court may, however, reevaluate the legislature's determinations establishing presumptions after it has determined that "the legislative record does not apply an adequate basis upon which to judge the soundness of the ...

The exact line between a permissive and mandatory presumption may be difficult to draw; even within the category of mandatory presumptions, there are gradations from conclusive to rebuttable. A conclusive mandatory presumption removes the presumed element from the case once the state has proved the predicate facts giving rise to the presumption. A rebuttable mandatory presumption does not remove the presumed element from the case; but nevertheless may require the jury to find the presumed element unless the defendant persuades the jury that such a finding is unwarranted. A rebuttable mandatory presumption with a low threshold required by the defendant to counter it, on the other hand, may be close-to-indistinguishable from a permissive presumption. "To the extent that a [mandatory] presumption imposes an extremely low burden of production-- e.g., being satisfied by 'any' evidence--it may well be that its impact is no greater than that of a permissive inference, and it may be proper to analyze it as such."

Notwithstanding the categorical shadings of presumptions, the placement of the burden of persuasion as a result of a presumption is a constitutional matter. The Court, in Gainey, Leary, and County Court of Ulster County, has provided a framework by which we will analyze section 1341(b)'s presumption. We must first interpret the language of the statute to determine whether the presumption is mandatory or permissive. If we find the presumption is mandatory, we then go on to examine the legislature's reasoning for the presumption, to evaluate the rational connection between the proved and the presumed fact, and to investigate the extent to which the basic and elemental facts coincide. These steps will enable us to determine the constitutional validity of the mandatory presumption.

We have found no Virgin Islands case law to assist us in our evaluation of section 1341(b)'s presumption. The parties do not cite any authority on the question of whether its language creates a mandatory or permissive presumption; nor have we discovered any case on point. Therefore, we are presented with the opportunity to make the first judicial determination of whether section 1341(b)'s presumption is mandatory or permissive.

The language of section 1341(b) states concisely: "The infliction of injury is presumptive evidence of the intent required by subsection (a) of this section [to commit mayhem]." Applied to the facts of this case, this plain statutory language clearly sets up the following presumption: If the government establishes that Duggan's foot was injured by Parrilla's act of shooting at him (the basic fact), then the jury must presume that Parrilla intended to commit a felony, that is, to injure, disfigure or disable Duggan (the elemental fact), and Parrilla must be convicted of assault with intent to commit mayhem.

We find that section 1341(b)'s commanding language imposes a mandatory presumption. The statute's presumption of intent creates an inferential strength of guilt through proof of the basic fact of injury that shifts the burden of persuasion on the elemental fact of intent onto Parrilla. It does not, by contrast, merely impose a burden of production on the defendant that, if satisfied through the introduction of "any evidence," allows the presumption to evaporate and to require the jury to convict on the strength of the remaining evidence. See footnote 4, supra.

Because we find section 1341's presumption to be mandatory, we next search the legislative history for any assistance it might provide on assessing the soundness of the presumption. Our review of the legislative record supplies us with only sparse material upon which to judge the mandatory presumption. The only reference we find is the revision note to 14 V.I.C. § 1341 in the annotated code which states that the wording of the section "is patterned upon New York Penal Law § 1400." As originally enacted, New York Penal Law § 1400, entitled "Maiming defined; punishment," provided that "[t]he infliction of the injury is presumptive evidence of the intent." Penal Law § 1400 was, however, later replaced by Penal Law § 120.10 (McKinney 1965), proscribing a crime entitled "Assault in the first degree." By comparison, we find it significant to our analysis that Penal Law § 120.10 excludes entirely its predecessor's provision that "injury is presumptive evidence of intent." Our conclusion is therefore that section 1341's legislative history provides us with no assistance. The revised New York Penal Law § 120.10 indicates, at least impliedly, a perception in New York of an earlier infirmity in Penal Law § 1400's statutory language.

Our next step is to consider the likelihood in the normal course of events that the presumed fact in section 1341 will flow from the proven fact; whether there is substantial certainty that the proven fact of injury is rationally linked to the presumed fact of intent to commit mayhem.

Parrilla argues in support of his position that there is no logical connection between the proven and presumed facts. He stated at oral argument that he did not intend to injure Duggan; rather, he merely intended to frighten and intimidate Duggan by shooting at him.7 His argument may be reasonable in light of his companions' testimony that they intended to "go around robbing" that night. In the realm of "circumstances of life as we know them," Parrilla's theory of the case is one reasonable alternative to a theory of an intent to commit mayhem upon Duggan directed by section 1341(b)'s mandatory presumption. Consistent with Parrilla's alternate theory, he claims that the application of section 1341(b)'s mandatory presumption violated his due process guaranty because it required the jury to convict him on insufficient proof beyond a reasonable doubt, absent jury deliberation and fact finding on the issue of his intent to commit mayhem.

Not surprisingly, the government proffers a different theory of the case, arguing that section 1341(b) creates a permissive presumption "by its own language." If only we would consult the dictionary, the government urges, we would discover that:

[t]he word evidence means "the data on which a conclusion or judgment may be based." Webster's II New Riverside University Dictionary (1984). In a legal setting, the word evidence means "the documentary or verbal statements and materials, objects admissible as testimony in a court of law." The word presumptive means "providing a reasonable basis for acceptance or belief." . Thus, the phrase "presumptive evidence" [contained in section 1341(b),] means data that are admissible in court that provide a reasonable basis for a conclusion but that do not require the conclusion.

The government concludes that on the basis of this definition, section 1341(b)'s presumption allows but does not require the trier of fact to infer Parrilla's intent to "injure, disfigure or disable" from proof of the infliction of injury on Duggan.

We disagree with the government's proffered theory of the case, relying solely upon the dictionary. Resort to a dictionary definition alone does not incorporate the safeguards of the "rationality" test inherent in the Supreme Court's analyses of criminal statutory presumptions. The Court directs us to analyze a presumption's rationality using empirical data and common sense and not merely using the dictionary. Absent an express statutory provision or a consistent judicial interpretation establishing the rationality of the connection, the jury should not be directed to find a fact necessary for criminal conviction which has neither been proved nor is substantially certain and reasonably expected to flow from the facts which have been proved.

Although there may be situations in which the infliction of injury on a victim will be probative of the assailant's intent to commit mayhem. Parrilla has demonstrated that additional motivating forces may also exist. For example, evidence of an injury may be the result of an assailant's intent to harass or intimidate the victim. Intimidation, although not commendable, is not mayhem. Proof of injury does not limit the fact finder to a conclusion that the assailant intended to commit mayhem upon the victim. Under these circumstances, then, section 1341(b)'s command to find intent to commit mayhem upon proof of an injury is constitutionally infirm; there are other intended objectives which are likely to exist.

In construing section 1341(b)'s language that "[t]he infliction of the injury is presumptive evidence of the intent required by subsection (a)," the inference can be said to be "so strained as not to have a reasonable relation to the circumstances of life as we know them." The Court in Tot, in striking the statute, considered the alternative possibilities to be drawn about the presumed fact from the proven fact, see id. at 468, 63 S.Ct. at 1245, and concluded that there was insufficient rational connection between possession of a firearm and interstate receipt. Therefore, the Court held that the presumption was an unconstitutional deprivation of due process. We agree with Parrilla that we should reach the same conclusion in the present case based on the existence of alternative rational theories of intent.

Finally, we conclude with the admonition that presumptions of intent are particularly hazardous. The Supreme Court has recognized the problem raised by presumptions of intent in criminal cases:

A conclusive presumption which testimony could not overthrow would effectively eliminate intent as an ingredient of the offense. A presumption which would permit but not require the jury to assume intent from an isolated fact would prejudge a conclusion which the jury should reach of its own volition. A presumption which would permit the jury to make an assumption which all the evidence taken together does not logically establish would give to a proven fact an artificial and fictional effect. In either case, this presumption would conflict with the overriding presumption of innocence with which the law endows the accused and which extends to every element of the crime.

. Therefore, the Court concluded, as we do here, that "presumptive intent has no place in this case." Id. ("[S]hifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause." Moreover, because it is "intent" which is being presumed under section 1341, we find unconvincing the dissent's comparison of the section 1341 presumption to the New York statute, inferring possession of a weapon, as set out in County Ct. of Ulster County.

We hold, therefore, that 14 V.I.C. § 1341(b) creates a mandatory presumption that is unconstitutional. There is a lack of substantial assurances that the presumed fact that Parrilla intended to commit mayhem upon Duggan is more likely than not to flow from the basic fact that Duggan's foot was injured. In analyzing a mandatory presumption, it is irrelevant that there is evidence in the record other than the presumption to support a conviction; because the trier of fact is required to abide by the presumption, an unconstitutional failure of proof of every element of the offense may result. For the foregoing reasons, we will reverse Parrilla's conviction on Count VII and will vacate his sentence of imprisonment for 15 years imposed on that Count.11 We will remand this case to the district court to determine, in view of the concurrent sentences, including the sentence of 20 years imposed on the first degree robbery count, whether it desires to resentence Parrilla on the remaining four counts of conviction.

CHAPTER FOUR
YOU DECIDE 4.1. United States v. Dahlin
Randall Dale Dahlin appeals from his bank robbery conviction under 18 U.S.C. Sec. 2113(a). For reversal he argues that the district court1 improperly admitted evidence of a bad act and that it abused its discretion by not ruling on Dahlin's pretrial motion to exclude evidence of prior convictions. We affirm.

Dahlin was apprehended for the robbery of a Minneapolis savings and loan association after tellers described him and identified him in bank photographs which recorded the robbery. At trial Dahlin and his sister disputed the identification and testified that Dahlin was babysitting his infant niece at the time of the robbery.


In constructing his babysitting alibi Dahlin and his sister testified that Dahlin was deeply devoted to his niece and his family and that he never left the child alone. On cross-examination the government disputed this account of Dahlin's family relations. After Dahlin admitted to problems and quarrels with his father and siblings, the government's questions produced a colloquy on which Dahlin partly bases his appeal:
Q. In fact on one occasion sometime ago you injured [your father] rather severely, did you not?

A. No, I didn't. It wasn't severely, it was pretty minor.

MR. O'CONNOR: Your Honor, I am going to object to going into any of this. Once again, if it is character evidence it is not relevant and it is not permissible under Rule 404.

THE COURT: Objection overruled on the grounds previously indicated, under 404(a)(1).

THE WITNESS: Do you want me to tell you about it?

MR. KELLY:

Q. Yes, I would.

A. I can remember like it happened yesterday. I was about 15 years old at that time and I had just come home from school, he didn't like me fighting and I was using pills at the time, barbiturates, and I believe I came in one night, I was at the house, he came in, he had been drinking, him and my mother, and he came up to me, and we got in an argument. We got to wrestling, he got up on top of me and pinned my arms down and as he pinned my arms down he pulled out a pocket knife and he held it up to my throat and said I should cut your throat and he set the pocket knife on a coffee table to the side and started slapping me in the face.

Well, I reached over and grabbed the knife and stabbed him in the ass.

I knew where I was going to stab him, but I struck him in the ass.

Fed.R.Evid. 404(a)(1) approves the admission of "evidence of a pertinent trait" of a person's character offered by the accused or by the prosecution in rebuttal. Several courts have approved the use, in rebuttal, of evidence of the accused's character under this rule. United States v. Wilford, 710 F.2d 439, 448 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 701, 79 L.Ed.2d 166 (1984); United States v. Gaertner, 705 F.2d 210, 216-17 (7th Cir.1983) (where defendant tried to depict himself as a "clean-liver," he opened the door to the prosecution regarding his drug involvement); United States v. Adamson, 665 F.2d 649, 660 (5th Cir.1982) (defendant opened the door for rebuttal by his attempt to negate inference of intent by describing his career, personal history and philosophy, family and business ties, medical problems and civic contributions).

Prudential guidelines govern the administration of this rule. Questions must be narrowly framed and restricted to actual events which affect the traits the accused has placed in issue. United States v. Lewis, 482 F.2d 632, 639 (D.C.Cir.1973). The court must closely supervise this questioning and must balance the probative value of information elicited against possible prejudice to the defendants. Id.; see United States v. Murzyn, 631 F.2d 525, 529 (7th Cir.1980) (balancing test involves inquiry into the relevance, reliability, and unfair effect of the evidence), cert. denied, 450 U.S. 923, 101 S.Ct. 1373, 67 L.Ed.2d 351 (1981).

Dahlin's alibi put at issue his reliability, responsibility and familial devotion, which were traits pertinent to the jury's appraisal of his defense. Thus, to a limited extent the government was entitled to question Dahlin's role in family fights as well as his dependency on drugs. The difficulty with appellant's position, however, is that he volunteered the questionable testimony hereinabove set forth. His account of the family fight simply was not given in response to any direct question. In these circumstances, we will not order a new trial or vacate the conviction. We add that our conclusion is reinforced by the fact that in closing argument counsel made no direct reference to the episode, and we observe that the trial court instructed the jury not to consider it in determining the guilt or innocence of the defendant.

Dahlin also contends that the district court erred in refusing to rule on his pretrial motions to exclude prior convictions. He argues that, because he would have been susceptible to impeachment for these crimes had he testified, his attorney was compelled to disclose them in his opening statement.


We have held that when defense counsel moves in limine to exclude evidence of prior convictions but then introduces them in defendant's direct testimony, the defense has wavied the right to appeal the trial court's refusal to grant the motion. United States v. Johnson, 720 F.2d 519, 522 (8th Cir.1983); United States v. Cobb, 588 F.2d 607, 613 (8th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979). The same waiver should be invoked where counsel for the defendant discloses the conviction in his opening statement.

While some other courts recommend ruling on pretrial motions of this sort, United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979) (en banc), cert. denied, 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980); United States v. Oakes, 565 F.2d 170, 171 (1st Cir.1977), we have repeatedly declared that, even if the defendant is discouraged from testifying, in most circumstances the trial court has no duty to rule on such motions until the defendant takes the stand. United States v. Jankowski, 713 F.2d 394, 397 (8th Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 732, 79 L.Ed.2d 192 (1984); United States v. Rivers, 693 F.2d 52, 53-54 (8th Cir.1982) (Alsop, J., sitting by designation); United States v. Fay, 668 F.2d 375, 379 (8th Cir.1981); United States v. Witschner, 624 F.2d 840, 844 (8th Cir.), cert. denied, 449 U.S. 994, 101 S.Ct. 532, 66 L.Ed.2d 291 (1980); United States v. Johnston, 543 F.2d 55, 59 (8th Cir.1976). Forbearance can prevent gratuitous advisory opinions and can promote judicial economy and accurate decisions. United States v. Burkhead, 646 F.2d 1283, 1286 (8th Cir.), cert. denied, 454 U.S. 898, 102 S.Ct. 399, 70 L.Ed.2d 214 (1981).

Although we recognize the potential prejudicial effect that prior crimes evidence may have on juries, we do not find here that the district court abused its discretion in deferring its ruling. Moreover, we reject as well the suggestion that the cumulative effect of the trial court's alleged error and the prosecutor's alleged misconduct deprived Dahlin of a fair trial.

Accordingly, the judgment of the district court is affirmed.

YOU DECIDE 4.2. United States v. Nazzarro

..
At trial, defendant attempted to offer into evidence his resume and other anecdotal proof of commendations received by him in military service and as a police officer. He also sought to show that a medal was bestowed upon him for special valor. The district court rejected the proffer. We decline to upset its ruling.



Nazzaro argues that evidence of such awards and commendations comprised "character evidence," admissible under Fed.R.Evid. 404(a)(1) (allowing an accused to offer "[e]vidence of a pertinent trait of character"). Assuming, without deciding, that these materials can be considered "character evidence" at all, the traits which they purport to show--bravery, attention to duty, perhaps community spirit--were hardly "pertinent" to the crimes of which Nazzaro stood accused. The district court, which has some flexibility in admitting or excluding evidence on the basis of relevancy was within its lawful powers in rejecting the proffer.. And, given the copious quantity of character evidence offered and admitted at Nazzaro's trial, the commendations were also excludable as cumulative under Fed.R.Evid. 403.

YOU DECIDE 4.3 United States v. Keiser

Keiser's only defense in this case was that he was justified in shooting into the muster because he was acting in defense of his brother, whom Romero was assaulting at the time of the shooting. Keiser sought to introduce testimony about this incident outside the courtroom in order to bolster his self-defense claim. He argues on appeal that the incident "tend[s] to show the character of Mr. Romero for anger and violence." Admission of Randy Keiser's testimony regarding the incident would have "show[n] the jury the true nature of the 'victim.' " The government responds that the testimony "would have added absolutely nothing material to the trial," because "the appellant did not personally know the victim, nor did he therefore have personal knowledge of the victim[']s character." We think that neither party has properly addressed the legal questions this proffered testimony raises.

The question whether defendants may introduce specific violent or aggressive acts of the victim in order to bolster a claim of self-defense has begotten a host of written opinions, both in the federal courts and in state courts interpreting analogs to the Federal Rules of Evidence. The analytic approaches, as well as the answers these approaches have yielded, are myriad. Some courts have reasoned that a victim's violent nature is an essential element of a claim of self-defense and that defendants should therefore be allowed to introduce evidence of specific acts in order to prove that character. Some have concluded that the victim's violent nature is not essential to the claim of self-defense, and therefore limit the defendant to the use of reputation or opinion evidence to show the victim's character for violence. Others, on the other hand, have refused to admit specific acts on the rationale that their use would be circumstantial rather than direct. Others still admit specific acts under the theory that the acts themselves bear on the defendant's state of mind and the reasonableness of his use of force in self-defense. At least one court admits specific acts under the theory that the victim's character is an essential element of self-defense, but limits the acts to those of which the defendant had personal knowledge at the time of the crime, and another admits specific acts as character evidence because the acts are essential to determining the defendant's state of mind. This Court has not yet addressed this question.

Our task, therefore, is not simple. It is made significantly easier, however, by clarification of what this case is not about. Keiser makes no claim on appeal that the incident outside the courtroom--which obviously occurred after the shooting--was relevant to his state of mind at the time of the shooting or the reasonableness of his belief that force in self-defense was necessary. Thus, we need not, and do not, reach the question whether specific acts are admissible to bolster the assertion that the defendant's belief in the need for force was reasonable. Instead, we need only decide whether testimony regarding this incident should have been admitted as character evidence, i.e., as evidence from which the jury could infer that the victim, at the time of the shooting, was likely to be behaving in accordance with his violent character.

Put another way, introduction of specific acts as victim character evidence would support the proposition that the victim was in fact using unlawful force, where as introduction of specific acts to prove the defendant's state of mind would support the proposition that the defendant's belief that force was necessary was reasonable. These two propositions are separate elements of the defense of self-defense or defense of another. Cf. Bland, 337 N.W.2d at 382 ("The general rule of exclusion ... applies only when character evidence is used to show that a person acted in conformity with his character. Thus, when character evidence is used for some purpose other than to show that a person acted in conformity with his character, it does not apply."); Duncan, 111 N.M. at 356, 805 P.2d at 623 ("The evidence ... was not offered to prove that he acted in conformity therewith on the occasion in question; it was offered to prove that his character induced, or at least contributed to, a certain state of mind--fear--on the part of the defendant. As so offered, the evidence was neither admissible nor excludable under [the rule of exclusion]. The rule simply did not apply to this particular piece of evidence.").

A. Relevance of the excluded testimony


The Federal Rules of Evidence provide an exception to the general rule against character evidence as propensity evidence in the case of "[e]vidence of a pertinent trait of character of the victim of the crime offered by an accused." Fed.R.Evid. 404(a)(2). The advisory committee's note to this rule indicates that a victim's "violent disposition" is exactly the sort of evidence this rule was intended to encompass. See Fed.R.Evid. 404 advisory committee's note ("Illustrations are: evidence of a violent disposition to prove that the person was the aggressor in an affray....").

Thus, whether Romero is a violent and angry person is certainly relevant to the defendant's claim that he was acting in defense of his brother. Romero's violent character makes it more likely that his behavior on the night of the shooting was violent--which supports the defendant's defense that he was shooting to protect his brother--than it would be if Romero were peaceable.

The government, however, argues that because the incident occurred after the shooting, it has no bearing on whether the defendant acted reasonably at the time of the shooting. It reasons that, at the time of the shooting, the defendant did not "have personal knowledge of the victim[']s character."
This argument misapprehends the purpose of presenting testimony regarding the victim's character. Rule 404(a)(2) provides one of the few instances in which character evidence is admissible to allow the jury to infer that a person acted on a specific occasion in conformity with his character. The rule does not contemplate that the character evidence will somehow reveal the defendant's state of mind at the time he acted in self-defense.

The structure of the rule supports this conclusion. Section 404(a) establishes the general prohibition: "Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion...." Fed.R.Evid. 404(a) (emphasis added). The rule then provides three exceptions to the prohibition, one of which is the exception for character of the victim provided in section 404(a)(2). The fact that section 404(a)(2) is an exception to the rule against introducing character evidence to imply that a person acted in conformity with that character on a particular occasion suggests that the very purpose of victim character evidence is to suggest to the jury that the victim did indeed act in conformity with his violent character at the time of the alleged crime against him. The purpose is not to provide insight into the reasonableness of the thought processes of the defendant. Thus, whether the defendant knew of the victim's character at the time of the crime has no bearing on whether victim character evidence should come in under section 404(a)(2). Cf. John W. Strong, McCormick on Evidence Sec. 193 (4th ed. 1992) [hereinafter McCormick] ("A well established exception to the rule forbidding character evidence to prove conduct ... permits the accused ... to introduce appropriate evidence of the victim's character for turbulence and violence.") (emphasis added) (footnotes omitted).

Furthermore, a smattering of federal cases indirectly supports the contention that the relevance of victim character in an assault case stems from its making it more likely that the victim was in fact using unlawful force--a proposition that, if true, would give rise to the defendant's justified use of force--rather than its bearing on the defendant's state of mind. These cases show that whether the defendant knew of the victim's character does not affect the relevance of the evidence. For instance, the Court of Appeals for the Tenth Circuit, in Perrin v. Anderson, 784 F.2d 1040 (10th Cir.1986), reasoned that testimony of nondefendants regarding the violent nature of the victim was relevant to the claim of self-defense. Id. at 1045.14 Such testimony would only be relevant to allow the jury to infer that the victim was also acting violently on the occasion in question; it would be entirely irrelevant to whether the defendants actually knew of the victim's violent nature. See United States v. Piche, 981 F.2d 706, 713 (4th Cir.1992) (assuming without deciding that evidence of the victim's prior engagement in violence--which was unknown to the defendant at the time of the assault--was relevant), cert. denied, --- U.S. ----, 113 S.Ct. 2356, 124 L.Ed.2d 264 (1993); United States v. Comerford, 87 F.2d 1323, 1324 (9th Cir.1988) (affirming the exclusion of testimony regarding an incident of victim violence that occurred after the crime because it would have been overly prejudicial, without discussing its relevance), cert. denied, 488 U.S. 1016, 109 S.Ct. 812, 102 L.Ed.2d 802 (1989).

These cases suggest a common understanding in the federal courts that "personal knowledge" of the victim's propensity for violence is simply not a prerequisite for admission of victim character evidence under Rule 404(a)(2). We therefore hold that Romero's violent nature is relevant to Keiser's theory of defense of his brother.

Form of the excluded testimony

Despite its relevance, the testimony regarding the altercation outside the courtroom was properly excluded. Under the Federal Rules of Evidence, only reputation or opinion evidence is proper to show that the victim of an assault had a propensity toward violence. The excluded testimony, on the other hand, would have constituted paradigmatic "specific act" evidence.
After a court determines that character evidence is admissible under Rule 404, it must next turn to Rule 405 to determine what form that evidence may take. See United States v. Talamante, 981 F.2d 1155, , 1156 (10th Cir.1992) ("Federal Rule of Evidence 405 establishes the permissible methods of proving character under Rule 404(a)(2).") (footnote omitted), cert. denied, --- U.S. ----, 113 S.Ct. 1876, 123 L.Ed.2d 494 (1993). Rule 405 provides:

Methods of Proving Character

(a) Reputation or opinion
In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion....

(b) Specific instances of conduct


In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.

Fed.R.Evid. 405.



No published opinion of this Court has addressed whether Rule 405(b) authorizes a defendant claiming self-defense to introduce specific acts demonstrating his victim's propensity for violence. We conclude, however, that the language of the rule, the teaching of out-of-Circuit authority, and the theory supporting admission of victim character evidence all lead to the conclusion that victim character evidence introduced to support a claim of self-defense or defense of another should be limited to reputation or opinion evidence.

The language of the rule states in straightforward manner that evidence of specific instances of conduct may only be made when a person's character is "an essential element of a ... defense." Some courts have analyzed particular efforts to introduce specific act evidence to determine whether character is, as the rule states, an "essential element." E.g., Piche, 981 F.2d at 713 ("Because the evidence of character that [the defendant] attempts to admit is not an essential element of a charge, claim, or defense, however, proof of character is limited to reputation or opinion evidence in accord with Rule 405(a)."). Not all courts have conducted their analyses in strict conformity with this language, however. Other courts, for instance, have analyzed the question using different terminology, concluding that whether proof of specific instances of conduct is admissible depends upon whether the use of character evidence is "circumstantial" or "direct." E.g., Talamante, 981 F.2d at 1156 ("When character is used circumstantially to create an inference that a person acted in conformity with his or her character, Rule 405 allows proof of character only by reputation and opinion.").

This lack of uniformity in methodology appears to stem from some courts' reliance on language in the advisory committee's note to Rule 404, which rule governs when character evidence is admissible in the first instance. The note provides an overview of the situations in which character evidence may have relevance, and observes that character may arise in two fundamentally different ways. Character may be "in issue," as when a statute specifies the victim's chastity as an element of the crime of seduction, or when the defense to a defamation action is the truth of the allegedly defamatory statement. On the other hand, character may have relevance only circumstantially, in order to suggest an inference that a person acted in conformity with his character on a specific occasion. Fed.R.Evid. 404 advisory committee's note.

In contrast to these other courts, we find that reliance on the advisory committee's note to Rule 404--which merely establishes a nomenclature for discussing the ways in which "character" might have relevance--in order to determine what form evidence may take under Rule 405 is misguided. The note to Rule 404 begins with the assertion that "[t]his subdivision [section 404(a)] deals with the basic question whether character evidence should be admitted." The note to Rule 405, on the other hand, begins by clarifying that Rule 405 "deals only with allowable methods of proving character, not with the admissibility of character evidence, which is covered in Rule 404." These notes deal with separate questions, as do the evidence rules they explain.

Thus, the distinction that the Rule 404 note establishes between character "in issue" and character evidence as "circumstantial" does not guide our inquiry here. Instead, we conduct our Rule 405 inquiry according to the terms of the Rule itself, which requires courts to determine whether the character a party seeks to prove constitutes "an essential element of a charge, claim, or defense." Fed.R.Evid. 405(b). The relevant question should be: would proof, or failure of proof, of the character trait by itself actually satisfy an element of the charge, claim, or defense? If not, then character is not essential and evidence should be limited to opinion or reputation. Cf. Piche, 981 F.2d at 713 (quoting Perrin, 784 F.2d at 1045 (quoting E. Cleary, McCormick on Evidence Sec. 187 (3d ed. 1984))); see also Cano, 154 Ariz. at 449, 743 P.2d at 958 (holding that character trait is essential element if it is an operative fact that determines the rights and liabilities of the parties); Gonzales, 838 S.W.2d at 859 ("The phrase has the same meaning as 'consequential fact' ") (quoting 2 J. Weinstein & M. Berger, Evidence Sec. 405 (1992)); Alexander, 765 P.2d at 324.

Our object in this case, therefore, is to determine whether Romero's violent character is an "essential element" of Keiser's defense. We conclude, by reference to the model instruction we expressly approved in Part II, that Romero's violent character does not constitute an essential element of Keiser's claim that the shooting was justified because he was acting in defense of his brother. Even had Keiser proven that Romero is a violent person, the jury would still have been free to decide that Romero was not using or about to use unlawful force, or that the force Romero was using was not likely to cause death or great bodily harm, or that Keiser did not reasonably believe force was necessary, or that he used more force than appeared reasonably necessary. On the other hand, a successful defense in no way depended on Keiser's being able to show that the Romero has a propensity toward violence. A defendant could, for example, successfully assert a claim of self-defense against an avowed pacifist, so long as the jury agrees that the defendant reasonably believed unlawful force was about to be used against him. Thus, even though relevant, Romero's character is not an essential element of Keiser's defense. Cf. Alexander, 765 P.2d at 324 (holding that character is not an essential element of self-defense because "[t]he self-defense issue could be resolved without any evidence of, or reliance upon, a character trait of [the victim] or the defendant").

Thus, exclusion of the proffered testimony regarding the verbal altercation outside the courtroom was proper because the victim's violent nature is not essential to a successful claim of self-defense. Keiser's claim of self-defense neither rises nor falls on his success in proving that Romero has a penchant for violent outbursts. Thus, Keiser had no right to introduce evidence of the incident outside the courtroom to buttress his defense. We therefore affirm the district court's exclusion of the testimony.

In sum, we hold that the district court properly excluded testimony regarding Romero's outburst outside the courtroom, and that the district court did not err in giving the model instruction on self-defense. Keiser's conviction is

YOU DECIDE 4.4. State v. Gardner
At the time of defendant's affair with the minor female, he was absent without leave from the Marine Corps. Over defendant's objection, the trial court admitted this evidence under Evidence Rule 404(b). Under this rule, evidence of a wrong or act is admissible "as proof of motive". The trial court correctly admitted the evidence as tending to prove defendant's motive.

"Motive has been defined as `supply[ing] the reason that nudges the will and prods the mind to indulge the criminal intent.'" 2 Weinstein's Evidence, ¶ 404[09] (1976). There is evidence that the minor female wrote some of the worthless checks to obtain various items of clothing for the defendant. There is also evidence that at times defendant misrepresented his identity. Defendant's absence from the Marine Corps, without leave, is a motive for these items..




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