Rap Lyrics as Confessions

Tag Archives: relevancy

Rap Lyrics as Confessions

Posted on August 27, 2013 by Jeff Welty

When may rap lyrics written by a defendant be admitted as evidence of guilt? That question has been in the news quite a bit lately as a result of a decision by the Nevada Supreme Court. (For example, see this ABC News story, or this Washington Post piece.) There’s also some North Carolina authority on point, so I thought the topic was worth a post.

The Nevada ruling. The Nevada case is Holmes v. State, __ P.3d __, 2013 WL 4477058 (Nev. Aug. 22, 2013). The defendant and his accomplices lured a drug dealer to a recording studio for the purpose of robbing him. The defendant, who was wearing a ski mask, attacked the victim, beat him, turned his pockets inside out, ripped off his necklace, and shot and killed him. The defendant was eventually arrested and charged with murder. While in jail, he wrote a number of rap songs, one of which was titled Drug Deala. It included the following lyrics: “I catching slipping at the club and jack you for your necklace. . . . Man I’m parking lot jacking, running through your pockets with uh ski mask on straight laughing.”

The state sought to introduce the lyrics, and the trial court admitted the evidence, though with a limiting instruction that the lyrics could be viewed as “confessions, admissions, or neither,” and shouldn’t be used to conclude that the defendant was a bad person with a propensity to commit crimes. The defendant was convicted and appealed, and a divided state supreme court affirmed. The majority acknowledged that rap music may often contain violent storylines and exaggerations, but found that the lyrics in question were relevant and survived Rule 403 balancing because the “details . . . mirror the crime charged.” The dissenting justice argued that the lyrics were “not clearly an admission rather than artistic expression, and they are not sufficiently specific as to be relevant to the charged crimes.”

North Carolina law. There are a couple of North Carolina cases in this area. The most relevant is the unpublished case of State v. Allen, 2006 WL 2529580 (N.C. Ct. App. Sept. 5, 2006) (unpublished) (“At trial, defendant objected to the introduction of rap song lyrics written by defendant while in custody awaiting trial for [a] murder,” but “[t]he trial court found the lyrics sufficiently similar to the facts and circumstances surrounding the murder” to be admissible over Rule 401 and Rule 403 objections; the court of appeals affirmed based on “similarities between the lyrics and the facts of the case”). Marginally relevant is State v. Bryant, 196 N.C. App. 154 (2009) (police seized a notebook from a murder suspect that contained “rap lyrics defendant had written about the shootings”; the lyrics were subsequently admitted as evidence; the issue on appeal concerns whether the seizure was proper; the court rules that it was and therefore, “[t]he trial court properly allowed the notebook, and [the lyrics] into evidence”). Generally, it appears that the touchstone of admissibility is the degree of similarity between the lyrics and the facts of the charged offense.

Other authorities. For a federal case in the same general vein, see United States v. Stuckey, 253 Fed. App’x 468 (6th Cir. 2007) (“Stuckey’s lyrics concerned killing government witnesses and specifically referred to shooting snitches, wrapping them in blankets, and dumping their bodies in the street – precisely what the Government accused Stuckey of doing [to the victim] in this case”; the lyrics were therefore relevant and admissible).

This topic has also been explored in a couple of law review articles. See, e.g., Andrea Dennis, Poetic (In) Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence, 31 Colum. J.L. & Arts 1 (2007) (criticizing the frequent admission of lyrics against defendants and emphasizing “the negative impact this . . . will have on the production and quality of art when individuals must worry that their artistic sensibilities and creative expressions might later be used against them in a criminal prosecution”); Jason E. Powell, Note, R.A.P.: Rule Against Perps (Who Write Rhymes), 41 Rutgers L.J. 479 (2009) (collecting cases and arguing that, despite the weight of authority to the contrary, “rap lyric should not be permitted in the courtroom except, perhaps, on rare occasions”).

Final note. There are a lot more cases about rap lyrics than other kinds of lyrics, but the legal principles set forth above would presumably apply equally to other musical genres. For example, if any of the Dixie Chicks were suspected of involvement in a domestic violence related homicide, Goodbye Earl (lyrics here) might be an important piece of evidence for the prosecution.

Category: Evidence, Uncategorized | Tags: admissions, confessions, holmes, lyrics, rap, relevancy, rule 401, rule 403

State v. Davis: Rule 404(b) and Remote Convictions

Posted on December 6, 2010 by Shea Denning

I wrote here about the court of appeals’ recent ruling in State v. Davis that expert testimony calculating the defendant’s alcohol concentration based on odor alone was improperly admitted at defendant’s trial on second-degree murder, impaired driving, and other charges arising from a fatal hit-and-run accident. This post addresses the court’s ruling in Davis as to the admissibility of defendant’s prior impaired driving convictions, which were introduced to prove malice—that is, that the defendant drove in a manner that reflected knowledge that injury or death would result, thus evidencing depravity of mind.

Though the Davis court granted the defendant a new trial on the second-degree murder charges based upon prejudice resulting from the improper expert testimony, it nevertheless proceeded to address the defendant’s argument that evidence of her prior convictions was improperly admitted, noting that this issue was “likely to arise in her new trial.” (Slip op. at 23).

The State introduced evidence at trial that the Davis defendant had been convicted four times of impaired driving, most recently in 2006, and three times earlier, in 1989 and 1990. North Carolina Rule of Evidence 404(b), discussed in several other blog posts here, here and here permits the introduction of relevant evidence of other crimes so long as the evidence is offered for a purpose other than showing that because the defendant previously committed a crime, he likewise committed the instant offense.

The defendant in Davis objected to evidence of the three convictions that occurred more than seventeen years before the accident giving rise to the current charges, arguing that they were too temporally remote to be admissible as evidence of malice. The court of appeals agreed.

The court noted that under Rule 404(b), prior convictions introduced to show malice must be similar to the instant offense and temporally proximate. As to temporal proximity, it explained that while there is no bright-line rule beyond which a conviction is too remote in time to be relevant, the relevancy of temporally remote convictions depends on intervening circumstances.

Davis reviewed—and contrasted—the state supreme court’s holdings in State v. Goodman, 149 N.C. App. 57 (2002), rev’d, 357 N.C. 43 (2003) (per curiam), and State v. Maready, 362 N.C. 614 (2008). In Goodman, the supreme court reversed the court of appeals for the reasons stated in the dissenting opinion below, thereby holding that admission of the defendant’s six prior impaired driving convictions pursuant to Rule 404(b) as evidence of malice was plain error when only one of the convictions occurred in the sixteen years before the crime at issue and none occurred within the eight years before the current offense. Goodman explained that “even though offenses may be similar, if they are distanced by significant stretches of time, commonalities become less striking, and the probative value of the analogy attaches less to the acts than to the character of the actor, a purpose for which 404(b) evidence is excluded.” Goodman, 149 N.C. App. at 73 (Greene, J., dissenting) (internal quotations omitted). The passage of time plays an integral part in the balancing process required under Rule 403 to determine the admissibility of Rule 404(b) evidence because as past convictions become more remote, their admission “allows the jury to convict [a] defendant because of the kind of person he is, rather than because the evidence discloses, beyond a reasonable doubt, that he committed the offense charged.” Id. (Greene, J., dissenting) (internal quotations omitted).

In Maready, 362 N.C. 614 (2008), however, the court found no plain error in the admission of the defendant’s driving record, which contained convictions that occurred more than sixteen years before the driving giving rise to the second-degree murder charges for which the defendant was on trial. The court considered the Maready defendant’s record a “stark contrast” to the record in Goodman, noting that the defendant in Maready was convicted of impaired driving four times in the sixteen years preceding the latest offense, with the last conviction occurring less than six months before the current incident. Id. at 623. The court considered this pattern more consistent, and therefore more probative, than the record in Goodman. Given that the jury was aware of defendant’s four convictions for impaired driving in the sixteen years before the offense at issue, the court disagreed with the defendant’s argument that evidence of defendant’s eleven older convictions for traffic-related offenses (including two for impaired driving) influenced the jury’s verdict, finding no plain error in their admission.

Significantly, Maready held that there was no fixed point in time after which a conviction was too remote to be probative, rejecting the notion that Goodman established a bright-line rule barring the admission of any conviction that occurred more than sixteen years before the current offense. Maready further characterized Goodman as an exception to the general rule that remoteness in time affects the weight rather than the admissibility of 404(b) evidence, particularly when the prior conduct is offered to prove a defendant’s state of mind rather than that the earlier actions are part of a common scheme or plan.

Maready explained that the Goodman exception arose from the combination of temporal remoteness and the defendant’s clean driving record in the years leading up to the crime for which he was on trial. In contrast, the older convictions in Maready were part of a clear and consistent pattern of criminality that in light of the defendant’s four convictions for impaired driving within sixteen years of the offense were highly probative of the defendant’s mental state.

In Davis, the court found the defendant’s record “strikingly similar to that of Goodman,” noting that there was a gap of sixteen years between her most recent prior conviction for impaired driving, which occurred in 2006, and the next most recent conviction, which occurred in 1990. (Slip op. at 27). The court concluded that the eighteen- and nineteen-year-old convictions, combined with the 2006 conviction, did not demonstrate a “clear and consistent pattern of criminality,” and, thus, were not highly probative of her mental state at the time of the current offense. (Slip op. at 27-28 (internal quotations omitted).) Admission of the three oldest convictions, though not the 2006 conviction, was held to be prejudicial error.

Davis expands the Goodman exception. In Goodman, there was a significant gap in time between the offense for which the defendant was charged and each of the prior convictions, with the most recent conviction occurring eight years before the current offense. Thus, the temporal remoteness of the prior convictions combined with the recent clean driving record to render all but the most recent of these prior convictions inadmissible. In Davis, in contrast, the defendant had been convicted of impaired driving within two years of the current offense. Indeed, the defendant’s license was revoked at the time of the accident, apparently as result of the 2006 impaired driving conviction. Thus, unlike the defendant in Goodman, the Davis defendant had no recent clean driving record to combine with the temporal remoteness of the stale convictions.

I find it hard to distinguish Davis from State v. Miller, 142 N.C. App. 435 (2001), on any basis other than the passage of sixteen years (rather than thirteen) between the defendant’s most recent prior conviction and the one preceding it. In Miller, the defendant was charged with second-degree murder based on a 1998 accident in which the State alleged that the defendant caused a fatal collision while driving while impaired. Evidence of the defendant’s prior convictions for careless and reckless driving in 1982, driving under the influence in 1983, and driving while impaired and careless and reckless in 1985 were introduced at trial to prove malice. The court rejected the defendant’s argument that these convictions, occurring sixteen, fifteen, and thirteen years before the current offense were too remote to be relevant.

So, despite the court’s protestations to the contrary, perhaps it is the case that some prior driving convictions are just too old to be admissible to show malice, though the relevant time period is not the number of years before the instant offense, but instead the number of years between prior convictions. If so, Miller establishes that a thirteen-year gap is permissible, while Davis establishes that sixteen years is too long.

Category: Evidence, Motor Vehicles, Uncategorized | Tags: 404(b), DWI, Evidence, impaired driving, malice, murder, prior bad acts, relevancy

Guilt of a Codefendant

Posted on October 13, 2010 by Jeff Welty

404(b) Evidence and the Bare Fact of a Prior Conviction

Posted on April 29, 2010 by Jessica Smith

As readers of this blog know, Rule 404(b) provides that although evidence of other crimes, wrongs, or acts is not admissible to prove propensity, it may be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake, entrapment, or accident. N.C. R. Evid. 404(b). Even when offered for a proper purpose Rule 404(b) evidence must satisfy tests for similarity and timeliness. And of course, Rule 404(b) evidence is subject to Rule 403 balancing. As our courts have said, the ultimate test for admissibility of such evidence is whether the incidents are sufficiently similar and not so remote in time as to be more probative than prejudicial under Rule 403. State v. Boyd, 321 N.C. 574 (1988). While many cases hold that 404(b) prior bad acts evidence passes muster under Rule 403 balancing, that is not universally true. Perhaps the most significant cases in this regard are those holding that 404(b) evidence of the bare fact of a prior conviction does not survive the Rule 403 balancing test.

The seminal case on point is State v. Wilkerson, 356 N.C. 418 (2002), in which the court, per curiam, adopted Judge Wynn’s dissenting opinion below. Judge Wynn reasoned that “the bare fact of a defendant’s prior conviction would rarely, if ever, be probative of any legitimate Rule 404(b) purpose.” State v. Wilkerson, 148 N.C. App. 310 (2002) (Wynn, J., dissenting). Contrasting Rule 404(b) to Rule 609, which allows admission of the bare fact of conviction to impeach a defendant who has testified, Wynn explained that for 404(b) purposes “it is the facts and circumstances underlying such a conviction which hold probative value.” Wilkerson, 148 N.C. App. 310; see also State v. Mewborn, 178 N.C. App. 281 (2006) (distinguishing Wilkerson and holding that the bare fact of conviction was admissible under Rule 609 to impeach the defendant, who had testified). Wynn concluded: “[E]ven if a conviction, in and of itself, held a scintilla of probative value for Rule 404(b) purposes, inherent prejudicial effect of such a conviction would substantially outweigh its probativity, mandating its exclusion under Rule 403.” Wilkerson, 148 N.C. App. 310; see also State v. Badgett, 361 N.C. 234 (2007) (following Wilkerson); State v. McCoy, 174 N.C. App. 105 (2005) (same); State v. Scott, 167 N.C. App. 783 (2005) (same); State v. Hairston, 156 N.C. App. 202 (2003) (same). The rule applies even when the bare fact of conviction is offered after evidence has been presented establishing the facts and circumstances of the prior conviction. McCoy, 174 N.C. App. 105. However, Judge Wynn excepted from the rule “cases where our courts have recognized a categorical exception to the general rule (e.g., admitting prior sexual offenses in select sex offense cases, and admitting prior traffic-related convictions to prove malice in second-degree murder cases).” Wilkerson, 148 N.C. App. 310. Later cases have held that an admission of guilt in a transcript of plea is not a bare fact of conviction, State v. Brockett, 185 N.C. App. 18 (2007), and that the Wilkerson rule applies to prior bad acts of the victim. State v. Jacobs, __ N.C. App. __, 673 S.E.2d 724 (2009).

Thus defense lawyers should be alert to attempts by the State to introduce the bare fact of conviction under Rule 404(b). Should the State wish to introduce such evidence, it must fall within a “categorical exception” to the Wilkerson rule or be used for impeachment of a testifying witness under Rule 609.

Category: Evidence, Uncategorized | Tags: bare fact of conviction, relevancy, rule 404(b)

Photographs of Homicide Victims

Posted on April 19, 2010 by Jessica Smith

The State’s effort to introduce photographs of a homicide victim into evidence often is met with defense objections. One objection sometimes asserted is that the photographs are inadmissible as substantive evidence and must be limited to illustrative purposes. This objection likely will be overruled. As a general rule, photographs may be offered as substantive evidence or for illustrative purposes. G.S. 8-97. When admitted for illustrative purposes only, a limiting instruction should be given. See N.C. Pattern Instruction – Criminal 104.50 (photographs, etc. as illustrative evidence). Although many appellate decisions addressing Rule 403 issues with respect to photographs of the victim contain language referencing the use of the photographs for only illustrative purposes, this language seems to refer to the old North Carolina rule limiting the use of photographic evidence to that purpose. With enactment of G.S. 8-97 in 1981, photographs now can be used as substantive or illustrative evidence and our courts have indicated that the statute applies with respect to photographs of a homicide victim. See State v. Rogers, 323 N.C. 658 (1989).

By far the most common response to the State’s attempt to admit photographs of homicide victims is a Rule 403 objection. As a general matter, photographs of a homicide victim are admissible even if “gory, gruesome, horrible or revolting, so long as an excessive number of photographs are not used solely to arouse the passions of the jury.” Rogers, 323 N.C. 658. The North Carolina appellate courts only rarely have held such photographs to be unfairly prejudicial. State v. Robinson, 327 N.C. 346 (1990). Relevant cases include: State v. Hennis, 323 N.C. 279 (1988) (abuse of discretion to admit 35 autopsy and crime scene photographs of murdered mother and children for illustrative purposes, even with a limiting instruction; photographs were displayed on a large screen accommodating two images three feet, ten inches by five feet, six inches, side by side; eight- by ten-inch glossy photographs, most in color, were distributed to jurors one at a time for an hour); State v. Mercer, 275 N.C. 108 (1969) (photographs of victim’s dead body in a funeral home, with projecting probes indicating entry and exit points of bullet; evidence was uncontradicted as to cause of death and showed that victim was lying on a bed when shot; photographs were “poignant and inflammatory”), overruled on other grounds, State v. Caddell, 287 N.C. 266 (1975); State v. Johnson, 298 N.C. 355 (1979) (prejudicial error in sentencing phase of capital trial to admit photographs of the murder victim’s body, two months after his death, in advanced stages of decomposition and after having been partially ravaged and dismembered by animals); and State v. Temple, 302 N.C. 1 (1981) (criticizing admission of photographs of victim’s exhumed body lying in a casket).

On the other hand, cases finding that no abuse of discretion occurred when photographs of the victim were admitted are legion. A small sampling includes: State v. Walters, 357 N.C. 68 (2003) (close-up of murder victim’s face, showing blood on her face and a fly on her eyelid); State v. Haselden, 357 N.C. 1 (2003) (one close-up of the murder victim’s head and two of her body; defendant’s stipulation as to cause of death did not preclude use of the photographs); State v. Early, __ N.C. App. __, 670 S.E.2d 594 (Jan. 6, 2009) (eight autopsy photographs, displayed by monitor, showing location of wounds and whether they were entrance or exit wounds illustrated the manner of the killing and had probative value as to the defendant’s claim of self-defense); State v. Bare, __ N.C. App. __, 669 S.E.2d 882 (Dec. 16, 2008) (photographs of the murder victim’s partially decomposed body including three of the victim’s trunk and lower body, depicting the remains of a fire, mummification and decay of flesh, branches placed over the body, and his pants and shoes; two of a skull and jawbone; four of other bones, all largely devoid of flesh; one of a partially decayed hand; two of the underbrush where the victim was found; photographs illustrated officer’s testimony regarding the condition of the body when it was discovered, including that body had been partially eaten by animals and was missing part of an arm, fingers, and a hand); State v. Snider, 168 N.C. App. 701 (2005) (three autopsy photographs to illustrate the testimony of the medical examiner who testified to location of knife and gunshot wounds and that gunshot wound was the cause of death; photographs were projected onto a screen in the courtroom); State v. Gladden, 168 N.C. App. 548 (2005) (ten autopsy photographs to illustrate the testimony of pathologist; seven were of the victim’s body wrapped in plastic, three were of the victim’s head, with one showing the face; number of photographs was not excessive).

As an aid to the trial judge, or for the litigants when arguing for or against admissibility of this type of evidence, the following factors are relevant to the Rule 403 analysis:

What the photograph depicts
The level of detail
The size of the photograph
Whether the photograph is in color or in black and white
Whether the photograph is a slide or a print
Where and how it is projected or presented
The scope and clarity of the testimony it illustrates
The relevance of the scene depicted
The number of photographs
Whether the photographs will inflame the passions of the jury
Whether the photographs are unnecessarily duplicative of other evidence, including other photographs

Hennis, 323 N.C. 279.

Category: Evidence, Uncategorized | Tags: photographs, relevancy, rule 403

Rule 403: Old Chief and Stipulations to Prior Convictions

Posted on March 30, 2010 by Jessica Smith

Some crimes, such as felon in possession of a firearm, include as an element that the defendant has a qualifying prior conviction. When this is the case, the defense may seek to limit the prejudicial effect of the prior conviction by offering to stipulate to its existence and asking the trial judge to preclude the State from introducing evidence of the crime at trial. Often, Old Chief v. United States, 519 U.S. 172 (1997), will be cited in support of this argument.

Old Chief involved a federal prosecution for the crime of felon in possession of a firearm. So as to keep the details of his prior felony—assault causing serious bodily injury—from the jury, the defendant offered to stipulate to the prior conviction. The prosecutor objected, insisting that he had a right to prove his case his own way. The trial court rejected the defendant’s offer to stipulate and allowed the government to prove its case by introducing evidence of the prior crime. The defendant was convicted and he appealed. The United States Supreme Court held that because the nature of the prior offense raised a risk of a verdict tainted by improper considerations and the evidence was admitted solely to prove the fact of the prior conviction, the trial court abused its discretion under Federal Rule 403 by admitting the record of the defendant’s prior conviction where an admission was available as an alternative form of proof. Id. at 191. It explained:

In dealing with the specific problem raised by [the federal felon in possession statute] and its prior-conviction element, there can be no question that evidence of the name or nature of the prior offense generally carries a risk of unfair prejudice to the defendant. That risk will vary from case to case . . . but will be substantial whenever the official record offered by the Government would be arresting enough to lure a juror into a sequence of bad character reasoning. Where a prior conviction was for a gun crime or one similar to other charges in a pending case the risk of unfair prejudice would be especially obvious . . . .

Id. at 185. The Court went on to note that when a prior offenses is far removed “in time or nature” from the current charges, its potential to prejudice the defendant is minimal. Id. at 185 n.8.

But does Old Chief apply in North Carolina? Noting that Old Chief was decided under federal evidence rule 403, several North Carolina Court of Appeals decisions have concluded that the case is not binding on North Carolina courts interpreting state Rule 403. State v. Little, 191 N.C. App. 655 (2008); State v. Jackson, 139 N.C. App. 721 (2000), reversed on other grounds, 353 N.C. 495 (2001); State v. Faison, 128 N.C. App. 745 (1998). However, the Court of Appeals has declined to reject Old Chief outright, opting instead to distinguish it from the facts presented. Jackson, 139 N.C. App. 721 (at defendant’s trial for carrying a concealed weapon, possession of a firearm by a felon, and resisting an officer, the State offered evidence of the defendant’s prior voluntary manslaughter conviction and the defendant offered to stipulate to having a prior felony conviction; the defendant was not “charged with any attendant offenses similar to his prior conviction of voluntary manslaughter, thus reducing the potential of prejudice in comparison to Old Chief”); Little, 191 N.C. App. 655 (defendant was charged with felon in possession, attempted first-degree murder, assault with a deadly weapon with intent to kill inflicting serious injury, and discharging a firearm into occupied property; defendant offered to stipulate to the existence of a prior felony conviction; distinguishing Old Chief, the court concluded that given the charged crimes, “we cannot say admission of the record evidence of defendant’s prior involuntary manslaughter conviction in lieu of defendant’s stipulation . . . so risked unfair prejudice that it substantially outweighed the discounted probative value of the record of conviction”); State v. Fortney, __ N.C. App. __, 687 S.E.2d 518 (Jan. 5, 2010) (no abuse of discretion by allowing the State to introduce evidence of the defendant’s prior rape conviction, notwithstanding the defendant’s offer to stipulate to a prior felony conviction; the prior conviction was not substantially similar to the offenses being tried: drug possession, possession of a firearm by a felon, and carrying a concealed weapon).

Also, the North Carolina Court of Appeals has said that even if Old Chief applies in North Carolina, the issue cannot be raised on appeal unless the defendant offers to stipulate to the prior conviction at trial. Faison, 128 N.C. App. 745 (in the absence of a defense stipulation “[t]he State . . . had no alternative but to introduce evidence of Defendant’s prior convictions in order to meet its burden of showing an element of the crime charged”).

Category: Evidence, Uncategorized | Tags: old chief, prior convictions, relevancy, rule 403, stipulations

Relevancy: Weapons

Posted on March 23, 2010 by Jessica Smith

Recently, I’ve been posting about relevancy issues that arise with some frequency in North Carolina criminal cases. A final topic in that vein is the relevancy of evidence pertaining to weapons allegedly used in the crime. Suppose for example that the State seeks to introduce evidence of a knife allegedly used in an assault. The knife was found on the defendant’s property. There are no fingerprints on the knife and no other physical evidence links the knife to the crime. However, the State’s medical expert will testify that the depth and width of the victim’s wounds are consistent with the dimensions of the knife and that they could have been caused by the knife. The defendant objects, asserting that because there is no evidence conclusively linking the knife to the crime, any evidence regarding the knife is irrelevant. How should the judge rule on the Rule 401 objection?

The cases hold that that for evidence of a weapon allegedly used in a crime to be relevant, the State need not conclusively connect the weapon to the crime. The courts say that the lack of evidence establishing such a conclusive connection goes to weight, not admissibility. Thus, in a fact pattern very similar to my example, evidence of a weapon was held to be relevant. State v. DeCastro, 342 N.C. 667 (1996) (evidence of a knife found three months after the murder in a pond some distance from the scene was relevant; although the knife had no bloodstains and was not tested for fingerprints, the medical examiner opined “that some of the fatal knife wounds found on both victims were consistent with the length and width of the knife and that the knife could have been one of the murder weapons;” the lapse in time in finding the knife and its distance from the scene affected weight, not admissibility); see also State v. Grooms, 353 N.C. 50 (2000) (evidence regarding a pocketknife carried by the defendant and a hacksaw frame and blades was relevant in a murder prosecution; any variance in size between the defendant’s knife and the medical examiner’s description of the wounds affected weight, not admissibility; based on the proximity of the hacksaw frame to the victim’s severed hand and evidence that the hand was severed by a blade similar to those at issue, the items were relevant; the lack of fingerprints on the hacksaw frame, lack of evidence that the blades fit into the frame, and the common availability of such blades affected weight, not admissibility); State v. Felton, 330 N.C. 619 (1992) (the failure of State’s expert to conclusively match bullets to the murder weapon affected weight, not admissibility); State v. Lytch, 142 N.C. App. 576 (2001) (bullets found two days after the murders by the manager of a trailer park where the defendant lived were relevant; the lack of evidence conclusively showing where in the trailer park the bullets were discovered impacted weight, not admissibility; the brief time lapse between the crimes and discovery of the bullets, the proximity of the bullets to defendant’s residence, and the fact that one of the bullets was at one time in the murder weapon established relevancy), aff’d, 355 N.C. 270 (2002).

Of course, there must be a sufficient connection between the weapon and the crime, or the evidence is irrelevant. Thus, in my example, if the assault was committed with a firearm, evidence of the knife would be irrelevant unless that weapon was connected to the crime in some other way. See, e.g., State v. Bodden, 190 N.C. App. 505 (2008) (nine-millimeter bullet found near a murder scene was irrelevant where the bullets used to shoot the victim were .38 or .357 caliber); State v. Grant, 178 N.C. App. 565 (2006) (testimony that the defendant possessed a pistol was irrelevant where the pistol was not connected to the shooting of the victim); State v. Patterson, 59 N.C. App. 650 (1982) (when the robbery was committed with a small handgun, admission of a sawed-off shotgun was error). In drug cases, this rule has been relaxed somewhat. Our courts have held that evidence regarding gun possession generally is relevant in drug cases, reasoning that there is a common sense connection between guns and drugs. See, e.g., State v. Boyd, 177 N.C. App. 165 (2006) (fact that a shotgun was found in a closet in the defendant’s home was relevant to drug possession and trafficking charges). And finally, defense lawyers shouldn’t forget about Rule 403 as a potential basis for excluding evidence of weapons where there the State hasn’t established a strong connection between the weapon and the crime.

Category: Evidence, Uncategorized | Tags: guns, knives, relevancy, weapons

Relevancy: “Context,” “Circumstances,” and “Chain of Events” Evidence

Posted on March 17, 2010 by Jessica Smith

In an earlier post, I wrote about relevancy and guilt of another. In this post, I consider another relevancy issue: context, circumstances, and chain of events evidence. Consider this problem: At the defendant’s murder trial, the State seeks to admit evidence that the defendant was doing drugs before the murder. To keep the facts clean, assume that voluntary intoxication is not a defense. The defense lawyer wants to keep evidence of the defendant’s drug use out because it paints the defendant as a bad person. Defense counsel makes a Rule 401 objection, arguing that the drug use is irrelevant. The State responds, arguing that the evidence is relevant because a tip about the defendant’s drug use caused the officers to do a knock and talk that resulted in the defendant’s confession to the murder. How should the judge rule?

The objection is likely to be overruled. Evidence is relevant if it establishes the context or circumstances of an event or if it explains a chain of events. This rule sometimes is called the “same transaction” rule, the “complete story” rule, or the “course of conduct” rule. State v. Sexton, 153 N.C. App. 641 (2002). Chain of circumstances evidence “is admissible if it forms part of the history of the event or serves to enhance the natural development of the facts.” Id. Significantly, such evidence is relevant even if it incidentally establishes commission of a prior bad act (in my example, drug use). Id. When the chain of events evidence reveals a bad act, the courts typically find Rule 404(b) to be no bar to admission, on grounds that the evidence is being admitted for the proper purpose of completing the story of the crime by providing immediate context, and not for propensity. See, e.g., State v. Agee, 326 N.C. 542 (1990); Sexton, 153 N.C. App. 641. As should be apparent, this rule opens the door for all kinds of evidence. [Editor’s note: there’s also no hearsay problem with the officer testifying about the report he received regarding the defendant’s drug use, a topic I discussed here.]

If you are looking for cases on point, consider these: State v. Barden, 356 N.C. 316 (2002) (testimony of the murder victim’s supervisor was relevant to explain the circumstances of the crime); Agee, 326 N.C. 542 (evidence of the defendant’s possession of marijuana was admissible in a trial for possession of LSD because it gave rise to a chain of events or circumstances; “[d]iscovery of the marijuana on defendant[] . . . led . . . to the search of the defendant’s vehicle and the subsequent detection of the LSD”); State v. Miller, __ N.C. App. __, 676 S.E.2d 546 (May 19, 2009) (questions posed to the defendant by law enforcement officers relaying statements made by third parties were relevant; the questions gave context to the defendant’s responses and explained his subsequent conduct of changing his story); Sexton, 153 N.C. App. 641 (in an arson trial, evidence that the defendant was inhaling intoxicants shortly before the fire was relevant to establish the chain of events or circumstances leading to the fire; the fact that it incidentally involved the defendant’s alleged illegal use of drugs did not make it irrelevant); State v. Robertson, 149 N.C. App. 563 (2002) (in a trial for rape and kidnapping, the victim’s testimony that the defendant told her that he was an ecstasy dealer was relevant to establish context for the charged crimes, which incidentally involved illegal drugs). Related cases hold that evidence is relevant if it explains the course of a law enforcement investigation. See, e.g., State v. Patterson, 185 N.C. App. 67 (2007) (in a trial for possession of stolen property pursuant to a breaking and entering and possession of implements of housebreaking, a detective’s testimony regarding businesses that had reported break-ins was relevant because it explained the chain of events in the police investigation).

In this situation, the defense lawyer’s best strategy is probably a Rule 403 objection, asserting that even with a limiting instruction the jury will be confused as to the role of the evidence. See State v. Smith, 359 N.C. 199 (2005) (evidence properly excluded where the trial court concluded that the jury would have difficulty following a limiting instruction and understanding that the statements were not offered for their truth). As a fallback, the defense should request a limiting instruction, which must be given if requested. See N.C. R. Evid. 105.

Category: Evidence, Uncategorized | Tags: chain of events, context, relevancy, rule 401, rule 403

Relevancy: Guilt of Another

Posted on March 8, 2010 by Jessica Smith

Editor’s note: Jessie has prepared a series of posts about the law of relevancy. They’ll run as an intermittent series over the next several weeks.

In this and upcoming posts, I will explore several relevancy issues that arise with some frequency. Perhaps the most litigated relevancy issue in North Carolina criminal cases is the admissibility of evidence regarding guilt of another. The law is clear that to be relevant, evidence of the guilt of another must: (1) point directly to the guilt of another party and (2) be inconsistent with the defendant’s guilt. By contrast, evidence that creates only an inference or conjecture as to another’s guilt is irrelevant.

There are a fair number of cases on this issue, and they come out both ways. Cases holding that guilt of another evidence is inadmissible under the standard set out above include: State v. Williams, 355 N.C. 501 (2002) (evidence attempting to implicate others in murders); State v. May, 354 N.C. 172 (2001) (evidence showing that another person had an argument with the victim days before the murder, was committed because he was hearing voices telling him to kill, told his doctor that he had hallucinations telling him to kill, and had a history of violent conduct; even if the evidence showed that the other person committed the crime, it was not inconsistent with the defendant’s guilt where the evidence put both the defendant and that person at the scene); State v. Hamilton, 351 N.C. 14 (1999) (evidence of a prior knife threat by another; no unusual facts surrounding the threat were present in the murder at issue; evidence did not point directly to the other person’s guilt); State v. Hester, 343 N.C. 266 (1996) (evidence that merely aroused suspicion that another might have had a motive to murder the victim); State v. McNeill, 326 N.C. 712 (1990) (even if another person had possession of an item similar to one owned by the murder victim, such possession did not put him at the scene and was not inconsistent with the defendant’s guilt); State v. Loftis, 185 N.C. App. 190 (2007) (evidence of methamphetamine use someone who resided near the shed in which methamphetamine was found and of the resident’s prior probation violation was not relevant in the defendant’s trial for trafficking in methamphetamine; the evidence was not inconsistent with the defendant’s guilt; because the probation violation had not been adjudicated, it was not conclusive); State v. Wiley, 182 N.C. App. 437 (2007) (evidence of another’s guilt was irrelevant where that person was an accomplice and the defendant would be guilty regardless of whether he or the other person inflicted the injury at issue); State v. Ryals, 179 N.C. App. 733 (2006) (a witness’s answer to question about submitting to a DNA test in relation to a hat was irrelevant where there was conflicting testimony as to whether the perpetrator wore a hat); State v. Couser, 163 N.C. App. 727 (2004) (evidence that the victim’s father was convicted of sexually assaulting the victim’s sister 17 years before the sexual assault at issue was irrelevant; the fact that the victim’s father previously was convicted of sexual assault in a completely different case was not inconsistent with the defendant’s guilt); and State v. Floyd, 143 N.C. App. 128 (2001) (testimony that the defendant’s girlfriend’s sons were hostile to the victim, and that they were not in school on the day of the murder did no more than arouse suspicion and was not inconsistent with the defendant’s guilt).

Cases holding that the trial court erred by refusing to admit guilt of another evidence include: State v. Snead, 327 N.C. 266 (1990) (excluded evidence tended to show that another identified person committed a robbery and killed the victim; the evidence showed that only one person was involved in the crime); State v. Israel, 353 N.C. 211 (2000) (new trial; evidence that another had the opportunity to kill the victim and a history of violent, recent dealings with the victim cast doubt upon the defendant’s guilt and implicated that person beyond conjecture or mere implication); State v. McElrath, 322 N.C. 1 (1988) (evidence of a larceny scheme in which the murder victim and his companions appeared to be involved was relevant where the defense alleged that the victim was killed by one of the companions after a falling out); and State v. Cotton, 318 N.C. 663 (1987) (evidence that within a short time of the burglary and sexual assault at issue, three homes in close proximity were broken into, the female occupants were sexually assaulted, and that someone other than the defendant committed one of the other break-ins).

Finally, it is important to note that the United States Supreme Court has held that there are constitutional limitations on rules that exclude evidence of guilt of another. In Holmes v. South Carolina, 547 U.S. 319 (2006), the Court held that a defendant’s federal constitutional right to present a defense was violated by a state evidence rule providing that a defendant may not introduce evidence of guilt of another if the prosecution has introduced strong forensic evidence of guilt. The Court held that the state rule was arbitrary, reasoning that by evaluating the strength of only one party’s evidence, no logical conclusion can be reached regarding the strength of contrary evidence offered by the other side to rebut or cast doubt. Two North Carolina cases have distinguished Holmes and held that North Carolina’s rule regarding guilt of another is not arbitrary. State v. Loftis, 185 N.C. App. 190 (2007); State v. Wright, 182 N.C. App. 767 (2007) (unpublished).

Category: Evidence, Uncategorized | Tags: Evidence, guilt of another, relevancy, relvance

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