What's Up in the 8th
You're in a bind. Your client has a bad record, and you can't run the risk of putting him on the stand and allowing the jury to hear about his prior convictions. Still, you'd like to get his version of what happened out, and there's a way to do that: he made a statement to the police, and a very exculpatory one at that. So when the officer gets on the stand, you cross-examine him, and get him to admit that your client made a statement; in fact, you get him to read the whole statement into the record.
The prosecutor doesn't even object, which surprises you a little. Young guy, just doesn't know the rules of evidence, you figure. He'll learn.
Still, you're surprised when he gets up for redirect and asks the cop if your client has ever been convicted of a crime. Hey, it's one thing to be dumb, it's another to be underhanded, you think as you jump to your feet and shout an outraged "Objection!"
And you're even more surprised when the judge lets it in, and you find out that what the prosecutor did is perfectly proper.
It's proper because of EvidR 806(A), which is featured in the 8th District's decision last week in State v. Montgomery. The rule basically provides that when a hearsay statement is admitted, the credibility of the declarant may be attacked in the same way as if the declarant had actually testified. In other words, if you introduce hearsay, the other side can attack the credibility of the person who made the hearsay statement, by introducing the person's prior convictions, or a prior inconsistent statement.
That's what happened in Montgomery. He'd been accused of fondling a neighbor girl during his daughter's sleepover, and on cross-examination of the detective, the defense attorney had asked him to read Montgomery's statement. He did, and on redirect the State, over objection, was allowed to elicit Montgomery's prior attempted robbery and aggravated assault convictions. The appeal didn't even claim that this was error, but instead contended that the defense attorney had been ineffective in opening the door in this fashion. That doesn't go anywhere, either.
Keep in mind there is an out: if the statement isn't being offered for its truth, then it's not hearsay, and the declarant can't be impeached. This happened earlier this year in Columbus v. Montgomery (yes, same name, different guy), although the defense got screwed in that one, too. In that case, a police officer had testified as to statements a witness had made to him, although the witness never appeared. On cross-examination, the defense tried to get out the fact that the witness had a prior felony conviction. The appellate court upheld the judge's refusal to admit the evidence, finding that the statements weren't introduced to prove the truth of the matter, but simply to "explain the course of the police investigation."
So the moral is, be careful out there.
F. Scott Fitzgerald claimed there were no second acts in American lives, but then again, he never practiced appellate law. Two defendants get a second bite of the apple, but come a cropper. Just before voir dire in his trial for for raping his girlfriend's daughter, Lorenzo Harrison asked to have his attorney replaced. The judge summarily denied the request; his exact words were, "that request is denied," and you don't get any more summary than that. Harrison was convicted, but the appeals court decided last year that the judge was required to make an inquiry on the record into Harrison's complaint. Instead of reversing and remanding for a new trial, though, the court merely sent it back with instructions to conduct a hearing to determine whether Harrison's request had merit; if the judge determined it did, he'd have to grant a new trial, but if he found it didn't, the verdict would stand. If you can't figure out what happens, you shouldn't go on any game shows. In State v. Harrison, the court agrees that Harrison's claims of his attorney's deficiencies don't cut it, and his conviction and life sentence stand.
Lorenzo Collins also gets a break. He decided to get even with a guy who slept with his girlfriend while Lorenzo was in prison, so he set the guy's apartment building on fire. The guy wasn't there, but four kids were, and they died. Collins' conviction was reversed because of an unfortunate remark by the trial judge to the jury; after telling them that they shouldn't talk to the attorneys if they see the attorneys in the cafeteria, he told them, "the defendant is incarcerated, you're not going to see him in the cafeteria, I just want you to know that's for security reasons." Oops. Collins, though, has no better luck the second around than Harrison did. In State v. Collins, his claims that the judge should have instructed the jury on involuntary manslaughter and reckless homicide go for naught, given the ample evidence of the requisite intent for felony murder.
He does manage, though, to persuade the court that his convictions for felony murder should have merged with the convictions for aggravated arson, which demonstrates the changes wrought by the Supreme Court's decision last November in State v. Johnson. There had been numerous cases decided under the Rance regime holding to the contrary. Indeed, it now appears likely that courts will find that in any felony murder case, the underlying crime merges with the murder.
State v. Welch presents another allied offense question, and raises an interesting issue regarding the proof necessary for a rape conviction. The case is a nasty one, involving repeated molestation by Welch of his daughter, resulting in convictions of rape, kidnapping, and sexual battery. The judge merged the kidnappings with the other offenses, but the court holds she should have also merged the sexual batteries. The latter were charged under the "incest" section of the sexual battery statute, and relied upon the same conduct as the rapes.
There's a partial dissent on the conviction as to one count, where the sole evidence was the the victim's statement that Welch "hurried up and inserted his penis in." The dissent looks to State v. Ferguson, a 1983 case in which the Supreme Court held that the victim's statement, "and then we had intercourse a couple of times," wasn't enough to prove rape. The opinion was only 4-3, and the majority gets a bit testy, noting that while the victim probably wasn't using "intercourse" to describe a spirited discussion of Shakespeare's works (my analogy, not theirs), it wasn't up to the court to do the prosecutor's job: the prosecutor "must be aware of the elements necessary to prove the state's case and to elicit testimony as to those elements as tactfully as possible." I'm not convinced that the judge is right on this point; "put his penis in" would seem to be sufficient to establish penetration, the only remaining element necessary for the conviction of sexual battery, if not rape. Still, it's something to keep in mind. What I am convinced of is that Welch, given his 36-year sentence, must have deemed the entire discussion utterly irrelevant to his fate.