Evidence Practical Project Fall 2014

LAW 6330 (4 credits)
Section 02BB
Professor Pedro A. Malavet
Fall 2014

Instructions

As I announced in my Course Description and Rules, I require each student to submit a practical project that accounts for ten percent (10%) of your testing score for this course. The project is judged on a pass/fail basis.

Each student will work individually, although I have assigned you a role to play as indicated below. You are allowed to discuss the problem with your classmates and may refer to forms and other resources, as long as you draft your own motion.

Your assignment is to write a motion in limine, based on the fact-pattern that follows. Students with last names starting with letters between BAK and KEL will write for the defendant, Cleveland Lee Wright, and those whose last names fall between KEM and WOO will write for the prosecution, the state of Arkansas.

You will assume that the applicable rules are the Federal Rules of Evidence, together with accompanying caselaw as studied in your Fall 2014 Evidence Course. Your motion must adequately represent the interests of the party you represent, be it the defendant or the People of the State of Arkansas, and make reference to the pertinent Federal Rules of Evidence, cases and other materials included in your casebook and Rules supplement (you are allowed to extend your research beyond these resources, but it is not required).

I recommend a list of bibliographic resources collected by the Legal Information Center [click here to view the bibliography]. I also highly recommend the Public Defender Service of the District of Columbia Criminal Practice Institute Trial Manual (http://www.pdsdc.org/LegalCommunity/TrainingCPI.aspx).

DUE DATE: Projects are due on or before 5:00 p.m. on THURSDAY, November 6, 2014. All documents must be in either MS Word or PDF format and must be uploaded to the eLearning in Canvas course page using the Motion in Limine-Practical Project assignment created for that purpose.

The system will be set to allow multiple submissions up until the time of the final deadline. Uploading a file that is corrupted and cannot be opened will be treated as a failure to make a timely submission.

Fact-Pattern:
State of Arkansas v. Cleveland Lee Wright

Cleveland Lee Wright v. State of Arkansas

Set for re-trial starting on Monday, December 1, 2014, in the
Circuit Court for Pulaski County
by order of
the Court of Appeals of Arkansas, Division Two

(Text of the appellate opinion modified for examination and project purposes)

Defendant Cleveland Wright successfully appealed his convictions by a Pulaski County jury of first-degree domestic battering and fleeing, for which he was sentenced to a term of 780 months in the Arkansas Department of Correction. On appeal, he argued that admission of a police officer’s testimony violated the prohibition against hearsay and his rights under the Confrontation Clause of the Sixth Amendment to the U.S. Constitution.

The matter was heard by the Second Division of the Court of Appeals of Arkansas. Chief Judge Gladwin heard oral argument on this appeal together with Judge Rhonda Wood and Judge Waymond M. Brown. The Court of Appeals ruled that Defendant/Appellant’s claim that the trial court erred in ruling that the statements should be admitted above a hearsay objection should be rejected because the trial court’s ultimate ruling on that objection was correct. However, the court of appeals then ruled that the trial court erred in rejecting Defendant/Appellant’s claim that his rights under the Sixth Amendment were violated; the statements were inadmissible under the Sixth Amendment and the Crawford Doctrine. The Court of Appeals accordingly remanded the case to the County Court for a new trial.

The trial court has instructed defense counsel and the state to file simultaneous motions in limine arguing how it should implement the decision of the Court of Appeals on retrial on or before 5:00 p.m., Eastern Time, Thursday, November 6, 2014.Unless otherwise ordered, the evidence at the retrial would be similar to the facts found by the court of appeals, which are transcribed below.

Defendant was married to Ronique Wright, and they lived in an apartment with their children in Jacksonville, Arkansas. Early in the morning on February 22, 2012, Ms. Wright, bleeding from serious knife wounds and “fading in and out,” went to the apartment of her neighbor, Pamela Livings. Ms. Livings called 911, and Ms. Wright provided law-enforcement officers with a description of defendant’s vehicle. Officers subsequently located and pursued a vehicle matching the description on Pike Avenue in North Little Rock. Defendant led the officers through North Little Rock and Sherwood, driving sixty miles-per-hour on city streets and running through stop signs and red lights. He turned onto Highway 161 and increased his speed to ninety and ninety-five miles-per-hour, at one point passing a stopped school bus with flashing lights. He finally stopped after pulling into a driveway along Highway 161.

Dr. Robert Haley Shaw, a surgeon at Baptist Health Medical Center in North Little Rock, examined and operated on Ms. Wright. He determined that she had thirty lacerations, including a stab wound in her abdomen large enough for her intestine to protrude through the abdominal wall. She also had wounds on her chest, including one near the aorta, multiple wounds on her left arm and left hand, as well as a collapsed left lung.

R.J., the son of defendant and Ms. Wright, who was seven years old at the time of trial, testified that he was in the living room when he saw defendant stab Ms. Wright with a knife in the kitchen.

On April 12, 2013, the State filed an amended, three-count felony information against defendant in which the State alleged that on or about February 22, 2012, defendant committed the following criminal offenses: (1) Class B felony first-degree domestic battering; (2) Class D felony fleeing. In the information, the State requested that any sentence of imprisonment imposed on defendant for having committed first-degree domestic battering be enhanced pursuant to Arkansas Code Annotated section 5-4-702(a) (Supp. 2011), because he committed the offense in the presence of a child, his and Ms. Wright’s minor son, R.J.

Defendant’s jury trial was held on April 16-17, 2013. The jury found him guilty of having committed first-degree domestic battering in the presence of a child and felony fleeing. The jury sentenced defendant as a habitual offender, and the circuit court imposed the four consecutive sentences of imprisonment, which resulted in an aggregate sentence of sixty-five years pursuant to a sentencing order entered on April 22, 2013. Defendant filed a timely notice of appeal on May 16, 2013.

Defendant argued that the circuit court erred in denying an objection made by his counsel on the basis of the Confrontation Clause of the Sixth Amendment to the United States Constitution. For questions of constitutional interpretation, this court employs a de novo standard of review on the matters of law. Chambers v. State, 2012 Ark. 407, S.W.3d.

Defendant argued that the circuit judge erred in denying his hearsay and Confrontation Clause-based objection to State’s witness Jacksonville Police Officer John Alberson’s repeating statements made to him out of court by the victim, Ms. Wright, which included the statement that she and her husband had argued at their apartment. His attorney made a timely objection during the direct examination of Officer Alberson as follows:

• Officer Alberson: With regard to what I do remember about Ronique Wright, what was her condition when I first saw her, she was bleeding from multiple puncture wounds. She had[,] I could tell[,] stab wounds in her hands, her mouth, around her neck area. She did have a shirt on but it was, I mean, she was just covered in blood.
• She was in and out of a panic state. She was able to tell me what had happened[,] but I had her sit down.
• I grabbed a white plastic lawn chair and actually had her sit down until the ambulance arrived on scene. And I got as much information from her as I possibly could on the suspect.
• Deputy Prosecuting Attorney: Let’s talk about that for a minute. With regard to what information did she give you about the suspect?
• Defense Counsel: May we approach, please?
• The Court: Yes.
• 
  (Counsel approached the bench for a conversation with the circuit judge, out of hearing of the jury, as follows:)
  
  
• Defense Counsel: Judge, it sounds like they’re going to offer testimony from Ms. Ronique Wright that was told to this officer. I have two objections on that. One is hearsay. Also, the other is that it violates the Confrontation Clause of the Sixth Amendment of the U.S. Constitution, also the Crawford case that supports it that this is testimony.
• These were questions asked by this officer of Ms. Ronique Wright for the purpose of developing a case and prosecuting this case. And because of that and because I have no way of cross-examining her since she is not present here today, this violates the Sixth Amendment’s confrontation clause and it is also rank hearsay.
• Deputy Prosecuting Attorney: My first argument, Judge, is that exception to hearsay under 803, you have present sense impression and also excited utterance. It would qualify—these statements would qualify under that.
• And secondly, this is based on what she told him about the defendant and the car, the description of the car. A broadcast is put out. So that’s also basis of action.
• Defense Counsel: These are all hearsay and testimonial in nature, Judge. Disallowed without her being present.
• Deputy Prosecuting Attorney: Why they’re looking for the car, I mean, because she gave them that description.
• The Court: I will allow it for that non-truth purpose of explaining the police response only.
• 
  (Then, in open court:)
  
  
• Officer Alberson: With regard to what information did she give me about the person that did this to her, she advised me her and her husband had got into an argument at their apartment, which was actually across the parking lot, apartment 5B, I do believe, was their apartment. And that they had a son in the room, that was in the living room.
• Defense Counsel: Judge, if we could approach.
• 
  (Counsel again approached the bench for a conversation with the circuit judge, out of hearing of the jury, as follows:)
  
  
• Defense Counsel: Judge, I have a continuing objection. I thought we just discussed this that he was going to give a description of the car that he obtained from her. Because we’re not going in to the circumstances of this case. That’s clearly testimony that he has elicited. This is—the testimony they offer that it violates the hearsay rule and the Confrontation Clause, Judge.
• Deputy Prosecuting Attorney: Is the Court —has the Court made a ruling with respect to the hearsay exception?
• The Court: Well, initially I allowed it for the limited purpose of explaining why the police went looking for the car, but you have gone way beyond that, so the evidence is clearly hearsay.
• Deputy Prosecuting Attorney: I mean, she has been stabbed and she’s trying to relay this information to the officer.
• Defense Counsel: Keep your voice down.
• Deputy Prosecuting Attorney: Is it a hearsay —so can I continue?
• The Court: I say that’s an exception. I will not allow it under 803(1) but I will allow it under 803(2) excited utterances. You may continue.
• Defense Counsel: Judge, this is not just a hearsay argument.
• The Court: Okay.
• Defense Counsel: This is also a Sixth Amendment Confrontation Clause argument under the Crawford case … it’s testimonial.
• The Court: That’s denied. That’s denied, it was an emergency. Have a seat. Thank you.

Defendant claimed that Ms. Wright’s statements are inadmissible hearsay and testimonial for Sixth Amendment purposes. He further claimed that Officer Alberson’s on-scene questioning of the victim, Ms. Wright, was not conducted to address an on-going emergency.

Ms. Wright was not available to testify at defendant’s first trial, for reasons that cannot be attributed to the defendant, and defendant had not had a previous opportunity to cross-examine her. She is similarly expected to be absent from the second trial.

Statutory Materials

5-26-303. Domestic battering in the first degree.

• (a)  A person commits domestic battering in the first degree if:
  • (1) With the purpose of causing serious physical injury to a family or household member, the person causes serious physical injury to a family or household member by means of a deadly weapon;
  • (2) With the purpose of seriously and permanently disfiguring a family or household member or of destroying, amputating, or permanently disabling a member or organ of a family or household member's body, the person causes such an injury to a family or household member;
  • (3) The person causes serious physical injury to a family or household member under circumstances manifesting extreme indifference to the value of human life;
  • (4) The person knowingly causes serious physical injury to a family or household member he or she knows to be sixty (60) years of age or older or twelve (12) years of age or younger; or
  • (5) The person:
    • (A) Commits any act of domestic battering as defined in § 5-26-304 or § 5-26-305; and
    • (B) For conduct that occurred within the ten (10) years preceding the commission of the current offense, the person has on two (2) previous occasions been convicted of any act of battery against a family or household member as defined by the laws of this state or by the equivalent laws of any other state or foreign jurisdiction.
• (b)  
  • (1)  Domestic battering in the first degree is a Class B felony.
  • (2)  However, domestic battering in the first degree is a Class A felony upon a conviction under subsection (a) of this section if:
    • (A) Committed against a woman the person knew or should have known was pregnant; or
    • (B) The person committed one (1) or more of the following offenses within five (5) years of the offense of domestic battering in the first degree:
      • (i)  Domestic battering in the first degree;
      • (ii) Domestic battering in the second degree, § 5-26-304;
      • (iii) Domestic battering in the third degree, § 5-26-305; or
      • (iv) A violation of an equivalent penal law of this state or of another state or foreign jurisdiction.

5-4-702. Enhanced penalties for offenses committed in presence of a child.

• (a)  Any person who commits a felony offense involving homicide, §§ 5-10-101 -- 5-10-103, assault or battery, § 5-13-201 et seq., or domestic battering or assault on a family member or household member, §§ 5-26-303 -- 5-26-309, may be subject to an enhanced sentence of an additional term of imprisonment of not less than one (1) year and not greater than ten (10) years if the offense is committed in the presence of a child.
• (b)  Any person who commits the offense of aggravated cruelty to a dog, cat, or horse under § 5-62-104 may be subject to an enhanced sentence of an additional term of imprisonment not to exceed five (5) years if the offense is committed in the presence of a child.
• (c)  
  • (1)  To seek an enhanced penalty established in this section, a prosecuting attorney shall notify the defendant in writing that the defendant is subject to the enhanced penalty.
  • (2)  If the defendant is charged by information or indictment, the prosecuting attorney may include the written notice in the information or indictment.
• (d)  The enhanced portion of the sentence is consecutive to any other sentence imposed.
• (e)  Any person convicted under this section is not eligible for early release on parole or community correction transfer for the enhanced portion of the sentence.

Case:

Facts and text taken, and modified to fit examination purposes, from Cleveland Lee Wright v. State of Arkansas, 2014 Ark. App. 231; 2014 Ark. App. LEXIS 292 (Court of Appeals of Arkansas, Division 2).