Case Law Update: 2011-2014 Cumulative Edition

Facts: Defendant was charged with DWI for driving under influence of drugs. The State indicated it would introduce hospital records of Defendant showing the presence of drugs in her blood or urine. Defendant filed a “Motion to Suppress or in the Alternative Motion in Limine.” The trial court believed that the evidence could only be admitted if certain state regulation and evidentiary foundations were followed, and so excluded the evidence before trial. The State appealed. Defendant contended the appeal had to be dismissed because the statute allowing a State’s appeal only covers illegally seized evidence, which is not at issue here.

Holding: Sec. 547.200.1(3) permits a State’s appeal of suppression of illegally seized evidence. Sec. 542.296.5 sets forth five grounds on which a motion to suppress can be based, each of which involves illegal searches and seizures. Courts read these two statutes together to allow State’s appeals only about illegally seized evidence. Here, the trial court’s ruling is really a pretrial grant of a motion in limine (despite that the motion was also called “motion to suppress”) and such a ruling is subject to change at trial. The grounds of the motion were not that the blood or urine was illegally seized, but that an evidentiary rule requires exclusion. Thus, the State is not statutorily authorized to appeal, and the appeal must be dismissed. However, the State may be able to seek a writ of prohibition as a remedy, but the appellate court expresses no opinion on the merits.

Editor’s note: The Western District issued an identical ruling in State v. Pfleiderer, No. WD73407 (Mo. App. W.D. 6/14/11), a DWI case where trial judge excluded evidence of blood test results taken by a hospital for treatment purposes without following the requirements of Chapter 577 pertaining to the collection of samples of blood for BAC analysis.
State v. Sprofera, No. WD73213 (Mo. App. W.D. 4/10/12):

Court abused discretion in allowing State to admit evidence that Defendant called Prosecutor a “cunt” because this had no logical relevance in proving the elements of the case or impeaching Defendant’s testimony.

Facts: Defendant was charged with various child sex offenses. At trial, he testified he was a “calm” parent and did not have a significant temper. The State, over objection, was then allowed to cross-examine Defendant about an outburst he had made at a prior court appearance where he called the Prosecutor a “cunt” in court.

Holding: The State claims the cross-examination was relevant to impeaching Defendant’s testimony that he was a calm parent and did not have a significant temper. However, we fail to see any logical relevance a profane outburst made to a prosecutor could have in proving the elements of the case against Defendant or in impeaching his testimony about his parenting. Given that the testimony was wholly irrelevant and could have prejudicial effect, the Prosecutor should not have been allowed to ask the question and the objection should have been sustained. However, the evidence was harmless in light of other evidence of guilt here.
* Kansas v. Cheever, ___ U.S. ___, 94 Crim. L. Rep. 353 (U.S. 12/11/13):

Holding: Where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit a crime, it does not violate the 5^th Amendment privilege against self-incrimination for the prosecution to offer evidence from a court-ordered evaluation for the limited purpose of rebutting the defendant’s evidence; here, after Defendant gave notice that he intended to present a defense based on lack of mental capacity, the prosecution requested and the court ordered an evaluation by the State; the Supreme Court held it did not violate the 5^th Amendment privilege against self-incrimination for the prosecution to use this at trial as rebuttal evidence to Defendant’s mental health defense; “where a defense expert who has examined the defendant testifies that the defendant lacked the requisite mental state to commit an offense, the prosecution may present psychiatric evidence in rebuttal.”
* Smith v. U.S., 92 Crim. L. Rep. 421, 2013 WL 85299, __ U.S. ___ (U.S. 1/9/13):

Holding: Defendant’s claim that he withdrew from a conspiracy outside the statute of limitations period is an affirmative defense on which he bears the burden of proof by a preponderance of the evidence.
* Perry v. New Hampshire, ___ U.S. ___, 90 Crim. L. Rep. 500 (U.S. 1/11/12):

Holding: Even though an eyewitness identification may have been suggestive, it is not subject to suppression unless law enforcement engaged in improper conduct in orchestrating it; instead of suppression, defendants can rely on other safeguards such as cross-examination, expert testimony, jury instructions on the suspect reliability of eyewitness identification, the reasonable doubt standard, and the general rule that requires suppression of relevant evidence when it is more prejudicial than probative.
* Perry v. New Hampshire, ___ U.S. ___, 90 Crim. L. Rep. 500 (U.S. 1/11/12):

Holding: Eyewitness identifications are not subject to suppression unless police arranged the suggestive circumstances; however, defendants may counter identifications with cross-examination, expert testimony, and jury instructions on the reliability of eyewitness identification.
U.S. v. Sanabria, 2011 WL 2802898 (1^st Cir. 2011):

Holding: Trial court erred in allowing a Witness to testify that he did not believe Defendant’s explanation for his arrest about mistaken identity because this was impermissible lay opinion testimony; whether Defendant was mistakenly identified was a jury question.
U.S. v. Meises, 89 Crim. L. Rep. 257, 2011 WL 1817855 (1^st Cir. 5/13/11):

Holding: Even though Officer actually participated in the drug sting, this did not make his “overview testimony” about the sting about which he had no personal knowledge admissible; this was still hearsay and inadmissible lay opinion testimony.
U.S. v. Melvin, 93 Crim. L. Rep. 766, 2013 WL 5183116 (1^st Cir. 9/17/13):

Holding: Where Gov’t promised not to use “statements” or “other information” obtained from a proffer session with Defendant, due process was violated where Gov’t then had Officer testify that he listened to Defendant’s voice at the proffer session and matched it to a voice on an incriminating wiretap.
U.S. v. Meises, 89 Crim. L. Rep. 257, 2011 WL 1817855 (1^st Cir. 5/13/11):

Holding: Even though Officer actually participated in the drug sting, this did not make his “overview testimony” about the sting about which he had no personal knowledge admissible; this was still hearsay and inadmissible lay opinion testimony.
U.S. v. Murray, 736 F.3d 652 (2d Cir. 2013):

Holding: Where State presented rebuttal cell-phone tower evidence that allegedly refuted Defendant’s trial testimony and placed Defendant at scene of crime, trial court denied Defendant his right to present a meaningful defense when it precluded the defense surrebuttal evidence that would have refuted the State’s cell-phone tower evidence.
Young v. Conway, 2012 WL 4876235 (2d Cir. 2012):

Holding: Robbery victim’s in-court identification of Defendant did not have an independent basis from a tainted lineup, where victim’s initial description of robber was very general and she could not identify Defendant from a photograph prior to the tainted lineup.
U.S. v. Scott, 91 Crim. L. Rep. 68 (2d Cir. 4/6/12):

Holding: Officer who arrested Defendant for drug offense should not have been allowed to testify that he recognized Defendant because they had spoken to him the past because a jury would assume there were prior bad acts.
U.S. v. Cedeno, 89 Crim. L. Rep. 178 (2d Cir. 5/2/11):

Holding: Under some circumstances, defense may be able to impeach a police officer with a prior judge’s finding in another case that officer was not credible; factors to consider are whether there is any connection between the two cases, whether prior judge found that the witness was lacking credibility only in the prior case and not in general, whether the lie was under oath and about a significant matter, how much time had elapsed since the prior case, and the motive to lie and explanation for it.
U.S. v. Smith, 93 Crim. L. Rep. 648 (3d Cir. 8/16/13):

Holding: Where Defendant was charged with threatening officers with a gun, Gov’t should not have been permitted to introduce evidence that Defendant had participated in drug activity at the same location two years earlier, because this was merely prior bad act evidence to show propensity, not evidence of intent or motive as the Gov’t claimed.
U.S. v. Davis, 93 Crim. L. Rep. 660 (3d Cir. 8/9/13):

Holding: In drug distribution prosecution, Defendant’s prior conviction for simple possession of cocaine was not admissible to show his knowledge that a parcel in his car was a cocaine brick absent any proof the drugs were similar in appearance or form.
U.S. v. Davis, 2013 WL 4035547 (3d Cir. 2013):

Holding: Defendant’s prior convictions for “possession” of cocaine were not admissible as prior bad acts in “possession with intent to distribute” case, because possession and distribution are distinct offenses requiring different levels of knowledge.
U.S. v. Smith, 2013 WL 3985005 (3d Cir. 2013):

Holding: Evidence that Defendant, who was charged with threatening Officer with a gun, had been seen two years earlier at the same location dealing drugs was not admissible under the other acts rule, because Defendant’s purported motive to “defend his turf” required one to assume that Defendant had been a drug dealer when previously seen and was acting in conformity with that character.
U.S. v. Cunningham, 2012 WL 4075875 (3d Cir. 2012):

Holding: Trial court’s refusal to view child pornography, and instead just relying on written descriptions of it, before admitting it at trial was arbitrary and unreasonable.
U.S. v. Cone, 93 Crim. L. Rep. 95 (4^th Cir. 4/15/13):

Holding: (1) Contents of emails are not necessarily admissible under “business records” exception to hearsay without further analysis since email is a more casual form of communication than other records usually kept in the course of business such that email may not be assumed to have the same degree of accuracy and reliability; and (2) Materially altering a good that bears a genuine trademark and passing it off as a more expensive product is not prohibited by the criminal trademark counterfeiting statute, 18 USC 2320.
U.S. v. Greene, 92 Crim. L. Rep. 426 (4^th Cir. 1/3/13):

Holding: Prosecutor should not have been permitted to ask bank teller-victim to testify how Defendant’s features resembled the bank robber because such a procedure was blatantly suggestive and rendered the witness’ in-court identification unreliable since the witness likely felt pressured to identify similarities.
U.S. v. Hamilton, 93 Crim. L. Rep. 592, 2013 WL 3480200 (5^th Cir. 7/11/13):

Holding: Where Defendant was charged with felon-in-possession of firearm, testimony that he was a gang member and that members of the gang usually carried guns was inadmissible propensity evidence.
U.S. v. Winters, 91 Fed. R. Evid. Serv. 958 (5^th Cir. 2013):

Holding: Gov’t failed to lay proper foundation in drug conspiracy case for admission of photos from Defendant’s Facebook page of guns stacked on thousands of dollars and what looked like many kilos of cocaine, because although Defendant told Officer that the website was his, there was no evidence that Defendant or any member of the conspiracy had actually possessed or owned the items pictured in the photos.
U.S. v. Washington, 2012 WL 6682015 (6^th Cir. 2012):

Holding: Even though Witness stole utility services by hooking them up without paying, this was not a conviction involving misrepresentation or fraud which impact on trutfulness, so Witness could not be impeached with it.
Wooten v. Cauley, 2012 WL 1216288 (6^th Cir. 2012):

Holding: The Supreme Court’s new definition of a key phrase in the money laundering statute was a substantive change of law, increasing the government’s burden of proof, and is to be applied retroactively.
U.S. v. Clay, 2012 WL 43592 (6^th Cir. 2012):

Holding: Admission of evidence of uncharged prior offenses, portraying defendant as a violent man, was not harmless error in a prosecution for carjacking and brandishing a firearm during and in relation to the carjacking.
U.S. v. Armstrong, 2011 WL 3792363 (6^th Cir. 2011):

Holding: Passenger’s prior act of dropping contraband while fleeing police was not admissible under modus operandi exception.
Stumpf v. Houk, 89 Crim. L. Rep. 743, 2011 WL 3506101 (6^th Cir. 8/11/11):

Holding: Prosecutor’s use of factually inconsistent theories at two trials as to which co-defendant shot victim violated due process and precluded imposition of death sentence.
U.S. v. Abair, 94 Crim. L. Rep. 771 (7^th Cir. 3/19/14):

Holding: Gov’t impeachment was improper where Gov’t accused Defendant of previously filing false tax and financial aid forms, when Gov’t lacked a good-faith basis to believe Defendant lied on those forms.
U.S. v. Phillips, 93 Crim. L. Rep. 717 (7^th Cir. 9/4/13):

Holding: Defendants charged with committing mortgage fraud by lying about their income on a loan application should have been allowed to present evidence that their broker had assured them that their falsehoods would not affect the bank’s decision about the loan; this is because such assurances would negate Defendant’s intent to “knowingly” make a false statement “for the purpose of influencing” the bank, as required by 18 USC 1014.
U.S. v. Lee, 2013 WL 3944256 (7^th Cir. 2013):

Holding: Where Defendant claimed to be an innocent bystander in a drug distribution, his prior conviction for drugs should not have been admitted because Defendant’s defense did not put his knowledge or intent at issue, and he was not claiming to have made a mistake.
U.S. v. Ramirez-Fuentes, 2013 WL 28261 (7^th Cir. 2013):

Holding: Agent should not have been permitted to refer to drugs at Defendant’s trial as “Mexican-methamphetamine” because this improperly called attention to Defendant’s nationality, and was more prejudicial than probative.
Harris v. Thompson, 2012 WL 4944325 (7^th Cir. 2012):

Holding: Defendant’s 6^th Amendment right to present a defense was violated when trial court refused to allow Defendant’s 5-year-old son to testify about Defendant shooting his other son on grounds that the 5-year-old was incompetent to testify; the 5-year-old said he knew truth from a lie, even though he also believed in Santa Claus, the tooth fairy and Spiderman; the 5-year-old was the sole eyewitness to the shooting and his version of events was exculpatory.
U.S. v. Miller, 2012 WL 3059295 (7^th Cir. 2012):

Holding: Where Defendant was charged with receiving child pornography and his granddaughter alleged he had inappropriately touched her, before admitting granddaughter’s allegations of prior bad acts, the court should have first determined whether those allegations fell within the scope of the rule allowing prior bad acts, and second, whether such evidence was more prejudicial than probative and articulated its decision on the record.
U.S. v. Boros, 2012 WL 402048 (7^th Cir. 2012):

Holding: Defendant on trial for conspiracy to import controlled substances was unduly prejudiced by expert testimony about the side effects and birth defects associated with drugs sold through defendant’s internet pharmacy.
U.S. v. Miller, 90 Crim. L. Rep. 814 (7^th Cir. 3/12/12):

Holding: A trial court abused its discretion in admitting evidence of a defendant’s prior drug conviction at his trial for possession of crack cocaine with intent to distribute because the exception allowing other-crimes evidence to establish intent has just about swallowed the rule barring it to prove criminal propensity.
Tribble v. Evangelides, 90 Crim. L. Rep. 605 (7^th Cir. 1/26/12):

Holding: When an arrestee sued the police for unlawful arrest and detention, it was improper for a prosecutor to testify that, in her opinion, the lack of criminal charges flowing from the plaintiff’s arrest for drug possession could be attributed to a busy criminal court’s policy of tossing out low-weight cases.
U.S. v. Loughry, 90 Crim. L. Rep. 104 (7^th Cir. 10/11/11):

Holding: Where Defendant was charged only with administering a website that had nude photos of girls, evidence that Defendant’s home computer contained “hard core” images of girls being raped by adults was not admissible since its prejudicial effect was greater than its probative value in that Defendant wasn’t charged with these “hard core” materials.
U.S. v. Courtright, 88 Crim. L. Rep. 550, 2011 WL 102591 (7^th Cir. 1/13/11):

Holding: The word “accused” in Fed. R. Evid. 413 in sex offense cases means “charged,” not just identified by the complainant.
U.S. v. Yarrington, 2011 WL 814057 (8^th Cir. 2011):

Holding: Where Gov’t jail-house snitch witness testified on direct examination that he never talked to Defense Witness about helping the prosecution in order to get his sentence reduced, the defense was entitled to present Defense Witness to testify to Gov’t snitch witness’ prior inconsistent statements that snitch told Defense Witness that snitch was going to make up information about Defendant because he did not like the nature of the charge against Defendant (child pornography).
U.S. v. Evans, 2013 WL 4516754 (9^th Cir. 2013):

Holding: Defendant on trial for being an alien after deportation and for misrepresenting his citizenship was denied due process right to present a defense when court excluded evidence that he had a birth certificate issued by State of Idaho.
U.S. v. Alvirez, 92 Crim. L. Rep. 793 (9^th Cir. 3/14/13):

Holding: “Certificate of Indian Blood” under 18 USC 1153 is not admissible as a self-authenticating document.
U.S. v. Juan, 92 Crim. L. Rep. 432 (9^th Cir. 1/7/13):

Holding: Prosecutor violated due process by threatening its witness (Defendants’ wife) into recanting her exculpatory trial testimony and giving testimony incriminating Defendant in domestic abuse case; Wife had initially told police that Defendant beat her, then changed her story to an exculpatory one, then changed her story back to an incriminating one after Prosecutor threatened to charge her with perjury and persuaded the judge to allow her to consult with a court-appointed counsel.
U.S. v. Wiggan, 2012 WL 5861808 (9^th Cir. 2012):

Holding: In perjury prosecution, trial court erred in admitting testimony of grand jury foreman before whom Defendant had testified that grand jurors did not find Defendant’s testimony to be credible.
Cudjo v. Ayers, 2012 WL 4490751 (9^th Cir. 2012):

Holding: State court ruling that exclusion of trustworthy exculpatory evidence from Defendant’s trial did not violate any clearly established federal law was contrary to U.S. Supreme Court precedent regarding due process and Defendant’s 6^th Amendment right to present a defense.
U.S. v. Carmen, 92 Crim. L. Rep. 15 (9^th Cir. 9/14/12):

Holding: If Gov’t deports an alien-witness who has exculpatory information before defense counsel has an opportunity to interview witness, this denies Defendant the right to present a complete defense.
Phillips v. Ornoski, 2012 WL 899634 (9^th Cir. 2012):

Holding: Prosecution’s Napue violations in failing to correct a key witness’ and prosecutor’s own statements at trial that no immunity deal existed between them were material to a special circumstance finding.
U.S. v. Onyesoh, 2012 WL 1109992 (9^th Cir. 2012):

Holding: Usability of expired credit card number had to be proved by preponderance of the evidence when the defendant did not concede that fact or when the defendant challenged enhancement.
U.S. v. Toombs, 93 Crim. L. Rep. 189 (10^th Cir. 4/26/13):

Holding: Before court may admit Defendant’s testimony from a prior trial, it must first rule on any of Defendant’s admissibility objections at the second trial.
U.S. v. Goodman, 88 Crim. L. Rep. 573, 2011 WL 258282 (10^th Cir. 1/28/11):

Holding: Trial court abused its discretion in NGRI case in limiting the defense to presenting lay witness testimony about Defendant’s mental condition only to the days immediately before and after the charged crime.
U.S. v. Schmitz, 88 Crim. L. Rep. 746 (11^th Cir. 3/4/11):

Holding: Prosecutor cannot cross-examine Defendant whether witnesses were “lying” because this invades province of jury since jury determines credibility of witnesses.
U.S. v. Knapp, 94 Crim. L. Rep. 473 (C.A.A.F. 1/15/14):

Holding: Investigator should not have been permitted to testify that he used “nonverbal cues” during interrogation of Defendant to determine that Defendant was not truthful; this is tantamount to “human lie detector” testimony.
U.S. v. Ellerbrock, 89 Crim. L. Rep. 829 (C.A.A.F. 8/31/11):

Holding: Rape Defendant should have been permitted to present evidence of complainant’s prior marital affair in order to show a greater motive for her to falsely claim she did not consent to sex with Defendant.
U.S. v. Martinez-Cruz, 94 Crim. L. Rep. 332, 2013 WL 6231562 (D.C. Cir. 12/3/13):