STATE OF MONTANA, Plаintiff and Appellee, v. RAUL C. SANCHEZ, Defendant and Appellant.
DA 06-0052
IN THE SUPREME COURT OF THE STATE OF MONTANA
January 31, 2008
2008 MT 27
FILED January 31 2008 Ed Smith CLERK OF THE SUPREME COURT STATE OF MONTANA
COUNSEL OF RECORD:
For Appellant:
Chad Wright and David Avery (argued), Appellate Defender Office, Helena, Montana
For Appellee:
Honorable Mike McGrath, Attorney General; C. Mark Fowler (argued), Assistant Attorney General, Helena, Montana
Robert Zimmerman, County Attorney, Thompson Falls, Montana
Heard: May 7, 2007
Submitted: June 5, 2007
Decided: January 31, 2008
Filed:
__________________________________________
Clerk
¶1 Raul C. Sanchez (Sanchez) appeals from his conviction in the Twentieth Judicial District, Sanders County, of deliberate homicide. We affirm.
¶2 We restate the issues as follows:
¶3 Did the District Court improperly allow Aleasha’s statements to be introduced over Sanchez’s hearsay objections?
¶4 Did the introduction of Aleasha’s note violate Sanchez’s Sixth Amendment right to confrontation?
¶5 Did the prosecutor’s closing argument deny Sanchez the right to a fair trial?
¶6 Did the “lesser included offense” language of the mitigated deliberate homicide instruction impermissibly allow the jury to consider sentencing in reaching its verdict?
BACKGROUND
¶7 Sanchez shot and killed Aleasha Chenowith (Aleasha) outside her home on the night of July 19, 2004. Later that evening, Sanchez turned himself in to law enforcement and admitted shooting Aleasha. The State charged Sanchez with deliberate homicide for Aleasha’s death.
¶8 Before trial, Sanchez moved to exclude a note the State proposed to offer as a trial exhibit. The note read:
To whom it concerns:
On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if I ever was cought [sic] with another man while I was dating him, that he would kill me. Raul told me he had friends in Mexico that had medicine that would kill me and our doctors wouldn’t know what it was till it was to [sic] late and I would be dead.
So if I unexspetly [sic] become sick and on the edge of death, and perhaps I die no [sic] you will have some answers.
Aleasha Chenowith (written and printed signature)
¶9 Sanchez argued that the note should be excluded because it contained inadmissible multiple hearsay and would also violate his Sixth Amendment right to confrontation. The District Court denied Sanchez’s motion and ruled that Aleasha’s note was admissible as a statement under belief of impending death, pursuant to
¶10 At trial, Sanchez testified that he and Aleasha had been dating for approximately four-and-a-half months and that he had contemplated marrying Aleasha. However, Sanchez became suspicious that Aleasha was cheating on him with Angel, one of Sanchez’s co-workers. On July 19, 2004, Sanchez confronted Angel, who confirmed Sanchez’s suspicions. Sanchez testified that when he later spoke with Aleasha, she threatened to create problems for him with law enforcement so that Sanchez would ultimately have his children taken away from him. According to Sanchez, he felt as though “something got dark in [his] head[,]” and he shot Aleasha several times.
¶11 At trial, the State introduced several statements that Aleasha made to others before her death. In addition to the note, the State elicited testimony about other instances in
¶12 During closing arguments, the prosecutor argued that the jury could convict Sanchez of mitigated deliberate homicide only if the jury found that Sanchez’s response to extreme emotional distress was reasonable, rather than that his explanation for the extreme emotional distress was reasonable. Defense counsel objected that the prosecutor was misinterpreting the jury instructions, and the District Court overruled the objection.
¶13 Sanchez objected throughout the proceedings to the mitigated deliberate homicide jury instruction because the instruction stated that mitigated deliberate homicide was a “lesser included offense” of deliberate homicide. Sаnchez argued that the instruction allowed the jurors to indirectly consider sentencing factors in their deliberations. The District Court overruled Sanchez’s objection.
¶14 The jury convicted Sanchez of deliberate homicide, and the District Court sentenced Sanchez to life without parole in Montana State Prison. Sanchez appeals his conviction.
¶15 We review a district court’s evidentiary rulings for abuse of discretion. State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, ¶ 8, 127 P.3d 458, ¶ 8. A court abuses its discretion when it acts arbitrarily, without employing conscientious judgment, or exceeds the bounds of reason, resulting in substantial injustice. State v. Weldele, 2003 MT 117, ¶ 72, 315 Mont. 452, ¶ 72, 69 P.3d 1162, ¶ 72. We review de novo a district court’s interpretation of the Sixth Amendment. Mizenko, ¶ 8. In criminal cases, we review jury instructions in their entirety to determine if they fully and fairly presented the applicable law to the jury. State v. Detonancour, 2001 MT 213, ¶ 57, 306 Mont. 389, ¶ 57, 34 P.3d 487, ¶ 57.
DISCUSSION
¶16 I Did the District Court improperly allow Aleasha’s statements to be introduced over Sanchez’s hearsay objections?
¶17 “Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted” within the statement.
Statements which are not hearsay. A statement is not hearsay if: . . . (2) Admission by party-opponent. The statement is offered against a party and is (A) the party’s own statement, in either an individual or a representative capacity . . . .
(Paragraph breaks omitted.) Thus, the statements attributable to Sanchez are exempt from the hearsay definition; they are not hearsay.
A. Aleasha’s statement to her sister
¶18 Leann Chenowith testified that Aleasha told her that Sanchez had threatened that “if [Aleasha] ever made [Sanchez] mad . . . he had stuff in Mexico that his friend could give him, and that it would eat her stomach in a matter of days.” The District Court overruled Sanchez’s hearsay objection without stating a specific rationale. Sanchez argues that no hearsay exception applies to this statement and that the District Court erred in admitting the statement.
¶19 We conclude that the District Court correctly overruled Sanchez’s hearsay objection to Leann Chenowith’s testimony because the statement falls outside the hearsay definition. Though Aleasha made the statement outside the courtroom, the record reveals no indication that the State sought to prove that Sanchez actually could obtain poison from acquaintances in Mexico. The State may have offered the statement to show a pattern of threats or that Sanchez contemplated killing Aleasha; however, these rationales are not objectionable on hearsay grounds. The District Court correctly overruled
B. Aleasha’s statement to her neighbor
¶20 Pamela Ehrlich testified that Aleasha told her that, during an argument, Sanchez stated, “[m]e love you, [Aleasha]. Me not love you that much. You cross me, I kill you.” The District Court again overruled Sanchez’s hearsay objection without stating a specific rationale. Sanchez argues that no hearsay exception applies to this statement and that the District Court erred in admitting the statement. The State apparently combines its arguments relating to the statements of Aleasha’s neighbor and Aleasha’s sister and responds that Aleasha’s statements could be admissible as excited utterances, present sense impressions, or statements made under a belief of impending death. Alternatively, the State argues that if the District Court erred its error was harmless.
¶21 Our review of the record convinces us that the hearsay exceptions proposed by the State are inapplicable to this statement. The “present sense impression” hearsay exception applies to statements made “while the declarant was perceiving the event or condition, or immеdiately thereafter.”
¶22 Though no exceptions apply to Aleasha’s hearsay statement, we agree with the State that the District Court committed harmless error because the State presented other admissible evidence that proved the same facts as the hearsay evidence. We apply the “cumulative evidence” test to determine whether a district court’s trial error is harmless. State v. Van Kirk, 2001 MT 184, ¶ 43, 306 Mont. 215, ¶ 43, 32 P.3d 735, ¶ 43. Under the “cumulative evidence” test, we consider a trial error harmless if the State demonstrates that the “fact-finder was presented with admissible evidence that proved the same facts as the tainted evidence and, qualitatively, by comparison, the tainted evidence would not have contributed to the conviction.” Van Kirk, ¶ 47. In Van Kirk, we abandoned the “overwhelming evidence” test, which emphasized the quantity of admissible evidence proving guilt, in favor of the “cumulative evidence” test, which focuses on the qualitative impact the inadmissible evidence may have on the fact-finder. Van Kirk, ¶ 43.
¶23 Sanchez testified that his suspicions of Aleasha’s infidelity were confirmed on Monday morning, July 19, 2004, when Angel, a co-worker, admitted sleeping with
¶24 Jason Sheehan, one of Sanchez’s co-workers, testified that Sanchez mentioned during the lunch break that Sanchez was upset because Aleasha had cheated on him. Sheehan testified that Sanchez stated that he was going to go to Aleasha’s house, drop off her clothes, and “maybe slap her around a little bit.” Sheehan also testified that Sanchez stated that “maybe he would get out his 9 [millimeter pistol] and go shoot her.” At no point did Sanchez object to Sheehan’s testimony.
¶25 In light of the damaging testimony from Sheehan and Sanchez, we conclude that the District Court committed harmless error in admitting Aleasha’s hearsay statement. The testimony of Sanchez and Sheehan presented the jury with cumulative evidence that proved the same facts as Aleasha’s statement. Moreover, given the character of
C. Aleasha’s note
¶26 At trial, the State offered a note written by Aleasha that stated:
To whom it concerns:
On July 8, 04 around 10:30 p [sic] Raul Sanchez Cardines told me if I ever was cought [sic] with another man while I was dating him, that he would kill me. Raul told me he had friends in Mexico that had medicine that would kill me and our doctors wouldn’t know what it was till it was to [sic] late and I would be dead.
So if I unexspetly [sic] become sick and on the edge of death, and perhaps I die no [sic] you will have some answers.
Aleasha Chenowith (written and printed signature)
Sanchez objected to the note’s admission on hearsay grounds throughout the pre-trial proceedings and at trial. The District Court overruled Sanchez’s hearsay objection and concluded that
¶27 We agree with Sanchez that the District Court incorrectly relied on the “statement under belief of impending death” hearsay exception to admit Aleasha’s note. This exception applies to statements “made by a declarant while believing that the declarant’s death was imminent, concerning the cause or circumstance of what the declarant believed to be impending death.”
¶28 However, as with Ehrlich’s testimony, we conclude that the District Court’s ruling constituted harmless error. As discussed in ¶ 19, the statements relating to Sanchez’s Mexico connections fall outside the hearsay definition because the State did not offer the statements to prove that Sanchez actually could obtain poison from sources in Mexico. Sanchez’s threat that he would kill Aleashа if she committed adultery presents the only questionable portion of Aleasha’s note. The threat’s substance essentially mirrors Sanchez’s “[y]ou cross me, I kill you” statement, and we conclude that this statement’s admission constitutes harmless error for the same reasons.
¶29 The testimony of Sheehan and Sanchez presented the jury with cumulative evidence that proved the same facts that Aleasha’s note sought to prove. Further the qualitative nature of their testimony outweighs any qualitative impact that Aleasha’s hearsay statement may have had on the jury; we can conceive of no evidence more
¶30 II Did the introduction of Aleasha’s note violate Sanchez’s Sixth Amendment right to confrontation?
¶31 Sanchez claims that the District Court violated his constitutional right to confrontation under both the United States and Montana Constitutions when it admitted Aleasha’s note as evidence. Sanchez argues that the note was “testimonial” hearsay and thus was inadmissible unless the court found (1) that the declarant was unavailable, and (2) that there was a prior opportunity for cross-examination. Though Sanchez concedes Aleasha’s unavailability, he asserts that he had no opportunity to question her about the note.
¶32 The Sixth Amendment of the United States Constitution, applicable to the States through the Fourteenth Amendment, guarantees criminal defendants the right to be confronted with the witnesses against them. The Sixth Amendment’s Confrontation Clause applies only to testimonial hearsay. Davis v. Washington, ___ U.S. ___, 126 S. Ct. 2266, 2274-75 (2006). Testimonial hearsay statements are inadmissible unless the declarant is “unavailable” for trial and the defendant had a prior opportunity for cross-
¶33 Sanchez argues that Aleasha’s note, documenting the date and time of Sanchez’s alleged statement and the substance of his threat, is testimonial because it bears similarities to an affidavit. Additionally, Sanchez equates Aleasha’s note with Lord Cobham’s infamous letter, discussed by the Supreme Court in Crawford, that implicated Sir Walter Raleigh for treason. 541 U.S. at 44-45, 124 S. Ct. at 1360. The State argues that the note is non-testimonial because it reflects “an intent to direct attention (possibly only medical attention) to the reasons for any suspicious illness.”
¶34 Though the United States Supreme Court has declined to comprehensively define “testimonial,” it has supplied a consistent starting point:
[The Confrontation Clause] applies to “witnesses” against the accused—in other words, those who “bear testimony.” [1] N. Webster, An American Dictionary of the English Language (1828). “Testimony,” in turn, is typically “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.” Ibid. An accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not.
¶35 In State v. Mizenko, we discussed what constitutes a testimonial statement. In general, a declarant’s statements are presumed testimonial if they are knowingly made to a police officer or government agent. Mizenko, ¶ 23. A statement is presumed non-testimonial, however, if the declarant had “objective reason to believe” that the statement served only “to avert or mitigate an imminent or immediate danger” and the agent receiving the statement lacked intent to create evidence. Mizenko, ¶ 23. A statement made to a non-governmental agent is non-testimonial unless the declarant had “clear
¶36 In our Mizenko discussion we also found significant a statement’s context, and we looked to whether a declarant reasonably should expect that the State would use the declarant’s statements at trial. Mizenko, ¶¶ 17-21. We noted the Supreme Court’s characterization of “a casual remark to an acquaintance” as non-testimonial, Crawford, 541 U.S. at 51, 124 S. Ct. at 1364, and we explained that the word “‘casual’ . . . modifies the declarant’s assumption as to what use, if any, the listener might make of the statement.” Mizenko, ¶ 17. If an objective declarant reasonably would expect the State to use the declarant’s statements at trial, then, absent an opportunity for confrontation, the Sixth Amendment bars the admissibility of such statements. Mizenko, ¶ 17. Further, we recognized that a statement’s characterization as testimonial did not depend on government involvement in the declarant’s making the statement: “‘Thus, if just before trial a person shoved a written statement under the courthouse door, asserting that the accused did in fact commit the crime, that would plainly be testimonial even though no government official played a role in preparing the statement.’” Mizenko, ¶ 19 (quoting Richard D. Friedman, The Confrontation Clause Re-Rooted and Transformed, 2004 Cato Sup. Ct. Rev. 439, 458).
¶37 Aleasha addressed her note “[t]o whom it concerns[.]” Her stated reason for writing the note was that “if I unexspetly [sic] become sick and on the edge of death, and
¶38 Moreover, the circumstances surrounding Aleasha’s note indicate that it bears little similarity to a non-testimonial “casual remark to an acquaintance.” Crawford, 541 U.S. at 51, 124 S. Ct. at 1364. Rather, the circumstances indicate that an objective declarant would reasonably expect the State to make use of her statement: Aleasha memorialized Sanchez’s threat by writing it down on a piece of paper from a yellow legal pad; she used a formal salutation on the note: “[t]o whom it concerns:”; the note asserted that Sanchez had already committed a crime—threatening Aleasha; the note asserted that Sanchez contemplated a future crime—killing Aleasha; and she formally ended her note
¶40 As this case presents our first opportunity to consider the forfeiture by wrongdoing doctrine since the Crawford decision, other jurisdictions’ post-Crawford decisions aid our analysis. To the extent that it applies to an admitted and intentional killing, we find persuasive the Sixth Circuit’s reasoning in U.S. v. Garcia-Meza, 403 F.3d 364 (6th Cir. 2005). In Garcia-Meza, a jury convicted the defendant of murdering his wife after hearing testimony from law enforcement officers describing the wife’s hearsay statements concerning a prior assault. At trial, the defendant admitted killing his wife, but argued that her murder was not premeditated. Garcia-Meza, 403 F.3d at 367. On appeal, Garcia-Meza claimed that his right to confrontation was violated when his wife’s hearsay statements were admitted into evidence. Garcia-Meza, 403 F.3d at 369. The
¶41 The Sixth Circuit specifically rejected Garcia-Meza’s argument that the forfeiture doctrine applies only when the defendant has committed wrongdoing with the intent to prevent the witness from testifying. Garcia-Meza, 403 F.3d at 370. The court stated that the Supreme Court’s affirmation of the forfeiture doctrine’s equitable basis “strongly suggests that the rule’s applicability does not hinge on the wrongdoer’s motive.” Garcia-Meza, 403 F.3d at 370. The court further reasoned that a defendant would benefit if his wrongdoing prevented a witness from testifying against him, regardless of whether or not that was his intent. The Sixth Circuit held that the rule of forfeiture, based on equitable principles, permits no such result. Garcia-Meza, 403 F.3d at 370-71.
¶42 The Sixth Circuit decided Garcia-Meza in the interim between the United States Supreme Court’s Crawford and Davis decisions. In Davis, the Supreme Court further clarified the forfeiture by wrongdoing doctrine. In response to the contention that domestic violence cases require more flexibility regarding testimonial evidence, the
[W]hen defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system.
Davis, ___ U.S. at ___, 126 S. Ct. at 2279-80. The Court further stated that Federal Rule of Evidence 804(b)(6) codifies the forfeiture doctrine. Though primarily dicta, the Davis discussion of the forfeiture doctrine and the Court’s statement that Rule 804(b)(6) “codifies” the doctrine has generally been interpreted by lower courts to require a defendant’s intent to silence a witness by wrongdoing before applying the doctrine. E.g. Colorado v. Moreno, 160 P.3d 242, 245-46 (Colo. 2007) (collecting cases and noting that “the clear consensus in non-murder cases is that the doсtrine requires a showing of an intent on the part of the defendant to prevent the declarant from testifying at trial.”).
¶43 Though the Supreme Court’s discussion of the forfeiture doctrine in Davis seemingly casts doubt on the Sixth Circuit’s reasoning in Garcia-Meza, other jurisdictions’ post-Davis decisions concur with the Sixth Circuit that, in homicide cases, the doctrine’s applicability does not depend on whether the defendant intended to silence a witness. For example, in California v. Giles, 152 P.3d 433, 443 (Cal. 2007), cert. granted, ___ U.S. ___,
2008 WL 109701 (Jan. 11, 2008). The defendant in Giles admitted killing his girlfriend, but argued that he acted in self-defense. The California Supreme Court adopted its appellate court‘s reasoning that “[f]orfeiture is a logical extension of the equitable principle that no person should benefit from his own wrongful acts.” Giles, 152 P.3d at 443. The court further reasoned that, regardless of whether a defendant specifically intended to prevent a witness from testifying, “[a] defendant whose intentional criminal act renders a witness unavailable for trial benefits from his crime if he can use the witness‘s unavailability to exclude damaging hearsay statements by the witness that would otherwise be admissible.” Giles, 152 P.3d at 443.
¶44 The California Supreme Court rejected the defendant‘s argument that language from Davis discussing the forfeiture doctrine—“‘when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims‘“—supported an intent-to-silence requirement. Giles, 152 P.3d at 443 n. 5 (quoting Davis, ___ U.S. at ___, 126 S. Ct. at 2280). Rather, the court stated that the Supreme Court simply was describing traditional witness tampering cases in a domestic violence context. Giles, 152 P.3d at 443 n. 5. The California court considered it more significant that the Supreme Court reaffirmed the forfeiture doctrine‘s equitable nature and clarified that Crawford did not destroy a court‘s ability to protect the integrity of its proceedings. Giles, 152 P.3d at 443 n. 5. The Giles court concluded that applying the forfeiture doctrine without an intent-to-silence requirement was proper to protect the integrity of a court‘s proceeding: “courts should be able to further the truth-seeking function of the
¶45 Even jurisdictions that impose an intent-to-silence requirement on the forfeiture by wrongdoing doctrine recognize that homicide cases may present an exception. For examрle, in Illinois v. Stechly, 870 N.E.2d 333, 350-53 (Ill. 2007) (plurality), the Illinois Supreme Court left open the possibility of a homicide exception though it determined that the above-quoted language from Davis “strongly connotes a requirement of intent.” Id. at 350-53. The Stechly court declined to apply the forfeiture doctrine to a sexual abuse case, absent evidence showing that the defendant intended to prevent the witness from testifying, and noted that outside the context of murder cases, the authorities uniformly require proof of intent.2 Stechly, 870 N.E.2d at 353 (plurality). The court distinguished the majority of cases, which hold that intent is irrelevant, as either predating Davis or as involving the defendant‘s murdering the witness. Stechly, 870 N.E.2d at 351-52 (plurality). The Illinois court further noted that jurisdictions that did not impose an intent-to-silence requirement in murder cases feasibly were reconcilable with the general rule requiring intent. Summarizing the reasoning of those cases, the Illinois court stated that those jurisdictions essentially hold that:
[T]he prosecution need not prove that the defendant committed murder with the intent of procuring the victim‘s absence. This is consistent with presuming such intent when the wrongdoing at issue is murder. When a
defendant commits murder, notwithstanding any protestation that he did not specifically intend to procure the victim‘s inability to testify at a subsequent trial, he will nonetheless be sure that this would be a result of his actions. Murder is, in this sense, different from any other wrongdoing in which a defendant could engage with respect to a witness—more than a possibility, or a substantial likelihood, a defendant knows with absolute certainty that a murder victim will not be available to testify.
Stechly, 870 N.E.2d at 352-53 (plurality). Thus, the Illinois court left open the possibility that the intent to prevent a witness‘s testimony could be “presumed” in the murder context, while otherwise requiring proof of intent. Stechly, 870 N.E.2d at 352-53 (plurality).
¶46 To the extent that a deliberate criminal act results in the victim‘s death, we agree that the forfeiture by wrongdoing doctrine does not hinge on whether the defendant specifically intended to silence a witness. The doctrine derives from the maxim that no person should benefit from the person‘s own wrongdoing. Reynolds v. U.S., 98 U.S. at 158-59, 25 L. Ed. at 248; Garcia-Meza, 403 F.3d at 370. The natural result of a deliberate killing is always that the victim is unavailable to testify; we agree with the Giles court that a defendant whose intentional criminal act results in a victim-declarant‘s death benefits from the defendant‘s wrongdoing if the defendant can use the death to exclude the victim-declarant‘s otherwise admissible testimony, regardless of whether the defendant sрecifically intended to silence the victim-declarant. Giles, 152 P.3d at 443. Such a result undermines the judicial process and threatens the integrity of court proceedings, and though courts may not “vitiate constitutional guarantees when they have the effect of allowing the guilty to go free[,]” nor must they acquiesce in the destruction of the criminal-trial system‘s integrity. Davis, ___ U.S. at ___, 126 S. Ct. at 2280.
¶48 Though the District Court failed to address Sanchez‘s Confrontation Clause claim and based its ruling on hearsay exceptions, we cannot say the District Court reached an incorrect result. We will uphold a district court‘s correct decision, regardless of the stated rationale. State v. Rensvold, 2006 MT 146, ¶ 34, 332 Mont. 392, ¶ 34, 139 P.3d 154, ¶ 34. We conclude the District Court reached the legally correct result.
¶50 Sanchez asserts that the prosecutor engaged in misconduct by repeatedly misstating the law regarding the еlements of mitigated deliberate homicide during closing arguments and that these misstatements denied Sanchez his right to a fair trial. The State maintains that Sanchez has waived his right to appeal this issue because he failed to move the District Court for curative measures, such as a mistrial or a cautionary instruction. As Sanchez points out, however, his objection was overruled, and he had no reason to anticipate that the District Court would issue curative measures. We conclude that Sanchez‘s objection during closing arguments properly preserved this issue for appeal.
¶51 If a prosecutor‘s improper comments prejudice a defendant‘s right to a fair trial, then the proper remedy is reversal. State v. Stringer, 271 Mont. 367, 381, 897 P.2d 1063, 1072 (1995). Though Sanchez did not move the District Court for a mistrial based on prosecutorial misconduct, we employ the same two-step analysis we use to review a denial of such a motion: we determine first whether the prosecutor made improper
A. The prosecutor‘s comments during closing argument
¶52 Sanchez argues that the prosecutor repeatedly misstated the law regarding mitigated deliberate homicide during the State‘s closing argument and rebuttal. Specifically, Sanchez points to the prosecutor‘s statement that, to convict for mitigated deliberate homicide, the jury had to find that Sanchez‘s response to extreme emotional distress was reasonable, rather than that a reasonable explanation existed for his emotional distress. The prosecutor then argued:
[t]he streets would be littered with corpses if it was reasonable to shoot somebody because they cheated on you and made you angry. Based on your own lifetime experiences you have seen that. You may have been part of it. Did you kill somebody? Did somebody kill you, your friends, other people? No. That answers the question. This is not a reasonable response for a person under these circumstances.
(Emphasis added.) Sanchez argues that the plain language of the mitigated deliberate homicide statute indicates that “reasonable” modifies the defendant‘s emotional state, not the defendant‘s aсtions. The statute provides that a person who commits a deliberate homicide, “but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse” has committed mitigated deliberate homicide.
¶53 On appeal, the State argues that the prosecutor‘s remarks are “troubling” only because they are not presented in their proper context. The State then attempts to furnish
The reasonableness of the explanation or excuse must be determined from the viewpoint of a reasonable person in the actor‘s situation. That is, what would a reasonable person do, not what the defendant did. The evidence in this case shows you it was not reasonable. And if it‘s not reasonable, there goes mitigated deliberate homicide.
(Emphasis added.)
¶54 The State maintains that improvising during closing arguments frequently results in imperfect syntax and less than crystal clear meaning. The comments at issue, however, demonstrate a blatant misstatement of the law, not mere inadvertence. The prosecutor‘s improper closing argument went far beyond appropriate ad-libbing and tested the boundaries of professional ethics. We cannot accept the State‘s incongruous arguments in support of the prosecutor‘s statements, and we conclude that the prosecutor‘s statements were improper.
B. Prejudicial effect of improper comments
¶55 Having determined that the prosecutor improperly stated the law, we must next determine whether the comments prejudiced Sanchez‘s right to a fair and impartial trial. Gladue, ¶ 12. We do not presume that a prosecutor‘s improper comments prejudiced a defendant‘s right to a fair and impartial trial; rather, Sanchez must demonstrate, from the
¶56 Sanchez offers as evidence of prejudicial effect a note from the jury to the District Court requesting additional instructions. The note reads: “Your Honor, One of our jurors has requested that you define the term ‘reasonable.‘” Sanchez argues that the jury‘s note indicates that the jury was confused by the term “reasonable,” that the prosecutor‘s improper comments caused this confusion, and that Sanchez‘s right to a fair trial was thus prejudiced.
¶57 The jury‘s note requested only that the District Court define “reasonable.” The note did not indicate that the jury was confused as to which term “reasonable” modified. Moreover, the jury instruction on mitigated deliberate homicide accurately conveyed
¶58 Based on the lack of ambiguity in the mitigated deliberate homicide instruction, the District Court‘s oral and written instructions to the jury, and the presumption that the jury followed the law, we conclude that Sanchez has failed to demonstrate that the prosecutor‘s improper comments prejudiced his right to a fair and impartial trial.
IV Did the “lesser included offense” language of the mitigated deliberate homicide instruction impermissibly allow the jury to consider sentencing in reaching its verdict?
¶60 Sanchez claims that the jury instruction defining mitigated deliberate homicide as a “lesser included offense of Deliberate Homicide” improperly allowed the jury to consider sentencing in reaching its verdict. Sanchez asserts that this language “probably pushed the jurors away from fully considering [his] mitigated deliberate homicide defense.” (Emphasis added.) Sanchez argues that including the word “lesser” in the instruction may have permitted the jury to surmise that Sanchez would receive a lesser sentence if the jury convicted him of mitigated deliberate homicide rather than of deliberate homicide.
¶61 A jury should not consider sentencing in determining a defendant‘s guilt or innocence. State v. Brodniak, 221 Mont. 212, 226-27, 718 P.2d 322, 332 (1986) (citations omitted). We recognized in Brodniak that a verdict form containing the terms misdemeanor and felony could permit a jury indirectly to consider a defendant‘s punishment. Brodniak, 221 Mont. at 226-27, 718 P.2d at 332. We review jury
¶62 The District Court provided the jury a mitigated deliberate homicide instruction that closely parallels
/S/ W. WILLIAM LEAPHART
We concur:
/S/ BRIAN MORRIS
Justice Jim Rice specially concurs.
¶64 I agree with the Court‘s conclusion to affirm the District Court‘s judgment on Issues I-IV. However, I disagree with the Court‘s analysis under Issues IB, IC, and II, and would affirm under alternate reasoning.
Issue I
¶65 The Court determines that Aleasha‘s statement to her neighbor (Issue IB) and Aleasha‘s note (Issue IC) are hearsay to which no hearsay exception applies, but that the District Court‘s admission of this evidence constituted “harmless error” for which we need not reverse. Opinion, ¶ 28. While I agree with the outcome of the Court‘s decision, I write separately to urge the adoption of the forfeiture by wrongdoing exception to the hearsay rules.
¶66 Forfeiture by wrongdoing, as this Court accepts, is an equitable concept that prevents an individual from benefiting from his own wrongful actions. Opinion, ¶ 47. In fact, Montana law generally codifies the equitable principle in
¶67 The United States Supreme Court first applied the doctrine of forfeiture by wrongdoing in Reynolds v. United States, 98 U.S. 145, 158 (1878):
The Constitution does not guarantee an accused person against the legitimate consequences of his own wrongful acts. . . . [I]f [a defendant] voluntarily keeps the witnesses away, he cannot insist on his [Sixth Amendment] privilege. If, therefore, when absent by his procurement, their evidence is supplied in some lawful way, he is in no condition to assert that his constitutional rights have been violated.
The Supreme Court recently affirmed the doctrine‘s validity in Crawford v. Washington, 541 U.S. 36, 62, 124 S. Ct. 1354, 1370 (2004) (“the rule of forfeiture by wrongdoing (which we accept) extinguishes confrontation claims on essentially equitable grounds“). It has been adopted by numerous state courts as well. After recently considering both the evidentiary and constitutional aspects of the issue, the Supreme Judicial Court of Massachusetts noted that “we are aware of no jurisdiction that, after considering the doctrine, has rejected it.” Commonwealth v. Edwards, 830 N.E.2d 158, 166-67 (Mass. 2005). Even after acknowledging that its state constitution provides broader protections
¶68 I would apply this principle to the Rules of Evidence as well. However, despite a previous opportunity to do so, the Court has so far declined. We were presented with proposed M. R. Evid. 804(b)(6), the forfeiture by wrongdoing exception to M. R. Evid. 802‘s bar against admission of hearsay, following a recent rule review process. Support for the adoption was offered by various members of the Commission on Evidence and by district court judges, but the Court rejected the rule. I continue to believe that the rule would serve an appropriate and important purpose in the search for truth which our courts are intended to conduct. The instant case presents a clear example of how a defendant may benefit from his wrongdoing and why the exception should be adopted. Accordingly, the Court‘s holding, which applies the forfeiture doctrine as an exception to the Confrontation Clause, should apply with equal force as an exception to the rule against hearsay, which would admit the evidence at issue here.
Issue II
¶69 The Court concludes that Aleasha‘s note was testimonial because “the purpose of the note was to explain Aleasha‘s untimely death or poisoning, the intended audience reasonably included law enforcement, and the circumstances surrounding the note indicate that an objective declarant reasonably should have anticipated that the State would make use of the statements at trial.” Opinion, ¶ 38. I cannot agree with any of
¶70 First, the Court states that the “note‘s substance indicates that the note‘s purpose was to explain her untimely death or poisoning . . . .” Opinion, ¶ 37. However, the Court does not adequately consider that the note gave instruction in the event Aleasha unexpectedly would “become sick and on the edge of death.” In such a sickened state, Aleasha would benefit by giving her medical providers the “answers” she was providing in the note. The Court simply pretends these words do not exist. The State‘s argument to this effect is improperly dismissed by the Court.
¶71 Then, the Court concludes that the note was “intended” for law enforcement because it was left in the kitchen. Opinion, ¶ 38. This conclusion is based upon the Court‘s surmise that law enforcement could more easily find it there. Assigning an intention by Aleasha to involve law enforcement from this most ordinary of actions is mere speculation. I submit that the note would have been found by law enforcement in any room of the house, and its location in the kitchen, without more, added nothing to the note‘s testimonial significance. Indeed, when the “more” is considered, which is virtually ignored by the Court, a contrary conclusion appears. The note was handwritten on a small, single piece of paper and was found in Aleasha‘s kitchen among her personal correspondence and bills. The location of the note in Aleasha‘s personal home, among personal papers, supports the objective conclusion that the note had a personal purpose and was meant for those who would have been typical visitors to her kitchen. Aleasha made no effort whatsoever to put her message into the hands of officials, to otherwise
¶72 While the Court states that it “finds no particular inquiry dispostive in determining whether a statement is testimonial[,]” Opinion, ¶ 34, the Court‘s analysis implies the question is susceptible to short, simplistic solutions: first, that because the note was more than a “casual remark,” it must be testimonial, and because the note was discovered by a police officer, it must have been intended for police to easily find it. Opinion, ¶ 38. This ignores the further details of the note and the surrounding circumstances.
¶73 When determining if a statement made by an unavailable declarant is testimonial, two Montana cases guide us: State v. Mizenko and State v. Spencer. In State v. Mizenko, we offered initial, post-Crawford boundaries of testimonial and non-testimonial statements for purposes of the Confrontation Clause. 2006 MT 11, 330 Mont. 299, 127 P.3d 458. We concluded that statements are testimonial in at least two situations: (1) “when a declarant knowingly speaks to a police officer or governmental agent” and (2) when the declarant had a “clear reason to believe that the statement would be used in court as substantive evidence against the defendant . . . .” Mizenko, ¶ 23. In contrast, we explained that a statement is non-testimonial when the declarant has an “objective reason to believe” that the statement will serve to “avert or mitigate an imminent or immediate danger . . . .” Mizenko, ¶ 23. We also stated that the “clear reason to believe” standard is an “objective” standard. Mizenko, ¶ 23 n. 3.
¶74 In State v. Spencer, we elaborated on Mizenko, concluding that where the “clear reason to believe” standard is “unworkable,” we must review the statement to determine
¶75 When considering the note in its entirety under these standards, Aleasha may just as well have intended the note to alert medical providers to the cause of a potential illness, a non-testimonial purpose, or, indeed, simply have offered an explanation to others about the reason for her demise. The salutation “[t]o whom it concerns[,]” just as “reasonably” includes medical or emergency personnel, relatives, and friends, thereby mitigating the note‘s potential testimonial qualities. The Court ascribes a law enforcement purpose from this broad salutation because it necessarily includes law enforcement. Instead, the Court should infer otherwise: because the generic salutation
¶76 Even assuming that the Court‘s reasoning about Aleasha‘s note and the reasoning of this concurrence offer competing, objectively reasonable interpretations regarding Aleasha‘s intent, it would then be appropriate to consider, as in Davis and Spencer, the “primary purpose” of the note to determine whether it constitutes testimonial or non-testimonial evidence. Here the Court limits the application of our holding in Spencer to only interrogations, Opinion, ¶ 38 n. 1, thereby disregarding the very reason we adopted the primary purpose test in the first place. We adopted the primary purpose analysis because the “clear reason to believe” standard was unworkable as applied to the statement of a three-and-a-half-year-old child. Spencer, ¶ 22. Accordingly, application of the primary purpose analysis does not turn solely on whether an interrogation is involved, but considers whether the clear reason to believe standard is unworkable under the circumstances. However, in an effort to avoid consideration of the primary purpose of the note, the Court narrowly constricts the kinds of circumstances in which the primary purpose analysis can be applied—only to interrogations—and deflates our holding in Spencer. This is an artificial and shortsighted tact which will not serve us well in the future. To the contrary, the primary purpose analysis should be applicable to any statement, including a hand-written note, where it is unclear whether the declarant intended the statement to be used as evidence. Accordingly, where there are competing objectively reasonable interpretations of a statement, as here, we should look to the
¶77 Pursuant to our holding in Spencer, where the primary purpose of the statement is to assist in future litigation, the statement is deemed testimonial. Spencer, ¶ 22. However, where the primary purpose is to mitigate future harm, the statement is non-testimonial. Spencer, ¶ 22. In analyzing the primary purpose we must consider the totality of the “objective circumstances.” Spencer, ¶ 22. Unfortunately, the Court‘s opinion considers only a fraction of the note. Looking at the note as a whole, most of the note discusses the availability of a drug which could possibly cause Aleasha‘s sickness or death. The note‘s third sentence states: “So, if I unexspetly [sic] become sick and on the edge of death, and perhaps I die no [sic] you will have some answers.” The conclusory word “so” indicates that the note‘s purpose is to provide “answers” if Aleasha contracted a serious illness which could bring about her death. The note indicates the cause of her potential sickness (a drug from Mexico that doctors may not know about), and also suggests investigatory leads (Sanchez or his friends) that may be helpful in ascertaining either the type of drug for medical purposes or assigning criminal responsibility—an admittedly testimonial aspect of the note. However, looking at the note in its entirety, and the circumstances surrounding Aleasha‘s handling of the note, discussed above, it served largely to alert family, friends, or medical personnel to the reasons she came down with a sudden and strange illness. Consequently, the note‘s primary purpose was not to serve as evidence in a criminal prosecution, but to mitigate potential harm.
/S/ JIM RICE
Justice John Warner concurs.
¶79 Along with Justice Rice, I concur with the Court‘s conclusion to affirm the judgment.
¶80 I am constrained to reserve judgment on the wisdom of incorporating the forfeiture by wrongdoing hearsay exception into the Rules of Evidence. If such an amendment to the Rules is again proposed, I will consider arguments both for and against its adoption.
¶81 I must agree with Justice Rice‘s analysis concerning the note left by Aleasha. It was not testimonial for the reasons he states in his concurrence. This is especially true in view of the fact that the note was not introduced to prove that Sanchez killed Aleasha, but for the sole purpose of providing relevant evidence concerning whether he did so while acting under the influence of extreme mental or emotional stress.
/S/ JOHN WARNER
Justice James C. Nelson, dissenting.
¶83 Given this conclusion, a discussion of Issues I, II, and IV is, arguably, unnecessary. Nevertheless, given the importance of the Court‘s holdings under Issue II, I write separately to explain my agreement and disagreement with certain points in the Court‘s analysis. As for Issues I and IV, I agree with the Court‘s resolution of these two issues; however, I write separately to express my disagreement with the approach proposed by Justice Rice‘s concurrence for resolving Issue I. I first address Issue III, followed by Issue II and, lastly, Issue I.
Issue III
¶84 The role of the prosecutor is unique within the criminal justice system. It is not simply a specialized version of the duty of any attorney not to overstep the bounds of permissible advocacy. See State ex rel. Fletcher v. District Court, 260 Mont. 410, 415, 859 P.2d 992, 995 (1993). Rather, as the Supreme Court explained long ago:
The [prosecutor] is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and
Berger v. United States, 295 U.S. 78, 88, 55 S. Ct. 629, 633 (1935). Accordingly, the prosecutor is required to “execute the duties of his representative office diligently and fairly, avoiding even the appearance of impropriety that might reflect poorly on the state.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citation and internal quotation marks omitted). Though he “must diligently discharge the duty of prosecuting individuals accused of criminal conduct, the prosecutor may not seek victory at the expense of the defendant‘s constitutional rights.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citation and internal quotation marks omitted). Indeed, the prosecutor “is obligated to respect the defendant‘s right to a fair and impartial trial in compliance with due process of law.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citation and internal quotation marks omitted). Simply stated, “a prosecutor should seek justice and not simply an indictment or a conviction.” Fletcher, 260 Mont. at 415, 859 P.2d at 995 (citing Preston v. State, 615 P.2d 594, 601 (Alaska 1980)).
¶85 With these well-settled principles in mind, I agree with the Court‘s preliminary analysis under Issue III. In particular, I agree with the Court that
A person commits the offense of mitigated deliberate homicide when the person purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of the explanation or excuse must be determined from the viewpoint of a reasonable person in the actor‘s situation. [Emphases added.]
¶86 I also agree with the Court that the prosecutor‘s improper closing arguments went far beyond appropriate ad-libbing and that his comments demonstrate a blatant misstatement of
The defense counsel will argue that this was a reasonable response to extreme emotional distress. You must ask yourself, is it reasonable? Was there extreme -- extreme emotional distress? Not just emotional distress but extreme emotional distress and was his reaction reasonable. You can argue until you‘re blue in the face and you cannot make this defendant‘s actions reasonable under these circumstances.5 [Emphases added.]
Then, during his rebuttal closing, the prosecutor reiterated these misstatements of the law several more times:
The Court read you the instructions. The reasonableness of the explanation or excuse must be determined from the viewpoint of a reasonable person in the actor‘s situation. That is, what would a reasonable person do, not what the defendant did. The evidence in this case shows you it was not reasonable. And if it‘s not reasonable, there goes mitigated deliberate homicide. . . . .
Defense counsel said this is an extremely difficult case. I would make no comment on that but I will suggest to you, based on your lifetime experiences, was the defendant‘s actions reasonable under these circumstances? Your lifetime experiences tell you that relationships come and go, that people get cheated on in their mind, that they are hurt, that they are angry. If it is reasonable then under those circumstances to kill somebody, the streets would be littered with corpses. [Emphases added.]
At this point, defense counsel objected that the prosecutor “is misinterpreting these instructions over and over again.” The court responded: “You may continue with closing. The objection is overruled.” The prosecutor then stated, yet again:
The streets would be littered with corpses if it was reasonable to shoot somebody because they cheated on you and made you angry. Based on your own lifetime experiences you have seen that. You may have been part of it. Did you kill somebody? Did somebody kill you, your friends, other people? No. That answers the question. This is not a reasonable response for a person under these circumstances. [Emphases added.]
¶87 While the Court concludes that these improper statements “tested the boundaries of professional ethics,” Opinion, ¶ 54, I conclude that the prosecutor crossed those boundaries. Rule 3.1(a)(1) of the Montana Rules of Professional Conduct provides that “[a] lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein . . . without having first determined through diligent investigation that there is a bona fide basis in law and fact for the position to be advocated” (paragraph break omitted). Likewise, Rule 3.3(a)(1) prohibits a lawyer from “knowingly . . . mak[ing] a false statement of . . . law to a tribunal or fail[ing] to correct a false statement of . . . law
¶88 Here, there is no legal basis for the version of
¶89 But it is not necessary to draw such an inference. The proposed jury instruction filed by the prosecutor with respect to the issue of mitigated deliberate homicide establishes that he was fully aware of the law under
In order to find the Defendant guilty of the lesser offense of mitigated deliberate homicide, the State must prove the following two propositions: First, that the Defendant caused the death of Aleasha Chenoweth and
Second, that when the Defendant did so, he acted purposely or knowingly;
Additionally, you must find that at the time the Defendant caused the death of Aleasha Chenoweth, he was acting under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a reasonable person in the Defendant‘s situation. [Emphasis added.]
The emphasized language is identical to the pertinent language of
¶90 The Court holds that although the prosecutor improperly stated the law to the jury, Sanchez has not demonstrated that the prosecutor‘s misstatements prejudiced his right to a fair and impartial trial. I disagree. The basic premise underlying the Court‘s holding is that the District Court provided an unambiguous instruction on mitigated deliberate homicide and the jury followed that instruction. See Opinion, ¶ 58. In this regard, the
¶91 Prior to closing arguments, the District Court read Instructions 8 through 19. The instruction on mitigated deliberate homicide (Instruction 17) accurately conveyed
A person commits the offense of Mitigated Deliberate Homicide when the person purposely or knowingly causes the death of another human being but does so under the influence of extreme mental or emotional stress for which there is reasonable explanation or excuse. The reasonableness of the explanation or excuse must be determined from the viewpoint of a reasonable person in the actor‘s situation.
However, during the prosecutor‘s rebuttal closing argument, the following sequence of events occurred:
[THE PROSECUTOR:] Defense counsel said this is an extremely difficult case. I would make no comment on that but I will suggest to you, based on your lifetime experiences, was the defendant‘s actions reasonable under these circumstances? Your lifetime experiences tell you that relationships come and go, that people get cheated on in their mind, that they are hurt, that they are angry. If it is reasonable then under those circumstances to kill somebody, the streets would be littered with corpses.
[DEFENSE COUNSEL]: Your Honor, I‘m going to have to object because he is misinterpreting these instructions over and over again.
THE COURT: You may continue with closing. The objection is overruled.
By overruling defense counsel‘s objection that the prosecutor was misinterpreting the instructions, the District Court effectively endorsed the prosecutor‘s statement as to what the jury had to decide—namely, whether Sanchez‘s actions were reasonable. Not content
[THE PROSECUTOR]: The streets would be littered with corpses if it was reasonable to shoot somebody because they cheated on you and made you angry. Based on your own lifetime experiences you have seen that. You may have been part of it. Did you kill somebody? Did somebody kill you, your friends, other people? No. That answers the question. This is not a reasonable response for a person under these circumstances. This is not extreme emotional distress. Thank you.
Immediately thereafter, the bailiffs were sworn and the jurors began their deliberations.
¶92 It is apparent on this record that the jury received conflicting instructions from the court on mitigated deliberate homicide. Under Instruction 17, which was given before closing arguments, the jury was told to decide whether Sanchez, at the time he caused Aleasha‘s death, was under the influence of extreme mental or emotional stress for which there was reasonable explanation or excuse. But under the version of the law provided by the prosecutor near the end of his rebuttal closing argument, the jury was told to decide whether Sanchez‘s “actions” themselves were reasonable under the circumstances, i.e., whether killing Aleasha was “a reasonable response for [Sanchez] under these circumstances.” The District Court explicitly endorsed the prosecutor‘s incorrect articulation of the law when it overruled defensе counsel‘s objection that the prosecutor was misinterpreting the instructions.
¶93 A virtually identical situation occurred in State v. Jones, 615 S.W.2d 416 (Mo. 1981), which the Missouri Supreme Court described as follows:
Three things stand out about the argument in this case: First, the prosecutor told the jury [during closing argument] that a “reasonable belief” satisfied the requirement of proof beyond a reasonable doubt. . . . Thus, the
prosecutor in this case undertook to define reasonable doubt in wholly erroneous terms. Second: The prosecutor‘s statement was promptly objected to and the objections were overruled, giving the argument the imprimatur of the trial court. Third: The prosecutor was not content with a passing reference to the subject, but upon the overruling of defense objection, proceeded to repeat his erroneous definition of reasonable doubt.
Jones, 615 S.W.2d at 420 (citations omitted). The court reversed the convictions, noting that while the evidence of guilt was strong, the prosecutor‘s misstatements could not be excused as harmless.
¶94 In the case at hand, the Court reasons that the prosecutor informed the jury that the attorneys’ closing arguments were not evidence. Opinion, ¶ 57. But the problem here is not that the prosecutor purported to provide evidence; the problem here is that the prosecutor purported to state the law of mitigated deliberate homicide and the District Court gave the prosecutor‘s misstatements the imprimatur of the court. The Court also reasons that the jury was presented with defense counsel‘s correct interpretation of the law. Opinion, ¶ 57. But the District Court never endorsed defense counsel‘s interpretation of the law; the court only endorsed the prosecutor‘s interpretation of the law, which was patently false.
¶95 “American jurisprudence depends on a jury‘s ability to follow instructions and juries are presumed to follow the law that courts provide.” Opinion, ¶ 57 (citing State v. Turner, 262 Mont. 39, 55, 864 P.2d 235, 245 (1993), and Opper v. United States, 348 U.S. 84, 95, 75 S. Ct. 158, 165 (1954)). Accordingly, when the trial court imparts conflicting versions of the law and thereby inhibits the jury from correctly following the law, the resulting verdict cannot stand. Indeed, this Court has long recognized that the
¶96 In the case at hand, the jury unquestionably received conflicting statements as to the law under
¶97 Before concluding, I note that the Court has imposed on Sanchez a virtually insurmountable burden to demonstrate that he was prejudiced by the prosecutor‘s misstatements. As the Supreme Court observed in Berger,
Berger, 295 U.S. at 88, 55 S. Ct. at 633. Along these same lines, we observed in State v. Stringer, 271 Mont. 367, 897 P.2d 1063 (1995), that improper comment by the prosecutor creates an unacceptable risk that jurors will simply adopt the prosecutor‘s views instead of exercising their own independent judgment. See Stringer, 271 Mont. at 381, 897 P.2d at 1071. Yet, there is no way that Sanchez can get inside the minds of the jurors in his case to determine whether this occurred—i.e., whether they rendered their verdict based on the law as incorrectly stated by the prosecutor and endorsed by the District Court. Moreover, even if a juror offered insight in this regard, Sanchez is prohibited from using juror testimony or affidavits to impeach a verdict based upon misapprehension of the law. See
¶98 In this regard, I believe that the Court errs in not weighing the prosecutor‘s misconduct more heavily in the analysis. By refusing to recognize prejudice to Sanchez, the Court not only affirms the denial of his constitutional rights to due process and a fair
¶99 That said, the fact that the District Court imparted conflicting versions of
Issue II
¶100 In Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), the Supreme Court announced a categorical bar to the admission of certain hearsay evidence at a
¶101 I agree with the Court‘s explanation of these principles in ¶¶ 34 and 36. I also agree with the Court‘s analysis in ¶¶ 37 and 38 of whether the statements contained in Aleasha‘s note were testimonial. As the Court observes, the nature of the note was
¶102 The State contends that Aleasha‘s note “does not reasonably purport to show an intent it would be used prosecutorially but only an intent to direct attention (possibly only medical attention) to the reasons for any suspicious illness.” As the Court observes, however, this contention completely ignores the accusatory nature of the note. Moreover, I find it highly implausible that a person who intends to alert medical personnel to the reasons for a suspicious illness would place such information in a pile of correspondence and bills where it is not reasonably likely to be discovered by medical personnel in a timely manner, if at all. In any event, the State‘s argument also misapprehends the pertinent inquiry here, which is not what Aleasha specifically intended but, rather, what
¶103 Accordingly, I agree with the Court‘s analysis and conclusion that Aleasha‘s note contained testimonial statements. In addition, I agree with the Court‘s conclusion that the rule of forfeiture by wrongdoing applies in this case. However, I do not agree with the Court‘s explication of this rule.
¶104 In Crawford, the Supreme Court noted that the rule of forfeiture by wrongdoing is an exception to the Confrontation Clause‘s categorical bar against the admission of testimonial statements. See Crawford, 541 U.S. at 62, 124 S. Ct. at 1370. This exception, the Supreme Court noted, extinguishes confrontation claims on essentially equitable grounds. See Crawford, 541 U.S. at 62, 124 S. Ct. at 1370; accord Davis v. Washington, 547 U.S. 813, 126 S. Ct. 2266, 2280 (2006).
¶105 In Davis, the Supreme Court рrovided further insight into the scope of the forfeiture-by-wrongdoing exception. Addressing the argument that the nature of the offense charged in that case—domestic violence—required greater flexibility in the use of testimonial evidence against the accused, the Supreme Court noted that this particular type of crime is “notoriously susceptible to intimidation or coercion of the victim to ensure that she does not testify at trial” and that when this occurs, “the Confrontation
¶106 At the same time, however, the Supreme Court noted that the rule of forfeiture by wrongdoing may extinguish confrontation claims under certain circumstances:
But when defendants seek to undermine the judicial process by procuring or coercing silence from witnesses and victims, the Sixth Amendment does not require courts to acquiesce. While defendants have no duty to assist the State in proving their guilt, they do have the duty to refrain from acting in ways that destroy the integrity of the criminal-trial system. We reiterate what we said in Crawford: that the rule of forfeiture by wrongdoing . . . extinguishes confrontation claims on essentially equitable grounds. That is, one who obtains the absence of a witness by wrongdoing forfeits the constitutional right to confrontation.
Davis, 126 S. Ct. at 2280 (ellipsis in original; emphasis, citations, and internal quotation marks omitted).
¶107 This language—in particular, the Supreme Court‘s use of the verb “seek” in conjunction with “undermin[ing] the judicial process” and “destroy[ing] the integrity of the criminal-trial system“—as well as the Supreme Court‘s refusal to vitiate the right of confrontation because the charged offense is susceptible to intimidation or coercion of the victim-declarant indicate that the focus of the forfeiture doctrine is not solely on whether the defendant may benefit from his own wrongdoing. In other words, not all conduct by the defendant that happens to result in a witness‘s unavailability comes within the doctrine. Rather, the doctrine is directed specifically at conduct by which the defendant “seek[s]” or intends “to undermine the judicial process” or “destroy the integrity of the criminal-trial system” by procuring or coercing silence from witnesses and victims.
¶110 On this basis, I conclude that the admission of Aleasha‘s note did not deprive Sanchez of his right of confrontation. He procured Aleasha‘s unavailability by fatally shooting her, thereby rendering her unavailable as a witness, and he admitted to having engaged in this wrongdoing deliberately (albeit, with mitigating circumstances).
¶111 The Court reaches the same result; however, in so doing, the Court relies on principles broad enough to suggest that the forfeiture-by-wrongdoing exception applies
¶112 Throughout the Court‘s discussion in ¶¶ 40 through 46, the Court repeatedly refers to the “equitable basis” of the forfeiture-by-wrongdoing exception and the maxim that “no person should benefit from the person‘s own wrongdoing.” Indeed, this maxim is the foundation of the Court‘s conclusion that Sanchez forfeited his right to confrontation in this case. See Opinion, ¶¶ 46-47. Yet, while Crawford and Davis
¶113 The Court‘s approach of relying on general maxims and principles of equity contradicts the Supreme Court‘s unambiguous statement that “Federal Rule of Evidence 804(b)(6) . . . codifies the forfeiture doctrine,” Davis, 126 S. Ct. at 2280, and the fact that
¶114 In sum, I agree with the Court‘s analysis and conclusion that Aleasha‘s note contained testimonial statements. Furthermore, I agree with the Court that the forfeiture-by-wrongdoing exception applies on the facts of this case. However, I strenuously disagree with the Court‘s suggestion in ¶¶ 40-46 that the exception applies whenever a person would otherwise benefit from his or her own wrongdoing.
Issue I
¶115 As noted at the outset, I agree with the Court‘s resolution of Issue I. However, because we will, no doubt, confront the matter of adopting the forfeiture-by-wrongdoing exception to the hearsay rules in some other context, I believe that it is appropriate to respond briefly to Justice Rice‘s arguments on this point (see Concurrence, ¶¶ 65-68).
¶117 First, as a general rule, “[h]earsay is not admissible except as otherwise provided by statute, these rules, or other rules applicable in the courts of this state.”
The hearsay rule is generally said to exclude out-of-court statements offered for the truth of the matter asserted because there are four classes of risk peculiar to this kind of evidence: those of (1) insincerity, (2) faulty perception, (3) faulty memory and (4) faulty narration, each of which decreases the reliability of the inference from the statement made to the conclusion for which it is offered. The hearsay rule ordinarily prohibits the admission of out-of-court statements by declarants on the theory that cross-examination can help test for these four classes of error, thus allowing the fact-finder to weigh the evidence properly and to discount any that is too unreliable.
¶118 Second—and this principle follows from the first—the exceptions to the general prohibition against hearsay evidence are grounded in “circumstantial guarantees of trustworthiness,”
¶119 In sum, as a general rule, the admission of hearsay evidence is not a reliable and trustworthy vehicle for finding “truth“; rather, this form of evidence frustrates that search, which is why Rule 802 exists in the first place. But we admit certain categories of hearsay testimony where the law has determined, based on historical evidence and practice, that there are circumstantial guarantees of reliability and trustworthiness built into these categories of hearsay testimony and that these types of evidence, therefore, may enhance or further the search for truth.
¶120 The forfeiture-by-wrongdoing exception, however, is not based on any notion of reliability or trustworthiness. Indeed, the fact that an actor engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness provides no indication whatsoever as to whether that declarant‘s out-of-court statement is reliable or trustworthy. The statement may be true, or it may be a complete fabrication. It may be based on accurate information or on a complete misperception of the events in question. It may be reliable due to one or more of the circumstances that underlie the other exceptions to the hearsay rule, or it may have no independent and inherent indicia of reliability and trustworthiness at all. It might, in the first instance, enhance the search for truth, or it might, in the second, significantly frustrate or obviate that search altogether.
¶122 We have always examined evidence objected to on hearsay grounds through the lens of circumstantial guarantees of trustworthiness, and it seems dangerous to me to eliminate this perspective for an entire category of statements. Once we discard this analysis for one category of evidence, why not do it for others? I cannot agree with so readily tossing out our historical litmus test.
¶123 Thus, irrespective of
Conclusion
¶124 Based on my analysis under Issue III, I conclude that this case should be reversed and remanded for a new trial. I dissent from the Court‘s contrary decision. As to Issue II, I agree with the Court‘s analysis and conclusion that Aleasha‘s note contained testimonial statements, and I agree with the Court that the forfeiture-by-wrongdoing exception applies to Sanchez‘s confrontation claims; however, I reach the latter conclusion concerning the applicability of the forfeiture-by-wrongdoing exception on a narrower ground than the rationale underlying the Court‘s decision.
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
Chief Justice Karla M. Gray, dissenting.
¶125 I join Justice Nelson‘s dissent on Issue III and would reverse and remand for a new trial on that basis. Like Justice Nelson, it is my view that, if the Court reached the
¶126 On Issue I, I would not adopt the forfeiture by wrongdoing exceptiоn to the hearsay rules for the reasons expressed by Justice Nelson. This is a matter best considered on a case-by-case basis, at least until such time as we have sufficient experience with the doctrine here in Montana to consider it more knowledgeably.
¶127 On Issue II, I join Justice Rice‘s analysis of whether Aleasha‘s note is testimonial. I would conclude it is not testimonial, for the reasons so cogently stated by Justice Rice. I also believe Aleasha‘s lack of fear or concern through the course of events which occurred in this case—that is, the several threats and going out to Sanchez‘s vehicle on the very day she was killed—buttresses that analysis.
¶128 Moreover, I have grave concerns about the forfeiture by wrongdoing doctrine in certain cases. In this regard, I agree with Justice Nelson that forfeiture by wrongdoing should not apply in a deliberate homicide case involving the defense of justifiable use of force (that is, self-defense). It also is my view, however, that the doctrine is not applicable in this case where the defense of mitigated deliberate homicide is asserted.
¶129 I understand full well the notion and maxim that no one should benefit by his or her wrong. Indeed, that maxim underlies many legal subject areas, including fraudulent inducement in entering—and tortious interference with—a contract, and most other situations in which a party comes to a court without clean hands. It may well be that forfeiture by wrongdoing should apply as well in certain criminal cases, but I would not apply it here.
¶131 I would reverse and remand for a new trial on prosecutorial misconduct in this cause number.
/S/ KARLA M. GRAY