Alright folks, I know this post looks long, but it reads fast and it is an interesting evidentiary issue - so stick with me. In the second installment of That’s Admissible! we look at a case that came out last July. I was in a murder trial a couple of weeks ago and I remembered reading this case and the related facts, but I could never come up with the case name. Thinking I must have written about it, I did a quick review of the blog, but couldn’t find it anywhere. It’s the perfect case to fit in the category of That’s Admissible!
The Court of Criminal Appeals reversed the conviction of Brandon Scott Donaldson on July 6, 2017. In this case, the key issue for the jury was Donaldson’s state of mind when he fired upon an ex-girlfriend.
“The Knox County Grand Jury charged the defendant with alternative counts of the first degree murder of the victim, Marcia Crider, alternative counts of the first degree murder of the victim’s unborn child, the attempted first degree murder of Ms. Crider’s mother, Pebbles Renee Jones, and one count of employing a firearm during the commission of a dangerous felony arising out of the February 13, 2013 shooting that resulted in the death of the victim and her unborn child. The trial court conducted a jury trial in January 2015.”
The issue at trial was whether the shooting was premeditated or knowing or done after provocation. Based on testimony at trial, it appears that the couple had a tumultuous relationship. On the morning of the shooting, the Defendant was trying to break up with the victim. The victim told her mother that the Defendant had put his hands on her and taken money from her. The victim’s mother spoke with the Defendant on the phone and then went to his apartment where the victim and a friend (a fourth person, Ms. Knighton) were located. The Defendant returned to his apartment, counted out some money and gave it to the victim, and according to the victim’s mother, “didn’t say a word” before pulling out a gun, following the victim to her car, and shooting her. The victim’s mother acknowledged that the victim had been “a little mouthy” that morning.
After additional testimony from other witnesses, the State rested and the defense put on their proof. (This is a 36-page Opinion, so y’all will really need to read the entire thing – I’m giving the very abridged highlights.)
The defense called the friend (Knighton) that was in the apartment that morning. She described how the victim had poured soda in the defendant’s shoes and dumped bleach on his new clothing. The victim was “screaming” at the defendant.
Donaldson was convicted of multiple counts of second-degree murder and attempted murder, as well as other offenses, resulting in a 68-year sentence.
Donaldson is a great case for all trial attorneys to remember, because it reminds us to ask, “is this actually hearsay evidence?” And sometimes, it’s not – which means we don’t have to wrangle with all of the different hearsay exceptions. That can be difficult to remember in the heat of trial. Not all statements are being offered for the truth of the matter asserted.
Ultimately, the Court of Criminal Appeals reversed the trial court holding because of the following exchange. This is quoted directly from page nine of the Opinion:
At trial, Ms. Knighton testified regarding the argument she overheard between the defendant and the victim on the morning of February 13. Ms. Knighton began to testify that she heard the victim referencing a sexually-transmitted disease when the prosecutor objected on the basis of hearsay. The trial court then conducted a hearing on the testimony outside the presence of the jury, at which time Ms. Knighton testified, in pertinent part, as follows:
Q: All right. So you – you said a lot of things to the [j]ury and – and – a few – few minutes ago, we had to cut you off.
Q: What did you hear [the victim] say as she was crying and excited and angry? What did you hear her say?
A: She called him a “dirty dick m-f” and told him that’s the reason why his D-I-C-K was burning. And that they both was burning. And that’s the reason why that she didn’t give him none last night, because she went and got a shot, and “that’s the reason why your you-know-what is still burning.” And I guess he figured out, you know, why he was feeling the way he was feeling and the reason why she was doing it with him when she did it. Because I don’t know if she was telling him another way matter [sic] that, you know –
Q: What was – what was . . .
A: – this is where it come from.
Q: Okay. And what was your impressions, based on the statements that [the victim] was saying to [the defendant], what was – what was your impression?
A: That . . . Well, my impression, the way I took it, the way she said it was that, you know, I mean, “I’ve done caught some type of venereal disease from somebody, and I went to bed and gave it to you.”
A: “So that’s the reason why I’ve been laying with you. Now we both have it. Now I’m fixed and you’re not getting nothing.” Ms. Knighton continued, stating that, following this verbal altercation, the defendant left and that both she and the victim stayed in the residence.
Q: Okay. Did [the victim] make any phone calls to her mom or anybody else?
A: She had made a phone call. She was calling her uncles or her cousins or somebody, that she said that she had somebody to take care of him that was going to ‘f’ him up.
Q: Okay. So you – you heard [the victim] say she had someone to take care of him, to ‘f’ him up?
A: Yeah. I was standing right beside her. When the defendant returned to the house and gave the victim her money, Ms. Knighton made the following observations:
Q: [Were the victim and the defendant] arguing at that point in time?
A: No. I mean, she was still, you know, babbling, saying – you know, fussing and stuff, you know. And her mom was telling her to hush. And she just kept on and kept on and kept on.
Q: Okay. So your words was “she was babbling and fussing and stuff.”
A: I mean, cursing and still calling him names.
A: And what she’ll have done to him and –
A: – you know, a lot of threats.
At the conclusion of this testimony, the trial court ruled that the victim’s statements, as offered by Ms. Knighton, “about the venereal disease, and getting somebody to come and . . . exact retribution on” the defendant are “clearly hearsay” not subject to any exception.
The CCA held that the trial court’s ruling was erroneous, “Because these out-of-court statements of the victim’s were not offered for their truth, they did not qualify as hearsay, and the trial court erred by excluding them on that basis.” The Court next assessed whether this was harmless error. The panel, citing the Voluntary Manslaughter statute, held that “Evidence that the defendant had been told, less than two hours before he fatally shot the victim, that the victim had transmitted a venereal disease to him would have certainly assisted him in his defense of adequate provocation.” They also looked at the prosecutors’ closing arguments in which they spent significant time discussing the Defendant’s intent and motive. The Court held that excluding the evidence “not only undermined the defendant’s theory of adequate provocation but the exclusion actually benefited the State’s theory that the only act of provocation was the destruction of the shoes.”
The lesson of Donaldson: next time you’re in trial and opposing counsel makes a hearsay objection, stop and contemplate whether it is actually hearsay. It may not be.
READ THE FULL OPINION HERE.
It doesn't sound very flashy, but it's of critical importance to thousands of Tennesseans. Lots of people get charged with crimes for lots of reasons. Some are guilty, some are innocent, but the Constitution doesn't discriminate; everyone is guaranteed counsel. Many of them cannot afford an attorney. For a long time, the criminal justice system in Tennessee has been operating off the backs of the attorneys who represent those who cannot afford an attorney. Those attorneys are the least-paid person in the courtroom. There have also been no guidelines for the attorneys appointed to handle a case - in two words, "quality control." Over the last year, I have paid my plumber, electrician, and handyman (whom are all great, hard-working people) more than what the State pays me to represent someone on a murder case. It's time for change.
I'm so glad that the TBA is addressing this issue, and I'm honored that they gave me a call to discuss it.
2018: let's do something. Let's ask our legislature to do something. Let's do better.
You can read the full TBA article here. And you can read the TBA president's message HERE.
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