Only 2%
of federal criminal cases are resolved by trial. As a result, there are few
appellate opinions about the rules of evidence or issues that arise at trial.
Gene
Howell is one of the few people charged in federal court who took his case
to trial. He was charged and convicted of armed bank robbery, brandishing a
firearm during a bank robbery, attempted armed robbery, discharging a firearm
during the attempted armed robbery, and being a felon in possession of a
firearm. The appeal that followed resulted in the rare opinion that provides
some guidance about how the Rules of Evidence and the Rules of Criminal Procedure
operate, as well as a reminder about why there are so few appeals from trials.
Before trial, Howell’s attorney
moved in limine to prevent the prosecutor from introducing evidence of his
prior convictions. He also asked the court to hold separate trials for the
armed robbery and for the felon-in-possession charge because, to prove that
charge, the government must introduce evidence of a prior felony conviction. Typically,
in felon-in-possession cases, defendants stipulate to the fact of a prior
felony conviction to prevent jurors from learning about the type of conviction.
It’s easy to understand why a
person accused of a crime would not want the jury to know about his prior convictions.
We try to prevent jurors from thinking “once a criminal, always a criminal” or wishing
to punish the person for the prior crime. Although the law presume jurors are capable
of considering convictions for a limited purpose, jurors are just people, after
all. Few people are actually capable of ignoring the elephant in the room.
The Rules of Evidence are written
to prevent this type of prejudice to the accused. Typically, evidence of prior convictions
is not admissible. If a defendant testifies at trial, Rule 609 permits the prosecution
to introduce prior convictions for the sole purpose of impeaching the defendant’s
character for truthfulness. Rule 404 prohibits the use of prior bad acts to prove
the defendant’s bad character “in order to show that on a particular occasion
the person acted in accordance with the character.”
Understandably, a defendant would want
to know before taking the stand if his history will be on display for the jury.
But Howell had no way to prevent the jury from hearing about his past. The
judge denied the motion for separate trials.
Howell also did not get the benefit
of any clear answer from the judge about how many or which of his prior convictions
the jury would know about. Rather than rule on the motion to exclude the prior
convictions, the judge reserved ruling to see how the trial progressed. In the
end, Howell chose not to take a chance that the jury would hear about his prior
convictions and opted not to testify. As a result, the jury heard that Howell had
been convicted of a felony before but did not get the benefit of his side of
the story.
On appeal, Howell challenged the judge’s
decision not to bifurcate the trial or to issue a clear ruling about the admissibly
of his prior convictions. But the Sixth Circuit found no problem with how these
decisions affected Howell’s trial. In fact, it held that Howell could not
challenge the trial court’s decision not to offer a clear ruling because he did
not testify, reasoning that they would have to know what he would have said to determine
if the introduction of his prior convictions was harmful. Even a summary of Howell’s
proposed testimony would not suffice to permit him to challenge the non-existent
evidentiary ruling. The result is an odd circumstance where Howell could not
make an informed decision about whether to testify, but he also cannot
challenge the bind he was in without risking self-incrimination.
The court also found no error in
the trial court’s decision to combine armed robbery and felon-in-possession
charges in one trial. Federal Rule of Criminal Procedure 8(a) allows the
prosecution to try multiple charges together if the offenses are (1) “of the
same or similar character”; (2) “based on the same act or transaction”; or (3) “connected
with or constitute parts of a common scheme or plan.” Because Howell
necessarily was a felon in possession of a firearm when he brandished and
discharged the firearm during the robbery, there wasn’t a problem with the joinder
of offenses.
Nevertheless, charges should not be
tried together if having the jury hear evidence of the charges would prejudice the
defendant. This is where the law does not mirror reality. As long as the judge
tells the jury not to consider the defendant’s prior felony conviction for any
other purpose other than to determine if he was a felon when he possessed the
firearm, the law presumes no prejudice. And the same was true for Howell.
In addition, before trial, Howell challenged
the introduction of one of the bank teller’s testimony that she believed he was
the robber. Immediately after the robbery, the teller told police that she
could not identify the robber and that she only knew the robber was a man. A
few months later, however, the teller saw Howell on the evening news after his
arrest for the attempted robbery of a different bank. When the teller saw
Howell’s photo on the evening news, she concluded that he was the same person
based on what sounded like a modus operendi to her.
The trial judge allowed the teller
to explain to the jury why she believed Howell was the robber, and Howell challenged
that ruling on appeal. Rule 701(a) requires opinion testimony be “rationally
based on the witness’s perception” and assist the jury understand something
they otherwise would not be able to figure out. The Sixth Circuit held that the
teller’s opinion testimony was impermissible because she offered no description
of the robber before she saw Howell on the news. In addition, her opinion was
minimally useful to the jurors who could figure out on their own whether Howell
committed both robberies.
Although Howell successfully identified
an error at his trial, he did not get a new trial. The Sixth Circuit held that the
evidence of his guilt was so overwhelming that the teller’s opinion testimony
was “harmless.” His accomplice testified against him, and, according to the
court, the instruction to the jury about the dangers of identification when
there is limited time to observe were enough to fix the harm caused.
This opinion provides a helpful
practice tip for trial lawyers. If you file a motion in limine to exclude
certain evidence, there is no need to object when the prosecution introduces
the evidence at the trial so long as the trial judge issued a clear, definitive
ruling.
Theoretically, Due Process protects
against being punished for exercising a constitutional right. But it happens
all the time. When Howell decided he wanted a trial, the prosecutor added a
felon-in-possession charge. On appeal, Howell argued that the addition of the
charge was vindictive. But the Supreme Court has said that the addition of
charges or increase in punishment is not presumptively vindictive unless the
defendant shows that the prosecutor has a stake in chilling the exercise of a
right and that the conduct was unreasonable.
Even though the prosecutor waited
15 months to add the charge, the Sixth Circuit concluded that the prosecutor
didn’t have any personal stake in pressuring the defendant not to have a trial.
Once again, the law and reality
part ways. The Supreme Court has justified the system of pleas that has become
the criminal legal system by exhausting the benefits of “efficient justice.” And
Professor Carissa Byrne Hessick recently published
a book reexamining whether this system of pleas is the type of system we
want. But it is difficult to understand how courts can believe prosecutors who work
hard to deter trials don’t have a stake in lighter caseloads and fewer nights preparing
for trials.
The Sixth Circuit also found the
prosecutor had a good reason to add a charge late in the game. Fifteen months
after the grand jury issued the indictment, the prosecutor received the
ballistics report, which the Sixth Circuit said helped confirm an element of the
offense: that the firearm had crossed state lines or affected interstate
commerce. That reasoning is hard to accept at face value given that there are
few if any guns manufactured entirely within one state. And even if, in Howell’s
case, every part of the gun were manufactured in Tennessee, it’s not clear the
government would have difficulty showing an effect on interstate commerce. The Supreme
Court concluded that home-grown marijuana affected the market for cannabis.
Howell is now serving a 466-month
sentence—close to 39 years. His sentence surely would have been lower had he
pleaded guilty. His case is illustrates the many ways the law has developed to
encourage guilty pleas. It’s easy to see why only 2% of people charged in
federal court take that risk.
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