After being convicted of murdering Craig Durand, James O’Neill appealed, arguing in part that the trial judge erred in admitting an email Durand sent to a friend on he day he died. Commonwealth v. O’Neill, 80 Mass. App. Ct. 1109, 954 N.E.2d 591 (Massachusetts Court of Appeals 2011).
We’ll get to the admissibility of the email in a moment; first, I need to outline how, and why, Durand died. This is how the prosecution’s brief on appeal outlines the facts that led to the murder:
Prior to 2003, [Durand] lived with his mother at 65 Victoria Lane in Marlborough, in a mobile home in the Jen-Lo Trailer Park. Following his mother's death in 2003, [he] took in a series of roommates to help pay the bills. In June of 2003, [O’Neill] moved into [Durand’s] mobile home. [They] were not previously acquainted.
Within months, by the fall of 2003, [O’Neill] had developed a dislike for [Durand]. [He] referred to [Durand] as `numbnuts’ and `a jerk.’ He complained on multiple occasions to different people that [Durand] drank too much beer, that he was an `asshole to live with,’ that he could not live with [Durand] anymore, and . . . was looking for a new place to live. By December of 2003, [O’Neill] . . . owed [Durand] back rent. [Durand] told him he wanted the rent money by February 1st.
A few months after [O’Neill] moved in with [Durand], [Durand] got a new computer. [He] The victim gave [O’Neill] his old computer, but [O’Neill] helped himself to [Durand’s] new computer anyway. He did this by picking the lock on [Durand’s] bedroom door while [he] was at work to gain access to it, against [Durand’s] stated wishes. [O’Neill] even boasted to his friend Tom Gaudette that he was exploiting [Durand] in this way.
[Durand] had an account with America Online (`AOL’). [He] became suspicious that [O’Neill] was wrongfully gaining access to the internet through this AOL account. Consequently, at around 11:30 A.M. on January 1st, [Durand] called a representative at AOL and learned that in mid-November, an AOL account had been opened using [his] and billed to [him]. The account was immediately canceled as fraudulent, and AOL extended a refund to [Durand].
At around 4:30 P.M. that same day, [Durand] sent an e-mail to his on-line friend, Ms. Quandahyl, expressing his anger at the nerve of [O’Neill], and his frustration that [O’Neill] was taking advantage of him. In the e-mail, [Durand], knowing the fraudulent account was now canceled, also wrote that he `can't wait for [O’Neill] to go into his room and try to get on-line.’
Brief for the Commonwealth, 2011 WL 1298270.
According to O’Neill’s brief on appeal, on the
afternoon of January 2, 2004, [he] opened the door of his neighbors' trailer and told them that Durand was dead. Police and fire were summoned, arriving at approximately 3:30 p.m. Tr. 3/202, 3/250. O'Neill led firefighters to the scene telling them that he returned home and found Durand unresponsive.
Brief of the Defendant-Appellant, 2009 WL 2459090.
O’Neill was charged with Durand’s murder on May 10, 2004 and convicted by a jury of murder on October 19, 2006. Brief of the Defendant-Appellant, supra. Prior to trial, the prosecution filed a motion in limine asking the trial judge to allow it to introduce into evidence at trial the email Durand sent Debbie Quandahyl on the day he died. Brief of the Defendant-Appellant, supra. This, according to O’Neill’s brief on appeal, is what the email said:
`This morning my roommate was going to work a couple of hours and get paid cash. Before he left, he showed me a printout of something that he got off the -- got off his computer. I asked him, “how did you get online?” He said, “I am now on AOL, and I used it on my card.” He doesn't have a charge card so I knew something was fishy.’
`I called AOL, and they told me that there was another account on my name with the billing being done through the phone bill. I was and am pissed to say the least. I canceled it, and I can't wait for Jim to go to his room and try to get online. I asked AOL to put a block on the access, but they said I would have to go through the phone company, which I will tomorrow.’
`The nerve of this guy is unbelievable. He owes me over $600 in rent. Last week, I told him to be caught up by February 1 or get out. Right now, he's only working part time. He gives me $100 each week, but that is not enough to cover it. Debbie, I cannot -- I cannot stand getting up at 4:30 in the morning taking a shower and going to work knowing that there is an asshole living in my home taking full advantage of me.’
Brief of the Defendant-Appellant, supra.
The judge deferred ruling on the motion in limine until trial. Brief of the Defendant-Appellant, supra. When the prosecution sought to introduce it, O’Neill objected, arguing that it was inadmissible hearsay evidence. Brief of the Defendant-Appellant, supra.
As I explained in an earlier post, the federal system and all the states have rules that bar the admission of hearsay evidence unless it falls within one of several recognized exceptions to the rule barring its use. As to what hearsay is, state statutes and court rules, like Rule 801(c) of the Federal Rules of Evidence, define hearsay as “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.” So this type of evidence is excluded unless it falls into one of the exceptions I noted above.
As I explained in the earlier post, hearsay – which is second-hand evidence -- is excluded as a matter of common sense and fairness. If it weren’t excluded, John Doe could take the stand and say Jane Doe told him that the defendant – Richard Roe – who’s on trial for murder confessed to the whole thing.
That puts Roe in a bad spot: If the jury believes what John says – i.e., that Jane heard Roe confess to the murder for which he is on trial – they’re almost certainly going to convict him (unless he’s arguing self-defense, say). Roe can try to show John Doe is a liar or is mistaken or is insane or otherwise can’t be believed, but neither he nor his lawyers can do much with Jane Doe because she isn’t there . . . she’s a declarant who isn’t testifying at the trial.
Allowing second-hand evidence – someone’s repeating what someone else allegedly told them – opens up all kinds of possibilities for unfairness and error. We’ve probably all played that rumor game where something gets whispered to one person and passed along and comes out totally garbled. That’s the kind of inadvertent error hearsay rules are intended to guard against; they’re also intended to guard against fabrication or deceit, i.e., intentional error.
This brings us back to the state of mind hearsay exception. As a law review article explains, this exception to the hearsay rule
provides that a statement is not hearsay if it is `[a] statement of the declarant's then existing state of mind, emotion, sensation, or physical condition . . . .’ `The underlying rationale for this hearsay exception is that statements concerning the declarant's then existing physical or mental condition are trustworthy because their spontaneity makes them at least as, if not more, reliable than testimony at trial on the same subject.’
M. Bryan Schneider, Evidence, 56 Wayne Law Review 1123, 1200 (2010) (quoting Rule 803(3) of the Michigan Rules of Evidence & Glenn Weissenberger & James J. Duane, Federal Evidence § 803.12 (6th ed. 2009)).
In its motion in limine, the prosecution argued that the email was admissible “`to show victim's state of mind immediately prior to his death and as evidence of the defendant's motive.’” Brief of the Defendant-Appellant, supra. O’Neill objected to the admission of the email on the grounds that it was “hearsay and overly prejudicial.” Brief of the Defendant-Appellant, supra.
The trial judge overruled O’Neill’s objection and ordered that the email be read to the jury. Commonwealth v. O’Neill, supra. Before it was read, though, the judge instructed the jurors that the email
is not offered for the truth of whatever may be stated or contained in the document itself but rather as evidence. If it is in your determination of the victim's, alleged victim, state of mind in connection with the creation and apparent sending this e-mail on the date and time apparently indicated on the e-mail.
Again, these are all facts as to which you have to make the ultimate determination as to their validity, accuracy, credibility and the like. But the document is offered only as it may relate to the victim's state of mind in this case.
Brief of the Defendant-Appellant, supra.
As I noted earlier, O’Neill was convicted of murder and appealed, arguing that the trial judge erred in admitting the email. Commonwealth v. O’Neill, supra. He argued that it was error to admit it as state of mind evidence because “a jury could not infer that the defendant was aware of the victim’s state of mind.” Commonwealth v. O’Neill, supra.
The prosecution argued that the email was evidence “that the motive for the killing included tension over the defendant's fraudulent use of the victim's America Online (AOL) account and the defendant's continuing unauthorized use of the victim's computer.” Commonwealth v. O’Neill, supra. The Court of Appeals noted, in its opinion, that
`[t]he state-of-mind exception to the hearsay rule calls for admission of evidence of a murder victim's state of mind as proof of the defendant's motive to kill the victim when and only when there also is evidence that the defendant was aware of that state of mind at the time of the crime and would be likely to respond to it.’
Commonwealth v. O’Neill, supra (quoting Commonwealth v. Qualls, 425 Mass. 163 (1997)).
In upholding the trial judge’s admission of the email, the Court of Appeals noted, approvingly, that the prosecution
presented additional evidence that the defendant knew of the victim's anger toward him. One witness testified that the defendant had stated that the victim was `upset and angry’ over the defendant's unauthorized use of the victim's computer
Commonwealth v. O’Neill, supra.
And the court pointed out that the prosecution also presented evidence that
contradicted the defendant's version of events relating to his presence on the night of the crime in the trailer he shared with the victim. The jury could infer from inconsistencies in the defendant's statements about the amount of time he spent in the trailer on the night in question that he was concealing the fact that he had argued with the victim over his unauthorized use of the defendant's computer.
Commonwealth v. O’Neill, supra.
The court therefore affirmed O’Neill’s conviction. Commonwealth v. O’Neill, supra.
According to the news story you can find here, O’Neill was sentenced to life in prison but will be eligible for parole after serving 15 years.
This post examines a recent decision from the U.S. Court of Appeals for the 1st Circuit in which the court reviewed the propriety of a district court judge’s imposing a monetary sanction on an attorney who missed a hearing.
The opinion is U.S. v. Romero-Lopez, __ F.3d __, 2011 WL 5557406 (1st Circuit 2011), and the case arose in the U.S. District Court for he District of Puerto Rico.
According to the brief filed on the judge’s behalf, the sequence of events that would lead to the imposition of this sanction began on September 16, 2009, when José Romero-López was charged in a federal criminal case; the next day, Jorge L. Armenteros-Chervoni "filed a notice of appearance as counsel on behalf of Romero.” Brief for Appellee, U.S. v. Romero-Lopez, 2011 WL 3881818 (1st Cir. 2010).
Romero went to trial on December 21, 2009 and, after a five-day trial, was convicted on all counts. Brief for Appellee, supra. His sentencing was originally set for March 25, 2011, but was rescheduled multiple times, for various reasons; on May 7, 2010, the judge set Romero’s sentencing for 4:30 p.m. on May 12, 2010. Brief for Appellee, supra.
On May 10, 2010, the court issued an order advancing the time for Romero's sentencing to 9:30 a.m. on May 12, 2010. On May 12, Romero's case was called for sentencing at 9:35 a.m., but it was not held. The [Assistant U.S. Attorney] was present in court [but] Armenteros did not appear and Romero was not present.
In open court, the court stated the following:
`This case was originally scheduled to be heard at 4:30 this afternoon, but the Court changed the hour for 9:00 a.m. We heard that Mr. Armenteros is not here that he did not realize that the hour had been changed since Monday, May 10.’
`Because attorneys have an affirmative duty to monitor the docketing system for entry of new filings and orders, Mr. Armenteros is fined $1,5000.00 for his failure to appear. . . . Parties in an ongoing case have an obligation to monitor all developments in the case. We will continue the sentence until Friday, May 21, 2 p.m.
The sanction to be paid by, Monday the 17.’
Brief for Appellee, supra.
On May 17, Armenteros filed a motion asking the judge to reconsider the sanction. Brief for Appellee, supra. In his motion, Armenteros made the following arguments, among others, as to why the judge should reconsider:
In the case at bar on Friday, May 7, a sentencing hearing was scheduled in open court for Wednesday, May 12, 2010 at 4:30 p.m.
We received a call from our secretary indicating the Court, without consulting any party, advanced the sentencing hearing to 9:30 a.m. . . .This was done on Monday, May 10 at 4:58 pm, and we did not receive notice at the time since we had left our office to attend prior commitments.
The next day . . . our secretary was absent and we had to go to Court in the morning, run to MDC to see Mr. Romero (for the sentencing hearing), and come back for another case at 2 pm (sic) which finished well after 5 pm. . . . We did not have an opportunity to verify our e-mails. . . .
This is the third time this Court changes unexpectedly the calendarization of a hearing . . . without considering the calendar of any of the parties. We submit the Court is not respecting the attorneys to the extent that it unilaterally changes dates or times without consulting attorneys' calendars, and with little or no time in advance. . . .
While we understand we have an affirmative duty to monitor the electronic filing system for entry of new filings or Orders, said duty must be within reasonable terms. It is ludicrous to assert that we need to be on top of our email 24 hours a day. A reasonable term is at least 5 days in advance so attorneys can make the proper arrangements in their calendars.
It is not an affirmative duty of an attorney to monitor his email at all times. We believe that the fact that we do not check our email one day, because it was impossible to do so does not mean we have been irresponsible or merit a $1,500 sanction.
Brief for Appellee, supra (emphasis in the original). (And no, I don’t know why he refers to himself as “we.”)
The judge denied the motion for reconsideration and Armenteros appealed the sanction to the 1st Circuit. U.S. v. Romero-Lopez, supra. “In an effort to take advantage of the procedural requirements before criminal contempt can be imposed,” Armenteros argued that the sanction the judge imposed on him was a criminal contempt sanction, which meant the judge “was required to follow the procedures outlined” in Rule 42 of the Federal Rules of Criminal Procedure. U.S. v. Romero-Lopez, supra. Armenteros therefore claimed that because the judge did not follow the Rule 42 procedures, the sanction was improperly imposed. U.S. v. Romero-Lopez, supra.
be proven beyond a reasonable doubt, but once the charge is proven, then punishment (such as a fine or, in more serious cases, imprisonment) is imposed unconditionally. The civil sanction for contempt (which is typically incarceration in the custody of the sheriff or similar court officer) is limited in its imposition for so long as the disobedience to the court's order continues: once the party complies with the court's order, the sanction is lifted. The imposed party is said to ahold the keys’ to his or her own cell, thus conventional due process is not required.
The Court of Appeals rejected Armenteros’ characterization of the sanction as
as criminal contempt. . . . His argument is based on a flawed premise: that because the district court's sanction was not a civil contempt sanction, as it did not seek to `modify[ ][his] behavior to conform to the terms required in the [court's] order,’ as is . . . the case in a civil contempt, it must have been a criminal contempt sanction, imposed `retrospectively for a completed act of disobedience, such that the contemnor cannot avoid or abbreviate the [sanction] through later compliance.’
U.S. v. Romero-Lopez, supra (quoting Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821 (1994)).
The court pointed out that Armenteros’
premise of a dichotomy is `demonstrably mistaken’ because there exists a third category of `punitive non-contempt sanctions,’ based on a court's inherent power to regulate itself. U.S. v. Kouri-Perez, 187 F.3d 1 (1st Cir. 1999). This power `is inherent in all courts,’ as such power is `necessary to the exercise of all others.’ Chambers v. NASCO, Inc., 501 U.S. 32 (1991).
U.S. v. Romero-Lopez, supra. The Court of Appeals then explained that
[w]hile the district court did not expressly state that this was an inherent-power sanction, that is what it was. First, there was no formal finding of `contempt,’ which would `connote[ ] the highest level of censure against counsel.” Kouri-Perez, supra. Rather, the district court `admonished’ the attorney.
Second, there was no indication the court thought the `conduct . . . bespeaks a criminal mens rea,’ as is required for a criminal contempt sanction. Kouri-Perez, supra.
Third, the court's act of sanctioning an attorney for failing to appear falls squarely within its recognized inherent power `to discipline attorneys who appear before it.’ Chambers, supra, see also In re Smothers, 322 F.3d 438 (6th Cir. 2002) (`District judges routinely impose monetary penalties for tardiness without resorting to a finding of criminal contempt.’).
U.S. v. Romero-Lopez, supra.
The 1st Circuit then found that the
district court did not abuse its discretion in imposing a sanction. Attorneys have an obligation to remain informed about the status of their cases and comply with applicable scheduling orders issued by the court. . . . . When electronic case filing is utilized, as here, counsel needs to monitor the docket for electronic filings.
The attorney's failure to monitor for electronic notices constituted a violation of this obligation. Further, his failure to appear at the rescheduled hearing, or provide the court with any notice of unavailability, imposed an unnecessary burden on an extremely busy court, as well as the other participants.
U.S. v. Romero-Lopez, supra.
It also found, though, that
a lesser penalty suffices. The Supreme Court has admonished courts to be cautious in using their inherent power to sanction, explaining that `[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion.’ Chambers, supra. `[T]here is much to be said for deploying the least extreme sanction reasonably calculated to achieve the appropriate punitive and deterrent purposes.’ Kouri-Perez, supra.
In the circumstances of this case, where the time for the sentencing hearing was changed less than two days before the hearing, and where there is no indication of an intentional flouting of the court's authority or repeated tardiness, a lesser sanction will suffice to deter future violations. A $500 sanction would be more appropriate in these circumstances.
U.S. v. Romero-Lopez, supra.
The Court of Appeals therefore affirmed the district court judge’s decision to impose sanctions, but reduced the original amount to $500. U.S. v. Romero-Lopez, supra.