Vermont Court Holds That Cautionary/Limiting Instruction Was “Patently Inadequate” (Vermont)

In Smith v. State, 2010 VT 15, P10-P14 (Vt., No. 08-396, 2010) the defendant contended that  he was denied a fair trial by the erroneous admission of evidence of prior uncharged sexual misconduct. The claim arose out of events occurring on the first day of trial, during defendant's cross-examination of E.C., the friend to whom B.H. first reported the assault. Defense counsel informed the court that, the night before trial, she had received from the state's attorney a CD recording of the police interview of E.C. To show certain alleged discrepancies between E.C.'s trial testimony and the interview, defense counsel proposed to play the recording for the witness. The state's attorney had no objection and accordingly played the CD in open court up to a certain point, when he abruptly stopped it in mid-recording. The court then observed that the recording was “getting into” certain objectionable areas, referring to E.C.'s clearly audible statement that B.H. had discussed “the fact that [defendant] was molesting [his] wife or girlfriend's daughter.” Shortly thereafter, E.C. repeats the allegation, recalling that B.H. “had also mentioned that [defendant] had raped or molested his wife or girlfriend's daughter.”

A bench conference followed, in which the state's attorney requested a cautionary instruction and defense counsel moved for a mistrial. The court denied the mistrial motion on the basis that the recording had been “admitted by agreement,” but invited defense counsel to comment on the prosecutor's request that it direct the jury to ignore the last part of the recording. Defense counsel declined to join in the request and renewed her motion for a mistrial, which the court again denied. The court then instructed the jury that the “last portion of the recording … was not meant for you to hear” and that it should “ignore that last statement that was made.”

The reviewing court concluded that the limiting instruction did not cure the error: “Even under a plain-error standard, however, we are compelled to conclude that the instruction was patently inadequate to negate the potential prejudice inherent in the offending statements. Although the court understandably did not wish to repeat the statements, its limiting instruction was so vague as to be pointless. The instruction was given several minutes after the recording was played and referred simply to ‘that last portion’ and ‘that last statement’ on the recording although the objectionable statements were multiple and were not actually the witness's last remarks. Moreover, the instruction provided no clear and specific direction to the jury, by instructing, for example, that defendant was not on trial for any actions other than those specifically charged and that under no circumstances was the jury to consider for any purpose the inadvertent allusions to defendant's alleged misconduct. [Citations.]” Id.. at P10.

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
4.3.2 - Cautionary And Limiting Instructions: Requests And Objections
Chapter 26: Limited Purpose Evidence
Forecite California™
PG VI(C)(1.1) - A Cautionary Or Limiting Instruction Should Not Be Given Over A Tactical Objection By The Party Benefits From The Instruction PG X(E)(19)(1) - Inability Of Limiting Instructions To Cure Error

Jury Instruction On Breath Test Refusal As Improper Comment On The Evidence (Texas)

An instruction on the refusal to take a breath or blood test was an impermissible comment on the evidence. See Bartlett v. State, 270 S.W.3d 147, 154 (Tex. Crim. App. 2008); see also Guess v. State, (Tex. App. Tyler,  No. 12-08-00448-CR, Feb. 26, 2010) [“The instruction given in this case is improper both because it unnecessarily shines a light on a singular factual issue, the issue in Bartlett, and because it puts a judicial imprimatur on the conclusion that Appellant did refuse the breath test, a conclusion he contests here and contested at the trial court”].

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
34.7 - Refusal To Submit To Blood Alcohol Test
89.5 - Defenses And Defense Theories Regarding Blood Alcohol Testing
89.6 - Drunk Driving: Refusal To Submit To Blood Alcohol Test As Consciousness Of Guilt

Forecite California™
F 2130 - Refusal—Consciousness Of Guilt
F 2130 - Note 5 Refusal Instruction As Improper Comment On The Evidence

Sample Instruction: Uncharged Offenses Or Bad Acts Must Be Proved Beyond A Reasonable Doubt

You are instructed that if there is any evidence before you of the defendant having committed any other offenses or bad acts, other than the offense alleged against him in the indictment in this case, you cannot consider such evidence for any other purpose unless you first find and believe beyond a reasonable doubt that the defendant committed such other offenses or bad acts, if any, and even then, you may only consider such evidence to aid you in determining, if it does aid you, the defendant's intent, knowledge, plan, scheme, if any, to commit the offense alleged against him in the indictment in this case.

Source: Approved in Howard v. State, (Tex. App. Dallas, No. 05-08-01119-CR, Feb. 26, 2010) [NOTICE: This opinion is UNPUBLISHED.] [citing Chaddock v. State, 203 S.W.3d 916, 924 (Tex. App.--Dallas 2006, no pet.).]

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
25.19 - Uncharged Acts: Nonpropensity
25.20 - Uncharged Acts To Prove Propensity (FRE 413-415)
26.5 - Uncharged Acts To Prove Issues Other Than Propensity
65.1.1 - Natural And Probable Consequence: Prejudicial Impact Of The Failure To Instruct On Elements Of Uncharged Target Offense
The Shellow Instructions
Limited Purpose Evidence: Uncharged Offenses And Acts
Forecite California™
F 2.50 - Other Crimes, Uncharged Offenses
F 2.50.1 - Other Crimes Evidence

Absence Of Election And Unanimity Instruction Held Harmless Based On Prosecution’s Argument (Tennessee)

In State v. Washington, (Tenn. Crim. App., No. M2008-01870-CCA-R3-CD, Feb. 24, 2010) the appellate court noted that Tennessee has consistently held that the prosecution must elect the facts upon which it is relying to establish the charged offense if evidence is introduced at trial indicating that the defendant has committed multiple offenses against the victim. See State v. Kendrick, 38 S.W.3d 566, 568 (Tenn. 2001); Brown, 992 S.W.2d at 391;  Walton, 958 S.W.2d at 727; Tidwell v. State, 922 S.W.2d 497, 500 (Tenn. 1996); Shelton, 851 S.W.2d at 137. The appellate court further observed that the requirement of election serves several purposes: (1) it enables the defendant to prepare for the specific charge; (2) it protects a defendant against double jeopardy; (3) it ensures the jurors' deliberation over and their return of a verdict based upon the same offense; (4) it enables the trial judge to review the weight of the evidence in its role as the thirteenth juror; and (5) it enables an appellate court to review the legal sufficiency of the evidence. Brown, 992 S.W.2d at 391.

Nevertheless, the appellate court affirmed even though the trial court did not require the State to make an election of offenses and did not instruct the jury on election.  In so doing the reviewing court relied on the prosecutor’s closing argument – which focused on only one act – to find the error harmless.

For subscription based briefing and sample instructions on this and related issues see:

Forecite National™
Chapter 273: Jury Unanimity As To The Act Or Offense Committed (Duplicity)
Forecite California™
F 4.71.5 - Juror Unanimity
F 17.01 - Juror Unanimity
F 3500.1 - Unanimity: Duty To Instruct