Jury Charge and Sufficiency of the Evidence

So will be very hard overturning a case on sufficiency of the evidence based on jury charge error, Ok! Let me talk about talk about this for a moment, we had a case of my firm I think Mick Geris here I saw on earlier from Jim Well’s county which is out less. We had a cold case murder, we were handling on appeal. Horrible case, horrible case, dead girl been missing for 20 years, all they find is her bones and there’s really no clues hardly at all about what happened to this girl except one near do well who I think is the actual killer but when near do well who happened to be just be the State’s star witness ok.

He’s the one who come forward with all the information and he knows everything and he was there and everything else to convict our client. Now incredibly at trial for the first time, this witness decided to testify the instead of the young girl being stabbed [as ledged] in the indictment that the killer “our client” held on to the knife blade and bludgeoned her with the handle part! Ok! What do you do with that? Well we tried every which way to get that undone and we haven’t but maybe doing Habeas here shortly. But the Court Of Criminal Appeals explain that, that there’s no variance there. That there’s simply manner and means, the gravamen of the offense is still the conduct and the result of the offense, murder is a result oriented offense which means you have to intent to kill! Alright, so the only issue left when we’re looking at manner and means, the only issue left is “Was there notice to the accused?” was his defense harmed in any way? Now if you’re [curt off] guard in trial where the big fat lair star witness changes a story, how are you supposed to defend against that and think 10 steps ahead? I don’t know! I don’t know!

But I found this case very very disturbing because the star witness was so unbelievable and completely flipped his story on its head but the Forth Court Of Appeals and Court Of Criminal Appeals said “That’s ok!” pops sorry! I keep forgetting to change my little slides here.
Ok I think, I think they faded amount because I forgot to keep changing them, sorry about that I got so excited here. Hypothetically correct recharges we’ve talked about that, ok on grounds of we’re not submitted to the jury.

Ok! Let’s talk about “Byrd”, alright when we’re talking about theories that cannot be a harmless evidence that are a fatal variance, let me explain, this is one of the few cases I’ve seen in the last 15 years this harmful and Mike Robbins from the public defender’s office here handled this case when I was chief there. And this is kind of a funny case because it’s not something real real serious but Byrd was a shoplifter at Wal-Mart. Now! So this is a Mr. meaner courts from us than you prosecutors are and what the young prosecutors proved was that Wal-Mart was the victim of the theft. Ok, alright Wal-Mart usually kind like [K-Mart] used to be, you know that’s foremost shop lifting cases come from.

But the charging instruments said “Mike Morales”, but the prosecutor never linked up who Mike Morales was? What did Mike Morales have to do with Wal-Mart? Never linked it up and I have to tell you that the prosecutor on appeal fought this case tooth and nail, fought it fought it fought it but Halleluiah! We had Cathy Cochran write the opinion, again a very thoughtful considerate well informed opinion and she said that “A rose is not… may be a rose but it’s not a pickle” that’s what she read in the opinion, Byrd versus State “BYRD” and what she meant with you still have to get the person right. You have to get the correct victim.

Now! I was a pre-computer since I’m 50. So what happened was when they cut out that portion, put it on the steps, they cut out the language and forgot to include that said caused the death! Ok trial judge missed it, prosecutor missed it, defense attorney missed it, and so the client plea to a perfectly good aggravated assault not murder! Ok? It kind of a big problem there! In the state’s argument that well he knows who he is and he knows what he did and we shouldn’t have to put it in there, did not fly ok? You have to have that particular language in there. Ok murder is result of conduct crime ok we talked about that, I hear crickets from somebody’s phone, was that a hint? I got it!

Ok, the application paragraph, let me go back, the application paragraph, that is the portion of the charge we’ve talked about the definitions. Ok the application paragraph is that part of the charge that says “Now if you so find that Betty Blackwell did strike Angela Moore with an object unknown to the grand Jury causing her death! You will Betty Blackwell guilty of murder” ok that’s the application paragraph, that’s where they take the allegations and the indictment and they apply to the facts of the case. It’s very very simple.

Now the application paragraph cannot include allegations that were not proven at trial and they were not in the indictment but what the appliqué court do is if it is given in the definitional portion correctly for example law parties and it’s not given in the application paragraph correctly, they will find so you need to make sure that its properly given to your jury.

Culpable mental states, I want a harp on this too long because this is kind of go back to law school days, but recklessness if you prove a higher degree of culpability, you have proven the lower levels. So then you have a lesser included offense, not a variance! And the trial judge may instruct the jury on any lesser included offense for which there’s some evidence presented to rationally convict the defendant of the lesser offense. So you want to make sure that if you ask for a lesser included offense that, that is a lesser included offense of the greater charge. Let’s see, ok we talked about… ok defensive issues, to defensive issue based again as I said a moment ago on evidence no matter how incredible it is, no matter how unbelievable it is, whether the trial court believes it or not.

Now how will they measure sufficiency of the evidence on appeal when the jury’s reject it that affirmative defense. Well there’s a case that came out this year called Matlock, it’s a 2013 CCA case in paper and Matlock talks about that it will be measured by the CIVIL standard, the rejection of the affirmative defense is measured by the CIVIL standard of sufficiency of the evidence. So basically if no rational juror could have rejected that affirmative defense for much like our legal sufficient in criminal cases then the appliqué court can say that the leme see the language, then the appliqué court can say that the affirmative defense was proven and that the jury was irrational in rejecting it.

Ok Almanza is normally the standard of review; I can tell you just based on my experience that the Court Of Criminal Appeals does not like Almanza. They call it “Almanza- The horrible” much like I hate Malic and there are steps being taken in their opinions where I see where they’re trying to get rid of Almanza, don’t let em’ do that. What Almanza says is that “If you objected trial, then you only have to show some harm but if you do not object trial, you have to show egregious harm. Ok while showing egregious harm with this court is pretty near impossible, it’s very very very difficult! Except with our Wal-Mart and Mike Morales case but showing some harm is even more difficult because it’s a lesser standard. But the Court Of Criminal Appeals is positioning itself where I see they want to do away with almanza and that if you don’t object then they’re not going to look at it! Just like other types of issues.

Commenting of testimony, now you have to be careful when prosecutors come up with their own charges or even if you come up with your own charge. The case is never rarely, reversed just based on the defense asking for jury charge. And sometimes as a matter of strategy you may [inaudible] you know what? The state didn’t prove their case, I’m not going to ask for lesser includes because I don’t want the jury to have something to hang its head on. Now that’s a tough call for you and your client, that’s a tough call! You’re the one who’s sitting through trial, you’re the one who’s going to have to decide on that with your particular jury but the trial court cannot make a comment on the way of the evidence. Like the case Mark Stevens was talking about earlier today where the trial court took it upon himself to says “Well if it were me, I would go ahead and tell my side of the story but that’s just me” ok well that was a comment! Clearly comment, now they found that it wasn’t harmful because it wasn’t an objection. Ok so object everything, put it in writing and make sure that you have it on the record that you disagreed with any comments or any jury charges given that you consider a comment on the wait.

Another thing to look at for is burden shifting, I’ve talked about moment ago, I had a conversation with [Clears throat] John Bradley, if you can call it a conversation and he was teaching at this one seminar couple of years ago and he was teaching this mixed group of different disciplines on DNA evidence, he was telling the prosecution that they should point out the defense could’ve brought their own DNA evidence and they chose not to. Ok I think that’s burden shifting you know I got a decision about that in front of the whole group and we have a difference of opinions on that. Do not let the Government or the state lessen their burden of proof, fight them on that every step of the way if he know a particular prosecutor is inclined to do certain things, follow pre-trial motions! Object on the record, ask for an instruction to just regard and then ask for mistrial. That’s the only way you’re going to preserve that kind of evidence, that’s the only way you’re going to preserve that kind of error!

Excuse me! Conjunctive allegations and disjunctive submission, that sort of sounds like a I know but that’s not! What we’re talking about their conjunctive means and disjunctive means or? Ok that’s really all it means. Some of my students get really confused about that, they think it’s something really really profound and horrible but it’s not. But basically the Penal statutes list the various ways of committing a crime in the disjunctive. The state’s pleadings should allege methods of crimes in the conjunctive that mean ain’t. Ok the court should instruct the jury and the disjunctive if evidence supports all the allegations so what we’re talking about there’s manner and means. Did he do it by strangling her with the ligature? Did he do it by stabbing her with a knife? Did he do it by shooting her with a gun? That should be or otherwise you’re not going to have jury unanimity which is also very very important.

Be careful of allowing a conviction on less than a unanimous verdict. Submitting two separate offenses to the jury in the disjunctive can cause a conviction on less than a unanimous verdict. So you still want to be careful with that.