Wednesday, February 6, 2008

Res Gestae: the die-hard doctrine.

State v. Fetelee (HSC January 31, 2008)

Background. At Fetelee's trial, Angela Lopez was in her friend's apartment one night with her friends when Fetelee barged in after demanding drugs, attacked one of her friends, and chased off another. Around ten minutes later Fetelee, appearing "calm," returned and apologized. Shortly after that, Fetelee asked a woman in a gas station parking lot a cigarette and money. When she pulled out her cigarettes, a $10-bill came out from her purse. Fetelee grabbed the bill, and the woman did not ask for it back. Just then, two Micronesian men, Michael Hartman and Kenter Alik, walked by. According to their testimony, Fetelee provoked them and hit Hartman several times in the face. Alik fought with Fetelee for a while, but Fetelee ran off toward the apartments. Alik started assisting Hartman when Fetelee returned with a knife. Fetelee stabbed Alik in his stomach and his side as he tried to run and after he fell, Fetelee stabbed him behind the ear. Alik was unconscious for about a month. No charges against Fetelee stemmed from the incident with Lopez.

In his motion in limine before trial and at trial, Fetelee objected to any evidence relating to Lopez and the incident in the apartment on the grounds that it was an inadmissible "bad act" under HRE 404(b). The trial court denied the motion and overruled any objections because the incident at the apartment happened quickly before incidents at the gas station and was thus "the res gestae of the alleged offenses." A jury convicted him of attempted murder in the 2d degree (HRS §§ 705-500, 707-701.5, and 706-656); attempted assault in the 2d (HRS §§ 705-500, 705-711(1)(a)); and theft in the 4th (HRS § 708-833). He was sentenced to life.

Res Gestae, meet HRE, the "Singular and Primary source." Before 1981, res gestae was considered evidence that was so causally linked to the "litigated act," that little time elapses. Territory v. Lewis, 39 Haw. 635, 639 (1953). Res gestae was used primarily to admit evidence that would normally be inadmissible hearsay. The Hawai'i Rules of Evidence (HRE) became effective in 1981 without any mention of the words "res gestae." The purpose of the HRE was to (1) codify the law of evidence; (2) promote informed evidentiary rulings; and (3) bring uniform treatment of evidence across the State. HRE Rule 100 cmt. The legislative history of the evidence rules suggest that the HRE was the singular and primary source of all evidentiary rulings. Such intent, according to the HSC, shows that the HRE supersedes the common-law res gestae doctrine. Thus, the res gestae doctrine is "no longer a legitimate independent ground for admissibility of evidence in Hawai'i[.]"

Not quite gone. Then again, as the HSC explained, the HRE has codified certain aspects of the res gestae doctrine--the excited utterance, present-sense impression, and the then-existing mental, emotional, or physical condition exceptions to the hearsay rule--but certainly not every aspect. So the doctrine is not quite extinguished. That said, the HSC urges the "retirement" of the words "res gestae" from the language of the law of evidence. Supporting this holding is the basic notion that a statute is not intended to repeal the common law or a prior statute unless it clearly appears that the legislation covers the entire subject. Kienker v. Bauer, 110 Hawai'i 97, 109, 129 P.3d 1125, 1127 (2006). The legislature intended the HRE to cover the entire subject of evidentiary rulings and, thus, it supersedes any common law doctrines that existed prior to that. But the HRE are not something newly crafted that wreaks havoc on trial lawyers and courts. Much of the HRE, as seen here, codifies the common law, but not all. Thus, the doctrine in our courts is not quite extinct; it lives on as expressly-carved out hearsay exceptions.

As for this case, HRE Rule 404(b) specifically prohibits the admission of other crimes, wrongs, or acts that negatively impact the defendant's character or show a propensity for crime unless a specific exception under HRE Rule 404(b) is met. None of the exceptions to the general rule of HRE Rule 404(b) allow evidence of criminal activity or bad acts that "become part of the history of the event at trial (i.e. res gestae)." Thus, the doctrine has been superseded in these circumstances. The HSC then held that the general prohibition of "bad acts" in HRE Rule 404(b) applied here, and remanded for new trial.

Justice Nakayama's Concurrence. Justice Nakayama agreed that the HRE supersedes the res gestae doctrine, but wrote separately "to emphasize the value and potential viability of res gestae evidence, as numerous federal courts that continue to rely on this doctrine have demonstrated." Justice Nakayama explained that the doctrine was used by Hawai'i courts long before the HRE and that federal courts still use it in spite of FRE Rule 404(b) and other rules of evidence. Moreover, she believes that the doctrine was carefully limited by HRE Rule 403 balancing and a causal nexus. Still, Justice Nakayama agreed that HRE supersedes a doctrine that, according to her, is "not antiquated."

A Superfluous Crawford Analysis. The superseding of the common law is not the same thing as the HRE taking precedence over a constitutional right, such as the rights in the Confrontation Clause. The HSC has recently held that when the statement is non-testimonial, the federal Confrontation Cl. does not apply, and, for purposes of the Confrontation Clause under the state constitution, a "firmly-rooted" hearsay exception would allow it to be admitted without violating constitutional rights. State v. Fields. Now we know that the only kinds of "firmly-rooted" hearsay exceptions are those in the HRE and nowhere else. If the statement is "testimonial," however, the Sixth Amendment to the federal constitution is implicated and that can defeat any exception spelled out in the HRE.

2 comments:

line of flight said...

These kinds of cases always give hope that you can still win a case hanging your coat off an old maxim of equity. When we say derogations of the common law are strictly construed, we mean it!

B. Lowenthal said...

It's unclear whether the HSC strictly construed the res gestae doctrine or down-right invalidated it on the grounds that it had been superseded by the HRE. Nevertheless, as a matter of pracice, it's probably best to object based on the language in the HRE and avoid the Latin.