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But, he's a crackhead!

Randall Hodgkinson won in State v. Hughes, No. 95,256 (Kan. August 22, 2008), reversing Lyon County convictions for felony murder and aggravated burglary. Julia Spainhour won in the companion case, State v. Carapezza, No. 95,233 (Kan. August 22, 2008), reversing Lyon County convictions for felony murder, aggravated burglary, aggravated robbery, and misdemeanor theft. In both cases, the KSC held that it was reversible error to admit expert testimony about the propensity of crack addicts to commit violent crimes.

At each trial, the State called an "expert" witness who testified that obtaining crack becomes an overwhelming preoccupation, explaining that users will continue using the drug even though they experience negative consequences. The witness also testified that people who use crack are more likely to become violent, especially when their drug-seeking behaviors are unsuccessful. He even testified that he had seen people "go the extent of robbing people on the street to obtain crack cocaine."

The KSC held that the testimony was not relevant and was improper propensity evidence:

Clements and Cheeks stand for the proposition that behavioral profile evidence is not admissible to imply guilt by showing that the defendant falls within the profile.

* * *

Like the evidence in Clements and Cheeks, Dr. Nelson's testimony did not help the jury determine whether Hughes burglarized Clark's house and robbed and killed her. The only inference from Dr. Nelson's testimony is that crack cocaine addicts will do anything to obtain the drug, so Hughes must have committed the crimes because he is a crack addict. Like the inference in Cheeks, this inference is impermissible. The district court abused its discretion in admitting Dr. Nelson's testimony.

The court held that the error was not harmless, because the only other evidence in each trial was the testimony of a codefendant, ?whose credibility was questionable due to discrepancies between her prior statements and her trial testimony and due to her favorable plea agreement,? and the testimony of two jailhouse snitches. ?Because the expert testimony relating to the propensity of cocaine addicts to commit violent crimes was not relevant and because it undermined [the defendant's] right to a fair trial, the convictions must be reversed.?

The court also ordered the district court to conduct a Kastigar hearing before any retrial in either case. Because Hughes and Carapezza had received derivative-use immunity at an inquisition before their trials (and shortly after the victim?s death), the State has an affirmative duty to prove that the evidence it plans to use a subsequent trial is derived from "a legitimate source wholly independent of the compelled testimony." The court noted :

"[Use immunity] prohibits the prosecutorial authorities from using the compelled testimony in any respect." Kastigar, 406 U.S. at 453. At the hearing, the government must demonstrate that it obtained all of the evidence it proposes to use from sources independent of the compelled testimony. See North, 910 F.2d at 854. The district court must make specific findings on the independent nature of the proposed evidence. 910 F.2d at 855-56. No use at all may be made of the immunized testimony. 910 F.2d at 862. The fact that other witnesses were exposed to immunized testimony may suffice to taint their testimony. 910 F.2d at 863-64.

Although such tight restrictions on the use of immunized testimony may jeopardize the State's case, this court notes the caveat of the Ninth Circuit Court of Appeals in recommending caution in conducting immunized hearings:

"The government must occasionally decide which it values more: immunization (perhaps to discharge institutional duties, such as congressional fact-finding and information-dissemination) or prosecution. If the government chooses immunization, then it must understand that the Fifth Amendment and Kastigar mean that it is taking a great chance that the witness cannot constitutionally be indicted or prosecuted." 910 F.2d at 862.

Congrats to Randall for getting off the schneid.

Full post as published by Kansas Defenders on August 25, 2008 (boomark / email).