Federal Evidence Review

In assault with a dangerous weapon prosecution, trial court correctly excluded defendant’s evidence of prior threats made by his victims against others, despite defendant’s self-defense claim, because the defendant failed to show he had personal knowledge of the remote, prior threat, so that it might show the defendant’s state of mind in shooting at victim under FRE 405(b), in United States v. Bordeaux, 570 F.3d 1041 (8th Cir. July 7, 2009) (No. 08-2280)

According to the Eighth Circuit, one of the more “difficult evidentiary issues” that a trial court can face is to assess when a defendant may “introduce reputation or opinion testimony [regarding a victim] pertinent to his self-defense claim.” Bordeaux, 570 F.3d at 1051. In a recent case, the circuit commended the trial judge for taking a “thoughtful approach” to this evidence challenging question. The case, United States v. Bordeaux, is instructive as to the often subtle distinctions that a court must make in assessing the admission of victim’s prior acts or character evidence.

In the case, defendant Bordeaux was convicted of assault with a dangerous weapon. The charge arose during a Fourth of July evening in which the defendant had several run-ins with victim Saupitty, whom he maintained “had previously threatened” the defendant. The tension between the defendant and his victim escalated into a confrontation. Ultimately, the defendant began shooting at the victim because “Saupitty was driving in a threatening manner toward [defendant’s] car” although according to the victim “his car was still stopped when Bordeaux fired the first shots.” In any event, law enforcement found the victim’s car riddled with “bullet fragments” and various broken fixtures as well as shattered windows. Bordeaux, 570 F.3d at 1047. The defendant turned himself into authorities and was charged with assault charges.

On the appeal, the defendant claimed among other things that the trial judge erred by disallowing him to “introduce evidence of prior bad acts of Saupitty.” The circuit noted that the evidence that the defendant claimed should have been admitted concerned incidents where the victim was “involved in confrontations with others in the community, threatened others in the community, discussed and owned firearms, and used and sold narcotics.” The circuit rejected this claim, noting a variety of federal rules of evidence that touched on victim character evidence, including:

Type Evidence & Rule	Purpose of Evidence	Disposition
Prior acts of victim FRE 405(b)	To prove a victim acted in conformity with his character	Not admissible. United States v. Gregg, 451 F.3d 930, 935 (8th Cir. 2006) (exclusion of specific instances of victim’s violent conduct because it was not an essential element of defendant’s self defense claim))
Prior bad acts of the victim FRE 404(b)	To establish the defendant’s state of mind and the reasonableness of the defendant’s use of force	Admissible. United States v. Gregg, 451 F.3d 930, 935 (8th Cir. 2006) (admitting specific instances of victim’s prior violence in order to show a defendant’s state of mind is appropriate only if it is shown that defendant had knowledge of the prior violent incidents))
Reputation or opinion testimony regarding the “victim’s character” FRE 404(a)(2) and FRE 405(a)	If it is pertinent in a self-defense claim to show that the victim may have been the aggressor	Admissible. United States v. Taken Alive, 262 F.3d 711, 712, 714 (8th Cir. 2001) (“When a defendant raises a self-defense claim, reputation evidence of the victim’s violent character is relevant to show the victim as the proposed aggressor.”))

The circuit concluded that the trial judge “properly distinguished between inadmissible evidence of prior acts committed by Saupitty … that Bordeaux did not know about at the time of the shooting, and admissible evidence of acts and threats of which Bordeaux became aware prior to the shooting.” Bordeaux, 570 F.3d at 1050-51 (citing Gregg, 451 F.3d at 935 (evidence of victim’s prior bad acts “is only admissible to the extent a defendant establishes knowledge of such prior violent conduct at the time of the conduct underlying the offense charged”)).

In applying this standard, the trial court “correctly permitted Bordeaux to introduce reputation or opinion testimony pertinent to his self-defense claim” and the circuit commended “the district court on its thoughtful approach to these difficult evidentiary issues, and conclude that it did not abuse its discretion.” Even if the trial judge had erred in excluding evidence of the victim’s violent character, the circuit concluded this was harmless as the evidence was “cumulative character evidence” with only “a slight influence” on the trial outcome. Bordeaux, 570 F.3d at 1051.

The circuit cited the defendant’s testimony about “numerous prior acts and threats made by Saupitty of which Bordeaux was aware before the shooting,” as properly admitted under FRE 404(b). Specifically, that the defendant “was aware that Saupitty had previously run over someone else with a car and that Saupitty had swerved at another person with his car. He also testified that he was aware that Saupitty had pulled a gun on another person and put a gun in the person’s face. Additionally, he testified that he had heard that Saupitty had a gun and threatened to ‘do something’ to Bordeaux, that Saupitty would shoot Bordeaux if he had the chance, and that Saupitty had written a rap song ‘indicating that he was going to kill [Bordeaux].’” Bordeaux, 570 F.3d at 1050.

In addition, the trial judge also correctly allowed “defense witnesses to testify regarding specific acts or threats that Bordeaux was aware of prior to the shooting.” This included one witness who testified that “he told Bordeaux that Saupitty ‘said [he was] going to kick [Bordeaux’s] ass and stuff.’” Another witness “testified that he told Bordeaux that Saupitty threatened to ‘bust out [Bordeaux’s] mother’s windows and that if he had a chance he would bust him up or ... beat him up....’” Bordeaux, 570 F.3d at 1050.

Finally, the trial judge allowed witnesses to testify about the victim’s “reputation[ ] for violence as permitted by Rules 404(a)(2) and 405(a). Specifically, defense witnesses testified that Saupitty has a reputation of being a ‘thug,’ ‘a troublemaker,’ ‘trying to be a tough guy,’ and of being someone who ‘likes to go around and cause trouble.’” Bordeaux, 570 F.3d at 1050.

The circuit noted that the trial judge correctly declined to admit specific act evidence under FRE 405. The reason was that:

“Rule 405(b)’s allowance for the admissibility of specific instances of conduct only applies in cases where the ‘character or a trait of character of a person is an essential element of a charge, claim, or defense.’ Fed. R. Evid. 405(b). Thus, since ‘a victim’s violent character is not an essential element of ... the defense of self-defense,’ such prior acts testimony was not admissible in this case.”

Bordeaux, 570 F.3d at 1050 (citing Gregg, 451 F.3d at 934).

The Bordeaux case provides a recent example of how a trial court successfully considered different forms of victim prior acts or character evidence.