Failure to object at trial to admission of the defendant’s unredacted DVD recording of his confession (including his statements that he had “aided and abetted” the robbery) only left appellate review under the plain error standard despite the lack of relevance and its unwarranted focus on propensity, in United States v. Lewis, 567 F.3d 322 (7th Cir. June 1, 2009) (No. 08-1854)
A recent Seventh Circuit case highlights the importance of raising the proper objection against evidence at trial. FRE 103(a)(1) provides the roadmap and specifies that an objection to an evidence decision must be “timely” and that this timely effort state the specific grounds for objection, if it is not apparent from the context. These requirements are rather exacting. A timely objection indicating the proper ground for error provides the trial court with a chance to cure any defect. The failure to lodge a timely trial objection results in plain error review under FRE 103(d), which is much more stringent that the traditional abuse of discretion review where a proper objection has been made. A recent Seventh Circuit case illustrates the perils of making an evidence objection that fails to articulate completely the grounds for excluding evidence.
In the case, defendant Lewis was "pegged” as one of three robbers of a Ft. Wayne, Indiana bank. The robbers left the bank with a “modest take of $17,049.92” that had been placed into a sack in which the bank had also hidden a GPS tracking device. As a result the police were able to track the sack and the robbers to a residence. After a consensual search, the police found three men that matched the description of the three robbers, as well as some of the money taken from the bank and the GPS device. One of those three men was the defendant Lewis. The other two defendants cooperated and testified at trial. During the defendant’s trial, an unredacted DVD of the defendant’s interrogation was admitted. As described by the circuit:
“Near the end [of the DVD], he [defendant] also said he ‘aided and abetted’ the robbery…. The trial counsel objected to the DVD's admission, claiming that this last statement was unduly prejudicial and improper opinion testimony by a lay witness. The court overruled the objection but informed the jury that Lewis was not a legal expert and instructed them that, by mentioning ‘aiding and abetting,’ Lewis was neither making a legal conclusion nor admitting to the crime charged. At the end of the proceedings, the court reassured the government that the jury could view the DVD during their deliberations ‘[i]f they so chose.’ Since the jury room was equipped with a DVD player, they could ‘review all of it or portions of it, however they select.’ After deliberating for a little less than four hours, the jury found Lewis guilty of robbing the bank.”Lewis, 567 F.3d at 326. The unredacted DVD of the interrogation, which was just over four hours long, had been admitted into evidence but was not played during the trial. On appeal, the defendant contended for the first time that the evidence should have been excluded under FRE 404(b) as unduly prejudicial other crimes evidence.
The circuit found it “clear” from the record that the defendant “raised no Rule 404(b) objection” to the prior bank robbery. The circuit quoted the exchange at trial in which the defendant claims he objected:
“Trial Counsel: Well, then the Court's ruling is that the DVD is going in?Lewis, 567 F.3d at 326.
“The Court: The only objection is to that statement that, yeah, I aided and abetted?
“Trial Counsel: Yes, I object to it on the grounds that it is opinion testimony by a lay witness. It's Joe Lewis's making a legal conclusion. And again, it's unduly prejudicial.”
The prior bank robbery evidence was reviewed for plain error and none was found. The aiding and abetting statement did not result in reversible error. The length of the jury’s deliberations were much less than the length of the tape and “it was unclear as to whether jury actually heard statements on recording and court instructed jury that defendant was not trained in law and that any statement about aiding and abetting should not be taken as legal conclusion or admission.” As explained by the circuit:
“The strange manner in which the DVD was admitted into the record precludes Lewis from successfully meeting this burden [of plain error]. There is no evidence in the record that the jury ever heard Lewis's statement about the prior robbery. No portions of the DVD were played for the jury. And although two officers testified about the interrogation, neither mentioned Lewis's prior conviction. The unredacted DVD -- rife with references to the prior conviction -- was nonetheless admitted into evidence, and the jury had access to a DVD player during its deliberation. But there is no way to know (from the record before us) if the jury actually watched the DVD, let alone the parts that include Lewis's admissions. The jury deliberated for a little less than four hours, which, after accounting for even a minimal amount of time for discussion, suggests that it did not view the whole thing even if it viewed any portion of it at all. Lewis must prove that the admission of the evidence resulted in an ‘actual miscarriage of justice,’ which is impossible since it's questionable whether the jury actually watched the DVD.”Lewis, 567 F.3d at 327.
After noting that the defendant would be unable to meet his burden of showing plain error in the admission of the DVD statements, the circuit explained that the lack of “plain” error did not mean there had been no error: The significance of the defendant’s failure to properly state his objection during trial to the receipt of the DVD evidence was noted by the circuit in explaining the lack of plain error:
“During oral argument here, the AUSA (who also tried the case) could not adequately explain why she declined to redact the DVD before seeking to admit it into evidence, or why she didn't simply play the important snippets of the interrogation during the trial. But the government's incomprehensible strategy does not excuse trial counsel's failure to object to such damaging evidence. While we cannot reverse based on this error, we leave open for another day the inquiry into trial counsel's effectiveness.”
If a timely objection had been made, a host of options may have been available to the trial court and the parties. The trial court could have assessed whether the FRE 404(b) factors had been met to admit the prior bank robbery for a proper purpose. A record could have been made of this decision. Alternatively, the trial court could have redacted the challenged statements before admitting the DVD. In the middle of trial, this may have been challenging but at least the issues could have been addressed, rather than being reviewed for the first time on appeal.
