Federal Evidence Review

Affirming grant of writ of habeas corpus to a state prisoner serving a life sentence after being convicted by the state court for the murder of her husband; the state trial court admitted a suicide note by the defendant's lover, who killed the defendant's husband for the defendant and that note stated the defendant “was involved and helped set ... up” the murder of her husband; because this note was testimonial hearsay, its admission violated the defendant's Sixth Amendment Right to Confrontation, in Miller v. Stovall, 608 F.3d 913 (6th Cir. June 22, 2010) (No. 08-2267)

In attempting to set forth some of the limitations of the Confrontation Clause, the Supreme Court in Crawford v. Washington suggested three “formulations” of what constitutes a “testimonial” hearsay statement that should be excluded under the Confrontation Clause. In a recent case, the Sixth Circuit had occasion to consider the applicability of these tests. The circuit concluded that one of those formulations was more robust in its application and clearly demonstrated the testimonial nature of the note at issue in the defendant's appeal.

In the Sixth Circuit case, defendant Sharee Miller was tried and convicted of second-degree murder and conspiracy to commit first-degree murder of her husband, Bruce Miller. Allegedly, the defendant conspired with her lover, a former police officer named Jerry Cassaday, to have Bruce Miller killed. According to the Circuit, the relationship of the defendant and Cassady seemed to be rather attenuated as they often were not in each other's physical presence. But they often conducted their affair in instant messages, where the defendant told Cassady “tall tales … that her husband abused her and that his mob connections made it impossible for her to get help. Twice, she said, she had become pregnant by Cassaday, once with twins. (In fact, Miller had a tubal ligation in 1995.) She claimed that [her husband] Bruce forced miscarriages both times, first by beating her and then by raping her and hiring someone else to rape her.” Miller, 608 F.3d at 916.

Ultimately the defendant's husband was found “dead in his office … having been shot at close range with a shotgun....” In the next month, the defendant “stopped seeing Cassaday, rebuffed his proposals of marriage, and started dating someone else. Cassaday grew more and more depressed, although the reasons appear mixed: he had long struggled with alcohol and drugs, he had recently been arrested twice and lost custody of his son, and his family feared he was suicidal. On February 11, 2000, Cassaday shot and killed himself in his bedroom.” Miller, 608 F.3d at 917.

Suspicion of Cassady and the defendant for Miller's murder solidified when, in clearing Cassady's room after his suicide, Cassady's brother found a suicide note, AOL instant messages, and emails between Cassady and defendant Miller. These materials disclosed Miller's role in prompting Cassady to kill her husband. The suicide note was a letter Cassady wrote to his parents in which he:

explained his relationship with Miller, the duo's plot to kill Bruce, and Cassaday's decision to commit suicide rather than go to prison. It stated, "I drove there and killed him. Sharee was involved and helped set it up. I have all the proof and I'm sending it to the police. She will get what is coming." Cassaday wrote that Miller had manipulated him and that "she is soon to learn that she can't do that to people.”

Miller, 608 F.3d at 917 (citations to record omitted). At trial, the court admitted this suicide note as well as the other documentary evidence and the defendant was convicted. She eventually sought a federal writ of habeas corpus, contending that “the suicide note was testimonial, and its use violated Miller's Sixth Amendment rights.” Miller, 608 F.3d at 925.

The circuit noted that under Crawford a court could apply three formulations of whether the evidence was testimonial. According to the circuit, these formulations involved:

[ (1) ] "ex parte in-court testimony or its functional equivalent-that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially,"; [ (2) ] "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," ; [ (3) ] "statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.”

Miller, 608 F.3d at 933 (quoting Crawford v. Washington, 541 U.S. 36, 51-52 (2004) (citations omitted)).

Although the circuit agreed the suicide note was testimonial, it did not accept the analysis of the district court in reaching this conclusion. The circuit cautioned that it had formulated its own test to apply to the question. That test the circuit had adopted was “for applying the Supreme Court's ruling in Crawford” and it had been articulated in the case of United States v. Cromer, 389 F.3d 662, 675 (6th Cir. 2004) (“The proper inquiry … is whether the declarant intends to bear testimony against the accused. That intent, in turn, may be determined by querying whether a reasonable person in the declarant's position would anticipate his statement being used against the accused in investigating and prosecuting the crime.”) Instead of relying on Cromer, the district court had “concluded that the suicide note was testimonial based on the second and third formulations suggested in Crawford: it was a confession, and it was made in circumstances in which an 'objective witness' would expect it to be used at trial. ” Miller, __ F.3d at __ .

While both approaches ended with the same conclusion that the suicide note was testimonial, the circuit found the approach in Cromer more robust, particularly because:

the State argues that Crawford requires confessions to be 'formalized,' that is, made to the police or some other state official, to be testimonial. Miller responds that the fact that the note was written by a former police officer, typed, signed, and placed in a sealed envelope made it formalized enough. The parties' debate demonstrates why the Cromer standard is more useful than a bright-line rule about confessions: the question of how formal a confession must be to be testimonial turns on what level of formality would lead a reasonable person to expect the confession to be used in investigation or prosecution. Thus, we decline to decide the confession issue and move directly to the district court's reliance on the third Crawford formulation, which is roughly the same as the Cromer standard.

Miller, 608 F.3d at 924.

In contrast, the circuit noted that the state offered three reasons why application of Cromer might not be appropriate to the case:

“First, the State argues that the suicide note was found outside rather than inside the briefcase, indicating that Cassaday did not intend it to be part of the materials that would be opened by his lawyer and turned over to the police. Second, the State contends that Cassaday's statement that he was sending “all the proof” to the police most likely refers to the materials in the briefcase and indicates that he did not also intend the police to obtain the suicide note. And third, the State asserts that the note is merely a son's explanation to his parents of why he took his own life, not a set of statements that Cassaday may have anticipated would be used at trial.”

Miller, __ F.3d at __ .

The circuit reaffirmed the application of “the Cromer reasonable-expectation test” and criticized use of a test that depended:

“on inferences about Cassaday's actual intent based on the physical evidence. It is possible that, by leaving the suicide note outside the briefcase, Cassaday did not intend that the note reach the authorities. But Cassaday placed the suicide note directly on top of the briefcase, and it is equally possible that he saw the materials collectively as a parcel that could be used against Miller. Cassaday also had an interest in preserving the impression, accurate or not, that he had assembled the materials in the briefcase in November, just before the murder; he may have felt that adding the suicide note to the briefcase three months later could call into question the integrity of its other contents. Furthermore, the fact that Cassaday indicated that he was sending other materials to the police does not rule out that he hoped that the note would reach them as well. Nor does the fact that the note's contents are directed to his mother and father contradict an intent that the police ultimately obtain access to the note. Human beings often act with multiple motives. Cassaday may have intended the letter both as an apology to his parents and as an indictment from the grave of his alleged co-conspirator. In that case, it would be reasonable to leave the letter outside the briefcase so that his parents would receive it, and receive it from him, rather than from investigators only after it had been logged into evidence.”

[I]t is difficult to divine actual intent in this case. Under these circumstances, we are on more stable ground applying Cromer's reasonable-expectation test. The suicide note includes incriminating information that no other evidence provides: whereas the IMs merely attest to the planning, the note confesses that Cassaday, not a third party, actually completed the murder. Any reasonable person, particularly one with Cassaday's training, who prepared the briefcase would anticipate the prosecutorial importance of a letter declaring 'I drove there and killed him' and 'Sharee was involved and helped set it up.' Clearly, the suicide note would be passed on to law enforcement.

Miller, 608 F.3d at 926 (omitting footnote and citations).

Although the defendant's conviction was based on more than admission of the testimonial hearsay note by Cassady, the circuit declined to find the error harmless and so it affirmed the grant of the writ. “[T]he State waived any harmless error argument,” noted the circuit, because it failed “to make the argument in its briefing as to the suicide note.” Miller, 608 F.3d at 926.