Probation officer shouldn’t testify

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A defendant’s prior conviction can be unfairly prejudicial even if the jury only learns of it through inference.

The 7th Circuit held on Nov. 5 that it violated Rule 403 to permit a defendant’s probation agent to testify that she was an agent, because the jury would assume the defendant had prior convictions.

“[W]hile there was not an explicit statement that [the defendant] was previously convicted of a crime, most jurors would likely understand that a person on probation has previously been convicted of a crime,” Judge Daniel Manion wrote for the court.

Two banks in Madison were robbed in 2008. Moments before the first robbery, someone called the bank, inquiring when it opened.

After the second robbery, one of the participants, Michael Simmons, was arrested, and he ultimately cooperated with the prosecution, as did a second participant, Lamar Liggons.

A third, Jarrell Murray, pleaded guilty, but did not cooperate.

The final two, Prince P. Beck and Corey J. Thomas, went to trial.

At trial, Mayla King testified that she owned the phone used to call the bank before the first robbery, but that Beck was the primary user.

Beck’s probation officer also testified that she used the same phone number that was used to call the bank in order to contact Beck.

Beck objected to this testimony, but the district court admitted it.

The district court also barred the defendants from questioning Simmons about his gang connections.

The jury found the defendants guilty, and they appealed these two evidentiary rulings. The 7th Circuit held the rulings were erroneous, but found the errors to be harmless.

Probation

The court acknowledged that the testimony of Beck’s probation officer was relevant to establish Beck’s identity as the one who made the suspicious phone call.

But the court found its probative value was minimal, given King’s testimony that also tied Beck to the phone.

The court also found that whatever probative value the testimony had was substantially outweighed by the unfair prejudice associated with the jury learning Beck was on probation.

“[E]ven if it was necessary to have the probation officer testify that Beck used that phone, the court should not have allowed her to identify herself as a probation officer,” the court concluded.

Gang affiliation

The court also held that the trial court erred in not permitting the defendants to inquire into Simmons’ gang affiliations.

The purpose behind the questioning, the defense attorneys explained at trial, was to suggest that Simmons’ allegiance to the gang, and fear of retribution, gave him a motive to protect the real perpetrators, and blame the defendants.

The court concluded that this was a good-faith inquiry that the defendants should have been permitted to explore during cross-examination, and the district court erred in not allowing it. The court further found that the defense was not trying to present inadmissible character evidence contrary to Rule 404(b).

“[T]he questions were not aimed at showing that because Simmons is a gang member, he lies generally and he was doing so here,” the court concluded. “Instead, it was offered to show why he was lying: that he was covering up for the real robbers … who were higher-ranking gang members.”

Nevertheless, the court affirmed the convictions, concluding that both errors were harmless, because the physical evidence established that Beck and Thomas were involved in the robbery.

Analysis

The analysis employed by the 7th Circuit in Beck is very similar to that required by Wisconsin state court precedents. Curiously, though, a Nov. 10 opinion from the Wisconsin Court of Appeals fails to even cite those precedents.

In two cases from 1996, the Court of Appeals addressed the same issue as in Beck — whether it is unduly prejudicial to inform the jury that the defendant has a parole or probation officer, because the jury will infer that the defendant has prior convictions — and the court’s methodology was similar.

In State v. Ingram, 204 Wis.2d 177, 554 N.W.2d 833 (Ct.App.1996), the defendant’s parole officer testified that the defendant was a high-risk parolee not permitted to drink any alcohol.

The court agreed with Ingram that the jury could draw prejudicial inferences because of his parole status, but found that this prejudice did not substantially outweigh its relevance: “Knowledge about the background of Ingram’s parole may have inferentially suggested to the jury that Ingram was a dangerous person, but it had greater than equal probative value to the State’s case.” Ingram, 204 Wis.2d at 184.

Nevertheless, the court cautioned that its holding “is not a signal that we will generally approve of allowing a defendant’s parole agent to testify. Although the State needed it here, we cannot imagine too many other instances where informing the jury about the defendant’s current probation or parole status, or about the defendant’s success under supervision, could be more relevant than prejudicial.” Id., at 190.

In State v. Kourtidias, 206 Wis.2d 574, 557 N.W.2d 858 (Ct.App.1996), the same issue was presented, and the court employed the same methodology. In contrast to Ingram, the Court of Appeals held that the evidence should not have been admitted.

The State presented evidence that the defendant was under parole supervision as a high risk sex offender and was not allowed to have contact with minors.

Citing Ingram, The court announced the following legal standard: “evidence of a defendant’s probation or parole status and relevant conditions thereof are admissible in the proper exercise of judicial discretion if such evidence demonstrates the motive for, or otherwise explains, the defendant’s alleged criminal conduct. Absent that scenario, such evidence is inadmissible because the nexus between the conduct and the potential penalty is too tenuous.” Kourtidias, 206 Wis.2d at 585.

Quoting the cautioning language in Ingram that such evidence will rarely be admissible, the court held the parole agent’s testimony was unduly prejudicial, because there was no nexus between his parole and the crime: “Kourtidias obviously did not attempt to entice Nicole into his vehicle because he was on parole or because he was trying to avoid the consequences of parole revocation.”

Id.

Nevertheless, as in the Beck case, the court ultimately found the error was harmless.

But despite these precedents, the Court of Appeals affirmed admission of a defendant’s probation status without citing either, in State v. Fisher, No. 2009AP2557-CR (Nov. 10, 2010)(unpublished).

Fisher was charged with first-degree recklessly endangering safety while using a dangerous weapon. Fisher testified that, in the days after the stabbing, he tried on two occasions to surrender to police, but was turned away.

On cross-examination, the prosecutor was permitted to elicit testimony that he had been told to meet a police officer at the office of his probation officer, but did not show up.

Without citation to either Ingram, Kourtidias, or Rule 904.03, the court held this line of cross-examination permissible, because Fisher had opened the door to the evidence by seeking to portray himself as cooperative.

The court explained, “Fisher’s direct testimony implied that if he went to the police — twice — he must be innocent. We agree with the trial court that the questions on cross-examination were relevant to rebut that implication by showing that he failed to report as directed to someone with authority over him.”

The procedural posture in Fisher differs from Beck, Ingram, and Kourtidias, in that his probation status came in during his cross-examination of him, rather than through the State’s case-in-chief.

Thus, admission of the evidence would likely be harmless, even if it were erroneous. Because Fisher testified in his own defense, the State was able to permissibly elicit on cross-examination that he had two prior criminal convictions anyway.

But harmless error notwithstanding, had the court employed the analysis used in the other cases, it would have been compelled to hold that the manner of the cross-examination was improper.

Even if Fisher did open the door to the question, it still should have been phrased differently. The prosecutor could have rebutted Fisher’s implication that he was cooperative without mentioning the probation officer.

The prosecutor could have simply asked, “You were directed to meet a police officer at such and such time and place, but you failed to show, didn’t you?”

Phrasing the question this way would just as effectively rebut the inference that Fisher was cooperative, without unnecessarily implying that he had prior criminal convictions, in the same way that the prosecutor in Beck could have testified that Beck used a particular phone without identifying herself as a probation officer.

What the Court Held

Case: U.S. v. Beck, Nos. 09-2337 & 09-2438 (PDF)

Issues: Was it error to permit a witness to testify that she was a probation officer?

Was it error to not allow the defendants to inquire into a witness’ gang affiliation?

Holdings: Yes. The jury would infer that the defendant had a prior conviction.

Yes. The witness’ gang affiliation provided a tenable reason to lie.

David Ziemer can be reached at [email protected].