News You Can Use: Tenth Circuit Reverses First Degree Murder Conviction (and reaffirms important principles of appellate law along the way)

The Tenth Circuit reversed appellant Brian Tony’s first-degree murder conviction this week and remanded the case for a new trial.  Not only is this an amazing defense victory with an incredible remedy (kudos to AFPD Josh Lee in Denver), but the relatively short appellate decision is packed with important information, particularly for appellate lawyers. This decision also should send a clear message to trial courts: take extra care before excluding defense evidence.

FACTS: Mr. Tony’s defense at trial was that he acted in self-defense or at least without premeditation.  It was a plausible defense because the killing occurred during a knock-down, drag-out fight.  In support of this defense, Mr. Tony wanted to put on evidence that the decedent was high on methamphetamine at the time of the killing.  His theory of relevance was straightforward: meth makes people behave erratically- they can become crazy and violent- which supported the notion that the decedent was the first aggressor.  The trial judge, however, excluded the methamphetamine evidence on the ground that the defense had not proffered a proper, non-propensity purpose under Federal Rule 404(b).

HOLDING: The judge erred in excluding the defense evidence because defense counsel had proffered a proper purpose. But there are lots of other interesting points of law involving appellate procedure that the Tenth Circuit discusses in reaching its holding.

KEY TAKEAWAYS

Use this case if you are looking for law on the scope of permissible affirmance on alternative grounds

The government asked the court of appeals to affirm the conviction on the alternative ground that the meth evidence wasn’t relevant without expert testimony that (1) the decedent was actually high at the time of the fight and (2) meth makes people violent.  The defense responded with a legal argument: because any decision on evidentiary relevance is committed to the district court’s (not the appellate court’s) discretion, the Tenth Circuit could affirm on that ground only if it would be an abuse of the district court’s discretion to rule for the defense on the relevance issue.  This principle has long existed in the Tenth Circuit’s case law, but it was buried by dozens of cases that ignored it and affirmed evidentiary rulings on alternative grounds with no discussion of the discretionary nature of the decision.  This principle is now revived.

Use this case if you are looking to police the government’s burden of proof on harmless error

The government argued that excluding the meth evidence was harmless because the evidence at trial overwhelmingly established Mr. Tony had not acted in self-defense. On this point, the court first clarified that the government bears the burden of demonstrating that a preserved, non-constitutional error is harmless.  While the government had argued that the error was harmless with respect to self-defense, it had not argued that it was harmless with respect to the lack of premeditation.  The government’s failure to make this argument operated as a waiver.  This too is an important point of law – that the government waives harmless error by not arguing it.

Use this case if you are looking for law on why a new trial is the appropriate remedy for evidentiary error

The government argued that instead of remanding for a new trial, the circuit should have remanded the case to the district court to make findings on whether it would have excluded the meth evidence under Rule 403 as substantially more prejudicial than probative.  The court said no for two reasons.  The first was the trial had happened two years earlier, which would make it hard for the district court to put itself back in the position of making pretrial rulings.  The second reason was that remanding for findings would give the district court, eager to avoid a retrial, “an overwhelming temptation to rationalize the exclusion of the meth evidence under Rule 403.”  Op. at 11.  This is another principle that existed but was moribund in the circuit’s case law until this case reaffirmed it.