June, 2022

Tennessee: Trial Court Erred When It
Allowed Admission of Evidence of Witness’s
Prior Bad Acts Involving Drug Sales

Defendant was convicted of murder at a trial where the trial court allowed evidence of a defense witness’s prior bad acts involving drug sales. The Tennessee Supreme Court reversed holding that the evidence was not admissible for impeachment purposes where the state was attempting to prove that the witness was of bad character in order to show he was acting in conformity therewith when testifying and the error was not harmless where the improper impeachment evidence arguably sullied the reputations of multiple defense witnesses, and the evidence of guilt was not overwhelming. State v. Moon, ___ S.W.3d ___ (04-20-2022, WL 1160781).

Georgia: Trial Court Erred When It
Failed to Give Curative Instruction
After Prosecutor Gave Improper
Closing Argument Regarding
His Authority to Indict

Defendant was convicted of felony murder at a trial with an alleged accomplice witness. The trial court denied defendant’s request for a curative instruction after the prosecutor’s closing argument where he referred to the prosecutor’s role and authority in choosing whom to indict, his sworn duty not to indict those who had not committed a crime, and his sole authority to determine whom to indict. The Georgia Supreme Court reversed holding that the trial court’s error in not providing a curative instruction as to the prosecutor’s improper closing argument was not harmless where the evidence that the witness was an accomplice was strong, the witness’s credibility was significantly impeached by her prior inconsistent statements and immunity deal, and there was no corroborating evidence of defendant’s guilt. Caldwell v. Georgia, ___ S.E.2d ___ (05-03-2022, WL 1309044).

Fifth Circuit: District Court Erred
Where Jury Instructions Constructively
Amended the Information

Defendant was convicted by jury of possession of a firearm by a person who had previously been adjudicated as a “mental defective” or committed to a “mental institution.” Although defendant had previously been committed, the indictment alleged only that defendant had been adjudicated as a “mental defective.” The district court, however, instructed the jury it could find defendant guilty if he was adjudicated as a mental defective or if he had been committed. The Fifth Circuit reversed holding that the indictment was constructively amended in violation of defendant’s due process rights. This error affected defendant’s substantial rights where the jury received evidence that defendant was involuntarily hospitalized due to psychiatric condition, the trial court barred defendant from debating whether he was “adjudicated” or “committed” and explained that they were the same thing, and there was no evidence that defendant was “adjudicated” as a “mental defective.” The error also violated the rule that an indictment cannot be broadened by amendment except by grand jury and created added the risk that defendant’s conviction rested on divergent theories of guilt, undermining juror unanimity. United States v. Tucker, ___ F.4th ___ (CA 5, 05-09-2022, WL 1448750).

Connecticut: John Doe DNA
Arrest Warrant Application Failed to
Satisfy the Particularity Requirement of
the Fourth Amendment

Defendant entered a conditional plea to robbery charges. The Connecticut Supreme Court, in an issue of first impression, reversed for dismissal of the charges holding that a John Doe arrest warrant that identified the suspect based solely on a mix of partial DNA profiles from trace DNA taken from various pieces of crime scene evidence was void for lack of particularity under the Fourth Amendment and thus did not operate to toll the five-year limitations period where the DNA came from multiple sources that defendant might or might not have contributed to, which was something police had no way of knowing when they applied for the arrest warrant, the warrant affidavit did not alert the judicial authority who issued the warrant to the fact that the DNA profiles did not include the perpetrator’s unique DNA profile but, rather, were mixed partial profiles generated from touch DNA of at least four different individuals, three of whom had nothing to do with the crimes, and it did not apprise the judicial authority of the statistical probability that any person chosen at random from the general population would have those DNA profiles. State v. Police, ___ A.3d ___ (05-10-2022, WL 1446732).