Wednesday, March 8, 2017

Two Problems in One Appeal

State v. Scales, 2017 VT 6

By Elizabeth Kruska

Remember that time Prince changed his name to an unpronounceable symbol? Yeah, I remember. He did it because of issues with his recording contract, and you can read about that here. But, it didn’t change the fact that he was Prince and people still knew he was Prince, and people even referred to him as “The Artist Formerly Known As Prince.”

And lots of women! It’s still considered customary for women to change their names when they get married. Although, I told my mother when I was five I wasn’t doing that, and I stuck to it.

All this to say that sometimes people change their names, and that’s just how it goes. It doesn’t mean, necessarily, that someone’s being elusive, it just means they have a different name. Or sometimes people go by nicknames or just prefer to be called something other than the name on their birth certificate. And as someone named Elizabeth, there are probably no fewer than 27 different name-based nicknames I could have, not the least of which is Lizard-Breath, and which Every Elizabeth Ever (even this one and this one I assume) has been called.

Enter Lamar Scales, who is also known as Shahid Nur. It occurs to me as I write this that I don’t know what his current legal name is. I don’t want to call someone by the wrong name, but since the opinion is published under Scales, that’s how I’ll refer to him.

Anyway, Mr. Scales lived in Vermont back in 2004ish, and while he was here had a girlfriend. His girlfriend had a daughter, K.S., who would have been between ages four and six. They apparently split up, and Mr. Scales moved away to Pennsylvania. He went by the name Shahid Nur both in Vermont and Pennsylvania. K.S. knew that was one of his names.

In 2013, when K.S. was about twelve, K.S. was speaking to her mom on the phone. It came out that K.S. had gone to a basketball game instead of to her math tutoring session. During this phone call, K.S. said that Mr. Scales molested her many years before. She went to the police department the next day and gave an interview. After that interview the police got an arrest warrant, which was ultimately served upon Mr. Scales in Pennsylvania. He was extradited to Vermont and had a trial in his case in 2014.

When the Pennsylvania State Trooper went to Mr. Scales’s house, he knocked on the door, and upon it being answered, asked if he was Scales. He said something like, “I’m Shahid Nur” and showed a credit or debit card with the name. During the course of the conversation it came out that he had changed his name. That’s when the trooper arrested him on the Vermont warrant. It doesn’t appear that Mr. Scales knew anything about there being a warrant during the identifying part of the conversation.

Regardless, the State decided it wanted to admit the bit about the name to show Mr. Scales’s “consciousness of guilt.” Scales objected, but the court admitted it anyway. Scales also asked for a limiting instruction, but the judge didn’t want to give one.

On appeal, Scales argued that this was an error for two reasons. First of all, his saying his name was Shahid Nur had nothing to do with anything regarding the allegations, and the State couldn’t prove any sort of foundation to show that it showed a consciousness of guilt. Second, it was far too prejudicial. SCOV agreed and reversed.

So, there’s this notion of “consciousness of guilt.” Sometimes people behave in ways that are consistent with feeling guilty for having done something. This could be apologizing for conduct, or it could be doing something to avoid being detected, like running away or using a false name. This can be admitted so long as the moving party can tie it to the allegations at hand, and can show how it’s more probative than prejudicial. But even then courts are skeptical of admitting evidence for showing “consciousness of guilt.” It can be ambiguous, and requires some leaps of inference. This can get messy.

The fact that Scales gave a different name is ambiguous at best. There was some evidence that he had gone by the name Shahid Nur since at least 2011, if not before. And, K.S., the complaining witness, also testified she knew that to be a name he used. If Scales believed there was a problem, he probably would not have given a name he actually uses. If ever there was a time to use a phony name, this would probably have been it. But he didn’t.

Also, there was a lot of time between the time of the alleged acts and the time of the warrant. There was no evidence to suggest he ran away to Pennsylvania (and lived there and had police contacts for several years) in an effort to avoid possible prosecution for a Vermont crime. And when the officer initially spoke to him, he said nothing about investigating a crime for Vermont or any other state, he just asked if he was Lamar Scales. Last, there was no issue tied between his name and any element in the case. It’s not as if this was a mistaken identity case—everyone agreed the person they were looking for was the person present at trial.

The fact the trial court admitted this evidence to show that Mr. Scales was “conscious of guilt” was far too prejudicial in the grand scheme of things. SCOV determines that this was not a harmless error and reverses because of it.

Then there’s issue number two, which has to do with the State’s Attorney’s closing argument. First, she impugned the defendant’s case as “smoke and mirrors” which SCOV found was a mischaracterization, based on the evidence. This was not okay, but did not rise to the level of reversible error. But the State’s Attorney also told the jurors to put themselves in K.S.’s shoes and imagine how she felt. And that is something that you’re not supposed to do. Jurors are supposed to base verdicts on the evidence, not on how they feel about a particular party. Asking them to put themselves in a party or witness’s shoes introduces bias.

SCOV appears not to have a lot of patience for inflammatory closing arguments, and is quick to cite to several other cases where they’ve tackled this issue.

So, because of the evidentiary error and the closing argument error, SCOV reverses.

The footnote here is that Mr. Scales’s case, shortly after being reversed, resolved with credit for time served.

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