US CASES CHARACTER AND HABIT 4.

Habit
A) PEOPLE VS. DARTON, 289 A.D. 2D 711, 13 DECEMBER 2001 -CLAIRE

DOCTRINE Evidence of habit is generally admissible to demonstrate specific conduct on a particular occasion. FACTS Paul Coppola, owned an automotive shop in Rotterdam, Schenectady County. On May 18, 1995, Coppola was murdered and robbed at his shop. Earlier in the evening, Coppola had been waiting for unidentified individuals to arrive, in order to receive payment on a loan. Copollas friend James Gardner, phoned him three times between 6:00 to 7:00 pm that night, and told Gardner that the people he was waiting for were near the shop. Gardner had been waiting for Coppola to pick him up as to head to an auto auction in Manheim, Pennsylvania the next day. When Coppolas body was discovered only 89 cents was found on Coppola's person, his overnight bag was missing, and his briefcase had been hacked open with a sharp instrument. Gardner and Coppola's wife also testified that Coppola had a habit of carrying large amounts of cash on his person, particularly when on a business trip. [Court did not explain why accused Christopher D'Arton was suspected, or the other evidence used to convict him..] ISSUE (1) Whether the County Court erred in admitting testimony on Coppolas habit of carrying money on his person. (2) Whether County Court erred in receiving evidence of the three telephone conversations between Gardner and Coppola. HELD (1) NO. It has long been the rule that evidence of habit is generally admissible to demonstrate specific conduct on a particular occasion.

Court held that the offered testimony was sufficient to establish a deliberate and repetitive practice sufficient to allow the inference. Here, Coppolas wife testified that he would carry between $500 AND $1,000 in cash at all times, and would place bills of different denominations in his pants pockets. Gardner testified that Coppola would carry $400 to $500 in spending money, and $500-$1,500 on business trips. (2) YES. [This issue is not important.] Under the state of mind hearsay doctrine, of statements made by declarant of an intended future act, there must be independent evidence of reliability. That does not exist here. However, there was other evidence that established defendants motive and commission of the crime. Further, absence of proof that Coppola received the payment of the loan was not necessary to establish motive for the crime. PRIVILEGES 1. Marital Communication Privilege a) U.S. v. Montgomery (2004) FACTS: Mail fraud case. Husband & wife and husbands sister oversaw rentals of vacation homes of clients. They later began an illegal practice of renting out units without recording the fact of renting it or allowing guests to stay for free, or staying in the units themselves without recording the stay and paying rent. Wife earlier did not want to participate, and said so in a letter and other correspondence to Husband, left in their home. Authorities later recovered the letter when they conducted search and seizure operations in Sun Village Realty office and the Montgomerys home. Husband contended that the correspondence and conversation with wife were covered by marital privilege rule. HELD: That the letter implored Montgomery to communicate the substance of her concerns to OConner does not render the letter itself non-confidential. Government failed to prove its placement on the kitchen counter was an indication that it was not intended to be confidential.

Either spouse may invoke this marital communication privilege; since allowing one to disclose one side of a conversation would eviscerate the privilege. The joint criminal activity exception does not apply as Mrs. M was not a participant in the crime at the time she made the communication. It is still privileged. As the letter and conversation was circumstantial proof of Mr. Ms knowledge of his sisters criminal activities, the fact that the letter is inadmissible as evidence renders the contention that Mr. M had knowledge of the activity without proof. Montgomery not guilty. Judgment reversed and remanded. As to OConnner, conviction is affirmed. Her contention that the mailing needs to be an essential element of the scheme is incorrect. Mailing need only be a step in the scheme, not an essential element of the scheme or the scheme itself. 2. Adverse Spousal Testimony Privilege
B) UNITED STATES VS. LONG, 917 F.2D 691, 19 OCTOBER 1990 -CLAIRE

DOCTRINE The very fact of a person waiving the marital privilege and testifying against his or her spouse is itself highly damaging whether or not the testimony supports the government's case or particular counts in only a marginal way. FACTS John F. Long and John S. Mahoney, were Teamsters officials in New York City who allegedly misused their offices for private profits. Trial Court found them guilty of violating the Racketeer Influenced and Corrupt Organizations Act (RICO) and committing other substantive crimes connected with or arising out of the racketeering activity - including extortion, filing false tax returns, perjury and false statements under oath. [There are eight counts in total, this deals with only two of the alleged crimes.] During trial, Longs wife, Olga, had been subpoenaed and compelled to testify before the court, in exchange for immunity from prosecution. Her testimony related to Parness extortion charge and false income tax filing charges. Her husband had allegedly extorted money from maintenance contractor Parness in exchange for help securing a contract with UPS. Parness had made it appear that Mrs. Long was an employee of the company and coursed payments through her. Long had filed ITR pursuant to the alleged job to cover the scheme. The judge had instructed the jury with the false notion that Mrs. Long had volunteered to testify of her own free will and she could have freely invoked the

marital privilege. Despite knowing of the cooperation agreement with the government, the judge instructed the jury to disregard it and the implication that Mrs. Long had been compelled to testify to avoid prosecution and possible incarceration. Defendant raised this issue in court, which was held as irrelevant, and raised it in present appeal. ISSUE Whether the instructions to the jury as to Mrs Longs testimony was erroneous. HELD YES. Although the government contends on appeal that Mrs. Long's testimony was merely cumulative, the substance or credibility of her testimony is only a minor part of the issue. The very fact of a person waiving the marital privilege and testifying against his or her spouse is itself highly damaging whether or not the testimony supports the government's case or particular counts in only a marginal way. Pains should have been taken to enable the jury to evaluate her appearance fairly. The instruction given had the opposite effect and affected all the counts against Long. OTHER ISSUES AND POINTS (1) There was no violation of the RICO law. Instructions to jury did not fit the requirements of the law. Under the RICO law, the government must prove that two racketeering acts were related to each other (horizontal relatedness) as well as related to the enterprise (vertical relatedness) and that they resulted in or posed a threat of continuity of the criminal activity. Here, judge told the jury that they only needed to find that the acts be in some way related to the activities of the enterprise. Further, jurisprudence holds that the requisite RICO pattern could not be proven simply by showing an offense and a subsequent denial of that offense alleged as an obstruction of justice. The obstructions might easily have been viewed as quintessentially solo acts of self-preservation rather than as part of, and related to, the extortion and kickback schemes. (2) Admission of expert testimony on organized crime was improper. F.B.I. Special Agent James Kossler testimony on the La Cosa Nostra family in NY an New Jersey and their hierarchy did not assist the jury to understand the evidence or to determine a fact in issue. It was merely background information. The fact that Rotondo (one of the other accused) had contacts in organized labor as a result of his position in the DeCavalcante crime family and demanded a fee for his services was relevant background to explain to the jury how and why he was able to facilitate

Hyman's various schemes by introducing him to Long. Hyman, however, could have testified to that fact, and there was no need to call an expert to explain the hierarchical structure of organized crime families, their jargon, the various unrelated criminal activities in which they engage, and so forth. (3) Expert testimony was prejudicial. In addition to being only marginally relevant, Agent Kossler's extensive descriptions of organized crime families were substantially prejudicial. Although Rotondo played only an introductory role in facilitating Hyman's relationship with Long, calling Agent Kossler as the first prosecution witness had the effect of implicating Long and Mahoney as part of a much larger criminal organization and associating them with all of the sinister aspects and activities of that criminal organization. The fact that the agent did not testify about the particular facts of the instant matter does not reduce the prejudice. This sort of generalized informationby definition not directly related to the case at handwas quite prejudicial in a case with so thin a nexus to organized crime. For example, because it was generalized, crossexamination could not blunt its prejudicial effect. The evidence thus clearly had an adverse impact beyond tending to prove the fact or issue that justified its admission into evidence. (4) Hypothetical questioning of the character witnesses was prejudicial. The district court permitted and itself pursued questions to several defense character witnesses that required the witnesses to assume the guilt of the appellants, was prejudicial.

PHILIPPINE CASES XVII. DYING DECLARATION 1. People v. Tabarnero, G.R. No. 168169, February 24, 2010 Claire DOCTRINE A dying declaration is entitled to the highest credence, for no person who knows of his impending death would make a careless or false accusation. When a person is at the point of death, every motive of falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. FACTS Father and son Alberto and Gary Tabarnero were charged and convicted with the murder of Ernesto Canatoy by the Bulacan RTC. The Tabarneros had allegedly stabbed Ernesto with a fan knife several times, ultimately resulting in his death.

Gary was the sweetheart of Ernestos stepdaughter Mary Jane Acibar, and had lived with her family until sometime in 1999. This is where the story diverges. According to the defendants, Gary and Mary Jane were live-in partners. Gary left the house shortly before the incident, after a misunderstanding occurred with Ernesto when the latter stopped the planned marriage between Gary and his pregnant partner. At 11:40pm on October 23, 1999 Gary was overcome with emotion over the separation, went to Ernestos house and began shouting and pleading with him what had he done wrong and that he loved Mary Jane. Ernesto had come outside and struck him with a lead pipe, missed, was embraced by Gary, and then Ernesto strangled Gary. Gary felt a knife tucked at Ernestos back, and overcome, Gary took the blade and stabbed Ernesto. After Ernesto fell to the ground, Alberto arrived and asked his son what happened, to which Ernesto replied that he had stabbed Ernesto and that they should leave. According to the plaintiffs, Gary just lived with them, they did not know he had no relationship with Mary Jane, and upon finding this out Ernesto turned his away from their home. On that night, Emerito Acibar, Mary Janes brother, had heard the shouting and ignored it. He later heard a kalabog and Ernestos shouts for help. He saw four assailants stabbing the victim several meters from the door. The assailants fled after he shouted for help. He brought his stepfather to the hospital and then reported the incident to the police. SP02 Morales joined him in the hospital.While in the presence of two doctors on duty, SPO2 Morales asked Ernesto who stabbed him. Ernesto answered that the assailants were the father and son, Gary and Alberto Tabarnero from Longos, Bulacan. The Tabernos appealed the case to the SC, which remanded it to the CA, which affirmed the case. Case now in SC in this present appeal. ISSUE (1) Whether any justifying or mitigating circumstance can be appreciated in favor of Gary. (2) Whether Alberto is guilty as principal. (3) Whether the killing was qualified by treachery. (4) Whether the amount of damages is proper. HELD (1) NO. Neither circumstance of self-defense or incomplete self-defense can be appreciated as the element of unlawful aggression is missing in this case and there was no other independent evidence introduced aside from the testimony of the accused. Unlawful aggression is an indispensable requirement in a claim of self-defense or incomplete self-defense. Nor can it be said that the accused

voluntarily surrendered to the police, since he surrendered more than six months after the crime was committed and did so only to clear his name. Nor can voluntary surrender be considered mitigating as there was a delay of six months before surrendering, negating the spontaneity of the act. Jurisprudence holds that the pending warrant for the arrest of the accused and the latters surrender more than one year after the incident were considered by the Court as damaging to the plea. Gary surrendered almost one year and six months from the October 23, 1999 incident, and almost one year and one month from the issuance of the warrant of arrest against him on March 27, 2000. (2) YES. Eyewitness testimony of Emercito relayed in court and the dying declaration of the victim, relayed to SP02 Morales, pinpointed him as one of the assailants who overpowered and stabbed the victim. Ernesto categorically told SP02 Morales that it was the father and son, Gary and Alberto Tabarnero from Longos, Bulacan who stabbed him. While Ernesto was not able to testify in court, his statement is considered admissible under Section 37, Rule 130 of the Rules of Court as a dying declaration, one of the exceptions to the hearsay rule. [In order to be accepted, it] must be shown that a dying declaration was made under a realization by the decedent that his demise or at least, its imminence -- not so much the rapid eventuation of death -- is at hand. This may be proven by the statement of the deceased himself or it may be inferred from the nature and extent of the decedents wounds, or other relevant circumstances. In the case at bar, Ernesto had nine stab wounds which caused his death within the next 48 hours. At the time he uttered his statement accusing Gary and Alberto of stabbing him, his body was already very rapidly deteriorating, as shown by his inability to speak and write towards the end of the questioning. A dying declaration is entitled to the highest credence, for no person who knows of his impending death would make a careless or false accusation. When a person is at the point of death, every motive of falsehood is silenced and the mind is induced by the most powerful consideration to speak the truth. It is hard to fathom that Ernesto, very weak as he was and with his body already manifesting an impending demise, would summon every remaining strength he had just to lie about his true assailants, whom he obviously would want to bring to justice. (3) YES. Though Emercito did not see the first stab to the victim, treachery was amply demonstrated by the restraint upon Ernesto, which effectively rendered him defenseless and unable to effectively repel, much less evade, the assault. The court cited several cases upholding this doctrine. Even

assuming there was no treachery, there was abuse of superior strength qualifying the killing to murder. There was abuse of superior strength in the act of the accused in stabbing Ernesto while two persons were holding him, it clearly shows the deliberate use of excessive force out of proportion to the defense available to the person attacked. (4) YES, in part. Actual damages of P55,600 was proper even without proof of receipts is proper as the defense admitted the expense; Civil indemnity ex delicto should be raised to P75,000 in light of Article 2206 and recent jurisprudence; exemplary damages (P25,000; Article 2230) and moral damages (P50,000) were proper.

XXVI PUBLIC DOCUMENTS 1. Suerte-Felipe v. People, G.R. No. 170974, March 3, 2008 Claire

XXVII FORMAL OFFER OF EVIDENCE 1. Atlas Consolidated v. CIR, G.R. No. 159490, February 18, 2008 Claire

2. Dizon v. Court of Appeals, G.R. No. 140944, April 30, 2008 -Claire