Commercial Litigation and Arbitration

Spoliation — Bribery and Intimidation of Witness by Third Party Is Spoliation If Attributable to Party, and Evidence Not Precluded by Rule 404(b)

From Holloway v. Trombly, 2009 U.S. Dist. LEXIS 8439 (E.D. Mich. Feb. 3, 2009), a habeas corpus proceeding:

Barbee [the victim] said at trial that he was worried and scared and did not want to testify. He explained that on the morning of the preliminary examination, an unknown gunman appeared on his porch, although he did not know if the gunman was connected to the petitioner. However, despite this apparent intimidation, Barbee testified at the preliminary examination. Chris Johnson [a witness] did not honor his trial subpoena, so his preliminary examination testimony was admitted at trial. In that transcript, Johnson said that he was nervous about testifying. He refused to explain why, but when threatened with contempt, Johnson testified that a woman who identified herself as the petitioner's mother offered him $ 1,000. It is not clear from the record if this bribe was to stay away from court or to alter his testimony, but Johnson said that he did not accept the money.


Like the state court of appeals, this Court finds that even if the evidence of Barbee's threat and Johnson's attempted bribe was erroneously admitted, the error did not render the trial fundamentally unfair. If evidence of threats or bribes are connected to the defendant, such evidence becomes relevant to establish consciousness of guilt. See United States v. Blackwell, 459 F.3d 739, 768 (6th Cir. 2006) (noting that "spoliation evidence, including evidence that defendant attempted to bribe and threaten[] a witness, is admissible to show consciousness of guilt. . . . Furthermore, a district court is permitted to allow evidence of threats to a witness to be admitted even if the district court is not certain that such threats occurred") (citations omitted); United States v. Mendez-Ortiz, 810 F.2d 76, 79 (6th Cir. 1986) (holding that "[t]hough not listed in Rule 404(b), spoliation evidence, including evidence that defendant attempted to bribe and threatened a witness, is admissible to show consciousness of guilt. . . . The fact that defendant attempted to bribe and threaten an adverse witness indicates 'his consciousness that his case is a weak or unfounded one; and from that consciousness may be inferred the fact itself of the cause's lack of truth and merit'") (quoting II Wigmore, Evidence § 278 (Chadbourn Rev. 1979)). That arguably was the case with respect to witness Johnson. There apparently was never any effort by the State to connect the threat to Barbee to the petitioner, and that evidence likely was irrelevant. But if there was no connection to the petitioner, there is little likelihood that the jury used the evidence against the petitioner. Admission of that evidence, therefore, would not render the state trial fundamentally unfair. Habeas relief is not warranted on this claim.

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