was admissible under FRE 404(b), and any prejudice would be mitigated by a limiting instruction. Cummings opposed, saying the testimony should be excluded under FRE 403 because the risk of undue prejudice far outweighed any probative value but also requesting a limiting instruction if the testimony were allowed. The district court granted the government’s motion subject to an appropriate limiting instruction. During the trial, Volcy testified that Cummings never said anything to him directly. He was next asked if Cummings said anything indirectly, at which point a defense objection was overruled. Volcy was then allowed to testify that Cummings “said stuff to people around me,” calling him a rat bastard and saying he would shoot Volcy in the face. No request for a limiting instruction was made and none was given. On appeal, Cummings argued that the district court erred by admitting hearsay evidence of the death threat he allegedly made against Volcy. The Second Circuit agreed, finding that Cummings did not forfeit his claim by failing to object, the district court abused its discretion by allowing the testimony to be admitted, and the error was not harmless. The Court noted that FRE 103 says an objection must state the specific ground relied upon unless it is apparent from the context. So even though the defense did not specify the basis for its objection to the question of whether the statements were made “indirectly” to Volcy, it was still sufficient to identify the issue and give the district court a chance to correct it. Rejecting the government’s argument that there was no hearsay problem because the testimony was “clearly
understood to mean that Cummings made the threats to people in Volcy’s presence,’ the Court found that even viewing the evidence in the light most favorable to the government, such an inference was not supported by the plain language in the record. Because Volcy testified that things were said to people around him and not directly to him, the Court saw a double hearsay problem. Under FRE 805, hearsay within hearsay is admissible if each part of the combined statement falls within some exception to the rule. While any statement Cummings made to a third-party could be admitted as evidence of consciousness of guilt or as a party admission, any statement that third-party made to Volcy relaying the threat would only be probative if admitted for the truth of the matter asserted – that the third-party actually heard Cummings make the threat. Thus, it was hearsay not subject to any exception. The Court then explained that admission of death threat evidence is particularly “toxic” because of the potential prejudice that may result. In Cummings’s case, the error was not harmless for several reasons: the evidence was so similar to the charged offenses that the jury may have believed it should convict Cummings based on a belief that he was willing to murder Volcy; the lack of a limiting instruction created an undue risk that the jury would consider the testimony as evidence of murderous propensity and not consciousness of guilt; the government in summation argued that the death threat was “completely devastating proof of [Cummings’s] crimes,” which invited the jury to convict on an improper purpose; the testimony presented all of the dangers the pro-
If you want total security, go to prison. There you’re fed, clothed, given medical care and so on. The only thing lacking... is freedom. — Dwight D. Eisenhower
Continued on next page Atticus | Volume 29 Number 3 | Summer 2017 | New York State Association of Criminal Defense Lawyers
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