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Seventh Circuit rejects habeas claim, but cautions about improper use of “course of investigation” rationale for getting around hearsay objections

Renardo Carter v. Timothy Douma, 7th Circuit Court of Appeals No. 13-3312, 8/6/15

Carter’s trial counsel failed to object to a police officer’s testimony about the hearsay statements of a confidential informant who said Carter was involved in drug dealing. While the Wisconsin Court of Appeals reasonably concluded that the failure to object didn’t prejudice Carter, the Seventh Circuit issues a useful warning about the improper use of the “course of investigation” rationale for admitting out-of-court statements.

In addition to eliciting testimony from the officer that he was investigating Carter because the informant had identified Carter as someone involved in distributing controlled substances, during closing argument the prosecutor also reminded the jury, albeit obliquely, that the informant had identified Carter as someone involved in drug dealing and asked the jury to use that fact when deciding whether Carter was guilty. The state court held that counsel’s failure to object could not have been deficient performance by invoking the “course of investigation” gambit to avoid the hearsay rules. In particular, it held the officer’s testimony was offered only to explain why the police stopped Carter and pursued him. It also held that any error wasn’t prejudicial. (Slip op. at 7-9, 15-16).

The Seventh Circuit doesn’t resolve whether the “course of investigation” rationale made the officer’s testimony admissible, as it concludes the state court’s finding of lack of prejudice was reasonable. (Slip op. at 18-21). What may be of interest to practitioners, though, is the opinion’s comments on the problem of overusing the “course of investigation” reasoning:

When the reasons for the police’s actions are relevant, a witness can testify about what information prompted those actions. That is, when such a statement is offered only to show the effect it had on the police, it is used for a purpose other than the truth of its contents. E.g., United States v. Eberhart, 434 F.3d 935, 939 (7th Cir. 2006) (testimony is not for its truth where it is offered “only as an explanation of why the investigation proceeded as it did”). We have applied this “course of investigation” rationale in several cases to permit the government to introduce brief out-of-court statements designed to “bridge gaps in the trial testimony that would otherwise substantially confuse or mislead the jury.” See Jones v. Basinger, 635 F.3d 1030, 1046 (7th Cir. 2011) (collecting cases). ….

The problem, as we have explained time and again, is that the “course of investigation” gambit is so often abused and/or misunderstood that it is an evidentiary and constitutional minefield. See, e.g.Jones, 635 F.3d at 1046; United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (“Allowing agents to narrate the course of their investigations, and thus spread before juries damning information that is not subject to cross-examination, would go far toward abrogating the defendant’s rights under the sixth amendment and the hearsay rule.”). To convict a defendant, after all, the prosecution does not need to prove its reasons for investigating him. United States v. Mancillas, 580 F.2d 1301, 1310 (7th Cir. 1978). When the prosecution offers out-of-court statements of nonwitnesses on the theory they are being offered to explain “the course of the investigation,” it runs a substantial risk of violating both the hearsay rules of evidence and the Confrontation Clause rights of the defendant under the Sixth Amendment. Both defense counsel and trial judges need to be on high alert when the prosecution offers what sounds like hearsay to explain “the course of the investigation.” (Slip op. at 16-17 (emphasis added)).

While Jones v. Basinger concluded the government’s use of out-of-court informant statements didn’t fall within the “course of investigation” theory, the error there was clear compared to what happened in this case. The use of the informant testimony here was much narrower and more limited than in Jones, where the government misused the gambit to give the jury a detailed hearsay account that linked the defendant to four murders, explained how the murders were committed, and described what happened to the weapons afterwards. Id. at 1036–37. In addition, in Jones, unlike here, trial counsel objected, so the court addressed the Confrontation Clause claim directly and didn’t need to give deference to counsel under the Strickland standard for IAC claims. (Slip op. at 18).

Which brings up a point about procedural default: Carter’s Confrontation Clause argument couldn’t be addressed on the merits due to trial counsel’s failure to object to the testimony. While Carter raised the confrontation claim in state postconviction proceedings both through his ineffective assistance claim and by arguing plain error, the state court addressed only the IAC claim because of the lack of objection at trial. Rejection of an IAC claim doesn’t constitute a decision on the merits of the claim underlying the IAC claim. Thus, the underlying claim is procedurally defaulted. (Slip op. at 7-9, 10-13).

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