Defendant’s tattoos could be used as evidence, Texas court finds

Friday, June 26, 2009

A trial court did not violate the First Amendment rights of a criminal defendant when it allowed a prosecutor to comment, and a county sheriff to testify, on a defendant’s “Lying Eyes” tattoos during closing arguments, a Texas appeals court ruled recently.

A jury had convicted Michael Lee Wood of aggravated assault with a deadly weapon for brutally beating a convenience store clerk with a sharp object in Haskell, Texas. During the punishment phase of the trial, the prosecutor elicited testimony from Haskell County Sheriff David Halliburton. The sheriff testified that Wood had a tattoo on each eyelid. One tattoo read “Lying” and the other read “Eyes.” Wood’s attorney contended such evidence was irrelevant. The prosecutor countered that the “Lying Eyes” tattoos showed Wood’s lack of respect for society.

The jury sentenced Wood to life. On appeal, Wood raised numerous issues, including an argument that the introduction of the tattoo evidence violated his First Amendment rights. Wood cited the U.S. Supreme Court’s 1992 decision in Dawson v. Delaware in support of his appeal.

In Dawson, the Court ruled that the First Amendment prohibited prosecutors from introducing into evidence during a sentencing hearing a criminal defendant’s association with the Aryan Brotherhood, a white-supremacist group. Dawson had an Aryan Brotherhood tattoo on his right hand. The Court wrote that “the receipt into evidence of the stipulation regarding his membership into the Aryan Brotherhood was constitutional error.” Chief Justice William Rehnquist noted that Dawson’s murderous crime was not racially motivated and, thus, the evidence of the gang association and tattoo was not relevant.

In Wood v. State, the Texas appeals court in its June 18 opinion distinguished Wood’s case from Dawson, noting that Wood’s tattoos were not introduced to show evidence of gang membership or affiliation.

“This case differs from Dawson because [Wood’s] First Amendment right of free association was not implicated since there was no evidence that he was in any type of group or gang,” the appeals court wrote. “The tattoos were not used to show that appellant was associated with some group or gang but to show his disregard for the truth and his moral character. A person’s tattoos can reflect his character and demonstrate a motive for his crime.”

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