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in
I
Playing the Percentages in New York
Barnes v. City of New York
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
296 A.D.2d 330; 745 N.Y.S.2d 20; 2002 N.Y. App. Div. LEXIS 7396
July 11, 2002, Decided
July 11, 2002, Entered
{the below opinion has been lightly edited for student use}
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
296 A.D.2d 330; 745 N.Y.S.2d 20; 2002 N.Y. App. Div. LEXIS 7396
July 11, 2002, Decided
July 11, 2002, Entered
{the below opinion has been lightly edited for student use}
JUDGES:
Mazzarelli, J.P., Ellerin, Wallach, Rubin, Friedman, JJ.
OPINION:
Order and judgment (one paper), Supreme Court, Bronx County (Gerald Esposito, J.), entered on or about October 26, 1999, awarding plaintiff damages for personal injuries, upon a jury verdict, as reduced pursuant to plaintiff's stipulation and structured pursuant to CPLR article 50-B, unanimously reversed, on the law, the facts and in the exercise of discretion, without costs, and the matter remanded for a new trial.
Plaintiff commenced this action against the City of New York and Police Officer Frantz Jerome to recover damages for personal injuries incurred when Officer Jerome shot plaintiff on the night of August 22, 1988. During the trial of this action, defendants sought to introduce evidence that plaintiff was a member of a group known as the "Five Percenters," which espouses a vicious ideological hatred of the police and propounds to its members a protocol to shoot and kill police officers rather than submit to arrest. n1 The trial court excluded this evidence on the ground that it was collateral and unfairly prejudicial, and the jury resolved factual issues in favor of plaintiff, rendering a verdict for him. We now hold that, contrary to the trial court's view, exclusion of such evidence constituted reversible error requiring that there be a new trial.
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n1 The Five Percenters' violent propensities are sufficiently well established that certain State correctional facilities, as a security measure, have prohibited inmates to possess the group's literature (see, Matter of Buford v Goord, 258 A.D.2d 761, 686 N.Y.S.2d 121).
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The facts surrounding the subject incident are strongly in dispute. Officer Jerome's testimony was that he began pursuing plaintiff after plaintiff, whom the officer observed to be carrying a semi-automatic handgun, disobeyed the officer's order to stop and drop his weapon. According to Officer Jerome, plaintiff fired at him during the ensuing chase, and, subsequently, when plaintiff appeared to be preparing to fire at him again, the officer fired his service revolver. It is plaintiff's contention in this action, however, that, when Officer Jerome shot him, plaintiff had dropped his weapon and was raising his hands in the air. Plaintiff gave testimony to this effect at the hearing held pursuant to General Municipal Law § 50-h and at his EBT, transcripts of which were read into evidence at trial. n2
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n2 Plaintiff was excused from testifying at trial, and thus was not cross-examined, based on his assertion of mental incapacity at the time of trial.
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Under the particular circumstances of this case, evidence of this plaintiff's motive would be admissible to show that the plaintiff was likely to act in accordance therewith on this occasion. For example, in a prosecution for the attempted murder of two police officers, where the case was a largely circumstantial one, the Court of Appeals held that testimony that the defendant professed "a vicious ideological hatred for the police," and documents expressing militantly anti-police views that were discovered in his apartment, were admissible to show motive for the shooting ( People v Moore, 42 N.Y.2d 421, 428, 397 N.Y.S.2d 975, 366 N.E.2d 1330, cert denied sub nom Moore v New York, 434 U.S. 987, 54 L. Ed. 2d 482, 98 S. Ct. 617; see also, People v Rodriguez, 42 Cal.3d 730, 756-758, 230 Cal. Rptr. 667, 726 P.2d 113; Fisch, New York Evidence §§ 240, 241 [2d ed. 1977]). Moreover, it is well established that [HN1] the fact of a person's membership in an antisocial gang, such as the Five Percenters, is admissible as evidence of a motive to engage in wrongful conduct promoted by the gang (see, e.g., People v Herrera, 287 A.D.2d 579, 731 N.Y.S.2d 653, lv denied 97 N.Y.2d 705; People v Reynolds, 283 A.D.2d 771, 774, 728 N.Y.S.2d 503, lv denied 96 N.Y.2d 866; People v Perez, 265 A.D.2d 347, 348, 696 N.Y.S.2d 197, lv denied 94 N.Y.2d 827; People v Tam, 260 A.D.2d 242, 688 N.Y.S.2d 521, lv denied 93 N.Y.2d 1028; People v Tai, 224 A.D.2d 328, 638 N.Y.S.2d 45, lv denied 88 N.Y.2d 942).
Evidence of plaintiff's membership in the Five Percenters, under the circumstances presented here, was relevant to show that he had a specific motive to resist any police officer's attempt to arrest him, giving rise to the fair inference that plaintiff was likely to act in accordance with such motive in his encounter with Officer Jerome. By bringing this action, plaintiff has placed his own conduct, as well as that of Officer Jerome, at issue. The jury, charged with finding how plaintiff as well as the officer acted on the night in question, should have been permitted to hear evidence that would have revealed any motive directly relevant to plaintiff's conduct in his interaction with the officer. That the evidence of plaintiff's motive adversely reflects on his character does not render it inadmissible, since, under the particular circumstances of this case, its probative value outweighs any incidental prejudicial effect (see, e.g., People v Moore, supra, citing People v Fitzgerald, 156 NY 253, 259, 50 N.E. 846, 13 N.Y. Cr. 36; People v Hagan, 24 N.Y.2d 395, 400, 300 N.Y.S.2d 835, 248 N.E.2d 588, cert denied 396 U.S. 886; People v Perez, supra).
In this case, evidence of plaintiff's membership in the Five Percenters also should have been admitted for purposes of impeaching his credibility.
Although an error in excluding evidence at trial does not invariably warrant reversal, we conclude that the error in the exclusion of the Five Percenters evidence was sufficiently prejudicial to defendants to require us to reverse the judgment and remand for a new trial.
ENTERED: JULY 11, 2002
EN BANC
JUSTICE COATS delivered the Opinion of the Court.
The People sought review of the court of appeals' judgment reversing the defendant's convictions for first degree sexual assault and second degree kidnapping. The court of appeals found that the trial court abused its discretion in admitting evidence of two prior instances of uncharged misconduct by the defendant, involving two other young women, primarily because the defendant conceded he was the person who gave the victim a ride on the day in question and because it considered the other acts insufficiently similar to the current charge. We hold that the trial court did not abuse its discretion in admitting the evidence of these other acts pursuant to CRE 404(b), and therefore we reverse the judgment of the court of appeals and remand with instructions to reinstate the defendant's convictions.
I. FACTUAL AND PROCEDURAL BACKGROUND
The charges against the defendant arose from the alleged rape of fifteen-year-old T.C. The prosecution's theory was that just before noon on October 18, 1995, while walking home from school on a rural mountain road in Jefferson County near Nederland, the victim was offered a ride by the defendant, taken to a secluded dirt road, dragged down a hillside, and raped by him. The prosecution presented its case at trial largely through the testimony of the victim; relatives, police, and hospital personnel to whom she reported the assault; and coworkers of the defendant to whom he had given contradictory accounts of the incident. The prosecution also presented the testimony of four other women, each of whom was approached on a public street by the defendant, offered a ride, taken to a secluded place, and allegedly subjected to some form of attempted or completed sexual assault. Although the defendant did not testify at trial, his contention that he had merely given the victim a ride and that she was a "pathological liar," who fabricated the sexual encounter to get attention from family members, was presented through cross-examination, defense witnesses to the lack of corroborating physical evidence, and his counsel's opening and closing statements.
As the only admitted witness of the attack, the victim provided the only first-hand testimony about the details of the currently charged assault. She testified at trial that she accepted the defendant's offer of a ride to a point near her home. Upon arriving there the defendant refused to stop, saying that he needed to go to the store and would then take her back to where she wanted to go. Instead of going to a store, however, the victim testified that the defendant took her to a secluded dirt road where he stopped the vehicle and told her that he wanted to show her something in the woods. While she at first refused to get out of the truck, she eventually relented, whereupon the defendant physically dragged her down the adjacent hillside and forcefully sexually assaulted her by vaginal intercourse.
Among other details, she testified that the defendant removed all of their clothing except his shirt and commented during the assault that she had a "nice mole" on her leg. She also testified that following the assault, she accepted a ride from the defendant to a point near her destination where he apologized for his conduct, saying that next time he would not do this sort of thing, and allowed her to leave. After walking home, she vomited and immediately undressed to shower, finding a twenty dollar bill in her pant leg that she did not have before the assault. After showering, she called family members and eventually the police.
The subsequent emergency room examination produced no physical evidence of sexual assault. Similarly, the defense produced evidence indicating that the tire tracks found on the road near the scene identified by the victim did not match the tires on the defendant's truck at the time the police made contact with him several weeks later and evidence challenging the feasibility of the victim's time estimates. There was, however, bruising on the victim's shins where she claimed the defendant sat while pulling off her clothing and an indentation on her abdomen that could have been caused by weight pressing against her cigarette package.
The prosecution also presented the testimony of the four women who claimed to have been picked up and taken to a secluded location during a ten-month period in 1981-82, when they were between twelve and twenty years old, by someone later identified as the defendant. Although the details of the incidents varied, each began with the offer of a ride from the defendant, which the young women accepted either voluntarily or as the result of threats, followed by a drive to a secluded location and some indication by the defendant that his intent was to have sexual relations. In two of the cases, the women were actually sexually assaulted by penetration; in a third case the woman, L.L., testified that the defendant physically forced her into the back of his camper, climbed on top of her, and fondled her breasts, until her resistance and crying led the defendant to let her go to find her own way home; and in the last case, the twelve-year-old girl, to whom the defendant had given five dollars to allow herself to be photographed, fled when he crawled into his truck bed and enticingly invited her to join him to see his camera.
In three of the cases, the defendant showed the women a camera and either took photos or described his interest in taking photos of young women and either gave the young women a small amount of money as an enticement or left a small amount of money with them after the assault. In the two cases in which the defendant was able to complete the sexual penetration (one by vaginal intercourse and the other by forced fellatio), the defendant removed all of his clothing but his shirt and managed to partially or completely disrobe his victim, commenting about some physical feature that became visible -in one case a scar and the other the woman's "fuzzy," unshaved legs. After each completed assault, the defendant was conciliatory or matter-of-fact about doing this sort of thing and offered to drive the victim where she wanted to go.
The jury found the defendant guilty of both second degree kidnapping and first degree sexual assault, for which he was sentenced to concurrent terms of sixteen and eight years, respectively. On direct appeal, the court of appeals reversed, holding that although evidence of two of the prior sexual transactions involving the defendant were properly admitted, the trial court abused its discretion in admitting the other two. It held that the admission of the incidents involving the women identified as L.L. and P.B., in which the encounters ended short of sexual penetration, was error because they were not related to the occurrence of sexual intercourse, which it considered the only "contested" issue at trial, and because they were not "sufficiently substantially similar [to the current charges] to be introduced under CRE 404(b) and § 16-10-301, C.R.S. 1998." n1 People v. Rath, No. 96CA1773, slip op. at 1 (Colo. App. June 3, 1999).
n1 We granted the People's petition for certiorari on the following question:
Whether the court of appeals erred in holding, based on its application of section 16-10-301, 6 C.R.S. (1999), and CRE 404(b), that the trial court abused its discretion and committed reversible error in admitting prior act evidence relating to victims L.L. and P.B.
We denied the Defendant's cross-petition for certiorari on the following two issues:
Whether the trial court committed reversible error when it permitted the prosecutor to introduce "similar" transaction evidence regarding J.H. and T.C. while was stale, dissimilar, irrelevant, and unduly prejudicial.
Whether Defendant was erroneously deprived of access to the department of social services records related to the alleged victim.
II. ADMISSIBILITY OF UNCHARGED MISCONDUCT EVIDENCE
The admissibility of evidence of uncharged criminal misconduct is expressly limited by the Colorado Rules of Evidence. n2 According to CRE 404(b), evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity with that character on a particular occasion. The rule is in accord with the long-standing policy of the English and American law of evidence that when evidence is admitted for this purpose, which is sometimes characterized as the propensity of the accused to commit crime, even though it may be logically relevant in some measure, the prejudicial effect of the evidence always outweighs its probative value, and it is, for that reason, always inadmissible. When offered for any other purpose, however, the evidence is not necessarily barred. The rule enumerates several examples of reasons for which evidence of other crimes may be admissible. "As the rule indicates, there are numerous other uses to which evidence of criminal acts may be put, and those enumerated are neither mutually exclusive nor collectively exhaustive." 1 Charles T. McCormick, McCormick on Evidence § 190, at 659 (John W. Strong, 5th ed. 1999).
n2 Prior to the adoption of the rules of evidence, the Colorado General Assembly had made clear by statute that evidence of other criminal transactions would be admissible in prosecutions for sexual offenses for the same reasons it was admissible in prosecutions for other offenses. See § 16-10-301, 8A C.R.S. (Supp. 1995)(substantially amended effective July 1, 1996, see ch. 280, sec. 21, 1996 Colo. Sess. Laws 1578, 1589). Whether or not the statute would have permitted other-crimes evidence in prosecutions for sexual offenses even more liberally than CRE 404(b), see Pigford v. People, 197 Colo. 358, 593 P.2d 354 (1979); People v. Opson, 632 P.2d 602 (Colo. App. 1980), apart from separately requiring a prima facie case of the charged offense (which is not at issue on this appeal), nothing in the statute purported to exclude evidence that would otherwise be admissible under the rule, nor has such a suggestion been made by the parties to this appeal. It is enough therefore that the district court did not abuse its discretion in admitting the other crimes evidence at issue here pursuant to the Colorado Rules of Evidence.
In order to be admissible, evidence must be relevant; and unless otherwise provided by constitution, statute, or rule, all relevant evidence is admissible. CRE 402. Evidence is relevant, in the logical sense, as long as it is "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." CRE 401; see People v. Carlson, 712 P.2d 1018, 1021-22 (Colo. 1986). Even logically relevant evidence may be excluded, however, "if its probative value is substantially outweighed by the danger of unfair prejudice." CRE 403; see Spoto v. People, 795 P.2d 1314, 1318 (Colo. 1990).
Evidence of other, uncharged crimes may therefore be admissible if, but only if, it is logically relevant for some reason apart from an inference that the defendant acted in conformity with a character trait, and if the probative value of the evidence for that other reason is not substantially outweighed by the other policy considerations of Rule 403. This court has previously considered the relevancy of other-crimes evidence within the scheme of the rules and has analyzed the requirements of CRE 401-404 in four parts. Spoto, 795 P.2d at 1318. First, the other-crimes evidence must be offered as relating to a material fact. n3 Id. Second, it must be logically relevant by tending to make that material fact more probable or less probable. Third, its logical relevance must be independent of the intermediate inference prohibited by CRE 404(b), that is, the evidence must be probative for some logical reason other than "that the defendant committed the crime charged because of the likelihood that he acted in conformity with his bad character." Id. And fourth, the probative value of the evidence for that other reason may not be substantially outweighed by the danger of unfair prejudice caused by admitting the other-crimes evidence. Id.
n3 Although the concept of materiality no longer has independent significance in the scheme of the rules, and is instead subsumed within the notion of logical relevance, see CRE 401, we have found it helpful in emphasizing the obligation of the prosecution to offer (and the court to admit) other-crimes evidence only for specific purposes, to distinguish the two concepts.
We have recognized, however, that with the adoption of the rules of evidence, the analysis of the admissibility of such evidence has been significantly altered, making it admissible in some cases in which it previously might have been excluded. Garner, 806 P.2d at 370. For example, the prosecution's burden of showing that the defendant actually committed the uncharged crime or act, which is required for its admission, has been reduced. Id. (holding that the former clear-and-convincing-evidence standard of People v. Botham, 629 P.2d 589 (Colo. 1981), has been supplanted by the preponderance-of-the-evidence standard dictated by CRE 104(a)). Similarly, the inclusionary formula of the rules of relevancy, permitting the admission of evidence unless its probative value is substantially outweighed by the danger of unfair prejudice, creates a rule more favorable for admission. id. 806 P2d at 370, 373 n.5 (noting that the balancing test of CRE 403 has effectively overruled the pre-rules formulation of People v. Honey, 198 Colo. 64, 67, 596 P.2d 751, 754 (1979), which inverted the policy choice and required the exclusion of other-crimes evidence unless its probative value outweighed its prejudicial effect); see generally Edward J. Imwinkelried, Uncharged Misconduct Evidence § 2:31 (2001) (discussing change under Fed. R. Evid. 404(b) to inclusionary view).
Perhaps most significantly, to the extent that the law in this jurisdiction had come to exclude evidence of other crimes unless it was offered for and met the strictures of certain narrowly circumscribed categories, see, e.g., Honey, 198 Colo. at 67-68, 596 P.2d at 753-54, the rule is more open to general considerations of relevance. CRE 404(b) only requires the exclusion of evidence of other crimes, wrongs, or acts offered for the purpose of proving the character of a person in order to show that he acted in conformity therewith. Although the prosecution must articulate a precise evidential hypothesis by which a material fact can be permissibly inferred from the prior act that is independent of the inference forbidden by CRE 404(b), upon a showing of logical (CRE 401) and legal (CRE 403) relevance under that hypothesis, evidence of other crimes will not be excluded under the rules of relevance. See Spoto, 795 P.2d at 1318-19.
III. ADMISSIBILITY OF TRANSACTIONS INVOLVING L.L. AND P.B.
In order to prove that the defendant in this case was guilty of kidnapping and sexual assault, the prosecution was required to show that he knowingly seized and carried the victim from one place to another without her consent and that he knowingly inflicted sexual intrusion or penetration on her by physical force or violence. The trial court heard the prosecution's pretrial motion to admit the evidence of uncharged misconduct, and in a written order granted admission of all four transactions for the purpose of showing a common plan, scheme or design, modus operandi, motive or intent, and to refute the defendant's contention that the alleged victim's claim of sexual intercourse or contact was a fabrication.
(1) MATERIAL FACT
The other-crimes evidence was therefore clearly offered as relating to a number of facts that were material or of consequence to the determination of the action, as required in the first step of the Spoto analysis. n4 Some of the purposes for which the evidence was admitted were actual elements of the charged crimes, or ultimate facts to be proved, while others were intermediate or evidential facts, themselves probative of ultimate facts. Generally, in a criminal prosecution the ultimate facts or elements consist of showing that the accused committed the guilty act, sometimes described as the "identity" of the accused, n5 and that he did so with the required intent or state of mind and without legal excuse or justification. Plan, scheme, design, modus operandi, and motive, while not usually elements or ultimate facts themselves, are among, or closely related to, those examples of permissible reasons enumerated in the rule and are well-accepted methods of proving the ultimate facts necessary to establish the commission of a crime, without reliance upon an impermissible inference from bad character.
n4 In its holding the court of appeals added to the first step of the Spoto analysis the requirement that the material fact for which the other-crimes evidence is offered be "contested." Slip op. at 3. Whether a material fact is contested clearly affects the need for or incremental probative value of the evidence offered to prove it, but it does not make the fact itself any less material or the evidence offered to prove it any less logically probative. The court of appeals therefore incorrectly found that the evidence failed to satisfy the first step the Spoto test.
n5 Because the question of whether the accused committed the criminal act contains the subquestions of whether the act was committed by someone and whether, if so, the accused was the person who committed it, the broader question has sometimes been separated into the questions of "identity" and "commission of the actus reus." See, e.g., Imwinkelried, supra, ch.4.
n6 At the motions hearing the parties indicated that they had a "stipulation to ID," and defense counsel made clear at both the hearing and in his opening statement at trial that the defendant was the person who picked the victim up and gave her a ride. The precise limits and legal effect of any concession by the defendant remain unclear, however, because no stipulation was ever submitted to the jury.
(2) LOGICAL RELEVANCE
Evidence of the incidents involving L.L. and P.B., upon which the court of appeals reversed, was also logically relevant to prove a material fact, as required in the second step of Spoto. Those incidents were part of a pattern of behavior by the defendant demonstrating a method for committing crimes like those for which he was on trial. Even though these two incidents were terminated by action of the victims before any completed act of sexual penetration, they were evidence from which the jury could find that the defendant had a history of offering young women a ride as a ruse to isolate them and have sex with them, regardless of their consent.
Evidence indicating that the defendant had offered young women a ride in the past for the purpose of having sex had at least some tendency to make it more probable as a logical matter that he intended to have sex with the victim in the charged offense, after admittedly offering her a ride under similar circumstances. In conjunction with evidence that the defendant had sexually assaulted women on certain past occasions after similarly picking them up, as well as the victim's testimony in this case that the defendant sexually assaulted her after picking her up, evidence of examples of the defendant's scheme to pick up young women for the purpose of sexual gratification also had at least some tendency to make it more probable that he had sexual relations with the victim in this case. Rule 401's requirement of logical relevance is satisfied as long as the evidence in question has any tendency to make a fact of consequence more probable than it would be without that evidence.
(3) INDEPENDENCE OF INFERENCE FROM BAD CHARACTER
The chain of logical inferences from the evidence of the defendant's prior conduct in step two is also independent of any inference that he must have committed a sexual assault in this case because he is a person of criminal character. The inference relied on arises not from the criminal character of the accused but from the demonstration of his pattern of using a particular technique to accomplish a particular end. The evidence tended to show that when the defendant did certain things, in a certain way, a number of times in the past, he did so with a criminal purpose, and he took affirmative action to accomplish that purpose. The evidential hypothesis by which the commission of the guilty act could properly be inferred is included in the term modus operandi, which is a traditional, if not precisely defined, expression of a legitimate way of proving the ultimate facts in a criminal case without reliance on an inference from bad character.
Although the other uncharged acts were therefore logically relevant without reliance upon the one impermissible inference, the more difficult question, as is virtually always the case, was whether the evidence of the defendant's other crimes was sufficiently probative for legitimate purposes when balanced against the danger of unfair prejudice.
(4) CRE 403
In the final step of the analysis, the trial court necessarily retains a great deal of discretion, bearing in mind that the admission of uncharged misconduct always has a substantial potential for unfair prejudice. People v. Nuanez, 973 P.2d 1260, 1263 (Colo. 1999); People v. Ibarra, 849 P.2d 33, 38 (Colo. 1993). Beyond finding logical relevance, it must assess the weight that would be added to the prosecution's case by admitting the other-crimes evidence. Unlike Rule 401's "relevance," Rule 403's "probative value" is not considered in isolation but signifies the "marginal" or "incremental" probative value of evidence relative to the other evidence in the case. See Old Chief v. United States, 519 U.S. 172, 184-85, 136 L. Ed. 2d 574, 117 S. Ct. 644 (1997)(citing 1 Charles T. McCormick, McCormick on Evidence 782 & n.41 (John W. Strong ed. 4th ed. 1992); People v. Saiz, 32 P.3d 441, 446 (Colo. 2001)(citing Nuanez, 973 P.2d at 1263). Therefore, the court must weigh "the logical force of the evidence and the proponent's need for the evidence," in light of other available evidence. Martin v. People, 738 P.2d 789, 794 (Colo. 1987). Finally, it must assess the danger of unfair prejudice and exclude the evidence if its "incremental" probative value would be substantially outweighed by that danger. Id. (where defendant stipulated to lawful confinement, mittimus showing his conviction for murder was not additionally probative of that element and should have been excluded as unfairly prejudicial).
The probative value or logical force of evidence of other crimes cannot be determined according to any precise formula. Depending on the purpose and theory of logical relevance advanced for its admission, the assessment of its probative value may involve a host of factors, including the distinctiveness of the other crimes and their relationship to the charged offense in terms of time and similarity. Contrary to the apparent assumption of the court of appeals, however, CRE 404(b) contains no separate requirement of similarity. See Spoto, 795 P.2d at 1320 ("generally no similarity of conduct requirement concerning evidence of other crimes, wrongs or acts"). Under a particular evidential hypothesis, similarity may not be significant at all, and if significant, the nature and extent to which similarity is important may vary greatly.
When evidence of other crimes is offered to show a defendant's motive for committing a charged offense or to show that other crimes were part of the preparation or plan to commit a charged offense, similarity of the crimes often has no significance whatsoever. See, e.g., United States v. Brooks, 125 F.3d 484 (7th Cir. 1997)(evidence of defendant's prior drug use admissible as motive for bank robbery); United States v. Lamb, 575 F.2d 1310 (10th Cir. 1978)(allowing under Fed. R. Evid. 404(b) evidence of prisoners' escape, kidnapping of guard, and commandeering of an apartment to show the prisoners' "plan" to commit the charged robbery); United States v. Haldeman, 181 U.S. App. D.C. 254, 559 F.2d 31 (D.C. Cir. 1976)(evidence of prior uncharged office break-in admissible in trial for charged cover-up). Even when evidence of other crimes is offered to demonstrate a common method or modus operandi, the degree of similarity necessary to give the evidence sufficient probative force for admission varies considerably depending upon the element or ultimate fact for which it is offered. Evidence of design or method offered to prove that the defendant, as distinguished from anyone else, committed the charged offense generally depends much more heavily on the distinctiveness and similarity of the crimes than evidence offered merely to prove that the defendant acted intentionally. See United States v. Fields, 871 F.2d 188 (1st Cir. 1989)("[A] 'much greater degree of similarity ... is required when the evidence of the other crime is introduced to prove identity' than when it is introduced for another of the myriad of reasons allowed under [Fed. R. Evid.] 404(b) ...."). n7
n7 See generally Imwinkelried, supra, § § 8:07 ("Under some theories of logical relevance, the uncharged act need not be similar to the charged act. Moreover, even among theories requiring similarity, the required degree of similarity varies. The modus theory of identifying the defendant as the criminal requires the highest degree of similarity while [Dean Wigmore's] doctrine of chances demands less similarity to prove the occurrence of an actus reus or guilty state of mind), 5:08 (degree of required similarity less when proving intent through Wigmore's doctrine of chances than when proving identity through modus operandi).
Other-crimes evidence demonstrating a common design or modus operandi has been admitted in prosecutions for sexual assault not only to prove who committed the crime but also to prove that the alleged sex act actually occurred. See, e.g., People v. Luczak, 306 Ill. App. 3d 319, 714 N.E.2d 995, 1001, 239 Ill. Dec. 698 (Ill. App. Ct. 1999); People v. Fuller, 117 Ill. App. 3d 1026, 454 N.E.2d 334, 341-43, 73 Ill. Dec. 474 (Ill. App. Ct. 1983). Like admission of other-crimes evidence to prove intent, its admission to prove the commission of the guilty act when identity is already conceded does not depend upon distinguishing the defendant from others who also had the capacity and opportunity to commit the crime. Similarly, where the guilty act consists of an act like sexual intercourse, the other crimes need not make it more likely that the victim's injury was the result of an act of the defendant than of natural accident. See United States v. Woods, 484 F.2d 127 (4th Cir. 1973)(admitting evidence that over a twenty-five-year period, nine children in defendant's custody experienced twenty cyanotic episodes, for purpose of proving commission of actus reus). Evidence of other acts to prove the commission of the guilty act is admissible under the various logical theories or evidential hypotheses that apply to other ultimate facts, but as with intent generally, the distinctiveness of preparatory acts is less significant in proving the actor's purpose or intention than in showing the identity of the actor.
Evidence of the defendant's uncharged misconduct is clearly not admissible solely to bolster the testimony of a prosecution witness, but neither is it excluded merely because it may have that effect. See Luczak, 714 N.E.2d at 1001. If other-crimes evidence is otherwise admissible to prove a material fact by showing, for example, a common design or modus operandi, it may simultaneously corroborate the victim's testimony of the existence of that fact. Moreover, where disputed testimony of the victim is the only direct evidence of the commission of the guilty act, additional evidence that is probative of that fact may have particular "marginal" or "incremental" probative value.
Although there were obvious differences in the circumstances surrounding each transaction admitted in this prosecution, they shared a number of significant characteristics that evidenced a pattern of behavior rather than isolated prior incidents. See Garner, 806 P.2d at 375 ("It is not essential that the means of committing the other crimes replicate in all respects the manner in which the crime charged was committed.") The two prior incidents that actually resulted in sexual penetration, in addition to involving similar preparatory acts, included distinctive and unpredictable personal details of the commission and aftermath of the assault that were so similar to those alleged by the victim of the charged crime as to virtually compel an inference that the act occurred or that the victim was acting in collusion with the prior victims. Particularly, the combination of the defendant's disrobing preference, his fixation during the assault on meaningless physical anomalies of the victim, and his insistence on paying the victim as if she had consensually performed a service would be difficult to invent in the absence of a similar sexual encounter.
In addition, however, the combination of all four incidents added substantial weight to the inference of a technique to isolate young women for the purpose of having sex. A greater number of incidents of similar behavior is important in proving that it is directed or purposive rather than coincidental. See Spoto, 795 P.2d at 1320. Because the defendant did not admit the assaults in any of the cases, each of the five was to some extent dependent upon the others to prove that sexual encounters were intended by the defendant's preparatory behavior and that sexual assaults actually occurred unless the victims were able to escape. Although the incidents involving L.L. and P.B. were interrupted by the victims' escape, they were nevertheless similar in significant aspects and substantially contributed to the inference that the defendant's technique of isolating vulnerable females by offering them a ride and driving them to a secluded location was preliminary to and for the purpose of sexual gratification.
While preparatory acts or even overt attempts, standing alone, may sometimes be insufficiently probative of a defendant's unfulfilled intention, in conjunction with evidence of consummated crimes resulting from similar preparations, they can form a pattern of behavior that is probative of the commission of the act. Furthermore, to the extent that the incidents are further removed from a completed crime, they correspondingly present less of a danger of unfair prejudice. To the extent that the incidents involving L.L. and, especially, P.B were less probative of the defendant's intention to commit sexual assault, they were also less serious, heinous, or egregious, than the three sexual assaults presented to the jury and were less likely to have an inflammatory effect.
Trial courts are necessarily accorded considerable discretion in deciding questions concerning the admissibility of evidence, and an abuse of that discretion will be found only upon a showing that the ruling was manifestly arbitrary, unreasonable, or unfair. People v. Harris, 2002 Colo. LEXIS 221,No. 00SC185, slip op. at 11 (Colo. Mar. 11, 2002). Because the balance required by CRE 403 favors admission, a reviewing court must afford the evidence the maximum probative value attributable by a reasonable fact finder and the minimum unfair prejudice to be reasonably expected. See People v. Gibbens, 905 P.2d 604, 607 (Colo. 1995). Evidence of uncharged crimes has a distinct and unmistakable potential for unfair prejudice, but unfair prejudice within the meaning of the rule still refers only to "an undue tendency on the part of admissible evidence to suggest a decision made on an improper basis" and does not mean prejudice that results from the legitimate probative force of the evidence. Id. at 608.
The trial court heard the motion to admit evidence of other crimes and the objections to it. It demonstrated its awareness of the applicable law controlling the admission of other-crimes evidence, and it made findings as to each of the four steps of the Spoto test. It even modified the list of purposes for which the evidence would be admissible that was proposed by the prosecution, notably disallowing the other-crimes evidence to identify the defendant. In light of the considerations already articulated, it cannot be fairly said by a reviewing court that the trial court abused its discretion in finding that the probative value of the other-crimes evidence admitted in this case was substantially outweighed by the danger of unfair prejudice.
IV. CONCLUSION
In finding reversible error, the court of appeals misperceived the import of our application of the Colorado Rules of Evidence to the introduction of uncharged criminal misconduct evidence and misapplied the four-part analysis of People v. Spoto. Properly considered, the concerns of the court of appeals amount to a disagreement about the balance of probative value and prejudicial effect required by CRE 403. Accordingly, the judgment of the court of appeals is reversed and the case is remanded with directions that the judgment of conviction and sentence be affirmed.
The Character of Dogs and People in Pennsylvania
BROWN et al. v. EBERLY
CIVIL ACTION NO. 99-1076
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
2002 U.S. Dist. LEXIS 22012
November 14, 2002, Filed
CIVIL ACTION NO. 99-1076
UNITED STATES DISTRICT COURT
FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
2002 U.S. Dist. LEXIS 22012
November 14, 2002, Filed
{lightly edited for student use}
[Brown v. Eberly is a is a civil action. The primary defendant is a police officer (Eberly). Plaintiffs claim that defendant police officer violated their federal and state constitutional rights by shooting and killing their pet dog, Immi, a Rottweiler. Defendant contends that Immi was acting aggressively and that Officer Eberly acted reasonably in shooting and killing Immi. The memorandum opinion below is by Judge Thomas N. O'Neill, Jr., the trial judge in this case.]
MEMORANDUM
Trial of this case will begin on Monday, November 18, 2002. I have before
me two motions and one cross-motion in limine filed by plaintiff, six motions
in limine filed by defendant, and the responses thereto.
1. Plaintiffs' motion in limine to preclude the testimony of Dr. Timonthy
Michals
Plaintiffs argue that defendant violated Rule 26(a) of the Federal Rules of
Civil Procedure because he did not supply plaintiff with Dr. Michals' expert
report at least ninety days before the date the case was to be ready for trial.
... I will not exclude Dr. Michals from testifying.
2. Plaintiffs' motion in limine to prevent introduction of the testimony
of Ronald Traenkle
Plaintiffs argue that defendant violated Rule 26(a) of the Federal Rules of
Civil Procedure because he did not supply plaintiff with Captain Traenkle's
expert report and qualifications at least ninety days before the date the
case was to be ready for trial. … I will not exclude Captain Traenkle
from testifying.
3. Defendant's motion to preclude all testimony and exhibits that seek to
attribute human qualities or attributes to plaintiff's dog
The issue to be tried is whether defendant's actions on April 8, 1998, violated
plaintiffs' constitutional and state law rights. Evidence that would seek
to attribute human characteristics to the dog is not relevant and will be
excluded.
The pictures attached to defendant's motion must be examined under a Rule
403 analysis. The first picture, of the parking lot at the location of the
incident, is clearly admissible. The picture of the dog and the child on the
couch with the child thinking "we're best buddies" is excluded under
Rule 403. The third picture attached to the motion shows one of plaintiffs'
children leaning on the dog, who is laying on the floor. It is admissible
because it is evidence of how well behaved the dog was with people and is
not unfairly prejudicial to the defendant. The fourth picture shows the dog
by herself wearing a large bow around her neck. Unless the dog was wearing
this collar when shot on April 8, 1998, the picture is excluded under Rule
403.
4. Defendant's motion in limine to preclude all character testimony related
to plaintiff's dog
Plaintiffs seek to introduce testimony establishing the friendly nature of
their dog in an attempt to refute defendant's claim that she lunged at him.
Defendant argues that such testimony is inadmissible character evidence under
Federal Rule of Evidence 404.
We have not found any Pennsylvania or Third Circuit cases addressing whether
evidence of past behavior of an animal should be excluded under Rule 404,
however, the highest courts of several states have admitted such evidence.
See Hood v. Hagler, 1979 OK 163, 606 P.2d 548, 551-52 (Okla. 1979); Forsythe
v. Kluckhohn, 161 Iowa 267, 142 N.W. 225, 271 (Iowa 1913); Stone v. Pendleton,
21 R.I. 332, 43 A. 643, 643-44 (R.I. 1899). I will not exclude evidence concerning
Immi's disposition as inadmissible character evidence.
Defendant also argues that the testimony of plaintiffs' witnesses will confuse
the jury because it concerns encounters with the dog in controlled environments
rather than in the street where defendant found her. This is no reason to
exclude the evidence, however, because defendant is free on direct examination
of defendant and on cross-examination of plaintiffs' witnesses to make the
jury aware of the differences between defendant's encounter with the dog and
those that will be recounted by the plaintiffs' witnesses.
5. Defendant's motion in limine to preclude testimony concerning prior dog
shootings by defendant
The evidence that defendant has shot and killed four dogs in the past is evidence
of another crime or wrong and cannot be used to show that defendant is more
likely to have committed the violations of law cited by plaintiffs. Fed. R.
Evid. 404(b).
The Court of Appeals said that evidence about three of the prior dog shootings
should be excluded under Federal Rule of Evidence 403. Brown v. Muhlenberg
Township, 269 F.3d 205, 217 (3d Cir. 2001). If that statement is binding upon
me, I will follow it. Even if it is not binding on me, however, I reach the
same conclusion on the same record. The three incidents involved situations
dissimilar to this case, and therefore, their probative value is very low.
It is clearly substantially outweighed by the danger that the evidence will
unfairly prejudice the jury against defendant and the evidence is excluded.
The only shooting of a dog that might be relevant to this case occurred in
1988. Plaintiffs suggest that the prior shooting is evidence of defendant's
intent, motive or absence of mistake. Because defendant has not pleaded mistake
as a defense, I will only address the propriety of the evidence as proof of
intent or motive.
The use of the evidence of the 1988 dog shooting is governed by Becker v.
Arco Chemical Co., 207 F.3d 176 (3d Cir. 2000). For the evidence to be admissible
under Rule 404(b), plaintiffs must convince me that there is a chain of inferences
that does not include the inference that defendant has the propensity to act
in a certain way and that leads to the conclusion that defendant committed
an unreasonable seizure of Immi. See id. at 191-92. Like the Court in Becker,
I cannot conceive of how the prior shooting would be relevant without the
inference that defendant is likely to be unreasonable in deciding the necessity
of killing dogs and that he was similarly unreasonable in making the decision
he did on April 8, 1998. See id. at 192. I will, therefore, exclude any evidence
of that incident.
6. Defendant's motion in limine to preclude the expert report of Richard
W. Kobetz
Defendant challenges the testimony of Mr. Kobetz on four grounds: (1) the
relevancy and prejudicial effect of his reference to prior shootings of dogs
by defendant; (2) the support for one of his opinion statements; (3) the relevancy
of his discussion of defendant's history as a police officer; and (4) his
qualifications. Because Mr. Kobetz will be testifying as an expert witness,
I will examine these issues under Daubert and its progeny in addition to the
Federal Rules of Evidence.
As discussed earlier, any discussion of defendant's prior shootings of dogs
is unfairly prejudicial and excluded under Rule 404. If Mr. Kobetz is permitted
to testify, he will not be able to discuss, therefore, the prior shootings.
Defendant fails to specifically identify which part of Mr. Kobetz' report
he is objecting to as "the history of Robert Eberly." The only reference
to defendant's past on the page of the report that defendant cites in his
objection is the sentence "if the department had followed the history
of Officer Eberly, perhaps this unfortunate incident would never have occurred."
This is just another way to address the prior dog shootings by defendant and,
therefore, will be excluded. The other two objections raised by defendant
- as to Mr. Kobetz's qualifications and the support for his conclusions -
will be discussed at a Daubert hearing.
7. Plaintiffs' cross-motion in limine to preclude the expert report and testimony
of Ronald Traenkle
Plaintiffs bring this cross-motion in response to defendant's motion to preclude
the testimony of Dr. Kobetz. It is denied.
8. Defendant's motion in limine to preclude the expert report of Andrew Bensing
Plaintiffs seek to have Andrew Bensing testify as an expert on the behavior
of Rottweilers. He would testify to the behavior of female Rottweilers as
a breed and the behavior of Immi in particular. Defendant challenges the testimony
on three grounds: (1) that it would be inadmissible character evidence; (2)
that Mr. Bensing's experience with the dog would be irrelevant because it
ended over a year before the shooting; and (3) that it does not satisfy the
prong of the Daubert analysis that requires a "fit" between the
expert testimony and the facts of the case.
The objection to the testimony as inadmissible character evidence is taken
care of by my ruling on character testimony in general. Testimony about Immi's
past behavior is admissible.
That Mr. Bensing's frequent contact with the dog ended a year before the incident
does not render his testimony irrelevant. Mr. Bensing had extended contact
with Immi for over two years and then occasional contact with her until her
death. Defendant may point out to the jury that Mr. Bensing's time with the
dog was only occasional for a year before her death, but he cannot preclude
his testimony entirely.
Defendant's argument about the "fit" step of the Daubert analysis
will be considered at a Daubert hearing.
9. Defendant's motion in limine to limit testimony regarding the valuation
of plaintiff's dog
Under Pennsylvania law a dog is personal property. 3 P.S. § 459-601 (2002);
Desanctis v. Pritchard, 2002 PA Super 221, 803 A.2d 230, 232 (Pa. Super. 2002)
3 P.S. § 459-601 (2002). It is proper as regards the section 1983 claim,
therefore, to limit testimony regarding the value of the dog to that addressing
its value as a piece of personal property. No testimony regarding the value
of Immi to the plaintiffs in particular will be admitted as evidence regarding
the valuation of the dog.
ORDER
AND NOW, this day of November, 2002, in consideration of the parties' motions,
the responses thereto, and the reasons set forth in the accompanying memorandum:
10. Plaintiff's motion in limine to preclude the testimony of Dr. Timonthy Michals is DENIED
11. Plaintiffs' motion in limine to prevent introduction of the testimony of Ronald Traenkle is DENIED
12. Defendant's motion to preclude all testimony and exhibits that seek to attribute human qualities or attributes to plaintiff's dog is GRANTED
13. Defendant's motion in limine to preclude all character testimony related to plaintiff's dog is DENIED
14. Defendant's motion in limine to preclude testimony concerning prior dog shooting by defendant is GRANTED
15. Defendant's motion in limine to preclude the expert report of Richard W. Kobetz will be ruled on after a Daubert hearing
16. Plaintiffs' cross-motion in limine to preclude the expert report and testimony of Ronald Traenkle is DENIED
17. Defendant's motion in limine to preclude the expert report of Andrew Bensing is will be ruled on after a Daubert hearing
18. Defendant's motion in limine to limit testimony regarding the valuation
of plaintiff's dog is GRANTED
THOMAS N. O'NEILL, JR., J.
IV
Taking Chances in Texas: Sudden Infant Death Syndrome
ROBBINS v. TEXAS
COURT OF CRIMINAL APPEALS OF TEXAS
2002 Tex. Crim. App. LEXIS 208
October 23, 2002, Delivered
ROBBINS v. TEXAS
COURT OF CRIMINAL APPEALS OF TEXAS
2002 Tex. Crim. App. LEXIS 208
October 23, 2002, Delivered
JUDGES:
Hervey, J., delivered the opinion of the Court in which Meyers, Price, Keasler and Holcomb, JJ., joined. Keller, P.J., joined in part. Keller P.J., filed a concurring opinion. Keasler, J., filed a concurring opinion in which Holcomb, J., joined. Cochran, J., filed a concurring opinion in which Womack and Johnson, JJ., joined.
OPINION BY:
Hervey
OPINION:
In this capital murder case the prosecution did not seek the death penalty against appellant, who was convicted and sentenced to life for killing the seventeen-month-old daughter of his live-in girlfriend. The issue in this case is whether during the guilt/innocence phase of appellant's trial, the trial court abused its discretion to admit evidence of previous injuries the victim suffered while she was in appellant's care. We will refer to this evidence as "relationship evidence."
The prosecution presented evidence that the victim received the injuries that caused her death while she was alone with, and in the care of, the appellant in their home. Appellant and the victim lived with appellant's mother and the victim's mother. The victim's mother left the victim alone with appellant at home. When the victim's mother returned, appellant told her that the victim was taking a nap; appellant left soon thereafter. About an hour later, when the victim's mother attempted to wake the victim up from her nap, she noticed that the victim was cold and not breathing. The prosecution presented medical evidence that the victim was dead at this time.
Appellant suggested through vigorous cross-examination of prosecution witnesses that the victim's death was not the result of an intentional act by appellant. Through his cross-examination of one prosecution witness, appellant presented the defensive theory that the victim could have died from Sudden Infant Death Syndrome (SIDS) and not from an intentional act by appellant. Through his cross-examination of his parole officer who saw appellant and the victim on the day of the victim's death, appellant presented the defensive theory that he was treating the victim "kindly" with the obvious inference being that appellant would not have intentionally harmed the victim. And through his cross-examination of another prosecution witness, appellant presented the defensive theory that bruises on the victim's body could have been caused by incorrectly performed CPR efforts to save her life rather than from an intentional act by appellant. For example,
Q. Now, I'll give you another situation. An E.M.T. comes up to the location where the adults are trying to do CPR and they are putting a lot of pressure on that kid and blowing a lot harder than they should, and she says, "If she's not already dead, you're going to kill her; stop that," and proceeded to show them the proper way.Would you say that some of that could have led to injuries to the child, adults putting their full weight down and trying to revive that child?
A. You should see it more anteriorly than posteriorly.
Q. Pardon?
A. You should see it more the front to the back, the injuries.
Q. If you've got your palms on the front and you've got little rocks and sticks on the back, you'll see it on the back, you'll see it on the back, won't you? A. Yes. You'd see bruises on the back.
Q. But you wouldn't necessarily see them on the front if they're pushing with their palms, would you?
A. No.
Q. And they could be misfiring and hitting down in the area of the eleventh and twelfth ribs and cause that sort of damage without any noticeable trauma from looking at the skin, couldn't they?
A. If they're pushing down lower, yes.
Q. Pass the witness.
The victim's mother and other witnesses later testified over appellant's objection about the relationship evidence. They testified that on three separate occasions the victim received injuries while she was in appellant's care. For example, the victim's mother testified that on one occasion while in appellant's care, the victim received a black eye. On another occasion while in appellant's care, the victim's "leg was so badly injured she couldn't stand up." And, on another occasion while in appellant's care, the victim "appeared with bruises in her ear and on the side of her face."
Appellant testified that he loved the victim and would not have harmed her. Appellant presented seemingly innocent explanations for how the victim suffered the injuries described in the relationship evidence. Appellant also presented medical expert testimony that the victim's cause of death was "undeterminable" and that the victim's death-causing injuries could have occurred at a time when appellant did not have access to her.
During closing jury arguments, appellant argued that if "anything, he is guilty of the offense of loving a child." He also pointed to the testimony of the two medical examiners who came to "two diametrically-opposed conclusions" about the victim's death: one that "this is a death of undeterminant cause" and the other that it is "a homicide." Appellant put forth the SIDS scenario, and he also emphasized that the bruises on the victim's body could have been caused by incorrectly performed CPR efforts to save the victim's life. Finally, appellant argued: [Appellant] loved the [victim]. The [victim's] own mother said she never saw him yell at the [victim], discipline the [victim]. And everybody else, save for [two witnesses], said they had a loving relationship, got along well; and told how much he loved [the victim] and spent time caring for her. And I don't think there is any doubt about the relationship they had up to [the day of the victim's death]; and there is nothing, nothing that would explain [appellant] doing this terrible thing.
Our reading of the record indicates that the trial court admitted the relationship evidence under Article 38.36(a), V.A.C.C.P., and also overruled appellant's objections that this evidence was inadmissible under Rules 404(b) and 403 of the Texas Rules of Evidence. n1 The Court of Appeals decided that this evidence was "probative of intent and lack of accident" under Rule 404(b) and that it was not "unfairly prejudicial" under Rule 403 because "the prejudicial effect lies in its probative value rather than an unrelated matter." Robbins v. State, 27 S.W.3d 245, 250-51 (Tex.App.-Beaumont 2000, pet. granted). We exercised our discretionary authority to review the Rule 404(b) and Rule 403 decisions of the Court of Appeals.
***
n1 The prosecution apparently claimed that the Texas Rules of Evidence could not apply to exclude this evidence because its admissibility was governed exclusively by Article 38.36(a). This claim was rejected in Smith v. State, 5 S.W.3d 673, 679 (Tex.Cr.App. 1999) (evidence that is admissible under Article 38.36(a) may still be excluded under the Texas Rules of Evidence).
***
RULE 404(b)
Relevant evidence of a person's bad character is generally not admissible for the purpose of showing that he acted in conformity therewith. See Montgomery v. State, 810 S.W.2d 372, 386-88 (Tex.Cr.App. 1990) (op. on reh'g); accord Rankin v. State, 974 S.W.2d 707, 709-10 (Tex.Cr.App. 1996) (orig. op.), and at 717-20 (op. on reh'g). This evidence, however, may be admissible when it is relevant to a noncharacter conformity issue of consequence in the case such as establishing intent or rebutting a defensive theory. See id.; Montgomery, 810 S.W.2d at 387-88.
Because trial courts are in the best position to decide these admissibility questions, an appellate court must review a trial court's admissibility decision under an abuse of discretion standard. See Montgomery, 810 S.W.2d at 391 (trial court "has the best vantage from which to decide" admissibility questions). This standard requires an appellate court to uphold a trial court's admissibility decision when that decision is within the zone of reasonable disagreement. See id. An appellate court would misapply the appellate abuse of discretion standard of review to reverse a trial court's admissibility decision solely because the appellate court disagreed with it. See id.
Appellant claims the Court of Appeals' holding that the relationship evidence "was admissible to show intent and absence of accident is clearly wrong as neither intent nor accident was a material issue given Appellant's denial that he committed this offense." Appellant argues that, because he merely "denied committing the offense," his "intent" or "absence of accident" was "wholly irrelevant." The State urges this Court to decide that appellant's simple plea of not guilty made appellant's intent a material issue in the case and that the relationship evidence was probative of that intent as well as other relevant issues of consequence in the case such as absence of accident.
The State relies primarily on the United States Supreme Court's decision in Estelle v. McGuire which held that relationship evidence was "clearly probative" of the defendant's intent in the defendant's murder prosecution for killing his infant daughter, even though at trial the defendant simply pled not guilty and made no claim that the child died accidentally. See Estelle v. McGuire, 502 U.S. 62, 112 S. Ct. 475, 480-81, 116 L. Ed. 2d 385 (1991). The Supreme Court rejected a claim like the one appellant makes here on the rationale that "a simple plea of not guilty" still "puts the prosecution to its proof as to all elements of the crime charged" and that this burden is not relieved by a defendant's tactical decision not to contest an essential element of the offense. See Estelle, 112 S. Ct. at 481.
The State candidly admits that adopting its position would probably require this Court to overrule or disavow prior case law and we agree. A fair reading of this case law indicates that in Texas a simple plea of not guilty usually does not make issues such as intent a relevant issue of consequence for purposes of determining the admissibility of relationship evidence under Rule 404(b). See, e.g., Vernon v. State, 841 S.W.2d 407, 411 (Tex.Cr.App. 1992) (in defendant's prosecution for aggravated sexual assault of his minor stepdaughter, relationship evidence of prior sexual assaults by the defendant against the same victim not relevant to a noncharacter conformity material issue under Rule 404(b) primarily because the not-guilty pleading defendant did not present any witnesses of his own or do anything to impeach the complainant); Fielder v. State, 756 S.W.2d 309, 318 (Tex.Cr.App. 1988) (theory of the prosecution and the defensive theory or theories determine the material issues in a homicide case); Turner v. State, 754 S.W.2d 668, 673-74 (Tex.Cr.App. 1988) (considering it relevant that not-guilty pleading defendant did not testify and personally deny committing the offense in deciding that it was error to admit extraneous transaction between defendant and a third party); Clark v. State, 726 S.W.2d 120, 122-23 (Tex.Cr.App. 1986) (extraneous offense evidence involving defendant and third party erroneously admitted on issue of defendant's intent in part because the not-guilty pleading defendant did not vigorously enough undermine the prosecution's "case on the issue of intent").
Current law, therefore, creates a "catch 22." It says that a simple plea of not guilty does not make issues such as intent relevant issues of consequence for relationship evidence Rule 404(b) purposes while at the same time it also says that these are material issues that the prosecution must prove beyond a reasonable doubt. Some might agree that this current case law is "wrong."
But this standing alone is not sufficient for us to disregard principles of stare decisis. See generally Awadelkariem v. State, 974 S.W.2d 721, 725-26 (Tex.Cr.App. 1998). One consideration here is that this Court's 8-0 (with one judge concurring in the result) decision in Vernon disavowed a prior "small plurality" decision in Boutwell v. State which would have supported the State's position in this case. See Vernon, 841 S.W.2d at 410-11, disavowing Boutwell v. State, 719 S.W.2d 164, 173-79 (Tex.Cr.App. 1985) (op. on reh'g) (plurality op.) (discussion of why relationship evidence of prior unlawful sexual acts between defendant and the victim were admissible in prosecution of defendant for committing unlawful sex acts against the same victim).
Other than demonstrating that our current case law might be "wrong," the State advances no reasons for disregarding principles of stare decisis. With these considerations in mind, this case presents a scenario where it is probably "better to be consistent than right." See Awadelkariem, 974 S.W.2d at 725. Any changes in current law should come via amendment to the Texas Rules of Evidence or by legislative enactment.
Under current law, therefore, the issue is whether appellant went beyond a simple plea of not guilty and put his intent at issue through vigorous cross-examination or other means (such as the presentation of various defensive theories), thereby making it subject to reasonable debate whether the relationship evidence was relevant to this noncharacter conformity purpose of establishing appellant's intent. Appellant argues that he did not put his intent at issue. While Vernon suggests that a defendant's simple plea of not guilty does not put intent at issue for Rule 404(b) purposes, it does not address the situation where a defendant puts intent at issue through vigorous cross-examination and the presentation of defensive theories. Of crucial import here is the fact that this is not a case where appellant simply pled not guilty. He went beyond simply pleading not guilty through vigorous cross-examination of the prosecution witnesses suggesting that the victim's death was caused by some means other than an intentional act by appellant. As a matter of logic and common sense it is at least debatable whether this is sufficient to put appellant's intent at issue. See Montgomery, 810 S.W.2d at 387, 394. Keeping in mind that the deferential appellate standard of review does not permit the appellate court to conduct a de novo review with a view to making a wholly independent judgment of the trial court's admissibility decision, we cannot say that the trial court would have been outside the zone of reasonable disagreement to have decided that the relationship evidence was relevant to appellant's intent. Cf. Montgomery, 810 S.W.2d at 392. Our decision in Montgomery also does not support appellant's position. Montgomery decided that in an indecency with a child prosecution it was "at least subject to reasonable debate whether the testimony that [the defendant] frequently walked around in front of his daughters naked and with an erection, in combination with other evidence of inappropriate behavior toward them, did have a tendency to show a generalized 'intent to arouse and gratify' his own sexual desire vis-a-vis his children. Montgomery, 810 S.W.2d at 394 (emphasis supplied). Similarly, it is subject to reasonable debate in this case whether the relationship evidence tended to show appellant's intent to hurt the victim.
Notwithstanding the foregoing, the trial court would not have abused its discretion to have decided that the relationship evidence was relevant for the noncharacter conformity purpose of rebutting appellant's various defensive theories including the defensive theory that the victim's death resulted from an accident due to improperly performed CPR efforts to save her life. See Montgomery, 810 S.W.2d at 387-88 (extraneous offense evidence relevant to noncharacter conformity fact of consequence in the case when it is offered to rebut a defensive theory); see also Romero v. State, 800 S.W.2d 539, 543 (Tex.Cr.App. 1990) (appellate court should uphold trial court's decision if it is correct on any theory of law applicable to the case and this principle holds true "even when the trial [court] gives the wrong reason for his decision" and "is especially true with regard to admission of evidence"). It too is subject to reasonable debate whether the relationship evidence made these defensive theories less probable. See Montgomery, 810 S.W.2d at 387 (extraneous offense evidence has noncharacter conformity relevance where it logically serves to make less probable defensive evidence that undermines an elemental fact).
RULE 403
An appellate court also reviews a trial court's Rule 403 decision under the above-mentioned abuse of discretion standard. See Montgomery, 810 S.W.2d at 391-93. The Rule 403 appellate issue is usually whether the trial court abused its discretion to decide that the probative value of the evidence "is substantially outweighed by the danger of unfair prejudice." See Montgomery, 810 S.W.2d at 391-93.
In making this determination, it is important to remember that each word in Rule 403 is significant. For example, it appears that appellant misquoted Rule 403 in the Court of Appeals by arguing "the probative value of the [relationship] evidence was outweighed by its prejudicial effect." See Robbins, 27 S.W.3d at 250. This is a misstatement of Rule 403 which, in relevant part, actually reads "evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." (Emphasis Supplied).
The Rule 403 analysis advances the "overriding policy" of excluding what most agree is relevant and probative character evidence when it is offered solely for the purpose of showing that a defendant acted in conformity therewith. See generally Michelson v. United States, 335 U.S. 469, 69 S. Ct. 213, 218-19, 93 L. Ed. 168 (1948).
Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. (Footnote Omitted). Not that the law invests the defendant with a presumption of good character, (citation omitted), but it simply closes the whole matter of character, disposition and reputation on the prosecution's case-in-chief. The State may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. (Footnote Omitted). The inquiry is not rejected because character is irrelevant; (footnote omitted) it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. (Footnote Omitted).
Id. This "overriding policy" of preventing "undue prejudice" is meant primarily to prevent a jury, with a reasonable doubt of a defendant's guilt of the charged offense, from nevertheless convicting the defendant of the charged offense based solely on the defendant's "wicked or criminal disposition" or solely because the defendant is a bad person generally. See Crank v. State, 761 S.W.2d 328, 341 (Tex.Cr.App. 1988); Michelson, 69 S. Ct. at 219, and at 225 (Rutledge, J., dissenting) (rule designed to "prevent conviction for one offense because perhaps others, or misconduct not amounting to crime at all, have been perpetrated or are reputed generally to lie at the defendant's door"); 1 Wigmore, Evidence (3d ed., 1940), Section 57 ("tendency of human nature to punish, not because our [defendant] is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency which cannot fail to operate with any jury"); 2 Ray and Young, Texas Law of Evidence (2d ed., 1956), Section 1492 (purpose of rule is to protect defendant from the "undue prejudice" that "when evidence is received that accused is of a wicked or criminal disposition, juries are likely to find him guilty of the offense charged regardless of whether it is proved by the evidence"). It also has been stated that this "overriding policy" is to prevent digression "from evidence as to the offense to hear a contest as to the standing of the accused" and to prevent "converting an individual litigation into a community contest and a trial into a spectacle." See Michelson, 69 S. Ct. at 220.
With these considerations in mind, we cannot say that the Court of Appeals wrongly decided that the trial court was within its discretion to decide that the probative value of the relationship evidence was not substantially outweighed by the danger of unfair prejudice especially in light of the defensive theories that appellant presented. Though "prejudicial," the evidence was not "unfairly prejudicial." And, any "unfair prejudice" did not "substantially" outweigh the probative value of the evidence even if it could be said that it "outweighed" its probative value. On this record, there was no reason to believe that the jury had a reasonable doubt for appellant's guilt of the charged offense but convicted appellant based on the relationship evidence.
The judgment of the Court of Appeals is affirmed.
Hervey, J.
[CONCURRING OPINION of KELLER, P.J., OMITTED]
COCHRAN, J., filed a concurring opinion joined by WOMACK, and JOHNSON, JJ.
I concur in the majority's conclusion that the trial court did not abuse its discretion in admitting evidence of previous injuries that seventeen-month-old Tristen suffered while she was in appellant's sole care. n1 I would hold that evidence showing that Tristen repeatedly suffered various physical injuries when left in appellant's care was admissible to prove the corpus delicti of murder. n2 I believe that the court of appeals correctly concluded that "the State had to prove Tristen's death was the result of the intentional act of the defendant, rather than an accident on his part or the intentional act of [another]." Robbins v. State, 2000 Tex. App. LEXIS 5962, No. 9-99-120-CR, slip op. at 10 (Tex. App. - Beaumont 2000) (not designated for publication).
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n1 We granted appellant's petition for discretionary review on the following grounds:
1) Whether the court of appeals erred in upholding the trial court's decision to admit extraneous acts under TEX. R. EVID. 404(b) involving the victim and appellant.
2) Whether the court of appeals erred in upholding the trial court's decision to admit extraneous acts under TEX. R. EVID. 403.
n2 See Salazar v. State, ___ S.W.3d ___, ___ 2002 Tex. Crim. App. LEXIS 195, No. 0045-01 (Tex. Crim. App., delivered Oct. 9, 2002) (quoting 7 JOHN WIGMORE, EVIDENCE § 2072 (Chadbourne rev. 1978)); see also Fisher v. State, 851 S.W.2d 298, 303 (Tex. Crim. App 1993) ("The corpus delicti of a crime-any crime-simply consists of the fact that the crime in question has been committed by someone").
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I.
The State's evidence at trial showed that appellant lived with his mother, his girlfriend, Barbara Hope, and Barbara's seventeen-month old daughter, Tristen. Barbara and appellant had a tempestuous relationship. They argued, split up, and reunited several times. Appellant's personality began to change after he started taking Vicodin for injuries he received in a car accident. Although Tristen and appellant once had a good relationship, by the end of January, 1998, Tristen would no longer allow appellant to pick her up. She seemed afraid of him; she started "cowering from him and would cry."
Beginning in November of 1997, Tristen suffered several physical injuries while she was in appellant's sole care. One evening in late November, appellant babysat for Tristen. The next morning she had a black eye. Appellant explained that injury by saying that he had been bathing Tristen when the child fell in the bathtub and hit her nose. Another time, Tristen's mother took a nap, leaving appellant to watch the child. When she awoke, she discovered that Tristen couldn't walk. In fact, Tristen was so badly injured that she could not stand up or walk for several days. Appellant explained that he had accidentally stepped on Tristen's heel, causing the injury. In early February, three months before Tristen's death, appellant was babysitting the child when Tristen's ear was injured and she suffered bruises on her face and neck. Appellant explained that he had been taking a shower with Tristen and the child slipped and fell in the shower. Appellant maintained that these incidents were simply the result of his "carelessness."
On May 12, 1998, appellant was alone with Tristen for most of the day. Barbara heard Tristen talking before she left home that morning. When appellant's parole officer visited the house in the early afternoon, Tristen appeared to be healthy and "mellow." But when Barbara returned home around 4:00 p.m., appellant told her that Tristen was taking a nap, and, after a brief argument, he left. Barbara checked on Tristen at 5:40 p.m., but didn't disturb her because she appeared to be sleeping. At 6:00 p.m., Barbara decided to wake Tristen up, but when she approached her child, she saw that Tristen's lips were blue and the child was "ice cold." She picked Tristen up and carried her into the living room where appellant's mother was sitting. She tried to breathe into Tristen's mouth, but a pink fluid came gurgling out of Tristen's nose and mouth. Barbara then went outside and started yelling for "anybody to help me," while appellant's mother called 911. Before the ambulance arrived, both appellant's mother and a neighbor performed CPR on Tristen, to no avail. Tristen appeared to be dead before the paramedics arrived. The emergency room doctor thought that Tristen had been dead for some time.
The medical examiner testified that Tristen died from compression asphyxia. She also found a hemorrhage on the left kidney which indicated that force had been applied in that area, as well as blunt force hemorrhages on her chest, indicating that force had been applied to Tristen's back. The medical examiner ruled out CPR as the cause of death because the injury to Tristen's kidney was deep down and required considerable force. She also ruled out SIDS (Sudden Infant Death Syndrome) as a possibility because of Tristen's age "and the story doesn't fit the picture of a SIDS baby death." The State's position was that someone forcefully crushed Tristen to death, and that someone was appellant in whose sole care the child had been left.
Appellant testified and denied ever intentionally striking or abusing Tristen. He stated that he committed no act that caused or led to Tristen's death. The defense medical expert testified that Tristen's cause of death was "undetermined." The defense also theorized that the bruises and injuries noted in the autopsy report were caused by the CPR efforts to resuscitate Tristen.
II.
The State offered evidence during its case-in-chief of prior injuries that Tristen had suffered while she was in appellant's sole care as some proof that Tristen died as the result of a criminal homicide. This testimony was admissible in the State's case-in-chief because the cause of Tristen's death was not an obvious result of intentional homicide. The circumstances were such that Tristen's death could have been considered a tragic accident were there no other evidence. The evidence of her prior injuries, suffered while in appellant's care, supports a finding that Tristen died as the result of a human act rather than as the result of an accident or some undefined natural cause.
As the Fourth Circuit explained in United States v. Woods, n3 in allowing evidence, during the government's case-in-chief, of prior instances in which numerous other children in defendant's care had died or suffered cyanotic episodes:
We think also that when the crime is one of infanticide or child abuse, evidence of repeated incidents is especially relevant because it may be the only evidence to prove the crime. A child of the age of [deceased victim] and of the others about whom evidence was received is a helpless, defenseless unit of human life. Such a child is too young, if he survives, to relate the facts concerning the attempt on his life, and too young, if he does not survive, to have exerted enough resistance that the marks of his cause of death will survive him. Absent the fortuitous presence of an eyewitness, infanticide or child abuse by suffocation would largely go unpunished. n4
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n3 484 F.2d 127 (4th Cir. 1973).
n4 Id. at 133.
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Here, as in Woods, the State offered the evidence of prior incidents to prove the corpus delicti of the crime.
The situation here is also similar to that in the renowned English case, Rex v. Smith. n5 In that case, Smith was charged with murdering Bessie Mundy by drowning her in the bath tub. n6 Smith had recently married Ms. Mundy, who, coincidentally, had inherited a significant sum of money. n7 He had taken his new "bride" to a doctor, saying that she was in ill health, but the doctor found nothing wrong with Ms. Mundy. At first blush, Ms. Mundy's death appeared to be an accidental drowning. However, the prosecution was then allowed to introduce evidence that two other women: (1) had "married" Smith; (2) were found drowned in the bath tub; (3) had insured their lives at Smith's suggestion; and (4) had been taken to doctors by Smith shortly before their deaths, with Smith asserting that they were in ill health. n8 The logical proposition was that one drowned bride is an accident, two are suspicious, and three make murder. Smith was convicted upon what Wigmore called "the doctrine of chances" because the likelihood of three such coincidental events occurring naturally was logically improbable. n9 The evidence was not offered to prove that Mr. Smith had a "drowning" or "murderous" character trait, but to show that it was more likely that Ms. Mundy died from a criminal act because two of Mr. Smith's other brides had died under very similar circumstances. The repetition of similar unusual events over time, involving Smith and different brides, made it possible for the jury to conclude that Mundy's drowning was caused by Smith's intentional act rather than by an inadvertent accident or a health problem. n10
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n5 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915).
n6 84 L.J.K.B. at 2154.
n7 Id. at 2153-54. In fact, Smith was already married, but he went through a marriage ceremony with Ms. Mundy and they lived together as man and wife. Id.
n8 Id. at 2154.
n9 Texas courts have adopted and repeatedly applied Wigmore's "doctrine of chances" in criminal cases. In Plante v. State, 692 S.W.2d 487 (Tex. Crim. App. 1985), for example, this Court quoted Wigmore:
"Without formulating any accurate test, and without attempting by numerous instances to secure absolute certainty of inference, the mind applies this rough and instinctive process of reasoning, namely, that an unusual and abnormal element might perhaps be present in one instance, but that the oftener similar instances occur with similar results, the less likely is the abnormal element likely to be the true explanation of them."
Id. at 491-92 (quoting 2 John Wigmore, WIGMORE ON EVIDENCE § 302 (Chadbourn rev. ed. 1979)); see Morgan v. State, 692 S.W.2d 877, 881-82 (Tex. Crim. App. 1985) (under doctrine of chances, trial court did not abuse its discretion in admitting evidence that defendant touched complainant's and her sister's genitals on other occasions).
n10 See id.; see also 1 John W. Strong, MCCORMICK ON EVIDENCE § 190, at 663-64 (West 1999) (recounting case of Rex v. Smith and explaining the theory of implausibility). Other judicial examples of this "logical improbability" theory include Makin v. Att'y Gen. of New South Wales, supra, note 6 (evidence of the remains of 13 other children found buried on the defendant's property admissible in murder of one boy; "the recurrence of the unusual phenomenon of bodies of babies having been buried in an unexplained manner in a similar part of premises" implied that the deaths were "wilful and not accidental") (cited and discussed in McCormick); United States v. York, 933 F.2d 1343, 1350 (7th Cir. 1991) (in prosecution for defrauding insurance company after murdering his business partner, putting her body in jointly owned bar, and destroying bar by setting off explosives, evidence that defendant had collected life insurance proceeds on former business partner three years earlier, although he was never charged with murder, admissible under Wigmore's doctrine of chances because "the odds of the same individual reaping [life insurance] benefits, within the space of three years, of two grisly murders of people he had reason to be hostile toward seem incredibly low, certainly low enough to support an inference that the windfalls were the product of design rather than the vagaries of chance. ... This inference is purely objective, and has nothing to do with a subjective assessment of [defendant's] character").
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In the present case, the fact that, as the State notes, "things started to happen to Tristen physically" when she was in appellant's sole care, increases the probability, however minimally, that "something" happened to Tristen while appellant took care of her on the day of her death. None of these incidents, taken alone, conclusively demonstrates that appellant intentionally harmed Tristen on those prior occasions or on the charged occasion. None of them prove any character trait possessed by appellant. But evidence that Tristen repeatedly suffered physical injuries while she was in appellant's care increases the probability that Tristen's injury on the day of her death was the result of some act, careless or otherwise, committed by appellant.
The United States Supreme Court expressed this theory of logical improbability in Estelle v. McGuire. n11 In that case, the defendant was charged with murdering his infant daughter. The defendant told police that the child's fatal injuries must have resulted from a fall off the family couch or that "maybe some Mexicans came in" and did it while he was upstairs. n12 The prosecution then introduced evidence that the child had suffered numerous earlier injuries, as well as expert testimony regarding "battered child syndrome." The defendant objected, stating that the prosecution had failed to show that he had inflicted any of the earlier injuries or that those injuries were intentionally inflicted. n13 According to the Supreme Court:
evidence demonstrating battered child syndrome helps to prove that the child died at the hands of another and not by falling off a couch for example; it also tends to establish that the "other," whoever it may be, inflicted the injuries intentionally. When offered to show that certain injuries are a product of child abuse, rather than accident, evidence of prior injuries is relevant even though it does not purport to prove the identity of the person who might have inflicted those injuries. n14
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n11 502 U.S. 62, 68-69 (1991).
n12 Id. at 65.
n13 Id. at 71-72.
n14 Id. at 68.
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The State did not offer expert evidence of "battered child syndrome" in this case, but evidence of Tristen's prior injuries was relevant for precisely the same reasons as those expressed in McGuire. Tristen's prior injuries made it somewhat less probable that her death was the result of SIDS or some other purely indeterminable and accidental cause of death.
Here, as in Rex v. Smith, one physical injury may be purely the result of accident. But because Tristen suffered four such injuries within a single six month period, each of them while under appellant's care, the probability that sheer accident caused each injury decreases significantly.
Therefore, because the evidence of Tristen's prior injuries was admissible for a non-character purpose to prove the corpus delicti of the crime, I concur in the judgment.
Cochran, J.
