Bishop v. State

BISHOP, Aрpellant Lynn Michael (Defendant), Wyoming, Appellee

The STATE (Plaintiff).

No. 83-157. Wyoming.

Supreme Court

July 1984. Aug.

Rehearing Denied Munker,

Leonard D. State Public Defend- er, Haekl, Sylvia Appellate and Lee Coun- sel, Wyoming Program, Public Defender Cheyenne, appellant. for McClintock, Gen., Atty. A.G. Gerald A. Stack, Gen., Div., Deputy Atty. Crim. John Renneisen, Gen., Atty. Asst. Sr. Mar- White, Gen., garet Atty. Chey- M. Asst. enne, appellee. for ROONEY, C.J., THOMAS, Before ROSE, CARDINE, BROWN and JJ. BROWN, Justice.

Appellant Lynn Bishop Michael charged an information with two counts § 6-7-201(a)(i), burglary in violation of alleged appellant I that W.S.1977. Count burglary committed a on December alleged appellant II and Count burglary February committed another Appellant pled guilty to 1982. both counts.

Appellant filed a motion to sever the two purposes contending counts for the of trial prejudice charges because trial court de- were remote time. The Appellant nied the motion to sever. also asking filed a motion in limine the court to preclude introducing from evi- state prior dence of bad acts which included evi- theft, receiving property dence of stolen burglary. also de- This motion was Appellant guilty nied. found of both penitentiary. counts and sentenced to the pawn made the required The individual who further The court Bishop. Michael L. Appellant counts. pay on both restitution court erred in admit- the trial claims that The Boswell home was broken into be- misconduct, in ting prior acts of evidence of p.m. a.m. and 3:30 on March tween 8:00 sever, impos- and in denying the motion to through Entry was made post-incarceration as a con- ing restitution ground-floor bedroom window at the back dition. fingerprints of the house. There were no house, nothing in the and was disturbed part in in will affirm and reverse We silver, sterling jewelry, and but the some part. sterling miss- two silver candlesticks were argues trial Appellant first that the ing. Mrs. Boswell identified the At trial prior admitting erred in court candlesticks as those taken from her home unrelated, and of un acts of misconduct as she could without benefit of well burglaries. appeal On deference is solved They or a serial were initials number. con given a trial court’s determination 10, 1982, August from a fami- recovered on cerning admissibility of evidence. As ly Cheyenne them who had received long legitimate is a basis for a Bishop, “personal as there from Michael L. a say there decision we cannot court’s friend.” Ortega an abuse of discretion. Bentley burglary The occurred between re P.2d 935 To 30, p.m. p.m. September 2:00 and 3:00 examine the evi solve this issue we will gained by forcing open Entry 1981. 404(b), trial and Rule dence аdmitted at Very door the house. little was back Wyoming Rules of Evidence. house, much of the disturbed inside the Bentleys’ jewelry and silverware had been and

Appellant objects to the evidence taken. 404(b) testimony admitted under Rule be- and incriminate cause it tends to involve burglary day The time of the McCue incidents. The evi-

him in other unrelated 30, 1981, September is un- occurred on objected burgla- to three dence to relates burglar through entered a known. The Laramie, ap- Wyoming, which ries sliding glass window at the back pellant charged. sequence The Again, but the house. little was disturbed involving burglaries the Laramie is: jew- events discovеred almost all of their McCues 22, Burgess residence elry missing. December The sil- and a camera were 1980— (Count 20, I); burglarized March 1981— ver was hidden in the kitchen. September burglarized; residence Boswell to tie The evidence which tends 30, Bentley and McCue residences 1981— burglaries to the 25, burglarized; February 1982— manner in were con- which II). (Count burglarized McNiff residence ducted, fact motel clerks had re- and the ceipts Bishop stayed Michael L. that stated Burgess home was into broken 29, 1981, September Laramie p.m. p.m. 1:00 and 6:30 sometime between September checked out 1981. door to on December back forcibly opened and left the house had been event, 1, 1981, which The next November ajar. The house looked order but appellant is an auto- tended to incriminate silverware, Burgesses jew- discovered that certain items mobile accident after which boxes, pistols, el coins and wristwatches appellant’s The in- were found vehicle. missing. pistols had a weap- were One of vestigation of the accident revealed ons, matched the serial pistols, jewelry, serial several items of silver- number ware, surgical gloves, Fed- a screw- pistol number on a recovered from the rubber May Shop eral in Denver on 1982. driver.1 Pawn a оr similar device. that the forcible use of screwdriver

1. There was some evidence accomplished with the entries could have been 404(b), W.R.E., burglary The fifth and final occurred on under Rule and cannot be February burglary 1982. This about used to show the character of the accused is Count II of the information. The bur- or that the accused has propensity a glar through entered the back of the house commit crimes such as those with which he day by forcing open at an unknown time of W.R.E. found; fingerprints a back door. No were crimes, “Other wrongs, or acts. —Evi- however, footprint plas- was found and a dence of wrongs, other or acts is footprint. ter cast was made of the Items prove not admissible to the character of box, pis- taken included a music a western person in order to show that he acted tol, wristwatches, and meerschaum in conformity may, therewith. It how- (All pipes. the McNiffs’ silverware ever, be purposes, admissible for other jewelry deposit in their were safe box at motive, proof such as opportunity, in- bank.) tent, preparation, plan, knowledge, iden- 1, 1982, On or about March a music box tity, or absence of mistake or accident.” description similar to that taken from 404(b), Rule W.R.E. presented by the McNiff residence was Wyoming general follows the rule Bishop antique to a New Mexico dealer. It crimes, wrongs, evidence of other or Bishop ‍‌​​​‌‌​‌​​‌​​‌‌‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌‌‌‌‌​​​​‌​​​​​‍previously learned had normally acts is not admissible in the trial antique sterling sold the dealer some silver State, Elliott v. of a criminal case. Wyo., handle, with a red stone in each which was (1979). general 600 P.2d 1044 rule is later determined to be stolen. 404(b). codified in the first sentence of Rule again Bishop It was learned that had applying rule, In the second sentence of the registered February at a Laramie motel on however, adopted we have a rather liberal 24, 1982, 25, February and chеcked out on admitting attitude toward evidence of other 1982. This coincides with the McNiff bur- crimes, wrongs, or acts. Ortega See glary, placed appellant in Laramie at State, State, Evans v. supra; Wyo., 655 burglary. the time of the State, Hopkinson (1982); P.2d 1214 Bishop being by interviewed the Lar- (1981), Wyo., P.2d 632 79 cert. denied 455 2, police September 1982, amie when 922, 1280, U.S. 102 S.Ct. 71 L.Ed.2d 463 O’Malley Detective noticed his boots. It Hatheway (1982); Wyo., 623 P.2d wearing pair was noted that he was of State, (1981); Grabill v. Dingo type that had the boots same of sole State, supra. (1980); Elliott v. P.2d 802 plaster and were the same size as the cast Such evidence is admissible if it is substan police which the had taken from the McNiff tially purposes, relevant for other and its residence. probative outweighs prejudicial value its State, supra; effect. Grabill v. and El For evidence to be at tri admissible State, supra. 404, W.R.E., liott v. Wright al under it Rule must also be See also 402, Graham, relevant under Rule W.R.E. Relevant Proce Federal Practice and § 401, W.R.E., (1978). evidence is defined in Rule dure: Evidence having any tendency to make “evidence From our detailed review of the any consequence fact that is of existence of Bentley record we believe that to the determination of the action more burglaries ap McCue do not tend to make

probable probable less than it would be or pellant’s guilt charged burglaries in the without the evidence.” Once it deter probable. more Evidence other crimes relevant, mined that the evidence is it must oper- may be used to show that the modus probative if the value is then be determined andi of the other crimes matches the crime danger substantially outweighed by the confusion, helps prove This the defendant’s or prejudice, unfair waste guilt perpetrator of the other If when time as defined Rule W.R.E. known, crimes, helps prove crimes and therefore wrongs, of other there is evidencе acts, may guilt perpe- the defendant’s when he is the only then it be admissible or “(2) trator of the other and the other The other crimes must not be too charged remote in time from the offense. crimes are “* * * “(3) The evidence of the other crimes unusual, unique or and similar in purpose must introduced for a be sanc- (whether charged, nature to the crime 404(b) tioned Rule of the Federal not) very unusual or close detailed Rules of Evidence. (dis- charged resemblance to the crime “(4) charged The element of the offense similar), tinctively may then such crimes that the crimes other is intro- proven and the trier allowеd to infer prove duced to must abe material issue probably culprit, that the accused is in the case. charged since the crime bears the mark * * *” “(5) There must be a substantial need of his handiwork. Louisell and probative for the value of the evidence of § Mueller, (1978). p. 142 Rule the other crimes.” But, “p]n no event will evidence of other Myers, supra, at 1044-1045. See also criminal acts be admissible unless a rela- § Mueller, Louisell & tionship between such acts and the defend- (1978). ant is established.” 1 Wharton’s Criminal proof Bentley While the § Evidence, p. 532 The man- plain, clear and ner in McCue bur- convincing, there was too little cirсumstan committed, glaries being were while simi- tial evidence to connect to these lar, unique were not so as to warrant ad- uncharged burglaries. The defect in prove identity mission into evidence to proofs identity perpetra is the of the accused, of the the ultimate issue in this predicate It tor. is clear that as a to the case. The fact that was Lara- prosecu introduction of extrinsic acts the burglaries mie at the time of these does tion must that the defendant com establish not, evidence, prove ap- without other that Chilcote, mitted them. United States v. pellant committed the aсts (11th Cir.1984); and United 724 F.2d 1498 Appellee claims that the evidence Guerrero, (5th States v. 650 F.2d 728 Cir. Bentley burglaries of the and McCue 1981). identity required Proof of is not identity admitted to show the of the doubt, beyond prima a reasonable perpetrator of the crime but to show necessary in facie case is order to make plan, scheme or course of criminal conduct extrinsic acts admissible. United States v. pertinent Chilcote, v. Ed by appellant during executed United States supra; wards, December, 1980, 1277, (11th Cir.1983), period, through time Feb 696 F.2d 1280 — U.S.-, 1884, ruary, cert. denied 103 1982. To allow evidence of other S.Ct. (1983); United States v. 76 L.Ed.2d 813 plan, crimes to show a scheme or course of Dothard, (11th Cir.1982). 666 F.2d 498 conduct, criminal it must also be shown relationship that there is a between though Even the evidence of the 1 crimes and the defendant. Wharton’s improperly ad- Evidence, However, supra. Criminal the mitted it was harmless error. The admis- strong relationship need not be as for evi sion of such evidence does not mandate plan, dence to to be admissible show reversal of a in all instances. conviction scheme or course of criminal conduct as it As the court said in States v. Co- United operandi needs to to show modus or be 429, (2nd ‍‌​​​‌‌​‌​​‌​​‌‌‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌‌‌‌‌​​​​‌​​​​​‍Cir.1977): rey, 566 F.2d 432 “* * * Myers, v. United States identity. 550 F.2d error, a nonconstitutional as in 1036 There are several fac the case of erroneous admission of simi- tors to determined if of other be evidence evidence, ‘high- lar act is harmless if it is crimes is admissible: ly probable’ that the error did not con- “(1) proof The the other similar tribute to the verdict. Where [Citation.] clear, plain, overwhelming guilt, crimes must and convinc- there be is here, ing. evidentiary as there was erroneous

247 burglary charges matters are rulings on such collateral here were joined in pursuant harmless. the same information often [Citations.]” 11, W.R.Cr.P., Rule and the motion to sever Other federal courts have also held that brought pursuant 13, to Rule W.R. improper admission of similar acts evi State, supra; Hopkinson v. and Ta Cr.P. 404, Federal Rules of dence under State, bor v. (1980). Wyo., 616 P.2d 1282 Evidence, harmless error. can be treated as The evidence would have been the same Chilcote, supra; v. United United States charges had the separately; been tried Cross, (5th v. States 638 F.2d 1375 Cir. therefore, prejudice trying there was no Bettencourt, 614 1981); jointly. them (9th Cir.1980); and United States F.2d Bosch, (1st Cir.1978). 584 F.2d 1113 general regard join rule in joinder proper, der of is offenses that regarded For an error to be as compelling absent reasons for severance. harmful, possi there must a reasonablе State, Wyo., Linn v. (1973), 505 P.2d 1270 error, bility the absence 983, 2277, cert. denied U.S. 93 S.Ct. might verdict have been more favorable to 405, L.Ed.2d reh. denied 412 U.S. State, Wyo., the defendant. Hoskins v. S.Ct. L.Ed.2d (1976), P.2d 342 cert. denied 430 U.S. “* * * public Joint trials inter serve (1977). 97 S.Ct. 51 L.Ed.2d 806 by expediting the est administration of Because of the other evidence introduced reducing congestion, justice, docket con Bishop, that there not a against we hold serving judicial time well as that possibility that the verdict reasonable jurors along avoiding the recall of totality different. In its would have been o perform duplicate witnesses t their over the other evidence introduced was State, Jasch ancеs.” 563 P.2d This whelming in the context of this case. (1972). conclusion is further bolstered the fact Granting denying a motion for sever- gave in the trial court an excellent the discretion of the trial ance rests within limiting jury’s use of the oth struction State, supra; and Dobbins court. Jasch v. In wrongs acts or as evidence. er Wyo., 483 P.2d 255 We mitigates potential prejudice our view this trial can see no reason to overrule the by caused the evidence. regard. in this court’s determination hold also that it was not an We address is The third and final issue we to admit into evidence abuse of discretion imposing in the trial court erred whether burglary and evidence concern the Boswell condi- post-incarсeration restitution as a ing appellant’s vehicle when the contents of error tion. We hold that this was because investigated it in an accident was involved authorizing restitution there is no statute police. the defendant is sentenced to incar- when The second issue we address whether ceration. denying appellant’s in the trial court erred 7-13-308, W.S.1977, Cum.Supp. Section for severance of the two counts. motion 1983, only provides for is the statute which 12, Wyoming Rules of Proce- Criminal restitution, applies only plan a and it dure, states: sentencing court orders a sus- when the (2) or more may “The court order two sentence, suspended pended imposition of a to indictments or informations or both be probation. The statute does sentence or offenses, together if the and the tried post-incarcer- a not allow for restitution as (1), defendants, than one if there is more ation condition. single joined in a indict- could have been legislature body empow procedure The is the The ment or information. punisha crimes are prosecution ered to determine what as if the shall be the same prescribe punishment for those in- and single indictment or ble were under such sentencing power has no acts. The court formation.” Silverware, damaged. jew- house was not restitution ab- post-incarceration order elry candlesticks were taken. Barnes statutory authority. and a set of sent some State, yard was fenced. The The back Wyo., 670 P.2d 302 burglaries occurred the after- Barnes, in the sentence reasoned As we 30, September Entry 1981. at the noon of if differently may treated have been through the Bentley residence was back persuaded that it could had trial court been residence, door; entry at the McCue the defendant impose restitution when not through dining The hous- room window. Therefore, to incarceration. was sentеnced jew- es were not disturbed. Silverware and conviction, reverse the but we affirm Bentley resi- elry were taken from the it is not a lawful sen- because sentence Jewelry and a camera were taken dence. resentencing of the remand for tence. We from the McCue residence. Both back in with the law stated appellant accordance Appellant yards were fenced. was not opinion. in this perpetrator of the three identified as the burglaries. unresolved CARDINE, Justice, dissenting, with ROSE, Justice, joins. whom previously the reason We have held that allowing inquiry charges into for not Appellant wаs tried for two I dissent. did not accusations which convictions charged single in- separate burglaries result is that: formation, burglaries being alleged to said “ evidence, dangerous species ‘It is a 22, 1980 and occurred on December have only requires it a defendant because Laramie, Wyoming. February 25, explain other acts than those to meet trial in this The court received charged against him he and for which burglaries, one which three other unsolved trial, may also because it lead the 20, March two which occurred great principle, that a jury to violate the September 1981. The facts occurred party is not to be convicted of one crime burglaries are as fol- concerning the five ” by proof guilty he is of another.’ lows. State, Gabrielson 510 P.2d burglary first with which (1973) (quoting from Rosencrance v. Burgess at the resi charged occurred Wyo. 239 P. of December dence the afternoon (1925)). forcibly opened had been The back door also stated that: We door, ajar. than broken and left Other jurisdiction is settled law this and did not seem “[I]t looked order house accusations, charges, and ar- that mere Silverware, jewelry, disturbed. innocence; and rests are consistent with yard The back pistols were taken. if the they inquired should not be into burglary fenced. second purpose prosecution is to discredit charged occurred at appellant was eyes jury of and the witness in the the February night of during the McNiff house knowledge that such convey jury to the February morning of 1982 or the charged a crime.” Id. witness was with ‍‌​​​‌‌​‌​​‌​​‌‌‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌‌‌‌‌​​​​‌​​​​​‍had been in the door 1982. A window back watches, at 536. a set of pistol, A broken. three music pipes, meerschaum box upheld previously have the introduc We left in The house was

beers were taken. crimes, wrongs, in tion of other or acts disarray. yard was fenced. The back W.R.E., 404(b), when connection with the purposes for other than that burglaries received submitted The three unresolved Ev Boswell, Bent- accused has criminal characteristics. in at the evidence occurred State, Wyo., (1982) v. Laramie, P.2d 1214 ans Wyo- ley in and McCue residences State, Hopkinson v. (motive); Wyo., 632 burglary at the Boswell ming. In the State, Hatheway v. (motive); (1981) P.2d 79 house, through an unlocked bed- entry was (1981) (knowledge); Wyo., 623 P.2d 741 sometime room in the basement window State, Wyo., Vasquez P.2d 1205 during day the of March (1981) conduct); Elliott v. (past pattern identify of cient appellant, to I would still find State, (1979) (motive). Wyo., improperly 600 P.2d 1044 this evidence admitted. during We have allowed extrinsic evidence expressed by Two concеrns are the first regarding rebuttal identification and intent 404(b) (1) sentence of Rule in that jury the State, Grabill v. in Wyo., 621 P.2d 802 may convict a “bad man” who deserves to (1980), opened the defendant when has punished, be not because of the crime by offering the San testimony. door first charged, prior but because of or subse- ville v. 593 P.2d 1340 quent misdeeds, (2) jury might that the identity In all of those cases the of the infer that because the accused has commit- perpetrator defendant as the of the other ted other probably he also commit- acts in not in received evidence was dis ted this crime. United Phillips, States v. pute. 599 F.2d 134 majority In the of cases whiсh vast deal A defendant must be tried for he what propriety receipt the evidence of did and not for who he is. United States v. charged, crimes other than crime Foskey, 636 F.2d 517 (D.C.Cir.1980). identity perpetrator of the of those other 404(b) “Rules 403 and are not obstacles undisputed. case, crimes is In this how- costs, to by cutting be cleared at all even ever, identity of the defendant around corners possible whenever it is to perpetrator dispute. of the crimes was do so. These designed rules were Thus, problems determining involved just ensure a defendant a fair and trial first, admissibility compounded: were upon presented, based thе evidence prima evidence must make a facie case that upon impermissible inferences of crimi- perpetrator the defendant was the predisposition nal confusion of the second, burglaries; other the evidence issues.” Id. at 525. 404(b) must be admissible under a Rule admissible, For other-acts evidence to be it exception; third, if admission were must be relevant to an actual issue of the proper, probative value must not be probative case tried. The value must not outweighed by prejudicial its effect. outweighed by prejudice. unfair There presumption is no that other-crime evidenсe

Appellant charged was not with nor con- DeVaughn, is relevant. burglaries. victed of the three unsolved (2nd Cir.1979). See, United 601 F.2d respect Sep- With to the two Halper, (2nd States v. F.2d 422 Cir. 30, 1981, tember all that could be said was 1978). logical There must be a nexus be appellant was in the town of Laramie Mann, tween the crimes. United States they ap- on the date occurred. So were (1st Cir.1978). 590 F.2d 361 The evidence 20,000 proximately people other in town on must be offered for an issue that only testimony relating this date. The Ring, United States question. 513 F.2d appellant’s involvement the Boswell bur- (6th Cir.1975), 30 A.L.R.Fed. 860. glary testimony from a motel clerk sight of “Too often we lоse the fact that placed him Laramie at the time of primarily the rule a rule of exclusion ‍‌​​​‌‌​‌​​‌​​‌‌‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌‌‌‌‌​​​​‌​​​​​‍the incident and the fact that he had can- admission, and not one of he dlesticks similar to those stolen which and, although many exceptions, there are given had to a friend. This evidence does general these do not detract from the requisite prima not rise to the level of the exclusionary approach which the rule de- in fact the facie1 case that mands. Jones, State v. perpetrator. Wyo. (1920). assuming, factors have to for-

191 P. 1075 But even “Several contributed judicial arguendo, testimony this was suffi- mulation of a cautious attitude. thаt disclosure; presumably; presumed 1. "Prima facie” is defined Black’s Law Dic first a fact 1979) (5th tionary disproved by Ed. as: to be true unless some evidence ” * * * contrary. sight; appearance; to the "At first on the first on the it; judged face of so far as can be from the 250 to the do not rise

“First, required to defend en. These characteristics the accused is “signature,” are not described the and the evidence has charges which level of a indictment. As a result information or not admissible where been held past actions required to defend he is [for] sufficiently ‘pecu- was not conduct “[t]he * * * past in the answered may he havе which liar, bizarre,’ unique nor was it or may respect to which he have and with constitute unusual or distinctive as to so Thus, he is in his sentence. * * * even served ‘signature’ crime personal on each though such a a recidivist effect tried as * * (Citations omitted.) United crimi- charge part a of the federal is not Ezzell, (9th States v. F.2d nal code. Cir.1981). may although such evidence “Secondly, alleged similarities between “Where the the of- relevance to have at least some crimes reveal little common other quality tried, being predominant its fense sequence than a of time from the crime character up is to show the dеfendant’s charged, the acts are not unusual and artist, for a check as a car thief or bad enough to come distinctive within defendant’s socio- example. Proof of similarity element of the purview of the object. disposition is not a valid pathic Case, Mont., State v. exception.” generally bad has Showing that a man P.2d system under our allowable. never been right to be tried on has a The defendant State, recognizing the weakness of specific charge contained the truth of the relying “identity” proper ground as a in the indictment. evidence, admitting other-crimes for “Third, truth is that once an obvious properly contends that the evidence was introduced the trial prior convictions are plan” excep- admissible under the “common is, completed practical purposes, for all tion. When extrinsic acts are admitted mere follows as a guilty and the outcome design, the plan, a common scheme or show regardless of the formality. This is true only if it is evidence is admissible by the court employed care and caution *“ * * together point ‘so linked instructing jury. the crime time and circumstances with “Thus, problem is not it is clear that charged that one cannot be shown with- one, goes evidentiary rather simple a but * * * Courts proving out the other.’ justice fundamental fairness to the admitted extrinsic act evidence to have omitted.) (Footnote of the trial itself.” design plan or show a defendant’s Burkhart, F.2d but charged, specific crime commit Cir.1972). (10th 204-205 plan design to show a or to com- never allowed the evidence The district court with which he is mit ‘crimes the sort * * * ’ identity. it related to theory on the Thus, design proof of or 404(b) incorrectly invoked on this showing plan by the commission of simi- purpose Admitting for the basis. requires lar acts more than that if the identity requires an inference “ results, ‘merely similarity in the crime, then in all one defendant committed a concurrence of common features such or dis- probability, of the unusual because naturally the various acts are to be the close crimes and tinctive nature of the explained by general plan caused them, he committed the similarity between they the individual manifesta- are special no burglaries bore second. These * * * added; (Emphasis em- tions. entry, signature mode of such as unusual omitted.) United original phasis occurrence, special circumstanc- time of Dothard, F.2d States entirely as to be They es. were so common Thus, entered unhelpful. the houses were common-plan theory must warrant an home, the entrances when no one was at inference that if the defendant committed observed, yards were were not the back introduced, fenced, tak- the other acts he committed easily items were “fenced”

251 Hunt, 72 charged. People v. of the entire transaction. The other act Cal. acts (1977). App.3d Cal.Rptr. A in place twenty-four 675 admitted took hour plan common scheme or embraces the com present In period. burgla- the case the five are so mission of two or more crimes which place period. ries took over a fifteen-month proof the of onе related to each other that transaction; They part were not of one ad- proof crime to establish the of the tends present mission of one crime did not a more Weaver, 565 F.2d other. United States v. complete burglary. version of another Re- Cir.1977). (8th burglaries These were upon theory liance this for admission of totally separate occurring incidents over a totally this other-crimes evidence is mis- period fifteen-month and not interrelated to placed. And, impossible it is to tell which the crimes Proof of one did not theory majority upon uphold- the relied for proof relate to of the others. ing concerning the admission of evidence prior permitting “In evidence of offenses burglary the Boswell since their entire part a common to be received as a of analysis of that evidence consists of: scheme, plan perilously come or we have “We hold that it was not an abuse of putting the defendant’s charac- close to discretion to admit into evidence the Bos- notwithstanding ter and record issue * * burglary well stand, his failure to take the witness I would find that the evidence this Spreigl, v. State case.” the instant case is in the nature character evidence 272 Minn. N.W.2d prove that acted in introduced to conformity his character on these oc- with v. United States agree I would with purpose casions. Admission for this Phillips, supra: 404(a), clearly proscribed by Rule W.R.E. showing purpose “For the ‘intent and Biswell, v. United States 700 F.2d 1310 plan,’ judge admitted testimo- the district simply The evidence ny connecting the defendant with several burglaries by of other someone. evidence robbery other than the bank robberies predominant quality Its was to show the Something he was on trial. for which burglar character as a and his defendant’s repeated performance of the more than propensity for crime. required crimes in evi- same class of Biswell, supra. which, dencing ‘design’ ‘plan’ if proved, may the inference that the raise majority The concedes that the admission perpetrator of the crime accused was the into evidence of question.” 599 F.2d at 136. error, burglaries holds it to be judge carries harmless error. trial attempts argu- to bolster its State during him credibili trial considerable theory the other-crimes by ment jury. ap ty eyes When he “complete evidence relevant to show a of other proves the admission of evidence story” jury was entitled saying the is rele he is story appellant’s complete know the ac- determining may considered in vant and period during the of December tivities guilt of the crime defendant’s or innocence relies through February 1982. The State limiting charged. The instruction was not Tharp, Wash.App. on the case State Here prejudice. to overcome the sufficient (1980) proposi- for this 616 P.2d 693 unsolved, jury heard evidence of However, case. In they misread that tion. held unrelated Tharp, evidence was admitted of State —evidence improp majority of this court to have been activity because the criminal other criminal cannot, any erly admitted. I under credible crimi- inseparable from the whole acts were legal theory, find that to be harmless error. allowed be- scheme. The evidence was nal United States appalling. In The result is string connected it consisted of a cause Parker, (10th Cir. 604 F.2d prosecution it offenses and without 1979), fragmentary the court held that: only present a version could “Improper admission of evidence of a conviction,

prior crime or even in the face amply supporting

of other evidence

verdict, plain impinging constitutes error

upon the fundamental fairness of the

trial itself.” generally

It is held that such error consist-

ently requires reversal “even the face of ample support other the ver- Gilliland, v. United States dict.” F.2d (10th Cir.1978); United States Burkhart, supra.

v. And there was where improperly

a reversal because of admitted

evidence, the court stated that it was ironic

that, although the evidence did not add to prosecution, they of the case were still say

unable to the evidence was harmless. Mann, supra.

United States Other though

cases have resulted in reversal even

the admitted evidence was found ‍‌​​​‌‌​‌​​‌​​‌‌‌‌​​​‌‌‌​​‌‌​​​‌‌‌‌‌‌‌‌​​​​‌​​​​​‍not neces- United States v.

sary prosecution. for the

Foskey, supra. See, Fierson, Ring, supra; United States

F.2d 1020 uncharged

Evidence of three and unrelat- presented.

ed These bur-

glaries were not connected with they properly any

nor were admitted under 404(b). exceptions Appellant of Rule having

was foreclosed from a fair trial on merits; only I can the affirm- describe travesty justice

ance of this case as a safeguards

and a denial of the which are

designed to ensure a defendant a fair trial. COMPANY,

R.L. MANNING (Employer),

Appellant MILLSAP,

William Glenn C.

Appellee (Employee).

No. 83-214.

Supreme Wyoming. Court of

Sept.

Case Details

Case Name: Bishop v. State

Court Name: Wyoming Supreme Court

Date Published: Jul 20, 1984

Citation: 687 P.2d 242

Docket Number: 83-157

Court Abbreviation: Wyo.