Gezzi v. State

fair such misdeeds denied the accused a

trial. added). (emphasis at 1154 Id. prejudice there is no to a defen- Where dant, clearly plain is no error there war-

ranting Appellant has no a new trial.

grounds request punitive as a reversal prejudice appellant’s measure no rights was shown.

Affirmed. GEZZI, Anthony

Peter (Defendant), Appellant Wyoming, Appellee STATE (Plaintiff). No. 88-266. Supreme Wyoming. Court of

Sept. Munker, Defender,

Leonard State Public Cheyenne, Wyoming Defender Aid Pro- Gallivan, Director, gram: M. Gerald Benham, Intern, Samuel B. Student Lara- mie, appellant. Gen.,

Joseph Meyer, Atty. B. John W. Renneisen, Gen., Deputy Atty. Karen A. Gen., Atty. Byrne, Cheyenne, Sr. Asst. Jo Intern, Casey, Prosecution Messex Student Laramie, Program, appellee. Assistance CARDINE, C.J., and Before

THOMAS, URBIGKIT, MACY GOLDEN, JJ.

GOLDEN, physical fied that Justice. evidence the first pediatrician making relied on in her conclu- (Gezzi) Anthony Gezzi was convicted of sion could be consistent with but was incon- two counts of immoral or indecent acts abuse, of sexual clusive and could be con- daughter, his 14- with violation of W.S. pedia- sistent with masturbation. This (July Repl.). appeal, he 3-105 On trician did not examine G.G. erroneously contends that the trial court trial; testify Gezzi did not at his coun- prior admitted evidence of' his theory sel’s of defense was that Gezzi was involving earlier similar immoral or inde- charged. innocent of the crime de- so daughters. cent acts with another of his fending, his counsel attacked G.G.’s credi- We affirm. bility by introducing evidence at trial indi- 4, 1987, Friday, On December the victim cating that G.G. had several behavioral Gezzi, G.G., daughter seven-year old problems, important the most of which good a touch film watched touch/bad at lie, up were a to make stories film, school her After with classmates. family reality about her and to distort more regularly group G.G. went to her scheduled age. than most children her Because of counseling session with her counselor. acknowledged problems, these behavioral session, inWhile revealed to her coun- after an hearing prosecu- G.G. in-chambers father, Gezzi, her selor that had “bad tion introduced the of G.G.’s old- sister, parts, touched” her or er P.G. private touched her P.G. testified that Gezzi sexually had doing and had so since abused her for been G.G. was almost five years kindergarten. finally away before she She stated that the latest ran from home. She stated previous reported incidents that she had had occurred the Mon- abuse, week, the sexual that her father day Wednesday admitted of that Novem- it, family that counseling went into 30 and ber December when her report, charges after the that no were penis, father made her touch his touched brought against him. Further evidence of penis his her and touched her with his the sexual abuse of P.G. was introduced legs. hands between her She further stat- through objected other witnesses. Gezzi ed that her father had told her not to tell the introduction of this anyone because her mother and brothers 404(b), stating acts under W.R.E. that anymore. would not love her After G.G. only purpose could repeated police her statements to the introducing have it was to inflame the Department of Public Assistance and jury. disagreed, finding The trial court Services, Social Gezzi moved out of the that admissible on the family Following investigation, home. an credibility. issue G.G.’s 15, 1988, complaint on March a criminal against charging was filed Gezzi him with 10, 1988, On June found Gezzi violating two counts of W.S. 14-3-105.1 guilty of two counts of immoral or indecent child, proscribed by acts a with W.S. by pediatrician was examined G.G. who judg- 14-3-105. The trial court entered evidence, physical concluded from the in- 6,1988, August ment on sentenced Gezzi to cluding scarring thickening hy- count, years suspend- two to three on each larger hymenal men and a than normal ed the sentence on the second count and old, opening year for a seven that G.G. had imposed years probation to three be served abuse, been the victim of chronic sexual ap- at end the first sentence. This physical symptoms could not peal followed. have caused A jury been masturbation. through was held on June 7 contends that P.G.’s testi Gezzi trial, pediatrician mony implicating At for the defense testi- him of sexual activi- encourage provides part: 1. W.S. 14-3-105 to cause or another child to com- immodest, any or indecent act is Any person knowingly taking mit with him immoral im- * * any guilty felony moral or indecent knowingly causing of a *. liberties child encouraging any child of such evi in the admission under W.R.E. discretion ty her was inadmissible 404(b). provides: Consequently, The rule in our review dence. crimes, or acts. —Evi- wrongs admission of similar evi

Other trial court’s crimes, wrongs or acts is has an look see if there been dence of other we light the character our not admissible of that discretion abuse Elliott, he in order acted person to show P.2d at decisions. previous may, conformity It how- therewith. 1049. ever, purposes, for other be admissible 1927, that in early As as this court held motive, in- opportunity, of such as similar context of sexual offenses other the knowledge, tent, plan, iden- preparation, if of the defendant could be admitted acts accident. tity, or of mistake or absence charged of the they involved victim prohibits introduc generally rule This State, Wyo. v. 78, offense. Strand 252 36 might of acts that tion of evidence extrinsic (1927) (in prosecution rape of a P. 1030 for adversely upon reflect accused’s char old, ten-year properly admitted court com Unquestionably, Wyoming is acter. occur- other acts of intercourse 404(b) general rule applying mitted to ring the accused to between victim and in criminal cases. Elliott v. of exclusion intent of disposition show “the lustful and State, 1044, (Wyo.1979). P.2d 600 1047 Quirk, v. defendant.”) See also State exceptions exclusionary Yet, several to the 462, (1928) (citing 268 Wyo. 38 P. 189 in Rule exceptions noted rule exist. Strand, admission); and rule of 404(b) of other under which evidence Koch, v. State 175, Wyo. 64 189 P.2d 162 not exhaus crimes are admissible Quirk Strand (1948) (citing rather are illustrative. United tive, jurisdic- noting rule and that most Masters, 83, (4th States v. 622 F.2d 86 permit testimony tions to corroborate Beechum, 582 States v. Cir.1980); United testimony the victim’s the offense Makinen v. 898, (5th Cir.1978)2; 15 F.2d n. prove perpe- identity or to of the State, 345, (Wyo.1987); 737 P.2d 347 trator). years expanded In recent have we State, v. 1110, 1111, Brown n. 1 736 exceptions 404(b) on the to Rule in the State, (Wyo.1987); Hopkinson v. permit- of sexual have context offenses and 79, (Wyo.1981), 127 denied 455 U.S. cert. testimony the admission third ted 922, 1280, 463 102 S.Ct. 71 L.Ed.2d other persons as to similar acts between exceptions previously recognized “We have Brown; and the themselves accused.3 404(b) exclusionary rule other than to the Elliott. Brown, cases, recognizing These the na- catalogued in the 736 those rule.” tionally predominant towards admis- recognition trend P.2d at n. This party suggested of third of similar exceptions apart sion from those acts, greater helpful to here.4 the rule affords trial courts are our determination 404(b), thirty jurisdictions adopted 2. Rule Federal Rules of Evidence state have 404(b), patterned Wyoming of Evi- rules. identical to Rule Rules codes after the liberal federal Therefore, today's position, liberal is the we find federal cases ad- Under exclusion dence. dressing inclusion, exception the rule this rule to which is instructive. problem administering this norm. "The true inclusionary principle Mueller, Evi pigeon In 2 D. Louisell and C. Federal is not to find dence, Aug.1989), fit, (Supp. the au proof might § at 36 but to deter hole in which 404(b) prove so, Rule as an "inclusion- prior thors characterize whether the does tend to mine something act rule, and, ary" opposed as traditional charac other than if to "exclusionary," relevancy of the rule thus particular terization determine whether its out is, emphasizing the more stance taken weighs prejudice liberal risk the risk of —that jurisdictions regarding admission of most will draw the forbidden and that deadly three-step either prior circuit evidence. Nine federal from bad act to bad inference Congress’ guilt, give unthinking use of person way courts have determined that 404(b) as" in Rule the federal impulse punish.” "such commits emotional Id. e.g. inclusionary approach. courts to Moore, (D.C.Cir. liberally recognize jurisdictions United States v. Til F.2d 983 4.Several 1984); Gustafson, evidence in sexu- and United 728 F.2d States v. (8th Cir.1984), denied, purposes. See Bowden v. 469 U.S. al offenses for various State, cert. Also, (evidence (Ala.1988) ad- S.Ct. 538 So.2d L.Ed.2d 315 (Ind.1989) (depraved sexual in 537 N.E.2d stinct); State, (Ind.App. purpose,” 536 N.E.2d 526 prove any v. "material other missible Lutz instinct); State, 1989) motive); (depraved Stwalley Soper sexual v. including identity State, (evidence (evidence (Ind.1989) (Alaska ad App.1987) 534 N.E.2d 731 P.2d 587 victim, depraved instinct and also missible to show a sexual acts with older sisters of defendant, credibility complaining daughters to show to bolster the was admissible improbable.); disposition highly the acts seem An and was witness where the defendant’s lewd (Ind.App.1988) testimony); N.E.2d 360 State drews v. (evidence corroborative of the victim’s Weatherbee, question guilt not admissible on Ariz. v. (1988) (admissible instinct, motive, depraved sexual in to show common scheme but is tent, Young purpose, identity, plan. propensity); common scheme or and emotional (1988) (evidence The rationale is to bolster the Ark. prior 757 S.W.2d 544 chargeable prosecution’s and the witness when the acts occurrences between the victim continuing, improbable, Rule of seem or the acts are accused is admissible under Arkansas they likely independently it and it is occurred before or will relevant Plaster, tending again.); occur State v. 424 N.W.2d 226 to the main issue in the sense prove (Iowa 1988) (evidence point prove rather than to admissible to mo some material intent, criminal, tive, opportunity, preparation, plan, can be admissi iden the defendant is a cautionary tity, knowledge, in or absence of mistake or acci ble to show sexual instinct. A given. purposes acts oc dent. The court noted that the list of struction must be curring Evidence of party third listed in I.R.E. was not exclusive. "The between defendant and challenged any exceptions.); key is whether the evidence is rele not admissible under 190, Hunt, Cal.Rptr. legitimate People Cal.App.3d vant and material to some issue other v. 72 139 (2d Dist.1977) (corroboration); general propensity to com Adrian v. than the defendant’s 675 (Colo.1989) (evidence wrongful People, If meets this 770 P.2d 1243 ad mit acts. the evidence test, admissible, notwity purpose prima missible if offered for the limited establishing identity, of litmus it is facie scheme, design, plan, a common to demonstrate the accused’s character.” motive, cases, noted, guilty signature operandi, However, the court are like modus knowl Sex crimes; thus, highly edge prior must evidence would be or intent. 907, relevant.); prima Hampton, first have a case before such evi State v. 215 Kan. 529 facie Moreover, (1974) (intent, limiting plan operation); dence can be introduced. P.2d 127 of Walker, given. Finally, (La.App.1989) instruction must be the remote State v. 540 So.2d 1059 case, (in (evidence years) gestae prior ness of the crime fifteen admissible res Baker, deed); only weight part act a whole v. affects not the State 535 140, evidence.); Hauck, (evidence (La.App.1988) State v. 172 Conn. So.2d 861 admitted for (1976) (common de corroboration of the offense and to show the 374 A.2d 150 sign); scheme or State, (Fla. parties, Snowden v. 537 So.2d 1383 intimate relations between the the de witness); (identity, disposition, probability App.1989) credibility of com Cal fendant’s lustful State, loway (when (Fla.App.1988) v. So.2d mission of the offense and to rebut defendant’s alibi); 520 665 Howard, setting (La.App. So.2d 1150 crime occurs in the familial and State v. 520 crime, Elliott, 1987) (citing only the victim is the witness to the the court held that evidence motive, intent, issue; plan, victim’s fore, a focal there was admissible to show becomes appli disposition, lustful unnatural desires of sexual court relaxed the strict standard intercourse, inclination, propensity, disposition cable to similar acts evidence and allowed evi family general, opportunity system battery a sexual of another toward sex in scheme, operandi, atically engage member as relevant to modus in nonconsensual relations with plan design daughters; permitted and was also to corroborate in order to corroborate the State, Ouellette, testimony); Beasley testimony); State v. victim’s v. 518 So.2d the victim’s 544 State, (evidence (Fla.1988) (Me.1988) prior (opportunity); convic 917 McGuire v. A.2d 761 tion on sex related crime was held admissible to 891, (1988) (notes Ga.App. 188 374 S.E.2d 816 parties); exception general relationship that an to the rule that evi show the between the Peo Burton, independent ple Mich.App. dence of crimes is inadmissible has v. 28 184 N.W.2d 336 victim, intent, (1970) (credibility liberally complaining the area of been most extended in offenses; motive, scheme, plan system); Shamp, v. sexual scheme, is admissible to show or State (common plan, (Minn.App.1988) con N.W.2d bent of mind and course of State, scheme); (Mo. duct); Lingle, Conaway Ga.App. State v. 759 S.W.2d 638 v. adult, (1988) (evidence (in App.1988) rape prior prior of an evidence of S.E.2d 660 plan, show common with victim’s sister admissible to show lustful bad acts was admissible to instinct); disposition depraved and the attitude toward scheme or sexual State v. defendant’s (Mo.1971) (evidence family); Simerly, State 463 S.W.2d 846 the female members of his v. (1982) Greensweig, prior acts with sister of victim ad 102 Idaho 641 P.2d 340 incestuous Daniels, (intent); purposes.); People Ill.App.3d State v. missible for corroborative (evidence (2d Dist.1988) Eiler, (Mont.1988) ad 122 Ill.Dec. 527 N.E.2d 762 P.2d 210 motive, motive, intent, (evidence opportunity. plan, to show admissible show missible. test, mistake, identity, knowledge, applied four-part first enunciat absence of com court State, design, plan operan 184 Mont. mon scheme of and modus ed in Just v. State, (1979), di)-, (Ind.App. the evidence Hickman v. 537 N.E.2d 64 to determine whether State, 1989) instinct); (depraved to be be admitted. The four factors sexual Bixler would and Elliott are virtu- The facts Brown testified about a con- of the defendant ter involving sexual tinuing of conduct ally in the case us. course to those before identical Elliott, contact between her- intercourse or sexual charged In was the defendant occurring over a step-daughter; at self and the defendant sexually assaulting his beginning when period years older sister testified re- several trial the victim’s years In half-sister was six old. garding prior instances of sexual as- about three case, court admitted testi- involving defendant herself. each the trial sault Brown, showing mony motive. charged was the defendant Brown, 1113; Elliott, daughter; P.2d at his natural at incest with daugh- at 1048. said: adopted We half-sister victim’s offenses); constituting continuous Turner v. (1) (Tex.Cr.App.1988) (citing similarity of are: the crimes S.W.2d considered time; (3) acts; (2) tendency (Tex.Cr.App. Albrecht v. 486 S.W.2d 97 nearness in scheme, 1972), plan, excep several common establish a common court listed evidence to (4) probative prohibiting system; whether the value tions rule admission outweighed by preju of extraneous offenses: evidence extraneous of the evidence was its has noted the acts need offenses committed accused been held dicial effect. The court only "sufficiently admissible: the context in similar” to to show which the be identical admission, gestae five-year justify criminal act their that a occurred—res —under reasoning lapse in a between the act and the that events do not occur vacuum of time (defendant right remote and the to hear what occurred acts was not too has through stepfather complaining immediately victim before and after commission of the marriage stepfather they may realistically act so that one victim evaluate the evidence; (2) circumstantially marriage). op prove identity through previous The lack of portunity lapse insignifi caused the time be where the state lacks direct evidence on the to issue; (3) scienter, cant); (Mont.1988) Gilpin, prove P.2d where or State v. 756 445 to intent 404(b) (admissible guilty general purposes knowledge element for but is an essential of the (1) prior to the state’s case itself; be inferred from must have: notice defendant to and cannot the act evidence; mind, (4) or state of the intent to introduce such malice of (2) of essential and cannot be inferred an admonition the evidence’s malice is act; (3) (5) motive, purpose; cautionary and from the to show limited instruction); similar 701, Hoffmeyer, the the offense is State v. 187 Neb. where commission of either (1972) (intent motive); upon 193 760 or commission of extraneous of Find- conditioned N.W.2d 212, (1978) ley continuing plan part or is or v. 94 Nev. 577 P.2d 867 fenses scheme crime; (intent, mistake); Johnson, (6) lack of State v. 130 with the to refute de 578, (1988) (evidence by prior the defendant. N.H. 547 A.2d 213 of fense theories raised exhaustive, bad acts with victim allowed to mode of court noted that while this list is not show operation question application exceptions and on of rote the be coercion to show of should crime, motive, system activity, identity, in-depth analysis proba of the of the avoided and an (cid:127) context); Velasquez, performed People v. 141 A.D.2d tive value of the evidence should 882, (2 165, (state every case.); Dept.1988) Hurley, N.Y.S.2d 208 of v. 150 Vt. 530 State 552 Elliott, mind); (1988) Bagarozy, (citing People court 132 A.D.2d 522 A.2d 382 the noted (1 Dept.1987) (noting although prior that of bad acts ad N.Y.S.2d 848 404(b) the is motive, intent, exceptions exceptions V.R.E. of absence of missible under the accident, plan operandi, consistency or common or to show or mistake scheme modus similarity identity, prior plan pattern, the court admitted or in this case a of time lapse years operated the defendant's de evidence to show amorous ten to twelve make available; Thomas, sign); prior N.C. relevance acts not Cf. State v. 312 S.E.2d of the (1984) Parker, (1988) (identity response A.2d 512 458 alibi); and in to defense State 149 Vt. Jackson, prior App. (probative State v. 82 Ohio of defendant’s sexual as value (motive, emotion, although passion, juvenile, or sault on male N.E.2d 546 degeneracy another remote time, type prompting highly significant tendency same in its commission motive, intent, offense); opportunity, prep plan, Jett v. establish aration); (Okl.Cr.1974) Schut, (system plan or 71 Wash.2d characterized State v. (1967) (evidence peculiar operation); prior method of State v. Wood- acts with son, (R.I.1988) (evidence inclination); A.2d 1187 admissi victim to show lustful admissible scheme; Mink, design, plan, ble or also admis State v. 146 Wis.2d 429 N.W.2d to show (App.1988) (noting greater disposition lewd or latitude of sible to show defendant's admis sibility reasonably necessary prior in the context intent if it is to show a of sex minor, case); permitted aspect Loop, court material State v. crimes with a evi (S.D.1988) (motive, intent, opportu N.W.2d 420 nity, dence to show motive and to corroborate the credibility plan, preparation, knowledge, testimony against absence of victim’s attack accident, defense). tending mistake or to show acts the facts of this case and the Under aberrant sexual behav- Incest involves Elliott, rationale of Brown and evi- deviancy that is type is a of sexual ior—it properly may have been admitted Therefore, a tri- difficult to 'understand. motive; showing the trial might wonder what would er of fact well court ruled that the evidence was admissi- to behave motivate the accused credibility, on the issue G.G.’s ble manner. The evidence bizarre defense. In discuss- was attacked probative under the sexual acts then was ing admission of bad acts testimo- unusual exception motive because purposes, ny for the author corroborative seems, It how- sexual behavior involved. Comment, Defining Standards De- ever, thought as usually that motive termining Admissibility committed. If the reason the crime was Offenses, Other Sex UCLA L.Rev. of 261 reason, perhaps equates then motive (1977),aptly ficiently relevancy similar to meet the principal that “one of the reasons allow- 404(b). requirements of Rule prior in ing acts or crimes cases evidence Brown, 736 P.2d at 1113: involving sex offenses is the fact that the began sexually molesting Gezzi his places testimony the usual situation P.G., daughter, accused, she ten older was against increas- victim old, present intent, years knowledge, and often with G.G. ing pertinency of the thirteen, motive, the same bed. When P.G. was plan, etc.” Grabill v. abuse, the reported (Wyo.1980). she sexual which Gezzi See also C. charges brought Graham, No Federal Practice Wright admitted to. were & K. However, family counseling. into the went and Procedure: § by stop. quote did not Fi from a case cited Justice the sexual abuse of P.G. We fifteen, opinion: nally, turned ran Thomas the Elliott when she P.G. escape home to her father’s away from [prior testimony was also bad acts] ** * ultimately molestation and was tending continued to admissible as evidence Shortly her S, from the home. after credibility removed M and minor the buttress departure, began molesting five-year- charged by Gezzi the who had been witnesses the fabricating old G.G. and continued abuse two accused with evidence reported necessarily in years against until G.G. incidents him. Where situations, credibility testimony of depends volved here. In both Gezzi told on the per- girls they anyone that if told of his sexual acts child witnesses about abuse, the accusa- private, not and where their mother and brothers would formed flatly by denied of misconduct are anymore. them tions love G.G., accused, may corroborating testimony of whose evidence of similar acts credibility credibility directly placed issue. on the issue was be received The trial not abuse' its court did discretion. of the minor witnesses. 319, 325, Fritts, Cal.App.3d People Affirmed. Cal.Rptr. language This pertinent Although particularly here. URBIGKIT, Justice, dissenting. himself, testifying Gezzi attacked majority assumptively claims Peter through introduction, G.G.’s credibility, part, by Gezzi attacked G.G.’s charge, testimony defense to the simply presenting the that he defense “was social of Mrs. and a worker that G.G. Gezzi charged.” innocent the crime This au- Moreover, physi tendency had to lie. dacity permitted to maintain his innocence cal at trial inconclu evidence admitted was prosecutor bring to onto witness physical sive cause of as to the G.G.’s party stand third to recite bad testimony acts relating a symptoms. P.G.’s prosecu- holding permits Gezzi. This occurring misconduct course of sexual be tor, faced with a case and an weak accused sufficiently was tween herself Gezzi audacity proclaim citizen with the his or similar to the events molestation occur innocence, open floodgates her ring particu Gezzi and G.G. to be between reputation drown the of the accused in a larly under Rule relevant litany brackish bad acts. Prior corroborating testimony. G.G.’s grease should not be used here, inquiry does not end how Our simply wheels to crush the ac- relevant, Although testimony ever. P.G.’s cused who maintain their innocence to crim- may if its prejudicial not be admissible ef charges. inal outweighs probative fect its W.R.E. value. provides: I considerably would feel more comforta- if convicted on ble Gezzi had been relevant relevant, Although charged his commission probative excluded its value is substan- dissent, offenses. In I claim Gezzi should tially outweighed by the danger of unfair have been with incest with his issues, prejudice, confusion of the mis- daughter older if her to that leading jury, considerations of open effect was allowed in court when he time, delay, waste of undue or needless being for such acts tried with his presentation of cumulative evidence. younger daughter he would have —then Elliott, 600 P.2d at we said: opportunity been afforded a realistic to de- performing The function of the com through himself effective I fend counsel. parisons 403, W.R.E., required by Rule justify cannot of evidence generally discretionary is held to be on the that our common basis constitution- court. The fact the trial that the evi right al was exercised defend dence is detrimental defendant is particular I dissent. defendant. prejudice neutral. For the factor generally It is stated to be basic play into the court conclude come must English foundation law that the common it is unfair. United States v. Dol excluding rule evidence of law other liole, (7th Cir.1979). F.2d 102 crimes, wrongs originated acts Evaluating the evidence this case in destroy reign Treason “to Act of 1695 light our earlier decisions and those Reed, of terror of the Star Chamber.” cannot jurisdictions, say other we that the by Propensity: Trial Admission Other danger prejudice to out- of unfair Gezzi Evidenced in Criminal Acts Federal weighs probative value P.G.’s testi- Trials, 50 U.Cin.L.Rev. Criminal mony of earlier acts of sexual misconduct (1981).2 involving and herself. Gezzi The evidence properly Professor Reed states: admitted p. 1. See infra. might logically persuasive such facts eighteenth centu- close of the

Since the one of perpe- rule has been ry, by propensity probable that he is prosecuto- restraints on the fundamental inquiry The is not trator of the crime. in American criminal trials. rial irrelevant; character is rejected because of- propensity rule excludes evidence The weigh too contrary, it is said to on disposi- the accused’s fered to establish overper- so much and to The rule had its to commit crime. tion prejudge one with a suade them as accusative, opposed in the roots deny him a fair general record and bad Anglo-Ameri- nature of the inquisitorial, against particu- opportunity to defend an accusa- process. criminal Under can overriding policy of ex- charge. The lar state must establish that system, tive evidence, cluding despite its admit- did some act forbidden the accused value, expe- probative practical ted is the an, contrast, inquisitorial pro- law. pre- rience that its disallowance tends to committed the assumes the accused cess issues, surprise unfair vent confusion of imposes upon him the bur- crime and prejudice. undue establishing his innocence. den of the accused’s courts admit evidence of States, 335 U.S. Michelson v. United activity the accused prior criminal which 218-19, 475-76, 93 L.Ed. S.Ct. overcome. must also omitted). (1948) (footnotes * * * expansion of The federal rules’ jurisprudence which Committed to a scope prosecutorial use of evi- judges an accused citizen actual evi- federal of other crimes and the dence events, reject I this trend dence of the real willingness to admit such evi- courts’ usage by propensity. of bad transforming Ameri- subtly Wyoming, outlined Pena acts evidence system from an accu- can criminal (Wyo.1989)(Urbigkit, inquisitorial process. sative to an J., dissenting), is no more relevant to direct foot- (emphasis added and Id. at 713-14 case of an proof than is the use omitted). Note, 404 seem of W.R.E. Admissibility Bad Acts "inclusive” characteristics The Prior 2. See logic Rule the "inclu- paralyzed Assault Cases Under Alaska own when in Sexual their 404(b) Emerging Double Stan- provi- conservative of such sive” characteristics —An Const, dard, (1988). V Alaska L.Rev. 193 Wyo.Const. IX or sions as U.S. amend. pointed out as well. art. 36 are § sponsors judicial now rush to in- The who by pointing power out the of the state crease 404(a). clause of W.R.E. fol- defining principle What mode and denial without first exception, or of a fa- is the our retention exceptions in rea- justified to lows are be improper jus- unless cade that admission is son, logic and the exercise with excep- by exception. The termite-like tified application only directed discretion for structure. tions will devour the infested person’s appropriate. of a “Evidence super- way, nothing historical Either of the is not or a trait of his character character remains. structure proving for the that admissible to contin Consequently, appropriate it is conformity par- a he acted in therewith on * * ue, now, expli clutch to the at least to occasion, 404(a). ticular W.R.E. of an cations of criminal that conviction law Admissibility of under bad acts evidence di proved offense should be 404(b) perhaps major and 609 W.R.E. alleged rectly related to of the the events volume procedural the massive inquiry occurrence evi commission intrinsic present appeals.4 criminal For reasons Adjudication yet not moved dence. has political to science and so- better restricted activity,” properly to search out “extrinsic review, ciology dissenting opinion than it is Beechum, United States 582 F.2d apparent the use of this character evi- (5th Cir.1978), cert. denied U.S. dence will accelerate with social observable (1979), as an S.Ct. 59 L.Ed.2d 472 problems. Our standards historical adversely which reflects avenue proper what evidence regard the character of defendant on prove case now soil its seem like soft activity might give less of whether that process problem a liability. rise to criminal Due beneath tidal wave.5 The impartial right and to an circumvented our Evidence, Wyoming Rules of which is I trial when is invalidated. problem infecting the same the Federal ago reaffirm what the dissent a decade said specifically F.R.E. 403 Rules Evidence — Beechum, at 926-27: F.2d recognized almost before —was majority's At the heart of error they became effective. “Given wide placement case is its of the mistaken judicial admitting latitude discretion spotlight on the Rules of Evi- Federal evidence, reviewing oppor- a little court has dence, rightfully instead of it be- where tunity question judge’s a trial decision to longs trial of a human criminal —on Symposium, admit such information.” being. vague majority places Evidence, Rules Federal 71 NW U.L. stage uninformed hands of the dra- Rev. ma —the Federal Rules of Evidence —in stage, pushes My particular problem majority the center principles of a criminal into fair person much the is not so other sexual weak, whispered roles off to supporting testimony exception6 is the assault as it edge proscenium wall. exceptions mutat- contended seem have cases, rule ed to become the for all remov- Additionally, we should understand principle of our law is stated in the ing any direct deterrents to basic 4. citation of authorities and On a more limited field of mutation all-in- other current Brown, (Ur exception, P.2d 1110 clusive federal court case scholastic reviews bigkit, recent J., dissenting). recognized: virtually intent is Because an element problem Weinstein states the as: crime, every criminal evidence of other Although agree jurisdictions simply activity routinely all American were allowed in crime, may no evidence be introduced which prove that intent the intent element of solely the accused has a "exception" seeks that would soon swallow the rule. * * * disposition, question Thus, of when criminal we have must stressed intent particular act genuinely the case be a contested matter in perplexing is so the cases some- admitted merely issue. formal seem as the sands of the States, times numerous "as United A.2d Landrum v. sea," often reconciled. cannot be (D.C.App.1989). Evidence, States Rules 2 Weinstein’s United Note, supra n. L.Rev. 193. 404-53 V Alaska at 404[08] ¶ 6. Cf. suggestions support evidence in all have case re- propensity and character basic and, combination, totality as a views criminal cases. present Wyoming pro- seems unavailable wall, handwriting on the those With the cess. jurists proposition dedicated to the cases, analysis of these the trial tribu guilt or determined innocence should be must first decide nal whether actual the actual evidence of real facts have be- 404(b) presented. W.R.E. evidence is The gun sounding cries of alarm as the current State, phraseology in Crozier v. 723 P.2d slipshod prosecution by trend to (Wyo.1986)may improvident have been allegations.7 great requirement The care question since that first is whether the re- authenticated recent federal court proffered facts relate to the course of con uncontrollably is not evidenced here view history duct or of the event which serves to Wyoming by this liberal attitude for other develop development the natural prosecution evidence. bad United If facts. Id. at 49. the evidence fits within (2d Colon, v. 880 F.2d States examination, this field of it is not bad acts Cir.1989); Brown, United States v. State, evidence. Justice v. 775 P.2d 1002 (9th Cir.1989). F.2d 1012 (Wyo.1989); Miller v. Perhaps some basic considerations within (Wyo.1988); Scadden 403, 404(b)and 609 call us W.R.E. will back (Wyo.1987). Consequently, in a tech to our ancestral home law. We first sense, nical course history of conduct or of need to understand the nature of the basic exception occurrence evidence is not an charge system which is to find a faithful to acts, crimes, wrongs to the bad other our traditional value of conviction acts within the of character extrinsic of by proof crime of the elements without Leavitt, evidence. United States v. fense propensity preju- infusion of character and (11th Cir.1989). 878 F.2d 1329 of Course Perhaps away dice. the march from the applied conduct evidence to be as intrinsic Anglo-American concept historical of crimi- those events involves offense irreversible, nal is but at least with- from which the contended offense arises law, body relatively in the of case some to be tested á much broader concepts direct and understandable could generally arena of court discretion defined extinguishment. deter total Each of the the sound discretion of the court.8 Ar propensity may proved guilt irrespective "If a murderous be condemnation against charge.”’ present a defendant one of as the tokens of his guilt, Payne, Logic: a rule of criminal evidence must Whose is Not Evi- ... Law Life Cases, away. first be declared Fundamental hitherto Other Crimes in Criminal (1968) (quoting People has been the rule that character is never an U.Rich.L.Rev. 67-68 Zackowitz, in a unless N.Y. 172 N.E. issue (1930)) (emphasis original). defendant chooses to make it In a one.... very real sense a starts his defendant life my persuasion It is also the rule for jury, prisoner when he stands a a afresh at the before determining proffered testimony whether the Inflexibly has set its bar.... law acts, extrinsic evidence or immediate against guilt upon the endeavor to offense fasten face circumstance intrinsic evidence comes by proof experience pre- him character or offense general within the same rules for admission of disposing principle to an act crime.... standard of exer- other evidence as one, logic, back the exclusion is court discretion. It follows that the cised trial argu- policy_ cogency There in the arena of discretion to determine existence broad quarrelsome is more ment that defendant for course of events evidence of and admission likely quarrel to start a than one a milder analysis, prejudicial proba- is less confined dangerous type, a man mode more of life proper relevance than is the tive criteria and likely shy not blind than a recluse. The law is application the W.R.E. evidence which equally peril it is not blind to the to this but principally charac- related to proba- accepted as the innocent character is any specific analysis of If there has been ter. crime. ‘The natural and inevitable tive of differentiation, proper it has not come to judge tendency the tribunal —whether in the multitude of the attention of this writer give weight vicious excessive —is analyses. exhibited, journal of law cases and hordes Scadden, either to record crime thus Crozier, P.2d 42. P.2d 1036and strongly present on the allow it to bear too Leavitt, justifying 878 F.2d 1329. charge, See also or to take the itof 982 entitled Farm Bureau Consequently, the trial court is

nold v. Mountain West Co., Inc., Mut. Ins. (Wyo. 707 P.2d 161 determine the contested evi- whether MLM, 1985); (Wyo. Matter 682 P.2d 982 story is intrinsic: full dence —course Melton, 713, People v. 1984); 44 244 Cal.3d determination, no de- conduct. With 741, cert. denied 867, Cal.Rptr. P.2d 750 admissibility except terrent exists to those — 329, -, 109 102 L.Ed.2d U.S. S.Ct. generally relating in the court vested (1988). 346 including rele- introduction of all evidence vance, unduly prejudicial litigated repetitiveness, na- examples frequently Obvious just pre- success include ob- of time for but almost never with ture or even a waste victim, Mun- jections photographs of the jury sentation and review.11 State, v. (Wyo.1985); den 698 P.2d 621 n The bad acts evidence litigation as the Leavitt, 116 Idaho 285, State v. 775 P.2d pervasive present dispute judiciary of our (1989), autopsy reports granting or 599 today comes forward with the extrinsic of- denying request to view the site of the fense and it is in this arena where evidence Cases, alleged rules and discretion crime. battleground developing located in applicable course intrinsic evidence applying rules of evidence for trial. It applied of conduct should not be to the present also this atti- court’s “liberal much more acts extrinsic of- confined bad tude” for introduction of the extrinsic of- 404(b) fense evidence of W.R.E. and convic- my fense evidence to which numerous dis- Scadden, tions 732 P.2d of W.R.E. sents have been addressed as founded however, State, 1036. See Lauthern v. 769 simple determinant that conviction should 350, (Wyo.1989). P.2d 357 It should also be charged on evidence occur of the offense 404(b) address true noted before we W.R.E. propensity, and not character or unfa- bad evidence, testimony such as of another vic- history. vorable tim, testimony that the of the same victim normally exception is not evidence within Once the trial court has made the first State, 404(b). King v. 545 So.2d W.R.E. exclusion and found extrinsic offense evi- (Fla.App.1989).9 Testimony 375 of the vic- presented, then certain rules and tim a continued course of criminal about applied standards should to minimize be comfortably behavior fits within the non-W. unnecessary endangered erosion of the no- 404(b) applied R.E. definition to be guilt proved by tion that should be Historically, evidence. this is the basis Systematically, of the occurrence. these that the victim sexual assaults was enti- should include: testify tled to other about events and the 1. The decision on introduction relationship circumstances of the 404(b) W.R.E. and 609 evidence should be the accused. It was when the non-W. by pretrial addressed submission motion 404(b) applicable rules R.E. to the same Wright in limine before trial. C. & K. stretched to include other victim were vic- Graham, Federal Practice and Procedure: admissibility tims and of their (1978); 2 5224 at 320-21 Wein exception § a true W.R.E. Evidence, stein’s Rules United States present developed tensions at- (1989); at 404-163 3 Weinstein’s II principles the basic of conviction 404[19] tack Evidence, supra, (prior II at 609-95 proof of a event and not char- 609[05] State, convictions). See Newell v. prejudicial offerings acter or 548 Howell, also consumption.10 (Wyo.1976). See State 8 1987), Wyoming precedent (Wyo. 9. See historical in Lauthe 736 P.2d 1110 XXIII Land & Water rn, 350; Koch, Wyo. L.Rev. 280 769 P.2d State v. 64 (1948); Quirk, Wyo. 189 P.2d 162 State v. 38 (1928); State, Note, supra P. and Strand v. 36 n. V Alaska L.Rev. 193. Wyo. compared P. Brown, Crowner, P.2d 1110 and Elliott v. (Wyo.1985); 11. Banks v. P.2d 101 Note, 1979). (Wyo. Inn, Inc., City 600 P.2d 1044 See also Evi Evanston Whirl Impotence Wyoming (Wyo.1982). generally dence —The Rule Evi D. Louisell Mueller, § dence 404 in Sex Crime Trials: Brown v. and C. Federal Evidence (1987), prejudicial 226 Mont. where a outweighs whether effect required. notice before trial probative value.16 2. The court should ask first of the 5. The finding trial court should make a proponent of the evidence in criminal cases: justifying rejection by a (a) presented, what is the evidence how and specific determination of the contested is- whom;12 (b) specific is what the con- sue to be addressed probative and what tended issue of trial to which it will be value, any, provided by is to be addressed;13 (c) what will that evi- evidence. This is so ruling whether is prove on this contested issue in addi- made or attempted reserved for a time of propensity, tion to repu- character and bad presentation at trial when evidence is re- tation.14 jected or a decision to admit is made.17 opponent 3. The should address reasons appropriate limiting 6. An instruction objection particular preju- and assert given should be at the time of introduction anticipated pretrial dice at session.15 jury to confine the consideration

4. The decision then to be made evidence to the or intent for which court, fidelity balancing after to the permitted admission was in accord requirement finding.18 Howell, 609, W.R.E. 403 and 214; court’s 12. Howell, 214; 734 deny 2 Weinstein’s Evi- dant can him fair trial in violation of dence, supra, right process. at 404[19] 404-163. to due If Graham, Wright supra, See also C. & K. § 5214 263; 13. United Evidence, Robinson, supra, at 2 (5th Weinstein’s 404[18] States v. 700 F.2d ¶ 205 404-141; Lewis, Prejudice: Cir.1983); Stevens, 289, at A Con- State v. 115 N.J. 558 Proof Challenge (1989); Preju- stitutional to the Treatment Niemeyer, A.2d 833 State v. 195 N.J.Su- Cases, 559, dicial Evidence in Federal per. (1984). Criminal 64 480 A.2d 963 (1989). Wash.L.Rev. 289 stage analysis engrossed by Judge The two 14. United States v. (6th Phillips, 599 F.2d 134 Selya Rodríguez-Estrada, in United States v. Cir.1979); Beechum, 898; Reed, supra, 582 F.2d 153, (1st Cir.1989) (footnotes omitted): F.2d 50 U.Cin.L.Rev. 713. Determining of evidence (uncharged) requires of other a bi- 15. Goodman v. (Wyo.1979). First, inquiry. furcated the district court proffered must be satisfied that the material 16. C. Graham, Wright supra, & K. § 5215 at value, is, "special” probative has that the (footnotes omitted) 273-74 states: evidence is relevant not to show a defendant’s determined, probative Once value has been evil, toward but some countervailing the court must look to the six * * * controverted issue in the case. grouped factors listed in Rule 403. These are requisite Once shown to be relevant in the "dangers” prejudice, into three confu- —unfair sense, pass the evidence must still another issues, misleading jury sion of three time, —and sentry, embodied in Fed.R.Evid. 403. If the delay, "considerations” —undue waste of brings baggage, say, unwanted un- presentation and needless of cumulative evi- prejudice cognizable fair ing or a risk of confus- scheme, original dence. In the exclusion was jury, weight baggage’s and if the sub- mandatory probative value was out- value, stantially any probative overbalances weighed by "dangers,” one or more of the then the evidence must be excluded. only discretionary when “considerations” Although original were Stevens, 833; involved. distinc- Wright 558 A.2d at C. & K. abolished, "dangers” Graham, 321; tion has been will still be supra, § 5224 at Weinstein and weightier than "considerations” when the bal- Berger, Proposed Basic Rules Evidence in the “dangers” Evidence, 43, ance is struck because the three all Federal Rules 4 Ga.L.Rev. validity factfinding, (1969). Dolliole, threaten the whereas United States v. 597 F.2d Cf. cert, 946, only efficiency (7th Cir.), effect "considerations” denied 442 U.S. 99 S.Ct. (1979). of the courts. > 61 L.Ed.2d 318 prejudice” probably “Unfair will become the significant "dangers.” However, most of the three Attor- trial error not result unless neys instruction, are more alert to this factor and invoke requests limiting ap counsel that a categories preju- circumstances, it more often. Since the dice, confusion, propriate given. Unit misleading (9th Sangrey, tend ed States v. 586 F.2d 1312 Cir. overlap, 1978); courts often discuss all three in Cooper, United States v. 577 F.2d 1079 cases, prejudice. (6th Cir.), terms of In extreme the use cert. denied U.S. S.Ct. against prejudice of unfair a criminal defen- 58 L.Ed.2d 179 Billa, (Pa.1989). frequently pressed 555 A.2d 835 nal

Com. v. conviction most States, 739 F.2d 1322 more also Llach v. United often abused. (8th Cir.1984); McClain, United States v. There is another fundamental concern (D.C.Cir.1971); 440 F.2d 241 and State v. pre- which attaches to our current trend of

Stevens, 115 N.J. 558 A.2d 841 tending to use bad acts evidence for some- Jimenez, United States Cf. thing beyond pure propensity evidence. (5th Cir.1980), F.2d 1373 where that court Comment, Defining The author Stan- instructions, said even the most careful of Determining Admissibility dards however, sufficiently would not have limit Offenses, Other Sex prejudicial ed the nature of the extrinsic (1977), UCLA L.Rev. as an author- offense evidence. ity majority, accurately cited ob- procedural

The effect of these safe- serves: guards are unnecessary to ameliorate both objective Given the of fairness to the prejudice in the search truth and also to defendant, incongruous it would be if a carefully accomplished define what is defendant were forced to choose between during that search. Justice Blume warned testifying appearing guilty, not and and ago years dangers allowing us of the testifying subjecting and himself cer- evidence of other crimes in Rosencrance v. prejudice. tain 360, 366, Wyo. (1925) 239 P. 952 My disquiet sense of with our into mutation (quoting Shepard, Commonwealth v. 1 Al- inquisitorial judicial system an for criminal (Mass.) People, len 575 and Towne v. only trials comes not from the realization 258): Ill.App. that the person- defendant is deterred from dangerous evidence, “It species is a ally presenting jury, his only requires because it a defendant but that the defense is deterred from effec- explain to meet and other acts than those tive cross-examination and use other wit- charged against him and for he is which nesses in order “opening to avoid trial, may on but also because it lead the If any door.” innocence is maintained or great principle to violate the that a made, defense credibility complain- is of the party is not to be convicted of one crime arguably presented ants is and by proof that guilty he is of another.” evidence is to attack “credibility” available * * * * * # support credibility of the defense or of the prosecution. “But the Defendant’s salutary rule is and a counsel then departure perilous, only inquiry from it is faces not and hence for truth as a excep- perceived environment, courts are reluctant to extend criteria of the beyond tion to the assessing prejudicial rule but well established bad acts evidence lines.” happen and any what will he makes effectively effort mount a defense in I do justification by not fall into the representation of his client.19 There is a necessity adaptation admissibility justification world of difference moral is determined relative weakness between use of bad acts evidence to dis- prosecution’s If case. the evidence of usage underpin credit a witness from guilt overwhelming, is the intrinsic offense complainant by attacking redundant, evidence is either repetitive or defendant or his witnesses. harmless error. The real issue of bad acts urging a revision of F.R.E. Pro- criminal case is Craig Prejudice: fessor Lewis questionable where the result is unless the Proof Challenge A Constitutional to the Treat- particularized effect can be secured Prejudicial ment Evidence in Federal intrinsically prejudicial use of material as Cases, Criminal 64 Wash.L.Rev. 362- persuasively factually related to the contends: character, reputation charged defendant. It is in this circum- Federal Rule of Evidence 403 fails to securing constitutionally protected stance that the method of a crimi- account for in- Trends, Ladd, Credibility Tests—Current U.Pa.L.Rev. certainty about in reasonable trials. terest in criminal defendants terests of convicted of crimes guilt persons on it invites decisions present form In its price readily pay the genuine, we should prejudicial potentially the revision. jeopardize the trustworthi- guilt. Appel- ness of determinations Wigmore once should look to what We pla- more than a offers little late review the immersion recognized, but since by the error created for the risks of cebo seldom ac- present “liberal rules” now rule. knowledged: funda- Rule 403 is problem The recognize that the allow- Most courts jurispru- rule and its current mental: the par- into of examination ance of a course presumption of with the dence conflict hands of places misconduct ticular precepts of and the most basic innocence cross-examining an instrument counsel sys- in an accusatorial wisely too he use not * * * revi- must come from a tem. The cure well. will reorder trial sion of the rule that reason, sure, purely to be first priorities to account appellate court ordinary instincts of sentiment. one in rea- societal interest the individual and say courtesy, are vio- decency, not to accuracy of certainty sonable about examinations, every lated convictions. us more sodden to instance makes new undoubtedly will A call for that cure bring us to- spectacle and tends judicial in era of sensitiv- find disfavor an degradation. It the same level of wards overindulgence perceived ity publicly to a the hunt and the difference between crime. None- those of may well slaughterhouse. One the theless, concept stalking enough sport in the lion find stan- in the reasonable doubt reflected beating for the the bush the desert doctrine es- and the constitutional dard is a risk for the tiger, because there by Winship demand a revision tablished sport, and dignifies his hunter which the risks of 403 to reallocate of Rule destructiveness rapacity there is a cases. The error in criminal factfinder leaves no room the hunted which Article would proposed in this revision cutting process of sympathy; but burden shift to sheep or knocking the head of a throat or potential for the creation of a justifying is both penned the shambles an ox to of- prejudice and the incentive unfair brutal, justified and is to be safe and proof on an is- prejudicial least fer the neces- ground of its absolute only on heighten judicial sue. It also would fleeing hunting des- sity. The down fundamental interests of the awareness ensnaring of a chief perado, or the prejudicial placed risk the use detectives, at craft of counterfeiters in criminal cases and would in- does not violate process risks of greater share of the place justice. principles of of fairness or stincts prosecution, factfinding error on flaying personal char- But the ruthless belongs. only it cow- where is not in the witness box acter escape no ardly there is would be—in- price of the revision The —because inflicts it brutal —because victim—and deed, ac- calculated be—the would be exposure misdeeds public pain persons have quittal some who would not it has often bystanders to idle present Rule under the been convicted —but necessity. justification slightest increase portion 403. Some con- put to such limits must be Severe in who acquittals include defendants will said, “I Ellenborough will As Lord duct. the crimes with which guilty are fact feelings, your own put your it to own significant charged. But a they were al- weight must be good sense.” Some acquittals will portion of these additional manly fairness instincts of lowed in fact innocent who are be of defendants good sense. un- been convicted who would have i.e., one, politic is a second reason of its error- present rule because der the such an exami- that, prospect of with the professed in- inducing If our structure. possibility, public nation is cer- counsel. I justify fective cannot the admis- tain to From dread witness box. sibility of the extrinsic offense evidence in knowledge time to time those whose procedure this case within the followed would have been valuable will seek to availability on the substantive basis it; disclosing evade the ascertainment of right our whenever common constitutional hampered perhaps the truth will be might to defend by anyone be undertaken prevented. feeling That exists criminally I accused. dissent. today, greater degree, in a or less can hardly be doubted. MACY, Justice, specially concurring. Wigmore, 3A Evidence 983 at 841 § solely I concur because this case is in (emphasis original and footnote omit- accord with Brown 736 P.2d ted).20 and Elliott v. (Wyo.1987), majority, although recognizing first contend, however, (Wyo.1979). I still always the accused maintained his inno- laboring that we are over a rule of evidence cence, inquisitorial reveals latent tenden- by judicial which has been emasculated ex- cies with but a few sentences: ceptions. Although testifying himself [within

the defense that he innocent was charged],

crime attacked Gezzi G.G.’s credibility through introduction, charge,

defense to the of Mrs. Gezzi and a social worker that tendency Moreover, had a

G.G. to lie. physical evidence admitted at trial CYR, Edgar Vernon was inconclusive as to the cause of (Plaintiff), Appellant, physical symptoms. G.G.'s testi- P.G.’s mony relating a course of sexual miscon- occurring duct between herself and Gezzi BOARD OF COUNTY COMMISSIONERS sufficiently similar to the events of COUNTY, PLATTE OF a Political Sub occurring molestation between Gezzi and Wyoming, Ap division in the State of particularly G.G. be relevant under (Defendant). pellee, Rule of corrobo- rating testimony. G.G.’s No. 89-87. Again, I claim Gezzi should have been Supreme Wyoming. Court of daughter with incest his older if her to that effect was allowed Oct. open court being when he was tried for younger such acts his daughter —then

he would have been afforded a realistic opportunity to through defend himself ef- principal question It has been the perpetrated upon attention of the than is the courts to consider bad acts evidence in refer unimpeachable someone of virtue. See civil criminally perhaps ence to the accused and his application balancing of conviction without Shaw, (Mont. witnesses. State v. P.2d 207 —Co., Laundry in Green v. Bock Mach. U.S. should, however, 1989). recognized It be -, 109 S.Ct. 104 L.Ed.2d 557 impeachment destruction of wit However, expect any do not fairness in consist logically nesses is not criminal cases. confined to defendants in ency equal rights for the defendant. See Complainants and other wit (Wyo.), Carey cert. denied participants nesses for the and all 479 U.S. 107 S.Ct. 93 L.Ed.2d 247 can, time, similarly subjected in civil cases post-crime rape which creates a victim regurgitation history to a of their to create and Note, Diggs Lyons: shield. See also Evidence— jury by credibility influence the destruction. The Use Prior Criminal Convictions to Im directly contrary rape This trend is peach Credibility in Civil Actions Under Rule evidentiary principles shield statutes and 609(a), Note, (1986); 60 Tul.L.Rev. 863 Im deny destroy seek to defensive tactics to peachment With Prior Convictions Under Federal believability complainant. and worth of the 609(a)(i): Balance, Rule A Plea rape Murder or is no less a crime when commit Wash.U.L.Q. upon person might prostitute ted who be a notes in sex offenses that having rela- appellant’s motive for sexual acquainted where the with the victim younger daughter his was that tions with credibility accused the victim’s be of will daughter longer the older was no avail- paramount importance. younger daughter was tak- able and the apparent The victim’s lack daughter’s tes- ing place. her The older thereof on the be determinative pur- timony for this would be admissible question guilt of the defendant’s ultimate pose. crimes, many or innocence. sex predilection If the accused had a only eyewitnesses where the are the com- practices young fe- deviant sexual plaining perpetrator, witness and relatives, male it would not be unreason- any indepen- where there is a dearth of for the trier of fact to determine able physical tending to estab- dent he to commit the acts that had motive commission, admission of crime’s lish complained byof the victim in this case. the dual corroborative evidence serves Elliott, holding in Consistent with our reducing probability purpose of we determine admission prosecuting lying, while at witness regarding appellant conduct of described increasing probability the same time by the victim and her older sister was the defendant committed the crime. justified of motive and was suf- Similarly, has noted Id. at 286. this court

Notes

notes of her father’s older sister’s recitation enthusi- Anticipating prosecutorial similarly inappropriate behavior. evidence, Justice Jackson asm bad (Wyo.1987) Brown v. in 1948: wrote J., (Urbigkit, dissenting). the common-lawtra- Courts that follow unanimously come to almost have dition recognize I the foundations of our demo- any disallow resort preser- society thinly anchored cratic are evil kind of evidence of a defendant’s rights and histori- of constitutional vation probability of his character to establish weakened, which, may not once cal values de- guilt. Not that the law invests the exasperation under the attitude and survive presumption good char- fendant with a confining ex- and accelerative pervasively States, acter, v. United U.S. Greer Compro- modern times. istence of these (1918)] 62 L.Ed. 469 S.Ct. [38 jus- efficiency deny individual mises for simply it closes the whole matter system destroy the before tice can character, disposition reputation on actually weakening ob- of the structure prosecution’s case-in-chief. The state to either “lib- I cannot acclimate served. defendant’s trouble may not show of all rules,”3 by admission eral acts, law, or ill specific is the occurrence evidence neighbors, though acts extrinsic among his even name

Case Details

Case Name: Gezzi v. State

Court Name: Wyoming Supreme Court

Date Published: Sep 27, 1989

Citation: 780 P.2d 972

Docket Number: 88-266

Court Abbreviation: Wyo.