Pena v. State

PENA, (Defendant), Benny Appellant Wyoming, Munker, Defender, Leonard State STATE Public (Plaintiff). Appellee Cheyenne, Wyoming Defender Aid Pro- Gallivan, Director, gram, Gerald M. Darrell

No. 88-243. Goodman, Intern, Laramie, V. Student Supreme Wyoming. Court of appellant. Joseph Meyer, Gen., Atty. Sylvia B. Lee

Sept. Hackl, Gen., Atty. Sr. Asst. Espy, Sandra J. Intern, Cheyenne, appellee. Student CARDINE, C.J., Before THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice. appeal his felony

On from conviction for officer, police assault of a in violation of 6-5-204(b), appellant Benny W.S. Pena (Pena) claims it error for the trial court to allow into evidence the relating of six officers involving acts of Pena altercations with the police officers when his defense was a deni- al of the offense. affirm. We FACTS early morning

Sometime in the hours of 30, 1988, January Cheyenne taxi driver Cheyenne Department called the Police report a truck stuck a snow bank in the Deming area of 5th and ap- Streets. At proximately Cheyenne 4:45 a.m. Police Offi- dispatched cer Phil Brown was to the area investigate “possible drunk driver Upon arriving stuck in the snow.” at the scene, Brown realized that the truck had been removed from the snowbank and away moved a block to the 500 block of Thornes, person, where saw later iden- Pena, standing tified as in the street next pulled up to the truck. Brown behind the truck and ordered Pena to move to the side him the street so that could talk to appeared because he drunk. point

At this driver truck street, drove to the end of the made a parked oppo- U-turn and the truck on the Conforming site side of the street. police training, his Brown started to follow yelling screaming the and parked he could behind house amidst the truck so that person, third Pena’s street John and the mother driving down the it. As he was porch out onto the Delores Valdez came in his mirror and Brown looked rear-view they screamed at officers and the running speed, at “full arms saw Pena the could not enter house without war- his the door of waving, towards front porch and Allsop rant. From the Brown immediately his car Brown threw house.” Allsop into the could see house and identi- his started to park, grabbed into baton and occupants the fied and assailants Brown fleeing pursue the Pena. Larry Pena and his brother based on as house yard entered the As Brown Allsop contacts had had previous with running, to was an individual which Pena them. yard, standing in the later identified to At that time ran around the Brown Larry, Brown so Pena’s brother kicked house and saw two unidentified back kneecaps in the he fell to the hard running people away the house from whom ground. got up Larry chased Brown and he chased for short distance. Brown street, bring- Larry slipped into the where house; to the returned front of the ing top on him. As Brown Brown down so, person jacket the third the did retrieved Larry ground holding was on the down struggle from the street and a over the him, attempt in an arrest with his baton Brown, the jacket ensued between third from a hard to Brown Pena struck blow Meanwhile, person and Delores Valdez. top throwing Brown the behind over reappeared wielding porch Pena got up, turned Larry. immediately Brown Allsop over bat his head. raised baseball began punch Pena around and saw who defense; yelled and his baton Pena ran holding Larry, on to Brown Brown. Still backup inside the More offi- back house. his sweeping made a motion with baton person and John and the third cers arrived stop attempt in an Pena’s direction Brown, Allsop arrested. and a third During scuffle, Brown Pena’s attack. the officer entered the house and saw Pena face, repeatedly was hit the chest and door; Larry run out the back by arms Pena. charged with were later arrested and felo- person join A Pena in the third arrived to officer in violation of ny assault trying to fend assault on Brown. While 6-5-204(b). W.S. attackers, off on these Brown was struck and Larry A consolidated trial of Pena the side side of his head from the other May 23-26, keyA held on issue was being Larry was still held Brown. who the at trial was individual began Larry wriggle out of the then street. fought with in the De- who Brown and, jacket holding with Brown was onto the coat lores Valdez testified that Brown person, the of Pena and the third suc- aid alleged Larry during struggle the ran cessfully freed himself the three belonged Pena it was and that fact house, leaving into Brown in the street initially fighting been Pena that Brown had jacket. with the Larry, in the street instead of who with three, pursue than Brown Rather house her. further She jacket in backup. Leaving called testified that was Brown who initiated street, approached Brown then Pena, attack, she Larry not or saw porch by and was confronted on the house Brown, no one strike and that actions brothers, John, and the another of Pena’s in self by Larry Pena were de- taken person Brown at- third assault. introduced the state fense. rebuttal pushed tempted to enter house but was testimony of six local law enforcement offi- porch by off John. made anoth- in- previous Brown several altercations cers about attempt swung er at several times After a volving Pena the officers. chambers, the con- third told that would and over discussion counsel, tinuing objection enter of defense allowed to without warrant. pur- for the Mark All- backup this time a officer court admitted About limiting A instruc- Allsop pose proving intent. sop As toward arrived. walked (Wyo.1981); Vasquez given tion was and reiterated (Wyo.1981). before each rebuttal officer testified. At the close of trial the found Pena reviewing the admission of When guilty; Larry guilty. found not On evidence, prior bad acts this court has ad 1, 1988,

August Pena was sentenced to a test, Bishop hered to a five factor test. years penitentia- term of one to two Trujillo, 750 P.2d at 1337. The five ry. appeal This followed. factors we have considered are whether: (1) proof of the other similar crimes ANALYSIS plain, convincing. clear and 404(b)

W.R.E. (2) The other crimes are not too remote in time from the offense. Pena arguesappeal on that the six testimony improperly officers’ admit (3) The evidence of the other crimes is 404(b), provides: ted under W.R.E. introduced for a sanctioned crimes, wrongs Other or acts.—Evi- 404(b) Rule of the Federal Rules of Evi- crimes, wrongs dence of other or acts is 404(b)]. dence [W.R.E. prove not admissible to the character of (4) The element of the offense a in order to show that he acted that the evidence of other crimes is intro- conformity in may, therewith. It how- duced to is a material in issue ever, purposes, be admissible for other case. motive, proof opportunity, such as in- (5) There is a substantial need for the tent, preparation, plan, knowledge, iden- probative value of the evidence of the tity, or absence of mistake or accident. Myers, United States v. other crimes. operates This rule to the use of ban evi 1036, (5th Cir.1977). 550 F.2d 1044-1045 person’s dence of a character in order to Coleman, adopted First 741 P.2d at 104 person’s that establish behavior on a Bishop, again 687 P.2d at 246. particular conformity occasion controlling While not of a trial court’s dis State, Ortega v. his character. 669 P.2d cretion, helpful these factors are in our 935, (Wyo.1983). 943 may, Such evidence propriety determination of the of the ad however, purposes. be admissible for other evidence, missibility acts keep State, Trujillo v. 1334, 750 P.2d 1336 ing in mind not all that factors need be State, Coleman v. (Wyo.1988); 741 P.2d present uphold to a trial court’s admission State, 99, (Wyo.1987); 103 Brown v. 736 Coleman, 105; of evidence. 741 P.2d at 1110, P.2d Ortega, (Wyo.1987); 1112-14 State, Story 1020, v. (Wyo.1986), 721 P.2d 669 P.2d at adopted 943. This court has a 962, rt. denied 479 U.S. 107 S.Ct. ce

rather admitting liberal attitude toward ev 459, (1986). 93 L.Ed.2d 405 crimes, wrongs idence of other or acts if it purposes of one of the constitutes INTENT State, 404(b). Marker v. accord with Rule 295, Carey (Wyo.1988); testimony of the six officers admit- State, 244, (Wyo.1986). 715 P.2d On ted into evidence related various alterca- appeal, given deference is to a trial occurring court’s tions between themselves and concerning admissibility necessary Pena. It is not to determination detail 404(b); long under Rule particulars testimony. of each officer’s legitimate there is a say, testimony basis for a court’s to Suffice related a ser- say decision we cannot there was an ies of altercations in which Pena had exhib- Trujillo, great hostility abuse discretion. 750 P.2d at ited toward the officers. 1336; Noetzelmann v. 579, kicking 721 P.2d His actions included: at an officer Carey, (Wyo.1986); 247; merely approached 715 P.2d at who had the scene of a Bishop officer; (Wyo. scuffle between Pena and another 1984) cert. denied 469 U.S. attempting through hit S.Ct. an officer (1985); Ortega, patrol 84 L.Ed.2d 345 open window of the officer’s car 944; Hatheway leaving P.2d at 623 P.2d. after scene of an accident when possessed They’re frame requested that return the officer scene; threatening officer, assuming demonstrating a ill mind will towards the swinging the him fighting stance and police, out there in but rather stopped speeding Pena for manner, after had peaceful trying prevent vigorous- motorcycle; resisting so arrest abuse of excessive force Officer ly fight after that it took three a bar Brown. him, him officers to restrain handcuff aspect how I That’s view one car, which, place patrol him in the after case, particular defense and be- patrol Pena kicked out the window of the cause intentions are central issue to the car, kicked an officer chest final- burden, going I’m State’s reason irons; ly placed leg and resist- to be come in allow under unsuccessfully fleeing upon ing arrest of proof as circumstantial evidence being informed that he was to be arrested pos- of the intent that these individuals an active arrest warrant. This under evi- sessed. suggested dence that Pena was the first relating When the factors this Bishop to aggressor in the the offi- altercations with record, discloses, first, that the officers’ cers, lawfully performing who were their describing testimony, a series of alterca- police official duties. Pena, tions between themselves and was During an conference the in-chambers convincing. clear and We that have noted trial court determined that the six officers’ predicate aas to the introduction of extrin- testimony was admissible rebuttal acts, c. prosecution sic “the must establish proving intent the Pena’s to that the defendant committed them.” expressed trial assault Brown. The court Bishop, 687 P.2d at 246. While its for admission of the evidence in reasons proven beyond need not a rea- be following the statement: doubt, is prima sonable facie case neces- THE me tell I’m you COURT: Let what sary in order the extrinsic acts to all, going Apo- do First of Mr. to here. Id. admissible. daca made a to effect statement that Second, the not re altercations were so Larry simply struggling were [Pena] mote from the offense to foreclose free, get to and that to me means that evidence. The their admission into oldest motivated, not defendants were altercation introduced into evidence oc argument, least not motivated years seven curred less than before altercation, an intent to do harm. This offense, present charged just and the latest therefore, by an in- was not motivated present one offense. year before by Larry [Pena], tent harm to do “[(Questions concerning remoteness of evi struggle get simply an intent to to free. are left to the sound discretion of the dence Perhaps it’s even self defense. challenge subject trial court to Now, Jury going instructed is only for clear disturbance abuse.” Good proof, that state has burden State, 178, 184(Wyo.1979) man P.2d that the conduct of defendants was (eight prior years act and between intent to do intentional act with the remote). individual, too See also charged offense not harm to this an intent to cause 1044, harm, State, bodily injury. (Wyo. 600 P.2d bodily Elliott v. remote). 1979) (three years too not Given Now, testified, Apodaca Mr. and think to, testified the nature the altercations drawn, regardless the inference could be years seven is not too remote. Even harm, type that testified years seven officer, we to hold otherwise—that product harm, in time of a mind with intent to do but the too remote—remoteness alone, simply struggling get rarely, standing a mind determi intent of incident admissibility free. bad acts native of the evidence; rather, merely it is one factor argue You could also that the defense determining question be considered projected picture where the defen- Elliott, P.2d at 1048. peaceloving relevancy. dants are individuals. 582; Goodman, pur- was admitted for the P.2d In at 181.2 Tru- pose proving intent. Intent is one of the boxer, jillo, appellant, a trained 404(b), exceptions Rule enumerated thus aggravated assault when his fulfilling Bishop the third factor of the punch jaw. The broke the victim’s court test. It is also one of the elements to be recognized pivotal question in the proved beyond a reasonable doubt jaw trial was whether he broke the victim’s “ * * * officer, felony crime of assault of a ‘intentionally, under circumstances proscribed by 6-5-204(b).1 W.S. As manifesting extreme indifference to the such, case, intent is a material issue ’ * * * value of human life under required Bishop under the fourth factor. 6-2-502(a)(i) aggravated so that assault § recognized This court has “evidence proven beyond a reasonable doubt.” not to be excluded because it tends to show recognizing, Id. at 1337. so the trial the commission of other offenses ‘where it permitted court the introduction of evi- ” tends to facts material in the trial’ fight dence of a occurring between (Wyo. Crozier v. 723 P.2d appellant and another one hour be- 1986) (quoting Valerio v. jaw fore he broke the pur- victim’s for the (Wyo.1967)). Finally, being intent pose proving intent. This court af- an essential element of the charged, crime firmed the holding trial court’s decision probative testimony’s value as to intent that the evidence was relevant on the issue is manifest. See Scadden v. finding of intent and that its val- (where (Wyo.1987) testimo- outweighed ue prejudicial its effect. Id. ny proving is relevant to an element of the crime, justifies its character its Goodman, In Goodman had been found introduction); Coleman, 741 P.2d at guilty manslaughter shooting preg- (suggesting that bad acts evi- woman; nant his charge defense to the dence “be ruled inadmissible unless it can shooting that had been an accident. by prosecution be shown that it is es- During trial, prosecution, through a proof sential to the of an element of the questions, series of cross examination elic- allegedly crime by committed the accused testimony ited regarding from Goodman and, indeed, that its use this sense not be shooting similar incident that had occurred merely Berger, cumulative.” M. 2 Wein- eight years shooting some before the Evidence, stein’s at 404-73-404- 11404[10] incident, question. In that earlier Good- (1978)). Here, argued where Pena immediately reported man had the shoot- aggressor, Brown was the that Pena acted case, ing; in the later Goodman made no defense, only in self and where this defense report, allowing such the victim to die. witnesses, was corroborated defense presented The state the evidence on the officers’ was critical as rebuttal theory prove that it tended to Goodman’s intent, evidence on the issue of an essential intent to kill the woman and refuted crime, his merely element of the and was not theory of accident. cumulative of The trial court admit- presented. other evidence ted the evidence. This court affirmed the This previously court has held that evi- stating: admission dence of bad acts is admissible for the purpose proving We consider the evidence to Trujillo, intent. have been 1336; Noetzelmann, P.2d at 721 P.2d at relevant in the element of intent which 6-5-204(b) remanded; provides: 1. W.S. reversed and his conviction for kill- (b) ing intentionally knowing- an unborn child assault on A who the mother ly attempts bodily injury causes or to cause was affirmed. Goodman v. peace engaged perform- remand, officer 1977). in the lawful (Wyo. After Goodman was con- guilty felony ance of his official duties is manslaughter victed of for the death of the punishable by imprisonment for not more appealed solely woman and from that convic- (10) years. than ten improper tion on the issue admission of evi- 404(b). dence under Rule original degree 2. Goodman's conviction for first pregnant murder for the death of a woman was fairly close to dem strikes ly, this evidence obliged prove in order the State was of Pena to onstrating a character trait murder. establish tent,” D. Louisell and C. Goodman, 601 P.2d at 181. The evidence was place. A used for lant’s intent at appellant’s such as particularly ^[*] quoted in just ^[*] addition, claim of accident. presented those germane definition the time the # Goodman, Mueller, probative of purposes. it served ^[*] here is shooting took Federal is found ^[*] commonly Evidence to rebut of “in- appel- ^[*] Evi- in 2 that evidence admissible fight make it is not excludable often tends offered implicate bill, Coleman, accused, light for a inadmissible, P.2d at 809. the character of the police officers. Rule 402 and implicate if the evidence simply because at 102. however. which under Rule the character This does not 404(b), See permissible properly is “It is clear also accused.” it does then Gra dence, (1985): pp. 224-25 § IDENTITY Intent. “merely loosely defined Sometimes suggests record also another accident,” in crimi- intent the absence prop purpose for which the evidence could is often an element nal cases trial, At Delores Valdez erly admitted. crime, clearly encompass- Pena on defense that it was who testified particular desire to achieve a es both the initially in the' street with Officer been knowledge end that such an end and Brown, raising the issue of Larry, thus act; no result of an is the almost-certain identity of assailant. Officer Brown’s specific many more doubt intent has factors, Bishop tes officers’ Under meanings, depending upon the context pur properly admitted for the timony was charged. of the crime and the definition showing identity. As discussed pose of accused, including oth- acts Other above, crimes was crimes, may received to in- er convincing were not too clear and theory common-sense tent on the offense. remote in time to par- person acts in a the more often exceptions listed Identity is one of the particular way and achieves a ticular authority need cite no for the rule. We result, likely more it is that always identity is an element precept that intended the result. charged, although is not any it of crime Goodman.) See also

(Emphasis added in such, As it is a material always dispute. (Wyo. Grabill case, although always issue in 1980). being element of the dispute. Finally, through the offi- The evidence introduced charged, is a substantial need crime there of alterca- testimony related a series testimony. cers’ probative value of the for the aggressor, Pena acted as tions which 246. Bishop, 687 P.2d at seemingly provocation, and without general rule, can be said “As a it cooperating law of not with purpose sole identify the accused as to proper evidence unlikely, in officials. It enforcement crime is not committed the who overwhelming intro- light of the prove to it tends excluded because be testimony, that through officers’ duced independent of another and guilty was any differently acted Pena would have crime.” Valerio His by Officer Brown. when confronted on Evi (Wyo.1967). See also McCormick response to Offi- theory of self-defense (E. Cleary, 3d ed. 190, pp. 557-63 dence alleged § is inconsistent attack cer Brown’s that evidence 1984), it is stated where repeated behavior vis-a-vis his earlier crime other than an accused committed Goodman, the offi- police officers. Under charged is admissible he is that for which purpose for the testimony is relevant cers’ accepted,” identity. “This to do harm showing Pena’s intent of states, ultimate pur- “as one of the author Brown. Admitted- with Officer altercation identity, undeniably consequen- poses for which evidence of other criminal which is conduct be received.” We reiterate knowledge. will tial a fact as intent or Id. statement, our “evidence is not to be ex- 810. cluded because tends to show the com- by A decision the Fifth Circuit Court of mission of other offenses it tends to ‘where Appeals is instructive. In United States ” prove facts material in the trial.’ Crozi- (5th Cir.1977), Myers, 550 F.2d 1036 a bank er, 723 P.2d at case, robbery prosecution attempted previously This court has held that evi- subsequent admit bank rob- prior dence bad acts can be admitted for bery committed pur- the accused for the purpose proving identity. Mark- pose identifying him perpetrator as the (Wyo.1988), er v. robbery question based charged accused was with two counts of operandi distinctive modus used each aggravated deadly weapon assault with a court, robbery. noting The identity cutting penis year of his three old operandi synon- and modus are often used identity perpe- son. The issue of the of the ymously, stated: trator the mutilation raised when probity of evidence of other crimes alleged boy’s Marker in defense that the purpose where introduced for this de- mother injury. blame for the child’s pends upon uniqueness both the The state then introduced evidence seized operandi degree modus and the of sim- apart- in a consensual search of Marker’s ilarity charged between the crime and consisting ment of three exhibits contain- uncharged course, crime. Of it is not ing graphic depictions young boys necessary crime and the painful various sexual and de- situations every other crimes be identical in detail. scribing techniques boys. various torture possess But must a com- [Citation]. The trial court admitted this evidence to mon feature or features that make it identification,” citing show “motive and/or very likely perpetrator that the unknown Coleman, (evidence 741 P.2d at 105 admit- crime and the known proving ted for the stated mo- perpetrator uncharged crime are tive found this court to lead to an infer- person. the same unique more each identity, ence of an element of the involved is, of the common features the smaller crime). required pro- number that is for the Identity Grabill, was also at issue in signifi- bative value of the evidence to be where Rule allow evi- used cant. But a number of common features dence of similar bad acts to intro- uniqueness, although of lesser insuffi- in a prosecution. duced child abuse This generate strong cient to inference of finding court affirmed the admission separately, if considered “perti- bad acts of Grabill were significant probative value when con- * * * nent to establish inference who together. sidered Grabill, injury.” caused the 621 P.2d at Myers, greater 550 F.2d at “A much principal 808. The test to be used in the degree noted, similarity,” the court “be- propriety determination of the of the ad- charged tween the crime and the un- mission of evidence is whether or not the charged required crime is when the evi-

proffered directly evidence “tends dence of the other crime is introduced to disprove consequential or fact such as prove identity than when it is introduced to knowledge, intent or or whether or not it prove state of mind.” Carey, Id. See also may proposition tend to establish a such as (“If motive, identity at 248 the issue is or through a series of inferenc- operandi, modus may the test of substantial rel- probability es tend to establish the higher, the consequential evance for evidence is because fact such as intent or knowledge.” affirming In the other acts must also be tied to the Id. the admis- 811; sion, defendant.”); Grabill, acknowledged this court 621 P.2d at El- the liott, Finding degree same inference utilized to 600 P.2d at 1048. the show intent or knowledge similarity charged could likewise be used to and un- show between purpose showing Pena’s intent to do charged great enough, the court crimes not identify him as the assailant Myers appellant’s convic- harm and reversed case, however, is tion. The rule from that Officer Brown when the assailant’s applicable placed here. in issue. The trial court did abuse its discretion. similarity of each individual alterca- officers, the six tion between Pena and Affirmed. aggressor in describing Pena as the each

case, insignifi- offense URBIGKIT, J., dissenting files a Yet, together, they cant. considered create opinion. identity, sug- an inference of irrefutable gesting strongly that Pena was assail- URBIGKIT, Justice, dissenting. Moreover, crime. ant Trial evidence this case commenced unquestionably acts are tied to Pena. drinking an after-hour with establishment

Thus, the evidence was relevant episode ex-girlfriend, part where the identity. issue of evening drinking, ap- an described how (Pena), pellant, Benny Pena hit some- PREJUDICE in- one with whom she had danced. That troductory stage character set the Although for the evidence relevant proof subsequently for the stature of intro- proving identity, either intent or the offi- duced, ostensibly prove identity, testimony may if its but cers’ not be admissible addressing antago- outweighs reality jury with the prejudicial probative effect its pugilistic nistic character of this con- provides: 403. Rule 403 value. W.R.E. victed defendant. relevant, Although may be ex- probative if cluded its value substan- question I dissent not in undue about the outweighed by danger of tially unfair events of altercation between Pena issues, prejudice, confusion of the or mis- police during early one or more officers leading jury, considerations 30, 1988, my morning January hours of time, delay, undue waste of or needless disagreement guilt by with presentation of cumulative evidence. par- reputation acts evidence. This case is Elliott, 600 P.2d at we said: ticularly forceful W.R.E. over- reaching, perceive how since cannot performing compari- The function of po- reoccurring problems with the Pena’s 403, W.R.E., required by gen- sons Rule prior years proved anything lice in as to erally discretionary is held to wrestling police officer who was with the trial court. The fact that the evidence is have hit the the street who detrimental to the defendant is neutral. police This officer from behind. prejudice play For the factor to come into decision to made within the court must conclude that it is unfair. contradictory Except evidence. directly Dolliole, States v. 597 F.2d United must have ascribed the wres- (7th Cir.1979) conflicting tling Larry, to brother match Evaluating in this the evidence case very defined little factual cer- light earlier decisions and those of of our morning, tainty early about this wintertime say jurisdictions, we cannot residential area fracas.1 Cheyenne south danger prejudice of unfair to Pena out- display, presents the case a vi- weighs of the officers’ In stark value young and a gnette officer testimony of earlier altercations with Pena. where ap- wrestling in the street and properly admitted for the man were The evidence was followed, Pena, event, ran, Brown and a difficulty rationalizing why Pena Officer I who have street, standing involving general beside his vehicle in the a number of citizens fracas car, by police should have run when the driven quickly on police ensued and several officers Brown, pulled up why and Officer Officer the Pena residence street in front of Pena, nothing Brown then chased since earlier morning. early winter dark hours of that any suggesting a criminal event. occurred drinking, violent- reacted particularly when police “be- hit the officer parently someone authority.2 police ly to shoulder blades.” tween the Now, talking about the Q. were we course of evidence The net effect of this your back. you received blow that hap- that what surely convinced velocity at which you Would describe sepa- January 1988 was not pened on you hit. you felt were time for this rately significant. It was say somebody ran into A. I’d of Pena to past historical conduct course right I strength. me full flew power back of render a by their immediate end up. top Larry. I scrambled verdict, over the Pena was whether or not guilty my him with left arm. I still had hold of this for a criminal offense at responsible around, immediately up, turned I stood during This evi- and these events. time Benny Pena. devastating heard particularly when dence was parade of in rebuttal after the presented was identification question The for trial no woman in blue” left Pena “men and one ground and of which brother was was claimed opportunity to answer what police came at the officer which brother the nature of his substance to be factual jointly tried. One from Both were behind. Pena had not pugnacious character. Since acquitted and the other was convicted testified, compre- of this the broad brush similarly charge of assault of the defined hensively developed rebuttal evidence officer, 6-5-204(b). Ex- police W.S. on a starkly painted.3 emotionally cluding of the the introduction charged, although relevant testi- borderline I an- strongly I dissent since remain mony ex-girlfriend, the trial moved Anglo- underpinning in historical chored eye-witness along sequence with testimo- of a crime American law that conviction by prosecution and de- ny presented by the facts of the should be determined as to the fense in direct conflict by incident and not the defen- perpetrator of the blow to the back reputation indiscretions dant’s bad police officer and of the individual be- logically provide neither substantial colloquy, In this ing held the officer. logic proof directed nor reliable Larry, joint nor his brother neither Pena decision, charge. By present present defendants, testified. unhinges majority finally totally guilt rebuttal, Wyoming law from presented seven emotion, intimation adopts conviction testify witnesses to about incidents five perceived reputation punishment officers prior time between Pena character. The last residual during period date of historical bad from 1981 principles vestiges of our honored of law involved this occurrence. These incidents in the corrosion of a W.R.E. physical con- are dissolved argumentative and various' 404(b)justification. only Not do we autho- drinking violence and flicts where both something other rize the to convict on generally It is fair to con- involved. guilt, Pena, evidence of we then follow challenged and than template that when strategy concepted hold the investigation report once was to presentence is not in 2. The record, sentencing, the trial court or re- but at evidence for cross-examination bad acts weight commented to Pena: testifies. The buttal if the defendant po- right your prior applied incidents with the is to deter exercise of I counted lice, quite general candid- testify and there are 36 of them. which accords defendant ly you tell I’ve never seen an individual testify, can knowledge that if the defendant does not long record. It takes over with such a arrest simple acquittal as a are minimal his chances arrests, only pages. but a a half Not two and juries case decide cases. This fact of how * * convictions *. lot of them are active defense one the deterrence to an moves testify, step the accused does not back. Even if parade Wyoming cases which will be 3. The to be will be held readiness bad acts evidence provides reason for anoth- discussed one one legit- over-spray for emotional available disturbing strongly er concern. That is the use if jury can then com- is made. The imate reputation rebuttal of the bad acts evidence on defense bum, fortably is that kind of a decide "if remaining opportunity he/she when the accused has no it.” have done to answer. must majority, question Pena or justify to convic- the whether absolution result-oriented emotionally charged Larry prior police problems tion the extraneous brother proof other misdeeds.4 of provided facts of not one whit factual obviously identity, since both brothers had said Although Justice Holmes that present general scene at that time at the logic, the the law not been it has life of has only police the which had the issue was Here, is experience. been law neither. chased, partic- I am why. officer when and no absolutely' of Pena had The character ularly deni- majority disturbed because the us determinant to tell whether he relevant needlessly, grates heritage our historical was held on the street Officer Brown if directed to even we are a result-oriented Larry in the coat at whether was brother assuring course of affirmation of convic- then, escaping from the that time who lacking thesis that if tion. The officer, the grasp police left proof guilt, for the defendant should be only empty My par- coat. officer with the tried on not our only bad acts demeans disquietude course of ticular is the substi- heritage sacred but also for unneces- calls justification process jury as a tution sary subterfuge. If Pena the attacker communication of use of realistical- instead rear, likely the out ly guilt from the could sift probable evidence of or innocence. rationale those facts from With due deference to the reliable the evidence.5 Crimes, Vices, persuasion Slough Knightly, perspicacity if Other not the of Pro- Other Slough (footnote Knightly (1956) and Mr. in 1956 is ever omit- fessor Iowa L.Rev. clearly ted). in a so much more premise seen reconstructed proof guilt: for adopt if 5. It no different than we the circum- Strongly among many entrenched Ameri- guilt, occupation stance of as evidence of such concept man can traditions is the should would, example, justify to be judged strenuously by be reference not to twenty-year occupa- advised fact of a spectre past life. awesome of his When one by practicing lawyer could tional involvement crime, specific trial for he should not faces guilt charge considered to a answer scandal be held to for the that his cheating widow out of If her inheritance. certainly produce. vices would earlier most reputation, op- character we convict portunities many Though he has committed crimes under Imagine could are limitless. what prob- which would increase the circumstances Housing Develop- be done and Urban ability that he has committed the crime (HUD) (national) employees, legislators, ment charged, it remains an unalterable fact high se- used car salesmen or risk investment root, jury, of nobler will lend members peddlers. curity weight excessive to a record of crime. Evi- agree analysis I am to with the found inclined and misdeeds dence of crimes appellate dissent in a Texas criminal court pro- lack excluded because of an inherent guilt two which involved a choice of between value, precaution but as a bative is withheld persons: identified against inciting prejudice. Adherents to managed pro- again, to this Court has Once law have centuries boasted of a common ostensibly vide and bar with an author- bench Anglo-American certain solicitude for concerning opinion itative the law of extrane- contrasting prisoner, accusatorial their meth- effectively eviscerates the ous offenses which inquisitorial devices of continen- ods with the requirement that such evidence erstwhile jurists. tal It to a material issue in the case. relevant said, it has been would On the basis what thought goes into me that so little astonishes articulating appear would be that a record of crime forev- precise such manner in which from stream of evidence that er barred upon legitimate issues of a evidence bears' case; through but a the trial washes case, passes so much and that wind clashing precedents princi- born of thousand ples process. thing out rule otherwise. It is one rule (Tex.Cr.App. Beets v. 767 S.W.2d only vague reflects evidence of crime which 1987). thing propensity, it is to rule out another vogue alleged quotation from is the current strongly of other relevant to crimes ex-prosecutor reported to from Texas who is thing issue. out facts in It is one rule prose- publicly journeyman have said when the evidence of character accused guilty, really it takes a cutor can convict subject, thing it is another not broached professional prosecutor to innocent. convict the credibility of the accused once he attack the reputation as the and historical With bad acts stand as a witness. has elected take the proof, capacity for persuasive median though well-meaning precepts, law Common surely not limited quickly conviction of the innocent is unctuously spoken, die when extraordinarily gifted professional only judicial withering trapped in the crossfire prosecutor. exceptions. Afjehei’s principal argument appeal in on enlightened to am not dedication that, by excusatory 404(b) reliance principles historical is Rules 403 and under trial Evidence, on court decision. deference the Federal Rules of trial court function of ancing our W.R.E. punishment tion of that guilt basis few will abolition of the Other unlimited from gered maker. To understand responsibility choice: thoughtfulness cretion to reason nominated Either and firmed accident in its character sions drawn regard or capriciously. means a sound stances and without many things, criminal (1961). Judicial discretion definition for conviction. The totalitarianism history Crimes status of democratic by rules or it is our 404(b) and Other political persuasion ultimately inflict crime society, choice by any jury law what processes system not emboldened the Evidence as a of discretion in Martin v. 600-year of this court from evidence cannot among 894, this acquired judgment emotional then the majority. right Matters, function interaction. See is to is confined and con- century objective founded doing contemplate is a composite which are conclu- demonstrated happenstance prejudicial impact historical under the circum- unlimited societal is an of (Wyo.1986) appreciate Trial: relation of dis- of exercised with characteristics adaptation in adoption so operation 70 Yale L.J. governments If law is the by the directed the decision on criteria; observable the endan- arbitrarily unlimited basis Of a total opera- Note, Bal- as a and de- of of it souris, relevancy_” (emphasis nymity proponent States v. charged. which the relevancy, tity with the elements of the offense reasonably to draw from that knowledge inference advocated by the Cir.1987). “Similarity, being a matter of not less with,” ble show have been remand for a new trial. vacate the of other acts “is not admissible to * * * [Ejvidence clude that the prejudice resulting from its admission. was nonexistent or at least was substan- prior trips tially outweighed by * * * should ... Under Rule ‡ be admitted to show character knowledge.” [that conduct at issue to such evidence have 474 F.2d other For the reasons other act is Peterson, There is no ^[*] judgment excluded, because there must be excluded the evidence of his original); purposes, judged by acted] 404(b), although of a prior-trip the evidence.” act ^[*] United States v. Ka- of approaches Fed.R.Evid. the “sufficiently in conformity its “may” another necessity and we therefore of ^[*] F.2d but see 2 Wein- such as danger evidence should probative below, permit knowledge conviction (5th be “admissi- 969, substantial n act should degree near Cir.1973) order to of unfair evidence proof we act United similar 404(b). there- syno- value iden- ^[*] con- (2d un- of 404[12], at stein’s Evidence II 404-90 to A portrayed similar factual situation was (1988)(suggesting 404-91 that trial court Afjehei, 869 F.2d 670 United States given especially broad discretion to (2d Cir.1989), re- where conviction was cases). view acts as similar narcotics inappropriate versed for admission of other provide If the other-act evidence does not events, 404(b)type Afje- evidence. W.R.E. inferring basis for reasonable knowl- importation hei was of heroin edge, its for that offer should be disputed evidence related to his rejected grounds relevance. country out of earlier travels Further, the trial court once has con- history.” East area as “travel Middle cluded that other-act is suffi- government basis for contention relevant, ciently similar to be must still 404(b) F.R.E. admissibility under perform balancing analysis envi- attack of claimed student status a status sioned Rule which allows the familiarity with international establish relevant if travel. court exclude even intrinsic to substantially special out- intent factor value is five its preju- potential charged. for unfair noted that weighed its offense That court Advisory . instruction, Fed.R.Evid. limiting dice. absence Note; see United States Committee probably “use the evidence would Peterson, Though a F.2d 808 at 974. intent, as proof of the Defendant’s but under ruling under Rule reviewed 403 is Thus, propensity since pure evidence. standard, id., we the abuse-of-discretion no that evidence to show there admit found it such an have abuse long fingernail were marijuana pinky act or act evidence if the other similar issue, find that to the matter in we relevant to the sufficiently are not similar acts for the error court to admit issue, infer- the chain of conduct at or.if Monzon, 344-45. 869 F.2d at evidence.” necessary to connect the evidence ences error, in harmless Introduction was but proved is the ultimate fact to the facts case. Admission within long. unduly presented ev- similarly extrinsic occurrence (emphasis at in 869 F.2d 672-74 Afjehei, not harmless in States idence was United original). DeGeratto, Cir.1989). (7th 876 F.2d 576 v. similarity can also A found United State, 1143 v. 544 See likewise So.2d Huff Monzon, 338, (7th 869 343 v. F.2d States (Fla.App.1989) and v. Gar- United States — denied, U.S.-, Cir.), 109 S.Ct. cert. Cir.1989). cia-Rosa, (1st F.2d 876 209 2087, (1989) (emphasis 650 104 L.Ed.2d recognized court that This Crozier permitted original), where officer was or crimes that are evidence of acts testify intrinsically related to of the case the facts Defendant— that he twice observed the are admissible without reference W.R.E. arrest and also after his in this case once 404(b) probative long as the so value sport- eight months arrest — outweighs prejudicial its effect. evidence pinky ing long fingernail. Officer Wyoming pre-1980 development long Rickey growing testified apposite principles to the national cases is fingernail among cocaine pinky was a fad recently Afje stated and the rules more object- users and traffickers. Defendant Monzon, hei, F.2d F.2d 670 and 869 869 trial, and in a motion in pre-trial ed at since occurred is another 338. What limine, of this those testimony, to all analy story as will be demonstrated expla- objections were without overruled last decade in acts evidentia- sis of this by the trial nation court. criminal usage prosecution. ry established, contrary first to the That court State, 1044, 1047 In Elliott v. 600 P.2d States, that the of the United contention “Wyo (Wyo.1979), this court stated that intrinsic nor evidence was transactional to the ming unquestionably is committed State, v. to the occurrence. Crozier Cf. rule that of other crimes general evidence court (Wyo.1986). P.2d 42 The federal 723 wrongdoing normally not admissible marijuana, neither observed trial of a criminal case.” Cited issue, fingernail pinky nor was another v. authority for this statement are Newell intrinsically related to testimony were State, (Wyo.1976); v. P.2d 8 Dorador 548 Testing the of the case. W.R.E. facts State, (Wyo.1974); 230 Gabriel 520 four-point test admission under the P.2d. State, court,6 (Wyo.1973); v. 534 the court found that son of the circuit 360, 239 P. Wyo. v. proba- 33 way was the contested evidence Rosencrance no 6. The establishing defendant’s charged [1] [T]he show close must be such matter in four-point that the other act is similar enough ***[;] evidence issue propensity a matter in issue other than in time to be relevant test includes: ***[;] ^[2] must [T]he to commit be directed could find "that [3] [T]he enough and the crime toward must Monzon, United weighed by actor,” subject act occurred L.Ed.2d 771 States, 869 * * to the F.2d value is not *[;] requirement (1988)). U.S. at [and 4] [T]he danger that the 344 (quoting of unfair 108 of Rule 403 defendant was substantially S.Ct. evidence still Huddleston prejudice. that its 1501, out v. F.Supp. (D.Wyo.1986). The linger, Kwallek See also (1925). Wyoming cases is informa of other course evidence of (Wyo.1979), where P.2d 1372 State, Sanville disturbing. tive but conduct were criminal prior misdeeds and was a bad check (Wyo.1979) P.2d 1340 fist in a barroom improperly admitted history checks charge of bad with a fight, aggravated environs. assault showing intent and conduct as a course of since a bench conviction was not reversed discretion, clear as a sound plan; defined Dorador, trial was involved. Good appeal; inquiry on abuse affirmed. stated: we (Wyo.1979) man one party not to be convicted of [A] killing an unborn negligent homicide guilty he is of anoth- crime on the mother with evi child assault er. years of an event ten before dence stated, prosecution Otherwise wounding girlfriend; admissible on the a of a defendant not attack the character evidence; of intent as element has first the defendant himself unless State, Reinholt v. P.2d 601 * * * affirmed. placed character in issue. his burglary 1311, (Wyo.1979) presented 1312 pros- trial shows the record Dorador’s police theft. The officer testified and auto character in placed ecution the accused’s burglaries by suspect prior qnd about testimony designed produced issue approved the basis evidence was on criminal misconduct which was to show “opened the defendant’s counsel charge in no manner connected with State, In Grabill v. door;” 621 affirmed. being the defendant was tried. for which (Wyo.1980), charged 802 child abuse P.2d Elliott really applied The rule was prior abuse incidents with with evidence of principle was an amendment where during introduced rebuttal other children mis- permit other sexual derived principal as evidence of of Admissibility conduct, Note, see of State, Connolly v. guilt; In 610 affirmed. Bad Acts in Assault Cases Prior Sexual battery (Wyo.1980), assault and P.2d 1008 404(b)— Evidence Under Alaska Rule of felony intent to commit a with an —sexual Standard, 5 Alaska Emerging An Double prior charged and evidence of assault —was (1988), L.Rev. 193 as substantive attempts to touch the victim was intro certainly and has been honored non-ob- intent, the narrow issue on duced to subsequent The fre- cases. servance cautionary appeal give failure to a was quency of the use of W.R.E. evi- requested, no instruction was not which justifica- illogic dence and the to find some Stambaugh v. error; plain affirmed. proceeded piece a in an accelerated tion has State, (Wyo.1980) presented P.2d 1237 613 Wyoming cases that have crescendo prior prosecutorial reference to criminal past The roar of followed decade. rape charge; status in admission deemed acts to the thunder in the storm to add bad State, Hatheway v. harmless; affirmed. truly artillery arsenal of in conviction (Wyo.1981) 741 was an embezzle 623 P.2d essentially deafening. process, In the swindling of other ment case with evidence nothing tenet of our remains to the basic acting manager trailer people when proven law that conviction should be court; as similar acts to held ádmissible offense. intrinsic to the claimed of conduct. This court as show a course in the defendant have sumed what Unquestionably, the watershed where such as that tended to contend as a defense charged against the defen everything went merely a mistake in his he had not made overriding Wyoming of tenet dant as bookkeeping; affirmed. Hopkinson litigation. came law out State, State, (Wyo.1981), v. (Wyo. 79 Hopkinson Vasquez v. 623 P.2d 1205 922, 1981) supplement 102 rt. denied 455 U.S. S.Ct. sexual assault concerned ce Hopkinson v. (1982); involuntary 463 of evidence 71 L.Ed.2d ed admission prior to divorce as evi Shillinger, 648 F.Supp. (D.Wyo.1986), 141 sexual intercourse part 866 F.2d on the date when and rev’d in dence of assault part aff'd Perry v. granted; Hopkinson v. Shil (10th Cir.1989); divorce was 1185 affirmed. respect burglaries a With to the two (Wyo.1981) P.2d 776 ries. Vaught, 624 30, 1981, proceeding bad acts September deed cancellation with all that could be " Attempts evidence introduced. appellant transitional said was that the town prevent trial attendance were admissible Laramie on the date occurred. conduct; Brad as a course of 20,000 peo- approximately So affirmed. State, ley (Wyo.1981) P.2d ple in town this date. property willful destruction 249; Id. Schmunk v. affirmed. admissibility assaulting with a State, P.2d 724 (Wyo.1986), a murder taken, officer, objection was not which case, inadvertent reference inclusion plain error determined on the basis of a bad acts for which motion limine application object failure to constitut granted had been became a factor of cumu ing waiver; In Evans v. affirmed. reversal; error and Carey lative reversed. (Wyo.1982), 655 P.2d 1214 the defen (Wyo.), cert. denied dant was convicted of sexual assault and L.Ed.2d 479 U.S. S.Ct. being Admission of a habitual criminal. (1986) was a assault case sexual separate of another in a witness with admission evidence of a sexu rape year similarity earlier with to make charge for al assault accused evidence admissible acquitted, hung ju arising from two motive; proving For Ostrowski affirmed. judgment acquittal which a ries after (Wyo.1983), as a subsequently granted. Relevance in was case, prior pos of controlled substance acts charges acquitted the or non-convicted was session of controlled substances and con motive, respect knowledge found with admissible; cealing property stolen were question relating and intent as of State, Ortega v. 669 P.2d affirmed. 944 credibility; consent affirmed. second-degree was a mur (Wyo.1983) State, (Wyo. Story In v. 721 P.2d 1020 wife; prior der of his of conviction evidence 1986), physician charged rape with assault to rebut defense of “mistake or patients to a number of rebuttal with testi accident;” affirmed. mony uncharged by an made offense State, In Bishop case of 687 P.2d v. another. Defendant failed to show abuse cert, 242 (Wyo.1984), denied 469 U.S. validity showing with of discretion rebuttal (1985), 105 84 S.Ct. L.Ed.2d 345 plan or a common scheme when material charged burglary, prior burglaries as un- charges; to the other restated affirmed. charged offenses with the made connection State, (Wyo. v. 721 P.2d 579 Noetzelmann uncharged offenses, for which 1986) a of concerned controlled substance admissible, there was no identification were prior fense with evidence of sale of mari to be from the that the defen- found fact juana entrapment to children and an de dant on was in Laramie the date of Prior used fense. offense evidence re In an understatement of mon- occurrence. Crozier, approved; sponse was dimension, this affirmed: umental court said: child; 42 723 P.2d was a murder rule that Wyoming general follows use; marijuana course of events evidence of crimes, wrongs, other or acts evidence of story rule complete or same transaction of normally not admissible in the trial * * * conduct; of a course Scadden affirmed. general a case. rule criminal State, (Wyo.1987), P.2d 732 1036 in v. in the first sentence of Rule codified volleyball a coach’s sexual assault volved 404(b). applying In sentence second students; general of course events on his however, rule, adopted a we have relationship of his with female as evidence admitting rather attitude towards liberal evidence; for course conduct students crimes, wrongs, of other evidence acts. affirmed. State, at Cardine stated in dis-

Id. 245. Justice in Brown v. 736 1110 Then J., dissenting), sent: (Urbigkit, (Wyo.1987) charge of presented an incest appeal nor Appellant was not with burgla- teenager testimony of the older sister of the three with convicted unsolved involving knowledge and reckless uncharged of mind permitted similar trained another for an individual who was opinion ness events. There was in the State, v. Cutbirth majori In fighter; monumental understatement affirmed. J., jury convict dis (Wyo.1988) (Urbigkit, ty: “We must assume that 751 P.2d * * re appellant ed the crime as a senting), presented homicide was State, v. 1114; Makinen Id. battery rape. Evidence of a sult of affirmed. (Wyo.1987) sexu P.2d 345 was another prior occa on his wife on some defendant with bad step-daughter assault on the al on court admitted the trial sion was uncharged offenses of other acts evidence malice, accident, motive, course lack of victim. a similar kind the same with State, In Miller v. conduct; affirmed. the basis specially concurred on J., (Wyo.1988) (Urbigkit, dis 755 P.2d and con involved the same victim grounds), of con senting other a course circumstance; ongoing stituted af presented admis acts was duct State, Ramirez P.2d 1214 firmed. forged check, although checks sion of second-degree (Wyo.1987) attempted homicide and cashed after received murder with course of events evidence although admit considered harmless assault; sexual concurrent affirmed. error; Schwenke ted affirmed. State, Bradley v. (Wyo.1987) State, (Wyo.1989) P.2d 1031 was a sex charge exclusion of bad a murder child; case on a evidence of ual abuse proper; also acts conduct victim held child; conduct with same affirmed. when denied to defense. Cole affirmed man v. (Wyo. P.2d 350 Lauthern (Wyo.1987) J., 1989) (Urbigkit, dissenting) involved con involving property presented destruction of aggravated burglary, aggrava victions general ex-girlfriend with evidence of attempted sec battery, ted assault and con of harassment for motive events murder; previous ond-degree conduct; tinuing course of affirmed. problems person. with the same instance Marker v. (Wyo.1988), P.2d 295 object plain error view raised a Failure child; aggravated sex assault on we appeal of conduct denied as a course and introduced of ually oriented with evidence v. Justice Finally, inquiry; affirmed. explicit relat sexually magazine materials State, (Wyo.1989) 1002 addressed 775 P.2d Defen ing against to offenses children. robbery the issue of iden aggravated mother. denied offense and blamed dant missing property, of tity, evidence theft of ques The was admissible on the evidence generally evidence admissible checks with identity injury of who caused the as an tion also perpetrator and on the State, 750 Trujillo inquiry; affirmed. history of and natural as the the events aggravated (Wyo.1988) presented 1334 facts; development of the affirmed.7 the prior fighting assault with evidence of provides of an unde- panorama The cases evening The and hostile attitude. same rationale, state conclusion —whatever was as intent and niable admissible Uses, by Spectrum B.U.L.Rev. 155 Thoughtful tions: A 68 consideration is afforded 7. of variety large journal (1988). special authenticity, See of reviews. see Imwinkel- law Of J., Brown, (Urbigkit, ried, dissent- 1123 Need to Federal Rule Evi- The Amend of Note, Wy- ing) Impotence and Evidence —The 404(b): The Threat to the Future of dence of oming Trials: Rule 404 in Sex Crime Evidence Evidence, of Vill.L.Rev. 1465 Rules Federal of (Wyo.1987), XXI- 736 P.2d 1110 Brown Note, (1985); Developments Evidence Oth- of (1988). abo Water See II Land & Note, Evidence, L.Rev. 267 Crimes, (1974); and er U.Mich.J.L.Ref. 404(b) Child Abuse —Rule of Note, Lacy, supra 70 Yale LJ. See abo b Wyoming Rules What Protection Evidence: of Charged Admbsibility Evidence Crimes Not of of (Wyo. Grabill Left After Indictment, (1952) 31 Or.L.Rev. (1981). 1980)?, XVI Land Water L.Rev. 769 Uviller, to Prove Conduct: Evidence Character of surely not of note has The criticism either case Courtroom, Illusion, Illogic, Injustice in the persuasive attention of this court. reached Annotation, (1982). Ad- U.Pa.L.Rev. 845 Cf. Hutton, Commentary: Pri- review See current mbsibility Evidence Pertinent Trait Under of of Sexual Contact or Bad Acts Evidence in Cases of Evidence, 404(a) Rules Rule Uniform Note, Child, (1989) and 34 S.D.L.Rev. 604 With (1987). A.L.R. 4th Testimony Prosecu- Expert Sexual Abuse Child events, describing police officers five other explanation every use of justification or — persuading jury that at sufficiently reputation evidence has been bad acts and was of charac- appeal dur- least this Pena brother acceptable questioned when felony conviction for except for the one ter and deserved ing this entire decade case, Schmunk, resisting questionable detention P.2d 724. No limits to purpose it It had occurred.8 acceptability enforced which have be- whatever are present from the obviously by prose- my persuasion status come a fact understood developments majority that should ei- cutor and trial bench. by proof announce that conviction ther away direction Within this observable abrogated legal guilt with our historical by guilt from conviction heritage repealed and authenticate convic- general offense to a use of charac- step tion bad character back ter evidence as an effective substitute apply persuasive relevance and reason to at the case of proof, we now arrive eviden- heritage appended exception and the tiary dispute appeal. in this The authenticated W.R.E. incursion. called to determine which brother it was on Imwinkelried, The Need to Amend See ground grasp police offi- 404(b): Federal Rule Evidence The police cer and which have struck Threat The Future the Federal Rules singular from the The evi- officer back. Evidence, (1985).9 30 Vill.L.Rev. 1465 only dence used for conviction not of which which, augment The course of dissents the cited but to offense into within posture prior history surely provided adequate cases has a more serious was a police problems warning. Justice Rose in dissent related of the one broth- stated Goodman, er, Pena, parade of seven 601 P.2d at 189: evidenced 9. 8. The trial court stated: The near ultimate in infusion of other occur- versing portrayed in Gibbs v. rence bad acts in a criminal 938-41 of nineteen conviction counts police or the Penas? here is that the defendants either incited or took an active roll they simply tion. real think, in this case is whether or not the—the filed five witness lists longest cer, resisted nineteen which witnesses had vided addresses Even then he refused to inform the being offense. nesses had no information 3,000 pages could not ries should not have them period dence. He maintains the State Therefore, It’s the court’s view that the real Appellant Gibbs or that dispute (Ind.1989), the otherwise unsubstantiated anyway ^[******] tried. The of fifteen witness list giving argues that the 39 burglaries. It turned out that most of identify the defendant. aggressors laid back based on Thomas Gibbs stood is: Who are the —66 transcript. Sixty-five of the 66 further information. only didn’t. where the court said days, producing [sic] deputy of them testified over information about which had no addresses. He been admitted into evi- The that, passively, in this kind of a situa- with 116 assaulting deputy prosecutor uncharged burgla- prosecutor the real about the crimes morning 538 N.E.2d testimony trial never connect- aggressor, burglary: and that the names; more than dispute, trial fourteen He the wit- of trial. defense dispute vividly is that called in re- offi- pro- admission was harmless four People tions where and reversed the other fifteen. Compare ond the first offense. der case of Ill.Dec. ness occurred modus held Dec. the evidence was ity ed the testimony The Indiana however, more sought to admit 39 extrinsic dence dence motive, charged burglaries. crimes. After the Had his bad character. The State uncharged to be charges need operandi 125, on these numerous extrinsic ^{[******] [******]} on the nineteen lengthy Annerino, uncharged 538 N.E.2d 770 and intent. The crimes, properly People only substantiating on the extrinsic substantiated prosecutor strongly deputy prosecutor presented Supreme Court affirmed as to N.E.2d 500 offense identity. have and open than the convicted him admissible admissible Phillips, claims, crimes court corroborative factors of * * * Ill.App.3d charged burglaries, wanted to admit evi- (1989), when the sec- for the four convic- evidence was threatening by proven (1989). only raised during to him. The un- 127 I11.2d from other burglaries. Gibbs with the burglaries was prove identity, solely issue at responds The error in 920, See likewise the trial of burglaries, rape/mur- possibil- 499, because 131 Ill. strong. rapes trial, wit- evi- purpose of no for the allowance danger prejudice was that the ceive punish appellant for the this evidence other than establish jury would shooting if had doubts about a bad prior appellant generally even it respect to guilt appellant he committed raise the inference that standing Wyoming the crime for which offense. said: Rosencrance v. the defendant to meet Furthermore, the admission of this testi- Wyo., 520 P.2d 230 P. acts than those with which by Lindsay have warned about Dorador v. dence for the value of the credibility) or prior shooting Restated think it was fendant to the above-discussed outweighed trial. speculative, prejudice. “The to invite the danger 317 P.2d 506 Wyo. (1925), 1372 in Since by reputation While effect of 510 P.2d 534 [State (1976) namely, the nonexistent patently improper to admit any purpose Grabill, prejudice may have been am danger, my judgment, thereby very dangers Newell v. it — (1957)], supra, would any probative unconvinced shooting. (1974), admitting Lindsay, offered 621 at from submit the ([Wyo.] Wyo. he is Gabrielson v. explain State, Wyo., conceived of argued 815-16, (attacking danger of Kwallek, charged. requires that we this evi- value, I 1973), Wyo. we de- nothing within those events involved on those occurrences about which he had ing really sentence nal conviction included conviction of a there is no evidence of the seven during is. United States v. tion of dant be tried for what he prior wrongdoings for such ce 147, Rule Carey 1036, 1044, 42 A.L.R.Fed. 855 Rules of Evidence admission of evidence of a This rule—a that he acted Evidence of other character of a acts is not admissible to ^{[*] [*]} “Other 58 L.Ed.2d 149 404(b), W.R.E., provides: rt. ^[*] tf report innocence— reflects participants in the five events similar, seven-year period. Clearly, denied 439 U.S. crimes, wrongs, or acts.— felony. corollary in conformity what not in the person in since in requires expressly (1978). crimes, wrongs, or happened Since the Myers, present pursuit, did, order bad act crimi- record, that a defen 847, 99 prohibit defendant’s not who he prove therewith. presump 550 F.2d (5th purpose. to Pena to show pretrial noth- S.Ct. Cir.1977), opportunity respond no at his answer mony tendency has a to lead the felony trial. permissible that it is to convict believe for conduct other than that with Justice Cardine also addressed dissent charged.”

the defendant is Wyoming evidentiary the misdirection of Carey, 404(b) And further reminded application length of W.R.E. Gabrielson, (quoting 510 P.2d at at 250-52 Bishop, 687 P.2d at 249: 536): expressed by Two concerns are jurisdiction in this settled law “[I]t (1) of Rule in that first sentence accusation, and ar- charges, that mere jury may convict a “bad man” who innocence; and rests are consistent with punished, not because of deserves to be inquired into if the should not be charged, the crime but because prosecution discredit misdeeds, (2) subsequent or eyes the witness jury might infer that because the ac- knowledge such convey crimes, cused has committed charged with a crime.” witness was crime. probably also committed this

£ ^{[*] [*] [*]} $ # for what he A must be tried majority analyze separately defendant do not he is. did and not for who United States of the evidence of the admission (D.C.Cir.1980). Foskey, 636 F.2d 517 mugging I can con- attack Gillette. pathic disposition object. “Rules 403 and are not obstacles is not a valid costs, cleared at all even cut- Showing generally that a man is bad ting pos- around corners whenever it system never been under our allowable. sible to do so. These rules were de- right The defendant has a to be tried on signed to ensure a defendant a fair and specific charge truth contained just upon trial based the evidence in the indictment. presented, upon impermissible in- “Third, an obvious truth is that once predisposition ferences of criminal or prior convictions are introduced the trial by confusion of the issues.” Id. at is, practical purposes, completed for all guilty and the outcome follows as a mere admissible, For other-acts evidence to be formality. regardless This is true it must be relevant to an actual issue of employed by care and caution the court the case tried. The value must instructing the jury. outweighed by prejudice. not be unfair “Thus, problem it is clear that the is not presumption There is no that other-crime simple one, evidentiary goes but rather evidence is relevant. United States v. to the fundamental justice fairness and (2nd Cir.1979). DeVaughn, 601 F.2d 42 of the trial itself.” See, Halper, United F.2d States Bishop, Brown, 687 P.2d at 249-50. (2nd Cir.1978). There must be a 1117-20, agreed 736 P.2d at I in dissent: logical nexus between the crimes. Unit * * *, In conclusion justifying “bad Mann, (1st ed States v. 590 F.2d 361 prove guilt, acts” the court Cir.1978). The evidence must be offered for an issue that is n empiri- moves further the direction of question. United cal substitution of adverse character for (6th Ring, States v. 513 F.2d 1001 Cir. 1975), substantive fact evidence as the basis 30 A.L.R.Fed. 860. conviction, strongly a result with which I quoting And from United States v. Burk disagree and from which dissent. hart, (10th Cir.1972) 458 F.2d 204-05 (footnote omitted), Justice Cardine said: these do not detract from the the rule is mulation of a cautious charges which are not described in the information or indictment. As a result mands. even served his sentence. effect tried as a recidivist nal code. charge he is and with of evidence and not one of and, although exclusionary approach which the rule de- “Too often we lose “Several facts have contributed to for- “First, required the accused is is not a may respect primarily to defend there are have part to which he sight of the federal crimi- a rule of exclusion required many exceptions, past judicial of the fact that past though Thus, actions [for] admission, may to defend answered attitude. general he is in such a have See also tion or ly escaped appropriate responsibility. unfavorable English law that the conviction should be history. determined by exception, present evidence of the offense and not the defendant should be convicted on contradistinction to the once be corollary by defining disposition as a motive and special This * * * ^[*] century-long Makinen, court now concurrence, The initial caught is that those * * * sfc character, then guilt, are history. $ completes 737 P.2d at 350 cardinal perspective eternally essentially destroys and not stated: unlucky enough bad ^[*] lucky The observable reputation, that transfer principle # who initial- by reputa- damned which, ^[*] Evidence about other bad acts which although

“Secondly, such evidence attacks the character of the accused have at least some relevance to the of- carefully should be confined and circum- being tried, predominant quality fense its scribed in the interest of fairness and up is to show character defendant’s artist, process, due unless it involves the course as a car thief or a bad check example. Proof of socio- of the transaction or context of the defendant’s genuine, and Azure, ment “issue” be F.2d that the United States event. Cir.1986); be neces- (8th that the evidence Lessard v. other-crime (1986). sary proof. for As one commentator

Wyo., 719 P.2d its explains: in these proof in worthiness probity “ worth,’ however, consists ‘Probative logically prior police problems cannot be or logical per- relevance of more than long- course of events a compared to a per- matter how suasiveness. No relationship. term sexual See State supposed it is to suasive of the fact Shamsid-Deen, 324 N.C. S.E.2d prove, crimes evidence no other (1989), life sentence incest case. as a if the fact is not in genuineness worth of the probative worth That clearest Perhaps issue. case ignored should not issue addressed be any application crimes offered of relevant would be other evidence affirmation lucidly proof prove is addressed to bad acts evidence to a fact not material Stevens, 115 N.J. A.2d 833 example, spe- charged State crime—for (1989). non-indicted instances of Three manslaughter cific intent in a trial. support of were introduced in misconduct Because such evidence does ad- Jersey’s long-standing common law rule that excluded recognized: pensity to commit a crime. The court then rule W.R.E. W.R.E. two other sexual the defendant The court offered eral The common law excluded because treme. hand that other ways ties The common-law possibilities: sion, acts, as a to inadmissibility and thence on the because compromise between 404(b). solely It first surprise fully rejected the police officer other crime on the one hand that other 404(a) recognized The rule assault prove explored; acts must rule has been their use with cast accepted charges light perpetuated prejudice, defendant’s (b) denying gen- former; issues, may al- on the other would two exception neither comparable absolutely convicted. described propensi- extreme create. confu- which when New only pro- ex- dant. other-crime evidence has ency L.J. There possible fact not contested.” tion of evidence on issues issue to be ancing vance the search that reason. exist when prejudice it Crimes Evidence ^[*] admits principle to forbid and bases grounds. turn a ^[*] and Other 770-71 widespread comfnitting proved creates, dispute, and which are in the accused concedes the A jury against ^[*] might justify whatever similar his defense on some (1961).] Courts —for at Trial: and excluded for Matters, 70 truth, ^[*] agreement the act which seem im- the introduction situation example, is [Note, have unique it serves no ^[*] the defen- Of applied would Other when ques- tend- ^[*] Yale Bal- subject prejudice all-im- “The adopted the latter to the likelihood acute proffered if other acts evidence is portant reservation when the guilt uncharged crime relevant miscon- were of a defendant’s merely through Chicago than Jury otherwise part duct. As like might those propensity, then acts attempted to Project, researchers de- explored. any other relevant facts be impact of defendant’s termine the probability record on the criminal pursu- Stevens, A.2d at 838-39. And The researchers found rule, of conviction. Jersey “other-crime the New ant to significantly that conviction rates prove admissible to other facts greater learned after Id. at 839. in issue.” record or a criminal defendant had corollary necessary principle A minor even a crime. been admit- evidence can be that other-crime juries concluded researchers fact issue—whether ted employ an aware misconduct among specific exam- not included * * * entirely calculus of ‘different require- ples set forth Rule 55—is the prohibited purposes of permitted the defen- probabilities’ to determine guilt or innocence.” with sufficient reference to dant’s the evidence of the case to enable a the factual context Im- Stevens, (quoting at 839-41 558 A.2d appreciate the fine comprehend winkelried, at 1487- supra, 30 Vill.L.Rev. required to which it is to ad- 89). Jersey Su- distinction Consequently, the New ex- three criteria first preme Court set here.10 worth, recognizing next acting probative my the bad acts It is conclusion compa-

balancing requirement under a rule used to convict Pena failed both fi- approach, and to our W.R.E. 403 rable probative tests of worth bal- Stevens’ limiting instruc- nally appropriate that an the limit- prejudice anced to an extent that given. tion should be given, sincerely ing instruction as however of oth- weighing probative worth court, presented by pos- the trial could not evidence, a court should consid- er-crime sibly escape power conviction whether its only not its relevance but er Pena, guilty character evidence. adverse adequately proffered use in the ease can improvidently may he have been for as by other evidence. be served early morning engaging in the fracas judge should careful to “The trial house, wintery street front of his evidence, or crimes exclude other torts or given a fair trial convicted alone independently rele- though it is even or upon relevant evidence of what did vant, reasonably do wherever can any did not do in violation of criminal stat- plaintiff's or damaging the so without He convicted for what he had ute. example, For if the prosecutor’s case. likely which he done at other times proof of iden- prosecutor adequate given punishment.11 Unfortu- been other like, he tity, and the or motive nately, weigh probative value we cannot permitted to use the should not be against prejudicial effect in this occurrence inflammatory evidence of other highly since, logic upon as founded as a matter In a establish those facts. crimes to effect, past history the accused’s cause and authorship of the forgery case where provides weight present proof no issue, forged writing is in allegedly reading A careful contested fact. instance, judge, for should not trial decisively portrays on record a scale entire indicating the defen- standards admit proof as that this of one to ten of relevance guilt forgeries if neu- dant’s of other not even to a one. of the defendant’s hand- evidence reaches tral standards criminal, prosecu- writing choirboy are available to the or an arch Whether Report at tor.” Pena either was the individual 103.] [1963 else” who ground or was the “someone Stevens, A.2d at 841. The court also a recent federal up from behind. As came limiting ad- required that instruction subject, stan- court addressed the dressing “[t]he crime evidence be the use of other par- evaluating evidence is precisely dard for carefully explain formulated argument cogency that a in the from this There Another is to be observed loadstar 10. likely quotation quarrelsome New Jer- to start extended sey from this current defendant is more and his extended type, case about Officer Stevens quarrel a man of than one of milder a dangerous bad acts misconduct is that course of official evidence or earlier life mistakes rain, shy likely life more than mode of can, like the this, law is not blind recluse. The Pena, everywhere, and if usable for fall peril equally it is not blind to prosecution, come to call with can including accepted if character is innocent doctor, lawyer, or merchant those of a inevitable tenden- crime. “The natural and thief. judge cy or of the tribunal —whether —is give weight record to the vicious excessive interesting singularly recall the aca- It is exhibited, it and either to allow of crime thus Cardozo in of Chief Justice demic comments charge, strongly present to bear too Zackowitz, People N.Y. 172 N.E. justifying a condem- Evidence, to take the (1930) Wigmore (quoting vol. present guilt irrespective 194), nation addressed a defendant not where he § present charge." appellant before the bar of unlike justice here: previ- operandi, or modus ticularly stringent when it offered to * * * identity. physical sim- a substantial similari- show ous acts must bear ‘[T]he ilarity must that it marks the of- be such Final- ty to offense. that In fenses as the handiwork accused. ly, the that as the court should remember words, must other the evidence demon- acts need the evidence unrelated for ” operandi.’ modus strate a United States increases, danger prejudice of unfair Stubbins, 42, (11th Cir.1989) F.2d v. cir- proportionately. rises Under these Beechum, (quoting United v. States cumstances, proper the court it is 898, (5th Cir.1978)(en banc), F.2d 912 n. 15 pro- to allow evidence accused’s cert, denied 440 U.S. 99 S.Ct. if pensity act even to commit criminal (1979)). L.Ed.2d 472 Nor is only it is the evidence available. appropriate applying Rule 403 Note, when Although Impo- Evidence—The give greater weight the court to Wyoming Rule Evidence tence Brown v. value evidence of in Sex Crime Trials: (Wyo.1987), simply XXIII Land & Water bad acts because there is an ab- (1988) related to child L.Rev. sence of evidence the case. case, it sexual abuse would realistic Id. at 785. finitely modify language that and conclu- My recognition anguish is that sion. subject more we write on the of W.R.E. now In Brown Pena v. v. State [and 404(b), the further the trial and this courts State], troubling prece- set a court away reality princi- from tribunal move reasoning dent. When the court’s is fol- ple. The ultimate achievement if the move- courts, by the lowed district other crimes prin- ment the application continues is of a virtually per evidence will be admissible presumed ciple you it is to be * * * se, in trials. There is criminal] [all you had guilty since arrested. been danger will deny that these trials again Regretfully, I am dissent. called to accused the fundamental fairness that judicial system. forms the of our basis reasoning set forth Brown [and should be re-examined therefore

Pena] greater A awareness of court. need to trier of from insulate the fact required. propensity evidence is In this * * * NEWMAN, rights way the those accused Thomas D. (Defendant), Appellant sup- crimes much will receive needed [all] port. article, Note, Evidence, In the earlier BANK, NATIONAL AMERICAN the Wyoming Abuse—Rule Child (Plaintiff). Appellee Rules Evidence: What Protection D. Thomas NEWMAN and Jane Grabill Left After Rasmussen, Appellants (Wyo.1980)?,.XVI Land & Water L.Rev. (Defendants), (1981), accurately perceived that author what since not been either understood or followed this court. GEMELLI, Joe and Gloria 404(b), apply properly To Rule (Plaintiffs). Appellees require court should 89-137, 89-138. Nos. clearly previous bad acts shows the exist- or, disputed issue ence Supreme Wyoming. Court sufficiently spe- evidence should show 4, 1989. Oct. disputed motive issue cific from which coupled can be inferred when facts of the case. order intent, motive, plan, signature,

establish

Case Details

Case Name: Pena v. State

Court Name: Wyoming Supreme Court

Date Published: Sep 14, 1989

Citation: 780 P.2d 316

Docket Number: 88-243

Court Abbreviation: Wyo.