STATE of Louisiana v. James K. MOSBY
No. 91-K-1433
Supreme Court of Louisiana
March 2, 1992
595 So. 2d 1135
Kathryn Mary Flynn, Baton Rouge, for defendant-applicant.
CALOGERO, Chief Justice.
Defendant was charged with simple robbery of a patron inside the LNB bank near downtown Baton Rouge. During the trial defendant attempted to introduce evidence that two similar robberies which had occurred in other banks located in the same general area, within a three month time frame, were committed by one Michael Jackson, a black male near the same age as defendant, and not dissimilar in appearance. Defendant‘s objective, of course, was to persuade the jury that Michael Jackson, not the defendant, likely had committed the charged crime also. The trial judge excluded evidence of these other robberies, finding that the evidence, even if relevant, would tend to confuse the jury.
After conviction and sentence1, the court of appeal found that the judge had committed error by excluding the evidence—which it found relevant and admissible—but went on to hold that the error was harmless beyond a reasonable doubt. State v. Mosby, 581 So. 2d 1060 (La.App. 1st Cir.1991). We granted writs on defendant‘s application concerned that such error, if indeed it was error, probably was not harmless.
We now find it unnecessary to examine or address the issue of harmless error because we affirm the conviction for a different reason. There was no error in the district court‘s excluding the evidence. While the evidence was relevant, although not strongly persuasive, it was properly excluded nonetheless, because the probative value was substantially outweighed by the danger of confusion of the issues, misleading the jury and considerations of undue delay and waste of time, if not as well, undue prejudice to the state.
Mosby‘s ex-girlfriend, Johnson, tipped off the police about his involvement in the robbery. She stated that Mosby had told her that he, Mosby, had committed the robbery. On the stand, however, she changed her story. What actually happened, she testified, was that another person told her Mosby committed the robbery, and when she later confronted Mosby, he “laughingly” admitted that he had done it.
The evidence against defendant Mosby consisted primarily of an eyewitness identification by the victim, Guy McFarland. McFarland testified that as he entered the LNB on Florida Boulevard in Baton Rouge, he saw the man who later robbed him standing at the corner of the bank and made eye contact with him. Then, while McFarland was standing in line to make a deposit, Mosby came up and took a money bag from McFarland‘s hands. As Mosby ran from the bank he hit a glass door, which shattered, but continued to run out
The state countered by showing the differences between the two other robberies and the present one. In the January 7 robbery at an LNB branch different from the one in which the “Mosby robbery” occurred, the robber knocked a bank patron to the floor and kicked him in his stomach and ribs until he released a bank bag.2 That robber had earlier broken into song in a falsetto voice and danced around as he stood in line. The victim also indicated that the robber had a note written on a piece of paper which he was waving around. He was described as wearing a cap and having a goatee and a moustache.
The victim of the April 1 Hibernia Bank robbery testified that the robber was at one teller station completing a transaction and that he was at another. As the victim headed out the door, the robber, coming from behind, yelled and grabbed the money bag. The victim chased the robber away from the bank and saw him escape in a getaway car driven by another person. The victim testified that he did not notice any facial hair on the robber and did not notice whether the robber was wearing anything on his head.
The trial judge agreed that the robberies were similar in certain respects but that, contrary to the defense argument, and focusing on State v. Patch, 470 So. 2d 585 (La.App. 1 Cir.1985), this evidence was not admissible. Patch was a case involving an obscenity charge in which evidence that “six months after the charged offense another man who resemble[d] the defendant exposed himself to another woman who live[d] in the same apartment complex” was deemed admissible. Id. at 587. In one respect for sure, Patch differed from the case under review, determined the trial judge. The defendant in Patch presented an alibi defense, something Mosby did not.3 The judge supported his ruling in this case on the strength of this difference. Counsel for defendant acknowledged this difference in the cases, yet argued that State v. Vaughn, 431 So. 2d 358 (La.1982) and State v. Jenkins, 134 La. 185, 63 So. 869 (1913), permit him to introduce this evidence because it establishes a reasonable hypothesis that a third person may have committed this crime.
While the judge denied the motion, he agreed to allow the evidence in later if an alibi should be presented, or if, after defense counsel presented his case, it appeared that this evidence would be “relevant“. Defendant did not present an alibi and he did not convince the trial judge that the evidence of the other crimes allegedly committed by Jackson were sufficiently relevant.
Even relevant evidence may be excluded if its probative value is substantially outweighed by other legitimate considerations in the administration of justice. State v. Ludwig, 423 So. 2d 1073 (La.1983).
When it is the state attempting to introduce “other crimes” evidence, the concern is primarily that the jury will convict the defendant because of bad character. On the other hand, this court has stated that where a defendant‘s constitutional right to present a defense is concerned and the prejudice to the state is slight, the evidence should be admitted, State v. Vaughn, 431 So. 2d 358 (La.1982)5.
Defendant relies upon Chambers v. Mississippi, 410 U.S. 284, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973) for his argument here that excluding the evidence of the “Jackson” robberies denied Mosby the opportunity to present a defense. A court is not required, however, to allow the defense to introduce evidence which, although relevant, has little probative value and might confuse the jury or cause unnecessary delay. State v. Ludwig, 423 So. 2d 1073 (La. 1981).
In Ludwig we affirmed a trial judge‘s refusal to allow the defendant to present evidence that six months before the homicide in question, the decedent‘s wife had shot him in the leg or foot. Although this evidence was relevant,6 it was properly excluded because “[t]he probative value of a possibly accidental shooting six months before the charged offense was substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, and undue delay or waste of time.” 423 So. 2d at 1079.
The circumstances in Chambers differ significantly from those in the present case and in Ludwig. In Chambers evidence highly relevant and critical to the defense theory was held to be unconstitutionally excluded. The proffered evidence included a witness who confessed to the very crime for which the defendant was being tried. Other witnesses would have corroborated some circumstances and testified that the confession took place. The excluded evidence was critical to the defense because
The circumstances giving rise to arguably relevant evidence of other crimes offered to exculpate a defendant cover a wide range of possibilities. On the end of the spectrum most favorable to a defendant, there is the case like Chambers where a third person who has committed similar crimes is shown fairly surely to have committed the charged crime. On the other end there are cases where, without evidence of involvement in the charged crime, another person is shown to have committed similar, although not distinctly similar crimes, in the same community during the same time frame. The evidence regarding a third person‘s possible involvement would be relevant in each case, for introduction of the extraneous crimes tends to prove the possibility of another‘s involvement and would tend to make it somewhat less probable, albeit in substantially differing degrees, that the defendant committed the charged crime.
Yet, it is evident that in the stronger hypothetical mentioned, the defendant‘s constitutional right to present a defense cries out for admission of the evidence, while in the weaker, it would be a waste of time, tend to confuse or mislead the jury, and unfairly prejudice the state to permit introduction of the evidence. Our case falls somewhere between these extreme situations.
Application of
Ultimately, questions of relevancy and admissibility are discretion calls for the trial judge.8
His determinations regarding relevancy and admissibility should not be overturned absent a clear abuse of discretion. State v. Vaughn, supra; State v. Bates, 397 So. 2d 1331 (La.1981); State v. Stramiello, 392 So. 2d 425 (La.1980); State v. Alford, 384 So. 2d 761 (La.1980); C. Torcia, Wharton‘s Criminal Evidence § 134, at 575-77 (14th Ed.1985).
Now we turn to the defense proffer and the circumstances surrounding the robbery at issue and the “Jackson robberies” to determine whether the trial judge abused
The robberies do share some basic similarities. All occurred during the morning banking hours. The banks were in the same general area of the city. Of the two “Jackson robberies“, one occurred at a Hibernia branch on Government street and the other, at an LNB branch on Government street. The “Mosby robbery” occurred at the Republic Towers LNB branch located on Florida street. Florida and Government run parallel to one another, separated by one other major street, North street. All the robberies were committed by slender black males. And the robberies occurred during a four month period: the first Jackson robbery occurred January 7, the “Mosby robbery” occurred on March 9, and the last Jackson robbery occurred on April 1.
Although the Mosby robbery and the Jackson robberies are similar, they do not bear the strikingly similar characteristics of “signature” crimes. Such bank patron robberies in an urban area are not unusual. Were it a common trait of the “Jackson” robberies and the “Mosby robbery” that the robber sang in a falsetto voice and danced before he attacked his victim or if all these robberies had in common the existence of a cohort who drove the getaway car, coupled with other distinct similarities, a different result may be required. In these instances the potential for unnecessarily wasting time and confusing the jury would likely not outweigh the probative value of the evidence that another may have committed the charged crime.
The robbery with which Mosby is charged did not couple any violence with the snatching of the money bag. Moreover, Mosby, not a third person, drove the getaway car himself.
Also detracting from the probative value of the evidence proffered by Mosby in this case is the fact that Jackson was included in a photographic line-up which McFarland viewed before he observed the line-up from which he picked Mosby. McFarland had not chosen Jackson from that line-up. Nor is this a case where evidence indicates that the victim did not have a chance to adequately view his attacker. McFarland made eye contact with Mosby before he went into the bank to make his deposit. After the attack, which occurred during the daytime, he chased Mosby out of the bank and down the street.
On the strength of this evidence we conclude that the trial judge properly excluded evidence of the Jackson robberies. Its probative value was substantially outweighed by the danger of confusing and misleading the jury, considerations of undue delay and waste of time, if not as well, undue prejudice to the state.
In sum, the trial judge did not err when he excluded evidence of the Michael Jackson robberies. The judgment of the court of appeal is affirmed, but for the reasons discussed in this opinion.
DECREE
Accordingly, we affirm defendant James K. Mosby‘s conviction and sentence.
AFFIRMED.
WATSON, J., joins the opinion but concurs to add that he has doubts about the logical relevance of the evidence in question.
LEMMON, J., concurs and assigns reasons.