Tate v. State

¶1dissenting. I respectfully dissent on the admission of evidence of other crimes, wrongs, or acts, to prove guilt. State assistant medical examiner Dr. Daniel J. Konzelman testified that Melissa Portwood “had a contact gunshot wound to the head.... A contact wound means that the muzzle of the weapon is touching the skin when the gun is discharged.” In his opening statement, Tate’s attorney stated, “We admit that Kevin caused the death ofMelissa Portwood .... Your job, however, is to determine from the evidence what degree of a homicide this is.” Tate’s attorney also asserted in opening statement that, “[w]e believe when you consider all the facts and the evidence presented by the State in this case that you’ll have a reasonable doubt as to the charge that the State has brought of murder in the first-degree.” In testimony, in opening statements, and in closing argument, it was mentioned that Tate asserted at the scene and later in a statement to police that the shooting was accidental.

¶2The evidence at issue under Ark. R. Evid. 404(b) is testimony by Brandie Shaffer that two days before the murder, Tate attempted to scare her and fired a pistol into a couch. The circuit court admitted the testimony and instructed the jury that the evidence was not to be considered as evidence that he acted similarly in killing Portwood but to show, “motive, intent, absence of mistake, or accident.”

¶3Standing in isolation, evidence that two days before the murder Tate tried to scare Shaffer and fired a pistol into a couch is not evidence that makes it more probable that he purposely, knowingly, while under extreme emotional disturbance, or negligently1 shot Portwood when he placed the pistol to her head and pulled the trigger. However, taking all the facts of the case into account, Tate’s motive for the murder could have been anger because he feared Portwood was about to leave him. Under those facts, it can be argued that the evidence shows motive or intent indirectly in that Tate was angry with anyone associated with Portwood over her threat to leave him; however, the relevance is slight. Even given slight relevance, this evidence of another crime, particularly one committed with the same firearm used to kill Portwood, is highly prejudicial. The probative value is minuscule. Thus, the evidence might have made it past Ark. R. Evid. 401 in an analysis on relevancy, but it should never have made it past an Ark. R. Evid. 403 analysis because of the slight probative value and certain prejudicial harm.

¶4In addition to motive and intent, the circuit court also listed absence of mistake or accident as a reason to allow the evidence. Testimony of Shaffer that Tate tried to scare her and shot into the couch two days before the murder does not cast light on whether Tate mistakenly or accidentally killed Portwood when he put the pistol to her head and pulled the trigger. It is not relevant on absence of mistake or accident.

¶5The evidence was admitted as a result of the mechanical analysis now utilized by this court in Rule 404(b) cases. The real reason the evidence was offered is clear. The State wished to show that Tate was a man of a violent and dangerous character and that at the time of the murder he was acting in conformity with that character. This was inadmissible under Ark. R. Evid. 404(a) and Rule 404(b).

¶6The mechanical approach applied in this case of searching for a listed exception to Rule 404(b) was noted in White v. State, 290 Ark. 130, 717 S.W.2d 784 (1986). In White, we expressed concern over the approach, and stated that “the better practice and the one intended by the drafters of Rule 404(b) is to consider the list of exceptions to be exemplary only and not exhaustive.” White, 290 Ark. at 140, 717 S.W.2d at 789. The list of “exceptions” cannot be exhaustive because every case is different, and relevance as well as prejudicial harm must be analyzed in each case. Referring to a “list” of exceptions in opinions creates an undue expectation that all possible purposes for which evidence may be admitted under Rule 404(b) are catalogued and readily available in the Rule.

¶7Our use of the term “exception” also arguably creates confusion. An “exception,” in this context, is “something that is excluded from a rule’s operation.” Black’s Law Dictionary 604 (8th ed. 2004). Characterizing the list of examples set out in Rule 404(b) as exceptions encourages an analysis that is comprised of looking to see if the evidence could possibly fit into any listed “exception” so that it is excluded from the Rule’s operation. What is actually at issue is whether the evidence is relevant to prove a fact that is of consequence to the determination of the action and whether the probative value of the fact outweighs any prejudicial harm. If that is the case, the evidence is independently relevant, and absent undue prejudice, will be admitted.

¶8The rule against the use of character evidence to prove guilt, and the accompanying rule that relevant evidence is not necessarily excluded because it coincidentally also reveals the commission of a separate crime or wrong, predate adoption of the current rules of evidence. Earlier cases are helpful in understanding the principles at issue in considering evidence that reveals other crimes and wrongs. In State v. DuLaney, 87 Ark. 17, 22-23, 112 S.W. 158, 160 (1908), we stated:

The principle of evidence that offenses or acts similar to the one charged may be competent for the purpose of showing knowledge, intent or design is as throughly established as the general prohibition that other crimes or offenses cannot be shown in evidence against a defendant charged with a particular crime. While the principle is usually spoken of as being an exception to the general rule, yet as a matter of fact, it is not an exception; for it is not proof of other crimes as crimes, but merely evidence of other acts, which are from their nature competent as showing knowledge, intent or design, although they may be crimes, which is admitted. In other words, the fact that evidence shows the defendant was guilty of another crime does not prevent it being admissible when otherwise it would be competent on the issue under trial.

¶9Rule 404 codifies the longstanding rule that evidence of character may not be used to prove guilt; however, that is precisely what is now happening under the current myopic analysis that amounts to little more than admission of the evidence followed by recitation of listed exceptions to the jury.

¶10Longstanding principles of criminal law are at issue. “No one doubts the fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another.” Alford v. State, 223 Ark. 330, 333, 266 S.W.2d 804, 806 (1954). A finding of guilt must rest upon proof, beyond a reasonable doubt, that the accused committed the exact offense for which he is being tried. Hickey v. State, 263 Ark. 809, 569 S.W.2d 64 (1978). In other words, the presumption of innocence is at issue. A comparison drawn by this court between being tried in prison garb and evidence of prior bad acts illustrates the concern over the presumption of innocence. In Hill v. State, 251 Ark. 370, 371-72, 472 S.W.2d 722, 723 (1971), a case concerning the rule against trying a person while wearing prison garb, the court stated:

The rationale of the rule is reasonable and sound because an accused is presumed innocent until proven guilty, and when he does not take the witness stand as a witness in his own defense, other unrelated crimes or convictions may not be used in evidence against him merely for the purpose of getting across to the jury the fact that he is a “criminal” and therefore likely to have committed the crime with which he is charged. Dickerson v. State, 251 Ark. 257, 471 S.W.2d 755 (1971). Certainly an accused should not be forced to wear a badge conveying evidence which is not admissible when conveyed in words.

¶11Rule 404 is intended to protect the presumption of innocence. “The exclusion of other bad acts evidence offered to show a defendant’s propensity protects the presumption of innocence and is deeply rooted in our jurisprudence.” State v. Trotter, 262 Neb. 443, 457, 632 N.W.2d 325, 337 (2001).

¶12As recently as Anderson v. State, 353 Ark. 384, 399-400, 108 S.W.3d 592, 602 (2003), we quoted Williams v. State, 259 Ark. 667, 672-73, 535 S.W.2d 842, 846 (1976), where we stated:

The presumption of innocence is so strong that it serves an accused as evidence in his favor throughout the trial and entitles him to an acquittal unless the state adduces evidence which convinces the jury beyond a reasonable doubt that he is guilty of the crime charged. It is a fundamental right in the American system antedating any constitution and an essential of due process of law. It alone puts in issue the truth and credibility of all of the evidence offered against an accused.

¶13In Terry v. State, 303 Ark. 270, 273, 796 S.W.2d 332, 334 (1990), we stated the rule in cases concerning Rule 404(b):

The presumption of innocence is not articulated in the Constitution of the United States; however, it is a basic component of a fair trial and the right to a fair trial is a fundamental liberty secured by the fourteenth amendment. Estelle v. Williams, 425 U.S. 501, 503 (1976). Consequently, courts must be vigilant in guarding against dilution of the presumption of innocence so that guilt will be established beyond a reasonable doubt by probative evidence. Deleterious effects on fundamental rights call for close judicial scrutiny.

¶14Guilt is not based on proof beyond a reasonable doubt in cases such as the present case, where the jury may have found Tate guilty of first-degree murder due to the evidence that he scared a woman and fired a pistol into a couch two days before the murder. Guilt based on criminal acts other than the act charged is not proof beyond a reasonable doubt of the crime charged. Evidence of other crimes, wrongs, or acts offered to show that the defendant possesses an attribute or propensity to commit a given act is not credible admissible evidence that he or she committed the act charged.

¶15I see none of the required close judicial scrutiny in this case. The evidence in this case was admitted during the guilt phase to offer Tate’s character trait as proof that he committed the first-degree murder of Portwood. It was inadmissible for that purpose and its admission nullifies the presumption of innocence and constitutes a violation of his constitutional right to due process. Further, Tate did not offer evidence of his good character or of a particular character trait. The defendant must first raise the character issue before the State may offer any rebuttal. Landrum v. State, 320 Ark. 81, 894 S.W.2d 933 (1995). By offering evidence of Tate’s bad character where Tate offered no evidence of his good character first, the State also raised the specter of whether the jury wondered why Tate did not testify and rebut this attack on his character. I would reverse and remand for a new trial.