McMorris v. State

¶1(dissenting). Here the defendant, found guilty by a jury of injury by conduct *153regardless of life, claimed to have acted in self-defense. So she needed to convince the jury that she had reasonable grounds to believe that the force she used was necessary to prevent death or harm to herself.1 So evidence as to the character or reputation of the person allegedly assaulted by this defendant was, as the trial court ruled and the majority notes, admissible as bearing upon the reasonableness of the defendant’s apprehension of danger to herself.2

¶2Here the defendant sought to establish the reasonableness of her apprehensions by (1) testimony as to the general reputation of the person stabbed; and (2) prior incidents involving the person allegedly assaulted and persons other than the defendant. Was, as the trial court ruled, such offered evidence as to other incidents involving other persons inadmissible? Clearly, in a majority of states, the offered testimony is inadmissible,3 unless closely connected in point of time so as to become part of the res gestae.4 These states limit testimony as to the character of the person assaulted to his general reputation and character, holding neither established by prior situations involving the person assaulted and someone other than the defendant.3

¶3*154The majority goes the other way to hold that the defendant here should have been permitted to show that there were specific instances, about which she knew, in which the person stabbed had acted violently or turbulently toward persons other than the defendant. Some states so hold,6 and some text writers so recommend.7 The majority sees “. . . no substantial reason for the exclusion of particular violent acts of the victim, known to the defendant prior to the incident from which the charges arose. . . .”

¶4Where the majority sees no substantial reason for excluding evidence of other incidents, remote in time and not involving the defendant, the writer sees four: The rule that earlier incidents, involving the victim but not the defendant, may be inquired into will surely:

¶51. Unduly lengthen the trial of assault and homicide cases where self-defense is an issue.8 When witnesses for the defense testify as to what the victim did or did not do on a half-dozen earlier occasions, surely the victim or complaining witness will have the opportunity to dispute such testimony. So, instead of one trial as to whether the defendant acted in self-defense, we will have the half-dozen more as to whether the complaining witness acted in self-defense or acted at all. With trials delayed and criminal court calendars clogged, the resultant lengthen*155ing of time of trial affects directly the administration of criminal justice.

¶62. Unwisely confuse the jury. Collateralizing the trial to include inquiries into a number of incidents involving the victim, but not the defendant, will, the majority says, “assist” the jury in deciding the case involving the defendant. From such assistance, juries might well pray to be saved. Now the jury must consider not only what the defendant here did in one situation, but also what the victim or complaining witness did or did not do in a half-dozen other situations, none involving the defendant. One self-defense issue could blossom into a half-dozen, for surely the turbulent or violent character of a victim is not affected by a situation in which such victim acted to defend herself, or did nothing at all. Certainly the attention of the jury would be diverted to the collateral issues raised, with the issue of guilt of the defendant overshadowed, or, at least, outnumbered.9

¶73. Unfairly introduce a double standard. Defendant’s brief argues that what defendant sought to show by the excluded evidence was the victim’s “propensities toward violence.” The “propensity” theory argues that one who got drunk six years ago is more likely to have been intoxicated yesterday, than if the earlier lapse from sobriety had not occurred. That is hardly the way to deter*156mine character.10 The jury is tempted to conclude that because a victim of a crime may have acted improperly, six months or six years earlier, he or she is likely to have acted improperly in the situation resulting in the defendant being charged with crime. Arguably, criminal records of a complaining witness ought be also admitted for these show “propensities” beyond reasonable doubt. Meanwhile, the complaining witness, in giving her account of a fight or struggle, may not refer to earlier incidents involving the defendant.11 And, of course, a defendant’s records of convictions, even for identical or similar crimes, may not be introduced into the record.12 Why assist a jury to know of earlier incidents in the life of the victim when you cannot supply identical assistance as to earlier incidents in the life of the defendant ? What is not sauce for a gander ought not be sauce for a goose.

¶84. Unnecessarily complicate the trial. All that we are talking about is the character and reputation of the assault victim as bearing upon reasonableness of apprehensions claimed by the defendant. The defendant, claim*157ing self-defense, can take the stand to assert that she, on the basis of what she heard or earlier saw, believed the victim to be a violent or turbulent character. Unchallenged, that is all that needs be said. If the state elects to cross-examine as to whether such belief was in fact reasonable or warranted, the defendant could then have, in rebuttal, the right to testify as to incidents that she herself saw or witnessed. As to what she heard from others but did not observe — the hearsay basis for her belief — it would still make no difference as to what actually happened at the occasions about which the defendant was told. Her belief, necessarily, would be based on what she saw and what she heard, and, even in rebuttal, the writer would make what she saw or heard the extent of evidence as to prior specific instances held admissible. Permitting in rebuttal what is not permitted in case-in-chief or defense-in-chief has impressive credentials. For it is exactly what the United States Supreme Court has done with Mirandaless confessions in the Harris Case.13 What cannot be used in the case-in-chief can become usable in rebuttal for rebuttal purposes.

¶9For the four reasons stated, the writer would not adopt the open door policy as to earlier incidents involving a complaining witness or victim and other persons, but not involving the defendant. Only where such unrelated incidents were observed by a defendant would the writer hold them admissible, and then only in rebuttal where reasonableness of defendant’s claimed apprehensions had been challenged. This would prevent a trial of a defendant on an assault or murder charge from being transformed into a trial of the victim or complaining witness as to characteristics or “propensities.” On this record, on the issue raised, the writer would affirm.