¶1dissenting.
¶2Today's decision represents one of those rare moments when the lead opinion announces the result but the concurrence and the dissent announce the applicable rule of law. A majority affirms the conviction and a different majority declares that "common scheme or plan" has not survived adoption of the Indiana Rules of Evidence.
¶3David Deel testified that he bought drugs from appellant on various occasions in late August and early September 1992. As Justice Sullivan correctly points out, this Court sometimes permitted evidence of this kind under the "common scheme or plan" rule of our common law of evidence.
¶4Our adoption of Federal Rule of Evidence 404(b) in Lannan v. State (1992), Ind., 600 N.E.2d 1334, and our subsequent promulgation of Indiana Rule of Evidence 404(b), do not represent a mere continuation of that common law caselaw. Instead of the old "common scheme or plan" rule, our law now admits evidence of "plan" alone. It is a narrower exception than our old rule, which tended to degenerate into an all-purpose excuse for admitting pretty much any old prior misconduct.
¶5The evidence at issue here seems largely designed to show that Lay was in the habit of dealing drugs to buttress the other proof that he did so on October 29, 1992. I would hold it inadmissible.
¶6Beyond the prosecution's use of new and ancient evidence about Lay's prior peddling of drugs (some of it nearly two decades old), the State took the opportunity presented to suggest to the jury that its witness Mr. Pike had taken his polygraph test and passed it. As the cases cited by the majority demonstrate, this Court has historically taken a dim view of such purposeful use of polygraph evidence. I see its use here as part of a *1016series of improper plays that collectively denied Lay a fair trial.
¶7DICKSON, J., concurs.