Tuesday, January 1, 2008
Stabbing Westward: Utah Court Finds That Proving Witness Fear Is A Permitted Purpose Under Rule 404(b) In New Year's Day Case
In State v. Johnson, 163 P.3d 695 (Utah App. 2007), the defendant Terry L. Johnson appealed his conviction for murder based upon the stabbing death of fourteen year-old Christopher Mosier. On December 30, 1993, Christopher was babysitting the defendant's baby at his mother's apartment. When his mother returned home, she discovered Christopher dead on the apartment floor with fifteen stab wounds.
Later, police contacted the defendant's wife, who told them that she was not afraid of the defendant and that she did not believe that he killed Christopher. The defendant's wife then called the defendant and told him that the police wanted to talk to him. The defendant promptly came home to talk with them about the murder. Later, on New Year's Day, the defendant went to the home of his friend, Madgy Hassan, and told Hassan that "he couldn't stab somebody 15 or 16 times, that he just couldn't do such a thing." The police, however, had not told the defendant how many times Christopher was stabbed, and this information had not been released to the press.
At the defendant's trial, the prosecution not only presented evidence such as the defendant's incriminating statement to Hassan and physical evidence, but also evidence of past domestic abuse committed by the defendant against his wife, which consisted of the defendant choking her and hitting her in her pregnant stomach to cause a miscarriage. At trial, the defendant's wife testified that the reason she told police that she was not afraid of the defendant and did not believe that he killed Christopher was because she "was saying what [she] needed to survive." The prosecution thus contended that the evidence of past domestic violence was admissible to prove that the wife was afraid of the defendant, explaining why she initially gave false information to the police.
The trial court admitted this evidence pursuant to Utah Rule of Evidence 404(b), which states that "[e]vidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the nature of any such evidence it intends to introduce at trial."
On appeal, the defendant claimed that the trial court was in error because proving "fear" of a witness is not an enumerated purpose under Utah Rule of Evidence 404(b). The Utah Court of Appeals, however, correctly noted that the "other purposes" listed in Rule 404(b) are non-exhaustive and that character evidence can be used for any "legitimate purpose" as long as it does not involve proving propensity/conformity.
The court went on to note that despite the evidence satisfying Utah Rule of Evidence 404(b), the trial court still needed to find that the evidence's probative value was not substantially outweighed by dangers such as the danger of unfair prejudice under Utah Rule of Evidence 403. The court assumed that the domestic violence evidence would have failed this test, but found that any error by the trial court would have constituted harmless error based upon other substantial evidence in the record, such as his incriminating statement to Hassas, supporting his guilt.
I agree with the court's assumption that the evidence would have failed the balancing test in Rule 403 and think that trial courts should be very wary of admitting evidence of past crimes or wrongs of a defendant to prove a witness' fear. The only probative value of such evidence is that it helps give some explanation, beyond the witness' own testimony, for why a prosecution witness may have given conflicting or delayed accounts of the defendant's involvement in the crime at issue. For instance, in Johnson's case, his wife could have and did testify that she initially gave false information to the police because she was afraid of her husband. The domestic violence evidence merely corroborated this fear, giving it minimal probative value.
On the other hand, it is easy to see why the evidence was highly prejudicial to the defendant. The evidence easily could have led the jury to believe that he was a violent person with little regard for human life, making it likely that he killed Christopher.