Monday, February 11, 2008
Why Wyoming?: Reay Case Reveals Wyoming Courts Hold Instrinsic Evidence Is Still Subject To Rule 404(b)
The Supreme Court of Wyoming's recent opinion in Reay v. State, 2008 WL 344116 (Wyo. 2008), reveals a distinction between its treatment of Wyoming Rule of Evidence 404(b) and most federal courts' treatment of Federal Rule of Evidence 404(b). In Reay, Roy Glenn Reay was convicted of burglary, aggravated kidnapping, and battery against a household member based upon beating and trying to kidnap a Casper woman who had broken off a relationship with him. At trial, the woman, Kelly Meyer, related the following details of the beating:
"I woke up, and I was being-I was held down. I couldn't move. I didn't know what was going on, why I couldn't move. And I was-the next thing that I realized was that [Mr. Reay] was there and that he was choking me. He was yelling at me; telling me that I was stupid, thinking that he wasn't going to find me, because he would always find me; saying that I thought I was so smart; choking me and hitting me; telling me he was going to kill me, going to take me up to the mountain and burn my body in tires. And he was hitting me fast and hard. And he-he flipped me over on my back, twisted my arm behind my back. Was saying that if I-if I thought that he abused me before, he didn't abuse me before; this was abuse. And then he was hitting and choking me again."
Defense counsel objected that this testimony and similar testinmony later provided by Meyer constituted inadmissible character evidence. The trial court, however, overruled defense counsel's objections, and, on appeal, the Supreme Court of Wyoming affirmed these rulings.
In relevant part, Wyoming Rule of Evidence 404(b) and Federal Rule of Evidence 404(b) are identical: They both indicate 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."
Thus, if Meyer's testimony revealed that Reay abused her before, and if the prosecution was trying to use this past abuse to show that Reay had a propensity to be abusive and acted in conformity with that propensity when he attacked Meyer in the instant case, her testimony would have been inadmissible. If, however, Meyer's testimony did not reveal other crimes by Reay or if it did but was offered for a permissible purpose, it would have been admissible.
One other consideration, however, complicates the analysis. As the Supreme Court of Wyoming noted, if Meyer's testimony clearly referred to a prior abusive act by Reay, it was "intrinsic evidence because "it 'and the evidence of the crime charged [we]re inextricably intertwined....'" In other words, Meyer was relating statements Reay allegedly made during the instant act of abuse, not simply testifying about unrelated past acts.
In most cases decided under the federal rules of evidence, the determination that Meyer's testimony referred to "intrinsic evidence" would have resolved the issue because most federal courts have held that "[i]ntrinsic other act evidence does not implicate Rule 404(b) of the Federal Rules of Evidence and 'consideration of its admissibility pursuant to Rule 404(b) is unnecessary.'" See United States v. Skelton, 2008 WL 152601 at *5 (5th Cir. 2008).
In contrast, as the Supreme Court of Wyoming noted in the Reay case, it has consistently held that intrinsic evidence is still subject to analysis under W.R.E. 404(b). Thus, the mere fact that Meyer's testimony referred to a statement made by Reay while committing the instant assault did not exempt it from W.R.E. 404(b). Nonethless, the Supreme Court of Wyoming found that Meyer's testimony was admissible because it was not about other crimes, wrongs, or acts. Instead, the Court found, inter alia, that the phrase, "if I thought that he abused me before, he didn't abuse me before," was conditional, not a positive assertion that he had abused her before.
Frankly, I'm not sure whether I prefer the method used by most federal courts or courts in Montana. I plan on conducting some research into Montana case law in the next few weeks to find cases where Montana courts have found that intrinsic evidence fails Wyoming Rule of Evidence 404(b) and see whether those decisions seem proper or improper.