EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, April 9, 2008

Attempted Suicide By Cop: Pennsylvania Man's Defense Opens The Door To Admission Of Character Evidence

A Pennsylvania man's "attempted suicide by cop" defense opened the door for the prosecution to present otherwise inadmissible character evidence in the man's trial for attempted homicide and aggravated assault.  In 2006, David Charles Kling of Airville, Pennsylvania and Cynthia Testerman had been living together, but in December 2006, Testerman asked Kling to move out.  In the early morning hours of December 17, 2006, Testerman allegedly received threatening and harassing phone messages from Kling and called the police and her father. Before the police arrived, Kling twice got gas cans and approached the mobile home in which Testerman and her mother had locked themselves.  Both times, however, Testerman's father allegedly stopped Kling from taking further action.  Eventually, the police arrived, and Kling used his pickup to chase troopers who were on foot and in patrol cars, and he pointed a shotgun at the police.  After a standoff that lasted about an hour, the police apprehended Kling after firing shots into his pickup truck.

Kling's defense at trial is that he never intended to set fire to the mobile home or harm the cops.  He testified that he planned to use the gas cans to set fire to himself and that his actions toward the police were attempts to get the officers to shoot him.  He claimed that his behavior was prompted by the fact that he had bipolar disorder and had not taken his medication in two weeks.

This strategy, however, allowed First Deputy Prosecutor Jeffrey Boyles to call Kling's ex-wife to the stand. Near tears, Kathleen Elizabeth Holmes told the jury that, in 1995, Kling put a shotgun to her head, poured gasoline around her feet and threatened to kill her during a standoff with Harford County, Md., sheriff's deputies.  Assistant public defender James Rader argued strongly against allowing Holmes to testify to the 13-year-old crime, but Common Pleas Court Judge Thomas H. Kelley said her testimony was admissible because the defense had "raised the specter of intent."  I disagree with this conclusion.

Pursuant to Pennsylvania Rule of Evidence 404(a), "[e]vidence of a person’s character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion."  In other words, evidence the prior incident between Kling, his ex-wife, and the police would be inadmissible to prove that Kling was a violent person and that he thus acted violently on December 17, 2006.  Pursuant to Pennsylvania Rule of Evidence 404(b), however, "[e]vidence of other crimes, wrongs, or acts may be admitted for other purposes, such as....intent."

Thus, for instance, if Kling were charged with assaulting Testerman by punching and kicking her, his defense might be that the two were just playing around and that her injuries were accidental.  This would allow Testerman to testify about prior acts of abuse by Kling in the previous weeks or months to prove that Kling intentionally injured her at the time in question and that her injuries were not accidental.  But that is not the case at hand.

The prosecution alleges that Kling intended to set fire to the trailer to injure or kill Testerman and her mother and that he intended to attack and injure police officers.  Kling counters that he was suicidal based upon his failure to take his meds, that he planned to set fire to himself, and that his only intent with regard to the police was to get them to shoot him.  I don't see how an 13 year-old incident has any relevance in determining whether Kling was suicidal.  Sure, the events are similar, but I just don't see how an attack upon his wife 13 years ago establishes that Kling was not suicidal and instead had the intent 13 years later to attack another woman.



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