Wednesday, September 24, 2008
Burn Notice: Ohio Judge Excludes Evidence Of Prior Arson In Trial Covering The Largest Mass Murder In Youngstown's History
A judge has precluded the prosecution from introducing evidence relating to an earlier arson allegedly committed by a defendant in his trial for setting a house fire that killed 6 people. Michael A. Davis will soon stand trial on a 29-count aggravated murder and aggravated arson indictment with death penalty specifications. Those counts are based upon Davis allegedly setting a Youngstown, Ohio house on fire, which took the lives of Carol Crawford, 46; her daughter, Jennifer R. Crawford, 23; and Jennifer’s four children, Ranaisha, 8; Jeannine, 5; Aleisha, 3; and Brandon, 2. Five other people were also in the house, but escaped with their lives. Authorities are calling the "blaze the largest mass murder in the city's history." They also claim that the January 23rd fire was not the first one ignited by Davis.
Instead, assistant county prosecutor Natasha K. Frenchko claimed that Davis lit a fire on January 1st that shared some similarities with the January 23rd travesty. Specifically, according to the prosecution, at 11:00 p.m. on December 31, 2007, three individuals attacked a man with stones and hit him on the head when he opened his side door to investigate noises outside. The trio then ran away, and the victim went to a hospital. After returning home and lying down, the victim heard breaking glass in front of his house, looked outside and reported he saw the same trio dousing and igniting a liquid in front of his house. When he tried to extinguish the fire, the trio threw burning objects at him, forcing him to flee his home at 4:00 a.m. The victim thereafter identified Davis as one of his attackers, prompting prosecutors to move to introduce evidence of the January 1st fire as evidence against Davis.
And the prosecution's argument was that evidence of this earlier fire was admissible to prove common plan or scheme of modus operandi under Ohio Rule of Evidence 404(b). You see, prosecutors claimed that, in both fires, Davis sat up until the early morning hours, watching the nearby targeted houses and waiting for an opportunity to pour ignitable liquid on their front porches and start the fires. Judge R. Scott Krichbaum of the Mahoning County Common Pleas Court, however, rejected this argument and found that evidence of the January 1st fire was inadmissible because "This is evidence that is so outrageously prejudicial to a criminal defendant. And the problem with that is it is unproved misconduct" introduced "at the 11th hour."
I have a couple of points to make in response to this ruling. The first is that I thought that based upon the "11th hour" comment that the prosecution had failed to give sufficient pretrial notice of its intention to use the evidence of the prior fire. You see, in cases governed by the Federal Rules of Evidence, "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 general nature of any such evidence it intends to introduce at trial" under Federal Rule of Evidence 404(b). My review of Ohio Rule of Evidence 404(b), however, reveals that it contains no such notice provision, and my review of Ohio case law reveals that Ohio courts have not imposed such a notice requirement. See, e.g., State v. Yeager, 2005 WL 2292815 (Ohio.App. 9 Dist. 2005) ("However, this Court has held that Evid.R. 404(B) does not require advance notice of such evidence."
Next, I knew that the judge's claim that "the problem with that is it is unproven conduct" was a nonstarter. Since, the Supreme Court's opinion in Huddleston v. United States, 485 U.S. 681 (1988), courts have consistently held that establishing that a prior crime, wrong, or act occurred is a matter of conditional relevance under Federal Rule of Evidence 104(b) and state counterparts. In other words, as long as evidence of the former fire could navigate the probative value/prejudicial effect tightrope, Judge Krichbaum should have admitted it as long as he determined that a reasonable juror could have found the conditional fact -- that Davis participated in setting the former fire -- by a preponderance of the evidence. The Rule 104(b) standard is a fairly easy one to satisfy, and I have little doubt that the victim's identification of Davis would have satisfied it.
That leaves the first part of Judge Krichbaum's statement, where he claimed that evidence of the former fire was outrageously prejudicial. And in that regard, the judge was likely correct, and I certainly don't have enough facts before me to second guess his judgment. Basically, even if other crime, wrong, or act evidence is relevant for proving a permissible purpose, it should still be excluded if its probative value is outweighed by the danger of unfair prejudice. See, e.g., State v. Haines, 860 N.E.2d 91, 97 (Ohio 2006). In other words, Judge Krichbaum was correct in excluding the evidence if its probative value for establishing common plan or scheme was outweighed by the danger that the jury would use the evidence to conclude, "Once a murderous arsonist, always a murderous arsonist." And based upon the fact that there were only two fires at issue, I think that the probative value of the former fire was somewhat slight while the danger of unfair prejudice was extreme.