EvidenceProf Blog

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

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.



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Regarding your last paragraph, it's not nearly enough that probative value be outweighed by the danger of unfair prejudice, as you write, is it? I know that the word "substantial" does not appear in the case you cite, but that court found that the probative value was not outweighed, so it logically was not substantially outweighed as ORE 403(A) requires. Hey, maybe the judge got it right anyway, but it is worrisome if judges, like far too many practitioners and commentators, ignore the explicit rule. It seems to me that if it's even sort of a close call, evidence must be admitted; "substantially" has to mean something, yeah? Plus, "outrageous" is not exactly "unfair" now, is it? An outrageous confession can be outrageously prejudicial, after all. I know nothing about this case, and yes, I'm an assistant prosecutor, but it does trouble me when these types of arguments and rulings hint at "if this evidence goes to the jury, he doesn't stand a chance." Since when is that the test for inadmissibility? If it's admissible because of the actual conditions of ORE 403(A), then so be it.

Posted by: mk | Sep 24, 2008 9:57:21 AM

Unfortunately, courts have not made clear the precise probative value/prejudicial effect balancing that takes place in Rule 404(b) cases. I actually had a discussion of this in my most recent article, but I decided to excise it because I didn't think that it was essential to my argument. Here is the body of that discussion, with the footnotes omitted:

(2) Probative/Prejudicial Balancing

As in the common law cases, courts in post-Rule 404(b) cases continued to balance probative value and prejudicial effect even after determining that character evidence was relevant to prove some permissible purpose. Obviously, there is nothing in the language of the Rule indicating the required relationship between probative value and prejudicial effect necessary for “other act” evidence to be admissible, and the Advisory Committee’s Note to the Rule indicated that “[n]o mechanical solution is offered” on the issue. Instead, the Note merely cryptically indicated that “[t]he determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence in view of the admissibility of other means of proof and other factors appropriate for making decisions of this kind under Rule 403.”

The reason this sentence is cryptic is that, as previously noted, Federal Rule of Evidence 403 states that “[a]lthough relevant, evidence may be excluded if its probative value is substantially outweighed” by certain dangers such as the danger of unfair prejudice. Some courts applied this phrasing from Rule 403 to Rule 404(b) and thus found that “other act” evidence was admissible to prove a permissible purpose as long as its probative value was not substantially outweighed by its unfairly prejudicial effect, i.e., its probative value for proving a purpose such as intent was not substantially outweighed by the danger that the jury would misuse the other act as propensity character evidence. So, for instance, in United States v. Jones, the United States District Court for the Southern District of Florida found in a defendant’s trial for conspiracy to possess with intent to distribute cocaine base that, inter alia, his three prior drug convictions were inadmissible to prove knowledge, intent, or the absence of mistake only after finding that their probative value was substantially outweighed by the danger that the jury would misuse the convictions as propensity character evidence.

The problem with this line of cases is that while the Advisory Committee made reference to Rule 403, it also stated that “[t]he determination must be made whether the danger of undue prejudice outweighs the probative value.” The Note did not mention the word “substantially,” which could have led to the inference that courts should find character evidence relevant for a permissible Rule 404(b) purpose inadmissible even if they determine that its prejudicial effect is outweighed by the danger of unfair prejudice, but not to a substantial degree. And indeed, some courts did just that. For instance, in another United States v. Jones, this one decided by the Fifth Circuit, the defendant was charged with unlawful possession of a firearm by a convicted felon. At trial, the prosecution introduced evidence of the defendant’s prior firearms conviction to prove his knowledge, intent, and absence of mistake or accident. On appeal, the Fifth Circuit found that the trial court erred in admitting this evidence because “its probative value [wa]s outweighed by its unfairly prejudicial impact.”

Finally, some courts applied neither of these balancing tests and instead found that character evidence which is relevant for proving a permissible Rule 404(b) purpose is inadmissible unless there was an affirmative showing that its probative value outweighed the danger of unfair prejudice. An example of this balancing test can be found in United States v. Ushery, a case in which three defendants were charged with conspiracy to possess with intent to distribute cocaine. While both the trial court and the Sixth Circuit found that evidence that one of the defendants had a prior felony conviction was relevant to explain why he was not carrying cocaine, i.e., plan, it was nonetheless inadmissible because its “probative value did not outweigh the potential for prejudice.”

Posted by: Colin Miller | Sep 24, 2008 10:44:51 AM

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