Sunday, December 9, 2007

Photo Lineups and Pearl-Handled Baseball Bats

State v. Yamada (ICA December 6, 2007)

Background.
On Valentine’s Day two men were robbed at the Diamond Head lookout. One of the robbers clubbed a guy with a baseball bat. Five weeks later, two Japanese tourists were robbed by two men with a baseball bat at the HNL Zoo. Later that day, police arrested Yamada when he and another guy were found rifling through a parked car at UH. Yamada had a baseball bat. Yamada’s mug shot was used in a photo lineup for one of the witnesses from Valentine’s Day; the witness identified Yamada as the man who used the bat. Yamada was charged with two counts of Robbery in the First Degree (HRS § 708-840(1)(b)(i)) and one count of Assault (HRS § 707-710). Yamada later pleaded guilty robberies at the zoo and went to trial for the Valentine’s Day incident.

At trial, Yamada raised an alibi. The State sought, over Yamada’s objection, the admission of his mug shot and the fact that Yamada pleaded guilty to the zoo robberies. The circuit court allowed the mug shot, a photograph of the baseball bat Yamada had w/ him at UH, and a brief account of how the police got the bat. There was no reference to Yamada’s arrest and the zoo robberies. The jury found him guilty as charged.

404(b) Ev. Showing Just Identity Is “Propensity In Sheep’s Clothing.” Evidence of bad acts is not admissible merely to show that a person is bad and has a criminal propensity. Even if it is admissible under HRE Rule 404(b), its probative value must still outweigh any prejudice. HRE Rule 403. For Rule 404(b) evidence to be admitted without error, (1) the evidence must be “probative of any fact of consequence other than character and propensity; and, if so, (2) [the evidence’s] probative value substantially outweighed the danger of unfair prejudice to [the defendant].”

Under the first question, the ICA agreed w/ Prof. Bowman’s comment that because identity of the defendant is always a fact of consequence in a criminal case, the inferential link between the defendant’s bad act and the identity of the criminal is too weak to stand alone and “intermediate inferences” are needed. The ICA found two.

Not Quite As Distinct As Jack the Ripper is Okay. The ICA held that the 404(b) evidence was admissible to establish modus operandi between the Valentine’s Day incident and the HNL zoo robbery: (1) both victims were “initially startled by loud, abusive shouting, and then overpowered with sudden violence, (2) the use of an aluminum baseball bat in commission of the crimes, (3) the similar times and close proximity of the offenses, and (4) the participation of two men in the attacks.” As for any dissimilarities b/t the two, the ICA held that they aren’t strong enough to negate the similarities.

The ICA’s position shows that the modus operandi inference need not be exacting. ICA does not discuss any similarities between the bats other than the fact that they were both aluminum. The other similarities are not as distinctive as the classic “pearl-handled pistol” or trademark serial killers. That violence followed verbal abuse, that there were two robbers, and that the robberies took place within five weeks of ea. other in a major metropolitan area are not uncommon. Then again, if you look at it cumulatively, some pattern emerges. And we cannot forget that the similarities might have been more striking before the trial court to which, under this standard of review (abuse of discretion), appellate courts defer. The ICA also noted that the fact that Yamada had the baseball bat was admissible to show that he had the opportunity to commit the crime on Valentine’s Day.

Probative Value Outweighs Prejudice. The ICA next held that the probative value of the evidence outweighed any prejudice. Relevant factors include (1) strength of the evidence, (2) the similarities between the crimes, (3) the time b/t the crimes, (4) the need for the evidence, (5) the efficacy of alternative proof, and (6) the degree to which the ev. probably will “rouse the jury to overmastering hostility.” State v. Renon, 73 Haw. 23, 38, 828 P.2d 1266, 1273 (1992). Given the fact that the evidence was used to show modus operandi w/o error, these factors weighed in favor of admission. Moreover, because Yamada had an alibi, the need for the evidence was pressing. Finally, the ICA noted that any prejudice or hostility was weakened by the circuit court’s “concerted effort.” The circuit court limited the actual evidence to a “sharply curtailed version” of the events and a photo of the bat as well as several oral and written instructions.

Speaking A Thousand Words. The ICA moved on to the photo lineup and applied the three-part test in State v. Kutzen, 1 Haw.App. 406, 620 P.2d 258 (1980). First, the gov’t must have a demonstrable need to introduce the photo. The ICA in Kutzen held that there is no gov’tal need when there has been an in-court identification. Id. at 413, 620 P.2d at 263. Second, the photos, if shown to the jury, must not imply that the defendant has a prior criminal record. Third, the manner of intro. at trial must not draw particular attention to the source or implications of the photo.

Under the first prong, Yamada conceded that there was a gov’tal need for the photo because he raised an alibi defense. As for the second prong, the ICA distinguishes itself. In Kutzen, the ICA held that the mug shots used in that case inferred prior records because even though paper was folded and stapled over the bottom of the photo to hide identification numbers, “an inquisitive juror could easily, w/o removing any staples, have seen the police mug shot identification numbers[.]” Id. Here, Yamada’s photos were black n’ white, unmarked frontal shots with handwritten numbers on the top and the words “HONOLULU POLICE.” These photos had no “internal police markings” or “mug shot identification numbers.” Finally, the ICA observed that the purpose of the 3d prong is to prevent the jury from inferring that the defendant has a criminal propensity based on mug shots from other bad acts. It, therefore, fuses into the earlier analysis. It also held that the photos were admissible under the 3d prong b/c the circuit court have a limiting version of how Yamada was arrested at UH.

You Bet it’s Sufficient. The ICA rejected Yamada’s contention that there was insufficient evidence of guilt. His contentions went to the credibility (or rather, incredibility) of the State’s witnesses, the credibility of his own, and a lack of physical evidence. Given the great deference afforded to credibility questions on appeal, see State v. Gabrillo, 10 Haw.App. 448, 457, 877 P.2d 891, 895 (1994), the fact that these issues are viewed in the “strongest light for the prosecution[,]” and the ample evidence supporting the jury’s verdict, the ICA disagreed.

No Mistrial For Failing Court’s Orders. Yamada also argues that his motion for mistrial should have been granted because the prosecutor disobeyed the limiting instructions of the Rule 404(b) evidence by making comments about the UH arrest at closing. The ICA concluded that the prosecutor’s conduct was improper, but it was “unintentional and the result of an ongoing misunderstanding of the court’s ruling.” The circuit court also quickly instructed the jury to disregard the comments. Yamada also had the chance, but declined, to give a specific limiting instruction on the prosecutor’s statements. Thus, the ICA held that there was no error in denying the motion for mistrial.

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