Creating a False Impression of Peacefulness Opens door for Prior bad acts

State v. Brooks (ICA July 22, 2010)

Background. Brooks was charged with kidnapping in the first degree, robbery in the first degree, and unauthorized control of a propelled vehicle. At trial, Tuan Vo testified he picked up Barbara Pichay and William Brooks in his taxi van. After driving around for a bit, they spotted Dennis. William got out the van and talked to Dennis. They called each other brothers and Vo saw them fist bump. Dennis got into the van and sat in the front seat while William and Barbara sat in the backseat. They told Vo to go to Kalihi. When they got there, William put his arm around Vo's neck, pulled Vo against the seat, and held a knife to Vo. The passengers took all of Vo's money and possessions. William pulled Vo into the back seat and Dennis got into the driver's seat. Dennis drove to Kaneohe, then Pearl Harbor, and then to Waianae. On the way to Waianae, Dennis and William switched places. Dennis, according to Vo, stomped on Vo's head and kicked and threatened him. When they got to Waianae, they let Vo out and took off in the van. The police showed up about ten minutes later.

Dennis testified that William is his older brother and has a history of violence, drug abuse, and gang affiliation. Dennis testified that when William grabbed Vo, Dennis feared his brother. He started driving, but he didn't know where to go. He saw that William had the knife to Vo's neck. Dennis testified that because of "my knowledge of my brother's background, I didn't know what was going to happen next." Dennis denied hurting or taking anything from Vo and he testified that when it was all over, he got out of the van and left.

Before cross-examination, the circuit court concluded that Dennis opened the door because Dennis spoke about his brother's background and gave the jury the "wrong impression." The circuit court pointed out that at trial, Dennis had a hair cut, wore glasses, and spoke with a meek voice. On cross-examination the prosecutor questioned Dennis about his prior robbery convictions involving knives and his history of violence. Dennis also admitted that he was not a peaceful person. The circuit court later explained that even though Dennis "did not specifically come out and say, I don't have any prior violent felonies, or the like, by his words, demeanor and conduct he left het Court and the jury with a false impression, i.e., that he was a passive, helpless victim in relation to his brother."

The circuit court instructed the jury that it "must not use [evidence of Dennis' prior bad acts] to determine that [Dennis] is a person of bad character . . . Such evidence may be considered by you only on the issue of [Dennis'] motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, absence of mistake or accident or to rebut the suggestion or inference that [Dennis] is a peaceful and nonviolent or a helpless victim and for no other purpose."

The jury found Dennis guilty as charged. He appealed.

Prior Bad Acts Rebut Defendant's Impression of Peacefulness and Non-Violence Pursuant to HRE Rule 404(b). The ICA began its analysis with HRE Rule 404(b):

Evidence 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 where such evidence is probative of another fact that is of consequence to the determination of the action, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, modus operandi, or absence of mistake or accident.

This is not an exhaustive list. State v. Arakawa, 101 Hawai'i 26, 34, 1 P.3d 537, 545 (App. 202). "[A]ny purpose for which bad-acts evidence is introduced is a proper purpose so long as the evidence is not offered solely to prove character." State v. Clark, 83 Hawai'i 289, 300-01, 926 P.2d 194, 205-06 (1996). The ICA then turned to factors to determine if 404(b) evidence should be admitted:

the strength of the evidence [for the prior bad act], the similarities between the bad acts and [the charged offense], the time that has elapsed between the bad acts [and the charged offense], the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence will probably rouse the jury to overmastering hostility.

State v. Stenger, 114 Hawai'i 162, 172, 158 P.3d 280, 290 (App. 2006).

Applying Stenger, There was no Error in Allowing the Prior bad acts. The first factor cut in favor for allowing the evidence in. The evidence of the prior bad act was a conviction and that was strong. The second factor also cuts for admission: the prior bad acts were robberies involving a knife. The charged offenses involved the exact same thing. The third factor--the time between the bad act and the charged offense--cut against admission because the bad acts took place more than ten years before the charged offense.

The fourth factor--the necessity for the evidence--favored admission. The ICA agreed with the circuit court that the evidence was needed to "counterbalance the impression . . . Dennis created [of himself] at trial." According to the ICA, it was clear that Dennis admitted that he was not a peaceful and non-violent person (sorry for the double negative), but he nonetheless "intend[ed] to impress upon the jury that he was peaceful--whereas William was not." The ICA did not examine the fifth factor--the efficacy of alternative proof. However, for the final factor--the probability of rousing the jury's hostility--the ICA recognized that it could prejudicially effect the jury. See State v. Murray, 116 Hawai'i 3, 20, 169 P.3d 955, 972 (2007). The ICA commented that this was "not an easy issue to resolve" but it could not hold that the circuit court abused its discretion in allowing the evidence. Moreover, there was an instruction that limited the evidence to be evidence that would "rebut the suggestion or inference that [Dennis] is a peaceful and nonviolent or a helpless victim and for no other purpose" and juries are presumed to have followed their instructions. State v. Kupihea, 80 Hawai'i 307, 317-18, 909 P.2d 1122, 1132, 33 (1996).

Is Evidence to Rebut Defendant's Impression that he was Peaceful and Non-Violent Proper 404(b) Evidence? What About 404(a)? Under HRE Rule 404(b), evidence of a prior bad act cannot be used to "prove the character of a person to show action in conformity therewith." HRE Rule 404(b). It can be used to prove something else, like motive, state of mind, intent, or whatever. Here, the ICA held that these prior bad acts were used to rebut the impression that Dennis was a peaceful and non-violent person--and that was acceptable under HRE Rule 404(b). But what about 404(a)? That prohibits evidence of a person's character to prove action in conformity therewith unless that evidence is "of an accused offered by an accused, or by the prosecution to rebut the same[.]" HRE Rule 404(a)(1). See State v. Iosefa, 77 Hawai'i 177, 186 , 880 P.2d 1224, 1233 (App. 1994) (defendant's witness should have been permitted to testify about defendant's peacefulness and non-violence pursuant to HRE Rule 404(a)(1)). Isn't evidence of prior bad acts used to rebut the accused's peacefulness or non-violence just that? Would that place us in HRE Rule 404(a)(1) rather than HRE Rule 404(b)?

What is the difference between 404(a) exceptions and 404(b) exceptions anyway? 404(a) exceptions recognize that the evidence is character evidence used show propensity. HRE Rule 404(b) does not. That may not be important though because they both are admissible in this case. But if it's 404(b), then in a criminal case there must be reasonable notice of the prior bad act. 404(a) needs no notice. So if the prosecution did not provide notice in this case it cannot come in as 404(b) evidence. If it was 404(a), then it would not matter.

The Limiting Instruction was just fine. The ICA rejected Dennis' arguments that the limiting instruction was insufficient. First, it rejected Dennis' contention that giving the instructions constituted a prejudicial delay because Dennis did not object at the time the prior convictions came in during the trial and the fact that no other evidence was presented after Dennis' cross-examination, there was no prejudice. The ICA also did not find the instruction itself prejudicial.

How to Avoid this Problem . . . When evidence comes in for a limited purpose or applying to a certain party, "the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly." HRE Rule 105. Dennis did not request the limiting instruction until the end of the evidence. The language is clear. The court must abide by the request and limit the evidence right then and there.

Instructions for Lesser-Included Offenses Should've been Included, but Error was Harmless. The ICA rejected Dennis' argument that instructions for the lesser-included offenses of robbery in the second degree and theft in the fourth degree. Those offenses are indeed less-included offenses to robbery in the first degree. State v. Arlt, 9 Haw. App. 263, 277, 833 P.2d 902, 910 (1992); State v. Mitsuda, 86 Hawai'i 37, 46, 947 P.2d 349, 358 (1997). And while these offenses should have been included, it is "harmless when the jury convicts the defendant of the charged offense or of an included offense greater than the included offense erroneously omitted from the instructions." State v. Haanio, 94 Hawai'i 405, 415-16, 16 P.3d 246, 156-57 (2001).

Sufficient Evidence for the three Charges. Finally, the ICA held that there was sufficient evidence supporting the jury's verdict. Viewed in the light most favorable to the prosecution, there was ample evidence supporting the verdict. See State v. Richie, 88 Hawai'i 19, 33, 960 P.2d 1227, 1241 (1998).