A Meditation on Rule 403 and Rejecting the "Impact Testimony" Theory


State v. Gallagher (HSC May 15, 2020)
Background. John Gallagher went to trial on a single count of criminal property damage in the 2d degree. He was accused of damaging a vehicle parked in the drive way of the complainant's home. The theory at trial was that he did not intent or know that the damage he caused to the vehicle was in excess of $1,500. Before trial, Gallagher filed a motion in limine seeking the exclusion of evidence that prior to the day of the alleged damage, the complainants had been stalked, harassed, and terrorized by Gallagher. They filed restraining orders, installed cameras, and a security surveillance system around the house.

The prosecution maintained that the evidence was admissible pursuant to HRE Rule 404(b) and were not used to show Gallagher’s propensity to commit the crime. The motion in limine was denied. In her opening statement, the prosecutor said the complainants called the police on Gallagher several times in the months leading up to the incident and that they installed an alarm and surveillance system out of fear. Gallagher objected and it was sustained. Gallagher told the jury in his opening statement that the only issue was whether he knew that kicking the vehicle would result in more than $1,500.

The prosecution called Jessica Norman. She testified that she met Gallagher months before the kicking incident. Gallagher renewed his objection to the evidence on the grounds that it should be excluded pursuant to HRE Rule 403 and Rule 404(b). The objection was overruled. Gallagher requested a “running objection” to the evidence.

The court also issued a cautionary instruction to the jury. The court instructed the jury that the evidence must only be considered on the issue of the defendant’s motive, opportunity, intent, preparation, or plan to commit the charged offense, and as to the identity of the person who may have committed the offense. The court told the jury it could not consider the evidence to decide if Gallagher was a bad person and therefore committed the offense.

Norman testified in detail about four prior interactions with Gallagher. They were accounts in which Gallagher yelled obscenities at her and Norman would call the police. She testified that she made a total of six police reports in an approximate six-month period of time. She believed he was getting more and more aggressive. She testified that she was afraid for her life and installed an alarm system, cameras around the house, and tinted the windows to the ground floor.

The prosecution then presented evidence of Gallagher on the day in question approaching the driveway and kicking the vehicle parked there. Other witnesses for the prosecution established that damages to the vehicle were in excess of $1,500.

Gallagher testified in his own defense. He admitted to becoming upset, losing his composure, and kicking the truck. He was wearing a pair of cross-trainers that night and described the kicks on the inside of his foot “like a soccer kick.” He said all he did was leave a few scuff marks on the truck. He did not think it amounted to more than $1,500 in damage. Gallagher was found guilty as charged and sentenced to five years prison. He appealed and the ICA affirmed.

When Relevant Evidence Still Stays Out. Even when evidence is relevant it “may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” HRE Rule 403. “Unfair prejudice means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Kaeo v. Davis, 68 Haw. 447, 454, 719 P.2d 387, 392 (1986).

When it comes to evidence of prior bad acts pursuant to HRE Rule 404(b), the trial court looks to six factors in assessing whether it should be admitted:

the strength of the evidence as to the commission of the other crime, the similarities between the crimes,  the interval of time that has elapsed between the crimes, the need for the evidence, the efficacy of alternative proof, and the degree to which the evidence will rouse the jury to overmastering hostility.

State v. Behrendt, 124 Hawai'i 90, 106, 237 P.3d 1156, 1172 (2010). Each factor must be considered in light of the stated purpose for the evidence.

As for the first factor—the strength of the evidence as to the commission of the other conduct—there was no denying that Gallagher kicked the vehicle on the night in question. Thus, according to the HSC majority, the first factor does not weigh against admitting the evidence.

As for the second and third factors, the prior instances might have been over a relatively short period of time, which favors admittance, but they were not similar to the charged conduct. The HSC held that the similarity was “only marginally probative of this point.” Gallagher’s defense was that he did not intend to cause more than $1,500 in damage. The fact that he was yelling at the Normans in the months prior to kicking the vehicle was not probative of that issue. The HSC ultimately held that the dangers of unfair prejudice were great due to the similarity in time and nature of the prior acts and the charged conduct. There is the danger that the jury will use that evidence to infer that it was likely he committed the charged crime, a prohibited inference. State v. Murray, 116 Hawai'i 3, 20, 169 P.3d 955, 972 (2007).

The HSC also examined the final three factors, which focus on the proponent’s need for the evidence and the availability of alternative evidence. There was no compelling need here. The only defense was relating to value. The evidence at issue had nothing to do with that issue and it was very likely that the evidence would cause ill will toward the defendant. State v. Castro, 69 Haw. 633, 644, 756 P.2d 1033, 1041 (1988). Moreover, there was a way to reduce the prejudicial effect of the proffered evidence by simply testifying that the Normans knew Gallagher “from a series of escalating events that were taking place at our residence.” In other words, the court could have ordered the prosecutor to keep it vague.

An Issue with the Instruction. The HSC also addressed the circuit court’s limiting instruction. The HSC noted that when evidence is admitted for a limited purpose, the instruction must be limiting too. Here, the trial court instructed the jury that the evidence of prior bad acts could be used to consider “the issue of the Defendant’s motive to commit the offense charged, opportunity to commit the offense charged . . . preparation to commit the offense, charged, plan to commit the offense charged, and the identity of the person who may have or allegedly committed the offense charged.” The evidence was not admitted for those purposes and the jury should not have instructed the jury that it could consider it for those purposes.

Erroneous Admission of Evidence was not Harmless. The HSC next examined if the admission of the evidence was harmless beyond a reasonable doubt; that is, determine “whether there is a reasonable possibility that the error complained of might have contributed to the conviction.” State v. Mundon, 121 Hawai'i 339, 3689, 219 P.3d 1126, 1155 (2009). According to the HSC, this is not a case with overwhelming evidence establishing an intent to cause more than $1,500 in damages to the vehicle. Evidence in the damages ranged among two different appraisers ranging from $4,583.04 to $1,546.78. Given that it was not overwhelming evidence, the unfair prejudice caused by the erroneously admitted evidence cannot be said to be harmless. The HSC vacated the judgment.

Chief Justice Recktenwald’s Dissent. The Chief Justice dissented. He believed that the trial court did not err in admitting evidence of the prior instances with Gallagher. And although he believed that testimony that Norman was afraid of Gallagher and resorted to protective measures was irrelevant and prejudicial, Gallagher did not object to the impact of the prior conduct and therefore waived the error.

The Chief Justice made a distinction between the conduct of the prior bad acts and the impact the bad acts had on the complainants. While Gallagher preserved the issue on the former, there was no objection to the latter. This distinction is key to the Chief Justice. Without an objection, he posits that it was waived on appeal.

The Majority’s Response. The majority addressed the CJ’s distinction in the opinion itself. It responded that Gallagher had done enough to preserve the issue by filing a motion in limine, raising the objection at trial, and demanding a “running objection.” While much of the objections were based on the conduct it was clear from the record that this included the Normans’s reaction to the conduct. The majority expressly rejected the “impact testimony” theory of preserving an issue.

Justice Nakayama’s Dissent. Justice Nakayama dissented and wrote separately. She did not expressly adopt the impact testimony either. She did, however, believe that the trial court did not err in admitting the evidence of prior bad acts. Justice Nakayama agreed with the CJ that evidence of the prior conduct was relevant to show the extent of Gallagher’s hostility toward the Normans and his intention to damage the vehicle. She disagreed on the majority’s analysis of the Behrendt factors. For her, the only error by the trial court was allowing evidence of the Normans’s fear—but that error was harmless. She would have affirmed.

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