Carey v. State , 1986 Wyo. LEXIS 502 ( 1986 )

ROSE, Justice,

dissenting.

I dissent, because I believe that the trial court committed reversible error in admitting the evidence of appellant Carey’s prior offenses.

It has long been my position that courts should view with hostility evidence of prior bad acts in criminal cases. Ortega v. State, Wyo., 669 P.2d 935, 945 (1983), ROSE, J., dissenting; Grabill v. State, Wyo., 621 P.2d 802, 814 (1980), ROSE, J., dissenting; Goodman v. State, Wyo., 601 P.2d 178, 188 (1979), ROSE, J., dissenting. The danger in admitting such evidence is that it forces the defendant to meet and explain conduct other than that with which he is charged. Such testimony tends to persuade the jury that they are permitted to convict the defendant for offenses other than those for which he stands trial. Kwallek v. State, Wyo., 596 P.2d 1372 (1979).

As recently as February 13, 1986, this court said in Schmunk v. State, Wyo., 714 P.2d 724, 730 (1986), quoting from Gabrielson v. State, Wyo., 510 P.2d 534, 536 (1973):

“ ‘[I]t is settled law in this jurisdiction that mere charges, accusation, and arrests are consistent with innocence; and they should not be inquired into if the purpose of the prosecution is to discredit the witness in the eyes of the jury and convey to the jury knowledge that such witness was charged with a crime.’ ”

In the instant case, the majority approve the admission of evidence of a prior rape incident in Arizona, for which the defendant was tried twice, as probative on the issue of the present victim’s consent. The State, in the Arizona trials, was not able to establish the victim’s lack of consent, and a judgment of acquittal was entered in both cases. In my opinion, appellant was deprived of his right to a fair trial by having to again mount a defense to a crime for which he was twice acquitted.

A number of courts in other jurisdictions have held that a defendant must be afforded a new trial if his conviction derived from the presentation of evidence of acquitted crimes. The Fifth Circuit Court of Appeals emphasized the unfairness of such evidence in Wingate v. Wainwright, 464 F.2d 209, 215 (5th Cir.1972):

“It is fundamentally unfair and totally incongruous with our basic concepts of justice to permit the sovereign to offer proof that a defendant committed a specific crime which a jury of that sovereign has concluded he did not commit. Otherwise a person could never remove himself from the blight and suspicious aura which surround an accusation that he is guilty of a specific crime. Wingate was charged with robbing Heilman and Angel and as a result of those charges he endured the perils of trial. He was acquitted of those very charges and that should end the matter.”

The Florida Supreme Court adopted the reasoning of the Wingate court in State v. Perkins, Fla., 349 So.2d 161, 163-164 (1977), a case involving the attempted rape of a minor:

“We agree with Wingate that it is fundamentally unfair to a defendant to admit evidence of acquitted crimes. To the extent that evidence of the acquitted crime tends to prove that it was indeed committed, the defendant is forced to reestablish a defense against it. Practically, he must do so because of the prejudicial effect the evidence of the acquitted crime will have in the minds of the jury in deciding whether he committed the crime being tried. It is inconsistent with the notions of fair trial for the state to force a defendant to resurrect a prior defense against a crime for which he is not on trial. Therefore, we hold that evidence of crimes for which a defendant has been acquitted is not admissible in a subsequent trial.”

See also Stuart v. State, Tex.Crim.App., 561 S.W.2d 181 (1978), in which the Texas Court of Appeals reached the same holding where the defendant was charged with aggravated rape.

The majority distinguish these cases from Carey’s situation on the ground that his acquittal means only that “Arizona was unable to prove every element of the charged offense to the satisfaction of each and every juror beyond a reasonable doubt.” 714 P.2d at 247. Carey’s acquittal, according to the majority, is quite different from a jury verdict of “not guilty.” Id.

I consider this distinction much too fine, and inconsistent with the fundamental premise of innocent until proven guilty. I agree with that said by the Minnesota Supreme Court in State v. Wakefield, Minn., 278 N.W.2d 307, 308-309 (1979), another case in which the validity of the rape charge turned on the question of the victim’s consent:

“ * * * We can find no justification for requiring a defendant to bear these burdens [of prejudice and the necessity to defend against extrinsic offenses] when, as here, he has been tried and acquitted of the other charge. It is true, of course, that an acquittal does not signify ‘innocent’; it means instead ‘not found guilty beyond a reasonable doubt’ It may even be at times that evidence of another crime of which the defendant has been acquitted may still meet the Billstrom [State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967)] standard of being clear and convincing. Even so, it is a basic tenet of our jurisprudence that once the state has mustered its evidence against a defendant and failed, the matter is done. In the eyes of the law the acquitted defendant is to be treated as innocent and in the interests of fairness and finality made no more to answer for his alleged crime. It is our view that the admission into a trial of evidence of crimes of which the defendant has been acquitted prejudices and burdens the defendant in contravention of this basic principle and is fundamentally unfair. Therefore, we conclude that under no circumstances is evidence of a crime other than that for which a defendant is on trial admissible when the defendant has been acquitted of that other offense.”

The State of Arizona failed to convince a jury of Carey’s guilt in the first trial. In the interest of fairness and finality, the State of Wyoming should not have been given the chance to do what Arizona failed to do, in order to obtain the instant conviction.

The majority do not analyze separately the admission of the evidence of the mugging attack in Gillette. I can conceive of no purpose for the allowance of this evidence other than to establish that appellant generally was a bad person and to raise the inference that he committed the charged offense. The Wyoming Rules of Evidence expressly prohibit the admission of evidence of a defendant’s prior wrongdoings for such purpose. Rule 404(b), W.R.E., provides:

“Other crimes, wrongs, or acts. — Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. * * * ”

This rule — a corollary of the presumption of innocence — requires that a defendant be tried for what he did, not who he is. United States v. Myers, 550 F.2d 1036, 1044, 42 A.L.R.Fed. 855 (5th Cir.1977), cert. denied 439 U.S. 847, 99 S.Ct. 147, 58 L.Ed.2d 149 (1978).

I would have reversed appellant’s conviction and required the State to prove its case without relying on improper evidence of character.