State v. Miner

GARY M. GAERTNER, Judge,

dissent.

I have no quarrel with the rule of law that excludes evidence attacking a defendant’s character unless the defendant introduces evidence tending to establish his good character. I cannot agree, however, that the state’s breach of this rule prejudiced the defendant in the instant case.

If the evidence of bad character involves some specific bad act(s) committed by the defendant, then the possibility of prejudice runs high. The jury may in such case be induced to convict the defendant for his prior bad act(s), while losing sight of the crime for which the defendant stands trial. For example, in the only case cited by the majority, State v. Thurman, 521 S.W.2d 773 (Mo.App.1975), defendant’s manslaughter conviction was reversed because the state interjected evidence showing that defendant once picked up a cat and threw it against a wall until it died. Similarly, evidence of a defendant’s juvenile record is highly prejudicial, as indicated by the reversal of defendant’s first conviction in this case. State v. Miner (Miner I), 657 S.W.2d 332 (Mo.App.1983).

When, however, the evidence of a defendant’s bad character consists only of an opinion as to the defendant’s personality, then the risk of prejudice is significantly reduced. In the case before us, the majority reverses defendant’s conviction because the state’s psychiatric expert testified that defendant “had anti-social personality.” It stretches the imagination to conceive that the jury might have convicted defendant merely because he had such a personality disorder.

Defendant’s own admissions further minimize the prejudicial effect of the psychiatrist’s testimony. Defendant testified at trial that he attacked his wife with a meat cleaver after drinking a pint of bourbon, one-fifth gallon of wine and several beers. Such actions clearly constitute anti-social behavior. Given this testimony, is it conceivable that evidence of defendant’s antisocial personality further denigrated his character in the minds of the jurors? I think not.

The majority contends that this dissent represents little more than a belated argument of issues already raised and decided in Miner I. A close reading of Miner I indicates, however, that the court reversed defendant’s conviction on that appeal because the state had introduced evidence regarding defendant’s juvenile record. Although the court remarked that evidence of defendant’s personality was irrelevant, nowhere did it hold that the admission of such evidence was so prejudicial that it constituted reversible error. The prejudicial effect of such evidence thus remains an open question on this appeal. By mischaracter-izing the holding in Miner I, the majority has allowed itself to sidestep this important question. Such abdication of judicial responsibility does a disservice to the cause of justice.

For the foregoing reasons, I respectfully dissent.