“Among the non-enumerated exceptions we have recognized to KRE 404(b)’s general prohibition on the introduction of prior bad acts evidence is . . . modus operandi.”
How later courts described this case
- “Among the non-enumerated exceptions we have recognized to KRE 404(b)’s general prohibition on the introduction of prior bad acts evidence is . . . modus operandi.”
- although O’Bryan predates the adoption of the Kentucky Rules of Evidence, the quoted language is in accordance with KRE 404(b)
Written by the judges who cited it.
The opinion
CLAYTON, Justice,
dissenting.
In view of the overwhelming weight of the evidence of guilt, I would affirm the conviction. Under our former criminal code, virtually any error was enough to overturn a case involving the death penalty. Under our present criminal code, however, this approach pales in significance because of the aggravation (murder for profit) and mitigation factors present now.
I believe there was competent circumstantial evidence establishing that appellant committed a prior crime using the same common scheme or plan (poison), and was motivated by the same reason (profit), as in the O’Bryan death. The remoteness of Sa-dler’s death should affect only the credibility of the evidence, and I think the peculiarity of death by arsenic poisoning makes it easier to overcome the task of proving commonality than would be true if the deaths were caused by a more typical means.