State v. Bernard

ROBERTSON, Chief Justice,

concurring in part and concurring in result in part.

The majority reverses the conviction of Larry Bernard and remands this case for a new trial. In this I concur. I also concur in the majority’s conclusions regarding Bernard’s sufficiency and double jeopardy arguments. I disagree, however, with the majority’s creation of a new exception to the rule excluding evidence of prior crimes.

Child abuse and sexual molestation are crimes that deserve society’s deepest outrage and most stern punishments. Because of the outrage we justifiably feel when confronted with these crimes, there is a grave danger that we will allow them to alter our commitment to basic evidentiary concepts designed to guarantee due process. Cases like this one appeal to “the feelings and distort[ ] the judgment. These immediate interests exercise a kind of hydraulic pressure ... before which even well settled principles of law will bend.” Northern Securities Co. v. United States, 193 U.S. 197, 400-01 , 24 S.Ct. 436, 487 , 48 L.Ed. 679 (1904) (Holmes, J., dissenting). Regretfully, the hydraulic pressure of outrage we feel when a person exercises his position of authority to abuse children sexually has resulted in a rule that places a defendant’s right to a fair trial in jeopardy.

I.

This Court is properly reluctant to bar any relevant evidence from the jury’s consideration. I believe, however, that none of the testimony of the Weston witnesses should be admitted on remand. I do not argue that prior crimes evidence is somehow irrelevant to establishing guilt. Such evidence provides, at a minimum, an inference that the defendant has a propensity for criminal behavior. The more similar *22 the prior bad acts are to the crime charged, the stronger this inference. Where the propensity and the charges both concern a very distinct type of criminal behavior, the inference is even stronger.

The rule prohibiting evidence of prior bad acts, however, is founded on the belief that, whatever small measure of logical relevance propensity provides, it carries with it such inordinately high risks of abuse that such evidence lacks legal relevance and should be barred. These risks are: (1) that the introduction of evidence of other crimes will mislead or confuse the jury, (2) that the jury will give undue weight to the “if he did it once, he’ll do it again” inference, (3) that the defendant will be made to defend, not just against the charges brought, but against all of his pri- or, similar behavior which, for whatever reason, was not prosecuted by the State, and (4) that the jury, in its rush to punish the defendant for his past acts — which the jury must infer have gone unpunished— may overlook the fact that the State has failed to prove the defendant was guilty of the charges brought. Clearly, the most potent of these risks is the last. To avoid these risks and to ensure each defendant a fair trial in which guilt or innocence may be determined on the basis of evidence of the charged crimes- and not of general propensity or bad character, courts have generally said that where evidence is relevant only to show the defendant’s propensity to commit the type of crimes charged, such evidence may not be admitted.

This Court recently rededicated itself to this general rule in State v. Sladek, 835 S.W.2d 308 (Mo. banc 1992). There, evidence that a dentist had fondled the breasts of four previous patients was held inadmissible in the trial of that dentist on charges that he drugged, raped and sodomized a fifth patient. “The well established general rule is that proof of the commission of separate and distinct crimes is not admissible unless such proof has some legitimate tendency to directly establish the defendant’s guilt of the charge for which he is on trial.” Id. at 311 (quoting State v. Reese, 364 Mo. 1221 , 274 S.W.2d 304, 307 (1954). Where the relevance of such evidence is confined simply to raising the inference that “if a person will commit one offense, he will commit another,” the evidence must be barred. Id. (quoting State v. Spray, 174 Mo. 569 , 74 S.W. 846 (1903)). Sladek held that the testimony of the four prior victims had no legitimate tendency to establish guilt directly and should have been excluded. Id. at 313 . The Court determined that the evidence had no use other than to raise in the mind of the trier-of-fact the inference that any dentist who would fondle the breasts of four patients is probably guilty of raping a fifth. Indeed, the judge in that court-tried case was thus persuaded and specifically rested his finding of guilt on the strength of the evidence of prior bad acts. A new trial, therefore, was required. Id.

Judge Thomas concurred in Sladek to express his views on the shortcomings of the analysis used to judge the admissibility of this type of evidence. Sladek, 835 S.W.2d at 313-18 . The concurrence reminds us that “relevance” has both a “logical” and “legal” component. Id. at 313 . Evidence of other crimes may be logically relevant in many ways. Evidence acquires legal relevance, however, only when the probative value of its logical relevance outweighs the danger of unfair prejudice created by the propensity inference. Id. at 313-14 .

Judge Thomas’ opinion argues for a new exception to the rule against prior bad acts evidence, which he termed “signature mo-dus operandi/corroboration” evidence. Under that exception, Judge Thomas urged that evidence of prior bad acts should be admitted when the evidence is so similar to the charged conduct that it has a logical tendency to corroborate the victim’s story. This corroboration, stated Judge Thomas, provides sufficient probative value on the issue of the victim’s credibility to outweigh the unfair prejudice that results from propensity evidence. Having thus created a new category of exception to the general rule excluding evidence of prior bad acts, Judge Thomas candidly admitted that:

This particular exception runs a greater risk of ... abuse than the other excep *23 tions because the issue upon which the evidence is being admitted is the same in both the exception and the general rule. Although we have called this exception corroboration, it really involves reasoning from the signature modus operandi based upon the propensity of the defendant to commit this type of crime to the conclusion that the defendant committed the crime charged. This reasoning goes squarely against the rationale for the general rule.

Id. at 317 . [Emphasis added.] I could not express the basis for my disagreement with the majority today with half the eloquence of Judge Thomas. In my view, the dangers of propensity evidence in this case far outweigh its benefits. The majority disagrees and adopts Judge Thomas’ “corroboration” exception as the law of Missouri.

II.

Even without rearguing the fundamental tenets of the rule against prior crimes evidence, there are three strong arguments against legitimizing this “corroboration” exception. First, such evidence has no direct logical relevance to anything other than the defendant’s propensity. In Sla-dek, the Court held that evidence of prior crimes is inadmissible unless it has “a legitimate tendency to directly establish guilt.” Sladek, 835 S.W.2d at 311 . [Emphasis added.] Sladek bases this statement on the general rule that such evidence, if it is to be admitted, must be relevant to some material issue. Establishing the credibility of the victim, even assuming that the testimony of the Weston witnesses does so, does not directly establish guilt nor is the victim’s credibility a material issue. The facts to which a victim testifies are clearly material; the victim’s credibility, however, only determines the weight the jury will accord his or her testimony and, while that is important, it is not material.

Second, the portion of the victim’s story that the majority asserts is made more believable by the prior crimes evidence is not material to the crimes charged. Acknowledging that the lion’s share of the Weston witnesses’ testimony must be excluded under any rationale, the majority has determined that portions of each of the four boys’ testimony should be admitted on retrial. The majority’s rule renders admissible the testimony that Bernard, eight-to-ten years earlier, asked three of the Weston witnesses to either run naked in front of, or sit naked on the hood of, his car and that the fourth Weston witness observed others doing so. This evidence, the majority declares, is “so unusual and distinctive as to ‘earmark’ it as the conduct of the accused and to corroborate the testimony of the victim in the present case.” Maj. op. at 19. Therefore, the majority concludes that when the jury has been apprised of this prior, uncharged behavior, it will be more likely to believe the present victim when he testifies that Bernard asked him to run or walk around Bernard’s car in his underwear. Overlooked by the majority, however, is the fact that Bernard is not charged with having asked the victim to run around the car in his underwear. From this it must be concluded, though the majority does not admit, that the probative value on the issue of the victim’s credibility, which the majority believes outweighs the obvious prejudice of any of the Weston evidence, lies not in its corroboration of any material fact, but rather of a collateral fact.

Finally, but most fundamentally, I respectfully submit that the majority misconceives the nature of corroboration or corroborative evidence. “To corroborate,” means “to correspond with the representation of some other witnesses, or to comport with some facts otherwise known or established.” Black’s Law Dictionary 344 (6th ed. 1990). [Emphasis added.] “Corroborating evidence” is “[e]vidence supplementary to that already given and tending to strengthen or confirm it. Additional evidence of a different character to the same point.” Id. [Emphasis added.] Thus, when one witness testifies that he saw a crime committed at a particular time and place, and another witness testifies that he saw the first witness at that time and in that place, the first witness’ testimony can be said to have been corroborated to some *24 degree by that of the second witness. Similarly, when the victim in the present case testifies to having been upset by the events and the victim’s parents testify that when he showed up at the restaurant he appeared to be upset, the victim’s testimony can thus be said to have been corroborated in some measure.

The Weston witnesses, however, each testified to events other than, and not particularly similar in setting to, that to which the present victim testified. Therefore, it cannot be said that the testimony of the Weston witnesses directly corroborates the testimony of the victim in this case. I would argue, and Judge Thomas tacitly admits in Sladek , that the only corroboration supplied in this situation is indirect corroboration. Indirect corroboration occurs when the jury, which has already determined guilt based on the defendant’s propensity as demonstrated by his prior crimes, believes the victim because his story is consistent with guilt. In other words, the logical path by which the State seeks to bolster the victim’s credibility is: (1) those four boys said Bernard did these things, (2) therefore, he did do them, (3) therefore, he is the type who does these things (4) “everybody knows” that the type of person who does these things is likely to do them again, (5) therefore, it can be concluded that Bernard did do them again, and (6) therefore, when the victim says he did them, the victim must be telling the truth. Thus, the sixth and final step of the jury’s process, corroboration, which is the driving force behind the majority’s ruling of admissibility, is actually unnecessary because the jury first had to determine Bernard’s guilt (step five) in order to have any reason to credit the victim’s credibility.

III.

The legislature has not seen fit to make a person’s propensity for sexual abuse or molestation of children a crime, nor an element of any crime. Rather, it has chosen to punish each such act individually and then only when proven in court and before a jury. The majority cites the secretive nature of these crimes, and the State’s corresponding difficulty in overcoming the defendant’s presumption of innocence, as support for its decision to admit evidence which establishes only the defendant’s propensity. I do not believe that these difficulties can have escaped the attention of the legislature or that this Court should condone the use of evidence that virtually begs the jury to punish the defendant for reasons other than those the legislature has authorized.

Having discarded, in principle, the rule against evidence that only establishes propensity, the majority attempts to redeem itself by setting high prerequisites of similarity for admissibility. Thus, under the majority’s reasoning, evidence ordinarily not admissible because it serves only to establish the defendant’s propensity for criminal behavior is somehow rendered admissible if it strongly establishes that propensity. Nor are Bernard’s hopes of a fair trial on remand significantly strengthened by the majority’s holding that most of the testimony of the Weston witnesses is inadmissible. To be certain, the jury will be spared the day-long string of horror stories reflected in the present transcript. I doubt, however, that these are any worse than what we are inviting the jury to imagine happened by allowing these boys to testify that ten years ago Bernard had them run naked in front of his car ... and then step down.

A close review of the record in this case, without reference to the Weston witnesses’ testimony, reveals that the State presented sufficient direct evidence of the defendant’s guilt to justify submitting this case to a jury. I would reaffirm the time-tested rule against the use of prior crimes evidence and apply it to all of the Weston witnesses’ testimony on remand.