State v. Bernard

THOMAS, Judge,

concurring in part and concurring in result in part.

I concur in part and concur in the result reached in the majority opinion, and I concur in the conclusion reached by Chief Justice Robertson in his separate opinion that none of the testimony of the four witnesses referred to in the majority opinion as An *25 drew, Bob, Charles and Don is admissible because I conclude that this evidence should not be admitted under any of the exceptions to the rule excluding evidence of prior criminal acts.

To assure that it not be otherwise lost in the details of the various opinions, I first point out that all of our opinions in this case are in agreement on the major thrust of our decision, which is that the Missouri prior-crimes cases, beginning with State v. Roster, 684 S.W.2d 488 (Mo.App.1984), and subsequent cases which relied upon Roster (see cases cited in footnote 2 on page 15 of the majority opinion), to expand the scope covered by the common scheme or plan exception will no longer be followed. I also agree with the majority opinion that Missouri should not recognize or follow an independent exception in a child sexual abuse case for evidence of prior sexual abuse by the defendant of children other than the victim as discussed in State v. Lachterman, 812 S.W.2d 759 (Mo.App.1991). We are in full agreement that to the extent these cases have expanded the exceptions for the admission of evidence of prior crimes, we will now pull back to a more traditional rule in this area. The basic difference between the majority and the concurring opinions is how far we should pull back and, in particular, whether we should recognize an exception for signature crimes when the issue is whether the crime occurred.

In my concurring opinion in State v. Sladek, 835 S.W.2d 308, 314 (Mo. banc 1992), I called this type of case “signature modus operandi/corroboration,” or signature crimes/corroboration. Chief Justice Robertson takes issue with the appropriateness of the term “corroboration,” and it may be true that some other title for this type of case would be more accurate and helpful. However, for the time being, I will continue to use that label rather than to inject the confusion of a new title. The more important inquiry is whether this type of case justifies an exception to the prior crimes rule and, if so, what is the rationale for that exception?

In dicta in my concurring opinion in Sla-dek, I pointed out that the traditional prior crimes rule has recognized an exception for the admissibility of prior crimes where the issue is identity and the prior crime qualifies as a so-called “signature crime.” As an example, I described Jones v. State, 460 So.2d 1384 (Ala.Cr.App.1984), where the defendant was charged with the robbery that occurred when the victim responded to a telephone call asking him to go to a certain Alabama farm to do some construction work. When the victim arrived, he was met by a man he identified as the defendant. This person took the victim into a barn where another man wearing a Halloween-type mask and black wig robbed him. During the robbery, the man wearing the mask and wig carried a long-barreled pistol, and the man identified as the defendant had a snub-nosed pistol, each of which was observed and described by the victim. The defendant denied that he participated in the robbery or had any knowledge of it. He claimed that the victim was mistaken in identifying him as a participant, and he attempted to establish an alibi through other witnesses.

The court admitted testimony by a criminal investigator from Tennessee who testified that two weeks later he went to a farm with another investigator, who posed as a cattle buyer. The investigators, who were invited to the farm by phone, were met by the defendant and taken into the barn where they were robbed by a man wearing a Halloween mask and a wig identical to those worn by the masked man in the charged crime. The guns used in the uncharged crime were seized and later identified by the victim as the same identical gun used by the man in the mask and wig in the case of the large-barreled pistol and as being of the same type used by defendant in the case of the snub-nosed pistol. The court admitted evidence of the uncharged crime under the signature crimes/identity exception to the general rule prohibiting admission of other or collateral crimes as substantive evidence of the guilt of the accused. The court observed that the uncharged crime is not admissible unless it and the now-charged crime “are ‘signature *26 crimes’ having the accused’s mark and the peculiarly distinctive modus operandi so that they may be said to be the work of the same person.” Id. at 1390 .

In the dicta contained in my concurring opinion in Sladek , I compared the admissibility of evidence of prior crimes in a signature crimes/corroboration case with the admissibility of such evidence in a signature crimes/identity case. We can further evaluate this comparison in the context of the facts presented in the present case. I agree with the majority opinion that the defendant’s conduct some ten years earlier in causing Bob, Charles and Don to run naked in front of a car and having Andrew ride naked on the hood of the car and the claimed conduct in the present case that the defendant requested the victim to take off his clothes and run or walk around the car are signature crimes. The issue then is whether the evidence of defendant’s conduct ten years ago is sufficiently probative to outweigh the prejudice involved in admitting evidence of these earlier crimes. I concluded in my concurring opinion in Sla-dek that “the increased probative value that arises from the signature modus oper-andi to overcome the unfair prejudice in an identity case is probably equally strong in a case where it is offered to corroborate a victim’s complaint.” Sladek, 835 S.W.2d at 317 . Having now considered that proposition further, I now conclude that the rationale and reasoning involved in a signature crimes/identity case is entirely different from that involved in a signature crimes/corroboration case. While the presence of a signature crime does add increased probative value on the identity issue, the fact that it is a signature crime that is unusual and unique really adds nothing to the probative value of such evidence where the issue is whether the defendant did what the victim claims he did.

In a typical identity case, the defendant concedes, or at least does not contest, that the crime occurred. His defense is: “It wasn’t me.” The signature crimes/identity exception says that if a prior crime is so unique and unusual that it becomes the “signature” of the person who committed it, and the defendant is identified as having committed the prior crime, then this evidence will be admitted as proof that it was the defendant who committed the unusual and similar crime now charged. Some courts have compared the signature crime to the defendant’s fingerprint or to his signature. The reasoning is that the signature crime is so unique and unusual, as is a fingerprint, that the evidence shows this type crime to be the defendant’s crime, then if this unusual act (or fingerprint) is shown to have occurred in a similar manner, this identifies the defendant as the perpetrator of that crime. Obviously, the more unique the crime, the stronger the identification. Most important, we need not rely upon the fact that the defendant performed this act on a prior occasion as proof that he chose to perform the act on this occasion since in this type of case it is a given fact that the act occurred; we are merely seeking to identify the actor.

The so-called signature crimes/corroboration case is different. Unlike the identity case where it is conceded that the unusual act occurred, in this situation the issue is whether the act did occur. The inquiry is not who did it; the inquiry is was it done. Chief Justice Robertson refers in his separate opinion to the rule that prior crimes evidence is not admissible if its only direct logical relevance is to the defendant’s propensity to perform the charged crime. We can examine the probative value of propensity evidence by thinking carefully about the rationale involved. Human beings are creatures of choice; under normal circumstances, they operate upon their own free will and from day to day and time to time they make choices and decisions about what they will or will not do. The defendant in a criminal case is given the benefit of presuming that he acted by free choice. In fact, the absence of free choice, such as where duress is present, may even constitute a defense. Despite the fact that ten years ago the defendant may have asked Bob, Charles and Don to run naked in front of a car, we still afford the defendant the benefit of the presumption that he acted by free choice at the time of the charged crime. We require that the prosecution *27 prove beyond a reasonable doubt what choice the defendant made on the occasion of the charged crime. The fact that ten years ago the defendant may have asked Bob, Charles and Don to run naked in front of a car really has very little to do with whether the defendant chose on this occasion to ask the victim to take off his clothes and either run or walk around the car. The choices he made ten years ago have very little bearing on what choice he may or may not have made with the victim.

Moreover the fact that the charged crime is unusual or unique actually works against the likelihood that the charged crime occurred. Unlike the identity case where the uniqueness of the crime is the feature which identifies the defendant, in the corroboration case where we don’t know whether the act occurred, the extent to which it is unusual, unique or impossible actually makes it less likely, not more likely, that it occurred. Thus, the signature nature of the crime, which makes it an identifying feature in an identity case, actually detracts from its probative value in a case where the issue is whether the act occurred. In the corroboration case, the fact that the act is unique or unusual does not add to the likelihood that the defendant on this occasion chose to engage in this activity. What it boils down to is that the only evidence that suggests it occurred on this occasion is the fact that the defendant chose to act in the same way ten years ago; this is pure propensity evidence and under the rule excluding mere propensity evidence it should not be admitted. In this respect and for this reason, I concur in the result Chief Justice Robertson reaches in his separate opinion.

I would limit the signature crimes exception to the case where it is conceded, or not seriously disputed, that the criminal act occurred and the only issue to be decided is whether the defendant is the person who performed that act. I would limit the common scheme and plan exception to those situations where the prior crime is part of a single plan that also encompasses the charged crime or is part of or preparation for the charged crime, such as where the defendant stole a gun from a pawn shop (the uncharged crime) so that he could use the gun to rob a bank (the charged crime), or other circumstances where there is a direct connection between the prior crime and the charged crime, such as in State v. Komegger, 363 Mo. 968 , 265 S.W.2d 765 (1953), discussed on page 14 of the majority opinion, where in the prior crime the defendant requested the victim to return on the occasion of the charged crime.

Hindsight being better than foresight, I regret having planted the seed for an exception for signature crimes/corroboration in Sladek , particularly since I am now unwilling to go forward with that exception. Having examined this issue further, I am now convinced it is not comparable to the identity exception. Since proposing that exception in Sladek , I have had the feeling that it would be a difficult rule to contain within specific bounds, and I am even more convinced of that fact having concluded that it is not supported by logic. I believe a rule that will admit signature crimes to prove identity only and the traditional application of the common scheme and plan exception as described in the majority opinion will be a workable rule for the trial courts and can be applied consistently.