513 F.2d 1001 (6th Cir. 1975), 74-1277, United States v. Ring

Docket Nº:74-1277.
Citation:513 F.2d 1001
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Lawrence Jerome RING, Defendant-Appellant.
Case Date:April 02, 1975
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

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513 F.2d 1001 (6th Cir. 1975)

UNITED STATES of America, Plaintiff-Appellee,


Lawrence Jerome RING, Defendant-Appellant.

No. 74-1277.

United States Court of Appeals, Sixth Circuit

April 2, 1975

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Jerry D. Kizer, Jr. (Argued), Spragins, Menzies & Rainey, Jackson, Tenn. (Court appointed), for defendant-appellant.

Thomas F. Turley, U. S. Atty., Glen G. Reid, Jr., (Argued) Memphis, Tenn., for plaintiff-appellee.

Before PHILLIPS, Chief Judge, McCREE, Circuit Judge, and RUBIN [*], District Judge.

McCREE, Circuit Judge.

This is an appeal from a conviction, by jury, of mailing threatening letters in violation of 18 U.S.C. § 876, par. 3. 1 Appellant contends, inter alia, that the district court erred in admitting, during the prosecution's case in chief, evidence that he had previously threatened over the telephone a person other than the recipient of the threatening letters that were the reason for the indictment. The dispositive issue is whether this evidence of prior threats was admissible to show the accused's criminal intent. We hold that it was not, and that evidence that the accused had made threats in the past was inadmissible under the "intent" exception to the general rule excluding evidence of prior misconduct. Although intent is an element of the offense charged in the indictment, intent was not a genuinely contested issue in the case because appellant had not asserted mistake or an innocent state of mind as a defense. When no such defense is asserted, the element of intent may be inferred from the act of mailing but may not be proved in the prosecution's case in chief by similar act evidence.

The significant facts are not disputed and may be stated briefly. Appellant was indicted by a federal grand jury and charged with depositing in the United States mails, on or about May 14 and May 15, 1971, two unsigned, undated, threatening letters addressed to Walter Brock of Jackson, Tennessee. At trial, Brock testified that he received two letters reading:

Letter No. 1

Brock: Hiding at home behind your wife's skirts won't help you. I have an army rifle and two rifle grenades so all I have to do is to place one into the front windshield of your car. If your family gets killed in the process, I'm sorry, but you've taken away my family. I don't know when it'll be, but rest assured, YOU ARE GOING TO DIE.

Letter No. 2

Brock: Before too much longer you will see a sign indicating that I mean exactly what I've said. You are going to die! . . . After I've killed you, I will turn myself over to the police for I have nothing to live for right now except to kill you (sic) ass.

The government introduced evidence that appellant's fingerprints were found on the two envelopes and the letters that Brock received. The only other evidence offered to the jury to prove that appellant had prepared and mailed the letters was the testimony of Peggy Dunavan that appellant had threatened her eight or nine times over the telephone about six months before the threatening letters were received by Brock. Although appellant testified at trial, he shed no light on his involvement in the mailing of the letters in May 1971, because he claimed amnesia for all events before August 23, 1971. For this reason the record is almost barren of evidence illuminating the circumstances under which the letters were mailed or indicating whether appellant,

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or anyone else, had a motive for mailing threatening letters to Brock.

The questions presented for review are: (1) whether the district court erred in admitting the evidence of prior threats made by appellant; (2) whether the evidence was sufficient to support the jury's verdict; and (3) whether appellant, although apparently suffering from amnesia, was competent to stand trial.

As a general rule, in jury trials, evidence of a criminal defendant's prior misconduct is inadmissible in the prosecution's case in chief to show the accused's bad character or criminal propensity. The reason is "not because it has no appreciable value but because it has too much." 1 J. Wigmore, Evidence § 194 (3d ed. 1940). It tends to confuse the issue of guilt or innocence of the specific offenses charged and to weigh too heavily with the jury. Mr. Justice Jackson in Michelson v. United States, 335 U.S. 469, 475-76, 69 S.Ct. 213, 218, 93 L.Ed. 168 (1948), stated the general rule and its rationale:

The state may not show defendant's prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so overpersuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice. (Footnotes omitted).

See also People v. Zackowitz, 254 N.Y. 192, 172 N.E. 466 (1939). (Cardozo, J.).

Exceptions to this rule, however, let in evidence of a defendant's prior misconduct to show motive, intent, absence of mistake or inadvertence, identity of the offender or a common plan, pattern or scheme. 2 United States v. Nemeth, 430 F.2d 704 (6th Cir. 1970); United States v. Wells,431 F.2d 432 (6th Cir. 1970); United States v. Birns, 395 F.2d 943 (6th Cir. 1968); United States v. Neal, 344 F.2d 254 (6th Cir. 1965). See also People v. Molineux, 168 N.Y. 264, 61 N.E. 286 (1901) (a leading American decision discussing the exceptions). See generally 2 J. Wigmore, Evidence §§ 300 et seq. (3d ed. 1940); McCormick, Evidence § 157 (1954); Stone, The Rule of Exclusion of Similar Fact Evidence: America, 51 Harv.L.Rev. 988 (1938). The exceptions, when properly applied, are justified by a legitimate need for the evidence that outweighs the perils of undue prejudice to the accused. In reaching this accommodation, the law naturally seeks to shield the accused from unnecessary prejudice. Accordingly, the admission of evidence of a defendant's prior acts of bad conduct, under the specified exceptions, requires limiting instructions cautioning the jury not to consider the evidence for improper purposes. United States v. Nemeth, supra; United States v. Sims, 430 F.2d 1089, 1092 (6th Cir. 1970).

The mere recitation by the prosecution that evidence of the accused's bad acts is offered under an exception

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is not sufficient for its admission. In United States v. Birns, 395 F.2d 943 (1968), for example, we considered whether evidence that the accused had been previously convicted for income tax fraud was admissible in a prosecution for perjury under the exceptions "to show intent, design, scheme, motive, or knowledge on the part of the defendant." 395 F.2d at 945. We held the evidence inadmissible because the prior tax fraud convictions had "no logical tendency" to establish that the defendant had committed perjury and were only prejudicial. To show "intent" with evidence of other misconduct, there must be a substantial similarity between the offenses charged in the indictment and the prior misconduct. United States v. Birns, supra; United States v. Kasouris, 474 F.2d 689 (5th Cir. 1973); United States v. Johnson, 453 F.2d 1195 (5th Cir. 1972). See generally 2 J. Wigmore, Evidence § 302, at p. 200 (3d ed. 1940). We have also held that "to show a consistent pattern of conduct relating to the offense charged the evidence must be of prior similar acts reasonably near in time to the offense charged." United States v. Nemeth, 430 F.2d 704, 705 (1970). And, evidence of prior misconduct may not be admitted under any exception unless the matter for which the evidence is offered is "in issue", United States v. Nemeth, supra at 705. Finally, even when it is...

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