Getz v. State

• Decision Date: 20 October 1987
• Docket Number: No. 701987,701987
• Citation: 538 A.2d 726
• Parties: Charles R. GETZ, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 726

538 A.2d 726

56 USLW 2514

Charles R. GETZ, Jr., Defendant Below, Appellant, v. STATE of Delaware, Plaintiff Below, Appellee.

No. 701987.

Supreme Court of Delaware.

Submitted: Oct. 20, 1987.

Decided: Feb. 29, 1988.

James T. Vaughn, Jr., of Vaughn and Nicholas, Dover, for appellant.

Ferris W. Wharton, Deputy Atty. Gen., Dept. of Justice, Wilmington, for appellee.

Before HORSEY, WALSH and HOLLAND, JJ.

WALSH, Justice:

This is an appeal from a conviction in the Superior Court of rape first degree and a subsequent sentence of life imprisonment. The defendant, Charles R. Getz, was charged with the rape of his eleven year old daughter. He advances several claims of error one of which, the admission of evidence of alleged prior sexual contact with the victim, we deem the basis for reversal. We conclude, as a matter of law, that the admission of such evidence was an abuse of discretion.

I

The evidence presented by the State consisted of the daughter's testimony supported by corroborative evidence. At the time of the incident which gave rise to the charge, the victim and her older brother resided with her father and the latter's second wife, the victim's stepmother, Ariadna. The wife claimed that she awoke after midnight to find that the defendant was missing from their bed. She left her room to look for the defendant and confronted him leaving his daughter's bedroom wearing a housecoat. When asked what he was doing the defendant replied that he was "checking" on his daughter. The wife then entered the child's bedroom where the child appeared to be asleep and did not respond to questioning. The following day the wife confronted her husband to ask what he was doing in the bedroom. He refused to discuss the incident. The wife promptly questioned her stepdaughter who denied any sexual contact by her father.

Approximately ten days after this incident, the defendant engaged in a physical altercation with his wife which resulted in a call to the State Police. The responding officer questioned the wife in the presence of her stepdaughter. In the course of this interview, the wife advised the officer that "C- has something else to say." The daughter then related the bedroom incident to the officer who arranged for a further interview with a youth officer. After further investigation and a medical examination of the daughter, the defendant was indicted on a single charge of rape first degree.

At trial, the State presented the testimony of the daughter to the effect that on the night in question her father had entered her room, undressed her and achieved partial penetration. The State also presented testimony from the mother, the investigating officers and a physician, Dr. Kuhn, who examined the child shortly after the incident was reported. According to Dr. Kuhn there was evidence that the child's hymen was partially intact, a finding consistent with intercourse but not with multiple episodes of penetration. The physician was not able to rule out other, non-sexual, causes for a partial tear of the hymen.

Prior to trial, counsel for the defendant became aware, through discovery, that a notation in the medical records reflected a statement by the child that there had been "multiple episodes where the father had molested her over the last year." Counsel promptly filed a motion in limine to bar the State from introducing into evidence any evidence of sexual contact with the victim, apart from the charged incident. The defendant claimed that such evidence did not fall within the permitted exceptions to the prohibition of character evidence under Rule 404(b) of the Delaware Rules of Evidence (D.R.E.). ¹ In argument before the Superior Court, the State contended that it should be permitted to present evidence of the defendant's prior sexual contact with his daughter on two prior occasions. The State advanced three bases for their admission: motive, intent and plan, all "as proof of sexual interest in his daughter." The Superior Court denied the motion in limine without reason.

At trial, the State presented evidence of the defendant's prior sexual contact with his daughter in its case in chief through two witnesses. ² Dr. Kuhn, who testified concerning his medical examination of the daughter, was requested to read from the hospital chart the child's case history including her statement of prior episodes of sexual molestation by her father. In addition, in direct examination of the daughter, the prosecutor prefaced his questioning about the charged incident with the statement: "Let's talk about the last time that that happened? Do you remember that?" Later the prosecutor asked: "Okay. And do you remember this, this last time, whether he put his penis all the way in your vagina or not."

At trial, the defendant denied any sexual contact with his daughter. He claimed that his wife, from whom he was then divorced, was attempting to create a misconduct ground for divorce in order to protect her status as an immigrant.

II

The defendant's motion in limine and the Superior Court's refusal to exclude evidence of other sexual contact between the defendant and his daughter squarely presents for review the extent to which such evidence meets the standard of D.R.E. 404(b). The use by the State of prior bad acts or crimes is an oft-recurring question which deserves extended discussion.

We begin the analysis with a view of the standards which governed the use of bad character evidence prior to the adoption of the Delaware Uniform Rules of Evidence. The principles announced on an ad hoc basis were not significantly different from those now embraced in the rule. It was well established that evidence of other crimes was not, in general, admissible to prove that the defendant committed the offense charged. Bantum v. State, Del.Supr., 85 A.2d 741, 745 (1952). Recognized exceptions to the rule included evidence of intent, identity or common scheme or where the two crimes constitute one transaction and proof of one required proof of the other. Id. The underlying rationale for the principle that evidence of bad character is not itself evidence of guilt is simply a corollary of the presumption of innocence. A defendant must be tried for what he did, not who he is. As stated by Wigmore:

The natural and inevitable tendency of the tribunal--whether judge or jury--is to give excessive weight to the vicious record of crime thus exhibited, and either to allow it to bear too strongly on the present charge or to take the proof of it as justifying a condemnation, irrespective of the accused's guilt of the present charge. Moreover, the use of alleged particular acts ranging over the entire period of the defendant's life makes it impossible for him to be prepared to refute the charge, since any or all of such acts may be mere fabrications.

1A Wigmore, Evidence, § 58.2, at 1212-13 (Tillers rev. 1983).

The adoption of D.R.E. Rule 404(b), modeled after Federal Rule of Evidence 404(b), formalized the general rule forbidding introduction of character evidence solely to prove that the defendant acted in conformity therewith on the occasion in question. Dutton v. State, Del.Supr., 452 A.2d 127, 145 (1982). D.R.E. 404(b) is comprised of two sentences: the first proscribing admittance of evidence to prove propensity and the second enumerating illustrative purposes for which evidence of other acts, crimes, or wrongs may be used. ³ Thus, D.R.E. 404(b) forbids the proponent, usually the prosecutor, from offering evidence of the defendant's uncharged misconduct to support a general inference of bad character. For purposes of D.R.E. 404(b), character evidence refers to the disposition or propensity of a defendant to commit certain crimes, wrongs or acts. E. Imwinkelried, Uncharged Misconduct Evidence, § 2:18, at 48 (1984).

The second sentence of D.R.E. 404(b), however, permits introduction of such evidence for reasons other than proving propensity, "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." D.R.E. 404(b). Hence, evidence of prior misconduct is admissible when it has "independent logical relevance" and when its probative value is not substantially outweighed by the danger of unfair prejudice. See D.R.E. 403; Diaz v. State, Del.Supr., 508 A.2d 861, 865 (1986).

The ambiguous formulation of D.R.E. 404(b)--the statement of the prohibition followed by a catalogue of exceptions--has raised the question of whether the propensity rule should be one of exclusion or one of inclusion. Under the exclusionary approach, evidence of prior bad acts would not be admissible unless it fits within a finite list of recognized exceptions provided in D.R.E. 404(b), i.e., intent, motive, opportunity, identity, plan, knowledge, preparation or absence of mistake of accident. Conversely, under the inclusionary approach, the proponent is allowed to offer evidence of uncharged misconduct for any material purpose other than to show a mere propensity or disposition on the part of the defendant to commit the charged crime. The stated exceptions are thus deemed illustrative, not exclusive. See, e.g., United States v. Woods, 4th Cir., 484 F.2d 127 (1973), cert. denied 415 U.S. 979, 94 S.Ct. 1566, 39 L.Ed.2d 875 (1974).

Although there is support for the exclusionary approach, the current trend among courts and commentators appears to favor the inclusionary approach. See, e.g., United States v. Moore, D.C. Cir., 732 F.2d 983 (1984); Reed, Admission of Other Criminal Act Evidence After Adoption of the Federal Rules of Evidence, 53 U.Cin.L.Rev. 113 (1984); E. Imwinkelried, supra, § 2:29-2:30, at 66-72 (noting that adoption of Federal Rules of Evidence and its accompanying legislative history leave no doubt that Congress intended 404(b) to be one of inclusion). But see Nero v. Blackburn, 5th Cir., 597 F.2d 991 (1979) (ruling that under Louisiana law the prosecutor may not introduce evidence of other crimes...