Goodman v. State

• Citation: 601 P.2d 178
• Decision Date: 18 October 1979
• Docket Number: No. 5091,5091
• Parties: Charles E. GOODMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
• Court: United States State Supreme Court of Wyoming

Page 178

601 P.2d 178

Charles E. GOODMAN, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).

No. 5091.

Supreme Court of Wyoming.

Oct. 18, 1979.

Rehearing Denied Nov. 9, 1979.

Gary L. Shockey, Casper, signed the brief and appeared in oral argument on behalf of the appellant.

John D. Troughton, Atty. Gen., Gerald A. Stack, Deputy Atty. Gen., and Sandra K. Dunn, Law Clerk, signed the brief on behalf of appellee. Lawrence J. Wolfe, senior law student and legal intern, appeared in oral argument on its behalf.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

RAPER, Chief Justice.

The appellant-defendant challenges his conviction for manslaughter under § 6-4-107, W.S.1977, claiming: (1) the trial court erred in admitting evidence of a prior shooting incident which involved the appellant; (2) the appellant is placed twice in jeopardy because he is being punished twice for the same act; (3) the district court erred in refusing appellant's instructions on the grades of manslaughter and the relationship of that crime to the defenses of self-defense and accident; and (4) the district court erred in not granting a mistrial when the prosecutor mentioned in his closing argument that appellant had been residing in the penitentiary.

We will affirm.

The facts of this case are well set out in Goodman v. State, Wyo.1977, 573 P.2d 400. In that opinion this court reversed appellant's conviction for first degree murder and remanded the matter for a new trial. Appellant's conviction for killing an unborn child by assault on the mother was affirmed. A new trial was held beginning on September 18, 1978, and on September 29, 1978, the jury returned a verdict finding the appellant guilty of manslaughter. The only new factor introduced in the second trial which is of significance here is that the State introduced evidence of a 1967 incident wherein appellant also shot a girl friend.

Appellant asserts that the trial court committed reversible error by allowing the prosecution to question appellant concerning an incident which occurred some eight years before the shooting involved in this case. That cross-examination revealed that in June of 1967 appellant had been involved in shooting and wounding of a girl friend at which time he took her to the police station in order to obtain medical assistance.

At trial, and in this appeal, the State asserts that the incident was admissible under Rule 404(b), W.R.E.:

"(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of * * * Intent, * * * Knowledge, * * * Or absence of mistake or accident."

The State presented the evidence on the theory that it tended to prove the appellant's intent under the circumstances of this case and refuted his claim of accident because, when he was confronted with nearly the same set of circumstances on the earlier occasion, he called the police for assistance, whereas here he did not.

Appellant asserts that the evidence was not admissible under Rule 404(b), W.R.E. because its sole purpose was to demonstrate the appellant's character. Further, appellant asserts that under Rule 403, W.R.E. ¹ the prejudicial nature of the testimony outweighed its probative value and therefore should not have been admitted even if it was admissible as relevant under one of the exceptions to Rule 404(b). The argument presented by appellant appears to misapprehend the scope of Rule 404(b), He seems to view that rule as being somehow delimited by Rule 609, W.R.E. ² The evidence obviously was not of the sort contemplated by Rule 609 since it was ³ not a conviction at all. However, the matter raised by the prosecution was evidence of an "act." A prior act of the accused need not be criminal in character in order to be relevant for purposes of Rule 404(b). United States v. Senak, 7th Cir. 1975, 527 F.2d 129, 143, cert. den. 425 U.S. 907, 96 S.Ct. 1500, 47 L.Ed.2d 758; 2 Louisell and Mueller, Federal Evidence, § 140, p. 121 (1978). To the extent the "act" involved here had undertones of criminality, those did not affect its relevancy but rather were to be considered in determining whether prejudice outweighed probative value. Many shootings are not criminal.

We consider the evidence to have been relevant ⁴ in the element of intent which the State was obliged to prove in order to establish murder. The appellant claimed the shooting was an accident. Under the circumstances of this "accident" the appellant gathered up his dog and the rifle which inflicted the fatal wound, drove around Casper cashing large checks, and made no report whatever to authorities. Indeed, it could be readily inferred from his behavior that he intended to flee. Yet eight years previous, when confronted with a very similar shooting, appellant promptly reported the matter to the proper authorities and sought aid for the accident victim. We consider this to be competent evidence from which a jury could properly infer that the latter shooting was not an accident, otherwise he would have reported it as he did in the previous incident. An important part of the trial court's decision to admit such evidence will be based on whether the specific issue to which the evidence is directed is actually being contested. 2 Weinstein's Evidence, P 404(08), p. 404-44 (1978). Here the evidence was very well focused upon the major issue that was placed before the jury. The prior experience demonstrated that appellant knew what to do and yet he failed to do what he previously had done. As a matter of common sense and human nature, a person does not leave an accident victim dead or injured without making a report or calling for assistance. ⁵ It follows that where a person has first-hand experience with such a situation and in the past demonstrated those qualities of common sense, human nature and decency described, the failure to report to authorities or otherwise render aid or assistance carries with it a possible inference of wrongdoing rather than innocence to be included along with all the facts and circumstances surrounding the occurrence.

The evidence was probative of appellant's intent at the time the shooting took place. In addition, it served to rebut appellant's claim of accident. Evidence such as that presented here is commonly used for just those purposes. In 2 Louisell and Mueller, Federal Evidence, § 140, pp. 126-128, it is said:

"3. Intent.

"Sometimes loosely defined as 'merely the absence of accident,' intent in criminal cases is often an element of the charged crime, which clearly encompasses both the desire to achieve a particular end and the knowledge that such an end is the almost-certain result of an act; no doubt intent has many more specific meanings, depending upon the context and the definition of the crime charged. Other acts by the accused, including other crimes, May be received to prove intent on the common-sense theory that the more often a person acts in a particular way and achieves a particular result, the more likely it is that he intended the result. 'Intent' is often lumped together with 'knowledge,' although usually intent signifies something more than knowledge. Cases approving, as well as cases disapproving, the receipt of prior crimes evidence to show intent are collected in the margin. To be truly probative, The prior crimes (acts) must be similar to the crime charged." (Emphasis and bracketed material added and footnotes omitted.)

See also, 2 Weinstein's Evidence, P 404(09), p. 404-50. To paraphrase the language quoted above and bring its full meaning to bear in the case now before us, it would be said that, the more often a person has experienced a given type of situation and reacted in a reasonable manner, the more likely it is that an unreasonable reaction connotes some guilty intent or knowledge.

Another purpose for which such evidence is appropriate is:

"5. Knowledge.

" 'As distinguished from intent, Knowledge signifies an awareness.' Though frequently mentioned along with intent in cases where prior crimes evidence has been received, knowledge connotes something less, and is important as a separate and distinct concept principally in connection with crimes involving dealings in stolen property, illegal transportation or importation of aliens or contraband, the utterance or passing of forged instruments or possession or passing of counterfeit notes. Prior crimes evidence seems also to be received time and again to prove 'knowledge or intent' in narcotics cases. It has been received on the knowledge issue in a variety of other cases. Like intent, knowledge is often thought to be the opposite, or negation, of mistake, accident, or a claimed innocent involvement in criminal acts. Sometimes prior crimes evidence bears not only on knowledge, but upon defendant's veracity, and it may come in to impeach by contradiction a defendant's testimonial assertion of lack of knowledge concerning elements of the crime charged against him. Wigmore summed up the relevance of prior acts to prove knowledge thus: 'The other act will probably have resulted in some sort of warning or knowledge; this warning or knowledge must probably have led to the knowledge in question.' There have been occasional reversals where prior crimes evidence has been received to prove knowledge." 2 Louisell and Mueller, Federal Practice, § 140, pp. 133-137 (1978); and see 2 Weinstein's Evidence, P 404(09), pp. 404-51 to 404-53.

The evidence here showed appellant had a unique knowledge of the circumstances of accidental shootings. That he failed to make use of his knowledge belied his claim of accident. Although this case poses a distinctive set of factual circumstances to which it is difficult to draw parallels, we consider the following cases to shed some light on the case at bar. ⁶...