State v. Hastings

• Citation: 137 N.H. 601,631 A.2d 526
• Decision Date: 16 September 1993
• Docket Number: No. 92-232,92-232
• Parties: STATE of New Hampshire v. Earl HASTINGS.
• Court: New Hampshire Supreme Court

Page 526

631 A.2d 526

137 N.H. 601

STATE of New Hampshire v. Earl HASTINGS.

No. 92-232.

Supreme Court of New Hampshire.

Sept. 16, 1993.

Jeffrey R. Howard, Atty. Gen. (Mark S. Zuckerman, Asst. Atty. Gen., on the brief, and Tina L. Nadeau, Asst. Atty. Gen., orally), for the State.

Albert E. Scherr, Asst. Appellate Defender, Concord, by brief and orally, for defendant.

BATCHELDER, Justice.

The defendant, Earl Hastings, appeals his conviction of being a felon in possession of a firearm following a jury trial in Superior Court (Perkins, J.). The defendant argues that the trial court erred in admitting evidence of other firearms convictions pursuant to New Hampshire Rule of Evidence 404(b), and that the seizure of the firearm was unconstitutional because the defendant's purported consent was involuntary. Although we hold that the seizure was lawful, we also hold that the "other crimes" evidence was inadmissible, and therefore, we reverse and remand.

On September 18, 1987, officers from the Hinsdale Police Department, together with the State Police, executed a search warrant at the defendant's residence and curtilage. The warrant authorized the search for, among other things, a .45 caliber revolver sought in connection with a criminal restraint allegation against the defendant's wife, Gayla, and with an allegation against the defendant of being a felon in possession of a firearm. Finding no gun inside the residence, the officers moved outside to search the garage. During the search of the garage, the defendant drove up in his van with Gayla. He got out of the van and asked Officer Luther Fairbanks what was going on. Fairbanks explained that the police were executing a search pursuant to a warrant relative to the offense of criminal restraint. He told the defendant that the police were searching for a .45 caliber gun and that if the defendant gave it to them, the search would be over and the police would leave. The defendant then looked angrily at Gayla, said something about women causing him trouble, and walked back to the van. He leaned in from the driver's side, over the driver's seat, and emerged holding a .45 caliber revolver, which he turned over to Fairbanks. The defendant was subsequently arrested and charged with being a felon in possession of a firearm.

Ten months later, the defendant was arrested in Vermont on three federal firearms charges, resulting in convictions in February 1991. At the defendant's trial on the instant offense, the State was permitted, over the defendant's objection, to introduce the evidence of the federal convictions pursuant to New Hampshire Rule of Evidence 404(b) in order to prove intent.

Rule 404(b) provides:

"Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

Evidence of other crimes is admissible if the trial court determines that it is relevant for a purpose other than proving character or disposition, that clear proof exists that the defendant committed the other crime, and that the probative value of the evidence is not substantially outweighed by prejudice to the defendant. State v. Michaud, 135 N.H. 723, 727, 610 A.2d 354, 356 (1992). The decision to admit such evidence lies within the trial court's sound discretion, State v. Trainor, 130 N.H. 371, 374, 540 A.2d 1236, 1238 (1988), and an abuse of that discretion will be found only if the defendant can demonstrate that the ruling was "clearly untenable or unreasonable to the prejudice of his case." Michaud, 135 N.H. at 727, 610 A.2d at 356 (quotation omitted).

Before applying this three-pronged test, we note that the "other crimes" in this case were committed subsequent to the charged offense. Our decisions in the area of the admissibility of evidence under Rule 404(b) have primarily involved evidence of prior bad acts. See, e.g., State v. Dushame, 136 N.H. 309, 616 A.2d 469 (1992); State v. Simonds, 135 N.H. 203, 600 A.2d 928 (1991). But see State v. Fecteau, 133 N.H. 860, 872-73, 587 A.2d 591, 599 (1991) (once defendant opened the door, evidence of defendant's subsequent burglary arrest admitted at sexual assault trial). The rule itself, however, does not limit admissibility to evidence of prior offenses, as it refers simply to "[e]vidence of other crimes, wrongs, or acts." (Emphasis added.) We hold that subsequent bad act evidence is not per se inadmissible but must in each case, as with prior bad act evidence, satisfy, inter alia, the relevancy prong of the test for admissibility. See United States v. Garcia-Rosa, 876 F.2d 209, 221 (1st Cir.1989) (holding subsequent act evidence inadmissible bad character evidence, while "not imply[ing] that all subsequent act evidence is inadmissible under Rule 404(b)").

The evidence at issue here is the defendant's subsequent possession of an automatic rifle and forty-nine rounds of ammunition. The State argues only that this evidence was relevant to prove the defendant's knowledge and intent on the earlier, charged occasion. The defendant counters that the evidence was not probative of his knowing possession in New Hampshire ten months earlier and was relevant only for the impermissible purpose of showing his propensity to possess firearms. We agree with the defendant.

The persuasive value of prior bad act evidence to prove intent derives from the inference that when an individual acts with a criminal intent on one occasion, it is less objectively probable that he or she acted innocently on a later occasion. See generally Imwinkelried, "The Use of Evidence of an Accused's Uncharged Misconduct to Prove Mens Rea," 130 Mil.L.Rev. 41, 64-66 (1990). While Rule 404(b) does not automatically bar subsequent bad act evidence, "[t]he temporal (as well as the logical) relationship between a defendant's later act and his earlier state of mind attenuates the relevance of such proof...." United States v. Watson, 894 F.2d 1345, 1349 (D.C.Cir.1990); cf. State v. Woodsum, 137 N.H. 198, 201, 624 A.2d 1342, 1344 (1993) ("a defendant's posture in plea negotiations at a date after the alleged offense ... is at best weak evidence of the defendant's state of mind at the time of the alleged offense"). We believe that, to be relevant to a defendant's earlier state of mind, subsequent acts must be "fairly recent and in some significant way connected with prior material events." Watson, 894 F.2d at 1349.

The evidence here was not only not connected in some significant way with the previous event, but it was not in any way connected. It did not, for example, show the defendant's consciousness of guilt, see United States v. Monahan, 633 F.2d 984, 985 (1st Cir.1980) (evidence of threat of harm to key witness in cocaine trial "implies a knowledge and fear of particular and damaging testimony intimately related to the prosecution at hand"), nor did it show a common scheme, see United States v. Manafzadeh, 592 F.2d 81, 88 (2d Cir.1979) (subsequent fraudulent check offenses, relative to charged offense, wholly separate and unconnected transactions). The later gun offenses were "at best weak evidence of the defendant's state of mind at the time of the alleged offense," Woodsum, 137 N.H. at 201, 624 A.2d at 1344, and at worst show the defendant to be disposed to possess guns, an impermissible use of the evidence under Rule 404(b), see State v. Blackey, 137 N.H. 91, 623...