State v. Kennedy

• Decision Date: 03 April 2001
• Docket Number: No. 2000-KK-1554.,2000-KK-1554.
• Citation: 803 So.2d 916
• Parties: STATE of Louisiana v. Patrick KENNEDY.
• Court: Louisiana Supreme Court

803 So.2d 916

STATE of Louisiana v. Patrick KENNEDY.

No. 2000-KK-1554.

Supreme Court of Louisiana.

April 3, 2001.

Richard P. Ieyoub, Attorney General, Paul D. Connick, Jr., District Attorney, Richard C. Bates, Baton Rouge, Rebecca J. Becker, Terry M. Boudreaux, Gretna, Gregory M. Kennedy, Counsel for Applicant.

Mark J. Armato, Dorothy G. daPonte, Counsel for Respondent.

CALOGERO, Chief Justice.¹

This difficult case involving the capital crime of the rape of a child tests this court's resolve in upholding the law as written and as consistently followed by this court for nearly thirty years. The law governing the admission of other crimes evidence has not been changed, and however repugnant the alleged criminal conduct may be, we must apply to this case, just as we do any other, well-settled evidentiary rules that promise a process for determining guilt or innocence fairly.

We granted a writ of certiorari in this case to determine whether evidence of the defendant's alleged sexual misconduct involving the rape of a minor child in 1984 is admissible under La.Code Evid. art. 404(B) at his trial for capital aggravated rape of a different minor victim allegedly committed in 1998. The State asserts such other crimes evidence is admissible in this child sexual abuse case under a socalled "lustful disposition exception" to Article 404(B), which prohibits the introduction of evidence of other crimes, wrongs, or acts to prove the criminal character of the accused in order to show that he acted in conformity therewith. We find, however, no such exception applicable to the instant case. Furthermore, we decline to rewrite the evidentiary rules to allow the introduction in child sexual abuse cases of evidence of other crimes, wrongs, or acts tending to show the defendant's "lustful disposition" toward children in the absence of one of the otherwise permissible purposes enumerated in Article 404(B). Because the evidence sought to be introduced here is not independently relevant under any of the permitted purposes recited in Article 404(B), such as proof of motive, intent, or identity, we find that the court of appeal was correct in applying Article 404(B) of the Louisiana Code of Evidence and our decision in State v. Miller, 98-0301 (La.9/9/98), 718 So.2d 960. We therefore affirm the court of appeal's decision reversing the ruling of the district court and remand to the district court for further proceedings.

FACTS AND PROCEDURAL HISTORY

Defendant has been indicted by a grand jury on one count of capital aggravated rape involving his eight-year-old stepdaughter on March 2, 1998, a violation of La.Rev.Stat. 14:42. The State is seeking the death penalty.²

In a pre-trial motion pursuant to State v. Prieur, 277 So.2d 126 (La.1973), the State sought to introduce evidence of the defendant's unadjudicated rape of another eight or nine-year-old girl allegedly committed sixteen years earlier in 1984.³ At the Prieur hearing in April of 2000, this witness, now an adult, testified that sixteen years earlier the defendant, who had had temporary custody of her by permission of her mother, had inserted his penis into her vagina on three occasions. The witness did not tell anyone other than her younger sister until some four years later, at which time a police investigation was commenced. No charges were made against the defendant after the witness withdrew her claims of sexual abuse. At the time of the Prieur hearing in the instant case, the witness was twenty-four years old.

The district court found this evidence to be admissible, noting this court's holding in Miller that "lustful disposition" evidence may be relevant to the element of specific intent. The court reasoned as follows:

To the extent that we have heard testimony today regarding the relationship of the Defendant, that is alleged to be superior to possibly even custodial in the broadest sense over these children; the fact that these children have testified were in his home and that he had access to them; that the opportunity for predation, albeit alleged, was there; certainly is consistent with what this Court considers to be the guidelines and guide-points; a[s] enunciated by the Louisiana Supreme Court.

The district court went on to find that the State had proved the other crimes against the witness by a preponderance of the evidence and that the probative value of the evidence exceeded its prejudicial effect.

The defendant successfully sought writs in the Court of Appeal, Fifth Circuit, which reversed the ruling of the district court admitting the other crimes evidence. The court of appeal reasoned:

As to [the witness's] testimony, regarding other sexual acts committed by the Defendant upon her, we find the trial court erred in ruling that it was admissible. Even evidence of "lustful disposition" is not admissible unless it is to prove some element of the charged offense, like specific intent. State v. Miller, 98-0301 (La.9/9/98), 718 So.2d 960. Since specific intent is not at issue in the case, the evidence is not admissible to prove the Defendant's bad character, which is prohibited. La. C.E. art. 404(B); State v. Maise, 99-0734 (La. App. 5 Cir. 3/22/00), , writs applied for, 00-1158 [(La. 9/14/01), 795 So.2d 1219].

We granted the State's writ application to review the correctness of that ruling, 00-1554 (La.6/14/00), 763 So.2d 608, and now affirm the court of appeal.

DISCUSSION

The fundamental rule in Louisiana governing the use of evidence of other crimes, wrongs, or acts is, and has been, that such evidence is not admissible to prove that the accused committed the charged crime because he has committed other such crimes in the past. See State v. Hatcher, 372 So.2d 1024, 1036 (La. 1979) (Tate, J., concurring on rehearing)

. Enacted in 1928, La.Rev.Stat. 15:446 authorized the introduction of other crimes evidence to prove guilty knowledge and intent, but it expressly prohibited the admission of such evidence "to prove the offense charged."⁴ Although La.Rev. Stat. 15:446 was repealed in 1988 when the legislature adopted a formal code of evidence,⁵ the principle embodied in La. Rev.Stat. 15:446 was retained and made more explicit in our Code of Evidence at Article 404(B)(1). That article now provides:

Except as provided in Article 412 [regarding a victim's past sexual behavior in sexual assault cases], 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 motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, of the nature of any such evidence it intends to introduce at trial for such purposes, or when it relates to conduct that constitutes an integral part of the act or transaction that is the subject of the present proceeding.

La. Code Evid. art. 404(B)(1) (emphasis supplied).

Simply put, the rule articulated in Article 404(B)(1) prohibits the State from introducing evidence of other crimes, wrongs, or acts to show a probability that the accused committed the charged crime because he is a "bad" person who has a propensity for this type of offense. This court has long recognized that evidence of previous criminal activity does affect, reasonably or not, the opinions of the jurors sitting in judgment. See State v. Moore, 278 So.2d 781, 787 (La.1972)

(on rehearing). Therefore, the admissibility of other unrelated misconduct "involves substantial risk of grave prejudice to a defendant." State v. Prieur, 277 So.2d 126, 128 (La. 1973) (citing 1 Wigmore, Evidence, § 194 (3rd ed.)). As we explained in Moore:

If the identity of the accused rapist is in doubt, it is too easy to believe that if he had committed such an offense before he would do so again. Rape is a horrible crime, committed by bad men. If the defendant committed such an offense before, it is too easy to believe that he is a bad man, and capable of the act with which he stands accused.

Moore, 278 So.2d at 787.

Although evidence of other crimes, wrongs, or acts may not be admitted to prove that the accused is a person of criminal character, such evidence "may ... be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident." La. Code Evid. art. 404(B)(1). Still, as we explained in State v. Miller, 98-0301, pp. 3-4, 718 So.2d at 962, several statutory and jurisprudential rules govern the admissibility of other crimes evidence even when one or more of these permitted purposes is asserted.⁶ Foremost, at least one of the enumerated purposes in Article 404(B) "must be at issue, have some independent relevance, or be an element of the crime charged in order for the evidence to be admissible."⁷ State v. Jackson, 625 So.2d 146, 149 (La. 1993); see also State v. Ledet, 345 So.2d 474 (La.1977)

. Additionally, the evidence, even if independently relevant, must be excluded if its probative value is substantially outweighed by the dangers of unfair prejudice, confusion of the issues, misleading of the jury, or by considerations of undue delay or waste of time. La.Code Evid. art. 403; see also State v. Moore, 278 So.2d at 786. Finally, the requirements set forth in State v. Prieur, 277 So.2d at 130, must be met. As we succinctly explained in Miller:

[T]he state must, within a reasonable time before trial, provide written notice of its intent to use other acts or crimes evidence and describe these acts in sufficient detail. The state must show the evidence is neither repetitive nor cumulative, and it is not being introduced to show the defendant is of bad character. Further, the court must, at the request of the defendant, offer a limiting instruction to the jury at the time the

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