U.S. v. Brown, 86-5306

• Decision Date: 31 July 1989
• Docket Number: No. 86-5306,86-5306
• Citation: 880 F.2d 1012
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kerry Lynn BROWN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1012

880 F.2d 1012

UNITED STATES of America, Plaintiff-Appellee, v. Kerry Lynn BROWN, Defendant-Appellant.

No. 86-5306.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 2, 1988.

Decided April 27, 1989.

Amended July 31, 1989.

Peter M. Horstman, Federal Public Defender, Los Angeles, Cal., for defendant-appellant.

David A. Katz, Asst. U.S. Atty., Crim. Div., Los Angeles, Cal., for plaintiff-appellee.

Appeal from the United States District Court for the Central District of California.

Before SCHROEDER, REINHARDT and LEAVY, Circuit Judges.

LEAVY, Circuit Judge:

Kerry Lynn Brown appeals his conviction for the first degree murder of a postal employee and for the use of a firearm during the commission of a federal felony, in violation of 18 U.S.C. Secs. 1111 (1982 & Supp. III 1985) (amended November 1986), 1114 (Supp. IV 1986), and 924(c) (Supp. III 1985) (amended May 1986). At trial, the court excluded evidence tending to show that Brown suffered from a mental disease or defect. The court also allowed the Government to introduce evidence of two of Brown's prior wrongful acts. We have jurisdiction under 28 U.S.C. Sec. 1291 (1982). We reverse and remand for a new trial.

FACTS AND PROCEEDINGS

On April 2, 1986, appellant Brown sat in his car outside his parents' home at 1:30 a.m. A male arrived in a car, approached Brown, and shot him at close range. The bullet entered Brown's left jaw and exited through his right cheek. After a brief period at the hospital, Brown returned to his parents' home to recuperate. Brown's assailant was never captured.

Approximately three weeks later, on April 26, Brown shot and killed a postal carrier as she delivered mail to the home of Brown's parents. There is no evidence of any animosity between Brown and the carrier nor any evidence of a dispute. The evidence showed that Brown was left alone the day of the killing, that he found and test-fired a shotgun, and that he twice shot the postal carrier from behind a screen door. The police arrested Brown shortly after the shooting.

Brown was charged with first degree murder of a federal employee and with use of a firearm during the commission of a federal felony under 18 U.S.C. Secs. 924(c), 1111, 1114. Brown elected not to pursue an insanity defense. The defense theory was rather that Brown lacked the specific intent required to commit first degree murder. A jury found Brown guilty as charged.

DISCUSSION

I. Evidence of Brown's Prior Bad Acts

In rebuttal and over objection by Brown's counsel, the Government introduced evidence of two of Brown's prior wrongful acts. A Ms. Dukes testified that, three months prior to the killing, someone shot into her home. The telephone then rang, and she recognized Brown's voice saying it was he who had shot into her home and that if the occupants "want[ed] some shit to come on up." ¹ Another witness testified that in 1979 Brown confronted a Mr. Lee with a loaded rifle in his hands, his finger on the trigger, and demanded that Lee give him back his (Brown's) gun.

In this appeal, Brown contends that evidence of the two prior wrongful acts is inadmissible character evidence under Fed.R.Evid. 404(b). ² The government argues that the evidence was properly admitted under the Rule to rebut the defense claims of mistake, accident, and lack of motive.

Under Rule 404(b), evidence of a defendant's prior crimes or wrongful acts may not be introduced to show that the defendant has a bad character and is therefore more likely to have committed the crime with which he is charged. United States v. Hodges, 770 F.2d 1475, 1479 (9th Cir.1985). The rule is designed to avoid "a danger that the jury will punish the defendant for offenses other than those charged, or at least that it will convict when unsure of guilt, because it is convinced that the defendant is a bad man deserving of punishment." 2 J. Weinstein & M. Berger, Weinstein's Evidence p 404, at 404-29 (1988) (citations and footnote omitted).

Rule 404(b) provides, however, that evidence of the defendant's wrongful acts is admissible to show motive, intent, knowledge, identity, or absence of mistake or accident. In those cases, we have read the Rule to require (1) that evidence of the prior conduct tend to show an element of the charged offense that is a material issue in the case; (2) in some cases, that the prior conduct be similar to the offense charged; (3) clear and convincing proof that the defendant committed the prior acts; (4) that the probative value must not be substantially outweighed by the danger of unfair prejudice; and (5) that the prior act not be too remote in time. United States v. Sarault, 840 F.2d 1479, 1485 (9th Cir.1988). The Supreme Court recently modified the third of the above factors, in a case involving that admission of evidence relating to an act similar to the one charged, to require only that the evidence be sufficient "to support a finding by the jury that the defendant committed the similar act." Huddleston v. United States, 485 U.S. 681, 108 S.Ct. 1496, 1499, 99 L.Ed.2d 771 (1988).

Our review of a trial judge's decision on admissibility pursuant to Rule 404(b) is for abuse of discretion. United States v. Lewis, 837 F.2d 415, 418-19 (9th Cir.1988).

We conclude that the trial court abused its discretion when it admitted the evidence of Brown's prior wrongful acts. We disagree with the Government that the evidence was probative to rebut the defenses of lack of motive, accident, and mistake, as explained below.

A. Lack of Motive

During trial, in cross-examination and in the defense case, the defense counsel suggested Brown had no motive to kill the postal carrier. The Government argues that the defense thus made motive a "key issue" in the case. According to the Government, this entitled it to introduce evidence of Brown's prior wrongful acts to show Brown's motive in performing this killing. The Government reads Brown's prior wrongful acts as showing that Brown derives a thrill from creating violence, and that the motive behind the killing was the desire to obtain this thrill.

Contrary to the Government's suggestion, evidence of other bad acts is not automatically admissible simply because the defendant argued at trial that he had no motive to commit the crime. Under Rule 404(b), evidence is admissible for purposes other than to show the character of the defendant only if it relates to an element of the crime charged. Sarault, 840 F.2d 1479, 1485; United States v. Bailleaux, 685 F.2d 1105, 1109-10 (9th Cir.1982). Motive, however, is not an element of the offense of first degree murder. Cf. United States v. Franklin, 704 F.2d 1183, 1188 (10th Cir.), cert. denied, 464 U.S. 845, 104 S.Ct. 146, 78 L.Ed.2d 137 (1983) (racial motive element of crime under 18 U.S.C. Sec. 245(b)).

Our cases reflect the principle that where motive is not an element of the offense, prior bad act evidence is allowed to show motive only when motive is in turn relevant to establish an element of the offense that is a material issue. See 22 C. Wright and K. Graham, Federal Practice and Procedure: Federal Rules of Evidence Sec. 5240, at 480 (1978) ("motive is not an ultimate issue; therefore, proof of motive must always be directed at some other fact that is an ultimate issue in the case[; e]vidence of motive may be offered to prove that the act was committed, or to prove the identity of the actor, or to prove the requisite mental state."). See also United States v. Bowman, 720 F.2d 1103, 1104-05 (9th Cir.1983) (defendant's prior conviction for assault of wife's relative held admissible to show motive of revenge in assault against his wife, where defendant claims self-defense); United States v. Bradshaw, 690 F.2d 704, 708-09 (9th Cir.1982), cert. denied, 463 U.S. 1210, 103 S.Ct. 3543, 77 L.Ed.2d 1392 (1983) (defendant's prior sexual acts with minor held admissible to show motive behind kidnapping of minor, where the defense raises a theory of consent).

The only disputed material issue in this case was whether Brown had the specific intent required to commit first degree murder. The evidence of Brown's prior acts is therefore admissible to show motive only if relevant to show Brown's specific intent.

We conclude the prior bad act evidence fails to show any motive which would in turn be relevant to show the required intent. The prior wrongful acts must establish a motive to commit the crime charged, not simply a propensity to engage in criminal activity. See United States v. Feldman, 788 F.2d 544, 556-57 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987) (evidence of substantial debt admitted to show motive for bank robbery); Bowman, 720 F.2d 1103, 1104-05 (evidence of prior conviction admitted to show motive of revenge); Bradshaw, 690 F.2d 704, 708-09 (evidence of prior sexual acts between victim and defendant admitted to show motive for kidnapping).

Here, however, the evidence established, at most, Brown's general propensity for violence. The bad act evidence concerns Brown's efforts to recover his property at gunpoint seven years prior to this offense, and a shooting into Ms. Dukes' home. No evidence whatsoever links the postal carrier to Brown's prior acts. There is no evidence in the record that Brown was acquainted with the carrier in a capacity other than as his parents' mail carrier. In sum, we do not see a single fact contained in Brown's prior acts from which Brown could have derived a motive to kill the carrier in this case. The prior acts clearly establish Brown's propensity for violence, but that is precisely the use of evidence barred by Rule 404(b). ³

B. Accident or Mistake

The Government argues that the bad act evidence should be admitted, if not to show motive, at least to rebut the defenses of accident or mistake. The record reveals that the defense raised the issue of accident or mistake in the context of a defense of "imperfect self-defense." ⁴ The defense argued...