U.S. v. Hogue, 86-2029

• Decision Date: 19 August 1987
• Docket Number: No. 86-2029,86-2029
• Citation: 827 F.2d 660
• Parties: 24 Fed. R. Evid. Serv. 85 UNITED STATES of America, Plaintiff-Appellee, v. Raymond HOGUE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 660

827 F.2d 660

24 Fed. R. Evid. Serv. 85

UNITED STATES of America, Plaintiff-Appellee, v. Raymond HOGUE, Defendant-Appellant.

No. 86-2029.

United States Court of Appeals, Tenth Circuit.

Aug. 19, 1987.

Alonzo J. Padilla, Albuquerque, N.M., for defendant-appellant.

William L. Lutz, U.S. Atty. (Robert J. Gorence, Asst. U.S. Atty., with him on the brief), Albuquerque, N.M., for plaintiff-appellee.

Before LOGAN and SETH, Circuit Judges, and BOHANON, District Judge ^*.

SETH, Circuit Judge.

Appellant, Raymond Hogue, was convicted of voluntary manslaughter in violation of 18 U.S.C. Secs. 1112 and 1153 in the United States District Court for the District of New Mexico for the fatal stabbing of Robert Benny. He received a ten-year prison term. Appellant appeals his conviction, contending, among other theories, that the trial court should have granted his motion in limine to exclude evidence of his attacks on other victims prior and subsequent to the stabbing. We hold that the trial court erred in allowing the government to introduce evidence of the assaults. Accordingly, we reverse the judgment and remand the case for a new trial.

Late one night, Virginia Gould, appellant's girlfriend, drove to the Turnaround Bar outside of Farmington, New Mexico and picked up the appellant, who had been drinking there. Ms. Gould and Mr. Hogue headed for Navajo Agricultural Products Industries housing where they lived together. They quarreled in the car. Ms. Gould pulled into the driveway of Lorraine Smallcanyon, a neighbor with whom she had left her three children. As Ms. Gould and Mr. Hogue sat in the car, he kicked the windshield, causing a few cracks. Ms. Gould asked her son to get Ms. Smallcanyon's boyfriend, Robert Benny, from inside the house so that he could remove Mr. Hogue from the car. Mr. Benny came out to the car, ordered Mr. Hogue out of it and hit him several times.

Mr. Hogue then left the Smallcanyon house and walked home. He later returned to the house as Mr. Benny and two of Ms. Gould's children were pulling out of the driveway in Mr. Benny's truck. Everyone got out of the truck. The children went inside the house. A fight between Raymond Hogue and Robert Benny began. Mr. Benny was stabbed in the chest with a short knife belonging to Mr. Hogue and died the following day.

Appellant was indicted for the first degree murder of Robert Benny in violation of 18 U.S.C. Secs. 1111 and 1153. Prior to trial, he submitted a motion in limine to exclude testimony that he beat Virginia Gould prior to the stabbing and struck her and two of her children with an axe after the stabbing. The district court denied the motion. The court found that the testimony was relevant under Fed.R.Evid. 404(b) to prove the absence of mistake or accident and that its probative value outweighed any prejudicial effect. A jury trial ensued.

During the trial, the court overruled Mr. Hogue's objection to the testimony. At trial, Ms. Gould testified about Mr. Hogue's attacks with an axe subsequent to the stabbing and became so emotionally distraught that the court had to call a recess. When Ms. Gould resumed testifying, she stated that Mr. Hogue struck her daughter on the back of her head, struck her son on the face and struck her twice on the stomach, twice on the shoulder and once on the back with the axe on March 8, 1986. The charged offense took place the night of December 24/25, 1985. She also testified that Mr. Hogue had beaten her on several occasions prior to the stabbing. The prosecution referred to the axe assaults during its closing argument. At the close of the trial, the court instructed the jury that the evidence of Mr. Hogue's prior and subsequent misconduct could not be considered in the determination of whether he committed the crimes charged in the indictment. The jury found him guilty of the lesser included offense of voluntary manslaughter and he appeals.

Under Rule 404(b) of the Federal Rules of Evidence, evidence of other crimes, wrongs or acts committed by the defendant is not admissible to prove a defendant's criminal character. We explained the reason for this general exclusionary rule in United States v. Burkhart, 458 F.2d 201, 204 (10th Cir.):

"[A]lthough such evidence may have at least some relevance to the offense being tried, its predominant quality is to show up the defendant's character as a car thief or a bad check artist, for example. Proof of defendant's sociopathic disposition is not a valid object. Showing that a man is generally bad has never been under our system allowable. The defendant has a right to be tried on the truth of the specific charge contained in the indictment."

"Other acts" evidence may be admissible if it is offered for purposes other than character "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Fed.R.Evid. 404(b). However, the mere identification of a permissible purpose does not render the evidence automatically admissible.

This circuit has developed guidelines for admitting evidence of other crimes, wrongs or acts under Rule 404(b). We have held that the government bears the burden of demonstrating how the proffered evidence is relevant to an issue in the case. United States v. Biswell, 700 F.2d 1310, 1317 (10th Cir.). In demonstrating the relevance of proffered "other acts" evidence, "[t]he Government must articulate precisely the evidentiary hypothesis by which a fact of consequence may be inferred from the evidence of other acts." United States v. Kendall, 766 F.2d 1426, 1436 (10th Cir.). "There must be a clear and logical connection between the alleged earlier offense or misconduct and the case being tried." Biswell, 700 F.2d at 1317-1318. In United States v. Morales-Quinones, 812 F.2d 604, 612 (10th Cir.), we stated that before evidence of other wrongs could be admissible it:

"(1) must tend to establish intent, knowledge, motive, identity or absence of mistake or accident; (2) must also be so related to the charge that it serves to establish intent, knowledge, motive, identity or absence of mistake or accident; (3) must have real probative value, not just possible worth; and (4) must be close in time to the crime charged."

Even if the trial court determines that the "other acts" evidence meets the guidelines for admission under Rule 404(b), it must conduct a separate balancing of the evidence's probative value and prejudicial effect under Fed.R.Evid. 403. This balancing aspect is not reached in the case before us because the record shows that the evidence was admitted for an impermissible purpose contrary to Rule 404(b).

In the instant case, the fact that the "other acts" evidence concerned violent episodes which occurred subsequent to the stabbing does not in and of itself preclude the evidence's admission. Rule 404(b) refers to "other" crimes, wrongs or acts and does not specifically exclude acts subsequent to the incident or incidents giving rise to the charges in the indictment. Moreover, we have found that evidence of subsequent acts may be admissible...