U.S. v. Thomas

• Decision Date: 05 July 1995
• Docket Number: No. 95-1029,95-1029
• Citation: 58 F.3d 1318
• Parties: 42 Fed. R. Evid. Serv. 979 UNITED STATES of America, Appellant, v. Ronald Wayne THOMAS, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1318

58 F.3d 1318

42 Fed. R. Evid. Serv. 979

UNITED STATES of America, Appellant, v. Ronald Wayne THOMAS, Appellee.

No. 95-1029.

United States Court of Appeals,

Eighth Circuit.

Submitted May 16, 1995.

Decided July 5, 1995.

Linda Lipe, Asst. U.S. Atty., Little Rock, AR, argued, for appellant.

James Massie, Little Rock, AR, argued, for appellee.

Before BOWMAN, Circuit Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

MAGILL, Circuit Judge.

Under Federal Rule of Evidence 404(b), evidence of prior bad acts is not admissible when introduced solely to support a propensity inference. However, prior bad acts evidence is admissible when used to prove a state of mind that is a material issue at trial. In United States v. Jenkins, 7 F.3d 803, 806 (8th Cir.1993), we held that evidence of prior bad acts is inadmissible whenever the defendant removes any material issue concerning state of mind by "express[ing] a decision not to dispute that issue with sufficient clarity." We conclude that Thomas has not expressed with sufficient clarity a decision not to dispute state of mind because his "mere presence" defense denied the existence of a state of mind that is an element of the charged offense. Thus, admission of the evidence of prior bad acts was not error and the district court's grant of a new trial to remedy this perceived error was an abuse of discretion.

I. BACKGROUND

The facts giving rise to this appeal are disputed; however, a jury could have found the following: On October 27, 1992, detectives from the Pulaski County Sheriff's Office Narcotics Division went to Apartment 26-B, Brentwood Apartments in Little Rock, Arkansas, to execute an arrest warrant for Ronald Wayne Thomas. When the detectives arrived, they were met by Thomas's cousin, who directed them to the rear of the apartment. As the detectives moved through the apartment, one of them heard the sound of a toilet flushing and the sound of the ceramic lid of the toilet's water tank being replaced. Thomas was discovered standing in a bathroom off a hallway leading to the master bedroom, which was in the rear of the apartment. He was arrested and advised of his Miranda rights. He was also advised of his rights under the Fourth Amendment. Thomas verbally consented to a search of the apartment, and later executed a written consent form. During the search, a small amount of "crack" cocaine was seized, as were numerous drug-related items. Thomas was taken into custody, but the original warrant was not executed because Thomas agreed to cooperate with the detectives.

Thomas subsequently refused to cooperate, and on December 15, 1993, he was charged in a one-count indictment with possession with intent to distribute crack cocaine, in violation of 21 U.S.C. Sec. 841(a)(1). After he unsuccessfully attempted to exclude evidence derived from the October 27 search, Thomas stood trial before a jury on the charge of possession with intent to distribute cocaine. At the suppression hearing, Thomas put forward a "mere presence" defense. He maintained that the apartment was not his and that he had no knowledge of the presence of crack in the apartment; he claimed merely to have been present at the wrong place at the wrong time.

Thomas's defense remained consistent until closing argument. At a pretrial conference, Thomas was informed that if he denied the entire episode, Rule 404(b) evidence would be inadmissible, but if he merely denied identity or state of mind, the evidence would be admissible. After a discussion of the possible defenses and their ramifications for the admissibility of the Rule 404(b) evidence, the following exchange occurred:

[GOVERNMENT]: ... [t]here's never been any allegation until this point in the case that the ... dope was planted.

MR. MASSIE [counsel for Thomas]: That's been our allegation if he didn't know anything about the dope.... If it was planted or if it came from someplace else, we don't know.

....

THE COURT: You're not going to have any evidence that the dope was planted, you're just going to ask the jury to draw an inference.

....

COURT: Yes. So, your defense is going to be, Mr. Massie, that [Thomas] did not have any knowledge about the dope being there, that his theory is that [the Pulaski County detectives] are trying to get him to cooperate and rat on his friends, so to speak?

MR. MASSIE: To [get at] his knowledge, and [to force him to] rat on his friends, to get them to make purchases and make him make phone calls, whatever.

I Trial Tr. at 10-11. Upon learning of this defense, the government notified Thomas of its intention to introduce evidence of Thomas's prior bad acts. ¹ The government was given leave to introduce the Rule 404(b) evidence.

Immediately prior to the introduction of the Rule 404(b) evidence during the government's case-in-chief, the following exchange occurred:

[GOVERNMENT]: May I make ... one thing clear because I think the Eighth Circuit has said is if the defense is the--the whole just thing didn't happen then 404(b) is not applicable. It's my understanding of the defense is [sic] that the things happened at the apartment but he didn't know the cocaine was there. It's not that the whole fabric of the government's case is a fiction about them going to the apartment that day and the defendant being there.

MR. MASSIE: Yes.

[GOVERNMENT]: Okay.

II Trial Tr. at 29. The government then introduced the Rule 404(b) evidence and the jury was repeatedly cautioned about the limited purpose for which the Rule 404(b) evidence could be used.

Thomas's case-in-chief consisted largely of evidence intended to demonstrate that Thomas did not control the apartment. Thomas also took the stand and denied any knowledge that crack cocaine was in the apartment. Although Thomas consistently denied knowledge of the presence of the cocaine, his theory of defense shifted in closing argument. In closing, Thomas argued that the government fabricated the case by planting the cocaine. This argument was inconsistent with his earlier descriptions of his defense as a mere presence defense, ² and is also inconsistent with his subsequent description of his defense on appeal. ³

The jury found Thomas guilty of the charged offense. Thomas moved for a new trial, claiming that his defense was that he "at all times denied that cocaine was in the residence that he occupied, and therefore intent was not a relevant issue to be proved by use of 404(b)." The district court granted Thomas a new trial, concluding that the evidence of prior bad acts was improperly admitted. The government timely appeals.

II. DISCUSSION

A. Evidence of prior bad acts is admissible unless the defendant expresses with sufficient clarity a decision not to dispute state of mind.

We review the district court's decision whether to grant a new trial for "clear abuse of discretion." United States v. Turk, 21 F.3d 309, 312 (8th Cir.1994). A discretionary decision that is premised upon an erroneous interpretation of the law is an abuse of discretion. Waible v. McDonald's Corp., 935 F.2d 924, 926 (8th Cir.1991).

We begin with the applicable legal rule. Rule 404(b) provides:

(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 action 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....

This circuit has taken the view that Rule 404(b) is a rule of inclusion that precludes admission of evidence when that evidence is relevant solely to the defendant's character. United States v. Wiley, 29 F.3d 345, 350 (8th Cir.), cert. denied, --- U.S. ----, 115 S.Ct. 522, 130 L.Ed.2d 427 (1994). The permissible uses of other bad acts evidence may be categorized as involving either state of mind or identity. Compare 8th Cir.Model Crim.Jury Instr. 2.08 (1994) (acts introduced to prove state of mind) with 8th Cir.Model Crim.Jury Instr. 2.09 (1994) (acts introduced to prove identity). ⁴

We have consistently held that Rule 404(b) evidence is admissible in the government's case-in-chief when the defendant places his state of mind in issue, even if state of mind is placed in issue by means of a general denial defense. See, e.g., United States v. Miller, 974 F.2d 953, 960 (8th Cir.1992); United States v. Yellow, 18 F.3d 1438 (8th Cir.1994). In United States v. Dobynes, 905 F.2d 1192 (8th Cir.), cert. denied, 498 U.S. 877, 111 S.Ct. 206, 112 L.Ed.2d 167 (1990), we applied this analysis to the "mere presence" defense, concluding that because such a defense raises issues of knowledge and intent, Rule 404(b) evidence is admissible when such a defense is used. However, we recently recognized that when the defendant denies only the criminal act, he does not place his state of mind in issue, and therefore Rule 404(b) renders this type of evidence inadmissible. Jenkins, 7 F.3d at 806.

In Jenkins, we noted that the issue whether a denial of the criminal act placed mental state in issue was one of first impression in this circuit. ⁵ We turned to our sister circuits for guidance, and after examining the various approaches employed by the Second, Fourth, Seventh, Ninth and Eleventh Circuits, we adopted the procedure followed by the Second and Ninth Circuits. Jenkins explains that the test for determining whether a defense consists solely of a denial of the criminal act rather than a denial of the criminal intent is whether the defendant:

express[es] a decision not to dispute that issue with sufficient clarity that the trial court will be justified (a) in sustaining objection to any subsequent cross-examination or jury argument that seeks to raise the issue and (b) in charging the jury that if they find all the other elements established beyond a reasonable doubt, they can resolve the issue against the defendant because it is not disputed.

Id. (quotin...