State v. Sprofera

JUSTINE E. DEL MURO, Special Judge.

I humbly dissent.

Appellant, like any criminal defendant, has the right to a fair trial on the charge in the information and free from character assassination, uncharged bad conduct, and irrelevant “evidence” designed solely to inflame the passions and prejudice of the jury. Regrettably, that did not happen here. The State was permitted, often over objection, to introduce numerous uncharged bad acts, including prior sexual misconduct, assaultive bad behavior toward the victim’s brother and mother, aggressive, offensive comments to police officers after his arrest, and a grossly obscene and inflammatory outburst toward a prosecutor during a prior court hearing. As a result the jury was misled, even encouraged, to convict appellant for who he was, not merely the crime for which he stood charged. Appellant’s rights to due process under both the Missouri and federal constitution were violated here. Appellant is entitled to a new and fair trial.

The allegations against appellant arose in the context of a contested divorce. Pri- or to her mother filing for divorce in the spring of 2009, B.S. had never accused her adoptive father of any inappropriate conduct, sexual or otherwise. As the majority notes, B.S. had claimed that her older brother, a borderline mentally retarded young man, had gotten her pregnant. There is no indication in the record that B.S. had reported her brother’s sexual advances until the pregnancy was discovered.

Contrary to the majority’s opinion, B.S.’s claim of appellant touching her sexually when she was as young as three or four provides neither motive nor intent for sexual intercourse ten years later, and its prejudicial effect is not outweighed by the minimal probative value, if any, this testimony provides. As offensive as statutory rape is to our culture, it pales in comparison to the sexual abuse of a three, four, or five year old child. Even in prison, such behavior is viewed with such disdain that those who have engaged in it are isolated for their own safety. The prejudice of this evidence is manifest.

While there may be an arguable basis for the admissibility of the prior sexual abuse, such is not true of the prosecution’s effort to paint appellant as abusive, aggressive and violent to third parties, a theme of the prosecution’s case. For example, contrary to the majority’s claim that it was “unsolicited,” the prosecutor in fact sought out the testimony that appellant was capable of violence:

[Prosecutor] Q: What was your relationship like with your dad, aside from the inappropriate touching; did you have a close relationship with him?
[B.S.] A: Yes, I was actually daddy’s little girl.
[Prosecutor] Q: Did you ever see [appellant] angry?
[B.S.] A: Yes
[Prosecutor] Q: And what would usually happen when you saw him angry?
[B.S.] A: He would get really aggressive. There is one time that he got aggressive and pushed mom against the wall and broke a mirror.

Although it is true that prior bad acts may be admissible to explain the victim’s fear of the accused and her delay in reporting the crime to police, that was not the tenor of this testimony3. Later, when asked about *23the years of delay before reporting the sexual abuse by appellant B.S. testified that her fear of appellant was the result of threats he purportedly made after having sex with her4:

[Prosecutor] Q: Did he ever threaten to hurt you?
[B.S.] A: Yes.
[Prosecutor] Q: When?
[B.S.] A: During the time after we were done he would always threaten me.
[Prosecutor] Q: During the time when you done, when he was done with you?
[B.S.] A: When we were done with the, the sex, and the inner molesting.
[Prosecutor] Q: How would he threaten you?
[B.S.] A: He would say that he would blow my brains out or slit my throat.
[Prosecutor] Q: Did he say how he was going to blow your brains out?
[B.S.] A: With a gun.
[Prosecutor] Q: Did you ever see a knife or anything with which he might have slit your throat, or did he just threaten you verbally?
[B.S.] A: Well, I knew he had a hunting knife, but he would always say verbally.

With this testimony it is apparent that the earlier evidence regarding appellant’s violence against B.S.’s mother and brother was bad character testimony, not fear of reprisal evidence. This bad character attack persisted throughout the trial; even through appellant never put his character in issue. The prosecutor elicited from the detective who arrested appellant that appellant had repeatedly cursed him, called him a “motherf-ker” and a “bit-h,” was agitated and had to be threatened with mace to calm appellant down. Perhaps, as the majority suggests, this evidence “afforded a narrative of the events surrounding appellant’s arrest,” to the extent that might have been relevant.5 But, in truth, these statements were not made during appellant’s arrest. They were made in the squad car on the way to the police station, well after appellant’s arrest. Furthermore, they have no probative value whatsoever. Even an innocent man might be angry with police officers after being arrested for something he didn’t do.

The prejudicial, inflammatory effect of this evidence is nonetheless apparent. What type of individual swears at police officers and calls them such vile names? How violent must one be when, handcuffed in a police car, officers have to threaten painful macing in order to calm you down? Once again the prosecution attacks appellant’s character rather than focusing on the criminal allegation itself.

Unquestionably, the most egregious of the assaults on appellant’s character takes place when appellant is asked during cross-examination if he recalls “standing in a courtroom and calling a prosecutor a c-nt.” Even the majority acknowledges the error of permitting such testi*24mony. But, as with the other character attacks, the majority minimizes the prejudice of such evidence, noting “[i]t is difficult to see on the record before us how this testimony could have carried any weight in the jury’s assessment of whether appellant had sexual intercourse with B.S.”

Of course, this is the problem with such evidence. It is so inflammatory and so prejudicial that the jurors don’t care whether appellant had intercourse with B.S. They will punish him for uncharged bad acts with the only means available to them, a conviction on the crime that they can punish, whether appellant did it or not. A weak case with an impeachable prosecu-trix with a motive to lie and prior inconsistent accounts can become much stronger when the prosecution is allowed to portray the accused as violent, abusive, dangerous, disrespectful, obscene and arrogant, and an abuser of small children, women, police and prosecutors. Character assassination is not too strong a description of the State’s prosecution against this appellant.

We should not look at each point on appeal as an isolated incident, but rather consider all of the evidence as a whole. It should be first and foremost in our minds that appellant never put his character in issue.

Although not every piece of objectionable testimony was objected to in appellant’s trial, this is of no consolation to a fair analysis of his case, and warrants plain error review.6 The steady stream of irrelevant, inflammatory uncharged bad conduct evidence washed away in prejudice any chance of appellant receiving a fair trial. This was not an unintentional slip of the tongue by the prosecutor, or an isolated mistake, harmful but accidental, which arise now and then in the heat of trial. To the contrary, it is an intentional and calculated decision to put appellant’s character on trial, in hopes that a weak case might be salvaged. This is a miscarriage of justice. Such conduct cannot be rewarded. The damage to our system of justice is too great.

Appellant should be granted a new trial.

. The majority cites State v. Hitchcock, 329 S.W.3d 741 (Mo. App. S.D.2011) for its posi*23tion. However, in Hitchcock, the witness was present when her estranged ex-husband murdered her paramour and assaulted her. Id. at 744. She gave testimony of a similar assault when they were married. Id. at 749-50. Contrary to Hitchcock, B.S. was allowed to testify of assaultive behavior not just upon her but upon her mother and brother.

. This testimony is not referenced in the majority opinion.

. The majority cites State v. Ondo, 232 S.W.3d 622, 626 (Mo.App.W.D.2007) for the position that "evidence of the circumstances surrounding a defendant’s arrest . is admissible ...." In Ondo, the defendant's arrest occurred the very night of the domestic assault. Id. at 624-25. Unlike Ondo, the arrest in this case occurred several years after the sexual assault.

. In this case the error, as stated above, is plain and obvious and a manifest injustice or miscarriage of justice will result from the failure to correct the alleged error. State v. Perdue, 317 S.W.3d 645, 652 (Mo.App. S.D. 2010).