State v. Smith

Broderick, J.,

concurring in part and dissenting in part: I agree with the opinion of Justice Johnson that the trial court was correct in denying the defendant’s motion to suppress. But I cannot concur in the conclusion that the erroneous admission of the defendant’s nineteen prior convictions was harmless error; accordingly, I respectfully dissent from part III of the opinion of Justice Johnson.

I

The defendant was charged with two counts of passing bad checks. See RSA 638:4 (1986 & Supp. 1993) (amended 1993). Before trial, the defendant sought to prevent the introduction of evidence of his nineteen prior convictions for bad check offenses. The trial court ruled the prior convictions admissible to prove intent. At the conclusion of the trial, the court instructed the jury that it could consider the prior convictions only in respect to the question whether the defendant possessed the requisite criminal intent to pass the bad checks at issue. Following this instruction, the prosecutor proceeded to read into the record, without additional explanation, each of the prior convictions and, for some, the date of the offense, the State in which it occurred, and the bank involved.

Evidence of other bad acts is admissible under New Hampshire Rule of Evidence 404(b) only “if relevant for a purpose other than to prove the defendant’s character or disposition, if there is clear proof the defendant committed the other acts, and if the prejudice to the defendant does not substantially outweigh the probative value of the evidence.” State v. Kirsch, 139 N.H. 647, 653, 662 A.2d 937, 942 (1995). We will not disturb the trial court’s decision to admit such evidence absent an abuse of discretion. Id.

Evidence of the defendant’s prior convictions was irrelevant under the first prong of the Rule 404(b) analysis. The State sought to introduce evidence of the prior convictions for bad check offenses to prove that he committed the crimes charged with the requisite intent. “To be relevant to intent, evidence of other bad acts must be able to support a reliable inference, not dependent on the defendant’s character or propensity, that the defendant had the same intent on the occasions of the charged and [prior] acts.” State v. Bassett, 139 N.H. 493, 499, 659 A.2d 891, 897 (1995). In this case, it is unclear how the defendant’s intent on prior occasions is probative *283of his intent to pass bad checks on the occasions charged. Though the prior episodes demonstrate that the defendant was not above passing a bad check, and may, therefore, be of questionable character, absent some nexus to the crimes charged, evidence of the defendant’s prior convictions is properly deemed irrelevant. See id. at 500, 659 A.2d at 896.

II

The State argues that even if the evidence should not have been admitted under Rule 404(b), the error was harmless. Our inquiry in a harmless error analysis is not “whether the evidence, apart from that erroneously admitted, would support a finding of guilt, but whether it can be said beyond a reasonable doubt that the inadmissible evidence did not affect the verdict.” State v. Ruelke, 116 N.H. 692, 694, 366 A.2d 497, 498 (1976). In other words, the question is “whether the guilty verdict actually rendered in this trial was surely unattributable to the error,” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993), and we must resist a natural temptation simply to “conflate the harmlessness inquiry with our own assessment of a defendant’s guilt,” Edwards, To Err is Human, But Not Always Harmless: When Should Legal Error Be Tolerated?, 70 N.Y.U. L. Rev. 1167, 1170 (1995).

In undertaking a harmless error analysis, we first must determine what evidence the jury considered as tending to prove or disprove a fact necessary to reach its verdict — in this case, that the defendant had the criminal intent to commit the crime charged. See Yates v. Evatt, 500 U.S. 391, 404 (1991), overruled on other grounds by Estelle v. McGuire, 502 U.S. 62 (1991). Because we cannot peer into the jurors’ minds, we look instead to the instructions given the jury, working from the assumption “that jurors follow instructions and, specifically, that they consider relevant evidence on a point in issue when they are told that they may do so.” Id.

At trial, the State had to prove that the defendant committed the charged offense knowingly. See RSA 638:4. With respect to proof of the defendant’s intent, the court below instructed the jurors that they could use the defendant’s prior convictions

for the purpose of determining whether [the defendant] on the dates and times that he’s alleged to have passed these bad checks knew what he was doing, that is, had the requisite criminal intent, and knew that those accounts or that account was closed or had insufficient funds as alleged by the State.

*284In view of this instruction, we must presume that the jurors did, in fact, consider the erroneously admitted evidence of the prior convictions in reaching their verdict.

Next, we must weigh the probative force of the other evidence considered by the jury as against the force of the erroneously admitted convictions. See Yates, 500 U.S. at 404. The issue at this point is whether the jury actually rested its verdict on evidence establishing the defendant’s intent beyond a reasonable doubt apart from the erroneously admitted convictions. Because we cannot see into the jurors’ minds, we must ask “whether the force of the evidence presumably considered by the jury in accordance with the instructions is so overwhelming as to leave it beyond a reasonable doubt that the verdict resting on that evidence would have been the same in the absence of the [erroneously admitted convictions].” Id. at 405. Only if the effect of the erroneously admitted evidence is “comparatively minimal to this degree” can we say that it “did not contribute to the verdict rendered.” Id.

Here, the State’s evidence apart from the defendant’s prior convictions was forceful. Officer Dennis Lariviere testified that he informed the defendant before the checks were passed that the checking account at issue was closed, and Officer Matthew Hogan testified that the defendant said he knew prior to passing the checks that the account was closed. This was, and is, compelling evidence that the defendant committed the crimes charged with the requisite intent.

Simply because the State presented other probative evidence, however, does not automatically render the prior convictions meaningless for purposes of a harmless error analysis. These prior convictions, by virtue of their similarity to the crime charged, had great force of themselves. It would be disingenuous to argue that this evidence was inconsequential; indeed, we have held that a prior conviction “is probably only equalled by a confession in its prejudicial impact upon a jury.” Bassett, 139 N.H. at 502, 659 A.2d at 898 (quotation omitted); see also State v. Skidmore, 138 N.H. 201, 202, 636 A.2d 64, 65 (1993).

The question, then, is whether the testimony of the police officers, along with the other evidence of intent, was so overwhelming as compared to evidence of the defendant’s nineteen prior convictions that we can conclude, beyond a reasonable doubt, that the latter evidence did not affect the jury’s verdict. I do not believe we can. The force of the erroneously admitted convictions was not so “comparatively minimal” as to ensure that the verdict would have been the same in their absence. See Yates, 500 U.S. at 405. The *285number and nature of the convictions could well have persuaded a juror to find that the defendant possessed the requisite intent on the occasions charged simply because he had manifested that intent in the past. At the least, this evidence was precisely the kind with which a juror would likely and reasonably resolve any lingering doubts about the defendant’s guilt.

Given the prejudicial impact of the prior convictions and the fact that the trial court expressly instructed the jury that it could consider the evidence in determining whether the defendant acted with the requisite criminal intent on the occasions charged, I cannot say that the guilty verdict in this case “was surely unattributable to the error.” Sullivan, 508 U.S. at 279. Consequently, I cannot conclude that the erroneous admission of the defendant’s nineteen prior convictions was harmless beyond a reasonable doubt. See Bassett, 139 N.H. at 502, 659 A.2d at 898.

Ill

A primary rationale for the harmless error doctrine is the maintenance of public respect for the criminal process by not reversing when a trial error is deemed immaterial. See Delaware v. Van Arsdall, 475 U.S. 673, 681 (1986). We should remember, however, that “[w]hen we hold errors harmless, the rights of individuals, both constitutional and otherwise, go unenforced.” Edwards, supra at 1170. Moreover, “if committing an error has no adverse effect on the [Sjtate, the deterrence of official misbehavior becomes difficult,” Mitchell, Against “Overwhelming” Appellate Activism: Constraining Harmless Error Review, 82 Cal. L. Rev. 1335, 1366 (1994), a circumstance equally likely to erode public confidence in the integrity of our criminal justice system.

BROCK, C.J., joins in the opinion of BRODERICK, J.