Diffee v. State

Robert L. Brown, Justice,

dissenting. This is not a case where the State sought to bring in a prior bad act committed by Judy Diffee in an unrelated incident against a third party. It is a case where the appellant had attacked another family member under similar circumstances which included location, condition of the victim, and the weapon used — an ice pick. This encounter, as related by Eddie Diffee, may not shed light on Judy Diffee’s specific intent to kill her mother as discussed in the seminal case on Rule 404(b), Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), but it most assuredly sheds light on her identity and her planning as the perpetrator. In short, this testimony was relevant to this case under Rule 404(b), and the trial court correctly admitted it.

The analogous facts in Edith Durham’s murder and the Eddie Diffee attack are these. Regarding the murder of Edith Durham in 1992, (1) the victim was a close relative of Judy Diffee — her mother; (2) Judy Diffee lived on the same property as her mother in a detached portable building; (3) the victim was found on the couch in her nightgown; (4) the victim had been stabbed in her left arm, chest, back and head; and (5) the weapon used was, apparently, an ice pick. According to Eddie Diffee, in 1989 the facts of his attack were: (1) he was the husband of Judy Diffee; (2) they lived in the same home; (3) he was asleep in the front bedroom of his home at the time; (4) he was stabbed on his hand and head; and (5) an ice pick was found laying by the bed where the stabbing took place.

The majority debunks the similarities in the two incidents and discusses, primarily, modus operandi for crimes against unknown third parties. But the opinion cites no authority in support of its conclusion that the attack on Eddie Diffee, a former family member, was not evidence of identity or plan. Ironically, the only case the majority does adduce on identity and plan is Brenk v. State, 311 Ark. 579, 847 S.W.2d 1 (1993), which involved family members and supports the State’s position.

The majority attempts to distinguish Brenk v. State, supra, from the present case to no avail. In Brenk, the testimony in question was that of a former wife who said that Brenk once threatened to kill her and cut her body into pieces and scatter them. The crime for which Brenk was being tried was the murder of a subsequent wife and the placing of her torso in an ice chest which was found floating in a lake. This court held on appeal that the former wife’s testimony was “similar” enough to the crime perpetrated to warrant admissibility as evidence of plan or identity under Ark. R. Evid. 404(b).

In considering modus operandi, we typically are considering conduct in an unrelated incident against a third party. See, e.g., Dillon v. State, 311 Ark. 529, 844 S.W.2d 944 (1993); Frensley v. State, 291 Ark. 268, 724 S.W.2d 165 (1987). The test used by this court, as the majority correctly points out, is uniqueness of the methodology employed and striking similarity. But where former family members of the perpetrator are involved, we have looked only to the similarity between the threats and attacks to determine admissibility. See Brenk v. State, supra. The reasoning for this is obvious. Where threats or attacks have been carried out against other family members, that fact renders the evidence more pertinent in a murder trial involving another family member. And more reliable.

The trial judge’s ruling does not constitute a clear abuse of discretion which is the test for reversing a judge on an evidentiary decision. Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994); Sweat v. State, 307 Ark. 406, 820 S.W.2d 459 (1991); White v. State, 303 Ark. 30, 792 S.W.2d 867 (1990). But in addition, under the theory of this case, henceforth a malefactor may systematically murder members of his or her family in their home over a period of years using the same weapon and under the same general circumstances, and those prior crimes may not be used to establish identity or plan. What could be more probative than such past conduct? I personally believe that the circumstances surrounding the Durham murder and the Eddie Diffee attack are strikingly similar. But they most definitely are sufficiently analogous for admissibility under the Brenk rationale, when family members are involved.

I respectfully dissent.

Corbin, J., joins.