concurring. Because the majority has held contrary to my view on the admissibility of evidence under Ark. R. Evid. 404 on a number of occasions, I now concur with the outcome of this case. I do so under the doctrine of stare decisis. However, I also state my willingness to revisit this issue in the future.
The longstanding rule arising under the common law that a verdict of guilty should rest upon proof beyond a reasonable doubt that the defendant committed the exact offense for which he or she is tried is now effectively abandoned. In the past, this court held that it was impermissible to prove the commission of one offense by the proof of the commission of another. The holding of the majority in the present case completes the abandonment of this principle, and as of now, despite statements to- the contrary in the majority opinion, evidence of a person’s propensity to commit a particular crime is now relevant and admissible to prove guilt by showing conformity with that character attribute on a subsequent occasion. To quote the majority, the testimony regarding the prior conviction and arrest “is significant in this court’s judgment, because it shows a similar pattern of Saul’s criminal activity. . . ,”1 In other words, contrary to the holdings in earlier cases, because Saul is a man of bad character, and is addicted to crime, his prior bad acts may now be used in the State’s case-in-chief to prove guilt of a later similar offense.
I have serious concerns that the interpretation now given Rule 404 by this court violates fundamental requirements of due process and the right to a fair trial under our State Constitution and under the federal constitution. However, the outcome in this case is likely a result of the evidence. This is a hard case because even aside from the character evidence at issue in this appeal, the evidence of guilt is so clear. Justice Oliver Wendell Holmes set out well the difficulty we face in a case such as the present appeal. In his dissent in Northern Securities Co. v. United States, 193 U.S. 197, 400-01 (1904), Justice Holmes stated:
Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.
No one doubts the severe challenge our society faces from methamphetamine. Lives and families are being squandered and lost every day to this drug; however, the right of all persons to a fair trial is at issue, and we should not injure our system of justice to keep one man from being tried a second time.
I have stated my view on this issue on a number of occasions2 and now take this opportunity to reassert it as I acquiesce under the principle of stare decisis. The State alleges that it offered the evidence of Saul’s prior conviction for possession of drug paraphernalia as well as evidence of his arrest for shoplifting ingredients used in methamphetamine production to establish motive, intent, plan, knowledge and the absence of accident or mistake in the manufacture of methamphetamine, as allowed under Ark. R. Evid. 404(b). The majority concludes that the “catalyst” for attempting to use this evidence “was Saul’s claim to Officer Lee that the methamphetamine lab found in his van was placed there by someone else and that he had no knowledge of its existence.” The majority correctly states that before the evidence could be admitted under Rule 404(b), the State had to overcome two obstacles: the evidence had to be independently relevant as proof of the crime charged, and the probative value of the evidence had to outweigh its prejudicial harm. The evidence meets neither requirement.
Independent Relevance
To be independendy relevant, the evidence must be relevant to a material issue in the present case. Anderson v. State, 357 Ark. 180, 163 S.W.3d 333 (2004). Stated another way, “the fact that evidence shows that the defendant was guilty of another crime does not prevent it being admissible when otherwise it would be competent on the issue under trial.” Alford v. State, 223 Ark. 330, 334, 266 S.W.2d 804, 807 (1954) (quoting State v. Delaney, 87 Ark. 17, 23, 112 S.W. 158, 160 (1908))3. In such a case, even though the evidence may show the commission of another crime, it is admitted under Rule 404(b) as relevant to prove a material issue in the case being tried.
On the issue of independent relevance, the majority holds in this case that the evidence of Saul’s prior commission of similar acts was admissible under Rule 404(b) because it was “pertinent evidence of Saul’s knowledge and intent relative to manufacturing methamphetamine.” Therefore, according to the majority, Saul’s propensity for manufacturing is relevant to show intent in the present case.
The majority is clearly relying on Saul’s propensity, because as already noted, the majority states that the prior purchase and theft of precursors show a “similar pattern of Saul’s criminal activity,” particularly with respect to how he responds to police when caught with “drug paraphernalia.” The argument accepted by the majority is that as a person who previously possessed drug paraphernalia and shoplifted items often used in methamphetamine production, Saul is more likely to manufacture drugs. Therefore, the evidence was allowed to show Saul’s behavioral patterns, or in other words his character trait to commit drug offenses. However, under our longstanding law on the issue, evidence of a person’s character or a character trait is not admissible to prove he or she acted in conformity therewith on a particular occasion. Ark. R. Evid. 404(a).
With respect to intent, the State had to prove that Saul knowingly or purposely manufactured methamphetamine.4 The majority holds that the evidence shows “knowledge” without explaining what it means by “knowledge,” and, as already noted, the majority states that Saul claimed to have no knowledge of the existence of the lab in his van. What is at issue is whether Saul knowingly or purposely manufactured the methamphetamine, not whether he knew the lab was in his van. Manufacturing is producing or processing a controlled substance.5 The evidence of prior crimes is not independently relevant on this material point in the present case. It does not show that he produced or processed drugs on this occasion.
The error in this case arises from misinterpretation of Rule 404(b). 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 that he acted 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.
Rule 404(b) includes an illustrative list of issues on which evidence might be admissible, if those issues are relevant in the case being tried. However, the list is not exhaustive,6 and just because Rule 404(b) notes that evidence may be admissible, on opportunity, for example, does not mean the evidence is admissible if opportunity is not at issue in the case being tried. In recent years, analysis on a Rule 404(b) has often been reduced to noting that Rule 404(b) allows admission of evidence of “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” and then finding the evidence “independently relevant” and admissible because it relates to one or more of the listed issues.
Under Rule 404(b), the evidence must be relevant to prove a material issue in the case being tried. What had to be proven in the present case was knowing and purposeful manufacture of methamphetamine. Motive, opportunity, preparation, plan, identity, or absence of mistake or accident simply are not at issue. Surely the State did not want to put on the evidence of the prior crimes because it was concerned that the jury might conclude that Saul mixed up some chemicals he had around the house and accidentally made methamphetamine.7 The danger in allowing blanket admission of evidence based on general relevance to issues, such as motive, was set out long ago in Howard v. State, 72 Ark. 586, 82 S.W. 196 (1904), where this court wrote:
No rule of criminal procedure is better established, perhaps, than that evidence of one crime shall not be permitted in proof of another. Even where offenses are alike, evidence of one is not, generally speaking, competent to prove the other. “To permit such evidence,” says Mr. Bishop,8 “would be to put a man’s whole life in issue on the charge of a single wrongful act; and crush him by irrelevant matter which he could not be prepared to meet.” Mr. Wharton declares that it is a violation of the fundamental sanctions of our law to admit evidence that the defendant committed one offense in order to prove he committed another. Wharton Cr. Ev. § 48. But whatever tends directly to prove a man guilty of the crime charged, though it shows him also guilty of another crime, may be given in evidence against him. 1 Bishop, New Cr. Pro. § 1123; Clark, Cr. Pro. p. 517. Where guilty knowledge or intent is an essential ingredient of the offense charged, evidence which has a direct bearing on such knowledge or intent, or which tends to establish it, is admissible, although apparently collateral and foreign to the main subject. 1 Greenleaf, Ev. § 53; 1 Bishop, Cr. Proc. § 1126; Clark, Cr. Pro. p. 518; Wharton, Cr. Ev. §§ 31 to 46.
When there is a question as to whether or not the crime charged was by accident or mistake, or intentional and with bad motive, the fact that such act was one of a series of similar acts committed by the defendant is admissible, because it tends to prove system and show design. Clark, Cr. Pro. p. 517; Wharton, Cr. Ev. (8th Ed.) §§ 31 to 46. But it must be remembered always that such evidence is admissible only for the purpose of showing particular intention, knowledge, good or bad faith, when these are in issue, and essential to constitute the crime. It is never admitted to show that the defendant was likely to commit the crime for which he is being tried.
Howard, 72 Ark. at 597-98, 82 S.W. 196, 200-01 (emphasis added).
In the present case, the majority uses the phrase, “knowledge and intent.” What knowledge is referred to is unclear. The evidence is not relevant for any purpose other than showing Saul’s propensity or character trait to commit drug offenses. The evidence was not admissible as independently relevant to prove a material issue in the present case.
Rule 403
Even if the evidence is relevant and meets the requirements of Rule 404(b), it may still be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, if it confuses the issues, or if it misleads the jury. Wyles v. State, 357 Ark. 530, 182 S.W.3d 142 (2004). On this issue, the majority simply concludes that “the offenses are some proof of knowledge and absence of mistake and that the prejudice resulting from the evidence did not outweigh its probative value.” Further analysis is needed.
The circuit court recognized the highly prejudicial nature of the evidence, noting that, “[ojbviously, if the State succeeds in getting this in, it ties — it ties things up for the State. I mean that it’s devastating evidence.” The State apparently recognized at the least that Saul would consider the evidence prejudicial as is evidenced by the State bringing the issue to the circuit court’s attention in a pretrial motion requesting to be allowed to use it in its case-in-chief.
This court has recognized that any reference to a defendant’s prior convictions during the guilt phase of a criminal trial results in at least some prejudice to the defendant. Smith v. State, 351 Ark. 468, 95 S.W.3d 801 (2003). In fact, where the evidence of prior criminal acts is not relevant, it has been held to be sufficiently prejudicial to require reversal. See, e.g., Elliott v. State, 335 Ark. 387, 984 S.W.2d 362 (1998). This is because by using the evidence, the State labels the defendant as a habitual criminal from the commencement of the State’s case, “thus removing one of the constitutional benefits afforded all criminal defendants in a criminal case — a right to a fair and impartial jury.” Elliott, 335 Ark. at 392, 984 S.W.2d at 365.
In Miller v. State, 239 Ark. 836, 838, 394 S.W.2d 601, 602 (1965), this court considered the question of “whether the action of the trial court in permitting the previous convictions to be called to the attention of the jury deprived the defendants of a fair trial within the meaning of the U.S. Constitution, Amendments 5, 6, and 14.” In Miller, supra, this court quoted Michelson v. United States, 335 U.S. 469, 475-76 (1948):
Courts that follow the common-law tradition almost unanimously have come to disallow resort by the prosecution to any kind of evidence of a defendant’s evil character to establish a probability of his guilt. Not that the law invests the defendant with a presumption of good character, Greer v. United States, 245 U.S. 559, but it simply closes the whole matter of character, disposition and reputation on the prosecution’s case-in-chief. The state may not show defendant’s prior trouble with the law, specific criminal acts, or ill name among his neighbors, even though such facts might logically be persuasive that he is by propensity a probable perpetrator of the crime. The inquiry is not rejected because character is irrelevant; on the contrary, it is said to weigh too much with the jury and to so over persuade them as to prejudge one with a bad general record and deny him a fair opportunity to defend against a particular charge. The overriding policy of excluding such evidence, despite its admitted probative value, is the practical experience that its disallowance tends to prevent confusion of issues, unfair surprise and undue prejudice.
Miller, 239 Ark. at 838-39, 394 S.W.2d at 602-03. In Miller, we reversed and remanded the case holding that the mention of the prior convictions constituted a denial of due process. In the case before us, the admission of the evidence denied Saul a fair trial and violated his due process rights. The prejudicial harm clearly outweighed any probative value, and the only purpose in admitting the evidence was to show that Saul was a man of bad character and that he was addicted to crime.
Over the last few years, this court has so modified the rule on admission of evidence under Rule 404 as to nullify its intent and effect, and this decision is the logical final step in complete abandonment of the rule, as well as abandonment of the longstanding common-law principle that a person should be convicted of the exact offense committed. I continue to disagree; however, under the doctrine of stare decisis, I concur.
“We have, however, zealously guarded the rights of accused persons to have the State’s evidence stricdy confined to the issues surrounding the offense charged to insure that no one is convicted because he has committed offenses other than that for which he is on trial or because he is of bad character and addicted to crime.” Akins v. State, 330 Ark. 228, 235, 955 S.W.2d 483, 487 (1997) (citing Tarkington v. State, 250 Ark. 972, 469 S.W.2d 93 (1971)).
See Swift v. State, 363 Ark. 496, 215 S.W.3d 619 (2005) (Hannah, C.J., concurring); Davidson v. State, 363 Ark. 86, 210 S.W.3d 887 (2005) (Hannah, C.J., concurring); Davis v. State, 362 Ark. 34, 207 S.W.3d 474 (2005) (Hannah, C.J., dissenting); Fells v.State, 362 Ark. 77, 207 SW3d 498 (2005) (Hannah, C.J., dissenting); McCoy v. State, 354 Ark. 322, 123 S.W.3d 901 (2003) (Hannah,J., concurring).
While Alford v. State, 223 Ark. 330, 334, 266 S.W.2d 804 (1954), discusses the earlier common-law rule, in Evans v. State, 287 Ark. 136, 140, 697 S.W.2d 879 (1985), rev’d on other grounds by Walker v. State, 304 Ark. 393, 805 S.W.2d 502 (1991), this court stated: “In Alford v. State, 223 Ark. 330, 266 S.W.2d 804 (1954), we thoroughly discussed the purposes and application of the common law equivalent of Rule 404.” The court of appeals stated that “Rule 404(b) is virtually a codification of Alford and the cases following it.” Tharp v. State, 20 Ark.App. 93, 96, 724 S.W.2d 191, 192 (1987).
No required culpable mental state is provided for in Ark. Code Ann. § 5-64-401 (Supp. 2001), under which Saul was charged and; therefore, under Ark. Code Ann. § 5-2-203(b) (Repl. 1997), the State had to prove that Saul acted “purposely, knowingly or recklessly.”
“Manufacture” means the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, or independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis____
Ark. Code Ann. § 5-64-101(m) (Repl. 1997).
See Lindsey v. State, 319 Ark. 132, 890 S.W.2d 584 (1994).
While the State generally may introduce any relevant evidence to prove its case as conclusively as it can, that right does not extend to evidence excluded by Ark. R. Evid. 403. Ferguson v. State, 362 Ark. 547, 210 S.W.3d 53 (2005).
Joel Prentiss Bishop, 1 New Criminal Procedure § 1124(3) at 697 (1895).