State v. Hopkins

WEISBERGER, Chief Justice,

dissenting.

In the ease at bar the state, over the objection of the defendant, introduced testimony of two witnesses who had allegedly been sexually molested by the defendant, Charles Hopkins, many years prior to the date of trial and many years prior to the acts charged in this indictment. James Snoke (Snoke) testified that approximately seventeen years prior to the trial of this case he was sexually molested by the defendant while he was employed at a gas station owned by the defendant. At that time Snoke was thirteen years of age.

Another witness presented by the state was Charles Hopkins, Jr., (Charles, Jr.) the biological son of defendant. He is almost nine years older than defendant’s stepson, whom we shall call Mark, the alleged victim in this case. The alleged sexual molestation of Charles, Jr., took place when he was approximately seven or eight years of age. The sexual molestation ceased when Charles, Jr. reached the age of twelve years.

Neither Charles, Jr., nor Snoke lived with Mark at or near the time when the sexual assaults were alleged to have occurred. Snoke never lived in the same house as Mark. Charles, Jr. lived in the same house as Mark only when Mark was less than three years old. Nor were either associated with defendant at or near the times of the alleged assaults upon Mark, which took place between the times when Mark was nine years of age until he reached age thirteen. These episodes were separated by many years in respect to both Snoke and Charles, Jr.

As we pointed out in State v. Quattrocchi, 681 A.2d 879 (R.I.1996), the admission of evidence concerning other crimes or bad acts is governed by Rule 404(b) of the Rhode Island Rules of Evidence.

“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 the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident, or to prove that defendant feared imminent bodily harm and that the fear was reasonable.” Rule 404(b).

We pointed out in Quattroechi that our seminal case in respect to the admission of such evidence was State v. Jalette, 119 R.I. 614, 382 A.2d 526 (1978). In that case we were persuaded by the principles set forth in People v. Kelley, 66 Cal.2d 232, 424 P.2d 947, 57 Cal.Rptr. 363 (1967), to admit testimony concerning uncharged acts of sexual molestation committed against the victim herself.

Our holding in Jalette was summarized as follows:

“We are extremely conscious that the indiscriminate use of ‘other crimes’ evidence poses a substantial risk to an accused’s right to a fair trial. We adopt the holding in Kelley with the admonition that this type of evidence should be sparingly used by the prosecution and only when reasonably necessary. Whitty v. State, [34 Wis.2d 278, 297, 149 N.W.2d 557, 565 (1967) ]. The trial court should exclude such evidence if it believes it is purely cumulative and not essential to the prosecution’s case. Evidence of other crimes is admissible only when it tends to show one of the exceptions to which we have previously alluded and only when that exception is relevant to proving the charge lodged against the defendant. State v. Curry, 43 *190Ohio St.2d 66, 330 N.E.2d 720 (1975).” Jalette, 119 R.I. at 627, 382 A.2d at 533.

We went on in our later case State v. Pignolet, 465 A.2d 176 (R.I.1983), to review the Jalette doctrine, and we reaffirmed the principles enunciated in that ease. However, we went beyond the doctrine of Jalette and approved the admission of evidence of acts of sexual abuse committed against the younger sister of the complaining witness who was also the defendant’s stepdaughter. We allowed the admission of this testimony because it tended to show a lewd disposition on the part of the defendant toward his two stepdaughters. In doing so, we emphasized that both children lived in the same house with the defendant and that all but one of the sexual acts took place during the same interval of time. Pignolet, 465 A.2d at 181-82. We further noted in State v. Quattrocchi, supra, that Justice Kelleher, the author of State v. Jalette, vigorously dissented from the majority opinion in Pignolet, observing that the rationale that led to Jalette had “been laid to its eternal rest without benefit of so much as a eulogy.” 465 A.2d at 184. We stated in Quattrocchi, and I repeat now, that Pignolet expanded the Jalette doctrine in so far as it related to two stepdaughters in the same household and went beyond uncharged acts committed against the victim herself. We held in Quattrocchi that:

“Pignolet represented the extreme beyond which we are unwilling to expand the other-crimes (or bad-acts) exception because of its overwhelming prejudice to defendant and its tendency to be viewed by the trier of fact as evidence that defendant is a bad man, and that he has a propensity toward sexual offenses and, therefore, probably committed the offense with which he is charged.” Quattrocchi, 681 A.2d at 886.

I am of the opinion that the Jalette— Pignolet doctrine does not support the admissibility of the testimony of Snoke or Charles, Jr. Neither of these men lived in the same household as the alleged victim in this case. Both men were allegedly molested at times and places extremely remote from the events involving the alleged victim in this case. Likewise, neither of these men presented testimony that would fit within any of the traditional exceptions set forth in Rule 404(b). There is no question of accident or mistake as was set forth in State v. Davis, 670 A.2d 786, 790 (R.I.1996), allowing the admission of 404(b) evidence to show intent. There was also no classic Jalette exception as set forth in State v. Gomes, 690 A.2d 310, 316 (R.I.1997). In Gomes we reaffirmed that evidence of other crimes or bad acts is usually considered so prejudicial that it is per se inadmissible regardless of any relevancy that it may have to show the propensity of any defendant to have committed the charged crime. Id. In Gomes we reaffirmed Jalette and approved the admission of uncharged acts committed against the victim herself. Id. at 316-17. We went on to observe that nothing in Quattrocchi casts doubt upon the use of other-acts testimony to show lewd disposition toward the victim herself. Id, at 317.

I agree that the distinctions which we have made in Jalette, Pignolet, and Gomes are in application subtle and sometimes elusive. Nevertheless, we have steadfastly maintained that other acts of sexual molestation against third parties are inadmissible for the sole purpose of showing propensity. Unless it qualifies under a traditional exception set forth in Rule 404(b), or is admissible pursuant to either the Jalette or Pignolet formulations, testimony regarding other acts of sexual misconduct is inadmissible under the clear command of Rule 404 and our case law.

In the case at bar I am constrained to conclude that the testimony of Snoke and Charles, Jr., did not qualify for any Rule 404(b) exception. The state’s argument relating to motive, opportunity, common scheme, or plan is unpersuasive in this context. In sum the only purpose of this testimony was to show propensity.7 This result *191Rule 404(b) will not permit by its express terms. It can scarcely be contended that there was any common scheme or plan relating to this victim, Snoke, and Charles, Jr. These incidents occurred years apart and in entirely separate contexts. I fear that the opinion of the majority would cause the exceptions set forth in Rule 404(b) and Jalette and Pignolet to swallow the rule and render it a nullity. For these reasons I respectfully dissent.

. In State v. Kirsch, 139 N.H. 647, 662 A.2d 937 (1995), the Supreme Court of New Hampshire analyzed similar circumstances in the following way:

"Whether nominally labeled motive, intent or common plan, the ostensible purpose for which the prosecution sought to admit evidence of a multitude of other uncharged sexual assaults was to show the defendant's predilec*191tion for molesting young females over whom he was able to gain control through engendering trust. At most, this is evidence of the defendant’s disposition to commit the offenses with which he was charged, impermissible under Rule 404(b). Because it was not relevant for a permissible purpose, the evidence should have been excluded, and its introduction was an abuse of discretion.” Id. 662 A.2d at 943. Accord State v. Winter, 162 Vt. 388, 648 A.2d 624, 628-31 (1994).