Swain v. State

647 N.E.2d 23, 1995 Ind. App. LEXIS 168, 1995 WL 76945

• Court: Indiana Court of Appeals
• Decided: February 28, 1995
• Docket: 48A04-9312-CR-487
• Status: Published

Opinions

OPINION

RILEY, Judge.

STATEMENT OFP THE CASE

Appellant-defendant, Keith B. Swain (Swain), appeals his conviction of possession of cocaine, a class D felony¹

We reverse.

ISSUES

One issue is dispositive of this appeal: Whether evidence of Swain's prior convictions was improperly admitted at trial.

FACTS AND PROCEDURAL HISTORY

On June 1, 1998, Officer Steven Stoops of the Anderson Police Department (Officer Stoops) was conducting surveillance to interdict street drug traffic at the corner of 16th Street and Arrow Avenue in Anderson. Officer Stoops had been assigned to a special anti-street crime shift stationed predominately in problem areas for drug activity.

At about 9:30 that night, Officer Stoops arrived at the intersection of 16th and Arrow and observed Swain on the southeast corner of the intersection. Swain was running up to cars and conversing with occupants. Swain waved down a vehicle, and another car pulled up behind. Swain ran between the cars for a short time. Officer Stoops overheard Swain talk about "twenties." Officer Stoops, knowing that "twenties" is a street pricing term for a quantity of crack cocaine, called for backup.

When one of the vehicles was about to leave, Officer Stoops approached Swain and identified himself as a police officer. Officer Stoops directed Swain to get down on the ground, which he did. As Swain was getting down, Officer Stoops saw his right hand move to the outside and then saw an item hit the ground. The item recovered was a container of crack cocaine. Officer Stoops questioned the occupants of the car who stated that Swain had tried to sell the packet to them.

DISCUSSION AND DECISION

Swain argues that evidence of his four prior convictions was improperly admitted at trial. We agree.

The admission of evidence of crimes or other bad acts is governed by Indiana Rule of Evidence 404(b)², which provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, ....

The general rule stated in the first sentence of Rule 404(b) is, to a great extent, the same as under earlier Indiana law, and prior Indiana law and Rule 404(b) each respond to the concern that the trier of fact will convict the defendant for what he is, rather than what he has done. 12 MILLER, INDIANA EVIDENCE, (1994 Supplement), See. 404.200 at 187.

In Hardin v. State (1993), Ind., 611 N.E.2d 123, 128, our supreme court stated the reasons for the rule:

If a court were to indiscriminately admit proof of criminal activity beyond that specifically charged, then the burden on the defense would be intolerably enlarged and the court would effectively negate the due process presumption of innocence that our system of justice accords to every accused.

However, Ind.Evid.R. 404(b) generally admits evidence of prior bad acts, unless such evidence is used for the sole purpose of suggesting the "forbidden inference," i.e. that the defendant is of bad character and that he acted in conformity with that character by committing the charged crime. Id. at 129.

At trial, evidence was admitted that Swain had previously been convicted of four counts of dealing in cocaine. Swain attempted to show that Officer Stoops was prejudiced against blacks, and that his presence at 16th and Arrow on the night of the arrest was solely based on that prejudice. The trial court warned the defense that while the defense was proper, it did risk opening the door to rebuttal involving the actual reasons the police were watching the seene and the defendant. The judge allowed the officer to testify about defendant's prior convictions "to explain the officer's conduct and his presence in the area ...," and not "to prove or show that Mr. Swain is guilty of these offenses merely because some unnamed people have accused him of being guilty." (R. 479).

The evidence was admitted simply to show why Officer Stoops was at 16th and Arrow on the night of June 1, 1993. This had already been explained by Officer Stoops in his direct examination:

Q. ... And specifically on June 1, 1998, you were in the area of 16th and Arrow Avenue. Correct?

A. Yes, Sir.

Q. Was that an assignment for you that night to be in that area?

A. Yes, Sir.

@. Okay. And that area was designated as a problem area?

A. Yes, Six.

[[Image here]]

Q. Alright. Can you tell us the purpose of you being in that area?

A. Conducting surveillance. Uh, trying to interdict street drug traffic.

[[Image here]]

Q. Okay. You said you're familiar with this area. You said it's a problem area.

A. Um hum.

Q. ... The area is a problem for what?

A. The area is a problem for street violence, um, crack street, crack cocaine dealing....

(R. 107-127).

The State's argument that the evidence was not being offered on the question of defendant's guilt but to show why the police took certain actions must fail,. First, this testimony must be examined as to its relevancy. Clearly, relevancy is central to admissibility. Ind.Evid.R. 401 says:

'Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

If relevant evidence goes to prove an essential element of the charge against the defendant, this type of evidence fails completely. Why the police acted in a certain manner does not in any way prove that the defendant committed a certain crime. Explaining the reasons for the officer's conduct or his presence at the seene is not material to proving the elements of the crime charged. The evidence admitted against the defendant was not part of the res gestae of the charged offense and was not necessary to explain misleading testimony or evidence offered by defendant's counsel.

Even if the evidence was relevant, it still would not be admissible. The Indiana Rules of Evidence also contain Rule 408 which permits the trial court discretion to exclude relevant evidence if its prejudicial impact outweighs its probative value. The prejudice of a police officer testifying about the defendant's prior drug sales substantially outweighs the probative value of a police officer explaining the next investigatory step he took. This evidence fails to survive an Ind. Evid.R. 403 evaluation. There is no legal need or requirement for the jury to know of the reasons for the officer's conduct. Thus, the probative value of this evidence is naught and the prejudicial impact outweighs its probative value.

The blanket theory of admissibility of explaining police conduct should fail with a relevancy review under Ind.Evid.R. 401 and an undue prejudice consideration under Ind. Evid.R. 403.

DARDEN, J., concurs. CHEZEM, J., dissents with separate opinion.

1 . IND.CODE 35-48-4-6

2 . At the time of Swain's trial, the admissibility of such evidence was governed by Federal Rule of Evidence 404(b) as had been adopted by our supreme court in Lannan v. State (1992), Ind., 600 N.E.2d 1334. On January 1, 1994, the supreme court adopted FRE. 404(b) as Indiana Rule of Evidence 404(b). We will refer to it as such.