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Can DA Introduce Evidence of Prior Crime to Impeach?

The Gist of this Article: Under California Evidence Code § 1101(b) and the “doctrine of chances,” the prosecution may introduce evidence of other crimes to show defendant had knowledge or some fact, i.e., intent or a common scheme or plan, other than disposition to commit the crime.  We strongly disapprove of this law, as we believe it only creates prosecutorial mischief and an inference of defendant’s disposition to commit the crime, as the following summary exemplifies.        
In San Francisco, James Sheahan, age 75, was found dead in his apartment on the morning of August 14, 2017.  His brother from out-of-state had called Sheahan’s apartment manager after he was unable to reach Sheahan.

The apartment manager knocked on Sheahan’s door and received no response, so she called police, who entered the apartment.  Inside, police found Sheahan laying face down on the floor with large pools of blood near his head and feet.  There was blood spatter on the furniture and walls.

The police summoned paramedics, who arrived and confirmed Sheahan was dead.

An autopsy indicated that the death was a homicide, that Sheahan had suffered 12 or 13 blunt force injuries to the head as well as cuts to his wrists, that the cause of death was multiple traumatic injuries and that he had died sometime between the evening of August 11, 2017, a Friday, and the morning of Monday, August 14, 2017.

A post-it note found in Sheahan’s apartment bearing the name “Mike” led the officer investigating the crime to call Michael J. Phillips and to record the conversation when Phillips returned the call the same day.  Phillips, an elderly care manager, told the officer he learned of Sheahan’s death from the officer’s voicemail, he had last visited with Sheahan the prior Friday and that Sheahan was trying to get cheaper medical treatment for his lung cancer.

While searching Phillips’ house, found medication and a vehicle registration slip from Gene Levy.  Levy had died of cancer, had lived in an apartment where Philips had worked as an assistant resident manager.  Police later found that Phillips had sold items belonging to Levy, guns and paintings that had been reported stolen.  Phillips claimed Levy had given such items to him as gifts.

Further investigation pointed to Phillips as the murderer and in April, 2018, he was arrested and charged with murder (Penal Code § 187(a)(1)) with three special circumstances (financial gain (Penal Code § 1902.(a)(1)), robbery (Penal Code § 190.2(a)(17) (A)) and burglary (Penal Code § 190;2(a)(17)(C)); aggravated mayhem (Penal Code § 205), inflicting injury on an elder or dependent adult (Penal Code § 368(b)(1)) likely to cause great bodily injury (Penal Code § 368(b)(2)); first degree residential burglary (Penal Code § 459) with great bodily injury (Penal Code § 12022.7(c)) and in the presence of another person (a violent felony (Penal Code § 667.5(d)); theft, embezzlement, forgery of fraud on an elder (Penal Code § 368(d)) in an amount exceeding $950, manufacture, possession or utterance of fraudulent financial documents (Penal Code § 476); misdemeanor theft of an access card (Penal Code § 484e(c)); and receiving stolen property (Penal Code § 496(a)).

During trial, the judge permitted the jury to hear evidence of the police discovery of items belonging to Gene Levy in Phillips home and similar items belonging to Sheahan.  Phillips was convicted of all charges except receiving stolen property.  The judge sentenced Phillips to life without parole on the murder with special circumstances conviction and more time on other counts, some of which was stayed under Penal Code § 654.

Phillips appealed the conviction to the First Appellate District, arguing that the trial court erred in admitting evidence of Phillips’ prior misconduct with Levy as sufficiently similar to support an inference that Phillips acted with intent, knowledge that he lacked consent, and according to a common plan or scheme.

The First Appellate District Court affirmed, noting that Evidence Code § 1101(b) permitted introduction of evidence that a person committed a prior crime when relevant to prove knowledge or some fact other than disposition to commit the crime.  Under the “doctrine of chances,” evidence of prior acts may be used to negate claims of accident or innocent motive.  The reason is because while innocent persons could accidentally become involved in suspicious circumstances, it would be likely not to occur repeatedly.
Here, Phillips claimed that the money he got from Sheahan’s bank account was freely given to him so the evidence of his stealing Levy’s property, after claiming it was a gift, was admissible for the jury to better consider if it was a lie.

Moreover, both thefts involved victims with terminal cancer, valuable items that could be readily sold were taken that Phillips had access to, staged as random burglaries by leaving open windows to fire escapes and thefts of items he claimed had been gifts.

We present this summary to show how prior conduct is not always inadmissible, when, as here, it shows a modus operandi or motive.

The citation for the First Appellate District Court ruling discussed above is People v. Michael J. Phillips (1st App. Dist., 2022) 75 Cal. App. 5th 643, 291 Cal. Rptr. 3d 8.

For more information about the admissibility of prior acts as impeachment evidence, please click on the following articles:
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