Summary:       Defendant in an involuntary manslaughter case filed a motion in limine to exclude evidence of a prior DUI conviction. The Court granted the motion finding that based upon the unique facts and circumstances presented in the case, such evidence would be unfairly prejudicial to the defendant within the meaning of Rule 403.  

Case Name: USA v. Waylon Christopher Gladue

Case Number: 4-06-cr-09

Docket Number: 25

Date Filed: 8/7/06

Nature of Suit:

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NORTH DAKOTA

NORTHWESTERN DIVISION
 

            Before the Court is the Defendant’s Objection to Intent to Use 404(b) Prior Conviction Evidence (motion in limine), filed on June 30, 2005. For the reasons set forth below, the Court denies the motion.

I.         BACKGROUND

            The defendant, Waylon Christopher Gladue, was indicted on January 11, 2006, on one count of involuntary manslaughter in violation of 18 U.S.C. § 1112. On June 13, 2006, the Government gave notice that it intended to introduce, in its case in chief, evidence of another crimes, wrongs or acts of Gladue, pursuant to Rule 404(b) of the Federal Rules of Evidence, as proof of intent, foreseeability, knowledge, or absence of mistake or accident. Specifically, the Government indicated its intention to introduce evidence relating to an October 11, 1999, conviction in Rolette County District Court for driving under the influence.

II.       LEGAL DISCUSSION

            Rule 404(b) states:

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, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.

            The Eighth Circuit has held that Rule 404(b) is a rule of inclusion rather than exclusion and admits evidence of other crimes or acts relevant to any issue at trial, unless it tends to prove only criminal disposition. United States v. Foster, 344 F.3d 799, 801 (8th Cir. 2003); United States v. Simon, 767 F.2d 524, 526 (8th Cir. 1985). The Eighth Circuit has frequently upheld the admission of prior drug convictions in cases where the defendant denied committing the charged drug offense. United States v. Love, 419 F.3d 825, 828 (8th Cir. 2005). Evidence of past crimes is admissible under Rule 404(b) if (1) it is relevant to a material issue; (2) it is similar in kind and not overly remote in time to the crime charged; (3) it is supported by sufficient evidence; and (4) its potential for unfair prejudice does not substantially outweigh its probative value. United States v. Ziesman, 409 F.3d 941, 952 (8th Cir. 2005). Rule 404(b) evidence is inherently prejudicial, but the test under Rule 403 is whether its probative value is substantially outweighed by the danger of unfair prejudice. See United States v. Noland, 960 F./2d 1384, 1387 (8th Cir. 1992). A district court has broad discretion to admit evidence of other crimes. United States v. Mays, 822 F.2d 793, 797 (8th Cir. 1987).

            In this case, Gladue contends that evidence of a prior DUI conviction is not relevant to a material issue because neither intent, knowledge, nor absence of mistake or accident are required elements of involuntary manslaughter. Gladue contends that because the evidence is not relevant to a material issue, it serves only a prejudicial purpose. Finally, Gladue asserts that the DUI conviction is remote in time to the crime charged, and is distinguishable from cases involving a second degree murder charge where prior DUI convictions were used to prove intent. The Government contends that because it must prove Gladue acted with gross negligence, evidence of a prior DUI conviction is relevant and admissible to prove requisite intent and knowledge.

            The Eighth Circuit has held that for a conviction of involuntary manslaughter, proof is required that a defendant acted with gross negligence, “in that he acted with a wanton or reckless disregard for human life, knowing that his conduct was a threat to the lives of others or having knowledge of such circumstances as could reasonably have enabled him to foresee the peril to which his act might subject others.” United States v. McMillan, 820 F.2d 251, 255 (8th Cir. 1987) (quoting United States v. Opsta, 659 F.2d 848, 849 (8th Cir. 1981) (quoting United States v. Schmidt, 626 F.2d 616, 617 (8th Cir. 1980)).

            The undersigned is aware that other courts have said that “one who drives a vehicle while under the influence of alcohol after having been convicted of that offense knows better than most that his conduct is not only illegal, but entails a substantial risk of harm to himself and others.” United States v. Tan, 254 F.3d 1204, 1210 (10th Cir. 2001). In Tan, the Tenth Circuit noted several state court cases where prior drunk driving convictions were admitted to prove defendant’s awareness of the consequences of drunk driving. See People v. Brogna, 202 Cal. App. 3d 700 (1988) (holding that prior DUI convictions are probative of a conscious disregard for life); see also, State v. Vowell, 276 Ark. 258 (1982) (holding that evidence of prior drunk driving convictions shows warning quality of convictions and shows a lack of mistake).

            With respect to the remoteness of the prior offense, There is no absolute rule for the number of years that can separate evidence of offenses admitted under Rule 404(b). United States v. Thomas, 398 F.3d 1058, 1062 (8th Cir. 2005). Instead, courts are to examine “the facts and circumstances of each case and apply a reasonableness standard.” Id. The Eighth Circuit has upheld the admission of acts committed up to 13 years before the crime charged. Id. (citing United States v. Rush, 240 F.3d 729, 731 (8th Cir. 2001)); see also United States v. Williams, 308 F.3d 833, 837 (8th Cir. 2002) (twenty year-old conviction for armed robbery admitted under Rule 404(b)). The Court finds that a 1999 DUI conviction is not overly remote in time to the criminal charge that resulted in the issuance of an indictment in January 2006. Nevertheless, although a prior DUI conviction may arguably be relevant to a material issue in an involuntary manslaughter case, the district court must also engage in a balancing test. The Court must carefully consider Rule 403 to determine whether the probative value of the other crimes evidence being offered is substantially outweighed by the danger of unfair prejudice.

            There is little question that evidence of a prior DUI conviction is inherently prejudicial and is unfavorable to the defense. All Rule 404(b) evidence is inherently prejudicial. In this case the underlying facts and circumstances of the prior DUI conviction remain a mystery. Apparently, no one was injured in the 1999 accident which resulted in a misdemeanor conviction. The Court is unaware of Gladue’s blood alcohol levels at the time of the 1999 accident; the chronology of events which preceded the arrest; the relevant facts surrounding the incident; whether the case was resolved by a plea agreement or trial; and whether the defendant was represented by counsel in the earlier criminal proceedings. This information would be relevant and important in making a case-by-case determination on the admissibility of the Rule 404(b) evidence being offered by the Government.             After a thorough review of the entire record, and careful consideration of the Rule 404(b) evidence proposed by the Government, the Court in its discretion believes that the admission of evidence of a prior misdemeanor DUI conviction in this case would be unfairly prejudicial to the defendant within the meaning of Rule 403. Simply stated, the prejudicial effect of the Rule 404(b) evidence in this particular case substantially outweighs its probative value under Rule 403. The Court prefers to focus the trial on the offense at issue and not allow the parties and the jury to stray and discuss details of an extraneous misdemeanor DUI conviction. See United States v. Cook, No. 05-3731, 2006WL2105017, *4 (8th Cir., July 31, 2006) (affirming district court’s granting of defendant’s motion in limine and excluding evidence of four prior drug convictions as too remote under Rule 404(b) and unfairly prejudicial under Rule 403).

            The Court would note that such evidence may be admissible at trial for impeachment or rebuttal purposes, but it is inadmissible as part of the Government’s case-in-chief. The Court expressly notes that the determination of whether a prior misdemeanor DUI conviction will be admissible Rule 404(b) evidence in an involuntary manslaughter case is one that needs to be made on a case-by-case basis. Each case presents its own unique facts and circumstances, and it becomes a discretionary decision based on the case-specific circumstances. Based upon the unique facts and circumstances presented in this case, the Court finds that such evidence should not be admitted under Rule 403.  

III.      CONCLUSION

            After carefully reviewing the parties’ briefs, the Court finds that Gladue’s 1999 conviction for driving under the influence is inadmissible under Rule 403 of the Federal Rules of Evidence. The Court GRANTS defendant Wayne Christopher Gladue’s Motion in Limine or Objection to Intent to Use 404(b) Prior Conviction Evidence (Docket No. 22).

            IT IS SO ORDERED.

            Dated this 7th day of August, 2006.

__________________________ Daniel L. Hovland, Chief Judge United States District Court