State v. Jones, S14G1061, June 1, 2015. The Georgia Supreme Court addressed the issue of whether under Rule 404(b) of Georgia’s New Evidence Code modeled after the Federal Rules of Evidence, a prior DUI conviction for DUI or “Other Acts Evidence” (Use of the term “Similar Transaction” is now officially discouraged) was admissible in a subsequent prosecution for DUI to prove guilty knowledge, intent and lack of accident. The Supreme Court found that the prior DUI was admissible and reversed the decision of the Georgia Court of Appeals finding the contrary.
In the present, case Michael Jones was charged with DUI per se and DUI less safe in Cherokee County in Canton, Georgia. The State filed in the trial court a notice of intent to introduce evidence of Jones’ prior DUI guilty plea to show “bent of mind and course of conduct.” The Trial did not take place until after January 1st, 2013 so the state amended its notice to show the prior conviction as evidence of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident in conformity with the new evidence code that went into affect at that time. At the hearing on the admissibility of the prior DUI guilty plea, the State abandoned all the reasons for admissibility except intent and knowledge. The Court admitted the prior DUI plea to show intent and knowledge. A jury found Jones guilty of all charges.
Rule 404(b) provides:
Evidence of other crimes, wrongs, or acts shall not be admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The Supreme Court first addressed relevance. The Supreme Court found that the prior DUI guilty plea was relevant to prove intent. The Supreme Court wrote, “Because the charged DUI crimes are general intent crimes, the State in its prosecution had the burden of proving beyond a reasonable doubt Jones’ intent (1) to drive (2) with a blood alcohol content of 0.08 or higher and his intent (1) to drive (2) under the influence of alcohol (3) to the extent he was a less safe driver.” See, Prine v. State, 237 Ga. App. 679, 515 S.E.2d 425 (1999)(holding their is no prove of intent beyond the act of driving in a DUI); and Tam v. State, 232 Ga. App. 15, 501 S.E.2d 51 (1998)(hold that intent required in a DUI is proving the condition of being under the influence of alcohol to the extent of impairment and the intent to drive.) This seems to be an expansion of the definition of intent in a DUI per se or less safe case requiring the State to prove intent to drive while less safe or over the legal limit or at least that requiring such intent to drive less safe or per se is harmless error and not improper character evidence. See fn 5. There is some language later in opinion that says only the proof of voluntary driving is required for intent, it difficult to reconcile that with the above quote and other reasoning in the opinion.
The Supreme Court found that by pleading not guilty a Defendant makes intent a material issue unless the Defendant takes affirmative steps to remove intent as an issue. The Supreme Court suggested that a Defendant might make intent irrelevant by stipulating before trial that the Defendant voluntarily drove and that there was not accident. See fn 4.
The Supreme Court found that because Jones had attributed his physical appearance and demeanor and poor performance on field tests to a serious head trauma rather than alcohol impairment that made his prior DUI guilty plea even more relevant to the issue of voluntary driving while under the influence of alcohol. Again this contradicts the notion that only voluntary driving is required as there was no assertion that his head trauma was so serious that he was not voluntarily driving. The Supreme Court also found that a jury could infer from his prior DUI that drinking caused him to be a less safe driver because after being stopped he attempted to conceal and mitigate the amount of alcohol he had consumed.
The Supreme Court even referenced the Doctrine of Chances in footnote 7 reasoning that “The relevancy of evidence of a prior
state of mind and the introduction of evidence of repetitive conduct to allow a jury to draw logical inferences about a defendant’s knowledge and state of mind from such conduct is well-established.” Whether the Doctrine of Chances is “well-established” as case-precedent is questionable. The Doctrine of Chances is an 18th century theory on probability and was the first textbook on probability theory, written by 18th-century French mathematician Abraham de Moivre and first published in 1718. It was first extrapolated into the law in 1915 in England in the bathtub murders case of Rex v. Smith. The doctrine of chances is a rule of evidence that allows evidence to show that it is unlikely a defendant would be repeatedly, innocently involved in similar, suspicious circumstances. Edward J. Imwinkelried, An Evidentiary Paradox: Defending the Character Evidence Prohibition by Upholding a Non-Character Theory of Logical Relevance, The Doctrine of Chances, 40 U.Rich.L.Rev. 419, 423 (2006). It normally appears to be limited to issue of lack of accident; however, Professor Imwinkelried apparently suggested that it be expanded to the issue of intent. Normally, under Federal Rule of Evidence 404, 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. Using the doctrine of chances allows a prosecutor to admit evidence of prior “accidents” that can persuade a jury that prior incidents are so similar that it is very improbable that the case at bar is actually accidental. The case of Rex v. Smith, 11 Cr. App. R. 229, 84 L.J.K.B. 2153 (1915), better known as the “brides in the bath murder”. In Rex, the defendant was accused of murdering his wife by drowning her in a bath. The defendant claimed that his wife had fainted in the bath. The prosecutor sought to include evidence in the trial that the defendant’s two previous wives had both died in the same way. The evidence was allowed. The only Federal Court cases that even mentioning the “doctrine of chances” are from a military court that argued that multiple positive tests for meth can not all be accidents and some federal district court opinions dealing with accidental fires. As lack of accident or mistake was not an issue in this case, it appears that bent of mind and course of conduct have been replaced by the “doctrine of chances.”
The Supreme Court concluded that “other acts” evidence is relevant under Rule 404(b) for both general and specific intent crimes subject to a more probative than prejudicial balancing test under Rule 403. The Supreme Court then remanded the case back to the Georgia Court of Appeals to determine the issue of the more prejudicial than probative under Rule 403.
-Author: George Creal