ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
KATHARINE C. LIELL STEVE CARTER
STACY R. ULIANA Attorney General of Indiana
Liell & McNeil
Bloomington, Indiana ANDREW A. KOBE
Deputy Attorney General
DAVID R. CAMM, ) ) Appellant-Defendant, ) ) vs. ) No. 22A01-0208-CR-326 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
OPINION - FOR PUBLICATION
This rule prevents the State from punishing people for their character . .
. . Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003).
Evidence of other wrongs or acts poses the danger that a jury may
convict a defendant because his or her general character is bad. Id.
(quoting Gibbs v. State, 538 N.E.2d 937, 939 (Ind. 1989)). In determining
the admissibility of extrinsic act evidence under Evidence Rule 404(b), courts must:
(1) determine whether the evidence of other crimes, wrongs, or acts is relevant
to a matter at issue other than the persons propensity to engage in
a wrongful act; and (2) balance the probative value of the evidence against
its prejudicial effect pursuant to Evidence Rule 403. Id. Otherwise admissible
evidence may be rendered inadmissible if its probative value is substantially outweighed by
the danger of unfair prejudice . . . . Ind. Evidence Rule
The State asserts that this evidence was offered to establish motive. With respect to the motive exception in Evidence Rule 404(b), our supreme court has said that motive is always relevant when proving a crime. Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996). It is clear, however, that just because motive is always relevant, this does not mean the State can introduce questionable character evidence simply by labeling it evidence of motive. If the States claim of relevance to motive is too strained and remote to be reasonable, then the extrinsic act evidence is inadmissible. See Bassett, 795 N.E.2d at 1053.
Our supreme court has also said that evidence of extrinsic acts may be relevant as proof of motive if the acts show the relationship between the defendant and the victim. Ross, 676 N.E.2d at 346. This rationale has been used to uphold the introduction of evidence of prior violence or threats by the defendant against the victim in a trial alleging the battery or homicide of the victim. See id.; Price v. State, 619 N.E.2d 582, 584 (Ind. 1993). Specifically, where a relationship between parties is characterized by frequent conflict, evidence of the defendants prior assaults and confrontations with the victim may be admitted to show the relationship between the parties and motive for committing the crimehostility. Spencer v. State, 703 N.E.2d 1053, 1056 (Ind. 1999).
Neither party has cited to this court, nor has our own research revealed, any Indiana case that has discussed the admissibility, as evidence of motive, of a defendants adulterous affairs in a trial where the defendant is accused of killing his or her spouse. The Indiana case closest to being on point appears to be Henson v. State, 530 N.E.2d 768 (Ind. Ct. App. 1988), trans. denied. In that case, a wife was charged with the voluntary manslaughter of her husband. On cross-examination of the wife, the State questioned her regarding several alleged instances of adultery; her answers to the questions were equivocal. Thereafter, on rebuttal the State presented four witnesses to the affairs. We reversed the wifes conviction, holding (1) that the States cross-examination regarding adultery was outside the scope of the wifes direct examination and (2) that the rebuttal evidence of the affairs was immaterial and had no relevance to [the wifes] guilt or innocence. Id. at 770. We further stated, We can find no basis for the States introduction of the rebuttal testimony other than to prejudice the jury against [the wife]. Id. The opinion does not address, however, whether the adultery evidence could have been relevant to establishing motive, presumably because that was not argued by the State. Nevertheless, Henson does evidence healthy skepticism about the relevance and admissibility of evidence of extramarital affairs by a defendant charged with killing his or her spouse.
There is a general paucity of cases throughout the country discussing the issue of adultery as evidence of motive to kill ones spouse. See footnote However, we have discovered that the Supreme Court of Mississippi has addressed precisely this issue in detail and in a manner that appears to us entirely consistent with Indiana case law and Indiana Evidence Rule 404(b). In Lesley v. State, 606 So. 2d 1084 (Miss. 1992), a wife was convicted of conspiring with a lover to murder her husband. The wife admitted to the affair with the accused lover. However, the husband was also allowed to testify as to two other men with whom his wife allegedly had had extramarital affairs in previous years. The Mississippi Supreme Court reversed the wifes conviction based upon its application of Mississippi Evidence Rule 404(b), which is virtually identical to Indiana Evidence Rule 404(b). See footnote Id. at 1089-90. First, it noted that the other two alleged affairs had occurred years before the conspiracy to commit murder arose and thus were too chronologically remote. Id. at 1090. It also noted that the husband had failed to prove that the alleged affairs had actually taken place. Id. Finally, and most relevant to this case, the court stated:
Any extramarital affairs of Loretta Lesley other than the affair with Hood [the current lover and alleged co-conspirator] were not part of any chain of events leading to the planned murder of Dale Lesley. Additionally, proof of previous extramarital affairs lacked relevance into the murder conspiracy and was so prejudicial as to fail any balancing test under Rule 403. Her alleged prior adultery did not make it more likely than not that she committed conspiracy to commit murder, and it did inflame any listener.
Id. The court held it was improper to use this evidence only
to show that she had a motive for killing her husband because she
was unhappy in her marriage and had a reason for wanting to get
rid of her husband. The only effect of such testimony was to
show the jury that she was a bad woman. Id. The
court also distinguished the case before it from cases in other jurisdictions that
had allowed evidence of extramarital affairs to be introduced, noting among other things
that in the other cases the evidence of adultery was introduced in combination
with evidence of violence or current conduct [an ongoing affair at the time
of the murder] to show motive. Id. at 1090-91 (citing State v.
Green, 652 P.2d 697 (Kan. 1982) and Commonwealth v. Heller, 87 A.2d 287
(Pa. 1952)). We, too, have discovered that insofar as evidence of adultery
has sometimes been admitted as evidence of motive in a murder trial in
other jurisdictions, such evidence has been that the defendant was engaged in an
affair at the time of the murder. See United States v. Stapleton, 730
F. Supp. 1375, 1378-79 (W.D. Va. 1990); Givens v. State, 546 S.E.2d 509, 512 (Ga.
In another case, the Seventh Circuit addressed the admission into evidence of a defendants extramarital affair in a trial for solicitation to murder the defendants wife. Cramer v. Fahner, 683 F.2d 1376 (7th Cir. 1982), cert. denied, 459 U.S. 1016, 103 S. Ct. 376. The court held that although the prosecution failed to make a tie between adultery and motive as it had claimed it would, the mention of the affair by the defendants co-conspirator was relevant to explain the relationship between the defendant and co-conspirator and why the murder plot was delayed: the defendant, an attorney, had explained to the co-conspirator that he might have to order additional murders if the mother-in-law of the woman with whom he had had an affair, and who was the wife of one of his clients, continued to press an ethical complaint with the bar. Id. at 1384. However, the court went on to state that the trial court should not have allowed prolonged questioning on cross-examination of petitioners wife on her knowledge of petitioners adultery and bar association problems . . . . Id. The court did not find this error to warrant habeas corpus relief because the trial court had given a proper limiting instruction regarding the evidence, the error did not deprive the defendant of fundamental due process of law, and the evidence against the defendant was strong. Id. at 1385.
We conclude it is clear from the above authorities and Indiana law that evidence of a defendants marital infidelity is not automatically admissible as proof of motive in a trial for murder or attempted murder of the defendants spouse. Instead, to be admissible as proof of motive, the State must do more than argue that the defendant must have been unhappily married or was a poor husband or wife, ergo he or she had a motive to murder his or her spouse. This court has previously discussed and acknowledged the high rate of marital infidelity in this country, with some studies estimating that between thirty to fifty percent of women and fifty to seventy percent of men have been unfaithful to their spouses. Jaunese v. State, 701 N.E.2d 1282, 1284 n.3 (Ind. Ct. App. 1998). Rather, to be admissible, evidence of a defendants extramarital affairs should be accompanied by evidence that such activities had precipitated violence or threats between the defendant and victim in the past, or that the defendant was involved in an extramarital relationship at the time of the completed or contemplated homicide. The admissibility of such evidence may be further constrained by concerns of chronological remoteness, insufficient proof of the extrinsic act, or the general concern that the unfair prejudicial effect of certain evidence might substantially outweigh its probative value in a particular case.
There was clearly sufficient proof of Camms philandering, and at least some of his activities took place relatively near in time to Kims murder. However, there was no evidence of a violent or hostile relationship between Camm and his wife, nor any evidence that he ever threatened her with harm. Camm did apparently lose his temper in 1994 following a conflict over an affair at a time when he and Kim apparently were separated. The only evidence in the record with respect to this incident, which we will discuss in more detail, was that Kim was not even present when Camm caused some minor property damage in his home. There is no evidence that Camm ever battered Kim or issued any threats, either to her directly or to others. See footnote
There was no evidence that Camm was involved in an extramarital relationship at the time of Kims murder. Ten days before the murder, Camm had apparently asked a woman with whom he had had a relationship in 1992 and 1993 whether she would be interested in having sex again, and she declined. Camm evidently had asked the same or similar question of this woman on previous occasions. There is no evidence that Camm and this woman, or any other woman, were involved in a romantic relationship at the time of Kims murder.
Nonetheless, the State argues in its brief, Under the States theory, the Defendant did have a defect in his character to allow him to engage in these acts. He did not act as a proper husband and father. Appellees Br. p. 23. This amounts to a virtual concession that the evidence of Camms extramarital sexual escapades was introduced to establish that he was a person of poor character who was more likely to commit murder because of that character. This is precisely what Evidence Rule 404(b) and volumes of case law prohibit. The law simply does not allow the State to pursue conviction of a defendant on the basis that his character is defective. This principle has been recognized for many years. It represents the cumulative wisdom and knowledge gleaned from hundreds, if not thousands, of trials conducted over the years as to the inherent unfairness of such evidence. Professor Wigmore observed 100 years ago:
The deep tendency of human nature is to punish, not because our victim is guilty this time, but because he is a bad man and may as well be condemned now that he is caught, is a tendency which cannot help operating with any jury, in or out of court. . . . Our rule, then, firmly and universally established in policy and tradition, is that the prosecution may not initially attack the defendants character.
John H. Wigmore,
A Treatise on the System of Evidence in Trials at
Common Law 1:126-27 (1904). See also Foreman v. State, 203 Ind. 324,
327, 180 N.E. 291, 292 (1932) (stating general moral character cannot be established
on direct or redirect examination by proof of particular acts or of remote
extraneous crimes.). We see no indication that our supreme court wishes to
discard Evidence Rule 404(b) and overrule numerous cases regarding the general inadmissibility of
bad character evidence. See, e.g., Bassett, 795 N.E.2d at 1053. Nor,
in our view, would such a momentous change in the law, which would
conflict with well-settled law throughout the country, be appropriate. We therefore conclude
the trial court abused its discretion in allowing the State to introduce evidence
of Camms adulterous conduct in its case-in-chief because the tie between such evidence
and motive, or anything other than simply portraying Camm as bad, is too
strained and remote to be reasonable. See id. Even if this
evidence had minimal probative value as proof of motive, its prejudicial effect substantially
outweighed such value under Evidence Rule 403, particularly given the extent to which
the State emphasized this evidence.
Closely related to the issue of the twelve women who testified as to Camms adulterous nature during the States case-in-chief, is the rebuttal testimony of a female guard at the jail where Camm was awaiting trial, who testified that Camm said to her shortly before her upcoming wedding that I still had time for one last fling. Tr. p. 6984. Clearly, this evidence is along the same lines as the inadmissible testimony of the twelve women who testified during the States case-in-chief regarding Camm sexually propositioning them. The State contends that Camm opened the door to this evidence during his cross-examination by the prosecutor; it offers no other basis for its admissibility. During cross-examination, after the prosecutor accused Camm of being self-centered, Camm said, Right now its all about Brad and Jill and Kim. Tr. p. 6723. The prosecutor then asked Camm whether he had propositioned the jail guard in November 2001; Camm said that he could not recall doing so. The State points to nothing on Camms direct examination that might have opened the door to the guards testimony. Statements made by a defendant that are elicited by the State on cross-examination cannot be relied upon to open the door to otherwise inadmissible evidence. Newman v. State, 719 N.E.2d 832, 836 (Ind. Ct. App. 1999), trans. denied (2000); see also Kien v. State, 782 N.E.2d 398, 409 (Ind. Ct. App. 2003) (holding that although a party may inquire into a collateral matter on cross-examination, the questioner is bound by the answer received and may not impeach the witness with extrinsic evidence unless the evidence would be independently admissible.), trans. denied; Rhodes v. State, 771 N.E.2d 1246, 1256 (Ind. Ct. App. 2002), trans. denied; Roth v. State, 550 N.E.2d 104, 105 n.1 (Ind. Ct. App. 1990), trans. denied. Thus, the guards rebuttal testimony was improper.
The State argues that the admission of the evidence of Camms sexual affairs and propositioning during its case-in-chief and on rebuttal does not constitute reversible error because the trial court gave admonishments and a limiting instruction regarding it. At first, the trial court told the jury that the adultery evidence has been received on the issue of motive and for impeachment purposes and that the jury should only consider it for those purposes. Tr. p. 2755. After the jury expressed confusion over how impeachment applied in the case, the trial court modified the admonishment to [t]his evidence has been received on the issues of motive and credibility. Tr. p. 2832. The trial court also gave a final instruction containing identical language. See Tr. p. 7126.
It is true that a timely and accurate admonishment is presumed to cure any error in the admission of evidence. Kirby v. State, 774 N.E.2d 523, 535 (Ind. Ct. App. 2002), trans. denied. The trial courts admonishments and limiting instruction in this case did not cure the error in the admission of evidence of Camms adultery. First, the admonishments and instruction allowed the jury to consider such evidence as proof of motive. We have held that the evidence was not admissible for that purpose.
Second, the trial court originally admonished the jury that it could consider the extramarital affair evidence for impeachment purposes. This reference to impeachment undoubtedly was confusing, because Camm had not testified to the contrary regarding any of the incidents presented during the States case-in-chief. The jury, in fact, expressed to the court its confusion over this admonishment. To the extent the trial court then altered its admonishment to say that the extramarital affair evidence could be used for credibility purposes, without any limitation or definition as to credibility, it allowed for the possibility that the jury would have felt free to use the fact that Camm regularly cheated or attempted to cheat on his wife to discount his testimony on any matter, including his account of the events of September 28, 2000. Clearly, this is the very thing that Evidence Rule 404(b), not to mention Evidence Rule 608 governing and limiting credibility evidence, See footnote are designed to prevent: judging a defendant based upon evidence of poor character and not upon evidence related to the present charges.
The State also argues briefly and without citation to authority that it was allowed to introduce the testimony of the women in order to impeach out-of-court statements Camm had made to others, including police interrogators, regarding the overall good state of his marriage to Kim at the time of the murders that the State introduced into evidence during its case-in-chief. The failure to cite authority waives this argument for our review. Bartley v. State, 800 N.E.2d 193, 196 (Ind. Ct. App. 2003). This is especially true given that impeachment is understood to refer to challenging a witness credibility with respect to testimony, not the credibility of unsworn pretrial statements. See, e.g., Blacks Law Dictionary 578 (7th ed. 1999) (defining impeachment evidence as Evidence used to undermine a witnesss credibility). Additionally, it was the State, not Camm, that injected the issue of his relationship with Kim into the trial. Clearly, the State here attempted to bootstrap otherwise inadmissible evidence regarding Camms affairs into the trial by arguing about it during opening statements and introducing out-of-court statements made by Camm wherein he had discussed his relationship with Kim. This is impermissible. See Willey v. State, 712 N.E.2d 434, 444 (Ind. 1999) (holding State could not bootstrap introduction of hearsay statements regarding murder victims fear of defendant by reading during opening argument defendants statement to the police saying he had threatened the victim, and where defendant did not attempt to portray relationship with victim as harmonious during his opening statement). We have reviewed the opening statement of Camms attorney and have found that, as in Willey, he did not place the issue of Camms relationship with Kim into the trial or attempt to portray their relationship as harmonious. Therefore, pursuant to Willey, the State was not given carte blanche to delve into otherwise inadmissible details of Camms personal life merely because he mentioned his relationship with Kim in out-of-court statements. See footnote See also Appleton v. State, 740 N.E.2d 122, 124 (Ind. 2001) (Trials should principally proceed on the basis of testimony given in court, not statements or affidavits obtained before trial.).
Finally, the State argues that the admission of this evidence was harmless. We disregard errors in the admission or exclusion of evidence as harmless unless the errors affect the substantial rights of the party. Wilson v. State, 770 N.E.2d 799, 802 (Ind. 2002) (citing Ind. Trial Rule 61). To determine whether an error in the introduction of evidence affected a defendants substantial rights, we must consider the probable impact of that evidence upon the jury. Id. The question is not whether there is sufficient evidence to support the conviction absent the erroneously admitted evidence, but whether the evidence was likely to have had a prejudicial impact on the jury. Currie v. State, 512 N.E.2d 882, 883-84 (Ind. Ct. App. 1987), trans. denied (1989). Here, although we cannot say the evidence is insufficient to sustain Camms convictions as a matter of law on appeal, we are left with the definite possibility that the jury might have found Camm not guilty of murdering his wife and two children if it had not been exposed to a substantial amount of improperly admitted and unfairly prejudicial evidence concerning his extramarital affairs and the States use of that evidence to portray Camm as a person of poor character who was more likely to commit murder because of his indiscretions.
Eleven witnesses with varying degrees of familiarity with Camm See footnote testified that he was playing basketball at a church at the time his wife and children most likely were murdered; although not all eleven were on precisely the same page as to the details of basketball games played one and a half years earlier, they all agreed that Camm was there the entire time and that even though he sat out at least one game, he did not leave the gym. The States claim in opening argument that Camm made a phone call from his house at 7:19 p.m., which would have refuted the alibi witnesses testimony that he was at the gym at that time, was found to be incorrect upon examination of a Verizon employee who testified that due to a software error concerning Indianas unusual time zones, the call was placed instead at 6:19 p.m., when Camm said he was at home and before he left to play basketball. The States gunshot residue expert, who found some gunshot residue particles on Camms clothing, clearly testified, you cant . . . make that judgment that such evidence meant Camm was present when the gun was fired. Tr. p. 4590. There was some unexplained evidence found at the scene of the crime, such as the presence of unidentified DNA found on Kims and Brads pants, and a sweatshirt found underneath Brad that had the word Backbone written on the tag that also had unidentified DNA on it. The determination of Camms guilt essentially came down to a battle of the experts, with the States blood spatter experts claiming certain blood spots on Camms shirt that came from Jill were high velocity spatter and Camms claiming it most likely was transferred by contact. The possibility clearly exists in this case that the improper admission of evidence may have consciously or subconsciously influenced which expert or experts the jury chose to believe and the weight it assigned to the testimony of Camms alibi witnesses, not to mention Camms own testimony.
Additionally, the States attempt to minimize the impact of this evidence, by noting that only thirteen witnesses testified about sexual advances by Camm out of eighty total witnesses for the State, is unavailing. Appellees Br. p. 23. As Camm points out, in addition to the testimony of the thirteen women, the State devoted the first approximately one-quarter of its lengthy cross-examination of Camm to exploring his marital infidelity. During opening argument, the State dwelled at length upon this evidence, stating in part:
You will hear the Defendant was a predator of women. Their marriage was plagued by the Defendants continuous affairs. And these arent affairs based upon admiration and love. These were sexual encounters that were disrespectful and humiliating. . . . He collected and devoured women. . . . And you will hear that while married to Kim those eleven years there were at least fifteen other women. . . . From strippers, to co-workers, to professional women, married or unmarried, the Defendant collected them just the same.
Tr. pp. 1216-17. The State began its closing argument by again referring
to this evidence extensively:
In November of 1994, the Defendant set himself upon a journey that would end in a hail of gunfire, destroying not only his family, but ultimately himself in an orgy of annihilation. In November of 1994 the Defendant looked upon the surface charms of Stephanie Neely, and having no ability to refute his whims, betrayed his wife and kids. . . . The Defendant went back to Kim where he betrayed her repeatedly and deliberately. He betrayed not only the honor of his family, but the trust of his badge and the honor of his profession. He used his power to prey upon vulnerable women, the ones they met, the ones that he stopped. The Defendant cared for no one. He sought only his pleasures and it pleased him to invite his secret lover into the very presence of Kim. . . . He preyed upon woman after woman over the years. The Defendant is a devourer of women. He cares nothing for his immediate family, or extended family. He is willing to bring down upon their heads a holocaust of extermination and destruction.
Tr. pp. 7065-67. We need say no more. Clearly, the States portrayal of Camm as an immoral, self-centered individual of poor character because of his philandering was central to its case.
Where the evidence against a defendant is far from overwhelming, as was the case here, and the determination of the jury depends in large part on assessing and weighing the credibility of witnesses, it is paramount that the defendant be protected from evidence which has only the effect of reflecting unfavorably on his character. Lehiy v. State, 501 N.E.2d 451, 456 (Ind. Ct. App. 1986), adopted by Lehiy v. State, 509 N.E.2d 1116 (Ind. 1987). Although we are cognizant of the great financial and emotional expense invested in the first nine-week trial in this case, we cannot allow these convictions to stand. We reverse. See footnote Because Camm does not assert that the evidence was insufficient to support his convictions, he may be retried. See Goble v. State, 766 N.E.2d 1, 7 (Ind. Ct. App. 2002).