404(b) Evidence: How Much Is Too Much?

The state supreme court recently reversed a death sentence and a first-degree murder conviction because the State presented “an excessive amount” of otherwise admissible Rule 404(b) evidence. How much is too much?

Background. The case is State v. Hembree, from Gaston County. Seventeen-year-old Heather Catterton spent an evening with Danny Hembree doing drugs and having sex, then disappeared. Her nearly nude body was found almost two weeks later in a culvert in South Carolina. Two weeks after that, the body of another young woman, Randi Saldana, was found on a dirt road across the South Carolina line. Hembree confessed to both murders, though he also confessed to two Florida murders that seem never to have taken place.

The trial judge’s Rule 404(b) ruling. The judge denied the State’s motion to join the two cases for trial. The Catterton case was tried first. The judge ruled that evidence of the Saldana murder was admissible under Rule 404(b) as evidence of a common scheme or plan. The judge noted that both victims were white female prostitutes who died in the defendant’s home after doing drugs and having sex with him; that both bodies were dumped in South Carolina; and that the deaths took place just a few weeks apart.

The State’s evidence. Pursuant to the judge’s ruling, the State introduced evidence of the Saldana murder under Rule 404(b). The evidence regarding the Saldana killing was apparently rather extensive. The State “began to present this evidence on only the second day of the guilt-innocence phase of the trial and continued to present it on seven of the eight days it offered evidence.” The evidence included “over a dozen photographs” of Saldana’s body.

The principal direct evidence that the defendant murdered Catterton appears to have been his confession. The scientific evidence of Hembree’s guilt was not strong. In his confession, Hembree said that he killed Catterton by strangulation, but the State’s medical expert found no trauma to Catterton’s neck, found that Catterton had consumed “an amount of cocaine which could potentially have been lethal,” and did not determine a cause of death. Hembree called an expert who opined that cocaine toxicity was the most likely cause of death.

The verdict and the appeal. The jury convicted Hembree of the Catterton murder, and, after a penalty phase, returned a sentence of death. He appealed of right to the state supreme court.

The majority opinion: too much Rule 404(b) evidence. The state supreme court reversed. It did so based on “the cumulative effect of several errors,” but far and away the most significant issue – at least as I read the case – was the admission of the Saldana evidence. Writing for a four-justice majority, Justice Hudson opined that evidence of the Saldana murder was generally admissible under Rule 404(b). However, she took issue with the quantity of that evidence, stating that the court “has uncovered no North Carolina case in which . . . the State relied so extensively . . . on Rule 404(b) evidence about a victim for whose murder the accused was not currently being tried.”

In the majority’s view, this created a Rule 403 problem, especially in light of the uncertainty about the cause of Catterton’s death. It ruled that the trial judge allowed “an excessive amount of evidence about Saldana, particularly photographic evidence, when the probative value of the sum total of that evidence was substantially outweighed by the risks that it would confuse the issues before the jury, or lead the jury to convict defendant based on evidence of a crime not actually before it.”

The dissent. Justice Newby, writing for himself and Chief Justice Martin, would have affirmed. Justice Newby viewed the evidence of Hembree’s guilt as “overwhelming.” He saw the Saldana evidence as inextricably interrelated with the Catterton evidence, given that Hembree “entwined details of the two murders throughout his taped confessions.” He saw the photographs as serving distinct, legitimate purposes, such as showing where the body was found, showing Saldana’s wounds, and corroborating certain aspects of the defendant’s confession. Finally, he criticized the majority’s ruling as “unworkable” because it offered “no guidance . . . on where to draw the line, how much evidence is too much, or what particular evidence is prohibited.”

The takeaway. Justice Newby is right that the majority opinion does not draw a bright line. But perhaps it is not possible to express the rule with precision. My own best effort at boiling down the holding of Hembree is that Rule 404(b) evidence is like Ken Jeong or Danny DeVito: great in a supporting role, but not meant to be cast as the lead.

Postscript(s). Catterton’s brief obituary is here. According to this local article, the prosecution intends to retry Hembree, but not capitally. Hembree pled guilty to second-degree murder in connection with Saldana’s death. He received a sentence of 313 to 385 months in prison for that offense.

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