Going “Beyond the Bounds” of Rule 404(b) in a Case Involving the Death of a Child

About a year ago, I wrote about State v. Hembree, 368 N.C. 2 (2015), a case in which the state supreme court reversed a murder conviction based on the State’s excessive use of Rule 404(b) evidence. This month, a divided court of appeals decided a case in the same vein. The case is State v. Reed.

Facts. The majority opinion summarizes the basic facts: the “defendant went to use the bathroom in her home for a few minutes, and her toddler, Mercadiez, tragically managed to fall into their outdoor pool and drown.”

Charges and dispositions. The defendant was charged with, and convicted of, misdemeanor child abuse and contributing to the delinquency of a juvenile. She was also charged with, but acquitted of, involuntary manslaughter.

404(b) evidence. The majority opinion reveals that “two years before, defendant was babysitting another child, Sadie Gates, who got out of the house and drowned just outside of her home.” The evidence of Gates’ death was admitted at the defendant’s trial for Mercadiez’s death. Ruling on the admissibility of the evidence, the trial judge concluded that:

“There are sufficient similarities between the two [deaths] to support the State’s contention that the former incident is evidence that shows (1) knowledge on the part of the defendant of the dangers and possible consequences of failing to supervise a young child who has access to or is exposed to bodies of water; (2) absence of accident; and (3) explains the context of her statements at the scene and later to law enforcement.”

Arguments on appeal. The defendant appealed, arguing that the State presented insufficient evidence to sustain her convictions; that the evidence of Gates’ death should have been excluded under Rules 404(b) and 403; and that the evidence of Gates’ death, even if properly admitted, was used by the State too extensively and for improper purposes.

Sufficiency of the evidence. The three judges on the panel viewed the sufficiency of the evidence somewhat differently. This post isn’t about the sufficiency issue, so I won’t get into except to say (1) that generally the issue was whether the defendant reasonably expected her husband to be supervising Mercadiez while the defendant was in the bathroom, and (2) that the case contains a robust discussion about when defense evidence may be considered as consistent with, but explaining or clarifying, the State’s evidence. The upshot is that a majority of the panel viewed the evidence as insufficient.

404(b) evidence. Given the outcome of the sufficiency issue, one could argue that the portion of the opinion dealing with the 404(b) evidence is dicta. But the court devoted considerable time to the issue and I think the opinion is worth analyzing.

• The majority. The majority viewed the evidence as having been properly admitted for limited purposes, but as having been used by the State for purposes beyond those for which it had been admitted:

“After a thorough review of the transcript, we believe that the State used the evidence of Sadie’s death far beyond the bounds allowed by the trial court’s order. By our count, the State mentioned Sadie to the jury by name 12 times in its opening; by comparison, Mercadiez, the actual child this case was about, was mentioned 15. Even more concerning, during the State’s direct examination Mercadiez is mentioned 33 times, while Sadie is mentioned 28. Lastly, during closing, the State mentions Mercadiez 15 times to the jury and Sadie 12 times, with the State asserting that the “bottom line” hinged on [the idea that the defendant ”failed to supervise her daughter, just like she failed to supervise Sadie Gates”].

“[T]he prosecution clearly used the evidence of Sadie’s death far beyond the purposes for which the trial court admitted the evidence and essentially argued that defendant has a propensity to leave two-year-old girls unattended, resulting in death by drowning; this is the use forbidden by Rule 404(b).”

• The dissent. The dissent agreed that the 404(b) evidence was properly admitted, and so viewed the pertinent legal question as whether the State’s reference to the evidence in closing was so improper as to require the trial judge to intervene ex mero motu.

“The majority opinion cites no authority for the proposition that the frequency of reference to evidence admitted under Rule 404(b) throughout a trial is a pertinent consideration in assessing the alleged gross impropriety of a single comment made during a closing argument, or, indeed, on any legal issue. I would simply note that, in considering the appropriate use of Rule 404(b) evidence and in determining whether a prosecutor’s remark was so grossly improper that a trial court erred in failing to intervene ex mero motu, precedent requires that we consider the purpose and nature of statements rather than their frequency.” Especially given that the prosecutor reminded the jury of the proper purpose of the evidence in question, the dissenting judge saw no problem with the argument so severe that the trial judge was required to step in.

Analysis. A few thoughts about this opinion:

• The majority and the dissent are asking different questions. The majority is focused on whether the prosecution did something wrong by using the evidence beyond the purpose for which it was admitted, while the dissent is asking whether the trial judge did something wrong by not intervening.
• The majority and the dissent seem to have different views of the efficacy of limiting instructions regarding 404(b) evidence. The dissent emphasizes that a limiting instruction was given by the court and effectively repeated by the prosecutor, while the majority focuses on how the State used the evidence rather than on how the court instructed the jury to consider the evidence.
• I was surprised that the court didn’t address Hembree, given the similarity between the two cases.
• Like Hembree, this case raises difficult questions about line-drawing. For example, the majority was concerned that that Gates was mentioned 80% as often as Mercadiez in opening and closing. What if it had been 70%, or 60%? At what point do references to 404(b) evidence become problematic, or suggest that the evidence is being used to show a propensity for wrongdoing?

Conclusion. Rule 404(b) evidence is a persistent area of controversy and this case adds to it. The State may appeal, and if it does, I will be interested to see how the state supreme court views this case as compared to Hembree.