Unpublished Disposition, 931 F.2d 898 (9th Cir. 1991)

MEMORANDUM^* 

Avyleni Helen Greyeyes appeals her conviction of the lesser-included offense of second-degree murder of her estranged husband on the grounds that the district court improperly admitted evidence of (1) the decedent's life insurance policy, (2) Greyeyes's extramarital affair, and (3) a prior collision between decedent and a truck driven by Greyeyes. We reverse and remand.¹ 

BACKGROUND

Greyeyes was indicted on one count of first-degree murder in violation of 18 U.S.C. §§ 1111(a), 1153 (1988) (murder of Indian by another Indian within Indian country subject to exclusive federal jurisdiction). She had struck her estranged husband, Thomas Tom, with a pickup truck inflicting fatal head injuries from which he died the following day. She pled not guilty, claiming that Tom's death was accidental, while the government contended it was premeditated.

It is undisputed that, on the evening of incident, Greyeyes stopped by Leroy Thomas's trailer where Tom was socializing with friends to obtain grocery money from him. Their six year-old daughter, Thelmasina, waited in Greyeyes's truck which was parked in the cul-de-sac outside the trailer. Tom came out into the street where he and Greyeyes began to quarrel. According to the government's evidence, Greyeyes got back into the truck where she and Tom struggled over the car keys. There was also evidence that each was tugging on the driver's side door. With the keys apparently in hand, Tom turned from the truck to walk away. Greyeyes momentarily went after him until she realized she possessed another set of keys in her purse back in the truck. Tom followed her back to the truck and the arguing continued. Finally, Greyeyes started the truck with the spare keys, as Tom walked away. Then, according to government witnesses, Greyeyes sped forward--some said hitting a dip in the road--ultimately striking Tom. Greyeyes claims that hitting the dip caused her to reach across the seat to keep her daughter from falling, which caused the steering wheel to slip from her hands and the truck to veer momentarily out of control.

Prior to trial, and again at the appropriate times, Greyeyes objected to: (1) the introduction of evidence that the decedent had a life insurance policy of which Greyeyes was the beneficiary; (2) the introduction of evidence that she had extramarital sexual relations while estranged from Tom; and (3) the introduction of evidence that one year prior to Tom's death he was struck by his own pickup truck while driven by Greyeyes.² 

Greyeyes was convicted of the lesser-included offense of second-degree murder.

DISCUSSION

We review decisions regarding the relevance of evidence for an abuse of discretion. United States v. Kessi, 868 F.2d 1097, 1107 (9th Cir. 1989). Likewise, " [t]he admission of evidence of other crimes pursuant to Fed.R.Evid. 404(b) is reviewed for abuse of discretion." United States v. Conners, 825 F.2d 1384, 1390 (9th Cir. 1987). Finally, a district court's balancing of the probative value of evidence against its unfairly prejudicial effect is reviewed for an abuse of discretion. Kessi, 868 F.2d at 1107.

The government contends that it introduced evidence of the prior collision to prove intent and lack of mistake or accident. One of the government's theories was that " [t]he jury could logically infer that the same woman could not have hit the same man with the same type of vehicle under the same combative circumstances only one year apart if she did not intend to hit him." The government explains that it offered the evidence not to show violent propensity, but in fact, to show "deliberate and premeditated murder."

Under United States v. Miller, 874 F.2d 1255 (9th Cir. 1989) prior bad acts used for an admissible purpose (i.e., not to prove bad character) are admissible if: (1) there is sufficient evidence for a jury to find that the defendant committed the "other" act; (2) the "other" act is not too remote in time from the commission of the time of the crime charged; (3) in some case, the "other" act, is similar to the offense charged; and (4) the "other" act is used to prove an element of the charged offense that is a material issue in the case. Id. at 1268.

We know that Greyeyes killed her husband; the sole issue was her intent. The government sought to prove that she intended to kill him--indeed, that she planned to do so. It was the government's burden to prove the requisite intent. However, there was no evidence whatsoever that the first time Greyeyes hit her husband, she did so intentionally. Thus, we essentially have a double bootstrapping problem. The government used the first incident to prove that Greyeyes intentionally committed the second, while relying on the commission of the second to support the inference that the first was intentional, notwithstanding the absence of any evidence that it was. This is simply impermissible. The relevance of the prior collision depends upon it having been intentionally committed. As Greyeyes was never prosecuted for the first collision, and she has consistently maintained that it was accidental, her state of mind in the prior incident may have been "wholly innocent." See United States v. Bettencourt, 614 F.2d 214, 217-18 (9th Cir. 1980).

Moreover, the evidence should have been excluded under Fed.R.Evid. 403 as any probative value was substantially outweighed by unfair prejudice. As Greyeyes contends, the similarity between the incidents, in the absence of any showing of intent in the first one, creates the unfair prejudice. Indeed, the Supreme Court has acknowledged that the strength of the evidence establishing the similar act is one of the factors courts may consider in undertaking their Rule 403 balancing. See Huddleston v. United States, 108 S. Ct. 1496, 1501 n. 6 (1988). As the government concedes, the first act is only similar for these purposes if done with the same intent. The lack of proof that the first incident was intentional makes the evidence of the first collision extremely weak and, therefore, inadmissible under Fed.R.Evid. 403.

Having concluded that it was an abuse of discretion to admit evidence of the prior collision, we must undertake a harmless error analysis. Only if the error was not harmless do we reverse. See United States v. Brown, 880 F.2d 1012, 1016 (9th Cir. 1989) (citations omitted). An error of nonconstitutional dimension is "not harmless unless it is more probable than not that the erroneous admission of evidence did not affect the jury's verdict." Id. (citation omitted).

We cannot say that it is more probable than not that the admission of the prior collision did not affect the jury's verdict. There was much plausible evidence supporting the inference of heat of passion or an accident, which could have lowered a second-degree murder to manslaughter or an acquittal. To the extent that the prior collision was presented to the jury as major evidence of intent to kill, the danger is too great that it caused the jury to find the requisite intent to support a second-degree murder conviction.

Through his employment with the Peabody Coal Company, Tom had life insurance coverage of $30,000 for natural death and $60,000 for accidental death. Greyeyes concedes she knew of the policy's existence, but contends there was no direct evidence she knew of its terms or that she was decedent's named beneficiary.

She argues that the policy's introduction to prove a possible motive for killing decedent was both irrelevant and prejudicial. Relying on some state authority, she claims that such evidence is inadmissible absent evidence that (1) she knew of the policy, and (2) she knew she was the named beneficiary. See 1 C. Torcia, Wharton's Criminal Evidence, Sec. 115 at 405 (1985); People v. Mitchell, 105 Ill. 2d 1, 5-6, 473 N.E.2d 1270, 1274-75 (1984), cert. denied, 470 U.S. 1089 (1985).

As the government had procured an indictment for murder in the first degree, it was entitled to prosecute that theory. To that extent, motive, although not technically an element of first-degree murder, relates heavily to premeditation which is an element of that crime, and therefore invests motive evidence with relevance. Cf., e.g., Brown, 880 F.2d at 1014-15 (prior bad act evidence allowed to show motive only when motive is, in turn, relevant to establishing an element that is a material issue) (citation omitted). One of the government's theories on motive was that Greyeyes killed her husband for pecuniary gain in the form of life insurance proceeds.

The ultimate relevance of the insurance policy, and Greyeyes's status as its beneficiary, may be conditioned on the existence of sufficient evidence to allow a reasonable trier of fact to conclude that Greyeyes knew or assumed she was the policy's named beneficiary. Because Greyeyes was acquitted of first-degree murder and we find it necessary to reverse on other grounds, we need not decide whether there were sufficient facts to justify admission of the life insurance evidence. Greyeyes may not be retried for first-degree murder. See Green v. United States, 355 U.S. 184, 190 (1957) (conviction by jury of lesser-included offense of second-degree murder regarded as implicit acquittal of first-degree murder thereby making retrial on latter charge impermissible under Double Jeopardy Clause).

While the government does not concede that the evidence is irrelevant to anything but the motive supporting a first-degree murder charge, we do not believe that the life insurance evidence is relevant in any other way under the circumstances of this case.³  Greyeyes, accompanied by her six year-old daughter, went to see Tom for money. Having called him out from the trailer in which he was socializing with friends, the two began to quarrel. There was some struggle over the keys to Greyeyes's truck. She finally sped away hitting Tom as he walked from the truck. Since her acquittal of first-degree murder eliminates the relevancy of premeditation, the likelihood that immediately after a quarrel with her husband Greyeyes ran him over for the proceeds of his insurance policy is so remote that any relevancy to second-degree murder is clearly outweighed by the unfairly prejudicial impact of such evidence. Assuming that upon retrial the same foundation is presented for the introduction of the life insurance evidence, we hold it would be an abuse of discretion to admit it.

To show Greyeyes's motive and intent to commit murder, the government introduced the testimony of Jerry Antone, who claimed to have had sexual relations with Greyeyes two or three times while she was estranged from Tom. In attempting to link this affair to motive and intent, the government introduced the testimony of Carol Todecheene, one of Greyeyes's friends. Todecheene testified that she was aware that Greyeyes was filing for divorce from Tom and that Greyeyes said she could not wait to get Tom out of her life, but that Tom would not let her go.

Like the life insurance evidence, testimony regarding Greyeyes's extramarital affair appears relevant to motive which is, in turn, relevant to premeditation, an element of first-degree murder. But again, we need not decide whether the trial court abused its discretion in admitting the evidence; if the same facts are presented in support of admitting the extramarital affair evidence upon retrial, it will be inadmissible for the same reasons as pertain to the life insurance evidence. See supra.CONCLUSION

We conclude that the district court's admission of evidence of the prior collision was reversible error. We need not decide whether the district court erred in admitting evidence of the life insurance policy or extramarital affair because Greyeyes was acquitted of first-degree murder. That evidence, even if admissible as to the first-degree murder charge, was proper only to that charge and absent additional evidence may not be admitted on a retrial limited to second-degree murder and lesser-included offenses.

REVERSED and REMANDED for a new trial.