In a Burglary Prosecution the State Cannot Rely Upon the Domestic Abuse Prior Bad Acts Statute to Introduce Evidence of those Prior Bad Acts.

State v. McCurry,Sr., Minn.Ct.App., 8/18/2009.  As G.M. was getting ready for work, an intruder, whom G.M. afterwards identified as her ex-husband, Mr. McCurry, broke into her home.  The intruder stole G.M.’s wallet and left.  G.M. used a ruse by which to meet with Mr. McCurry later that day, at which time the police arrested him.  The state charged Mr. McCurry with burglary and theft.

The McCurry’s had had a contentious relationship and things didn’t let up once the trial started.  The fireworks started right away when the prosecutor asked G.M. what happened after the two of them had met and she became pregnant.  She volunteered that soon after that Mr. McCurry went to prison for attempted criminal sexual assault.  It continued when the state wanted to introduce evidence of all the prior bad acts between them, which the state said was admissible under 634.20.  This statute has noting to do with burglary:

634.20 EVIDENCE OF CONDUCT.

Evidence of similar conduct by the accused against the victim of domestic abuse, or against other family or household members, is admissible unless the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

G.M. was prepared to testify to various instances of physical abuse and sexual infidelities during the marriage.  She was also ready to testify about three incidents that occurred shortly before the burglary; in one Mr. McCurry came to her house, argued with her, pushed her and smashed her phone, causing her to flee.  In another, he came to her house through the kitchen window and “stayed with her overnight.”  In the third, he phoned her and made a veiled threat, after which G.M. discovered damage to her car.  The trial court ruled that G.M. could testify to these three incidents and could testify generally that she and Mr. McCurry had had problems.  This ruling was the main issue on appeal.

The appellate court concludes that 634.20 applies only to trials that involve charges of domestic abuse.  That being so, the appellate court looked for other justifications for the admissibility of G.M.’s testimony.  The court concludes that her general evidence about tensions and disagreements was admissible as relationship evidence without regard to the statute or to a Spreigl analysis.  On the other hand, the three specific incidents were admissible only under a Spreigl, analysis.  Since the state didn’t believe it needed to comply with Spreigl, it did not give Mr. McCurry the proper notice; testimony about the three specific incidents was thus not admissible.  Unfortunately for Mr. McCurry, the error was harmless.

Mr. McCurry also complained that the prosecutor commented on his failure to call alibi witnesses.  The appellate court says that such comments are prosecutorial misconduct, but this misconduct was harmless.