Evidence of Past Criminal History – Probably Not Admissable But Is It Harmless?

It is a well-settled rule that evidence of past criminal acts cannot be used to show propensity or bad character. The reason for this is that such evidence has the potential to unduly bias the jury in a criminal trial. After all, the jury may find that the defendant behaved poorly in the past so he must be guilty of the criminal charges.

The New Mexico Supreme Court case of State v. Serna deals with just that issue. Here, the Court had to determine whether Rule 404(B) of the New Mexico Rules of Evidence prevents the admission of evidence of prior convictions in a case concerning the New Mexico Imitation Controlled Substances Act (ICSA). Once that was issue was determined, the Court had to decide whether the improper admission of such evidence was “harmless error.”

The case basically involved a murder related to a drug deal gone bad. To make matters more complicated, the drugs at issue were not actually illegal drugs. Instead, the drugs were really just baking soda bringing the crimes under the ICSA.

The Defendant‘s Criminal History and the ICSA

The State filed a motion to allow testimony about two of the defendant‘s prior criminal convictions: one for possession of a controlled substance and another for credit card fraud. The State argued that the ICSA specifically allows the jury to consider evidence of prior convictions that are related to “controlled substances or fraud.”
The New Mexico Supreme Court first discussed the ICSA, explaining that it‘s directed at circumstances in which “a normally innocuous substance becomes a proxy for an illegal controlled substance.”

The ICSA also lists factors that a jury can consider, including: 1) statements made by the person who possesses the substance about its use or effect, 2) statements about how the substance can be resold for profit, 3) whether the substance is packaged in a manner similar to that used for controlled substances, 4) whether the person possessing the substance uses “evasive tactics” to avoid police detection, 5) “prior convictions, if any, of the owner or anyone in control of the object, under state or federal law related to controlled substances or fraud,” and 6) whether the substance is “substantially identical to a controlled substance.”

Rules of Evidence Still Apply

After looking at the specific language of the ICSA, the Supreme Court went on to explain that prior convictions can only be admitted if they‘re allowed under the Rule of Evidence. In other words, any evidence permitted under the ICSA would have to be permissible under the Rules of Evidence in order to make it into the courtroom.

Evidence of Prior Criminal History Under the Rules of Evidence

The Court then looked to the rule at issue, 404(B). Under New Mexico Rules of Evidence 404(B), evidence of prior criminal acts is prohibited when it‘s being used to prove a person‘s character in order to show that the person acted in accordance with that character on a specific occasion. However, under 404(B), evidence of prior criminal acts is permitted for other purposes, such as “proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.”

Rule 404(B) makes it clear that evidence of prior convictions can‘t be used to prove propensity. In other words, the evidence can‘t be used to prove that because the defendant has a bad character he was more likely to commit the crime for which he‘s currently charged.

Procedure for Admission of Evidence of Past Acts

The Court also explained that there‘s a procedure for admitting evidence under Rule 404(B). Specifically, the State has to explain why it‘s offering the evidence, and it must show the court that it‘s for something other than to prove propensity. In addition, a material issue such as the defendant‘s intent must be in dispute. Instead of following this procedure, however, the State relied only on the language of the ICSA. The Court reasoned that, as a result of the State‘s failure to abide by case law surrounding Rule 404(B) and the specific language of the rule, the State didn‘t properly offer the evidence under the Rules of Evidence.

Further, the Court reasoned that the State didn‘t properly inform the trial court of the relevance of the evidence to prove intent or knowledge. In fact, the Court reasoned that the defendant‘s “intent was not at issue in the ICSA prosecution,” and under New Mexico case law, “the question of intent or knowledge must in fact be in dispute.”
As such, the Court reasoned that the evidence of the defendant‘s prior convictions “went solely to propensity, painting defendant as a bad character from the drug world.” The Court therefore found that the admission of this evidence wasn‘t allowed.

Harmless Error?

The Court then had to determine whether the admission of this evidence was simply a “harmless error,” in which case the Court wouldn‘t reverse the defendant‘s conviction. When reviewing the trial court record, the Supreme Court reasoned that “neither side placed much emphasis on the erroneously admitted evidence during the trial.”

Indeed, the State didn‘t make this evidence a “significant part of its case against defendant.” Since the evidence against the defendant was substantial, the Court reasoned that the jury likely didn‘t rely on the erroneously admitted evidence when reaching its verdict.

In fact, the Court explained that the improperly admitted evidence likely was unnecessary to the State‘s case entirely, and proper testimony from the eyewitness had already introduced substantial evidence of the defendant‘s knowledge about the drug trade even before the prior convictions were erroneously admitted.

The Court thus concluded that although the trial court erred in admitting the evidence, the error was harmless. As such, the Court affirmed the defendant‘s convictions.


Related Reading:
Character Evidence and Self-Defense in New Mexico
Loss or Destruction of Evidence – 3 Prong Test for Dismissal of Criminal Charges
Confrontation And Victim Identifications

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