Introducing evidence of probation does not open door to details of underlying offense

Washburn student intern Aaron Freestone and I won in State v. Everett, No. 100,529 (Kan. March 29, 2013), obtaining a new trial in a Smith County manufacture prosecution.  There were several alleged errors in the case, but the KSC reversed based on improper introduction of evidence of details of prior crimes.

The state alleged, based on informant testimony, that Mr. Everett manufactured and then used the product during a two-month period (later a three-month period).  During the alleged time period, Mr. Everett was on probation and was taking periodic drug tests.  Mr. Everett introduced evidence that all of his drug tests were clean during the time period in question, casting doubt on the informant's story.  After this testimony, the state argued that defense counsel had "opened the door" to testimony regarding the details of the offense for which Mr. Everett was on probation--possession of manufacture paraphernalia.  Over defense objections, the district court allowed the cross-examination.  The KSC disagreed:

The only relevance articulated by the trial judge was the jurors' curiosity. Mere curiosity is not equivalent to materiality. The evidence must be material to the issues the jury must decide or to the rebuttal of the evidence the defense introduced.  In this case, the prior conviction is not an element of the offense, and it does not have a legitimate and effective bearing on the decision of whether Everett
unlawfully manufactured a controlled substance.

The only potential materiality of the prior conviction is to prove that Everett had the tools to manufacture methamphetamine in the past and probably manufactured methamphetamine this time, i.e., Everett had a propensity to commit the crime. This is precisely the harm K.S.A. 60-455 was designed to prevent, and Gunby clarified that evidence is not admissible if its only purpose is to establish a propensity to commit a crime. 

The evidence that Everett had been convicted of possession of drug paraphernalia with intent to manufacture methamphetamine was not material, and it was error to admit the evidence even in rebuttal. 

Some of the trial judge's comments suggest he had doubts about the admissibility of the evidence, even in rebuttal, but he felt any claim of error had been waived by the defense presenting information regarding the probation. We disagree. General information that a defendant has committed a previous crime is far different from evidence of the exact nature of the prior crime, at least under the specific facts of this case. Granted, the defense's evidence portrayed Everett in a bad light. But the State's rebuttal evidence went further and informed the jury that Everett had planned to manufacture methamphetamine on a prior occasion. This additional evidence was like putting a neon sign over Everett that read, "propensity to manufacture methamphetamine." The difference is significant, distinct, and more prejudicial than simply soiling Everett's character. For the same reasons, Everett's failure to object to the preliminary questions regarding the general nature of community corrections and the fact that Everett was on probation because he had committed an unspecified felony does not preclude our review of this question under K.S.A. 60-404.

As an aside on harmless error analysis, the KSC also noted that because the state had not argued the error was harmless, it had waived any such claim.