Prosecutor: Juries should know about past DUI homicide convictions
What are the odds?
If you roll the dice enough times, lucky seven eventually will come up.
Under the same theory, if you drive drunk enough times, something bad eventually will happen.
That’s a simplified explanation behind the commonwealth’s argument for seeking admission of prior DUI convictions in two pending York County DUI homicide trials.
The prosecution contends both drivers showed malice — a blatant and callous disregard for others’ lives — when they chose to drive drunk. And, under an exception to the “prior bad acts” statute, the prosecution wants to inform both juries of the two defendants’ past crimes.
Under state and federal law, the prosecution cannot reveal prior convictions just to establish a defendant has a propensity to break the law or is of “bad character.” And the prosecution also is barred from offering evidence that would be unfairly prejudicial to the defendant despite its value to the prosecution.
In both pending cases, prosecutor Timothy Barker argued under the exception for the admission of the evidence to establish the fatal crashes had “an absence of mistake or accident.”
Barker also referred to the exception to the prior bad acts prohibition as “the doctrine of chance.”
“The more something occurs, the more you are able to predict what the outcome will be,” he said.
In both cases, the defendants have multiple prior DUI convictions. And in both cases, the defense filed pre-trial motions to suppress that information.
In September, York County Judge John S. Kennedy issued a one-sentence order ruling Julianne Fetrow’s previous vehicular homicide, as well as her four prior DUI convictions and her attendance of court-ordered alcohol safety classes, will be admissible at her trial.
Last week, Judge Michael J. Brillhart took notice of that ruling while hearing argument on the pending prosecution of Travis Wagner Fowler. Barker argued Monday for admission of Fowler’s four prior drunk driving convictions and his attendance of court-ordered alcohol safety classes.
Brillhart is expected to rule on the suppression issue after Fowler’s call-back date of Oct. 30.
While Pennsylvania appellate courts have not ruled on this specific matter, federal courts and several states already have determined prior “bad acts” are admissible in certain cases, Barker, who is prosecuting both cases, said.
“There is a ton of case law … out of state and it supports our position,” Barker said. “They have been analyzed, just not by our appellate courts. Judge Kennedy’s ruling was clearly appropriate.”
Fetrow’s attorney, Rick Robinson, and Fowler’s attorney, Harry Ness, filed nearly identical suppression motions in Common Pleas Court.
The defense attorneys argued that admitting the previous DUI convictions:
— Would “blacken” the defendant’s character at trial;
— Does not make it more or less probable that the defendant committed the offense;
— And any “probative” (proving or disproving) value of the evidence would be outweighed by its prejudicial effect.
In Fetrow’s case, Robinson also argued admission of the evidence “would almost conclusively prevent (her) from receiving a fair trial.”
AT A GLANCE
The cases: Julianne Fetrow, 43, of Felton, is charged with third-degree murder, homicide by vehicle while DUI and homicide by vehicle — all felonies — as well as DUI, driving under suspension, careless driving and reckless driving in the death of her passenger, 53-year-old Victor E. Wolf Jr., in November 2007. Trial is set for Dec. 7 in York County court.
Travis Wagner Fowler, 26, is charged with third-degree murder, homicide by vehicle while DUI and accidents involving death for allegedly running down motorcyclist Nelson E. Newcomer, 56, of Lancaster County, in July on Route 30 East near Kreutz Creek Road. No trial date has been set.
The dispute: The prosecution and defense disagree on the admissibility as evidence of both defendants’ four prior DUI convictions, their mandatory attendance of alcohol-related counseling classes and Fetrow’s prior guilty plea to homicide by vehicle. Fetrow killed a man in May 1990, when she lost control of her car and struck a man who was fishing.
The doctrine of chance, an exception to the “prior bad acts” statute, can be argued to establish intent, malice and the absence of mistake or accident. In the Fetrow and Fowler cases, malice is the necessary element to bring the charge of third-degree murder. The commonwealth also wants to argue the defendants’ history of drunken driving shows their acts were not by “mistake or accident.”
In law, the doctrine of chance dates back at least as far as 1904 when American scholar John Henry Wigmore wrote his 10-volume Treatise on the Anglo-American System of Evidence in Trials at Common Law.
Wigmore, whose works are still referred to in the legal field, said under the doctrine of chance juries should be allowed to make the logical assumption that something recurring repeatedly did not happen by chance but by intent.
The rulings: Judge John S. Kennedy ruled Fetrow’s “prior bad acts” are admissible at trial. Judge Michael J. Brillhart is expected to issue his findings in Fowler’s case on or after Oct. 30. Couresty of By RICK LEE, Daily Record/Sunday News.
There is no Pennsylvania case law on the doctrine of chance in similar DUI homicide cases because it has not been challenged. Our facing a second or third conviction of DUI in Pennsylvania? If so contact a Pennsylvania DUI Lawyer at (877) 529-2422 to discuss you options and to take every step to prevent over reaching prosecutors from trying to admit “prior bad acts” against you and prejudice your right to be innocent until proven quilty. Contact Ciccarelli Lawyers at (877) 529-2422 or contact us by email.
