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Prior misconduct negates self-defense claim

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Evidence of a defendant's prior alleged domestic violence incidents against his ex-wife shouldn't have been admitted to explain the ex-wife's animosity toward him, the Indiana Court of Appeals concluded today. However, the evidence was admissible because it was relevant to prove the ex-husband's motive to commit the domestic violence he was charged with in the instant case.

In Christopher R. Embry v. State of Indiana, No. 30A04-0906-CR-346, Christopher Embry challenged the admittance of five prior incidents of domestic violence he allegedly committed against his ex-wife, Miki. Embry was charged with Class D felony domestic battery in the instant case after he and Miki got into a physical altercation at her house in which he pushed her to the ground and hit her. Embry claimed he was acting in self-defense. The trial court initially granted Embry's motion that the previous incidents were inadmissible under Indiana Evidence Rules 404(b) and 403.

While on the stand, the defense counsel asked Miki about derogatory comments she had written about Embry on her blog. Based on her testimony, the trial court found Embry had opened the door to allow evidence of the prior incidents and allowed the state to question Miki about them. Embry was found guilty.

The state claimed the evidence of his prior acts of violence was admissible either to rehabilitate Miki's credibility or to prove Embry's motive for committing the crime. The appellate court rejected the state's first argument. Some jurisdictions have held that if the defense elicits a bias on the part of a state's witness, the state can respond by introducing the defendant's prior uncharged misconduct to explain the witness' antipathy. The judges decided not to adopt that view. Instead, they believed the use of uncharged misconduct in this manner belies the rules and purposes of witness rehabilitation.

"Offering the defendant's prior bad acts to explain a witness's animosity only reinforces - rather than disproves - the witness's disposition. Introduction of the defendant's uncharged misconduct thus violates the rule of logical refutation and has no rehabilitative value," wrote Judge Nancy Vaidik.

However, that evidence was relevant to show Embry's motive to commit the domestic battery charge. If a defendant claims self-defense and he advances a claim of particular contrary intent, it allows the state to be able to use his prior misconduct to disprove the victim was the first aggressor, the judge wrote.

"Embry's prior acts of violence against Miki evidenced his hostility toward her, which in turn was admissible to demonstrate his motive for a violent attack, which made more probable the conclusion that he assaulted her and instigated the entire physical confrontation," she wrote.

Although there was a danger of prejudice given the number of prior bad acts mentioned, the trial court gave a limiting instruction and admonished the jury that the evidence wasn't admitted to demonstrate character or prove action in conformity therewith, so there was no error in admitting the evidence.

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  1. Ah yes... Echoes of 1963 as a ghostly George Wallace makes his stand at the Schoolhouse door. We now know about the stand of personal belief over service to all constituents at the Carter County Clerk door. The results are the same, bigotry unable to follow the directions of the courts and the courts win. Interesting to watch the personal belief take a back seat rather than resign from a perception of local power to make the statement.

  2. An oath of office, does it override the conscience? That is the defense of overall soldier who violates higher laws, isnt it? "I was just following orders" and "I swore an oath of loyalty to der Fuhrer" etc. So this is an interesting case of swearing a false oath and then knowing that it was wrong and doing the right thing. Maybe they should chop her head off too like the "king's good servant-- but God's first" like St Thomas More. ...... We wont hold our breath waiting for the aclu or other "civil liberterians" to come to her defense since they are all arrayed on the gay side, to a man or should I say to a man and womyn?

  3. Perhaps we should also convene a panel of independent anthropological experts to study the issues surrounding this little-known branch of human sacrifice?

  4. I'm going to court the beginning of Oct. 2015 to establish visitation and request my daughters visits while she is in jail. I raised my grandchild for the first two and half years. She was born out of wedlock and the father and his adopted mother wantwd her aborted, they went as far as sueing my daughter for abortion money back 5mo. After my grandchild was born. Now because of depression and drug abuse my daughter lost custody 2 and a half years ago. Everyting went wrong in court when i went for custody my lawyer was thrown out and a replacment could only stay 45 min. The judge would not allow a postponement. So the father won. Now he is aleinating me and my daughter. No matter the amount of time spent getting help for my daughter and her doing better he runs her in the ground to the point of suicide because he wants her to be in a relationship with him. It is a sick game of using my grandchild as a pawn to make my daughter suffer for not wanting to be with him. I became the intervener in the case when my daughter first got into trouble. Because of this they gave me her visitation. Im hoping to get it again there is questions of abuse on his part and I want to make sure my grandchild is doing alright. I really dont understand how the parents have rights to walk in and do whatever they want when the refuse to stand up and raise the child at first . Why should it take two and a half years to decide you want to raise your child.The father used me so he could finish college get a job and stop paying support by getting custody. Support he was paying my daughter that I never saw.

  5. Pence said when he ordered the investigation that Indiana residents should be troubled by the allegations after the video went viral. Planned Parenthood has asked the government s top health scientists at the National Institutes of Health to convene a panel of independent experts to study the issues surrounding the little-known branch of medicine.

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