Memorandum 

 

From: MARK KING LEBAN, COUNTY COURT JUDGE DOMESTIC VIOLENCE DIVISION

Subject: ADMISSIBILITY OF COLLATERAL CRIMES

 

Please see the attached decision (Boroughs v. State), which I thought was of some significance with regard to so called "Collateral Crimes" in domestic violence cases. While the primary offense charged in Boroughs is sexual battery, there is also a misdemeanor battery (domestic related) charged. The Fifth District rejects a challenge to the admissibility of collateral crimes evidence. While some of the "bad acts" in question involved the offenses actually charged, the court was faced with other "bad acts" and testimony that "involved the overall relationship between Boroughs and the victim."

Apparently, unrelated to the acts charged were incidents of stalking the victim while at work, making her go on the defendant's newspaper route in the middle of the night, preventing her from having friends, and becoming enraged if she spoke to other people. The Fifth District holds that all of this evidence (uncharged) was indeed admissible, including evidence that the defendant "threatened to kill her if she tried to leave him or if she called the police." The rationale for permitting the evidence appears in the last paragraph of the decision and includes "the entire pattern of behavior, or relationship between the parties, becomes relevant to determine if 'coerced submission' to the act existed, or whether the act occurred as a result of the victim's consent. Since the testimony was relevant on the sexual battery charge, no error existed in admitting it."

The case is noteworthy for the Fifth District's recognition of the concept that the so called "collateral crimes" or "bad acts" could be relevant even though not charged with respect to the sexual battery. Since "consent" is a defense to the sexual battery charge, the "bad acts" evidence was deemed relevant to refute any defense of "consent." We know that consent is not a defense to simple battery. Nevertheless, I believe that the Boroughs decision is useful for the general rationale that uncharged conduct is indeed relevant to place the "relationship" of the parties in context.

Two other recent decisions support this concept, even outside the rationale of "consent" in sexual battery cases. Thus, in Brunner v. State, 21 F.L.W. D2612 (Fla. 4th DCA Dec. 11, 1996), the Fourth District, while reversing on another ground, upheld the trial court's introduction of evidence of stalking activity on the rationale that it was causally related to the murder charge as the murder charge arose from a stalking incident turned violent. "It was also relevant to the issue of [defendant's] mental state at the time of the killing." See also the recent case of Livingston v. State, 21 F.L.W. D1887 (Fla. 4th DCA Aug. 21, 1996) where, again while reversing on another ground, the court upheld the introduction of evidence that the defendant left notes on the aggravated battery victim's car and attempted to speak with her several times prior to the night of the charged aggravated battery. The court held that "the evidence of defendant's prior contacts with Martin [the victim] was admissible under section 90.402 as being relevant to and inseparable from the battery." Again, the rationale for introducing the uncharged incidents was that they placed the charged incident "in the context of [defendant's] feelings for [the victim] and explained the strong emotions which may have ignited the battery."

These, and other recent cases, appear to have widened the parameters for introduction of so called "collateral crimes" in the context of domestic battery crimes.