Admission of Evidence of First Wife's Death and Previous Accident to Second Wife Ok in Prosecution for Murder of Second Wife

U.S. v. Henthorn, 864 F.3d 1241 (7/26/17) (Col.) (Published) - In an appeal of Mr. Henthorn's conviction for first degree murder of his second wife, the 10th finds no abuse of discretion in the district court admitting 404(b) evidence of the suspicious death of Mr. Henthorn's first wife and his second wife previously being hit with a heavy beam. The 10th finds the evidence was relevant to prove Mr. Henthorn's plan and specific intent to kill and also to counter Mr. Henthorn's defense that his second wife accidentally fell 100 feet from a remote cliff in Rocky Mountain National Park. The 10th finds both prior incidents were "extraordinarily similar" to the charged offense. Mr. Henthorn's first wife died after they stopped alongside a remote road to change a tire that was merely low, not flat, and the car fell on top of the wife. People did CPR on her over Mr. Henthorn's protests. Mr. Henthorn made lots of inconsistent statements. A shoe print on the fender indicated someone may have pushed the car off the jack. Mr. Henthorn collected $600,000 from many life insurance policies. As for the second prior incident, in the dark at a secluded cabin, the second wife was hit with a beam while Mr. henthorn was nearby. Mr. Henhorn told inconsistent stories and had taken out life insurance for millions. The 10th notes the similarities included: remote locations with impeded communications, delayed emergency responders and reduced likelihood of accidental witnesses; Mr. Henthorn's inconsistent stories; his first wife died after 13 years of marriage, while his second wife died after 12 years of marriage; Mr. Henthorn was set to recover lots of insurance proceeds from each death; Mr. Henthorn had the women's bodies cremated; Mr. Henthorn asserted the same tragic accident defense. These similarities overshadowed the 17-year gap between the first wife's and second wife's deaths.
In the course of the decision, the 10th advises that 404(b) evidence is admissible even if it has potential to infer criminal propensity. That's okay as long as the evidence doesn't require such inferences. Here, based on the "logic of improbability," the prior similar incidents decrease the likelihood that Mr. Henthorn lacked the requisite intent, motive and plan. The 10th notes the "common sense" observation that a string of improbable incidents is unlikely to be the result of chance. The 10th finds support for the district court's conclusion that a jury could reasonably conclude Mr. Henthorn deliberately intended to kill his wives in both prior incidents. And, assuming maximum reasonable probative value and minimum prejudicial value of the 404(b) evidence, the district court did not make an obviously wrong Rule 403 balancing. Finally, the district court gave adequate limiting instructions.