Memorandum
To: Andrew Solmark, Assistant District Attorney
From: Applicant
Date: July 30, 2019
Re: State v. Martin—other-acts evidence and impeachment
Overview
The traffic-stop impersonation presents the strongest substantive other-acts argument because it closely resembles the alleged deliberate misuse of another person's identity and rebuts the announced computer-error defense. The bar incident should not be offered for either proposed purpose. The call to Martinez strongly supports impeachment as an effort to induce dishonest testimony; its substantive use requires a more careful distinction between a similar-act theory and a case-specific inference from attempted concealment. The two rules serve different purposes, and admission under one does not automatically establish admission under the other.
I. Substantive use under CRE 404(b)
A. Governing principles
State v. Landreau prohibits using a defendant's other misconduct merely to establish bad character and infer that she committed the charged crime. It permits other legitimate purposes, including intent, knowledge, and absence of mistake. The stated list is not exhaustive, but merely reciting several labels does not identify a valid inference. The court examines the degree of similarity and temporal relationship to determine whether the evidence actually supports the asserted nonpropensity purpose.
Landreau found a prior deceptive mortgage application probative against an innocent-involvement defense to passing bad checks. The transactions were not identical, but shared deception for advantage in dealings with financial institutions. It rejected an unrelated bar assault because violence or intoxication did not support the relevant knowledge or intent. That distinction supplies a useful model here.
Martin's counsel has expressly said the stores mixed up similar names and Social Security numbers and that Martin intended to apply only in her own name. The two-digit similarity between the numbers provides a factual basis for that position. The State must therefore connect the other acts to deliberate identity use or another relevant nonpropensity inference, rather than argue that Martin deserves conviction because she behaves badly.
B. Traffic-stop impersonation
Three months ago Martin reportedly gave an officer her sister's name and driver's license when stopped for a broken tail light. Her own license had expired. The State has a good-faith basis to believe this happened, although there has been no prosecution or conviction. Landreau's rule concerns conduct, not only adjudicated convictions, so the lack of charges does not categorically exclude the incident. We should establish it through competent evidence, such as the stopping officer, rather than rely on the prosecutor's assertion at the hearing.
The use of another person's identifying document to obtain a personal advantage resembles the charged use of Martinez's name and number to obtain credit. Avoiding the consequences of an expired license is different from purchasing merchandise, but Landreau does not require identity of transactions. The common feature is a purposeful substitution of identity inconsistent with innocent confusion. The recent timing further supports relevance.
The defense will contend that the stop involved a sister's identification, not a computer application, and may itself have been a mistake. That prevents treating it as conclusive proof of intent. Nevertheless, presenting another person's license along with the other name while one's own license is expired supports an inference of deliberate deception. The State should explain that narrow connection and avoid claiming the act establishes every possible CRE 404(b) purpose. There is no need to assert a distinctive signature identifying the credit applicant if the actual issue is intent or absence of mistake.
The court likely will admit this incident for those limited purposes if the conduct is adequately established. We should seek an instruction preventing the jury from using it merely to infer that Martin is a dishonest person who probably committed identity theft. The State also should remain prepared to address prejudice and the danger of a distracting collateral inquiry, rather than assume a permissible purpose requires unrestricted admission.
C. Intoxication outside the Blue Moon Bar
Two months ago an officer observed Martin severely intoxicated, shouting, and then leaving by cab after a warning. No false identity, deceitful statement, financial transaction, or appropriation is described. The incident's relative recency does not supply the missing substantive connection.
Landreau's rejected bar altercation is closely analogous. Intoxication or an argumentative encounter with police does not rebut a claim that stores made computer errors. Offering the incident as evidence of intent, plan, or knowledge would invite precisely the bad-character inference CRE 404(b)(1) prohibits. The State should not offer it as substantive similar-acts evidence. A desire to portray the defendant unfavorably is not a proper purpose, and the fact that an officer could testify does not make the testimony relevant to the charged mental state.
D. The telephone call to Martinez
Two weeks ago a woman identifying herself as Bernice threatened consequences if Martinez testified and suggested that Martinez should instead say she had authorized the accounts. The recorded number was linked to Martin's FastCom account. Those facts support attribution, though the defense may challenge whether the caller was Martin. We should develop the witness's account and telephone linkage rather than assume the shared first name alone proves identity.
As a similar prior identity-theft act, this is weaker than the traffic stop. It occurred after the account applications and involved witness pressure rather than use of another person's identity. If the court applies Landreau's similarity inquiry narrowly to the State's announced similar-acts theory, it may reject the incident because threatening a witness is not sufficiently similar to opening credit accounts. A threat viewed only as violence would be especially vulnerable under Landreau's treatment of the bar incident.
There is, however, a more specific nonpropensity argument: this call concerned the exact charged accounts and sought to replace the innocent computer-error account with a fabricated permission explanation. An effort to suppress or falsify testimony about one's own alleged transactions can support a case-specific inference of consciousness of guilt and knowledge, without relying on a general tendency to be violent. Landreau states that its purposes list is nonexclusive. We should present this as a distinct argument and explain the link to the charged conduct, rather than simply claim that every threat proves fraudulent intent.
The defense can answer that attribution is uncertain, that anger or fear of an unjust conviction can motivate a threat, and that the jury may overvalue inflammatory intimidation. Those points affect the strength and fairness of the inference. The substantive ruling is less predictable than for the traffic stop: exclusion is a real risk on the narrow similar-act theory, while the specific request for false permission testimony supplies a substantial alternative argument. The objective recommendation is to brief both the limitation and the case-specific purpose, not promise admission simply because the call is damaging.
II. Impeachment if Martin testifies
A. Proctor's approach controls
Under State v. Proctor, a witness who takes the stand puts credibility in issue, and CRE 608(b) permits appropriate cross-examination about specific conduct probative of truthfulness or untruthfulness. The court rejected both a sweeping bad-character approach and a narrow rule limited to affirmative false statements. It adopted a middle approach covering conduct seeking personal advantage through dishonest means, including taking another's property or encouraging dishonesty in others.
We must use that supplied Columbia rule, not assume the narrower approach followed in some outside jurisdictions controls. Nor does the absence of a conviction defeat conduct-based questioning. The contemplated method is focused cross-examination of Martin if she testifies. Permission to ask does not automatically establish a right to prove every denied collateral act with outside witnesses solely to attack character under CRE 608(b). Any separate substantive ground, such as the traffic-stop CRE 404 argument, must stand on its own.
B. The traffic stop is probative of truthfulness
Proctor specifically identifies providing false information to a police officer as conduct bearing on credibility. Martin's alleged substitution of her sister's name and license to avoid the expired-license problem falls directly within that reasoning. If she testifies, the State has a strong basis to ask, in good faith and subject to the court's control, about that conduct.
The defense's description of the event as a mistake raises a factual dispute, not a reason that intentional impersonation would be irrelevant to veracity. Questions should accurately identify the supported act rather than imply a conviction that does not exist. The court can prevent unnecessary details about the traffic violation unrelated to the deception.
C. The bar incident does not qualify
Proctor excludes various acts, including violence and drug-related conduct, because bad behavior alone does not establish untruthfulness. Visible drunkenness and shouting at an officer without a deceitful component likewise do not show personal advantage through dishonest means. Taking a cab after a warning supplies no such element. We should not ask about this incident as character impeachment merely because Martin testifies.
D. The witness call qualifies through attempted dishonesty
The important feature is not only the threat but the suggestion that Martinez falsely testify to permission for the accounts. Proctor describes persuading a witness to lie as proper CRE 608(b) inquiry, relying on State v. Voorhees. A defendant attempting to secure exculpatory testimony through another person's dishonesty acts for personal advantage in a manner directly relevant to credibility.
The defense argues the call is only evidence of violent character. We should answer by distinguishing intimidation alone from the explicit effort to manufacture authorization testimony. The latter supports questioning even if a court declines to admit the incident as sufficiently similar substantive evidence under CRE 404(b). Attribution remains necessary, and questioning should not assume unsupported details, but the first-name identification and account-linked number provide a meaningful good-faith foundation.
The recommended position is therefore to seek substantive admission of the traffic impersonation, exclude the bar episode, and carefully brief the narrower and alternative substantive theories concerning the witness call. For impeachment if Martin takes the stand, seek permission to inquire about the impersonation and attempted false testimony, while omitting intoxication. Keeping the two rules and their distinct inferences separate will strengthen the State's presentation and avoid a character-based overreach.