State v. Collins

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: RICHARDSON
• Citation: State v. Collins, 73 Or.App. 216, 698 P.2d 969 (Or. App. 1985)
• Decision Date: 17 April 1985
• Parties: STATE of Oregon, Appellant, v. Stephen COLLINS, Respondent. 146296; CA A31659.

Page 969

698 P.2d 969

73 Or.App. 216

STATE of Oregon, Appellant, v. Stephen COLLINS, Respondent.

146296; CA A31659.

Court of Appeals of Oregon.

Argued and Submitted Jan. 28, 1985.

Decided April 17, 1985.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Solicitor General, Salem.

David E. Groom, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.

RICHARDSON, Presiding Judge.

The state appeals a pretrial order excluding evidence of a prior crime committed by defendant. ORS 138.060(3). The issue is whether that evidence is admissible under OEC 404(3) to prove the identity of the perpetrator of the murder involved in this case. We hold that the trial court did not abuse its discretion in excluding the evidence and affirm.

Defendant was indicted for the murder of Ruth Maury. A hunter discovered her body on November 13, 1982, in a clearing in a heavily wooded area 20 miles east of Salem. Except for a pair of cotton socks, the body was nude below the waist. Her blouse was pulled up to her neck and shoulders, and her brassiere was undone in the front. Her pants were around her neck and shoulders, and one pant leg was tied in a knot around her neck. There were abrasions on each of her wrists and a deep cut on the back of her head. A blood-stained rag and a pair of panties containing blood and seminal fluid were found nearby. An autopsy revealed that Maury had died of asphyxiation by ligature strangulation and that the head injury was severe enough to have rendered her unconscious, but was not fatal. Vaginal, rectal and oral swabs did not reveal the presence of semen.

Maury was last seen alive by a neighbor on November 9, 1982, at 1:30 p.m., walking from her apartment to a car with a man and a young child whom she was babysitting. Although the neighbor initially provided police with a description of the man, she later stated that she did not see him well enough to provide an accurate description. It is not clear from the parties' briefs whether the description she gave matched defendant. The child was discovered at 2:30 p.m. on November 9, wandering on a road near the location where the body was later discovered. Police questioned defendant about the murder, because he had lived in the same house with Maury and some other people for a few days. He was subsequently charged with her murder.

The state sought a pretrial ruling on the admissibility of the testimony of a woman whom defendant had been convicted of assaulting in California in 1977. Defendant had become acquainted with the woman on a cross-country bus trip. When they arrived in California, defendant offered to drive her to her boyfriend's home. She accepted, and they went to the home of defendant's parents to get a car. Defendant was unable to obtain a car, so the woman called her boyfriend, who agreed to pick her up at the bus station. Defendant then suggested that they walk to his friend's house, where they could borrow a car to drive to the bus station. By this time, it was dark. On their way, defendant led the woman through a park. He abruptly punched her in the stomach, knocking her down. He then tied her wrists together with material he had brought with him, pulled her to her feet and led her into a group of trees. He forced her to lie on her back and gagged her with a pair of panty hose. He pulled her jacket off so that it hung around her wrists, pushed her sweater up and over her face and ripped open her brassiere in front. He removed her shoes, pants and underpants. He then committed oral sodomy and rape. The woman did not know whether defendant ejaculated. Afterwards, defendant cut the wrist restraints, allowed her to dress and later released her to meet her boyfriend. She promptly reported the crime, and defendant was later convicted of assault with intent to commit rape.

The state argued that the testimony was admissible to prove the identity of Maury's killer under OEC 404(3):

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." (Emphasis supplied.)

The trial court found that any similarities between the crimes were not of such a unique character as to earmark both cases as the handiwork of defendant and that dissimilarities existed between the two crimes. Finding that the probative value of the evidence was outweighed by the prejudice to the defendant, it excluded the evidence.

The scope of our review is to determine whether the trial court abused its discretion. See State v. White, 71 Or.App. 299, 692 P.2d 167 (1984), rev. den. 298 Or. 705, 695 P.2d 1371 (1985). The first step in our analysis is to determine whether the evidence is relevant to establish some fact or inference that the state is entitled to prove, that is, a fact or inference other than defendant's bad character or his propensity to commit a crime. State v. Hockings, 29 Or.App. 139, 145, 562 P.2d 587, rev. den. 279 Or. 301 (1977), cert. den. 434 U.S. 1049, 98 S.Ct. 899, 54 L.Ed.2d 802 (1978). Here, the evidence is relevant; it is offered to prove the identity of Maury's killer.

The next step is to determine whether the probative value of the evidence exceeds its inflammatory nature. State v. Hockings, supra. Four factors are relevant in that determination: (1) The need for the evidence; (2) the certainty that the other crime was committed and that defendant was the actor; (3) the strength or weakness of the evidence; and (4) its inflammatory effect on the jury. State v. Hockings, supra, 29 Or.App. at 147-48, 562 P.2d 587. The first two factors weigh in favor of admission of the evidence. The need for the evidence is great. The state argues that without it the case against defendant is built upon circumstantial evidence and conviction is unlikely. With respect to the second factor, it is undisputed that defendant committed the 1977 crime. The latter two factors, however, militate against admission of the evidence.

When evidence of a prior crime is offered to prove identity, the prior crime and the crime for which the defendant is currently on trial must be so nearly identical in method as to earmark both as the handiwork of the defendant. State v. Manrique, 271 Or. 201, 208, 531 P.2d 239 (1975). The two crimes must be committed by the use of a novel means or in a particular manner, so as to provide a proper basis for the inference that the person who committed the other crime was the same...