State v. Garrett

• Court: Oregon Supreme Court
• Writing for the Court: DE MUNIZ, C.J.
• Citation: State v. Garrett, 350 Or. 1, 248 P.3d 965 (Or. 2011)
• Decision Date: 10 March 2011
• Docket Number: (CC081235272; SC S058620).
• Parties: STATE of Oregon, Plaintiff–Appellant,v.Michael GARRETT, Defendant–Respondent.

350 Or. 1

248 P.3d 965

STATE of Oregon, Plaintiff–Appellant,

v.Michael GARRETT, Defendant–Respondent.

(CC081235272; SC S058620).

Supreme Court of Oregon, En Banc.

Argued and Submitted Jan. 14, 2011.Decided March 10, 2011.

Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause for plaintiff-appellant. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.Laurie Bender, Laurie Bender P.C., Portland, argued the cause for defendant-respondent. With her on the brief was Ralph H. Smith, Jr.DE MUNIZ, C.J.

Defendant is charged with six counts of aggravated murder, ORS 163.095, and one count of intentional murder, ORS 163.115, for the 1988 murder of Loretha Williams. Before trial, defendant filed a motion in limine to exclude evidence relating to defendant's convictions for the 1990 assault of Lizette Moore. The trial court granted defendant's motion. The state appealed directly to this court under ORS 138.060(2),¹ seeking reversal of the trial court's order. As we explain below, we affirm the trial court's order.

Loretha Williams was murdered in 1988. Williams had been a single working mother who also sold cosmetics and “dime bags” of marijuana out of her home in Northeast Portland. Detectives found Williams's body in her residence naked from the waist down. There was a lamp cord loosely wrapped around Williams' neck, and stab wounds to her chest and abdomen. The medical examiner later determined that the cause of death was both strangulation and stabbing. The lamp cord and two knives were recovered at the crime scene.

In the initial investigation of the Williams homicide, detectives found no evidence of forced entry and nothing appeared to have been taken from the residence—Williams's checkbook, $300.00 dollars in cash, and her jewelry were undisturbed. The investigation revealed that, before her death, Williams had been seen by a number of people selling “dime bags” of marijuana out of her home; however, only a small amount of marijuana and associated paraphernalia were found at the crime scene.

Police discovered defendant's name and telephone number on a small card in the victim's house. Detectives interviewed defendant and he admitted purchasing marijuana from Williams. However, he denied any involvement with Williams's murder or of being inside her residence at any time. When the homicide occurred, defendant lived just blocks away from Williams. No charges were filed against defendant at that time.

In 1990, 17 months after the Williams homicide, defendant knocked on the door of Lizette Moore, his neighbor, and asked to use her telephone. Moore was a single working mother who lived across the street from defendant and within five blocks of where Williams had been killed. After making his telephone call, defendant attacked Moore with a three-pound-iron dumbbell, hitting her several times on the head and stopping only when Moore feigned unconsciousness. Moore, however, saw defendant take her purse. Moore's daughter called 9–1–1, reported the assault, and identified defendant as the assailant. Police later found the dumbbell and a knife in the room where defendant had assaulted Moore. However, it appeared that only the dumbbell had been used during the assault. Soon after the assault, police located defendant in the neighborhood and Moore identified him as her attacker. Defendant told the detectives that he had known Moore for several years and that he had been in her house a week before, but denied any involvement in the assault of Moore. Defendant's blood-stained clothing later was discovered at his sister's residence. Defendant was charged and convicted of attempted murder, first-degree assault, first-degree robbery, and first-degree burglary in the Moore case.

In 2002, following scientific advances in DNA testing, the knives and the lamp cord recovered in the Williams case were again tested. Blood from a knife handle revealed DNA that police later associated with an unsolved rape case in Texas. Police determined that DNA evidence on the lamp cord was defendant's, and that the frequency of defendant's DNA profile was one in 469 million African–American persons. As a result of that DNA match, detectives reopened the Williams case and reinterviewed defendant. Defendant made statements to detectives that were consistent with those that he had made in 1988.

In 2008, police arrested defendant for the Williams homicide. At that time, a detective asked defendant to identify his motive for his attack on Moore. Defendant responded that he had attacked Moore as part of a plan to rob her of drugs that he believed she was holding in her residence for local gang members. Moore, however, denied any involvement with drugs, and the detectives had found no evidence, aside from defendant's own statement, that pointed to Moore's involvement with drugs.

Before trial, defendant filed a motion in limine to exclude evidence of the attack on Moore and requested a hearing on the motion. For its part, the state moved to admit the evidence pursuant to OEC 404(3). The state intended to offer, in its case-in-chief, certified copies of defendant's convictions in the Moore case—attempted murder, first-degree assault, first-degree robbery, and first-degree burglary—as well as the testimony of Moore and the detective investigating the Williams murder. According to the state, the evidence was admissible to prove that defendant's motive and intent had been to burglarize Williams's residence and rob her. The state argued that the evidence was therefore admissible under OEC 404(3), which we set out below.

Following a hearing, the trial court concluded that evidence of defendant's crimes against Moore was not admissible to prove defendant's motive or intent in the Williams case. The trial court reasoned that “[t]he fact that the officer who testified as to [defendant's] statement about the 1990 burglary/assault used the term ‘motive’ in his questioning of [defendant] does not in fact make it a motive.” The trial court found that defendant's 1990 convictions were essentially character evidence that the jury might impermissibly use to conclude that defendant was a bad person or that, having committed crimes against Moore, it was likely defendant also had murdered Williams. The trial court went on to conclude that, in any event, under OEC 403, the evidence that the state sought to admit would, on balance, be more prejudicial than probative.²

As noted, the state appealed the trial court's ruling directly to this court. The state now argues that the trial court erred in concluding that the evidence was essentially character evidence and therefore irrelevant for any noncharacter purpose.

At the outset, we note that the state does not seek to admit the evidence of defendant's crimes against Moore to prove that defendant intentionally committed the Williams homicide. Rather, the state seeks to admit the evidence as part of its proof that defendant intended to burglarize and rob Williams and that defendant murdered Williams in furtherance of those crimes. Accordingly, we focus our relevance analysis on the issues of intent and motive to commit robbery or burglary.³ The burden to show that the evidence is relevant in that regard is on the state. See State v. Pratt, 309 Or. 205, 210, 785 P.2d 350 (1990) (burden on party offering evidence to show evidence is relevant and probative of something other than disposition to do evil). We review questions of relevance for errors of law. See State v. Titus, 328 Or. 475, 481, 982 P.2d 1133 (1999) (relevance determination reviewed for errors of law).

OEC 404(3) allows for the introduction of other crimes, wrongs, or acts as proof, inter alia, of intent or motive. OEC 404(3) provides:

“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.”

In State v. Johns, 301 Or. 535, 544, 725 P.2d 312 (1986), this court observed that OEC 404(3) is a rule of inclusion, permitting the introduction of other crimes evidence as long as the evidence is relevant for a noncharacter purpose. However, evidence of other crimes may not be introduced solely to prove that, because of defendant's character, it is more probable that defendant committed the crime for which he is on trial. State v. Johnson, 313 Or. 189, 194, 832 P.2d 443 (1992). In Johns, this court concluded that, to properly admit other crimes evidence as proof of intent, a court must consider the following six questions:

“(1) Does the present charged act require proof of intent?

“(2) Did the prior act require intent?

“(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?

“(4) Was the type of prior act the same or similar to the acts involved in the charged crime?

“(5) Were the physical elements of the prior act and the present act similar?

“(6) If these criteria are met, is the probative value of the prior act evidence substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, undue delay or presentation of cumulative evidence?”

Id. at 555–56, 725 P.2d 312. The first five questions relate to the issue of relevance. Pratt, 309 Or. at 211, 785 P.2d 350. In applying the Johns test, this court has stated that only if the answer to each of the first five questions is yes—leading to the conclusion that the evidence is relevant for a noncharacter purpose—should the court proceed to the sixth question and weigh the probative value and the prejudicial effect of the evidence under OEC 403. Id.

Because defendant concedes that questions one, two, and, arguably, three of the Johns test can be answered affirmatively, we do not consider...