State v. Goebel

• Decision Date: 13 May 1950
• Docket Number: 31079.
• Parties: STATE, v. GOEBEL.
• Court: Washington Supreme Court

218 P.2d 300

36 Wn.2d 367

STATE, v. GOEBEL.

No. 31079.

Supreme Court of Washington.

May 13, 1950

Department 2.

Rehearing Denied June 16, 1950. J. Edmund Quigley, John W. Croome, Seattle for appellant.

Charles O Carroll, Kathreen Mechem, Seattle, for respondent.

HILL, Justice.

Lee Raymond Goebel was convicted of committing rape and sodomy on a young woman hereinafter called A, on the 8th day of February, 1949 (courts I and II of the information), and of committing rape and sodomy on another young woman, hereinafter called B, on the 29th day of March, 1949 (counts III and IV of the information).

There is no contention that the evidence is not sufficient to sustain the verdict of the jury and the judgment entered thereon. Several difficult questions are posed, however, as the result of the admission of exhibit No. 17, a confession by the defendant of an entirely unrelated assault, or attempted rape, on a third young woman, hereinafter called C, on the 29th day of March 1949, shortly Before the commission of the rape and sodomy on that date of which he was convicted.

This court, in common with all others, has held that a defendant must be tried for the offenses charged in the indictment and information, and that to introduce evidence of unrelated crimes is grossly and erroneously prejudicial. State v. Thompson, 14 Wash. 285, 44 P. 533; State v. Gottfreedson, 24 Wach. 398, 64 P. 523; State v. Gaines, 144 Wash. 446, 258 P. 508; State v. O'Donnell, 195 Wash. 471, 81 P.2d 509; State v. Richardson, 197 Wash. 157, 84 P.2d 699; State v. Barton, 198 Wash. 268, 88 P.2d 385; State v. Anderson, 10 Wash.2d 167, 116 P.2d 346; State v. Kritzer, 21 Wash.2d 710, 152 P.2d 967; State v. Brown, 31 Wash.2d 475, 197 P.2d 590, 202 P.2d 461. Such evidence may be entirely lacking in probative value and be no more that a 'piece of damning prejudice,' in which case the reason and necessity for its exclusion is apparent. To the extent that an unrelated crime can be relevant and have probative value, its exclusion is based on the policy of avoiding undue prejudice.

Certain exceptions have developed to the rule of exclusion. Textwriters such as Nichols, Wharton and Wigmore, and cases too numerous to mention, list the same five exceptions, some taking the position, with Nichols, that '* * * the exceptions to the general rule 'are carefully limited and guarded by the courts, and their number should not be increased' * * *' (4 Nichols Applied Evidence 3424, § 2); while other authorities take the position that the exceptions cannot be enumerated categorically and that the five exceptions named are merely classifications into which most cases fall. These exceptions are to show (1) motive, (2) intent, (3) the absence of accident or mistake, (4) a common scheme or plan, and (5) identity.

In the present case, the appellant testified that his route of going to the restaurant where he met B on the night of March 29, 1949, was up Fourth avenue to Madison street, thence east on Madison to the place where he parked his car, thence to the restaurant. Under the guise of impeachment, the deputy prosecutor on cross-examination questioned him regarding a signed statement, admitted in evidence as exhibit No. 17, wherein he had stated that he went up Third avenue to Union and there accosted C, and that he took her in his truck east on Union, ultimately arriving at a parking lot at Eighth and Seneca, where he attempted to have intercourse with her against her will but she managed to open the truck door and escape.

The trial court overruled strenuous objections by the attorney for the defendant that this was evidence of an independent and unrelated crime. The attorney later moved to strike it on the ground that it constituted impeachment on a collateral matter, and that motion likewise was denied. It is evident that the impeachment was on a purely collateral and immaterial matter. The state was not concerned with the route the appellant followed when approaching the restaurant where he met B on the night in question, or what he had been doing prior to his arrival there. The evidence clearly should not have been admitted on the basis of the reason suggested by the state for its admission and adopted by the trial court, i. e., impeachment. People v. DeGarmo, 179 N.Y. 130, 71 N.E. 736. Our own cases on this point are reviewed in Warren v. Hynes, 4 Wash.2d 128, 102 P.2d 691. In an effort to remedy the situation, the trial court gave the following instruction:

'State's Exhibit No. 17 was admitted into evidence by the court for a strictly limited purpose, namely, for whatever bearing it may have, if any, in impeaching the testimony of the defendant regarding his movements and activities on the night in question.

'If you find that it contains evidence of the commission of any other crime or crimes by the defendant, you will totally disregard that fact. You are instructed that the defendant is on trial only for the offenses set out in the four counts of the information, and you are admonished not to consider any other offenses which may have been referred to in the evidence in determining his guilt or innocence of the crimes charged in the information.

'A defendant is entitled to be tried on the counts set out in the information. It is entirely immaterial what other offenses, if any, he may have committed.'

The defendant testified in his own behalf, admitted the commencement of sexual intercourse with A and the completion thereof with B, denied sodomy on A, and denied having knowingly committed sodomy on B; he also denied the use of any force or threats. His defense rested entirely upon his credibility. Exhibit No. 17 was admitted in evidence on the theory of impeachment and the jury was instructed that it was admitted into evidence '* * * for whatever bearing it may have, if any, in impeaching the testimony of the defendant regarding his movements and activities on the night in question.'

The jury was also instructed: '* * * If you do believe that any witness has wilfully testified falsely to any material mater, then you are at liberty to disregard the testimony of such witness entirely, except insofar as the same may be corroborated by other credible evidence in the case.'

While correct in itself, the latter statement, when coupled with the erroneous statement of the ground for the admissibility of exhibit No. 17, leaves the instructions as a whole subject to the fundamental vice that the jury was directed that they could disregard the testimony of the defendant entirely if they believed (as they must have) that he had lied on the collateral matter of the route he had taken to the restaurant where he met B.

True, the instruction says they could disregard the testimony of a witness who testified falsely on a material matter, and we have just said that the impeachment was on an immaterial matter. However, the fact that exhibit No. 17 was made the subject of a special instruction must have left the jury with the impression that the subject of his impeachment was material. Our rules of evidence are framed for ordinary minds, not logicians, and distinctions which in the heat and pressure of a trial may escape the trained mind of a trial judge, are too subtle to be imputed to a jury. We have just paraphrased what Mr. Justice Cardozo said in a case hereinafter discussed in some detail: '* * * Discrimination so subtle is a feat beyond the compass of ordinary minds. The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for psychoanalysts, that our rules of evidence are framed. They have their source very often in considerations of administrative convenience, of practical expediency, and not in rules of logic. When the risk of confusion is so great as to upset the balance of advantage, the evidence goes out.' Shephard v. United States, 290 U.S. 96, 54 S.Ct. 22, 25, 78 L.Ed. 196.

The case of People v. Rosenthal, 289 N.Y. 482, 46 N.E.2d 895, 898, is squarely in point and decisive of the case. Resenthal was charged with kidnapping a boy sixteen years of age, and of committing upon him the crimes of sodomy and assault in the second degree. The district attorney, after obtaining from the defendant on cross- examination a denial of various transactions with certain other boys, was permitted, over objection, to contradict the defendant by the testimony of the other boys. The trial judge charged that the effect of this testimony must be limited to the credibility of the defendant.

In reversing the judgment of conviction, the New York court of appeals pointed out that the defendant had testified in his own behalf and contradicted the testimony of the complaining witness, upon which conviction must necessarily have been predicated, and that his credibility was a vital factor in his defense. After discussing the cross-examination and the rebuttal testimony of the other boys, the appellate court said: 'The theory of the court was that he allowed the cross-examination and admitted the testimony on rebuttal solely on the question of the credibility of the defendant. The subjects of the cross-examination and the rebuttal testimony related to matters collateral to the issue in this case. The court charged the jury that they must not consider the evidence as any evidence of the commission by the defendant of any other crimes but that he (the court) had limited the effect of the testimony to the question of the credibility of the defendant, to the question of whether or not he would be truthful in his denial of the transactions that the boy alleged occurred at defendant's residence, to which charge the defendant excepted. The court coupled with that the further charge that if the jury believed that any witness, defen...