State v. Goebel

• Decision Date: 24 January 1952
• Docket Number: No. 31630,31630
• Citation: 240 P.2d 251,40 Wn.2d 18
• Court: Washington Supreme Court
• Parties: STATE, v. GOEBEL.

Page 18

40 Wn.2d 18

240 P.2d 251

STATE, v. GOEBEL.

No. 31630.

Supreme Court of Washington, Department 2.

Jan. 24, 1952.

Rehearing Denied April 8, 1952.

J. Edmund Quigley, Anthony Savage, Seattle, for appellant.

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

HAMLEY, Justice.

This appeal follows the second trial of Lee Raymond Goebel on charges of committing rape and sodomy on a woman on February 8, 1949 (counts I and II), and of committing rape and sodomy on another woman on March 29, 1949 (counts III and IV). At the first trial Goebel was convicted on all four counts. We reversed and remanded for a new trial. State v. Goebel, 36 Wash.2d 367, 218 P.2d 300. At the new trial, Goebel was acquitted on the two rape counts, but convicted on the sodomy counts. Judgment was entered accordingly, and defendant appeals.

Appellant first assigns as error the admission of a signed confession (exhibit 19) relating the details of an assault committed by appellant upon a third woman on March 29, 1949, just prior to the assault charged in counts III and IV.

This is the same exhibit the admission of which in the first Goebel trial (as exhibit 17) led to the reversal and remand. In the first trial, the confession of the other offense was admitted for the purpose of impeachment upon a collateral issue--appellant's route on the night in question. We held the evidence inadmissible on that basis. On that appeal, the state argued that the evidence was also admissible (1) to rebut the defensive theory, and (2) to show the plan, scheme or bent of mind of defendant. We did not pass on the merits of that contention, but held that the admission of evidence, received by the trial court on an erroneous theory, may not be justified on a proper theory advanced for the first time on appeal.

At the second trial, exhibit 19 was not offered for the purpose of impeachment or to affect appellant's credibility as a witness, as he did not testify in his own defense. Instead, the state offered the exhibit on its case in chief to show intent, motive, modus operandi, and plan, scheme or design. Over appellant's objection, the trial court admitted the exhibit as tending to show plan, scheme or design.

At the time the exhibit was received, the court instructed the jury that exhibit 19 was admitted for a strictly limited purpose and should be considered only for whatever bearing it might have upon the question of a common scheme or plan in connection with the rape charges contained in counts I and III. The jury were told that if they found that the exhibit contained evidence of the commission of any crime by appellant, 'you will totally disregard that fact.' The substance of this instruction was repeated in the court's instruction 10, given at the close of the trial.

The rule, amply documented in our previous opinion involving this appellant, is that a defendant must be tried for the offenses charged in the indictment or information, and that evidence of unrelated crimes may not be admitted. As also indicated in State v. Goebel, supra, certain exceptions to this rule of exclusion have developed. These exceptions are to show (1) motive, (2) intent, (3) the absence of accident or mistake, (4) a common scheme or plan, or (5) identity. This list of exceptions is not necessarily exclusive, the true test being whether the evidence as to other offenses is relevant and necessary to prove an essential ingredient of the crime charged. State v. Lew, 26 Wash.2d 394, 174 P.2d 291.

The only purpose of showing a common scheme or plan is to establish, circumstantially, the commission of the act charged and the intent with which it was committed. 2 Wigmore on Evidence (3d ed.) 192, § 300. Strictly speaking, the scope of this exception is limited to evidence which shows some causal connection between the two offenses, so that proof of the other offense could be said to evidence a pre-existing design, system, plan or scheme directed toward the doing of the very act charged. Wigmore, supra, p. 202, § 304. The exception has been so construed and applied in such cases as State v. Pittam, 32 Wash. 137, 72 P. 1042, involving a prosecution for embezzling funds of an employer, and State v. Cradick, 61 Wash. 425, 112 P. 491, which was a prosecution for obtaining money under false pretenses, through a conspiracy with a swindling clairvoyant.

In later decisions of this and other courts, however, the plan, scheme or design exception has frequently been held to be applicable even though the evidence of the other offense did not tend to show a design or plan to commit the specific act charged. See State v. Schuman, 89 Wash. 9, 153 P. 1084 (prosecution for accepting the earnings of a prostitute, in which testimony of other prostitutes as to identical arrangements was admitted); State v. Clamp, 164 Wash. 653, 3 P.2d 1096, 80 A.L.R. 1302 (prosecution for obtaining money by false pretenses, in which evidence of a similar crime committed in another city was admitted); State v. Brown, 31 Wash.2d 475, 197 P.2d 590, 202 P.2d 461 (prosecution for murder in connection with a robbery, in which evidence of another robbery and assault of similar nature committed later on the same day was admitted); and People v. Cosby, 137 Cal.App. 332, 31 P.2d 218 (prosecution for assault to commit rape, in which evidence that the defendant had similarly lured other women to his apartment was admitted).

In cases of the kind just referred to, it would seem that the reference to plan, scheme or design has been merely a means of characterizing the similarities between the other offense and the acts charged. In each of these cases, the evidence admitted actually fell under one of the other recognized exceptions--motive in the Cosby case, and intent in the other cases.

It seems to us that, in the instant case, the trial court likewise employed the term 'plan, scheme or design' to indicate the general similarity of the offenses and hence the relevancy of this evidence in proving an essential ingredient of the crime charged. The fact that appellant may have committed a similar offense on March 29, 1949, certainly did not tend to establish a design or plan to commit the offense charged, perpetrated later that day. Much less did it tend to prove a design or plan to commit the offense charged to have occurred on February 8, 1949. However, because of the marked similarity between these offenses, this evidence may nevertheless have been relevant and necessary to prove some essential point which the state was required to establish.

We turn, then, to this further question of relevancy and necessity. The points of similarity between the facts testified to under the rape counts, and the facts related in appellant's confession of a third rape, are these: (a) Appellant met the woman in downtown Seattle late at night and struck up a conversation by identifying himself as a bus driver and claiming to know the woman accosted; (b) appellant offered to take the woman to her home in his truck; (c) when the invitation had been accepted, he drove, instead, to a secluded spot and parked the truck; and (d) he then, through the use of force by placing his hand on the woman's neck, committed one or more acts of rape in the cab of the truck.

These points of similarity do not tend to prove that the complaining witnesses involved in counts I and III did not consent to the assaults; nor does such similarity make the exhibit admissible for the purpose of showing a lustful disposition. It seems to us, however, that the similarity of these factors does tend to establish two facts which the state had to prove: Appellant's identity as the person who committed the acts charged in counts I and III; and the fact that those acts could be accomplished in the cab of the truck, as alleged.

Our next inquiry is whether the relevancy of the evidence as to the other offense, and the necessity of introducing such evidence to prove the state's case, were outweighed by the prejudice which would result therefrom. In State v. Goebel, supra, we pointed out that evidence of other crimes should not be admitted, even though falling within one of the recognized exceptions to the rule of exclusion, where not essential to the establishment of the state's case, when the trial court is convinced that its effect would be: '* * * to generate heat instead of diffusing light, or, as is said in one of the law review articles above referred to, where the minute peg or relevancy will be entirely obscured by the dirty linen hung upon it.' 36 Wash.2d at page 379, 218 P.2d at page 306.

The exhibit was admitted in the course of the state's case in chief. It was not then known whether Goebel would take the stand, and if so, whether he would admit the occurrences, but claim consent, as he had done at the first trial. (As it turned out, Goebel did not take the stand at the second trial.) Hence, the state was warranted in presenting all available relevant testimony tending to establish appellant's identity as the man who committed the offenses covered by counts I and III. Moreover, there was good reason for believing, before the exhibit was submitted, that appellant would contend that the acts could not be committed in the cab of the truck. Such belief was justified by the course pursued by appellant's counsel during extensive cross-examination of the prosecuting witnesses.

Exhibit 19 was introduced in connection with the rape counts. It appears not to have been seriously prejudicial to appellant as to those counts, since he was acquitted on both rape counts. It hardly seems likely that the exhibit could have been more prejudicial as to the sodomy counts, in view of the court's instruction that the exhibit was to be considered only as to the rape counts.

The trial court expressly ruled that the facts related in exhibit 19 were sufficiently relevant and necessary to the establishment of the state's case to justify the admission of the exhibit...