State v. Hockings

• Decision Date: 10 November 1975
• Citation: 75 Adv.Sh. 3802,23 Or.App. 274,542 P.2d 133
• Parties: STATE of Oregon, Respondent, v. Colin Joseph HOCKINGS, Appellant.
• Court: Oregon Court of Appeals

Page 133

542 P.2d 133

23 Or.App. 274

STATE of Oregon, Respondent, v. Colin Joseph HOCKINGS, Appellant.

Court of Appeals of Oregon.

Argued and Submitted July 24, 1975.

Decided Nov. 10, 1975.

Phillip M. Margolin, Portland, argued the cause for appellant. With him on the briefs was Stephen A. Houze, Metropolitan Public Defender, Portland.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before SCHWAB, C.J., and THORNTON and LEE, JJ.

THORNTON, Judge.

Defendant was convicted of four counts of murder. ORS 163.115. He appeals contending that the trial court erred: (1) in admitting evidence of a prior criminal trespass; ¹ (2) in refusing to dismiss the indictment on the grounds that the state intentionally destroyed fingerprint evidence found at the scene of the crime; (3) in denying defendant's motion for judgment of acquittal; and (4) in instructing on felony murder.

We first consider the alleged error in admitting evidence of defendant's prior crime. At trial it was the state's theory that defendant was burglarizing the victims' home and decided to kill all the witnesses since one of the victims, having worked with defendant, would be able to identify him. Over objection, the state was allowed to prove that defendant entered another home 27 months before these murders were committed.

It is the general rule that the state in a criminal case may not offer evidence of the defendant's prior crimes as circumstantial evidence that he committed the crime for which he is on trial. State v. Manrique, 75 Or.Adv.Sh. 386, 388, 531 P.2d 239 (1975); McCormick, Evidence 447, § 190 (2d ed. 1972). Although such evidence is at least arguably relevant to show defendant's disposition to commit criminal acts, such proof is not permitted because the prejudice likely to follow outweighs the limited probative value. State v. Manrique, supra; McCormick, supra.

To this general rule, however, there are numerous exceptions. Our Supreme Court in State v. Manrique, supra at 389, 531 P.2d at 242, recently commented on the rationale behind these exceptions:

'Most, if not all, of the exceptions are based implicitly upon the idea that evidence of other crimes may be relevant for some purpose other than to show the probability that the defendant committed the crime for which he is being tried because he had also committed other crimes. See McCormick, supra at 447, § 190. Thus, these exceptions involve cases in which the courts recognize, in effect, that the probative value of such evidence when offered for such a purpose, outweighs the danger of prejudice to the defendant.'

In admitting the prior crime evidence, the trial court relied upon two exceptions to the general exclusionary rule, the identity and motive exceptions. Since these are the only exceptions of possible application to the case at bar, and the only two argued on appeal, we shall not consider the remaining exceptions.

The identity exception permits proof of the defendant's prior crimes to prove the identity of the perpetrator where the prior crime and the crime for which defendant is presently on trial are so nearly identical in method as to earmark them both as being his handiwork. State v. Manrique, supra; McCormick, supra. Our Supreme Court considered the scope of this 'identity' exception in Manrique, supra at 390, 531 P.2d at 242, and held that this exception is limited to situations where the two crimes were

'* * * 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 person who committed the crime for which he is being tried. (Citing cases.)'

The state sets out the following similarities between the two crimes which it argues are sufficient to earmark both as being the handiwork of the defendant and justify admission under the identity exception: (1) both were of occupied residences; (2) both entries apparently were made through garages; (3) both were committed in the early morning hours, near dawn; (4) both involved leaving the perpetrator's car near the scene; (5) both involved situations where defendant had been drinking; (6) both involved relatively minor actual thefts; ² and (7) both involved only minimal efforts by the perpetrator to hide his face from the view of those in the neighborhood.

We are not persuaded by the state's list of common elements. Since so many burglaries of occupied residences happen daily, this similarity is too common to be entitled to consideration. That both crimes involved leaving the perpetrator's car near the crime scene appears at first to be significant, but when the exact locations are considered this similarity loses its impact. Defendant parked his car in the victim's driveway while carrying out his earlier crime, whereas witnesses in the case at bar placed the killer's car around the corner from the victims' residence. That both involved minor thefts is not significant either. In fact, it is to be expected that the killer, after eliminating all witnesses, did not take anything which could link him to the killings. Neither is defendant's drinking on the occasion of both crimes deserving of consideration because this too is so commonplace. ³

That leaves three common elements entitled to consideration: (1) similar entry; (2) similar time; and (3) minimal effort to hide. These must be evaluated to determine their probative value, that is, the degree of reliability in inferring from these similarities that one person committed both crimes. This evaluation must take into account the dissimilarities as well as the similarities between the two crimes because any significant dissimilarities decrease the reliability of inferring a single perpetrator. Cf., State v. Sterling, 15 Or.App. 425, 429, 516 P.2d 87 (1973), Sup.Ct. Review denied (1974).

There are two dissimilarities between defendant's prior crime and the case at bar which must be considered. One is the length of time between the two crimes--27 months. While the length of time elapsed here alone is not sufficient reason to refuse to apply the 'identity' exception, it does decrease the probative value of the similarities. Cf., State v. Fleischman, 10 Or.App. 22, 29, 495 P.2d 277, Sup.Ct. Review denied (1972). The other dissimilarity is the great difference in the amount of violence in the two crimes: the peaceful surrender and manner of defendant in the prior crime versus the brutal, hammer-murder of the four victims by the perpetrator of these killings.

When the overall resemblance between the two crimes is evaluated, taking into account similarities and dissimilarities, we are convinced that under the most recent exposition of the Oregon rule by our Supreme Court in State v. Manrique, 75 Or.Adv.Sh. 386, 531 P.2d 239 (1975) and State v. Zimmerlee, 261 Or. 49, 492 P.2d 795 (1972), by which we are bound, we have no choice but to hold that the admission of the evidence in question was improper. The facts here do not 'provide a proper basis for the inference that the person who committed the other crime was the same person who committed the crime for which he (defendant) is being tried,' ⁴ Maurique, supra at 390, 531 P.2d at 242 and the evidence of defendant's prior crime must therefore be excluded. ⁵ Even if there were no dissimilarities, we doubt whether the similarities present here would be sufficient in number and uniqueness to warrant admission under the exception. For cases where the common elements were sufficient to justify admission, See, State v. Sterling, supra; State v. Johnson, 10 Or.App. 423, 500 P.2d 500 (1972); State v. Fuston, 7 Or.App. 436, 490 P.2d 1024 (1971), Sup.Ct. Review denied (1972).

The state also argues that the prior crime evidence was admissible under the exception allowing such evidence to show motive. The state's theory at trial and argument on appeal were that defendant was discovered by his victims and chose to kill them after remembering that the victims of his earlier crime were responsible for his apprehension. We cannot extend the motive exception this far. Virtually any convicted criminal owes his prior conviction at least in part to evidence supplied by his victims. To admit this evidence under these facts would be a substantial step toward eliminating the general rule of exclusion.

Admission of prior crime evidence under the motive exception is not proper unless the prior crime provided a direct, compelling reason for the second crime. See, State v. McDonald, 231 Or. 24, 361 P.2d 1001 (1961), Cert. denied 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399 (1962); State v. Finch, 54 Or. 482, 103 P. 505 (1909); State v. Capitan, 8 Or.App. 582, 494 P.2d 443, Sup.Ct. Review denied (1972). The prior crime evidence is inadmissible unless the later crime would not have occurred but for the earlier crime. State v. Bailey, 179 Or. 163, 178, 170 P.2d 355 (1946). Such is not the case here. At best, a prior burglary would provide a tenuous, indirect motive for such a brutal killing. There must be a stronger causal link between the two crimes than that theorized here. For instance, where the victim in a homicide case was to be called as a key prosecution witness in another case against the defendant, proof of defendant's involvement in the earlier crime was admissible to prove a motive for the murder. State v. Capitan, supra. Because such a causal link between the two crimes is not present here, the prior crime evidence was not admissible under this exception.

Having determined that the trial court erred in admitting evidence of defendant's prior burglary, we must determine whether the error was prejudicial. An error is prejudicial unless (1) there is substantial and convincing evidence of guilt and (2) the error committed very unlikely changed the result of the trial. State v. Van Hooser, 266 Or. 19, 511 P.2d 359 (1973). In the case at bar ...