State v. Hockings

• Decision Date: 11 April 1977
• Citation: 562 P.2d 587,29 Or.App. 139
• Parties: STATE of Oregon, Respondent, v. Colin Joseph HOCKINGS, Appellant.
• Court: Oregon Court of Appeals

Page 587

562 P.2d 587

29 Or.App. 139

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

Court of Appeals of Oregon.

Argued and Submitted Feb. 24, 1977.

Decided April 11, 1977.

Phillip M. Margolin, Portland, argued the cause for appellant. With him on the brief were Nash & Margolin, Portland.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was James A. Redden, Atty. Gen., Salem.

Before SCHWAB, C.J., and TANZER and RICHARDSON, JJ.

RICHARDSON, Judge.

Defendant appeals his conviction by a jury of four counts of murder. The convictions arose from the killing of a married couple and two young neighbor boys who were staying in their home. Defendant had previously been convicted of the crimes but was retried following reversal of his convictions by this court. State v. Hockings, 23 Or.App. 274, 542 P.2d 133 (1975), Sup.Ct. Review denied (1976).

Defendant claims the court erred (1) in refusing to suppress fingerprint evidence or dismiss the indictment on the ground the state destroyed some of the fingerprint evidence found at the death scene; (2) in allowing evidence the defendant attempted to buy some marijuana and used marijuana the night before the crime; and (3) in giving an instruction on felony murder based on commission of a burglary.

The murders occurred sometime between 6:30 and 7:15 a.m. in the home of the married couple who were two of the victims. The investigating officers made 87 'lifts' of possible fingerprints in various parts of the house, some of the lifts were identified as the fingerprints of the defendant. In subsequent statements to the police he denied ever being in the victims' house.

The 'lifts' taken were categorized in two groups: those having identifiable characteristics which could be matched to human fingerprints and those having no such characteristics being simply watermarks or grease spots. Of the 87 'lifts' 62 were destroyed by the sheriff's office as being useless for fingerprint comparison purposes. The remaining 25 lifts were identified as fingerprints left by specific persons including the defendant.

In his first assignment of error defendant claims some of the lifts taken at the crime scene were erroneously destroyed without allowing the defendant to examine them. He argues that at least six of the 62 lifts eventually characterized as useless watermarks or grease spots had been compared with known fingerprint impressions taken from specific persons, implying they possessed identifiable characteristics enabling their use as fingerprint evidence. Defendant concluded that these six prints might show that someone other than defendant was in the house where the murders took place and would tend to produce a reasonable doubt as to defendant's guilt.

Defendant asserts two bases for his argument that the lifts should have been supplied to the defendant. He asserted the same two contentions in his first appeal, State v. Hockings, supra. First, he contends discovery of the lifts is required by ORS 135.815. In the first Hockings appeal we dismissed this contention holding that the lifts were not included in the subject matter of the discovery statute. We adhere to that ruling.

Second, defendant contends the state must supply this evidence under the rules announced in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In the first Hockings appeal in discussing the application of Brady we said:

'Because of the destruction of the questioned 'lifts,' we are forced to choose between two alternatives: dismissal, and overruling defendant's contention, knowing that there is some possibility, however slight, that the destroyed evidence would have been favorable. However, because of the strong showing that the 'lifts' were useless and of doubtful materiality, we reject defendant's assignment of error because his argument is based on pure speculation. First, we are asked to assume that Officers Zion and Rice were both mistaken that the lifts were useless, which is highly unlikely given the 27 years of experience between them. Next, we are asked to assume that the newly uncovered print would not be one of the victims of some other expected person. Then, defendant argues that this unexplained print might raise a reasonable doubt in the minds of the jurors. We disagree. Even assuming some of the prints were identifiable and not of someone known, another print at the scene does not explain the presence of defendant's prints near the bodies, nor the other evidence pointing toward him as the perpetrator. * * *' 23 Or.App. at 286, 542 P.2d at 139.

Under the holdings of Oregon cases interpreting the rule of Brady the defendant is required to make some showing that the evidence sought to be discoverable will be favorable. State v. Hockings, supra; State v. Jones, 18 Or.App. 343, 525 P.2d 194, Sup.Ct. Review denied (1974); Hanson v. Cupp, 5 Or.App. 312, 484 P.2d 847 (1971). This showing must be sufficient to remove the assertion of prejudice from mere speculation. In this context defendant would be required to show the destroyed lifts contained identifiable characteristics that would make them viable as fingerprint evidence and that if he had them they would constitute evidence favorable to him. In the first Hockings appeal we held he had failed to meet this burden.

Although the defendant went into more detail in the suppression hearing prior to the second trial as to the process by which the lifts were compared and purged, the evidence presented at the two trials is substantially the same. The sheriff's deputies who worked with the fingerprint evidence maintained the 62 destroyed lifts were useless for fingerprint comparisons and offered an explanation of the apparent inconsistencies in their reports. The defendant offered evidence and analysis of the various investigative reports to show their testimony was not correct and that six identifiable prints were destroyed. After hearing evidence for two days on the motions to suppress or dismiss the court made the following finding:

'1. By a preponderance of the evidence it has been shown that the 62 lifts destroyed contained no ridge characteristics or evidentiary value.'

This finding on disputed facts derived from conflicting evidence we will not disturb on appeal if the evidence will sustain the findings. Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968); State v. Fisher, 5 Or.App. 483, 484 P.2d 864 (1971). The trial court resolved the conflict in the evidence adverse to defendant; there was sufficient evidence to sustain the finding. We arrive at the same conclusion as we did on defendant's first appeal that the motion to suppress the fingerprint evidence or dismiss the indictment was properly denied.

The second assignment of error relates to testimony regarding defendant's activities on the night just prior to the murders. A witness was permitted to testify, over objection, that he attended a party where defendant was present. Around midnight the witness, defendant and two other men left the party in defendant's car. The witness testified:

'First we went to the store, bought a bottle of wine, then we went to a guy's house to try and score some pot.

'* * *

'I mean purchase an ounce of marijuana.'

They were unsuccessful in purchasing any marijuana and went to the witness' apartment and then returned to the party. The witness testified there were about 25 people at the party and some of them were smoking marijuana, but he could not tell if defendant used any of the drug. He further testified that he and defendant left the party at approximately 5 a.m. and went to the witness' apartment. Shortly thereafter the witness went to bed and the defendant left.

Defendant contends statements about marijuana were evidence of prior crimes which is generally inadmissible, and that the evidence does not fall within any of the exceptions to that rule. State v. Manrique, 271 Or. 201, 531 P.2d 239 (1975); State v. Hockings, supra. Since the evidence was not relevant, he argues, it merely portrayed him as a bad character in the eyes of the jury.

When approaching the question of admissibility of 'other crime' evidence courts often state as a rule that this evidence is inadmissible unless it comes under one of the many exceptions to that particular exclusionary rule. To state such a general rule masks the complete progression of analysis in determining admissibility. It is more proper to first determine if the proffered evidence is relevant, without regard to its character, and then determine if there is some recognized exclusionary rule in the law of evidence which would nevertheless keep it out. The so called rule and its supposed exceptions are merely means of analyzing the relevance of the proffered evidence. It thus appears the rules and exceptions regarding other crime evidence are merely special aspects of the broad general problem of relevancy courts constantly face. State of Oregon v. Long, 195 Or. 81, 244 P.2d 1033 (1952). If the state establishes the evidence is relevant the defendant must establish that it has prejudicial impact which outweighs the probative value that inheres in relevant evidence. See State v. Manrique, supra; State v. Zimmerlee, 261 Or. 498 492 P.2d 795 (1972); State v. Harrison, 253 Or. 489, 455 P.2d 613 (1969); Trook v. Sagert, 171 Or. 680, 138 P.2d 900 (1943). As the Supreme Court stated in State v. Manrique:

'The fundamental rule of evidence is that in order to be admissible evidence must be relevant, i.e., have some probative value to prove some issue in a case, and that all relevant evidence is admissible unless it falls within one of the socalled 'exclusionary' rules of evidence. * * *' 271 Or. at 205, 531 P.2d at 241.

It may be noted the evidence must be relevant to establish some fact or inference the state is entitled to prove. For example, the state is not entitled to show the defendant has a propensity to commit a crime because h...