State v. Jackson

• Decision Date: 17 November 2021
• Docket Number: CC 15CR46257(SC S067622)
• Citation: 498 P.3d 788,368 Or. 705
• Parties: STATE of Oregon, Appellant, v. Homer Lee JACKSON III, aka Homer Jackson, aka Homer Lee Jackson, Respondent.
• Court: Oregon Supreme Court

368 Or. 705

498 P.3d 788

STATE of Oregon, Appellant,

v.Homer Lee JACKSON III, aka Homer Jackson, aka Homer Lee Jackson, Respondent.

CC 15CR46257(SC S067622)

Supreme Court of Oregon, En Banc.

Argued and submitted November 17, 2020.

November 17, 2021

Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for respondent. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.

David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the briefs for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

NAKAMOTO, J.

The state charged defendant with the murder of four victims, who were killed over the span of 10 years. DNA consistent with defendant's was found at the scene of each crime. Before trial, the state moved to cross-admit the crime scene evidence, arguing that the evidence from all four crime scenes, including the DNA evidence, was relevant to each of the four charged crimes. In support of that argument, the state relied on the doctrine of chances, which is, broadly speaking, the idea that repeated incidents of rare and similar events are unlikely to be explained by coincidence or random chance. The trial court denied the state's motion to cross-admit the crime scene evidence.

The state seeks direct interlocutory review of the trial court's order, contending that the trial court erred in excluding the evidence from the other three crime scenes from defendant's trial for one of the murders. The state initially argues (1) that the doctrine of chances supplies a theory of relevance for the crime scene evidence concerning the presence of defendant's DNA near the bodies of three other murdered women and (2) that the doctrine does not depend on prohibited inferences about defendant's bad character and resultant propensity to commit criminal acts. In accordance with the Oregon Evidence Code, we initially hold that the doctrine of chances, standing alone, is insufficient to make the other crime scene evidence relevant to any charged crime. The doctrine of chances instead provides an intermediate factual inference about the entire set of crime scene evidence that must be linked to the state's proof of a fact material to the charged crime through a separate theory of relevance.

In supplemental briefing, the state offers an alternative. The state argues that, even if the doctrine of chances does not by itself supply the basis for the relevance of the DNA crime scene evidence, that evidence nonetheless is relevant to facts in its case by articulating a chain of inferences, ending with "defendant was the killer in each murder." And in the state's view, neither the penultimate inference nor any intermediate inference relies on prohibited "bad character" inferences, in violation of OEC 404. Keeping the state's articulated purpose and chain of reasoning for introducing the DNA evidence from all four crime scenes at the forefront and again applying requirements of the Oregon Evidence Code, we further hold that the state, stretching the doctrine of chances beyond its limits, fails to link its proposed use of the other crime scene evidence to the fact it wishes to prove at trial in a way that does not rely on a prohibited "bad character" inference. Because we reject the state's alternative argument as well, we affirm the trial court's order excluding the evidence.

I. BACKGROUND

In a single indictment, the state charged defendant in 2019 with 15 counts of first-degree murder for the deaths of four Black female victims: TH, AA, LW, and LT. Each victim had been engaging in prostitution in northeast Portland. One victim was a juvenile, while the other three were young adults, aged 29 or younger. The four murders occurred from 1983 to 1993: TH and AA were killed in 1983, LW was killed in 1987, and LT was killed in 1993.

Defendant's DNA, or else DNA consistent with defendant's, was found at each of the four crime scenes, all located in north or northeast Portland. TH was found partially submerged in a slough near Delta Park. Defendant's DNA was on a belt left near TH's body. The state contends that the belt belonged to TH and had been used as a ligature by her assailant. The DNA on the belt was consistent with defendant's DNA and approximately 1 in 1.32 million African Americans.

AA was found in a room inside an abandoned northeast Portland house. In that room were two burnt matches and two cigarette butts. One cigarette butt had defendant's DNA on it. The odds that the DNA would match someone other than defendant are less than 1 in 10 billion. The other cigarette butt had DNA on it matching AA's DNA. Defendant's fingerprint was also found on a cabinet door in the same room where AA's body was found. The cabinet door had been removed, and AA's bloody sock was lying against it.

LW was found in an empty lot near a pedestrian overpass in north Portland. Defendant's DNA was found in fingernail scrapings taken from LW. The odds that the DNA would match someone other than defendant are less than 1 in 10 billion. The state offered evidence that defendant's DNA was the "predominant" or "major profile" from those scrapings, meaning that there was more of defendant's DNA under LW's fingernails than LW's own DNA. According to the state's expert, the fact that defendant's DNA was "predominant" suggests that defendant had contact with LW within about five hours before her death.

Finally, LT was found near the same pedestrian overpass as LW, though six years later. In a manner unlike the other victims, LT had been brutalized by her assailant. That included a bite mark on her nipple. Forensic investigators swabbed the bite mark, which revealed a small amount of DNA. From that small amount of DNA, investigators were able to develop a profile that is consistent with defendant's DNA and the DNA of about 1 in 3,896 males.

The state moved to cross-admit the evidence from all the crime scenes as part of its proof for the murder charges involving each victim. The state argued that the "other acts evidence"—the presence of defendant's DNA and the similarities among the crimes—was relevant to proving that defendant committed each charged crime. For example, in attempting to prove that defendant had killed TH (the charged crime), the state sought to admit evidence of the AA, LW, and LT murders (the other crimes). And, in attempting to prove that defendant had killed AA (the charged crime), the state sought to admit evidence of the TH, LW, and LT murders (the other crimes). The state made the same arguments regarding the LW and LT murders.

The state anticipated that defendant would argue that, as to each charged crime, his DNA ended up at the crime scene as the result of random chance—most likely, that he frequently employed prostitutes and, as a result, might have had contact with the victim for reasons unrelated to murder. The state maintained that, as to each charged crime, the DNA evidence at the other crime scenes was relevant to rebutting that anticipated defense. According to the state, the doctrine of chances—which it describes as "a theory of logical relevance * * * that avoids OEC 404(3) ’s character prohibition" and that "does not depend on character inference"—established that the DNA evidence at all the crime scenes was relevant to defendant's anticipated argument.

Defendant opposed the motion on numerous grounds and further argued that, because the evidence was not cross-admissible, presenting the evidence of each crime to the same jury would result in substantial prejudice. On that basis, defendant moved to sever the cases for trial.

The trial court held a three-day hearing on the state's motion in limine to admit "other acts" evidence and on defendant's motion to sever the cases. The trial court received a copy of documents that the state had disclosed during discovery regarding the evidence from each crime scene described above, and the court heard testimony. To rebut the state's contention that the murders were very similar and showed a modus operandi , defendant presented testimony from a clinical and forensic psychologist.¹ And the state presented testimony directed to the doctrine of chances from a scientist with the Oregon State Police laboratory's DNA unit, who addressed the specific DNA evidence found at the scenes, and from a professor of criminology. Based on research and statistics, the professor testified that the chances of a prostitute being murdered within any given 24-hour period is rare: 1 in 160,000. The professor also testified that the chances of a person's DNA being present on a given day at the scene where a murdered prostitute is found is also rare, with the estimated chances varying depending on how often the person employs prostitutes. The state argued that the infrequency of prostitute homicide establishes the implausibility of random chance explaining defendant's DNA being at the scenes of four separate prostitute homicides.

Following the hearing, the trial court denied the state's motion to cross-admit the crime scene evidence on three grounds. First, the trial court concluded that the state had failed to establish the foundational requirements necessary to support doctrine-of-chances reasoning—namely, that the events were sufficiently similar and sufficiently infrequent. The trial court explained that the state's evidence supporting its doctrine-of-chances theory "invites jurors to convict based on speculation and conjecture."

Second, the trial court concluded that, even if the state could provide the necessary evidentiary support for the doctrine of chances, the state was misusing the doctrine. The trial court explained that, based on this court's case law, the doctrine of chances may be used only to prove that certain conduct was performed intentionally, rather than inadvertently, citing State v. Tena , 362 Or. 514, 412 P.3d 175 (2018). The trial...