State v. Manrique

• Decision Date: 30 January 1975
• Citation: 271 Or. 201,531 P.2d 239
• Parties: STATE of Oregon, Respondent, v. Santiago Marquez MANRIQUE, Petitioner.
• Court: Oregon Supreme Court

Page 239

531 P.2d 239

271 Or. 201

STATE of Oregon, Respondent, v. Santiago Marquez MANRIQUE, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 6, 1975.

Decided Jan. 30, 1975.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, Public Defender, Salem.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Solicitor Gen., Salem.

TONGUE, Justice.

Defendant was convicted of criminal activity in drugs for the sale of heroin to an undercover police officer in Portland, in violation of ORS 167.207. He appealed on the ground that the trial court erred in permitting the state to introduce evidence of prior sales of heroin.

The state offered the testimony of an undercover police officer that on May 13, 1973, he came in contact with defendant and inquired whether defendant knew where he could get some 'stuff'; that defendant said that he did and asked for $12 which was paid to him; that defendant left for about five minutes and then returned, walked by the officer and put in his coat pocket the 'stuff,' later identified as heroin.

The state then, over defendant's objection, offered the testimony of another undercover officer that on the previous March 23, March 30 and April 2, in the same area, she had made three purchases of heroin from defendant.

The testimony of these previous purchases was admitted by the trial court upon the ground that it was relevant to show 'identity' and 'lack of entrapment.' The Court of Appeals affirmed the conviction, holding that such testimony was relevant 'in that it showed defendant was engaged in retailing heroin' and because it 'established defendant had the access to heroin that would be necessary for him to have committed the crime charged.' 16 Or.App. 538, 541, 519 P.2d 397, 398 (1974). We hold that both the trial court and the Court of Appeals erred.

The Court of Appeals recognized, and correctly, that the basic problem in cases involving the admissibility of evidence of other crimes is one of balancing the probative value of such evidence against the danger of prejudice to the defendant. The decision by that court, however, would appear to leave the 'balancing' of these considerations to the discretion of the trial judge in each case, subject to reversal only if 'clearly wrong.'

In considering the validity of this reasoning it is necessary to consider also the reasons for the general rule excluding evidence of other crimes, as well as the reasons for the exceptions to that rule.

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 so-called 'exclusionary' rules of evidence. See Trook v. Sagert, 171 Or. 680, 688, 138 P.2d 900 (1943), and State v. Kristich, 226 Or. 240, 244, 359 P.2d 1106 (1961). It is equally well established that evidence may be rejected, although relevant, if its probative value is outweighed by various other considerations, including the danger of prejudice. McCormick on Evidence 438--39, § 185 (2d ed 1972). See also State v. Zimmerlee, 261 Or. 49, 54, 492 P.2d 795 (1972), and State v. Harrison, 253 Or. 489, 491, 455 P.2d 613 (1969).

For this reason it is the general rule in criminal cases that the state may not offer evidence that the defendant was guilty of other crimes in addition to the crime for which he is charged. Although evidence that a defendant has committed other crimes may have some probative value in that it may be 'more likely' that such a person committed the crime in question, it is generally recognized that the danger of unfair prejudice to the defendant outweighs any such probative value. See McCormick on Evidence, Supra at 447, § 190. This is consistent with the general rule that evidence of other similar acts or transactions, including other acts of negligence, other contracts and other fraudulent representations, is not admissible to prove that on a subsequent occasion the same person engaged in a similar act or transaction. See McCormick, Supra at 473, 469 and 468, §§ 200, 198 and 197.

An additional reason sometimes given for application of the rule in criminal cases is that a person accused of crime has the constitutional right to be informed of the nature of the charge against him and to be held to answer only the crime named in the indictment. State v. Willson, 113 Or. 450, 498, 230 P. 810, 233 P. 259 (1925). See also Underhill's Criminal Evidence 596, § 205 (6th ed. 1973).

Nevertheless, the general rule that evidence of other crimes is inadmissible in a criminal case is subject to various exceptions. The courts and the text authorities are not in agreement in listing and defining these exceptions. See State v. Willson, Supra 113 Or. at 465, 230 P. 810, 233 P. 259; McCormick, Supra, 448, § 190; and 2 Wigmore on Evidence 191--299, §§ 300--370 (3d ed 1940). See also Lacy, Admissibility of Crimes Not Charged in the Indictment, 31 Or.L.Rev. 267 (1952).

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 this case, the state's attorney offered the evidence of prior sales of heroin under the exception recognized by the courts in cases in which evidence of other crimes may be relevant to prove the identity of the defendant as the person who committed the crime on trial, where his identification is an issue in the case. The trial court agreed, holding that the evidence was admissible 'to show identity.' ¹

The identity of the defendant was contested and was one of the issues to be decided by the jury. The question remains, however, whether this evidence was properly admitted on that ground.

We have held that the exception under which evidence of other crimes may be offered to show 'identity' is limited to cases in which the crime on trial was 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. State v. Howell, 237 Or. 382, 386, 388 P.2d 282 (1964), quoting from State v. O'Donnell, 36 Or. 222, 226, 61 P. 892 (1900). To the same effect, see State v. Willson, Supra 113 Or. at 464, 230 P. 810, 233 P. 259; Underhill, Supra at 637, § 210; and 1 Wharton's Criminal Evidence 514, § 235 (1955).

In this case the crime on trial was not committed by the use of any 'novel means' or in any 'particular manner,' unless it be said that the covert deposit of the heroin in the pocket of the undercover agent satisfied that requirement. There was no evidence, however, that the previous sales were made by that means or in that manner. As also stated by McCormick, Supra at 451, § 190, 'a need to prove identity is not ordinarily of itself a ticket of admission,' although the evidence may qualify under some other exception, such as that commonly referred to as the exception permitting evidence showing a 'novel means' or 'modus operandi' by which a crime was committed.

That exception, however, is also applicable only when the 'modus operandi' of the other crimes and the crime in question were so nearly identical in method as to 'earmark them as the handiwork of the accused,' so as to identify him as the person who committed the crimes, but 'much more is demanded than the mere repeated commission of crimes of the same class.' State v. Zimmerlee, Supra 261 Or. at 52, 53, 492 P.2d at 797, quoting McCormick on Evidence 449, § 190 (1954). See also State v. Willson, Supra 113 Or. at 466, 230 P. 810, 233 P. 259, and 2 Wigmore, Supra at 202, § 304.

In Zimmerlee these same requirements were also held (261 Or. at 52, 492 P.2d 795) to apply to evidence of other crimes when offered to show a 'common scheme or plan'--another recognized exception, and one held applicable by some courts as a basis for the admission of evidence of other sales of narcotics in cases such as this. ² In Zimmerlee, this court also (261 Or. at 53, 492 P.2d at 797) went on to quote from 2 Wigmore, Supra at 202, § 304, to the effect that in order to qualify under that exception there must also be 'such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.'

Again, the evidence in this case does not satisfy these requirements. As stated in 1 Wharton, Supra at 537:

'* * * It is not enough to show that the person on trial committed one or more other crimes of the same general nature in the vicinity of the place where he is charged with committing the crime for which he is on trial, and that he committed such other crime or crimes at approximately the same time.'

Because of its apparent recognition that none of the established exceptions were applicable in this case the Court of Appeals undertook to consider whether the admission of the evidence of the prior sales of heroin in this case could be sustained on some other basis as an exception to the general rule that evidence of other crimes is inadmissible in a criminal case. In doing so that court undertook to apply to the facts of this case the fundamental approach of balancing the probative value of the evidence in question against the danger of prejudice to the defendant (16 Or.App. at 541--542, 519 P.2d 397...