State v. Pratt

• Citation: 785 P.2d 350,309 Or. 205
• Parties: STATE of Oregon, Respondent, v. Jesse Clarence PRATT, Appellant. TC 86-328 CR; SC S34964.
• Decision Date: 11 January 1990
• Court: Supreme Court of Oregon

Page 350

785 P.2d 350

309 Or. 205

STATE of Oregon, Respondent, v. Jesse Clarence PRATT, Appellant.

TC 86-328 CR; SC S34964.

Supreme Court of Oregon In Banc.

Argued and Submitted Oct. 4, 1989.

Decided Jan. 11, 1990.

[309 Or. 206] Stephen J. Williams, Deputy Public Defender, Salem, argued the cause and filed the brief for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause and filed the brief for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., Diane S. Lefkow, Asst. Atty. Gen., and Brenda J. Peterson, Asst. Atty. Gen., Salem.

GILLETTE, Justice.

This criminal case is before us on defendant's automatic direct appeal of his judgment of conviction and sentence of death for two counts of aggravated murder. We reverse both the conviction and the sentence of death and remand for a new trial.

THE CRIME

Defendant was charged with two separate counts of aggravated murder of Carrie Love. One count alleged that he murdered Love in the course of attempting to rape her. The other count alleged that he murdered her in the process of maiming her. ¹

The following facts could have been found by the jury. Defendant operated a long-haul trucking service, North Star Trucking, in the Seattle area. Love was an employee of defendant's. She agreed, despite some misgivings, to ride from Seattle to Los Angeles with defendant in his truck. The purpose of the trip was to set up a new Los Angeles office of North Star Trucking. Love was to assist in this project. She would also visit her father who lived in Los Angeles. Love was concerned that defendant would make a sexual pass at her, but she had assured her boyfriend that, if he did, she would get out of the truck and call the boyfriend.

After defendant and Love left Seattle on June 16, 1986, Love was never heard from again. On June 17, a passerby found a sleeping bag and a pillowcase by the side of Highway 97 north of Klamath Falls. The pillowcase contained Love's purse. The sleeping bag was soiled with feces, blood, and semen. The passerby turned the purse over to the police, who began a search for Love. Using phone numbers found in Love's purse, the police contacted North Star Trucking and one of Love's friends. They learned that Love had left Seattle with defendant in defendant's truck.

Love's nude body was found on June 18 about 25-30 miles from the location where her purse had been found. She had been stabbed repeatedly and run over by a vehicle.

On June 19, two police officers came to North Star Trucking's office. Defendant Defendant told police officers different stories. First, he told the officers that Love had changed her mind about driving south with him so he dropped her off near the Seattle airport. Later he admitted that Love had accompanied him in his truck. According to this version, the two of them had consensual intercourse. Shortly thereafter, Love admitted to stealing from defendant, so he threw her out of the truck and never saw her again. He denied killing or raping her.

who was still on the road, happened to call in while the police were there. The officers told defendant that Love was dead and questioned him about the circumstances of the trip. Defendant told them he was on his way to Phoenix and would be returning to Seattle in a few days. He also described his truck to the officers. Based upon that description, defendant was stopped and arrested later that day by an Arizona Highway Patrol officer.

Semen was found in Love's vagina, but it was never tested. The semen in the sleeping bag was tested and determined not to belong to defendant. This semen was compatible with that of Love's boyfriend who admitted to having intercourse with Love the day before her departure.

After jury trial, defendant was convicted of both counts of aggravated murder and, based upon the jury's affirmative answers to two of the three statutory questions under ORS 163.150, ² defendant was sentenced to death. This automatic appeal followed.

PRETRIAL MOTIONS

Defendant made two pretrial motions which are relevant on appeal. First, defendant moved to exclude all evidence relating to a prior unrelated abduction and rape he had committed. Defendant argued that this evidence was irrelevant and prejudicial. He also moved to suppress all evidence obtained following his warrantless arrest in Arizona. Defendant contended that the arrest was illegal because the arresting officer lacked probable cause. The trial court denied both motions.

1. Evidence of Prior Crime

In 1980, defendant was involved in a relationship with Teresa Lewis. Lewis lived with defendant for 45 days until she grew fearful of him and moved out. Defendant continued his pursuit of Lewis to the point where she felt harassed and reported defendant to police.

On August 5, 1980, David Whaley entered Lewis' place of business in Seattle, Washington, and pulled a gun. Defendant came in a few minutes later. He bound and gagged Lewis' fellow employees with duct tape and paper towels. The two intruders then took Lewis out of the office and south into Oregon on highway I-5. They stopped at a motel near Eugene. Defendant and Lewis took one room while Whaley rented another. Later that same day, at defendant's instruction, Lewis had forcible sexual intercourse with Whaley while defendant watched. Later, defendant forced Lewis to have sex with him twice.

The following day Lewis was able to get away from defendant for a few minutes and enter a woman's restroom. She asked a woman there to contact the police because she was being held against her will. Sometime later that day, police officers arrived and arrested defendant.

Aggravated murder trials are divided into two phases, the guilt phase and the penalty phase. Defendant assigns as error the trial court's decision to permit testimony concerning the defendant's prior unrelated kidnapping and rape of Teresa Lewis during the guilt phase of his trial. ³

Generally, evidence of other crimes is inadmissible to show the character of a defendant or his propensity to commit crimes. OEC 404(3). However, such evidence is admissible for a variety of other "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

purposes, including proof of identity, intent, or absence of mistake. OEC 404(3) provides:

In Oregon, the rule of OEC 404(3) is considered to be an inclusionary one--other crime evidence is admissible not just to prove one of the specific exceptions in OEC 404(3), but upon "any theory of logical relevance * * * that does not run afoul of the 'propensity to commit crimes or other acts' prohibition." State v. Johns, 301 Or. 535, 548, 725 P.2d 312 (1986). However, the burden is on the party offering the evidence to show that the proffered evidence is relevant and probative of something other than a disposition to do evil. In this case, Lewis's testimony was admitted solely to prove defendant's intent to commit the crime of attempted rape on Carrie Love. ⁴

In State v. Johns, supra, we discussed the process which a trial judge must use to evaluate the admissibility of prior crimes evidence offered to prove intent. First, the judge must determine whether the proffered evidence is relevant to the issue of intent. Then the judge must weigh the evidence under OEC 403 ⁵ to determine whether its probative value is substantially outweighed by the danger of unfair prejudice. Id. at 549-50, 725 P.2d 312. To guide trial judges in applying these standards, we listed six independent questions which the judge should ask before admitting other crimes evidence:

"(1) Does the present charged act require proof of intent?

"(2) Did the prior act require intent?

"(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?

"(4) Was the type of prior act the same or similar to the acts involved in the charged crime?

"(5) Were the physical elements of the prior act and the present act similar?

"(6) If these criteria are met, is the probative value of the prior act evidence substantially outweighed by the danger of unfair prejudice, confusion of issues or misleading the jury, undue delay or presentation of cumulative evidence?"

Id. at 555-56, 725 P.2d 312. ⁶ The first five questions relate to the issue of relevance. Only if the trial judge is convinced that the answer to each of these questions is yes should the judge proceed to weigh the evidence under OEC 403, as reflected by the sixth question.

The trial court attempted to use the Johns test correctly. It asked the right questions and, based upon its affirmative answers to those questions, admitted Lewis's testimony. However, we find that the trial court answered at least one of the The trial court stated its answers to the Johns questions on the record:

Johns questions incorrectly as a matter of law.

"On the identity issue the Court has considered the issues that were outlined in State v. Johns, * * *. Namely does the present charged act require proof of intent. The answer is yes, it does.

"Did the prior act of [sic] Mrs. Lewis require intent? And yes, it did.

"Was the victim in the prior act the same victim or in the same class of victims as in the present case? The court finds that Mrs. Lewis was.

"They were both acquaintances of the Defendant. They were both relatively young and relatively attractive. They had a relationship with the defendant. Mrs. Lewis as a girlfriend and Carrie Love as an employee.

"Was the type of prior act the same or similar to the acts involved in the charged crime? Well, it was similar as they both involved a sexual assault.

"The earlier act of...