State v. Smith

• Decision Date: 21 February 1975
• Citation: 271 Or. 294,532 P.2d 9
• Parties: STATE of Oregon, Respondent, v. Emma Mae SMITH, Petitioner.
• Court: Oregon Supreme Court

Page 9

532 P.2d 9

271 Or. 294

STATE of Oregon, Respondent, v. Emma Mae SMITH, Petitioner.

Supreme Court of Oregon.

Argued and Submitted Dec. 4, 1974.

Decided Feb. 21, 1975.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

Timothy Wood, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen. and W. Michael Gillette, Sol. Gen., Salem.

Before O'CONNELL, C.J., and McALLISTER, HOLMAN, TONGUE, HOWELL, BRYSON and SLOPER, JJ.

O'CONNELL, Chief Justice.

Defendant was charged with first degree robbery of Carson Jones. (ORS 164.415.) She pleaded not guilty, was tried and convicted. The Court of Appeals affirmed the judgment of conviction. ¹ Defendant's petition for review was then granted.

On October 1, 1973, defendant and two other young women picked up a hitchhiker, Carson Jones. Mr. Jones was driven to a deadend street, threatened with a knife and what appeared to be a gun, relieved of his money and clothing, and left in the street. A short time later the three young women picked up three other hitchhikers, all fourteen-year old girls. The three were threatened and robbed. One of the victims escaped while the car was parked and one of the defendant's companions cut and beat one of the victims who had assisted in the escape. Later the two remaining victims were released without their clothes.

Defendant was tried and acquitted of the robbery of the three teenage girls. At her trial for robbery of Carson Jones, evidence of the robbery of the girls was admitted over defendant's objection. Thereafter defendant took the stand and explained her presence during the robberies. She also stated that she had been acquitted of the other robbery. The trial judge ruled that her acquittal was irrelevant and instructed the jury to disregard it. Defendant alleges as error the admission of the evidence of the robbery of the girls. She further contends that if such evidence is held admissible, it was error to exclude the evidence of her acquittal.

Evidence of other crimes is admissible if it is substantially relevant to any material issue in the case, but inadmissible if its only purpose is to show defendant's criminal character. ² Defendant does not dispute that the closeness in time and the congruity of the method of the two robberies makes her alleged participation in the second robbery relevant to the issues of identity and intent in the present prosecution. However, defendant argues that the acquittal of the other charge lessens its probative value to such an extent as to render it inadmissible when balanced against its unquestioned prejudicial value. This argument has been put forward in other jurisdictions and has been generally rejected. ³ We concur in the generally accepted view. Acquittal establishes only that a jury did not find the defendant to have been proved guilty beyond a reasonable doubt of the offense charged. To be admissible, however, evidence of other conduct need not be established beyond a reasonable doubt. ⁴ Acquittal alone, though it may lessen the probative value of the evidence of the other offense, does not render it inadmissible.

Defendant also argues that if the evidence of the other robbery was admissible, it was error to exclude evidence of her acquittal. The Court of Appeals held, on the basis of dictum in State v. McLean, ⁵ that the admission of evidence of acquittal should be left to the discretion of the trial court.

In State v. McLean the defendant was convicted of aggravated assault and battery committed when he was incarcerated in Rocky Butte jail in Portland, where he shared a cell with the victim and 15 other inmates. At the trial, four of the other inmates testified as to defendant's innocence. Each was impeached by evidence of prior prior convictions. Defendant was not so impeached, but after testifying that he was lodged in Rocky Butte pending trial for 'taking and using' an automobile, he was not allowed to testify that he was acquitted of the charge. On appeal, the Court of Appeals held that the trial court erred in refusing to admit evidence of the disposition of the other crime but found the error to have been non-prejudicial. ⁶ This court affirmed, holding that 'any such error was not prejudicial under the circumstances of this case' (255 Or. at 473, 468 P.2d at 524) because, Inter alia:

'* * * (T)he crime of 'taking and using' an automobile was such a minor offense, compared with the much more serious and sordid offense * * *, that even if defendant had been permitted to testify that he had been acquitted of that charge, we firmly believe that it would have made no difference whatever in the verdict of the jury * * *.' 255 Or. at 480--481, 468 P.2d at 528.

In reaching this conclusion, the court discussed the different approaches that courts take in allowing or disallowing exculpatory statements by a witness who has been Impeached by evidence of prior Convictions. From a survey of possibilities, it was concluded that it 'may' be that such matters of exculpation are best left to the discretion of the trial judge who may be deemed best able to weigh the value of avoiding unfairness to the impeached witness against possible confusion of the issues. ⁷

The discussion in McLean has no significant bearing on the problem before us. This is not a case where defendant was prevented from explaining a prior conviction by which she had been impeached; she was prevented from showing that she was not convicted at all. Although there may be room for the exercise of discretion by the trial court where the witness offers evidence of extenuating circumstances to explain his conviction, there are no factual considerations open to the trial court to aid him in deciding whether a defendant should be permitted to show that he was acquitted because the decision as to whether such evidence should be admissible is purely a question of policy, which when established one way or the other, will apply to all cases in which a defendant has been acquitted. We are of the opinion that in any case in which the state attempts to prove a defendant's guilt by showing other offenses of which he was charged, the defendant should be permitted to show that he was acquitted of the charge.

The reason for permitting the fact of acquittal to be introduced is succinctly expressed in People v. Griffin, 66 Cal.2d 459, 58 Cal.Rptr. 107, 111, 426 P.2d 507, 511 (1967):

'Regardless of its probative value, evidence of other crimes always involves the risk of serious prejudice, and it is therefore always 'to be received with 'extreme caution. " (People v. Albertson, 23 Cal.2d 550, 577, 145 P.2d 7, 20.) Indeed, for this very reason some courts have concluded that an acquittal so attenuates the weight that may properly be given evidence of another crime as to require the exclusion of such evidence altogether. (See People v. Ulrich, 30 Ill.2d 94, 101, 195 N.E.2d 180; State v. Little, 87 Ariz. 295, 307, 350 P.2d 756, 86 A.L.R.2d 1120.) Our rule does not go that far, but instead is fair to both the prosecution and the defense by assisting the jury in its assessment of the significance of the evidence of another crime with the knowledge that at another time and place a duly constituted tribunal charged with the very issue of determining defendant's guilt or innocence of the other crime concluded that he was not guilty. (Footnote omitted).' ⁸

Said in another way, the admission of evidence of other offenses in which the defendant has been involved without disclosing that he was acquitted tends to brand him as a 'criminal' and exposes him to the danger that the jury might lose sight of the presumption of innocence and the high level of proof required to rebut it. Contrary to the state's contention in this case, we do not believe that there is a risk of confusion of the jury sufficient to require the defendant to stand mute on the fact of her innocence of guilt of a crime nearly identical to the one charged.

We hold, therefore, that defendant was entitled to counter the state's evidence of her participation in the other offense by showing that she was acquitted. Since we cannot say affirmatively on the record before us that the jury was not influenced by the erroneous exclusion of the fact of defendant's acquittal, ⁹ we must therefore reverse and remand for a new trial.

Reversed and remanded.

BRYSON, Justice (dissenting).

I dissent for the following reasons. The defendant was found guilty by a jury verdict of robbery in the first degree. ORS 164.415.

The facts are undisputed. On October 1, 1973, at 5:45 p.m. the defendant and her two companions, Doreen Johnson and Carla Wallalutam picked up a hitchhiker, Carson Jones, on Burnside Street in Portland and drove to a dead-end road. Jones testified that defendant pulled a knife on him, Carla pointed what appeared to be a gun at him, and Doreen commanded him to disrobe and hand over his money. Jones gave them his money, removed his clothes, and got out of the car. He noted the car license number and called the police.

Shortly thereafter, at 6:30 p.m. on the same day, the defendant and her two companions picked up three other hitchhikers, Jody, Linda and Tina, all 14-year-old girls. They drove to a parking lot where the teenage girls were threatened and robbed. Tina jumped out of the car and escaped, and one of defendant's companions accused Jody of helping in the escape and threatened to kill her. Jody was cut on the hand, arm, and neck. They then drove to a park near Sandy, Oregon, and ordered the two remaining girls to remove their clothes, step out of the car, and lie face down on the ground. The girls ran to a nearby trailer house, and a resident thereof drove them to the Sandy police station.

The evidence discloses that defendant was acquitted of the Robbery of the three teenage girls. At defendant's trial in the case...