State v. Smith
| Decision Date | 02 October 1986 |
| Docket Number | No. 51344-9,51344-9 |
| Parties | The STATE of Washington, Respondent, v. Phillip Arthur SMITH, Petitioner. |
| Court | Washington Supreme Court |
Washington Appellate Defender, Julie Kesler, Seattle, for petitioner.
Norm Maleng, King Co. Prosecutor, Rebecca Roe, Deputy Co. Prosecutor, Seattle, for respondent.
The principal issue presented in this appeal is whether the trial court committed reversible error by admitting, pursuant to ER 404(b), extensive evidence of three burglaries, admittedly committed by the defendant, to prove the identity of the defendant as the perpetrator of three rapes for which no assailant had been positively identified. Over 35 years ago, Justice Hill warned against the admission of such evidence, where "its effect would be to generate heat instead of diffusing light, or ... where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it." State v. Goebel, 36 Wash.2d 367, 379, 218 P.2d 300 (1950). In our opinion, this warning was not heeded in this case. Accordingly, we reverse and remand for a new trial.
In this case, the State confronted a significant problem. Three Seattle women had been raped by an unknown assailant, and none of the women could positively identify the man who had accosted them. Based upon a composite of descriptive characteristics of the assailant offered by the three women, it appears the rapist: (1) was a light-skinned black man, (2) who was very clean shaven, (3) wore a short afro, (4) was about 5'5"' to 5'7"' in height, (5) wore a leather jacket, (6) and leather gloves, (7) and had a gentle voice.
Despite the aforementioned similarities, there was some degree of inconsistency between the physical characteristics of the assailant or assailants described by the women. Furthermore, there were several troubling dissimilarities with respect to the rapist's modus operandi. As made clear by the testimony supplied by the rape victims, the three rapes might have been committed by two or more different assailants, each of whom coincidently bore the same general physical characteristics observed by the victims. On the other hand, all three rapes might have been committed by the same assailant. Regardless, the State had no concrete evidence establishing the assailant's identity.
Unfortunately for the defendant, he fit the general physical description of the rapist, and was known to have burglarized- , or attempted to burglarize, three ground-floor apartments in Seattle during the same time the rapes occurred. Apparently noticing the general physical similarities between the unknown rapist and the defendant, the State seized the opportunity after defendant's third burglary arrest, and charged him with three counts of first degree rape.
As stated above, however, the State could not obtain positive identification of the defendant from the rape victims. To prove identity, the State sought to admit into evidence the facts surrounding defendant's burglaries, arguing that the modus operandi of the burglaries was sufficiently similar to the modus operandi of the rapes, thus proving that the one who committed the burglaries (defendant) also was the unknown assailant who committed the three rapes.
At trial, defense counsel moved in limine to exclude evidence of the burglaries, arguing the evidence was irrelevant and, regardless, the prejudicial effect of the evidence outweighed whatever relevance the burglaries had to the rapes. Without analyzing these contentions on the record, the trial judge denied the motion, ruling the evidence was admissible. Defendant appealed, arguing that the burglary evidence was inadmissible under ER 404(b) and this court's interpretations of that rule.
The admissibility of the burglary evidence is governed by ER 404(b), which permits evidence of other crimes to show "identity", but not "to prove the character of a person in order to show that he acted in conformity therewith." As we said in State v. Saltarelli, 98 Wash.2d 358, 361, 655 P.2d 697 (1982), ER 404(b) must be read in conjunction with ER 402 and 403. ER 402 prohibits admission of evidence which is not relevant. Relevant evidence is defined in ER 401 as
evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable ... than it would be without the evidence.
ER 403 requires exclusion of evidence, even if relevant, if its probative value is substantially outweighed by the danger of unfair prejudice. See State v. Goebel, supra. As stated in State v. Coe, 101 Wash.2d 772, 780-81, 684 P.2d 668 (1984), "[c]areful consideration and weighing of both relevance and prejudice is particularly important in sex cases, where the potential for prejudice is at its highest."
In Saltarelli, this court defined the analysis a trial court must employ before admitting evidence of other crimes. First, the court must identify the purpose for which the evidence is to be admitted. Saltarelli, 98 Wash.2d at 362, 655 P.2d 697. Second, the court must determine the relevancy of the evidence. In determining relevancy, (1) the purpose for which the evidence is offered "must be of consequence to the outcome of the action", and (2) "the evidence must tend to make the existence of the identified fact more ... probable." Saltarelli, at 362-63, 655 P.2d 697. Third, after the court has determined relevancy, it must then "balance the probative value against the prejudicial effect ..." (Italics ours.) Saltarelli, at 363, 655 P.2d 697. As stated in State v. Bennett, 36 Wash.App. 176, 180, 672 P.2d 772 (1983), "[i]n doubtful cases the scale should be tipped in favor of the defendant and exclusion of the evidence."
In State v. Jackson, 102 Wash.2d 689, 694, 689 P.2d 76 (1984), this court held that a trial court errs if the judge does not undergo the aforesaid analysis on the record. Failure to do so precludes the trial court's "thoughtful consideration of the issue", and frustrates effective appellate review. Jackson, at 694, 689 P.2d 76. The trial court in this case did not analyze the admissibility of the burglary evidence on the record. Although Jackson had not been decided by the time this case was tried, the parties did not address the question of whether Jackson should be given retroactive effect. Accordingly, we decline to resolve the issue at this time. Nevertheless, we again reiterate that, without a complete analysis appearing on the record, we are unable to determine whether a trial court's exercise of discretion was based upon a careful and thoughtful consideration of the issue.
As stated above, Saltarelli requires that we identify the purpose for which the burglary evidence was offered. The record reveals the State offered the evidence of defendant's burglaries for the purported purpose of proving the identity of the defendant as the rapist. Saltarelli also requires this court to determine whether the purpose for which the State offers the evidence is of consequence to the rape prosecution. In this case, identification of the defendant clearly was of great consequence to the prosecution. To be relevant under Saltarelli, however, the proffered evidence must make the existence of the identified fact--in this case defendant's identity--more probable than it would be without the evidence. In our opinion, the evidence that the defendant committed three burglaries fails this prong of the Saltarelli relevance test.
Our conclusion rests upon two decisions, State v. Laureano, 101 Wash.2d 745, 682 P.2d 889 (1984), and State v. Coe, supra, in which this court dealt with the propriety of admitting Goebel evidence to establish identity. In our opinion, Laureano and Coe control the result in this case.
In Laureano, the State prosecuted the defendant for a first degree murder which occurred during the robbery of a couple at their home. The State sought to offer evidence of a similar robbery for which the defendant was arrested, in order to prove his identity as the perpetrator of the earlier murder. In holding the evidence of the second robbery was admissible to show the defendant's identity as the murderer, we stated:
The method employed in the commission of both crimes must be so unique that mere proof that an accused committed one of them creates high probability that he also committed the act charged.
(Italics ours.) Laureano, at 764, 682 P.2d 889 (citing State v. Irving, 24 Wash.App. 370, 374, 601 P.2d 954 (1979), review denied, 93 Wash.2d 1007 (1980)). Furthermore, the court went on to quote Professor Meisenholder for the proposition that:
Mere similarity of crimes will not justify the introduction of other criminal acts under the rule. There must be something distinctive or unusual in the means employed in such crimes and the crime charged.
(Italics ours.) Laureano, 101 Wash.2d at 765, 682 P.2d 889. 5 R. Meisenholder, Wash.Prac. § 4, at 13 (1965), quoted in State v. Irving, 24 Wash.2d at 374, 601 P.2d 954.
In Laureano, this court found there were a number of distinctive characteristics common to the two crimes. Laureano, 101 Wash.2d at 765, 682 P.2d 889. Although not all of the characteristics described in Laureano were "unique", there were sufficient distinctive characteristics between the crimes to justify the conclusion that there was a high probability the same person committed both crimes. In short, the proffered evidence was relevant. As discussed below, however, the same simply cannot be said in this case.
In State v. Coe, supra, the State sought to introduce evidence of the defendant's prior sexual acts with his girl friend to establish the defendant's modus operandi, and thereby his identity as a rapist. This court again said that
[t]he method employed in committing the act must be so unique that mere proof that an accused acted in a certain way at a certain time creates a high probability that he also committed the act charged.
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