State v. Tharp

• Decision Date: 17 December 1981
• Docket Number: No. 47454-1,47454-1
• Citation: 637 P.2d 961,96 Wn.2d 591
• Parties: The STATE of Washington, Respondent, v. Jo Elliott THARP, Petitioner.
• Court: Washington Supreme Court

Page 591

96 Wn.2d 591

637 P.2d 961

The STATE of Washington, Respondent, v. Jo Elliott THARP, Petitioner.

No. 47454-1.

Supreme Court of Washington, En Banc.

Dec. 17, 1981.

Thomas J. Resick, Bellingham, for petitioner.

David McEachran, Pros. Atty., Bellingham, for respondent.

HICKS, Justice.

The petitioner/appellant, Jo Elliott Tharp, was accused by information with the crime of murder in the second degree and tried before a jury. The State alleged that he shot and killed William Ray Bond on or about March 30, 1978, in violation of RCW 9A.32.050(1)(b). On that day in the early evening hours, a series of crimes were committed in a Bellingham neighborhood. Later, the evening of that day or the early morning hours of the next, other offenses were committed in rather widely separated areas of the city. All of these crimes except one were uncharged as to Tharp, but were nevertheless admitted into evidence at his trial over objection.

Tharp had been previously convicted of auto theft and was, on the day of the murder of Bond, on furlough from the Department of Institutions. The jury was permitted to learn of his furlough status and the commission of the previous crime over the objection of the defense, though Tharp never testified.

The final evidentiary matter to which Tharp objected in the trial court was the admission of a Seattle motel registration slip completed within hours of the last of the series of Bellingham crimes, the theft of a Chevrolet automobile. That automobile was identified on the motel registration slip.

The jury found Tharp guilty, and he appealed the judgment entered on the verdict. Details of this case are set forth with more particularity in State v. Tharp, 27 Wash.App. 198, 616 P.2d 693 (1980).

The Court of Appeals, Division One, in an opinion by Swanson, J., affirmed the trial court in all of its evidentiary rulings except one. It held that the motel registration slip should have been excluded, but found the error to be harmless and, consequently, affirmed the judgment entered on the jury's verdict. We differ as to some of the evidentiary rulings, but we otherwise affirm the Court of Appeals.

In disposing of Tharp's evidentiary objections to the uncharged crimes, the appellate court noted his reliance on the rule that generally evidence of the commission of other crimes may not be admitted in evidence in a criminal prosecution. It also noted the rule's exception that collateral crimes are admissible for certain specific limited purposes. See, e.g., State v. Goebel, 36 Wash.2d 367, 218 P.2d 300 (1950) (Goebel I); State v. Goebel, 40 Wash.2d 18, 240 P.2d 251 (1952) (Goebel II). See generally E. Cleary, McCormick on Evidence § 190, at 447-54 (2d ed. 1972).

The Court of Appeals sustained the trial court in its admission of the collateral crimes "(u)nder the res gestae, or same transaction, analysis ..." State v. Tharp, supra, 27 Wash.App. at 205, 616 P.2d 693. In so doing, it held the standard of proof of the commission of admissible collateral crimes and defendant's connection to them to be a preponderance of substantial evidence or clear and convincing evidence. Tharp at 203, 616 P.2d 693. These have been held to be two different standards of proof. See Beckett v. Department of Social & Health Services, 87 Wash.2d 184, 550 P.2d 529 (1976), and Wiehl, Our Burden of Burdens, 41 Wash.L.Rev. 109 (1966). In order that there be a single standard in this area, we hold that a preponderance of evidence is the State's burden of proof in this case. We are otherwise content to adopt the opinion of the Court of Appeals on this phase of the case concerning the admissibility in evidence of collateral crimes.

Tharp charges that it was error for the trial court to allow into evidence his previous conviction for auto theft and his furlough status from the Department of Institutions at the time of the murder when he did not take the witness stand. This issue, one of first impression in this state, is our major concern on this discretionary review. The issue differs somewhat from that of the admission of evidence of uncharged crimes, though it stems from the same exclusionary rule exception.

In this instance, the uncharged crimes were an unbroken sequence of incidents tied to Tharp, all of which were necessary to be placed before the jury in order that it have the entire story of what transpired on that particular evening. Each crime was a link in the chain leading up to the murder and the flight therefrom. Each offense was a piece in the mosaic necessarily admitted in order that a complete picture be depicted for the jury. See E. Cleary, supra at 448 & n.34, 451 n.46.

The prior conviction for auto theft and the furlough status from the Department of Institutions at the time of the murder are another matter. They had no direct connection with the crime charged. Tharp neither took the witness stand nor otherwise placed his character in issue, which could have justified the use of the disputed evidence. See ER 609.

The State urged admission of the evidence upon the trial court for the purported purpose of establishing motive. It argued to the trial court and in its brief here that it was critically important to show Tharp's prior conviction of taking a motor vehicle without the owner's permission, for which he was sent to prison, and also to show that he was on furlough from prison when Bond was murdered.

In an ordinary theft of a motor vehicle case, the State asserts there is little incentive for the thief who is caught to kill the person apprehending him. He would have much more at stake in killing the individual than in the underlying crime of taking a motor vehicle. Here, however, Tharp had been released from custody by the Department of Institutions on a short furlough and was scheduled to return to prison within a day of the killing. If, contends the State, he had been apprehended by Bond and turned over to the police, he would be assured that the authorities would extend his period of incarceration to a great extent. This fact purportedly presented a very strong motive for Tharp to have shot Bond, who under the circumstances shown by the evidence can be supposed to have found Tharp with his son's car.

The trial court accepted the State's theory and the evidence was admitted. We have some doubt about this ruling. ER 404(b) concerning other crimes, wrongs, or acts provides:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he 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.

The comment accompanying this rule when it was proposed by the judicial council stated in part:

The court must determine whether the danger of undue prejudice outweighs the probative value of the evidence, in view of the availability of other means of proof and other factors. Slough & Knightly, Other Vices, Other Crimes, 41 Iowa L.Rev. 325 (1956)....

The fact that section (b) uses the discretionary word "may" does not confer arbitrary discretion on the trial judge. Whether evidence is admissible under this section is determined by reference to the considerations set forth in Rule 403. ¹

In Goebel I, supra 36 Wash.2d at 379, 218 P.2d 300, Hill J., in writing for the court said:

(T)his class of evidence, where not essential to the establishment of the state's case, should not be admitted, even though falling within the generally recognized exceptions to the rule of exclusion, when the trial court is convinced that its effect would be to generate heat instead of diffusing light, or, as is said in one of the law review articles above referred to, where the minute peg of relevancy will be entirely obscured by the dirty linen hung upon it. This is a situation where the policy of protecting a defendant from undue prejudice conflicts with the rule of logical relevance, and a proper determination as to which should prevail rests in the sound discretion of the trial court, and not merely on whether the evidence comes within certain categories which constitute exceptions to the rule of exclusion.

In Goebel II, supra 40 Wash.2d at 21, 240 P.2d 251, after listing the exceptions permitting admissibility, the court states:

This list of exceptions is not necessarily exclusive, the true test being whether the evidence as to other offenses is relevant and necessary to prove an essential ingredient of the crime charged.

(Italics ours.) The same statement is found in State v. Dinges, 48 Wash.2d 152, 292 P.2d 361 (1956), where the court held that the true test of admissibility of unrelated crimes is not only whether they fall into any specific exception, but whether the evidence is relevant and necessary to prove an essential ingredient of the crime charged.

The State's principal argument that Tharp's furlough status furnished a strong motive for him to commit murder under the circumstances of this case is not overly persuasive to us. Black's Law Dictionary (Rev. 4th ed. 1968) defines motive as:

Cause or reason that moves the will ... An inducement, or that which leads or tempts the mind to indulge a criminal act.

... the moving power which impels to action for a definite result.... that which incites or stimulates a person to do an act.

(Citations omitted.)

Here in the State's case in chief, it presented evidence that the victim, Bond, had managed to stop the stolen Porsche by blocking its path with his Chevrolet Monte Carlo. Presumably, Bond had...