State v. Zimmerlee

• Decision Date: 19 January 1972
• Citation: 492 P.2d 795,261 Or. 49
• Parties: STATE of Oregon, Respondent, v. Terry Lee ZIMMERLEE, Petitioner.
• Court: Oregon Supreme Court

Page 795

492 P.2d 795

261 Or. 49

STATE of Oregon, Respondent, v. Terry Lee ZIMMERLEE, Petitioner.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 9, 1971.

Decided Jan. 19. 1972.

William H. Ferguson, Medford, argued the cause for petitioner. With him on the briefs was Robert H. Grant, Medford.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the briefs were Jacob B. Tanzer, Sol. Gen., and Lee Johnson, Atty. Gen., Salem.

O'CONNELL, Chief Justice.

Defendant was convicted of the crime of armed robbery (ORS 163.280). The Court of Appeals affirmed the judgment of conviction, whereupon defendant filed this petition for review.

The following is an adaptation of the statement of facts set out in the Court of Appeals opinion at Or.App., 92 Or.Adv.Sh. 569, 483 P.2d 111 (1971). Defendant accosted Larry Palmer, the complaining witness, at about 6:30 p.m. on March 6th, 1970, inside a drive-in restaurant in Medford. Defendant told Palmer that he had some friends outside who had bet that he, defendant, could not get Palmer's boots away from him. Later, Palmer went out to the restaurant parking lot and while sitting on his motorcycle defendant again approached him and asked for his boots, offering one dollar for them. Palmer refused until he noticed that defendant was pointing a pistol at him. Palmer testified, 'I started moving and he said, 'It's cocked and it's loaded' and he says, 'I think we want your boots now,' and I said, 'Yes, I think you do,' so I bent over and started unbuckling them.'

Defendant took the boots without paying for them and before he drove away with his companions he left his own shoes after Palmer complained that he had nothing for his feet. Defendant contended at trial that the exchange was a free trade.

As a part of its case the state introduced evidence to show that later on the same evening Frank Charley, while driving in the city of Medford, was pursued by defendant and some other men in the course of which defendant challenged Charley to a fight. When Charley arrived at his destination defendant alighted from the pursuing automobile and threatened Charley with a pistol. Defendant then handed the pistol to a companion and provoked a fight with Charley. At this point a police officer arrived and arrested defendant. The officer testified that he searched the vicinity and found a pistol approximately 25 or 30 feet from the scene of the fight. The pistol was received in evidence and Palmer testified that it appeared similar to the one defendant had used at the encounter with him. Defendant objected to the evidence of this later episode between defendant and Charley and offered to stipulate that he had the pistol in his possession when he pursued Charley. The state rejected defendant's offer to stipulate.

The trial court permitted the state to introduce evidence of the later incident between defendant and Charley on the ground that it showed a common scheme or plan embracing the commission of two crimes so related to each other that proof of one would tend to establish the proof of the other. The Court of Appeals held that the evidence was properly received on the same ground. In doing so, the court said:

'The evidence disclosed that defendant, in company with other men, was traveling about Medford in a vehicle on the evening involved, aggressively sought trouble, and displayed a pistol in each of the two incidents. The trial judge considered this to be a common scheme or plan. This is a logical inference that can be drawn from the evidence. The prosecution was entitled to prove the later incident by evidence. Defendant could not lighten the impact of competent and complete evidence against himself by stipulating to part of it. State v. Leland, 190 Or. 598, 630, 227 P.2d 785 (1951), aff'd 343 U.S. 790, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952).' State v. Zimmerlee, 92 Or.Adv.Sh. 569, 571, 483 P.2d 111, 112 (Or.App., 1971).

We hold that it was reversible error to receive the evidence of the later incident. The basic rule is stated in McCormick on Evidence, § 157, p. 327 (1954):

'* * * The rule is that the prosecution may not introduce evidence of other criminal acts of the accused unless the evidence is substantially relevant for some other purpose than to show a probability that he committed the crime on trial because he is a man of criminal character.'

McCormick goes on to point out that the evidence of other criminal acts committed by the defendant may be received:

'To prove other like crimes by the accused so nearly identical in method as to ear-mark them as the handiwork of the accused. Here much more is demanded than the mere repeated commission of crimes of the same class, such as repeated burglaries or thefts. The device used must be so unusual and distinctive as to be like a signature.' Id. at 328.

The exception is explained in 2 Wigmore on Evidence § 304, p. 202 (3d ed 1940):

'The added element, then, (in evidencing design or system rather than intent) must be, not merely a similarity in the results, but 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.'

We do not think that the two alleged criminal acts of the defendant had a common 'signature' to bring the case within the exception to the rule precluding evidence of other crimes. In the first place, it is difficult to find a similarity in the general Modus operandi of a criminal assault and robbery. Even if both crimes are accompanied by the use of a gun, the common feature does not show a distinctive type of conduct sufficient to characterize it as a signature. The conduct of defendant in the two instances other than the use of the gun was quite different. The robbery was conducted in a rather calm and casual manner, touched with a sense of grim humor; the assault appeared to have the character of a taunting, open meanness and belligerency. The fact that on both occasions defendant was accompanied by companions is not distinctive. We can see no other special earmarks of defendant's method of violating the law which would justify the application of the exception to the rule excluding evidence of other crimes.

The evidence of defendant...