State v. Ellis

Brodkey, J.,

separately dissenting.

The facts of this bizarre case are set out in detail in the majority opinion, and also in the dissenting opinion written by Judge Krivosha; and, in the interest of brevity, will not be repeated in this dissenting opinion.

It is my opinion that the evidence adduced by the State at the trial of the defendant in District Court, even assuming for the moment that all of such evidence was properly received, was totally insufficient to establish beyond a reasonable doubt that the defendant was the person who killed Deborah Forycki, in which case he would not be guilty of the crime of homicide in any degree; and, more specifically, was completely insufficient to establish that the defendant was guilty of the crime of which he was convicted, to wit, manslaughter, *414 which not only requires the proof of a homicide committed by the defendant but also that the killing was done either upon a sudden quarrel or while in the commission of an unlawful act.

There were no eyewitnesses to the killing of Deborah Forycki, nor is there any direct evidence in the record establishing beyond a reasonable doubt when she was killed, where she was killed, and by whom and under what circumstances she was killed. There is not even evidence in the record establishing beyond a reasonable doubt what caused her death, i.e., by shooting, strangulation, stabbing, or in some other manner. There is no direct evidence in the record that the defendant even knew Deborah Forycki, or that they were seen together on the day of the alleged homicide. The evidence adduced by the State to prove these matters was all circumstantial in nature. The State introduced evidence to prove that defendant Ellis and Forycki had classes in the same building at the University of Nebraska on October 3, 1974, but such classes were not even in the same classroom. Apparently Ellis was absent from his class on that date. One might wonder how many other students were absent from classes in that building that day. Also, the police testified that after Forycki’s disappearance on October 3, 1974, the police found an undated note while examining Forycki’s possessions which read: “Meet John Kondowski 10:30 at the Student Union.” The note, which was apparently misplaced by the police and not produced at the trial, does not indicate on what date she was to meet John Kondowski, or who he was. The State endeavored to supply this deficiency by introducing the evidence of a witness who testified that subsequent to October 3, 1974, she had a breakfast date with the defendant, whom she said used the alias of “John Tronzowski,” during which she was assaulted by him, and that he used a knife in the course of the assault. The police witnesses for the State testified that they had checked the name of “John Kondowski” but their subsequent investigation failed to *415 reveal the existence of any person by that name in Lincoln. One might ask whether every person with a foreign sounding surname ending in “ski” in the Lincoln telephone book is automatically a suspect for the killing of Deborah Forycki. Finally, the State produced another witness who testified with reference to her experiences with Ellis in 1976, approximately 2 years after Forycki’s disappearance. She testified that she was assaulted by Ellis on a farmstead in Cass County in June of 1976, which assault occurred within 75 feet of the location of the water wagon which contained the remains of Forycki. The witness was further allowed to testify, over objection, with regard to the details of the assault, which also involved a knife. Other evidence also established that Ellis was familiar with the area in which the water wagon containing the remains of Deborah Forycki was located.

The above constitutes the principal evidence adduced by the State against Ellis. While such evidence may be considered as sufficient to establish a “possibility” that Ellis may have killed Forycki, it falls far short of establishing a “probability” that he killed her, and even less to establish a “strong probability” that he did so. In no case could it be considered sufficient to establish proof “beyond a reasonable doubt,” which is the test required by law in criminal cases. “Evidence creating a mere probability of guilt, even though a strong one, is not sufficient; much less is evidence creating a mere possibility of guilt, or evidence which gives rise to a mere suspicion or conjecture of guilt.” 23 C.J.S. Criminal Law § 907 at 577 (1961). In O’Connor v. State, 110 Neb. 822, 829 , 195 N.W. 125, 128 (1923), this court stated: “When it is sought to establish the guilt of the accused in a criminal case by circumstantial evidence, it is not sufficient that the facts create a probability, though a strong one.” (Emphasis supplied.)

As previously stated, the evidence in this case upon which Ellis was convicted was largely, if not completely, circumstantial. In State v. Doyle, 205 Neb. 234, *416 240-41 , 287 N.W.2d 59, 63-64 (1980), we reviewed the Nebraska authorities with regard to criminal convictions based upon circumstantial evidence. In that case we stated:

“In the recent case of State v. Klutts, 204 Neb. 616 , 284 N.W.2d 415 , we reviewed our rules with regard to a criminal conviction based upon circumstantial evidence, saying, ‘Where circumstantial evidence is relied upon, the circumstances proven must relate directly to the guilt of the accused beyond all reasonable doubt in such a way as to exclude any other reasonable conclusion.’ To justify a conviction on circumstantial evidence, it is necessary that the facts and circumstances essential to the conclusion sought must be proven by competent evidence beyond a reasonable doubt, and, when taken together, must be of such a character as to be consistent with each other and with the hypothesis sought to be established thereby and inconsistent with any other reasonable hypothesis of innocence. State v. Faircloth, 181 Neb. 333 , 148 N.W.2d 187 . Any fact or circumstance reasonably susceptible of two interpretations must be resolved most favorably to the accused. State v. Klutts, supra.

“In Reyes v. State, supra, we said, ‘[A] conviction should not be based upon suspicion, speculation, the weakness of the status of the accused, the embarrassing position in which he finds himself, or the mere fact that some unfavorable circumstances are not satisfactorily explained.’”

Under the standards and guidelines as set out in the above quotations the evidence was insufficient to establish beyond a reasonable doubt either that Ellis killed Forycki or, more specifically, that he killed her while in a sudden quarrel or while in the commission of an unlawful act.

The conclusion we have reached, as above stated, is made with reference to the evidence in the record as presented to this court. A fortiori, the conclusion is even more valid if the evidence received by the trial court, *417 particularly the testimony of the two witnesses who testified as to certain acts and experiences which occurred after the offense under consideration, to wit, the disappearance of Deborah Forycki on October 3, 1974, is not considered. If the testimony of both, or either, of these witnesses was improperly received, and is stricken from the record, the case of the State becomes so weak as to be almost nonexistent. I note in passing that Justice Krivosha in his dissenting opinion in this case would exclude the testimony of the two witnesses in question on the grounds that the criminal offenses to which they testified occurred subsequent to the crime involved in the instant case. I do not believe that the fact that the other crimes testified to occurred subsequent to the principal offense is determinative of the question of the admissibility of other crimes, but rather the important question is the remoteness of the other crimes in point of time. See, 29 Am. Jur. 2d Evidence § 327 (1967); Goldsberry v. State, 66 Neb. 312 , 92 N.W. 906 (1902); Payne v. State, 233 Ga. 294 , 210 S.E.2d 775 (1974); 2 Weinstein’s Evidence ¶404[09] (1980); Annot., “Admissibility of Evidence of Subsequent Criminal Offenses as Affected by Proximity as to Time and Place,” 92 A.L.R.3rd 545 et seq. (1979). The foregoing annotation, at 598, discusses cases in which evidence of similar subsequent offenses was received for the purpose of proving the identity of the perpetrator, where the subsequent offenses were not so remote so as to preclude admission. In this connection, see, also, McCormick on Evidence § 190 at 451-52 (2d ed. 1972).

On the other hand, Nebraska has clearly recognized the importance of the element of “remoteness” in the determination of whether evidence of other crimes is admissible. State v. Moore, 187 Neb. 498 , 192 N.W.2d 155 (1971); State v. Rich, 183 Neb. 128 , 158 N.W.2d 533 (1968). In State v. Moore, supra at 499 , 192 N.W.2d at 156 , we stated: “Whether such other crimes are too remote is determinable by the exercise of judicial discretion, the limits of discretion being set by the facts *418 of each case.” (Emphasis supplied.)

In the instant case, the other crimes testified to by the two female witnesses occurred subsequent to the date of Forycki’s disappearance. It is not clear how soon after October 3, 1974, the first incident at the breakfast occurred, but it apparently was during the same month. We are not prepared to state as a matter of law that this incident was too remote in time to be admitted under the rules above set out. However, the incident testified to by the second female witness occurred over 2 years after the disappearance of Forycki. In my opinion, the testimony of this witness should have been excluded as being too remote in time. The testimony of this witness was undoubtedly prejudicial inasmuch as she was the one who testified that Ellis had taken her to the same locality in which the water wagon was located. In my opinion, the admission of this testimony was clearly improper; and, at the minimum, should entitle the defendant to a new trial.

As a matter of fact, I am convinced that the evidence of both of the female witnesses should have been excluded for another reason. The applicable statute involved in this case is Neb. Rev. Stat. § 27-404 (2) (Reissue 1979) which provides: “(2) 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 purpose for such rule was set out in Whitty v. State, 34 Wis. 2d 278, 292 , 149 N.W.2d 557, 563 (1967), where the court stated: “The character rule excluding prior-crimes evidence as it relates to the guilt issue rests on four bases: (1) The overstrong tendency to believe the defendant guilty of the charge merely because he is a person likely to do such acts; (2) the tendency to condemn not because he is believed guilty of the present charge but because he has escaped punishment from *419 other offenses; (3) the injustice of attacking one who is not prepared to demonstrate the attacking evidence is fabricated, and (4) the confusion of issues which might result from bringing in evidence of other crimes.”

Trial courts are given the difficult task of balancing the need for the evidence of other crimes against the degree to which the jury will be prejudiced by such evidence. See State v. Williams, 205 Neb. 56 , 287 N.W.2d 18 (1979). Such discretion empowers “the judge to exclude the other-crimes evidence, even when it has substantial independent relevancy, if in his judgment its probative value for this purpose is outweighed by the danger that it will stir such passion in the jury as to sweep them beyond a rational consideration of guilt or innocence of the crime on trial.” McCormick on Evidence § 190 at 453-54 (2d ed. 1972). See, also, 1 Underhill’s Criminal Evidence § 205 (6th ed. 1973).

In this case we believe such evidence had a prejudicial effect upon the jury. It must be remembered that Ellis was charged solely with the first degree murder of Forycki. To prove its case, the State adduced evidence that Ellis had assaulted two other women with a knife during attempts to engage in sexual relations with them. The closing argument of the State makes quite clear the purpose for which evidence of such other crimes or bad acts was adduced. The State argued that because Ellis engaged in assaults against other women, it necessarily followed that he must have engaged in an assault against Forycki. Therefore, the State contended that the evidence of other assaults showed the motive, intent, modus operandi, and/or plan for the assault and homicide of Forycki, even though there is no evidence of the use of a knife on Forycki.

The use of such evidence is nebulous, at best; and if considered to show knowledge of the secluded area where the body was found, such evidence was not required, as the witness Burns testified that Ellis had knowledge of the area. If considered to prove the identity of the defendant Ellis, it is generally held that a *420 higher standard is required, and that the prior or subsequent crimes testified to must exhibit a high degree of similarity to the acts with which the accused is charged and must in effect be the “signature or handiwork” of the accused. See, United States v. Silva, 580 F.2d 144 (5th Cir. 1978); McCormick on Evidence § 190 at 449 (2d ed. 1972). As previously pointed out, in the instant case, while it is true in the incidents testified to by the two witnesses referred to, Ellis had in both instances used a knife in an unsuccessful attempt to accomplish his purpose, yet, there is nothing in the record of this case to indicate that Forycki had died from a knife wound. In fact, the evidence indicates that the cause of her death might possibly have been a shooting by a gun. Moreover, if the testimony of the second witness, whose incident occurred 2 years after the disappearance of Forycki, is not considered, no modus operandi is established which would justify the use of such evidence in an effort to convict Ellis of first degree murder, as charged. A review of the evidence adduced by the two female witnesses, and an analysis of the use of such evidence during the trial, convinces us that the evidence of the subsequent events was used to replace evidence of what happened to Deborah Forycki. The inescapable conclusion is that the evidence was offered for the purpose of establishing that if Ellis assaulted the two witnesses with a knife, which was done after Forycki’s disappearance, he therefore murdered Deborah Forycki.

It seems clear that the proof of Ellis’ guilt was based on other “bad acts” committed by him, rather than on the commission of the crime for which he stood trial. This is exactly what § 27-404(2) was intended to prevent. In effect, the State stripped Ellis of his presumption of innocence.

Our criminal justice system is based on the premise that a criminal defendant is innocent until proven guilty by the State of the crime for which he stands trial. It is axiomatic that the criminal defendant cannot *421 be convicted of the crime charged solely on the basis of other crimes or bad acts. The right to a fair trial must necessarily include the right to be tried solely for the crime charged. I am convinced that Ellis was not only standing trial for the homicide of Forycki but also for the assaults on the other two witnesses, at least in the jurors’ minds. The evidence with reference to the other assaults should not have been admitted because Ellis, in addition to the homicide of Forycki, was, in effect, standing trial for crimes with which he was not charged.

It may well be that the defendant in this case is, in fact, guilty of the crimes with which he was charged and convicted, but the State in this case has failed to prove it by proper evidence “beyond a reasonable doubt.” In this case, even taking the view most favorable to the State, there is insufficient evidence to sustain the verdict. Justice requires that we abide by the established rules of evidence. If I may borrow the words of Justice Spencer in his dissenting opinion in State v. Ohler, 178 Neb. 596, 604-06 , 134 N.W.2d 265, 270-71 (1965): “I believe our rule still is that an accused is presumed to be innocent until he has been proved guilty beyond a reasonable doubt. The defendant has been convicted solely because he had an opportunity to commit the crime because he was on the scene during a part of the period within which the crime could have been committed. ... The most we can say about the evidence adduced is that the defendant had an opportunity to commit the crime and there is a strong suspicion that he did, but this falls far short of proving him guilty beyond a reasonable doubt. There is no question but that the actions of the defendant were to say the least very suspicious, yet suspicion does not suffice for evidence.” In the instant case there was not even evidence that the defendant was present at the scene of the crime at the time it was committed.

As a result of my examination of the record, I am of the opinion that the defendant did not have a fair and *422 impartial trial according to law and the established rules of criminal procedure to which every person, whether guilty or innocent, is entitled. I would prefer to reverse the judgment and conviction by the District Court and remand the cause for a new trial. However, my attention has been directed to a very recent opinion released by the Supreme Court of the United States in the case of Hudson v. Louisiana, No. 79-5688, 49 U.S.L.W. 4159 , decided February 24,1981, in which the court indicates that the double jeopardy rule prevents the prosecution of a defendant a second time for first degree murder where either the trial judge or the appeal court has decided that the evidence was legally insufficient to support the jury’s guilty verdict. In view of the implications of Hudson v. Louisiana, therefore, and also in view of my conclusions as expressed in my dissenting opinion set out above in which I have concluded that there was insufficient evidence to convict the defendant even considering the testimony of the two female witnesses, I would hold that the judgment of conviction and sentence by the trial court should be vacated and the cause dismissed.

McCown, J., joins in this dissent.