holding that evidence of burglaries that did not involve “any distinctive similarities” to the rape charges at issue, had “limited probative value” and “the danger of unfair prejudice loom[ed] large”
How later courts described this case
- holding that evidence of burglaries that did not involve “any distinctive similarities” to the rape charges at issue, had “limited probative value” and “the danger of unfair prejudice loom[ed] large”
- '"The method employed ... must be so unique that mere proof that an accused committed one ... creates high probability that he also committed the act charged.'" (emphasis omitted) (quoting State v. Laureano, 101 Wn.2d 745,764 ,682 16 State v. Arredondo, No. 92389- 2 P.2d 889 (1984))
- relevant evidence must be excluded if probative value substantially outweighed by unfair prejudice
- "[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." (internal quotation marks omitted)
Written by the judges who cited it.
The opinion
Callow, J.
I concur in the result reached by the majority. I agree that the evidence of the three burglaries is too remote to be relevant and admitted as evidence to prove that the defendant committed the rapes. I do not agree with the majority's interpretation and application of ER 403 and ER 404(b).
My objection to the majority opinion is the adoption of the criteria espoused in State v. Coe, 101 Wn.2d 772 , 684 P.2d 668 (1984) and State v. Laureano, 101 Wn.2d 745 , 682 P.2d 889 (1984). Under those cases the comparison of the similar crime to the crime charged "must be so unique that mere proof that an accused committed" the similar crime creates a high probability that he also committed the act charged. This stretching of the rule creates a standard never envisioned in State v. Goebel, 36 Wn.2d 367 , 218 *782 P.2d 300 (1950), ER 403 and ER 404(b). Under the rule as expressed by the majority the jury will seldom, if ever, be allowed to assess the evidence of any similar act unless it is a carbon copy of the act charged. The court, by judicial interpretation, has written ER 403 and ER 404(b) out of the book for all practical purposes. This is the effect of the nibbling away at the rule accomplished by the statement in Coe , at 777, " [t]he device used must be so unusual and distinctive as to be like a signature." One can scarcely expect to find such mirror images left by the perpetrators of crime unless they suffer from a Zorro-complex or intend to leave the imprimatur of a bizarre modus operandi.
State v. Saltarelli, 98 Wn.2d 358 , 655 P.2d 697 (1982) observes that the evidence rules are to be read together. ER 402, ER 403 and ER 404(b) must be read in conjunction with ER 401 which as the majority at 775-76 states:
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.
I submit that evidence which has any tendency to make the existence of any fact more probable than it would be without the evidence is a standard far more practical and workable than the Coe requirement that the one act be an exact overlay of the other. It is a far cry and a giant leap to go from the statements in Saltarelli to the requirements of Coe .
I fully agree with the holding of the majority that the evidence of the burglaries invites the jury to speculate that the person who committed the burglaries also committed the rapes. However, reiterating the Coe standard for the application of the evidence rules in issue is a punctilious stretching of the standards beyond anything originally conceived of in State v. Goebel, supra, and State v. Goebel, 40 Wn.2d 18 , 240 P.2d 251 (1952). When the criteria was stated in State v. Laureano, supra, that there had to be sufficiently distinctive characteristics between the acts, that was one thing; but when State v. Coe, supra, went so far as *783 to narrow the availability of evidence by requiring that the acts had to be so unique as to create a high probability and so distinctive as to be like a signature, the use of evidence under the rule was effectively snuffed out. The comment that the device must be like a "signature" should not be construed to mean that the "other crime" must be exactly the same in every detail as the crime with which the defendant is accused. Yet that is how the rule is being interpreted. As every person's signature differs each time from every other but retains many similarities, so too each series of acts or crimes may have many similarities and several circumstances which are not alike. In each situation the concern is relevancy and the decision of the trial court as to whether the evidence of the other act is relevant and probative to prove identity should be given substantial weight. The trial court and the Court of Appeals, in its unpublished opinion, found that "the similarities were sufficiently pronounced to permit a conclusion that the facts surrounding the burglaries were indeed relevant and probative of the identity of the rapist." I agree with the rejection of this conclusion by the majority because, on reflection, the admission of the evidence of the burglaries was an invitation to the jury to speculate.
I am, however, disturbed by the overturning of the trial court in this situation and by the closeness of the call in view of the fact that both counsel for the prosecution and for the defense accepted the appropriateness of the instruction to the jury in the proper use of the evidence to prove identity. The trial court instructed the jury as follows:
Evidence has been received concerning prior misconduct of the defendant other than that for which he is on trial.
Such evidence was not received and may not be considered by you to prove that the defendant is a person of bad character or that the defendant had a predisposition to commit the crimes for which he or she is on trial.
This evidence was received and may be considered by *784 you only for the limited purpose of determining whether it tends to prove defendant's identity.
The defendant took no exception to this instruction and, in fact, proposed an instruction, in the form set out in WPIC 5.30, telling the jury that it could consider the prior burglaries committed by the defendant for "the limited purpose of identity."
I concur in the result because I assess the evidence, as does the majority, as being too remote and speculative to be relevant. I reject the rationale of the majority because the progression of the opinions concerning this rule has diminished the rule to nothingness. I find State v. Coe, supra, which is now looked upon as the bellwether of the rule to be at odds with ER 401, ER 402, ER 403 and ER 404(b). State v. Jackson, 102 Wn.2d 689 , 689 P.2d 76 (1984); State v. Tharp, 96 Wn.2d 591 , 637 P.2d 961 (1981); State v. Hess, 86 Wn.2d 51 , 541 P.2d 1222 (1975); State v. Bell, 83 Wn.2d 383 , 518 P.2d 696 (1974); State v. Gilmore, 76 Wn.2d 293 , 456 P.2d 344 (1969); State v. Russell, 70 Wn.2d 552 , 424 P.2d 639 (1967); and State v. James, 63 Wn.2d 71 , 385 P.2d 558 (1963).
Brachtenbach and Andersen, JJ., and Baker, J. Pro Tem., concur with Callow, J.