Myers v. State

CHAPEL, J.,

concurring in result:

T1 I concur in result with the majority's decision to affirm Myers's conviction for first degree murder. In doing so, I disagree with the majority's analysis and resolution of the issue raised in Proposition Two. The trial court erroneously admitted other erimes evidence of previous, unrelated sexual assaults to show motive and intent. Ten to twenty years before the charged crime, Myers fondled, attempted rape (without penetration) and attempted oral sex with two young women; one was twelve years old and one was thirteen. Myers was convicted and imprisoned after the first incident but was not charged after the second occurrence. These previous crimes have no relevance to charges that Myers raped and murdered an adult woman. The majority opinion erroneously holds that the evidence was admissible under our current law.

1 2 However, the majority does not rely on current law to dispose of this case. Instead, without explicitly saying so, the majority holds that Oklahoma should expand its use of other crimes evidence in sex crimes cases. The majority states: "[The evidence would be admissible under the "greater latitude rule" recognized today for cases involving sexual assaults." 1 This can only be interpreted as an adoption of the "greater latitude" rule. The majority would allow "greater latitude" to admit any evidence of other sexual assaults, whether or not the evidence falls within any recognized statutory exception to the general prohibition against other crime evidence. 2 The majority recognizes the "unavoidable potential for proving propensity" inherent in this evidence. 3 The majority apparently fails to realize that Okla-boma already grants the State latitude in introducing evidence of similar crimes in sexual abuse cases. 4 Further expanding this exception to the prohibition against other crimes serves no legitimate purpose. It would only ensure that the State may use evidence of previous sexual encounters to persuade a jury to convict because a defendant is generally depraved or simply has a propensity to commit sex offenses. This is precisely what the Legislature has forbidden Oklahoma courts to allow.

13 The majority's attempt to expand the other crimes exception is not only ill-conceived, it is completely unnecessary in this case. The trial court erroneously admitted the other crimes evidence here. However, that error does not require reversal. Strong cireumstantial evidence convicted Myers,. A well and uninjured victim arranged to meet him after she got off work, and they were seen at a restaurant. She was found injured and dead, with Myers's semen in her vagina, less than four hours later. Myers admitted meeting the victim and even suggested they had consensual intercourse. Given the State's evidence against him, Myers's story *1041 did not exclude every reasonable hypothesis other than guilt. 5 The evidence that Myers had previously assaulted two girls was irrelevant, but it did not unduly prejudice him. The jury could have completely disregarded that evidence in determining Myers's guilt, and its erroneous admission neither resulted in a miscarriage of justice nor substantially violated a constitutional or statutory right. 6 Since this error does not require relief, I can only conclude the majority is overreaching in order to unnecessarily expand the other crimes exception beyond the bounds of the statute or case law.

'I 4 I also concur in result with the decision to uphold the death sentence. Evidence in second stage showed that Myers confessed to a Kansas murder after the Kansas sheriff promised him immunity. I agree with the majority's conclusion that this confession was inadmissible. I believe this evidence was highly prejudicial. Jurors had just found Myers guilty of a brutal rape and murder. They were improperly told not only that Myers had confessed to killing another person, but that he got away with it. However, the jury also heard evidence that Myers was probably responsible for the rape and death of another young woman. 7 I believe this properly admitted evidence of another murder blunted the prejudicial impact of the Kansas confession. As I agree, the error did not contribute to the imposition of the death sentence, I concur in result.

. Op. at 1029 (emphasis added).

. The majority relies on State v. Davidson, 236 Wis.2d 537 , 613 N.W.2d 606 (2000), a case confirming Wisconsin's longstanding exception granting greater latitude in other crimes evidence to cases involving sexual assault of a child. A substantial minority of states grants some form of latitude for evidence of other crimes in sexual offense cases. Of these, the majority focus on sex crimes against children. Several states allow this evidence in any sexual offense case to explain motive and intent by showing previous propensity for sexual offenses, or on the general principle that such offenses should have liberal standards of proof. See, e.g., State v. Roscoe, 184 Ariz. 484 , 910 P.2d 635, 642 (1996) (bad acts involving sexual aberration admissible to show propensity); Bixler v. State, 537 N.E.2d 21, 23 (Ind.1989) ("depraved sexual instinct"); State v. Frazier, 344 N.C. 611 , 476 S.E.2d 297, 300 (1996) (court gives liberal allowance of similar offenses in sex crimes cases); State v. Tobin, 602 A.2d 528, 531 (R.L1992) ("lewd disposition or intent").

. Op. at 1029.

. The State may introduce evidence that the defendant has committed similar acts against different victims at different times if the circumstances show a system or plan characterized by a peculiar method of operation. See, eg., Eberhart v. State, 727 P.2d 1374, 1379 (Okl..Cr.1986); Little v. State, 725 P.2d 606, 607 (Okl.Cr.1986); Driver v. State, 634 P.2d 760, 762 (Ok1.Cr.1981); Lambert v. State, 609 P.2d 785, 787 (Ok.Cr.1980); Turnbow v. State, 451 P.2d 387, 390 (Okl.Cr.1969).

. Miller v. State, 1998 OK CR 59 , 977 P.2d 1099, 1107 , cert. denied, 528 U.S. 897 , 120 S.Ct. 228 , 145 L.Ed.2d 192 (1999).

. 20 0.9.1991, § 3001.1.

. This crime was unadjudicated at the time of Myers's trial. I continue to reject the use of unadjudicated crimes to support the continuing threat aggravating circumstance, and concur in result on the basis of stare decisis.