Roubideaux v. State , 1985 Okla. Crim. App. LEXIS 274 ( 1985 )

PARKS, Presiding Judge,

dissenting:

I must respectfully dissent. I am of the opinion that the evidence relating to the death of Nima Carter was improperly admitted. I would reverse and remand this case for a new trial, one in which evidence of this unrelated subsequent crime would be barred.

In holding that the trial court did not err in admitting circumstantial evidence of a similar crime committed one and one half years after the crime for which appellant was tried, the majority, in my opinion, extends 12 O.S.1981, § 2404(B) to impermissible limits. We have repeatedly, and consistently, held that there is

... a well-established rule recognized substantially by all courts that evidence of a separate and similar offense is not admissible against the accused on trial for another specific offense; that when the accused is put on trial for one offense he is to be convicted, if at all, by evidence which shows him guilty of that offense alone, and proof of guilty of one or more similar offenses unconnected for that which he is on trial must be excluded. The foregoing rule is fundamental. (Emphasis added).

Roulston v. State, 307 P.2d 861 at 867 (Okl.Cr.1957). The Legislature has agreed this is a fundamental rule of law, and has stated at 12 O.S.1981, § 2404 B that “[e]vi-dence 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.”

The several reasons for this rule center on the accused’s right to a fair trial based on evidence that tends to prove that he committed the crime with which he is charged. He should not have to answer for his entire life history, nor should precious judicial resources be wasted on deliberation of evidence which is normally cumulative and always prejudicial. Furthermore, evidence of other alleged offenses may profoundly affect the jury. It may confuse the jury with collateral issues and lead to a conviction because the accused is a “bad person” who deserves to be punished. It may also complicate the jury’s understanding of the requisite burden on the State to prove the accused is guilty beyond a reasonable doubt, since the evidence of the other offense need only be proved by clear and convincing evidence, a lesser standard of proof. Therefore, it follows that “evidence which in any manner shows or tends to show that he committed another crime wholly independent, even though it be a crime of the same sort, is irrelevant and inadmissible.” Jett v. State, 525 P.2d 1247, 1249 (Okl.Cr.1974).

However, there are purposes for which evidence of other criminal acts may be admitted. The Legislature has recognized these as “proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.” 12 O.S.1981, § 2404(B). Even under these exceptions, the evidence is not admissible unless there is a visible connection between the crimes. Roulston v. State, supra at 868. Moreover, these exceptions “do not supercede the time-honored precept of law [against admission] and are to be carefully limited and guarded ...” Id. at 867. (Emphases added).

In the present case, the majority finds a visible connection between the crimes “by evidence of a method of operation so distinctive as to demonstrate a plan common to both crimes.” Supra at 37. I first note that each of the cases cited, Driskell v. State, supra, Driver v. State, supra, and Jett v. State, are cases involving sexual undertones. These cases are indicative of the fact that, rightly or wrongly, “the courts tend to find distinctive similarities in sex cases more readily than in other situations.” Clearly et al., McCormick on Evidence, § 140, p. 560, n. 20 (1984). See also 2 A.L.R.4th 330. Also, these cases are distinguishable on other facts. The evidence of another crime in this case involves a criminal act which occurred subsequent to, rather than prior to, the offense for which appellant was on trial. The two offenses herein were not part of a series of acts continued over a long time period. This case involves two separate, distinct, independent crimes, and we have held that

[m]ere similarily between the crime for which a defendant is being tried and past crimes is not enough to establish admissibility under the “common plan or scheme exception.”

Oglesby v. State, 601 P.2d 458, 459 (Okl.Cr.1979). Rather, the common scheme or plan exception, may be used only

“if [the other crime] has a tendency to ... support the conclusion that there was a plan or system which embraced both that and the crime for which he is charged [s]uch as where the crime is committed to prepare the way for another and the commission of the second crime is made to depend upon the perpetration of the first.”

Roulston v. State, 307 P.2d at 869. I believe our statement in Oglesby v. State, supra, is equally applicable here, in that “it would be absurd to argue that the appellant committed one [murder] to help facilitate the commission of another [murder]. Nor is it plausible to say evidence of one [murder] should be admitted to show a propensity to [murder].” Id. at 459.

Nor is this evidence relevant to show identity. In Selfridge v. State, 617 P.2d 237 (Okl.Cr.1980), Judge Brett correctly stated that

“[t]he victim had already identified the appellant so that evidence of [the] other alleged [offense] was not only cumulative but also dangerously prejudicial.

Id. at 239. Mary Carpitcher’s sister had already indentified appellant as the person who placed Mary and herself in the abandoned refrigerator. This is not a case comprised of wholly circumstantial evidence, in which this evidence would be relevant. Here, as in Selfridge v. State, supra, the evidence was merely cumulative, but extremely prejudicial.

Therefore, I dissent.