State v. Harshman

WARDEN, J.,

specially concurring.

Because I agree with the majority that the trial court erred in failing to impose sanctions for the state’s failure to provide discovery as required by ORS 135.865, I concur in the decision to reverse and remand for a new trial and a new probation revocation hearing. However, I disagree with the majority’s conclusion that admitting evidence of other crimes, specifically the Blue Bucket sale, was not error and, therefore, dissent from that part of the opinion.

In his first assignment, defendant contends that the trial court erred in admitting evidence of the alleged April 17 Blue Bucket drug sale. He argues that the relevance and probative value of the evidence are outweighed by its prejudicial effect in that it tended to portray defendant as a large quantity drug dealer in a case in which he was charged with possession and delivery of only nine pills.

The controlling principles are stated as follows:

“The fundamental rule of evidence is that in order to be admissible evidence must be relevant, i.e., have some probative value to prove some issue in a case, and that all relevant evidence is admissible unless it falls within one of the so-called ‘exclusionary’ rules of evidence. * * * It is equally well established that evidence may be rejected, although relevant, if its probative value is outweighed by various other considerations, including the danger of prejudice. * * *

“For this reason it is the general rule in criminal cases that the state may not offer evidence that the defendant was guilty of other crimes in addition to the crime for which he is charged. Although evidence that a defendant has committed other crimes may have some probative value in that it may be ‘more likely’ that such a person committed the crime in question, it is generally recognized that the danger of unfair prejudice to the defendant outweighs any such probative value.” State v. Manrique, 271 Or 201, 205-06, 531 P2d 239 (1975). (Citations omitted.)

The majority asserts that evidence of the April 17 sale is relevant to show defendant’s motive in giving the informant the nine pills on April 13. The difficulty with that argument is that neither motive, nor intent, (the two are often linked),¹ is an issue here. All that the prosecution needed to prove is that defendant did, in fact, knowingly hand the nine pills to the informant. His motive in doing so is immaterial — the statute is violated whether defendant delivered the pills as a present sale, in order to secure a future sale or as a gift.

It is true that proof that a defendant had a particular motive for committing a crime may be probative of whether he did so, especially when it would otherwise seem highly unlikely that the defendant would have committed the crime. For example, evidence of other crimes has been admitted to show motive where the defendant has been accused of murdering a member of his or her immediate family. State v. Sack, 210 Or 552, 300 P2d 427 (1956), cert den 353 US 962 (1957); State v. Hansen, 195 Or 169, 244 P2d 990 (1952); State v. Hembree, 54 Or 463, 103 P 1008 (1909); State v. Eacret, 40 Or App 341, 595 P2d 490, rev den 287 Or 409 (1979). See also McCormick, Evidence 450-51, § 190 at n 44 (2d ed 1972).

For many crimes, however, the motive is implicit in the act and a more specific need to show motive has been required before evidence of other crimes may be admitted. With respect to evidence of prior drug crimes, for example, we have found that evidence of a drug deal in which the defendant lost a large sum of money approximately one year before his arrest was inadmissible merely to show the defendant’s need for money as a motive for the drug offenses for which he was arrested and tried. State v. Knutson, 45 Or App 1051, 609 P2d 922 (1980). We have found that it was error to admit evidence of a sale of marijuana to one undercover police officer in a trial on charges arising from sales to another officer, working independently of the first, merely to show defendant’s knowledge that the substance was marijuana. State v. Lehmann, 6 Or App 600, 488 P2d 1383 (1971).

It is clear that the probative value of evidence of the April 17 sale to prove motive for the April 13 delivery is minimal at best.² Contrary to the majority’s conclusion, the subsequent sale was hardly necessary to explain the “earlier ‘giveaway’ of drugs between virtual strangers,” which, the majority suggests, the jury would otherwise find implausible. The state put on evidence that the nine pills were a “sample” and that defendant said he had more for sale. Certainly a jury would have no trouble believing that someone would give away nine pills worth approximately $2.81³ either in payment for the ride, in the hope of inducing a later sale or merely as an act of friendship or generosity. Evidence of the later sale has only marginal relevance to any material element of the charge.

Furthermore, other factors to be considered in the analysis weigh against its admission. Whatever relevance evidence of the later sale might have must be balanced against the prejudice caused by admitting it. Some of the factors to be weighed are:

“ ‘[T]he actual need for the other-crimes-evidence in the light of the issues and the other evidence available to the prosecution, the convincingness of the evidence that the other crimes were committed and that the accused was the actor, and the strength or weakness of the other-crimes-evidence in supporting the issue, * * * the degree to which the jury will probably be roused by the evidence to overmastering hostility.’ McCormick, Evidence 326, 332, § 157 (1954).” State v. Lehmann, supra, 6 Or App at 603.

Here, whether the jury would convict defendant turned essentially on the credibility of the informant and, to a lesser extent, of his girlfriend. The informant testified (1) that defendant handed him nine pills on April 13, (2) that defendant stated that he would sell the informant more pills if the informant were satisfied with the nine, and (3) that a subsequent sale took place in another county four days later. Satisfactory proof of the first assertion is all that is needed to convict. And while motive makes it somewhat more likely that the first assertion is true, motive is equally and sufficiently demonstrated either by a statement of defendant that he was giving the informant the pills as a sample for purposes of a larger sale later or by the fact of a later sale. Here evidence of both was received, but because the informant’s testimony to the later sale was uncorroborated, it did nothing to strengthen his testimony that defendant stated he would sell him more drugs if he was satisfied with the sample. That is, whether defendant is convicted depends on whether the jury believed the informant’s assertion that defendant handed him the nine pills. That statement does not become significantly more believable because the same informant also asserts that defendant handed him 800 pills four days later. See State v. Lehman, supra.

In sum, evidence of the subsequent sale had little, if any, probative value and its potential for prejudice was great, because it tended to portray defendant as a large scale drug dealer in a case involving transfer of a small quantity of drugs. I do not view this error as harmless, as the majority does. The state’s case was based solely on the testimony of the informant, who is not a regular police officer, and whose livelihood is dependent on conviction of persons he accuses of drug crimes, and on corroboration by his girlfriend. As the Supreme Court noted in State v. Manrique, supra, in holding that testimony by one undercover police officer that the defendant had sold him heroin should not have been allowed in the defendant’s trial for sale of heroin to a different officer:

“As stated in United States v. Crawford, 438 F2d 441, 446 (8th Cir 1971):

“ * * In today’s society, possibly no act is more abhorred than the selling of narcotics. And nothing makes it more difficult for a defendant to receive a fair and unbiased trial than for the jury to think that the defendant or his acquaintances are men of bad character. * * ” 271 Or at 212.

The evidence should not have been admitted.⁴

1 McCormick, Evidence 450-51, § 190 (2d ed 1972) states the motive exception to the general rule of exclusion as follows:

“(6) To establish motive. This in turn may serve as evidence of the identity of the doer of the crime on charge, or of deliberateness, malice, or a specific intent constituting an element of the crime.” (Footnote omitted.)

2 See State v. Manrique, supra, 271 Or at 213. Of all the prior opinions we have examined, the facts in Manrique are the most closely analogous to the facts here.

3 This figure was estimated on the basis of $250 for 800 pills.

4 The majority’s finding that the evidence of the later sale was not prejudicial because defendant himself introduced evidence of his prior drug dealings “for apparent tactical reasons” is answered by observing that those tactics may have been dictated by the fact that he had been informed by the trial court that evidence of the subsequent sale would be admitted. See State v. Manrique, supra, 271 Or at 213.