866 P.2d 507 | Or. Ct. App. | 1994
Defendant appeals his conviction for murder, ORS 163.115, after a jury trial. We affirm.
At about 2 a.m. on April 17,1991, defendant shot and killed the victim with a single shotgun blast to the head. The killing occurred on a largely deserted Portland street where there is heavy drug use and where gun shots are heard on a daily basis. Defendant did not deny killing the victim but claimed self-defense. He testified that the victim had lifted his shirt to display a gun in his waistband and was reaching to pull it out when defendant shot him. The only other witness to the murder was a close friend of the victim. He testified that the victim did not have a gun and did not reach toward his pockets during the encounter.
As part of his case, defendant intended to call four witnesses —Gill, Felix, Jenkins and Strouder. All four invoked a Fifth Amendment privilege not to testify. Defendant moved to compel the state to grant immunity to the witnesses, which the court denied. Defendant then sought to admit statements that the four had given to Detective Hill during the investigation, arguing that the statements were admissible under the hearsay exception for statements against interest. OEC 804(3)(c).
Defense counsel made two offers of proof through Hill. Hill related the following as to what the four witnesses told her that they had seen between the time of the killing and the arrival of the police. Each had seen a number of people approach the body and remove items from it. Felix had stated that he had seen people taking dope, jewelry, and money off of the victim’s body and that he thought the victim might have had a gun. Gill had stated that, at the time of the victim’s
When the police arrived, there was no gun on the victim, and his pants had been unzipped and pulled down. The medical examiner found a gold earring in the victim’s ear, a gold colored chain around his neck and cocaine tucked behind his genital region. Hill testified to the jury that she had received information that items had been removed from the body before the police arrived.
Defendant argues that the court’s refusal to allow Hill to testify concerning the witnesses’ statements gutted his claim of self-defense, because he was unable to corroborate that the victim was reaching for a gun or, at least, was armed with a gun at the time of the shooting. He argues that the statements met the three requirements to be admitted under OEC 804(3)(c): The witnesses were unavailable; the statements were adverse to the penal interest of each and were offered to exculpate the accused; and there was sufficient corroboration of trustworthiness for admissibility.
The parties stipulated that the witnesses were unavailable. Defendant contends that, because their unavailability was based on their Fifth Amendment privilege not to testify, the court must necessarily have concluded that the statements were against penal interest.
The record does not support that conclusion. The privilege against self-incrimination is not absolute, State ex rel Johnson v. Richardson, 276 Or 325, 555 P2d 202 (1976), but the trial court appears to have assumed that the witnesses could claim the privilege without any showing. It explained to each witness that she or he did not have to testify and then asked if the witness wished to testify. Each invoked the constitutional privilege.
We agree with the state that the only statements that conceivably could have been incriminating were Jenkins’ statement that she had found about $20 on the victim’s body and Strouder’s statements that she had been in a “rock” house. However, nothing suggests that either witness was aware of any possible criminal liability when they made the statements. Furthermore, even if the statements might be against a penal interest, that someone took $20 or was in a “rock” house
“Whether a statement is in fact against the declarant’s interest must be determined from the circumstances of each case. A statement admitting guilt and implicating another person, made while in custody, may well spring from a desire to curry favor with the authorities and hence fail to qualify as being against the declarant’s interest. On the other hand, the same words spoken under different circumstances, e.g., to an acquaintance, would have no difficulty in qualifying.” Commentary to the Oregon Evidence Code quoted in Kirkpatrick, Oregon Evidence 636 (2d ed 1989). (Citations omitted.)3
Affirmed.
OEC 804(3)(c) provides:
“A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless the person believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.”
Under ORS 167.222, “frequenting” a place where controlled substances are used requires repeated visits or remaining at a place while permitting other persons to use controlled substances. Strouder’s statement does not demonstrate that those requirements were met.
Indeed, apart from arguing that, because the judge’s rulings necessarily show that the statements must be against penal interest, defendant does not contend that
Because the statements do not meet the second requirement for admissability under OEC 804(3)(c), we do not address the third requirement that there be corroborating circumstances that clearly indicate the trustworthiness of the statements.