State v. JonesState v. Jones
Lead Opinion
The defendant is appealing his conviction of the crime of burglary not in a dwelling.
When the employees of a store in Portland came to work on a Monday morning, they found the store burglarized. The investigating officer found that the burglar had gained access by breaking a hole in the glass in a door, reached through the hole and turned the door knob on the inside and thereby opened the door. The officer examined the wooden door frame near the knob and the hole in the glass and found a fingerprint.
The fingerprint was subsequently identified as that of the defendant. This was the only evidence connecting the defendant with the crime. The defendant called no witnesses.
The defendant contends that it was error to admit testimony of defendant’s statements made during police interrogation because the defendant had not
The defendant particularly objects to the officer’s testimony that defendant stated he had never been in the store which was burglarized. Defendant argues in his brief:
“Inasmuch as the only evidence connecting the defendant with the brealdng and entering this public retail store, was a latent fingerprint found on the door of the establishment, his statement under police interrogation that he had never been in the place of business undoubtedly had a damaging effect in the eyes of the jury. * * *”
The state argued in its brief that the statement was neither a confession nor an admission, but rather was exculpatory at the time made, and, therefore, the requirements of State v. Neely, supra, did not apply. We need not and do not decide here whether statements exculpatory at the time they are made are covered by State v. Neely, supra. Even if the admission of the statement is assumed to be error, its admission was not prejudicial and, therefore, was harmless error.
The problem of whether there is constitutional error which is harmless error is not completely solved. In Fahy v. Connecticut,
“On the facts of this case, it is not now necessary for us to decide whether the erroneous admission of evidence obtained by an illegal search and seizure can ever be subject to the normal rules of ‘harmless error’ under the federal standard of what constitutes harmless error. Compare Ker v. California,374 US 23 . We find that the erroneousadmission of this unconstitutionally obtained evidence at this petitioner’s trial was prejudicial; therefore, the error was not harmless, and the conviction must be reversed. * * *” 375 US at 86 .
In determining whether error is harmless, the same opinion states the test to be, “* * * whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.”
The erroneous admission of constitutionally inadmissible confessions has been consistently held to require reversal, regardless of the weight of the other evidence of guilt. Lynumn v. Illinois,
The California court has pointed out that the admission of constitutionally inadmissible evidence other than confessions does not necessarily have that all-contaminating influence of a confession and, therefore, may not always be grounds for reversal. People v. Parham, 60 Cal2d 378, 33 Cal Rptr 497,
“Unlike involuntary confessions, other illegally obtained evidence may be, as in this case, only a relatively insignificant part of the total evidence and have no effect on the outcome of the trial. Torequire automatic reversal because of its admission is to lose sight of the basic purpose of the exclusionary rule to deter unconstitutional methods of law enforcement. * * *”
In the Parham case when the officers started to arrest the defendant, he put a check into his mouth and started to chew it. The officer hit him twice on the back of the neck and defendant spit out the check. The court held this method of obtaining the check violated due process. Nevertheless, upon the ground above stated, the conviction was affirmed.
California has applied the same rule to the admission of statements which may have been incriminating but did not amount to confessions and were taken without advising the defendant of his right to remain silent and his right to counsel. People v. Hillery, 62 Cal2d 692, 44 Cal Rptr 30,
In People v. Jacobson, 63 Cal2d 319, 46 Cal Rptr 515,
Prom the record before us it appears that the defendant’s contention at trial was not that the fingerprint had been made by the defendant when he was in the store on a legitimate mission, but rather that the fingerprint was not that of the defendant. Now the defendant contends that the defendant’s statement to the officer was prejudicial because if it had been ex-
The only reasonable conclusion that can be drawn from the evidence is that the fingerprint was made by someone reaching through the hole in the glass and groping for the knob to open the door. We conclude that there is no “reasonable possibility that the evidence complained of might have contributed to the conviction.” Fahy v. Connecticut, supra (
Defendant also contends that the trial court erred in denying his motion for a mistrial made “* * * on the grounds * * * that counsel has brought before the jury, by way of State’s Exhibit 2 for identification, a document which is obvious, and the jury are well aware is a document of thé police department
Exhibit 2 is the police department’s identification card on defendant; among other things, it contains his fingerprints. The state had the exhibit identified and handed to the witness, who was a fingerprint specialist, so that he conld, in the presence of the jury, compare the print shown on the identification card with the print found in the store and then state that they were identical. The prints on the exhibit had been taken prior to defendant’s arrest for the offense with which he is now charged. The card also contains a record of prior arrests and convictions. The card was offered, but the trial court rejected it because portions of it, presumably the past convictions, were inadmissible, and its identification was incomplete.
We have consistently held that a motion for a mistrial is addressed to the sound discretion of the trial judge. State v. Hoffman,
The same observations are partially applicable to defendant’s charge that the trial court erred in refusing to grant another motion for mistrial. This was upon the ground that the state’s witness “injected, unresponsive to my question, the defendant being in custody for another crime * * After reading the direct and the cross-examination, during which the objectionable answer occurred, we conclude that the defendant “asked for” the objectionable answer and any error was invited.
Affirmed.
Dissenting Opinion
dissenting.
I do not agree that the questioned evidence was nonprejudieial. The reason the state offered the evidence was to help convict the defendant. It is not unlikely that the proof that the defendant had been in the building, when embellished by his statement to the police that he had never been in the building, satisfied the jury that the defendant was the burglar.
The more difficult question, in my opinion, is whether the exclusionary rule of the Neely case ought to apply to interrogation of the kind involved in the case at bar. The majority assumes that the Fifth and Sixth Amendment rights as defined in the Neely case were available to this defendant. I see no reason, then, to evade that decision by subtle distinctions. The defendant is entitled to a new trial in which the questioned evidence is excluded. As in most of these cases, ■the difficulty could be avoided by promptly taking an arrested person before a magistrate. ORS 133.550.