STATE OF OREGON, Respondent, v. DANNY LONGORIA (No. C 73-02-0466 Cr), Appellant.
Court of Appeals of Oregon
Argued January 25, affirmed April 1, 1974
petition for reconsideration denied May 1, petition for review denied June 25, 1974
520 P.2d 912
Before SCHWAB, Chief Judge, and FORT and TANZER, Judges.
TANZER, J.
The defendant was convicted after a jury trial of four counts of robbery in the first degree.
First, he assigns the failure of the presiding judge to grant his motion for a continuance and of the trial judge to grant his renewed motion for a continuance.
The motion before the presiding judge was oral and conclusory.
Compliance with
We note in passing that there is no egregious error. The affidavit and the oral showing rest upon the absence of a hospitalized witness and of another witness who was in Hawaii. The hospitalized witness was one of the investigating detectives who was expected to remain hospitalized for seven or eight months. There is no indication of how a situation which would be expected to weaken the state‘s case would also be to the defendant‘s disadvantage at trial. There is no showing as to what the witness in Hawaii would have added to the defendant‘s case. Defense counsel asserts outside the record that she would have been an alibi witness, but the defense produced at least six alibi witnesses other than the absent witness. We cannot say that the failure to delay the trial to accommodate an additional alibi witness was an abuse of discretion.
The motion for continuance before the trial judge was based additionally upon the unexpected availability of John Costello as a witness, about which there
The next assignment of error also deals with a belated attempt to make a record which was not made in a timely and accurate fashion. Defendant assigns the denial of a portion of his motion for new trial which asserts:
“There was an irregularity in the proceedings of the Court in that the defense was allowed only six pre-emptory [sic] challenges when picking the jury, after having been told by the Court that there would be twelve challenges allowed in this case. * * *”
The motion is supported by counsel‘s affidavit which alleges:
“On April 4, 1973, this trial began and during the selection of the jury, a mistrial was granted by the Honorable Richard Burke. Prior to picking that jury, Judge Burke indicated, in chambers, that the defense would have twelve challenges in this case, since it was such a serious case.
“On April 5, 1973, a new jury was selected, and after six challenges Judge Burke ordered the jury sworn. At that time I made it known to Judge Burke that I was under the impression that the defense had twelve challenges and that I was not satisfied with the jury at that point. Judge Burke indicated that the Oregon Revised Statutes provide for six challenges in this type of criminal proceeding and that he had so indicated prior to picking the second jury. I did not hear him so indicate.”
There was no transcript made of the proceedings which the affidavit alleges were held in chambers. As far as we can tell, no reporter was present. This
The effect of a deficiency in the record upon an appeal must be determined in light of the statutory requirement that we presume official regularity in the circuit court proceedings.
An appellate court does not rule upon abstract claims of error, but only upon specific rulings of the trial court. State v. Baker, 242 Or 207, 408 P2d 928 (1965). It is the responsibility of the aggrieved party to see that his claim of error is properly presented to the trial court for immediate resolution or cure. If dissatisfied, it is appellant‘s responsibility to see to it that the ruling has been properly preserved, designated as part of the record, and presented to the appellate court. If the appellant has failed to properly preserve the ruling which he claims as error, then the ruling is not subject to review. State v. Lemon, 251 Or 606, 447 P2d 394 (1968); State v. Gill, 3 Or App 488, 495-496, 474 P2d 23 (1970); State v. Skrelunas, 1 Or App 182, 185, 460 P2d 869 (1969).
In this case the claim of error was initially brought to the trial court‘s attention at about the time that the jury was sworn. The error, if any, could have been promptly remedied. Cf. State v. Sands, 2 Or App 575, 586, 469 P2d 795, rev den (1970), where voir dire was reopened. We cannot know here what ruling, if any, the trial court was asked to make or what curative action the court offered to take. We cannot determine whether error was committed and we will not presume it. If counsel feels the error to have been important at the time, rather than upon hindsight after an unsatisfactory verdict, it is not too great an obligation fоr him to assure that any protest to the court and the ruling thereon are properly preserved by seeing that the reporter is present and functioning. That was not done in this case.
Instead, counsel raised the issue approximately one month later at the hearing on the motion for new trial. The hearing gave opportunity for counsel and the trial court to express their memories of what had occurred, but does not substitute for an accurate record. Their representations do not necessarily imply that the trial court erred. Rather, it appears that the court acted properly during the second jury selection but that defense counsel suffered a momentary lapse of understanding, such as those to which lawyers are
ment, and I indicated that in view of the peremptories, twelve for you and six for the District Attorney, I think— “MR. SUSAK [defense counsel]: That‘s correct, your Honor. “THE COURT: I think I indicated that when we were discussing the time elements and so forth and how much time we were going to have. I‘m sure I did, and I was wrong. However, I do recall, and I‘m sure the record will reflect that I corrected myself later because I checked the statutes. I don‘t think, like you said, I made a rule. I can‘t make a rule in cоntravention to the statute. I will accept the responsibility that I thought it was twelve originally, but I think I indicated prior to your voir dire the following day that again I think in discussing the time elements and so forth, I said that there would be six and three because the maximum sentence was twenty years. “Do you recall that, Mr. District Attorney? “MR. YOUNGMAN [prosecutor]: Your Honor, I don‘t know whether the record would show that. You made your point clearly the second day that there would be six and three. I don‘t know whether you did that on the record, but you did do it in chambers and I was present and I did hear you say that the rule of six and three would apply. “THE COURT: All right. Well, I‘m sorry, as I said, but even if I did and I hadn‘t corrected it, I still think you are bound as an officer of the Court to know the law, and if I misquoted the law and you relied upon my impression of it at that time, I would think that at least I‘m not gifted with the talеnt of knowing every procedural statute or civil code, for that matter. “MR. SUSAK [defense counsel]: Well, your Honor, as an officer of the Court I would take responsibility for knowing the law and knowing that in an armed robbery case, under the present code, there are only six challenges. However, I have tried armed robbery cases in the past where judges have within their discretion indicated that due to the seriousness of the case, if the District Attorney had no objections, they would allow the additional challenges, twelve challenges. “THE COURT: I have never had that experience, and I‘m not being critical at all because you didn‘t know what the statute said. I‘m just saying I‘m sorry, but I don‘t think the
Defendant next complains that the prosecutor was allowed to ask a defense witness the names of the crimes of which she had been convicted and the time and place of conviction. Allowance of such questions and answers was proper. State v. Gardner, 16 Or App 464, 518 P2d 1341 (1974).
The next two assignments of error deal with problems presented by the testimony for the state of John Costello, a co-defendant, who was at the time of trial confined under treatment at the Oregon State Hospital for mental illness.
The trial court handled a delicate and complex trial problem with a careful regard for all appropriate legal considerations. While its explanations were not always crystalline models of extemporaneous articulation, it is clear that discretion was exercised with the good sense of a trial judge who was close to the action and that we, as an appellate court, should not sеcond-guess from the distance except for compelling considerations.
matters we are discussing warrant a new trial under the circumstances, as I recall it. “MR. SUSAK [defense counsel]: I would ask, so that the record is clear, I would ask your Honor in case it‘s not on the record, as I do not recall if the court reporter was present, but does your Honor remember me objecting to not having the additional six challenges? “THE COURT: You certainly did, either by word or deed. Frankly, you were quite surprised when I asked the clerk to swear the jury.”
As to the first issue, it is well established that the competency of a witness to testify must be determined by the trial court and that determination will not be set aside on appeal except for abuse of discretion. State v. Pace, 187 Or 498, 212 P2d 755 (1949); State v. Stich, 5 Or App 511, 484 P2d 861 (1971). Where, as here, there is reason to doubt the competency of the proffered witness, a voir dire hearing is properly held. The standard to be applied at such a hearing is that found in
“All persons, except as provided in
ORS 44.030 , who, having organs of sense can perceive, and perceiving can make known their perceptions to others, may be witnesses. * * *”
Also,
“The following persons are not competent witnesses:
“(1) Those of unsound mind at the time of their production for examination.
“* * * * *”
Mental defect is not of itself a disqualification of the witness. A developmentally disabled person, for example, may have limited intelligence and awareness of the world аround him, but may nevertheless be able to perceive and recall with great accuracy events which affect his life. Similarly, one suffering from mental illness may nevertheless be able to perceive, remember and relate if that illness is not of a variety
The trial court made a careful preliminary inquiry into the witness’ mental state prior to ruling him testimonially competent. Dr. Edward M. Colbach, a psychiatrist, was called as a court‘s witness. Dr. Colbach examined Costello. His questions, e.g., “Know who the President is now?,” were of a testing nature rather than testimonial. The examination related to Costello‘s orientation, intelligence, power of abstraction, and ability to recollect data furnished to him during the questioning. Based upon his in-court examination, Dr. Colbach advised the court that in his opinion the witness was not competent to testify at a trial.
The court also called Dr. Wesley Weissert, Costello‘s treating psychiatrist at the Oregon State Hospital. He testified that Costello had hallucinations in the past involving the voices of his deceased father and brother telling him to kill himself. He had related visions of an armed person trying to kill him. Upon attempting to commit suicide at Rocky Butte Jail, he was transferred to the Oregon State Hospital. Dr. Weissert testified:
“I think that he‘s competent to relate the events pertaining to this burglary. He has a lot of deficits, as has been pointed out in front of us, as to his intellectual capabilities, but he can relate in a logical sequence the facts that happened to him during his lifetime, and part of his memory deficit, I think is related to the treatment that he has had at the hospital. He was very, very ill when he came in and
he didn‘t respond to medication, so that we gave him a few electroshock treatments, and one of the side effects that usually is very self-limiting following this, and I think that his memory is sufficiently returned and I think that he can remember well enough events that have happened in his life, that I would consider him to be competent.”
He further testified that Costello is given tranquilizers to prevent hallucinations which would have no effect whatever upon his testimony. Costello had testified in response to Dr. Colbach‘s questions that he had not had an hallucination since leaving Rocky Butte Jail. Dr. Weissert also stated that Costello “is still sick, but I don‘t think this is the main concern or factor in whether he can testify or is competent. I think he‘s still mentally ill.”
In addition, the court questioned Costello, particularly as to motivation, and, unlike the reviewing court, observed the witness. The record demonstrates a witness who was illiterate and non-verbal, although reasonably able to function with numbers. He appeared to have limited intelligence, but that does not disqualify a witness. As the Supreme Court stated in State v. Canton, 76 Or 51, 57, 147 P 927 (1915):
“* * * That he is weak-minded appears from a perusal of his testimony, but this intellectual condition is not the ‘unsoundness of mind’ which is meant by the statute. * * *”
While Costello had memory deficits, they did not appear to be related to the events regarding which he was callеd to testify. There is no indication that his hallucinations existed at the time of the crime, that they related in any way to the events or personages of the crime, or that they continued to affect Costello at the time he was required to function as a witness.
“* * * [T]he inquiry is always as to the relation of the derangement or defect to the subject to be testified about. If on this subject no aberration appears, the person is acceptable, however untrustworthy on other subjects * * *.” (original emphasis). 2 Wigmore, Evidence 586, § 492 (3d ed 1940).
We are satisfied that the trial judge properly measured the evidence against the standards of perception and communication set forth in
Having approved of the manner in which the judge conducted the function of the court, we now turn to the propriety of the manner in which he allowed
Prior to the calling of the witness, the trial court advised defense counsel:
“THE COURT: You might give some thought before we resume this afternoon, I think the other day I told you I wouldn‘t permit you to ask where he‘s [Costello] been the last couple months, down at the hospital, but on reflection, I think you may have a right to * * * so I think you may have a right to go into where he‘s been and let the jury weigh the entire matter that he‘s being treated down there for problems. I don‘t know, but you think about it and see if you find a little law on it.
“MR. SUSAK [defense counsel]: I will.”
The trial court alerted the jury that there were special problems in regard to Costello‘s testimony. Upon the calling of Costello as a witness, the court advised them as follows:
“Now, members of the jury, before this witness testifies, I‘m going to advise you that this witness is the John Costello that you‘ve been hearing about in this trial up to this stage, and I‘m going to further advise you that Mr. Costello was sent to the Oregon State Hospital by me when I was Chief Criminal Judge about two months ago for treatment for emotional condition. Now, after our recess this morning, we had a hearing as prescribed by law, at which time I made a ruling and adjudged him competent to testify in this trial, but I want you to know where he‘s been and for what reasons. And by said ruling, of cоurse, that permits him to testify and of course, how much weight you want to give this man‘s testimony is entirely up to you, like it would be with any other witness. But as a matter
of law, I have ruled that he‘s legally competent to testify.”
The question asked and the sustained objection which found the second ruling assigned as error on appeal occurred during cross-examination:
“Q Mr. Costello, you‘ve indicated that you have a good memory. Can you remember who the President of the United States is?
“A No.
“THE COURT: Just a minute. We went through that this afternoon. Go ahead, for the record.
“MR. YOUNGMAN: I object to that as being irrelevant.
“THE COURT: The objection is sustained, and I don‘t want you to go through any questions we discussed at this hearing this morning when I had to rule on the ability of this witness, whether he was competent or not to testify.
“* * * * *
“THE COURT: All right. I‘m going to permit you to ask him, if its relevant to this case, but you‘re not going to go into questions to test him uрon his ability to testify because I‘ve already ruled on that. It‘s up to the jury to weigh his testimony.
“* * * * *
“THE COURT: Now before we proceed any further, Mr. Susak, I want to clarify my ruling a while ago when I said I‘m not going to let you go into matters we covered such as does he know who the President is. If you want to ask any questions relevant to the incident or the alleged robberies, that might test his memory that night, that‘s fine, but on the matters that aren‘t relevant as to what happened that night, as I indicated, I‘m directing you not to —
“MR. SUSAK: All right.
“THE COURT: — ask him.”
Great latitude should be given to the cross-examiner to test the memory and competency of the witness, but there are bounds to that latitude. While the drawing of the bounds is largely within the discretion of the trial judge, the considerations are different for attacks upon veracity or credibility, and attacks upon competency or memory, see McCormick, Evidence 93, § 45 (Hornbook series 1972), and we are here concerned only with the latter. An attack upon competency does not allow an unlimited inquiry into the mental history and condition of a witness. Such a general psychiatric or psychological inquiry would shed more confusion than light. Only those mental limitations which would affect perception and recall
“The existence of a derаngement of the sort termed insanity is admissible to discredit, provided that it affected the witness at the time of the affair testified to, or while on the stand or in the meantime so as to cripple his powers of recollection.”
The precise issue in this case, then, is whether the trial court precluded cross-examination dealing with mental limitations or treatment which relate to the ability of the witness to perceive, remember and relate the facts of the crime. Cf. State v. Goodin, 8 Or App 15, 30, 492 P2d 287, rev den (1972). Such questions as Dr. Colbach asked and counsel desired to ask, while doubtlessly helpful psychiatric tools, do not appear to relate to the ability of the witness to recollect events in his life. For example, while Dr. Colbach demonstrated that Costello had difficulty reciting four digits in reverse order and remembering a street аddress which the examiner told him, Costello as a witness appeared to have a command of event-related numbers which appeared to be unaffected by mental limitations. Regarding the event in question, he testified:
“Q (By Mr. Youngman [the prosecutor]): Mr. Costello, were there any guns involved?
“A Yes.
“Q What were those guns?
“A A .45, a 30.06, and .22.
“Q Will you tell the jury who had which gun?
“A Danny Longoria had the .45, I had the 30.06, and Jimmy Longoria had the .22.”
In a proper case, where there is indication that a witness suffers mental impairment affecting his testimonial capability, it may be proper to allow psy-
The cross-examiner is entitled to ask any witness questions relating to past or present mental condition or treatment which common experience or expert testimony shows to be related specifically to the ability to so testify. We need not draw the perimeter of
The defendant also assigns as error the denial of a motion for mistrial and of his motion for a new trial as it related to purported newly discovered evidence. We have reviewed the record fully and find no error to have been committed. However, discussion on these pages would not be useful to the bench and bar in the conduct of subsequent cases.
Affirmed.
SCHWAB, C. J., specially concurring.
Under the particular circumstances of this case I believe the trial court was too restrictive in the scope of cross-examination it indicated it would allow with regard to the witness Costello. Nevertheless, I am satisfied there was substantial evidence of defendant‘s guilt independent of the witness Costello, and therefore agree that we should not consider the matter in the
FORT, J., dissenting.
Defendant was convicted by a jury on four counts of robbery in the first degree. The offenses were committed in the early morning hours by at least three armed men, wearing stocking masks. The trial commenced on April 4, 1973. On that day, just prior to its commencement, the stаte informed the defendant that John Costello, an alleged accomplice of defendant in the commission of the crime, would testify for the state. Until that time the state had consistently informed the defendant that Costello was in a mental institution, was incompetent and would be unable to testify.
The court held a hearing in the absence of the jury during the trial to consider whether Costello, who on that day was brought to court from the state mental hospital, was competent. A major portion of the testimony related to his capacity to remember. Two psychiatrists were called. One said he was competent to testify, and the other said he was not. The court ruled he was competent to testify. He was then called as a witness by the state, having first been granted immunity from prosecution.
During crоss-examination of Mr. Costello, the following transpired:
“Q. [by defense counsel] Do you have a fairly good memory, Mr. Costello?
“A. Yes.
“* * * * *”
“Q. Mr. Costello, you‘ve indicated that you have a good memory. Can you remember who the President of the United States is?
“A. No.
“THE COURT: Just a minute. We went through that this afternoon. Go ahead, for the record.
“MR. YOUNGMAN [deputy district attorney]: I object to that as being irrelevant.
“THE COURT: The objection is sustained, and I don‘t want you to go through any questions we discussed at this hearing this morning when I had to rule on the ability of this witness, whether he was competent or not to testify.
“Q. (By Mr. Susak) Mr. Costello, do you know a gentleman by the name of Max Sagner?
“A. Yes.
“Q. Why don‘t you describe Mr. Sagner for me, please?
“MR. YOUNGMAN: I object to that as well, unless counsel can tie that up as to its relevance.
“THE COURT: Are you representing it‘s relevant to this case?
“MR. SUSAK: Yes, Your Honor.
“THE COURT: All right. I‘m going to permit you to ask him, if it‘s relevant to this case, but you‘re not going to go into questions to test him upon his ability to testify because I‘ve already ruled on that. It‘s up to the jury to weigh his testimony.
“* * * * *
“THE COURT: Now before we proceed any further, Mr. Susak, I want to clarify my ruling a while ago when I said I‘m not going to let you go into matters we covered such as does he know who the President is. If you want to ask any questions relevant to the incident or the alleged robberies, that might test his memory that night, that‘s fine,
but on the matters that aren‘t relevant as to what happened that night, as I indicated, I‘m directing you not to — * * * — ask him.”
3 Wharton, Criminal Evidence 266-67, § 871 (Anderson 1955) states:
“Cross-examination to impeach, diminish, or impair the credit of the witness is not confined to matters brought out on the direct examination. The witness may be cross-examined as to collateral matters not embraced in the direct examination to test credibility and veracity.
“Any question is allowed which reasonably tends to explain, contradict, or discredit any testimony given by the witness in chief, or which tends to test his accuracy, memory, veracity, character, or credibility. Great latitude is allowed in cross-examination upon matters bearing upon the witness’ credibility. Any cross-examination which permits an insight into the credibility of the witness is permissible. Inasmuch as the jurors are the sole judges of the credibility of the witness, any matter that will properly assist the jurors in forming a correct judgment from all the facts ought to be shown in evidence. * * *”
McCormick, Evidence 93, § 45 (hornbook series 1972) points out the distinctions between attacks on competency and credibility as follows:
“As to the mental qualities of intelligence and memory, a distinction must be made between attaсks on competency and attacks on credibility, the subject of this section. Sanity in any general sense is not the test of competency, and a so-called insane person may testify if he is able to report correctly the matters to which he testifies and if he understands the duty to speak the truth. Manifestly, however, the fact of mental ‘abnormality’ either at the time of observing the facts or at the time of testifying will be provable, on cross or by extrinsic evidence, as bearing on credibility. * * *”
“58 Am. Jur., Witnesses, section 699, pages 378, 379, states: ‘A person without memory is valueless, if not incompetent, as a witness. Hence, any evidence going to show that the mind and memory of the witness are impaired by disease or otherwise, and are in a feeble condition, is competent to discredit his testimony. This is permissible even though the witness may not be mentally incompetent to testify.’ For like statements see 98 C.J.S. Witnesses §§ 461 (f), 486, and 3 Wigmore, 3rd Ed., section 931.
“Testimony is admissible to impeach a witness by showing his mind and memory have become impaired [sic] and in an abnormal condition. State v. Alberts, 199 Iowa 815, 818, 819, 202 N.W. 519, 521; Alleman v. Stepp, 52 Iowa 626, 629, 3 N.W. 636, 637. Such evidence is admissible on cross-examination of the witness. [Citations omitted.]”
In Walley v. State, 240 Miss 136, 126 So2d 534, 535 (1961), the court said:
“* * * We think the case must be reversed for the exclusion of certain evidence proffered by defendant‘s counsel in his cross-examination of Ellis, the State‘s chief witness. The defense has a right on cross-examination to interrogate the State‘s witnesses concerning their mental capacity, perception, memory and trustworthiness. These were especially important issues as to Ellis. On cross-examination of him, counsel asked Ellis whether he was confined in a mental hospital in San Antonio, Texas two years ago. The district attorney‘s objection to this question was sustained. It should have been overruled. Whether Ellis has a history of previous mental disorders was a relevant fact for the jury to consider in determining his veracity.”
“Having passed the examination by the court and been sworn, the mental capacity of the witness may be tested and considered as bearing upon her credibility and her degree of intelligence. In Wigmore on Evidence, vol. 2, § 932, it is said:
“‘The existence of a derangement of the sort termed insanity is admissible to discredit, provided that it affected the witness at the time of the affair testified to, or while on the stand or in the meantime so as to cripple his powers of recollection.‘”
See also: Sturdevant v. State, 49 Wis 2d 142, 181 NW2d 523, 526, 44 ALR 3d 1196 (1971); 98 CJS 326, Witnesses, § 461.
In its brief the state acknоwledges “[i]t may, indeed, be questioned whether the court‘s ruling on this matter was entirely correct. * * * [I]t is at least arguable that some general questions concerning a witness’ memory and mental condition are permissible on cross-examination, for their bearing on the witness’ credibility.” But, it contends, “the rulings complained of in this assignment of error [do not] warrant reversal.” I disagree.
The psychiatrist who testified he considered Mr. Costello competent to testify said:
“I think that he‘s competent to relate the events pertaining to this burglary. He has a lot of deficits, as has been pointed out in front of us, as to his intellectual capabilities, but he can relate in a logical sequence the facts that happened to him during his lifetime, and part of his memory deficit, I think, is related to the treatment that he has had аt the hospital. He was very, very ill when he came in and he didn‘t respond to medication, so that we gave
him a few electroshock treatments, and one of the side effects that usually is very self-limiting following this, and I think that his memory is sufficiently returned and I think that he can remember well enough events that have happened in his life, that I would consider him to be competent.”
He also testified:
“He gets medication every night. He‘s getting some major tranquilizers, Thorazine and Stelazine, and as he told you, he takes it at nighttime and this is hopefully to prevent these hallucinations that he has had frequently in the past. He is still sick, but I don‘t think this is the main concern or factor in whether he can testify or is competent. I think he‘s still mentally ill.
“THE COURT: Has he ever told you about any threats on his life in your interviews?
“THE WITNESS: I think most of his hallucinations are persecutory. It‘s the voices of his father and his brother, who I think are both dead, that keep telling him to kill himself. ‘It‘s your turn, we‘re going to get you.’ And this is the thing I think that makes him so frightened and he has visions in his cell, or he did formerly, of somebody there that‘s obviously got a weapon and trying to kill him. These are the things that have been causing him to be suicidal. I think he‘s trying to escape these things.”
The other psychiatrist did not think Mr. Costello was mentally competent to be a witness at all.
Clearly then, his credibility as a witness was a significant issue both with respect to his capacity to remember and the degree of his current derangement. The court‘s second ruling, supra, made on its own motion limiting the cross-examination “to the incident of the alleged robberies, that might test his memory that night, that‘s fine, but on the matters that aren‘t
I therefore do not agree with the conclusion that defendant here is barred because he did not make an offer of proof concerning the nature and extent of Costello‘s current derangement. The nature and extent of that testimony was clearly known to the court from the hearing just previously held by it in the absence of the jury concerning Costello‘s competency to testify as a witness. It is obvious from the record set forth above that such an offer would have served no purpose.
Accordingly, I respectfully dissent.