*1
17, 1981,
Argued
10,
January
In
submitted June
resubmitted Banc
11,
May
July
affirmed
reconsideration denied
petition
7, 1983 (295
617)
September
for review allowed
Or
1,
BUTTLER, J.
Warden, J., dissenting.
BUTTLER, J. appeals Defendant his conviction for second-decree manslaughter. He assigns (1) error to the trial court’s failure to suppress (2) by search, evidence obtained admitting the testi- mony and limiting cross-examination of a previously hypno- (3) tized witness and refusing requested instruc- tions on self-defense. We affirm. 13,
On the evening April defendant called police report Luther, that his nephew, Mark had suffered a gunshot wound in an attempted suicide at the rooming house where both defendant and Mark lived. mother, Defendant’s Luther, owned the house and let rooms on the top two floors. Defendant and Mark had rooms on the second floor across a hall from each other. On arriving house, at the officers Wong and Jimmerfield found defendant on the second-floor landing just room, outside bending Mark’s over him and hold- ing compress to Mark’s head.
The officers asked defendant gun where the was. Defendant first nodded said, toward Mark’s room and “It’s in there.” Wong searched the room but gun. found no He asked again, and defendant room, indicated his own the door to *3 open. was then Wong looked in but did not enter. Instead, he went help crew, to the ambulance which had just arrived, remove Wong Mark. had not seen a gun. Defendant said, “I don’t know where I gun.” threw the
After the ambulance attendants had left defendant and Jimmerfield went into According room. to Jimmerfield, defendant invited him to come in and at no time objected to his presence. Jimmerfield believed at that time that he investigating a suicide. He observed a revolver in a hol- ster on the floor. Defendant told him that the gun was defen- dant’s old service revolver1 and that it had not been used the shooting.
Jimmerfield then left defendant alone in his room and went speak Gena, downstairs to with who told him that defen- dant Meanwhile, had shot Mark. Wong saw defendant enter his room and close the Wong door behind him. knocked and told defendant that he needed to see the gun. Defendant came
1 deputy Defendant is a former sheriff. Defendant then tried him. the door behind out and closed asked him Wong When door, it was locked. but re-open did, Wong so mother that his defendant said key, had a who hand, Wong in Key it. get downstairs go had a third officer one, said that right and defendant if it was the asked defendant a investigating that he was Wong like it.” believed it “looked entering to his consenting and that defendant suicide Walch, officer, opened then Wong or a third room. Either door, Wong entered. room, into defendant’s Wong the time walked
About Mark, had shot Jimmerfield, having heard that defendant Miranda stairs, defendant of his up came back advised Without him downstairs. rights, arrested him escorted during When warrant, searched the room the same time. Wong seat, he and a love bag he between a travel object saw a metal Wong did not gun and the fell to the floor. bag, lifted the so after their remove the but waited detectives do gun, thereafter, Shortly arrival five or ten minutes later. detective crime and delivered to gun photographed Newman had the laboratory personnel. suppress
The court denied defendant’s motion to search and gun special findings. and made warrantless Evans, here, State App seizure process rev den (1972), (1973), only a inci- P2d 470 involved not seizure search, arrest, an initial the absence of dent but consensual re-entry, an before the evi- express revocation of that consent plain exigent dence in view and circumstances. limited question is to the effect of the few here seizure, delay between the initial search and the dur
minutes’ door to his There no ing which defendant closed the room. have seized question police properly but that the officers could with they while gun during present the initial search were emergency call. response defendant’s consent and in i.e., consent, initial absent express Absent revocation an entry and closely related search objection subsequent, search, permitted entry and after the initial consensual *4 That, in continued. that the initial consent inference is Evans; what the precisely in it is essence, is what we held State, Phillips 625 P2d Supreme Court held Alaska 1980). closing (Alas defendant’s act We do not construe consent, defendant tried to as a because the door revocation open himself, door police the told a officer that his mother had key a and made no the objection police obtaining key to or opening suppress door. motion to was properly denied.
Defendant’s next four assignments of error relate to attempts by various to attack the testimony of Gena’s post-hypnotic testimony. In general, defendant con- testimony tends that her should have been excluded as con- trary facts; the physical to hypnotically that induced testi- mony inadmissible, per se and that defendant should have present been allowed to jury regarding “evidence to the hypnosis.” details of the Defendant consolidated his argument issues, by them, on those and doing par- so has tended to blur ticularly respect with properly pre- to whether the issues were served in the We separately trial court. treat them after setting forth the out of background they which arise. 13, 1979,
Defendant was indicted first on June for assault. When later, Mark died four months that indictment dismissed, and defendant was indicted grand second jury murder.
Defendant’s defense at trial was self-defense. He tes- tified he quarreled room, that and Mark had in Mark’s that he hall, then went into the heard Mark threaten kill to him and Mark, there, heard say you Gena “If have a knife give it to away.” put me As got defendant went his room and gun, Gena started downstairs. he Defendant testified that had gun him, taken the room Mark’s to scare but that Mark had grabbed gun, discharged in the ensuing struggle, wounding Mark.
Gena’s versions the events differed defen- from dant’s and from one another. First she told police that she had seen the shooting that defendant and Mark were — standing respective doorways their apart about seven feet — when the shot was fired. She grand testified before the first jury, but record indicates was not reported, defendant, so it was not do disclosed we gave police know whether the first version she was the same grand jury. died, as the one she gave After Mark testified before the grand jury. second That reported and was made available to defendant. She told second grand jury way that she was on her down stairs and did not see the At shooting. she admitted that she had “gotten grand jury. emotional” and lied to the second
91 and before jury appearance grand her After second hypno- by qualified a trial, hypnotized, apparently Gena was his inves- tist, request. prosecutor and prosecutor’s the at during hypnosis ses- Bitter, present the tigator, Robert were He sion, questions. Bitter asked the videotaped.2 and it was versions of what she given Gena had inconsistent knew that and at the time of defendant Mark had seen and the location disparity” “a between He was also aware of gun discharged. the reports. lab police and information from Gena’s first version them closer being her if recalled He “to ask she wanted influence Gena to although trying he denied together,” together. He Mark to have been close remember defendant and did, however, questions about hypnotized ask the Gena several from Mark. defendant’s distance three feet trial, that defendant was
At Gena testified having ever gun She denied discharged. from Mark when version, except that for her anything related inconsistent with grand jury. to the second expert physical evidence, according to the wit- nesses, weapon no more than discharged indicated that spatters on three feet from Mark. The evidence included blood to have room, ceiling Mark’s a in the believed door to hole bullet, on Mark’s head. In powder been a burns caused criminalist, was shot while of the state’s Mark opinion out, doorway and and the bullet had looking or close to the upward. travelled court assignment is that the trial
Defendant’s second to introduce evidence allowing erred defense counsel hypnosis and what Gena said or did while under regarding questions her. When defense coun type what were asked of hypno had put sel asked the witness whether she been sis, that, first, defen objected. state The trial court ruled hypnosis subjected she had been inquire dant could whether jury and whether appearance grand after her before the second and, second, he recollection of what occurred changed her story she told could also show the difference between pretrial videotape purposes Although of defendant’s motion was admitted it; testimony, viewed at the we have not but not as evidence to exclude Gena’s any trial. We judge he ruled the motion for a new trial time before neither had the at here, description, rely judge, the state’s lack counsel’s the trial on defense did testimony. description objection to and Bitter’s and Gena’s hypnosis story
before
and the
she
at
told
trial. The court indi-
permit
cated that
it was not going
regarding
evidence
what occurred while the witness
hypnosis.
was under
Defense
that,
counsel then asked whether he
could make
record on
judge
“Surely.”
trial
responded,
Counsel then stated that he understood the court’s
ruling and that he
would make
record “sometime before the
jury comes back.” He
Supreme
never did. The
Court
stated
has
is
proof
required
doubtful whether an offer
where
Shepler
cross-examination,
an objection
is sustained on
Weyerhaeuser Company,
477, 569
(1977),
P2d 1040
(Arthur
in the cases
which have held that it
necessary
was not
*6
Parish,
Lenske,
582, 47
Or
Beemer v.
(1935),
150
P2d 682
241
47,Or
Davidson,
and State v.
252 Or
(1965),
The third error is the trial court that in denying pretrial prohibit erred motion to testimony or, alternative, of Gena in the to limit testi her mony. The grounds that written motion were her that “tes timony contrary would be physical to and highly preju fact dicial to the defendant.” The was alternative that Gena be testifying limited to to contrary matters which were not to physical fact. The support memorandum in of that motion contended, first, testimony aof witness is con “[w]here trary physical fact, to prohibit the court should such testi mony.” testimony contrary It then asserted that Gena’s “is to Second, physical fact scientific evidence.” it contended attorney the investigator attempted and the district and, hypnosis, alter beliefs of Gena while she was under as from her not be of facts derived result, testimony may “her point, On 44.060.” this required ORS perceptions own memorandum concluded: Attorney attempted to con- investigator and District “The fact, This which it doesnot. testimony physical Gena’s form incompatible testimony with only her that not is indicates attorney fully fact, is aware physical but also that the district this fact.” motion, reiterated on the argument At oral hypnotic that the session and went on to contend points those testimony to be in change an Gena to her attempt cause evidence, did not and that defendant physical accord with the “* * * recalling, she is recall- know now what she is whether recalling she what ing thinks she saw or whether what she suggestion hypnosis.” she under the she thinks saw that he would like be point, At that defense counsel stated that, on the court testimony able to take some to which “Surely.” counsel asked for “a moment” responded Defense stated, and then that, put testimony
“I on Honor. I would will not on Your put testimony impossibility Mrs. regarding like to totally [contrary] to proposed since it’s Luther’s physical fact and scientific evidence.” concerning videotape of the
There was some discussion session, oppor- had had the which defense counsel attorney that there tunity to review. The district stated any attempt try change or alter Gena’s never plan- he through hypnosis, but stated state was *7 that videotape. to offer the Defense counsel stated the ning itself, be speak requested would for and that it marked as tape — part a of case defense exhibit and “become of the file this jury the but the record.” not for submission to for it part The court directed that be made a of the record “— The to time.” court then not for submission the at this prohibit motion to or limit Gena’s testi- denied defendant’s mony, stating: event, “Well, any point. at in willbe denied this the Motion course, have, opportunity to I may of said earlier an
You testified, if there after witness has renew that Motion the for might it have some values any to indicate that reason impeachment purposes.” of motion. error in the denial that
There was no We find in the nothing record to indicate that defen- dant, trial, at time during the the offered evidence vid- eotape of the session Gena. It infer- involving may be reasonably red from the record that defendant wanted the trial judge to the videotape review pretrial connection with his motion prohibit to testimony, apparently pur- Gena’s the for pose of showing that Gena had given inconsistent stories state, that through hypnosis, had induced change her to her testimony facts, to to physical “conform the does reason, contended, not.” For that testimony prohibited. should be trial judge The did not the vid- review eotape, but no error is assigned ground. on that question
The
up again
came
on
motion
defendant’s
for a new
denial of which is the basis for
fifth
assignment
based,
of error.
among
That motion
other
was
things,
ground
on
prosecutor
that the
committed miscon-
by
duct
“hypnotizing Gena Luther in
conform
attempting to
her
to
testimony
his
the facts, contrary
desired version of
to
physical
evidence which he had knowledge” and “introduc-
ing testimony he knew
contrary
was
In
physical facts.”
his
in support
contentions,
memorandum
of those
the defendant
distinguished
Jorgensen,
State
App
prior testimony did to trial not render her inadmissible. psychiatric testimony state offered woman had suf- memory fered a loss of the whole as a affair result of crimes, produced by trauma but her been amnesia had memory psychiatric corrected and her restored series interviews, hypnosis. which included Her was held subject admissible because she was to cross-examination and pretrial hypnosis her was disclosed the defendant.”
Defendant Jorgensen did not contend that wrong. he urged distinction was: case, “In upon this Gena Luther’s her based memory through pretrial which was ‘restored’ induced hypnosis, contrary physical evidence.” motion, During argument on the court was asked view the videotape, which not then located. could be Because time for ruling expire, the motion was about did the court not have an opportunity tape. to view the
95 can find in of all that we foregoing the recitation From we conclude that relating hypnosis question, to the the record testimony Luther’s was never contended that Gena defendant hypnotized. Fur- solely she had been not admissible because whether ther, did not make a record of because defendant after hypnosis she knew what occurred while Gena, of court limited defense counsel’s examination the trial say, erred, prejudicial it was cannot if the trial court we error. defendant, during if Jorgensen, supra,
Under State session, it hypnotic of the videotape had offered the showing, of purpose have admitted for the should been change to her contended, persuaded that Gena was and testimony grand jury from the second what was before Instead, the trial. He did not do so. he elicited what it was at Gena had at different times given facts that different versions not at time of the as to what she observed or did observe the at killing hypnotized and that she had been after she testified jury. that her statement to the grand the second She admitted shooting second that she did not see the grand jury defendant, protect true that she so testified to the who videotape of the her son. Defendant’s counsel had reviewed the session, and it is at least reasonable conclude impeach by her relying he made a tactical decision to her admittedly lied prior having inconsistent statements her jury, videotape than to offer the grand second rather see how handled. for itself it was legislature Jorgensen recognized rule was years after that decision ORS 136.6753 was enacted. six when testimony of of That as a condition to the use requires, statute subjected hypnosis, “the entire person who has been videotape any or mechanical be recorded either on procedure provides: ORS 136.675 proceeding prosecution any in of the State either or defense criminal “If defendant, any including Oregon person, who of intends to offer any subjected of hypnosis, form the exertion or other of has been mesmerism suggestion power power of which is intended to or results a state will or the subject trance, relating sleep partial to the matter or entire or unconsciousness testimony, by any person, proposed performed use it shall be condition procedure videotape either on or that the entire be recorded of such recording unabridged videotape recording or mechanical device. mechanical parties party ORS in accordance with made to the other shall be available 135.805 to 135.990.” recording device.” The statute also requires videotape that the or recording be made available to the other party. It seems obvious that purpose of the requirement is to give the other party an accurate record of what occurred permit an attack *9 on the credibility of the witness showing jury what was done with the witness during session.
In his assignment, sixth defendant contends that the trial court erred in denying discovery of Gena’s testimony before the first grand jury. portion of the transcript set out assignment this occurred at the hearing on defendant’s motion for a new trial when defendant was attempting show prosecutorial misconduct by “introducing testimony he knew was contrary to physical facts.” The assignment does not com ply with 7.19, ORAP and we will not consider it.
We note that there was a written pretrial motion to compel discovery of testimony Gena’s “before the grand jury,” without indicating which one. From the record of the hearing motion, on that it is not clear whether the motion related to testimony before more than grand one jury. Defendant con- tended that he was entitled to that discovery, “the only ques- tion when,” would be supposed he was discretionary with the court. The trial court denied the motion at that time with the understanding that, if a witness testify were to at trial who had testified before the grand jury, “I might have to review it.” The record reflects trial, that at the time of after jury selec- tion was completed, the state turned over to defense counsel “grand Gena’s jury testimony.”
The issue did trial, not arise again during and Gena was not asked on cross-examination what she told the first grand jury. In his motion for a new allege defendant did denial of that discovery as a ground; only he pros- asserted misconduct, in, ecutorial among other things, failing pro- vide defendant with Gena’s testimony before grand jury until after the trial begun. had
Lastly, assigns error to the trial court’s refusal to give requested his instructions con trary physical self-defense, facts4 and on particularly as to provocation and duty to retreat. assignment; Defendant asserts the error as his fourth we consider it out of order up breaking assignments.
to avoid the discussion of related relating instruction a detailed Defendant submitted review of the From our contrary physical facts. adequately covered they we conclude given, instructions instruction, the requested essence of defendant’s evi- upon based finding “a cannot be told that specifically There physical facts.” to established opposed dence which was no error. by reading Uni- court instructed on self-defense (defense person), applicable 403.11 Jury
form Instructions (use force in defense of a deadly physical of 403.13 portions 161.015(7) force), 161.015(3) (deadly physical person), ORS 161.055(1) (state’s dis- (serious burden to injury), physical (use in defense of self-defense), physical 161.209 force prove (limiting use of portions of 161.219 person) applicable force). added a brief statement The court deadly physical ordinary person an belief’ as that of defining “reasonable acci- contrasting and a brief statement defendant’s situation intent or recklessness. dent with *10 specifically provocation did not instruct on
The court
Jury Instruction
See ORS 161.215 and Uniform
aggression.
lim-
instructions on those
Defendant submitted three
403.12.
the court’s
assigns
only
but
error
itations to self-defense
provocation,
on
dis-
lengthly
instruction
give
failure
use of force. The
defendant’s threat of force from
tinguishing
comments
requested
impermissible
instruction included
The court
province
jury.
and invaded the
of the
the evidence
to the effect that
requested
of the
instruction
adopt
did
much
only
mental
as it was
consider defendant’s
state
jury
had to
i.e.,
the time of
discharged,
at
“precise
gun
at the
moment” the
instruc-
discharge.
requested
use of force or of accidental
obfuscated, not
redundant and would have
partially
tion was
jury’s responsibility.
and the
clarified,
jury
issue for the
jury
of the
on its
focused the attention
instruction
The court’s
no further clarification.
required
task and
duty instruction on
requested
also
an
Defendant
(1905);
P 53
State
Gray, 46 Or
retreat,
on State v.
based
Jury
(1919); and California
Rader,
432,
Affirmed.
WARDEN, J., dissenting. The majority says that the trial court did not err in limiting defendant’s witness, cross-examination of the state’s Luther, who, after testifying before grand jury questioned before by the District Attorney’s investi- gator hypnotized while she was in a state. The majority has concluded that it was not error for the trial court to limit the defendant’s cross-examination of Gena with regard hyp- to the notism. Because I disagree, respectfully I dissent.
When Luther, defendant’s counsel asked Gena “After appearance before the Grand Jury, did for the [counsel you put have hypnosis?,” under objected. state After state] some colloquy presence outside the jury, the court ruled: you “All are entitled to show is the between the difference story she story later, told and the she tells Ibut am not before going permit any presented evidence to be before the * * *
regarding during what occurred while the time she was hypnosis.” (Emphasis supplied.) ruling With that the trial court further cross- foreclosed examination of regarding the witness what had occurred at the time of hypnosis. majority error, concludes there no
because defendant did not make an proof. offer of The major- ity goes say: on to
“* * * questions We do not know what additional would have been Assuming asked. hyp- a witness who has been competent testify notized is as to what occurred while he hypnosis, was under question the threshold is whether the wit- ness states that he happened. says knows what If he he does *11 remember, not that is the end of the matter. Because Gena was asked, jury proof, either before the or as an offer of whether happened, she knew what we cannot tell whether the court’s ruling, assuming erroneous, prejudicial.” it to have been was App 63 Or at 92.
But this was
witness,
cross-examination of the state’s
and an
offer of proof
necessary
is not
as
sought
to matters
to be elic-
Davidson,
ited on
617,
cross-examination.
State v.
252 Or
622-23,
(1969);
S.I.A.C.,
The proof preserve sought make an offer of error to matters cross-examination, its affir- attempts justify on be elicited defendant to cross- mance of the trial court’s refusal to allow majority the record. The fully by misstating examine says question are not told “what was asked that the court we App question ruled be Or at 92. The could not answered.” 63 paragraph second quoted verbatim the first sentence of the of this dissent. majority only is in error it assumes that the when
question might might be entitled to ask or wish pertained hypno- ask to “what occurred while was under [she] might questions regarding sis.” Defendant have wanted to ask e.g., hypnosis place, the conditions under which the took administered, persons whether were the number of drugs were, present, they profession occupations, who their or where hypnosis place, place represen- took when it took and what hyp- and after the tations were made to the witness both before intimate that such majority nosis session. The does not even improper. upholds cross-examination would have been Yet it inquiry. the trial court in forecloseing all majority says it cannot tell whether the court’s error, ruling prejudicial even if it was because the witness asked, proof, in an offer was not either before the hypno- she was under happened whether she knew what while above, cross- pointed right sis. As I have out defendant’s asking examine the is not limited to her what she witness hypnosis; remembers of what occurred while she was question” “threshold right majority’s to ask even the in the same denied; and, majority recognized as the earlier defendant need forgotten, then seems to have paragraph but proof not make an offer of cross-examination. court’s denial
There is no doubt the trial presumed error. It is to cross-examine was right not, be it was it must showing prejudicial. be Without found to be so. *12 (63 95) that “defen- App conclude Or at majority testimony was not never contended that Gena Luther’s
dant In the hypnotized.” she had been solely admissible because prohibit his motion to Gena supporting pretrial memorandum as a reason: testifying, gave from attorney may investigator “Because the for the district Luther, change hypnosis, her caused Gena under have testimony may of perceptions, other own not be believed some perceptions required by and she should her as ORS 44.060 own prohibited testifying.” be from to have certainly appears
That to be sufficient language testi- objection defendant’s to Gena’s alerted the court that hypnotism ses- mony happened during was based on what sion. in the record to indicate majority nothing “finds” evi- defendant, during the offered into any at time involving session videotape hypnotic
dence the
of the
counsel
not
to be offered. Defendant’s
Luther. It was
available
The state then lost it
to view it before trial.
had been allowed
after the time had
again
it
until
produce
and was not able to
motion for a new
for the court to rule on defendant’s
expired
that,
State v.
say
on to
majority goes
trial. The
(1972), if
(1971), rev den
Jorgensen,
App
After provides: which any proceed- in prosecution
“If or criminal either defense any of ing Oregon intends to offer the the State defendant, including subjected who been person, has will hypnosis, form of the exertion of mesmerism or other power suggestion is intended to or power trance, sleep partial uncon- state or entire or results proposed testi- relating subject to the matter of the sciousness mony, by any person, of the performed it shall be a condition procedure testimony that be recorded use of such the entire *13 videotape recording either or mechanical device. recording
unabridged videotape or shall be made mechanical party parties ORS available to other accordance with 135.805 to 135.990.” discovery seq provide pretrial et for in criminal
ORS 135.805 cases. Affirmance of the the trial court’s decision in this case meaningless renders ORS 136.675 overrules our decision Jorgensen. required by statute, As the state made the videotape court, however, available to defendant. The trial (and any tape ruled that the other evidence what occurred matter) session, during could not be used by mockery makes a ruling defendant. That hollow discovery provided encourage in the statute. We should not it. affirming
I respectfully dissent. Hoomissen, J., joins in this dissent.
Van