458 P.2d 687 | Or. Ct. App. | 1969
Lead Opinion
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *155 AFFIRMED. Defendant was indicted in Coos County for first degree murder as a result of an armed robbery in which the victim was shot and killed. Venue was changed to Douglas County where defendant was tried and found guilty of second degree murder by jury verdict.
Defendant has appealed from the verdict, making eight assignments of error.
In the first assignment, defendant contends that the trial court erred in refusing to issue a certificate *156
for attendance of a Massachusetts expert witness material to the defense. ORS
"If a person in any [other] state * * * is a material witness in a prosecution pending in a court * * * a judge of such court may issue a certificate * * *." (Emphasis supplied.)
The Act provides that the certificate go to a court of the witness's state of residence, if that state has the Uniform Act. That court determines whether the witness will attend the trial.
In the case at bar the defendant requested certificates for two weapons experts, one each from California and Massachusetts, as witnesses to counter the testimony of the state's weapons expert. When the request was made before trial, the trial judge ordered witness fees and travel expenses for both witnesses to be paid in advance, but denied the certificates on the ground that an expert cannot be required to give opinion testimony. In a letter to the judge before trial, defendant's counsel renewed his request for the certificates.
The expert from California attended the trial and testified for defendant on all material matters upon which the state's expert testified, and upon which the Massachusetts expert allegedly could have testified had he been present. The Massachusetts expert had agreed to come to the trial, but mistook the date and came a week late. He returned the $655 warrant that had been sent him for fees and expenses, saying the error was his. Defendant's counsel rested without moving for continuance or making other motion or observation *157 regarding the absent witness or alleged need for his testimony. Until well after the trial was over, the trial judge had no way of knowing that defendant was not satisfied with the quality or quantity of weapons-expert testimony he actually had been able to produce.
In a Memorandum denying motion for a new trial, the trial judge indicated that he was still of the opinion that the witness could not have been required to testify to opinion evidence, and that the desired testimony of the Massachusetts expert was given by one or more witnesses who did testify. He said that there was no assurance that, had a certificate been issued, the Massachusetts expert would have attended, and that blame for his late arrival could be laid entirely at the doorstep of the defendant. These reasons may have merit, but we believe that when defendant, after having elicited the testimony he did from the California expert, rested his case without moving for a continuance, he waived any remedy he might have had concerning the absent witness. Furthermore, the language quoted above from ORS
In Thompson v. United States,
The second assignment of error asserts that "all knowledge and information" obtained (1) from an April 17, 1967, lineup, which included the defendant without the presence of defendant's counsel, and (2) from certain witnesses shown defendant's photograph, or shown the defendant by himself, should have been suppressed. The third assignment of error covers the same subject matter.
With reference to the lineup conducted without defendant's counsel being present, the claim of error is based uponUnited States v. Wade,
With reference to the second point under these assignments, the rule as stated in Stovall is that a claimed violation of due process of law in the conduct of a confrontation between witness and accused by photo or in person depends upon the totality of the circumstances surrounding it. This rule was subsequently explained in greater detail inSimmons v. United States,
"* * * [W]e hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification * * *."
390 US at 384 .
In Crume v. Beto,
At least five witnesses positively identified Smith, the defendant, as the armed robber who shot the victim in a small parking area adjoining the victim's cafe in a daylight robbery in the downtown section of Coos Bay. The parking area was in full view of the adjoining streets. Each of these witnesses saw him at close range, and he wore no mask or other similar device. Neither the observation of defendant standing alone in the police station by one of these witnesses during the investigatory process, nor the fact that pictures of defendant in a group of pictures shown witnesses were in color while the others were not, nor that another witness saw him in custody in jail clothes before identifying him was as suggestive as the procedures approved in Crume. There is no basis for the due process challenge of these assignments.
In the fourth assignment of error, defendant contends that the trial judge should have allowed him to use two police officers' notes about witness interviews in cross-examination of those witnesses for impeachment purposes.
The trial court did not refuse to allow defendant's counsel to see the notebooks. They were marked as exhibits without objection from the prosecutor. The notebooks were not excluded as a basis for cross-examining the officers who made them. What was disallowed was the use of the notes in an attempt to establish prior *161
inconsistent statements of other witnesses. The thrust of the defendant's argument appears to be that the notes should have been used as though they were complete statements in themselves. The matter was raised several times by counsel. The trial court told counsel, as the rulings were made, that the officers could be required to testify as to the statements of the witnesses recorded in their notebooks, and the whole statements thus recollected would have been available for impeachment. The trial court's ruling was correct. As stated inState v. Jacobs,
If counsel wished to test the permissibility of using the possibly incomplete or inaccurate knowledge gained from the notebooks, he could have posed impeaching questions to the witnesses on cross-examination.
"* * * [B]ut before this can be done, the statements must be related to him, with the circumstances of times, places and persons present * * *." ORS
45.610 .
Counsel also could have done so upon asking the court to recall the witnesses for further cross-examination. He laid no such foundation, and defendant cannot now be heard to complain.State v. Sing,
For his fifth assignment or error the defendant claims that when the court gave the statutory definition of malice with reference to second degree murder it was in error.
ORS
"* * * [T]he term 'malice' means hatred, ill will or hostility to another, but this is not necessarily its meaning in law. In its broadest legal sense, it means the state of mind of a person, irrespective of his motive, whenever he consciously violates the law * * *." Clark Marshall, Crimes 279 (7th ed 1967).
ORS
The evidence and the verdict necessarily disclose that the jury found the defendant to be the lone person who was committing an armed robbery when the killing occurred. The evidence, without question or contradiction, was that the victim and one Martin Johannessen were talking together. The victim had in cash in his hands several thousand dollars which he had just brought from a bank across the street, and, in accordance with his custom, was about to take into his cafe for use in cashing paychecks of workmen who patronized his business. The assailant held a gun on the victim and when Johannessen moved he turned, shot at him and missed; assailant turned back to the victim, who refused to give up the money, and while *163 he was trying to pull it from his hand the gun fired again, and the victim fell. He died soon after of his wound. Money flew in every direction, but some remained in his grasp. The assailant, with gun in hand, gathered up some of the money and fled in an automobile parked nearby with its engine running. In support of the instruction given, such conduct on the part of the assailant could be interpreted only as importing a wish to "injure" another; as importing hostility toward the victim.
However, we need not decide whether the substance of the instruction was correct. ORS
"* * * Where, however, the evidence of a homicide shows that it was committed in the perpetration of * * * one of the felonies enumerated in the statute defining murder in the first degree, and not otherwise, an instruction on the different degrees of homicide is improper * * *." State v. Wilson,
182 Or. 681 ,685 ,189 P.2d 403 (1948). (Emphasis supplied.)
To the same effect see State v. Brown,
Although lesser offenses should not have been submitted, and due to this the statutory definition of malice should not have been given in the case at bar, the defendant was not prejudiced. In State v. Hood, *164
The court instructed the jury in the words of ORS
"A witness is presumed to speak the truth. This presumption, however, may be overcome by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character or *165 motives, or by contradictory evidence. Where the trial is by the jury, they are the exclusive judges of his credibility."
In the sixth assignment of error, defendant claims use of this instruction nullified the presumption of innocence to which defendant was entitled.
The claim would merit serious consideration had the defendant not put on a case. However, the defendant took the stand, produced eight other witnesses and undertook to impeach state's witnesses. United States v. Boone,
"When only prosecution witnesses have testified, the presumption of truth may be tantamount to an assumption of guilt in the jury's mind, and thus conflict with the presumption of a defendant's innocence. Where, as here, both parties have produced witnesses, neither is favored by the presumption of truth * * *."
401 F.2d at 661 .
There is no merit to this assignment of error.
After the trial, defendant moved the trial court to allow "interview of jurors by defense investigator to determine if any matter exists to the knowledge of such jurors which would be the basis for a motion for a new trial."
No cause was alleged or shown why the jurors should be interviewed, except the conjecture that investigation might turn something up. The motion was denied, and this is assigned as error.
Fishing expeditions of this nature after trial by disappointed litigants seeking some presently unknown but possible cause for a new trial are universally *166
condemned. Parker v. Gladden,
The eighth assignment of error is merely reiteration of the previous assignments.
The judgment is affirmed.
Concurrence Opinion
The indictment in this case charges that the defendant "purposely and of deliberate and premeditated malice" killed another. It does not charge the commission of felony murder. It is well established that the trial court normally shall instruct on all of the degrees of homicide under such an indictment. State v. Ellsworth,
The court here holds that the jury should have been instructed only on felony murder, relying on State v. Reyes,
In the former case, the Supreme Court held that it was proper to introduce evidence of felony murder, and to instruct thereon, under an indictment charging a defendant not under the felony murder clause but for a killing committed under the "purposely and of deliberate and premeditated malice" clause. In that case, however, the court did instruct on all of the degrees of murder. The trial court here followed that procedure.
The indictment in State v. Wilson, supra, charged a killing under the felony murder clause, not one committed under the "purposely and of deliberate and premeditated malice" clause. The language quoted from the majority opinion was set forth in relation to a felony murder indictment, and in my view is so limited in that opinion. Thus I find it necessary to decide whether the instruction on malice was prejudicial. The defendant here, after all, was not convicted of first degree murder, but of second degree. Neither party objected to the submission of second degree murder to the jury.
I believe that the court, under the circumstances of this case, did not err in its instructions defining "maliciously" as used in the second degree murder statute. ORS
"(1) Any person who kills another purposely and maliciously but without deliberation and premeditation * * * is guilty of murder in the second degree."
Here the defendant filed no requested instruction relating either to second degree murder or to the meaning of the words "malice" or "maliciously." The instruction defining "maliciously" was given substantially *168
in the language of the statute. ORS
"As used in the statutes relating to crimes and criminal procedure, unless the context requires otherwise:
"* * *
"(4) 'Malice' and 'maliciously' import a wish to vex, annoy or injure another person, established either by proof or presumption of law."
The legislature has the right reasonably to define the terms employed in the statutes which it enacts. It was not in my view error here to instruct on second degree murder, nor was any exception taken thereto by either party.
Since I believe the jury was adequately instructed concerning the crime of which he was convicted, I concur in the result. *169