State v. Luther

663 P.2d 1261, 63 Or. App. 86, 1983 Ore. App. LEXIS 2805
CourtCourt of Appeals of Oregon
DecidedMay 11, 1983
DocketC79-04-31252; CA 17011
StatusPublished
Cited by13 cases

This text of 663 P.2d 1261 (State v. Luther) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Luther, 663 P.2d 1261, 63 Or. App. 86, 1983 Ore. App. LEXIS 2805 (Or. Ct. App. 1983).

Opinions

[88]*88BUTTLER, J.

Defendant appeals his conviction for second-decree manslaughter. He assigns error to the trial court’s (1) failure to suppress evidence obtained by a search, (2) admitting the testimony and limiting cross-examination of a previously hypnotized witness and (3) refusing defendant’s requested instructions on self-defense. We affirm.

On the evening of April 13, 1979, defendant called police to report that his nephew, Mark Luther, had suffered a gunshot wound in an attempted suicide at the rooming house where both defendant and Mark lived. Defendant’s mother, Gena 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 at the house, officers Wong and Jimmerfield found defendant on the second-floor landing just outside Mark’s room, bending over him and holding a compress to Mark’s head.

The officers asked defendant where the gun was. Defendant first nodded toward Mark’s room and said, “It’s in there.” Wong searched the room but found no gun. He asked again, and defendant indicated his own room, the door to which was then open. Wong looked in but did not enter. Instead, he went to help the ambulance crew, which had just arrived, remove Mark. Wong had not seen a gun. Defendant said, “I don’t know where I threw the gun.”

After the ambulance attendants had left defendant and Jimmerfield went into defendant’s room. According to Jimmerfield, defendant invited him to come in and at no time objected to his presence. Jimmerfield believed at that time that he was investigating a suicide. He observed a revolver in a holster on the floor. Defendant told him that the gun was defendant’s old service revolver1 and that it had not been used in the shooting.

Jimmerfield then left defendant alone in his room and went downstairs to speak with Gena, who told him that defendant had shot Mark. Meanwhile, Wong saw defendant enter his room and close the door behind him. Wong knocked and told defendant that he needed to see the gun. Defendant came [89]*89out and closed the door behind him. Defendant then tried to re-open the door, but it was locked. When Wong asked him who had a key, defendant said that his mother did, so Wong had a third officer go downstairs to get it. Key in hand, Wong asked defendant if it was the right one, and defendant said that it “looked like it.” Wong believed that he was investigating a suicide and that defendant was consenting to his entering the room. Either Wong or a third officer, Walch, then opened the door, and Wong entered.

About the time Wong walked into defendant’s room, Jimmerfield, having heard that defendant had shot Mark, came back up the stairs, advised defendant of his Miranda rights, arrested him and escorted him downstairs. Without a warrant, Wong searched the room during the same time. When he saw a metal object between a travel bag and a love seat, he lifted the bag, and the gun fell to the floor. Wong did not remove the gun, but waited for detectives to do so after their arrival five or ten minutes later. Shortly thereafter, detective Newman had the gun photographed and delivered to crime laboratory personnel.

The court denied defendant’s motion to suppress the gun and made special findings. The warrantless search and seizure process here, as in State v. Evans, 10 Or App 602, 500 P2d 470 (1972), rev den (1973), involved not only a seizure incident to arrest, but an initial consensual search, the absence of an express revocation of that consent before the re-entry, evidence in plain view and exigent circumstances.

The question here is limited to the effect of the few minutes’ delay between the initial search and the seizure, during which defendant closed the door to his room. There is no question but that the police officers could properly have seized the gun during the initial search while they were present with defendant’s consent and in response to the emergency call. Absent express revocation of an initial consent, i.e., absent objection to a subsequent, closely related entry and search after the initial consensual entry and search, the permitted inference is that the initial consent continued. That, in essence, is what we held in Evans; it is precisely what the Alaska Supreme Court held in Phillips v. State, 625 P2d 816, 817 (Alas 1980). We do not construe defendant’s act of closing the door as a revocation of consent, because defendant tried to [90]*90open the door himself, told a police officer that his mother had a key and made no objection to the police obtaining the key or opening the door. The motion to suppress was properly denied.

Defendant’s next four assignments of error relate to various attempts by defendant to attack the testimony of Gena’s post-hypnotic testimony. In general, defendant contends that her testimony should have been excluded as contrary to the physical facts; that hypnotically induced testimony is per se inadmissible, and that defendant should have been allowed to present “evidence to the jury regarding the details of the hypnosis.” Defendant consolidated his argument on those issues, and by so doing has tended to blur them, particularly with respect to whether the issues were properly preserved in the trial court. We treat them separately after setting forth the background out of which they arise.

Defendant was indicted first on June 13, 1979, for assault. When Mark died four months later, that indictment was dismissed, and defendant was indicted by a second grand jury for murder.

Defendant’s defense at trial was self-defense. He testified that he and Mark had quarreled in Mark’s room, that he then went into the hall, heard Mark threaten to kill him and heard Gena say to Mark, “If you have a knife there, give it to me or put it away.” As defendant went to his room and got a gun, Gena started downstairs. Defendant testified that he had taken the gun to Mark’s room to scare him, but that Mark had grabbed the gun, which discharged in the ensuing struggle, wounding Mark.

Gena’s versions of the events differed from defendant’s and from one another. First she told the police that she had seen the shooting and that defendant and Mark were standing in their respective doorways — about seven feet apart — when the shot was fired. She testified before the first grand jury, but the record indicates that that testimony was not reported, so it was not disclosed to defendant, and we do not know whether the first version she gave to police was the same as the one she gave to that grand jury. After Mark died, Gena testified before the second grand jury. That testimony was reported and was made available to defendant. She told the second grand jury that she was on her way down the stairs and did not see the shooting. At trial, she admitted that she had “gotten emotional” and lied to the second grand jury.

[91]*91After her second grand jury appearance and before trial, Gena was hypnotized, apparently by a qualified hypnotist, at the prosecutor’s request. The prosecutor and his investigator, Robert Bitter, were present during the hypnosis session, and it was videotaped.2 Bitter asked the questions. He knew that Gena had given inconsistent versions of what she had seen and the location of defendant and Mark at the time the gun discharged. He was also aware of “a disparity” between Gena’s first version and information from police lab reports.

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Cite This Page — Counsel Stack

Bluebook (online)
663 P.2d 1261, 63 Or. App. 86, 1983 Ore. App. LEXIS 2805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-luther-orctapp-1983.