State v. Parker

384 P.2d 986, 235 Or. 366, 1963 Ore. LEXIS 341

Opinions

O’CONNELL, J.

Defendant appeals from a judgment of conviction for the crime of murder in the second degree. This is defendant’s second appeal. In State v. Parker, 225 Or 88, 856 P2d 88 (1960) we reversed a judgment of con vietiou for second degree murder because of error in admitting hearsay testimony.

Two of defendant’s assignments of error require comment. These are (1) that the state failed to establish venue in Multnomah county where defendant was tried,

Footnotes

•

① and (2) that the misconduct of state’s counsel during his final argument to the jury deprived defendant of a fair trial.

Defendant was charged with killing Robert Holloway. Holloway’s body was found in a well in Columbia county. Other facts are set out in detail in our former opinion. Defendant contends that there is no evidence of any acts committed by defendant in Multnomah county requisite to the consummation of the crime with which he was charged.②

There is no evidence tending to show in which county the fatal blow was struck or where Holloway died. However, there was evidence that defendant purchased whisky in Portland and that it was used by defendant to lure Holloway into an automobile in Portland for a trip from which he never returned. Violet Bostwick, a witness for the prosecution, testified as follows:

“Q All right. Now, did he [Parker] tell you anything else * # *

“A Well, he talked about — he told me that he had gotten Holloway into the car to take him.

“Q Did he tell you. how he had gotten him into the car?

“A Well, I asked him, I said, Well, how could —if you and Holloway and Keith were all arguing,’ I said, I asked him how he could get Holloway into the car; and he said that they had, that he had gotten two fifths of whisky. He said Holloway would go anywhere for a drink, and then he said that — well, anyway, he was — I don’t remember his exact words, 'but I know he was angry at Keith because Keith had drank, because he said that Keith had drank most of the whisky.”

The question presented is whether the described conduct is within the language of ORS 131.340, “acts or effects thereof constituting or requisite to the consummation of the crime.”③

Similar statutes in other states have been variously interpreted.④ In some jurisdictions it is held that if the act committed in one county does not constitute an element of the crime charged, that county does not have venue.⑤ On the other hand, it has been held that the act in the county in which defendant is tried need not be an essential element of the crime.⑥

In the present case defendant’s acts in Multnomah county as described by witness Bostwick were not essential elements of the crime of second degree murder. But it is not necessary to determine whether ORS 131.340 is to be construed broadly as in People v. Megladdery, 40 Cal App2d 748, 106 P2d 84 (1940), or narrowly as in State v. Rider, 46 Kan 332, 26 P 745 (1891). There is another basis upon which venue in Multnomah county may be sustained. Defendant was indicted for the crime of first degree murder. An element of that crime is “deliberate and premeditated malice.” ORS 163.010. If defendant had been tried upon the crime charged in the indictment, the evidence of defendant’s conduct in enticing Holloway into the automobile in Portland would have been sufficient to establish premeditation. Thus, if in the original trial there had been a verdict of guilty of the crime of first degree murder, venue in Multnomah county would have been made out. However, the jury in the first trial returned a verdict of the lesser included crime of second degree murder. To say that venue was lost as a result of this fortuitous circumstance would attach a significance to the requirement of venue far beyond its purpose.

The retrial of the cause may be viewed in the same light. The reversal of the judgment and remand for a new trial in the first appeal operated to revest jurisdiction and venue in the Multnomah county circuit court, the original indictment continuing to serve as the basis for the charge, subject to the rule that the defendant cannot be tried for a crime greater than that for which he has been convicted in the first trial. We hold that venue was properly laid in Multnomah county.

We now turn to the second of the assignments of error noted above. Defendant contends that error was committed when the state elicited from William Dana a statement that he had sold quick lime to someone on October 28, 1957, the day after the alleged murder. The evidence established that decedent’s body was found in a well which contained lime. Violet Bostwiek testified that defendant had “mentioned something about some lime, and he said that they had — I asked him what they used the lime for, and he said, ‘To get rid of identification.’ He said that he had, he had bought, he had been thinking about buying the lime at some small place and then he thought better about it and bought it at a large concern where there was more sales or more people coming and going and he figured it wouldn’t have been noticed so much.”

Later the state called William Dana, an employee of Masons 'Supply Company, who testified that he had sold a small quantity of quick lime to someone on October 28, 1957. He stated that “It is very irregular to just sell four sacks of hot lime to a cash customer such as this was” because “it has a limited use.” He explained that hot lime “has to be slaked or hydrated, which means combining it with water, before it can be used, and very few people use it for — buy it before it has been slaked. Slaked lime is sold, as such, and you don’t have to go through the process of boiling it out with water. That is why it is called ‘hot lime’. It boils when you combine it with water.” Dana stated that he could not remember having sold anything to defendant but that he had seen defendant in the Masons Supply Company store on some occasion. It was established that Masons Supply 'Company was one of the largest building supply companies in the city. " ■ ■

On motion of the defense, Dana’s testimony. was stricken from the record on the ground that the testimony of the witness had not been connected in any way to the defendant. The jury was instructed not to consider the stricken testimony in their deliberations.

Dana’s testimony was relevant and it would not have been error to snbmit it to the jury. The jury was entitled to believe Violet Bostwiek’s testimony that defendant bought hot lime at a “large concern.” The Masons Supply Company was a “large concern.” Small quantities of quick lime are not usually sold. A small quantity of quick lime was used upon the decedent’s body. Defendant had been seen in the Masons Supply Company store at some time. From this evidence it would not be unreasonable for the jury to infer that defendant had purchased the lime sold by Dana.

It is alleged that counsel for the state was guilty of misconduct during his argument to the jury in making reference to a tape recording which the court had ruled inadmissible. The state had sought to introduce a tape recording of a conversation between Lieutenant Nelder of the San Francisco Police Department and Violet Bostwick. Defense counsel objected to the introduction and playing of the recording on the ground that it was not properly authenticated. The objection was overruled but the court refused to admit the exhibit for the reason which appears in the following colloquy.

“THE COURT: * * * I don’t know why the State is offering that exhibit, and I might ask one question, and then I will rule on the matter. Is it your thought that this particular film will displace statements by this witness that coincide with what she has testified to today?

■ “ME. HOWLETT: Yes, Your Honor. It will further—

“THE COHET: That is the purpose of it, isn’t it? ■

“ME. HOWLETT: One purpose. The second purpose is for the edification of the jury as to the nature and manner in which she was interrogated by Lieutenant Nelder at the time that she gave her first statement to him. ■

“THE OOUET: You don’t want it for impeaching purposes?

“ME. HOWLETT: No, Your Honor.

“THE COUET: Well, I think the rule is pretty well settled. Evidence which is cumulative merely shows that something has been said on other occasions. One, two, or three times is not proper. The credibility of this witness is for the jury under all of the circumstances presented during the course of this trial. I will sustain the objection to the offer.

“ME. HOWLETT: May I stress the second point that because of the cross-examination and the assertion on cross-examination through this witness and creating the innuendo that she was threatened and caused to tell a lie—

“MÉ. SUNDSTEOM: Wait a minute. That is an innuendo of the—

“THE' COUET: Just a minute gentlemen. One at a time, now.

“ME. HOWLETT: That this—

“THE COUET: Well, I understand your second point and if the witness was claiming that, herself, I would take a different view of it. I will adhere to my previous ruling and sustain the objection.

, “ME. HOWLETT: No further questions.”

After both, sides had rested and when counsel and the trial judge were in chambers defendant’s counsel asked counsel for the state if he intended “to make an issue out of the tape recording to the extent that it has been placed in our hands, or, are you willing to accept the fact that we have not heard it or have not played it?” At first the reply was, “The only issue that I could make out of this, is to — I can’t tell the jury defense counsel wouldn’t play it. That is improper. The only thing I could do is take what is in the record, and that is that a tape recording was taken of her conversation by Lt. Nelder. I can’t refer you — I can’t even begin to refer to the fact that we didn’t put it in.” At the time the latter statement was made counsel for the state was not aware of the fact that defense counsel had stated in the presence of the jury that he had not played the recording. After learning that the jury was so informed, state’s counsel said: “Well, if you said it in the record, I will probably refer to it in closing arguments.” In his argument to the jury he made the following reference to it:

“* * * Furthermore, we have no reluctance in asking you to believe Bostwick’s testimony.

“Bostwick, let me recount that a bit. Bostwick didn’t know they were maldng a recording of her conversation. Neither did Mr. Carskadon [defendant’s counsel in the first trial]. Neither did Mr. Smith and neither did Violet Bostwick. So, when she got up and changed her story, what happened? We played the recording, and that was too bad for Harold Keith because the recording was very telltale. Now, this recording, counsel had it and for the purpose of examination. Of course, he knows what it says or could find out from the other lawyers. He could offer it to you to impeach her if there was any difference. Did he offer to play it? You can take that into consideration in determining the nature of that recording. If Mr. Sundstrom wanted to play that recording, he could do it, hut he didn’t.”

To understand the purpose of this statement it is necessary to recount the events which occurred after defendant’s first trial. Violet Bostwiek had testified in the first trial. She had also testified in the companion case of State v. Harold Keith. Her testimony was damaging to Keith. Later she stated that she had lied in giving this testimony. She signed an affidavit stating that she had been threatened by the police and by the deputy district attorney. Her affidavit recited that San Francisco police officers told her that if she didn’t testify as instructed by the Multnomah county district attorney she would be charged with the crime of accessory after the fact. The affidavit further recited that deputy district attorney Howlett told her that if she changed her testimony he would prosecute her for perjury and put her in the penitentiary for life.

The statement in the final argument quoted above that “We played the recording, and that was too bad for Harold Keith because the recording was very telltale,” referred to the use of the recording in Keith’s trial. The vice in making this latter statement was that it would suggest to the jury that if the recording was bad for Keith it was also bad for defendant who was Keith’s alleged accomplice. The comment should not have been made. But the question is whether the statement is so prejudicial as to warrant reversal. It should be noted that the jury was denied the opportunity to hear the recording for the reason that it was cumulative evidence. The court’s explanation for excluding it as cumulative was made in the presence of the jury. If the jury understood the term “cumulative”, it understood that the recording covered the same evidence as that which Violet Bostwiek had given on the stand and the statements in the recording would be no more “telltale” than similar statements made on the stand. This part of the state’s argument does not constitute reversible error.

The remaining part of the statement set out above is a permissible jury argument. The state’s case rested on the credibility of Violet Bostwick. She had testified against defendant in the first trial; she then repudiated that testimony; and finally she repudiated her repudiation. This being known to the jury, her credibility was in grave doubt. If the statement (recorded without her knowledge) was, in essence, the same as her testimony in the present case, it would tend to support her credibility as a witness. The fact that defense counsel did not attempt to show inconsistency between the two statements is ground for the inference that the defense could not find any inconsistency in the two statements. Under these circumstances it seems reasonable to let the state comment on the failure of the defense to attempt impeachment through the use of the recording.

Finally, objection is made to the conduct of the deputy district attorney in interjecting his own personal views with respect to the credibility of the state’s witnesses. At one point in his argument to the jury that state’s counsel said, “In this particular case this Bostwick girl was telling the truth. We wouldn’t 'have her if she wasn’t. It is impossible for her to have been lying. It is impossible for her to have told that story.” Defendant contends that the foregoing statements were “an attempt by the deputy district attorney to bolster this key witness by his own unsworn testimony as to her credibility for truth and veracity.” Later, counsel for the state said:

“Now, I ask you people to go into that Jury room and have a little reliance on the police officers, and if I may be so bold again on onr office because these witnesses know what they are talking about. They testify to the truth, and Parker is guilty of killing Mr. Holloway. And, we ask you to go in there and if you believe it, if you believe it, find him guilty.”

Similar comments were made by the prosecutor to the effect that the state’s witnesses were telling the truth, that the state vouched for the credibility of its witnesses, and that the jury should believe the state’s witnesses.⑦

It is improper for counsel to interject his personal appraisal of the witnesses’ credibility in a way which would suggest to the jury that the appraisal is based upon counsel’s own knowledge of facts not introduced into evidence.⑧ It is not contended that the statement in the present case was objectionable upon this ground. The rule is sometimes stated more broadly, making improper any comment by counsel upon the credibility of Ms witnesses.⑨ It is unnecessary for us to decide how narrowly or broadly the rule should be stated because we are of the opinion that under either rule the remarks of the prosecution in the present case are not ground for reversal. Moreover, no objection was made at the time the comment was made and no request was made that the jury be instructed to disregard it.⑩

There is no reversible error. The judgment of conviction is affirmed.

Art. I, § 11, Oregon Constitution provides as follows:

“In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed * *

•

ORS 131.340 provides:

“When a crime is committed partly in one county and partly in another or when the acts or effects thereof constituting or requisite to the consummation of the crime occur in two or more counties, an action therefor may be commenced and tried in any of such counties.”

•

See note 2 supra.

•

See cases collected in Annotation: Construction and effect of statutes providing for venue of criminal case in either county, where crime is committed partly in one county and partly in another, 30 ALR2d 1265 (1953).

•

See for example, State v. Rider, 46 Kan 332, 26 P 745 (1891).

•

Thus in People v. Megladdery, 40 Cal App2d 748, 106 P2d 84, 98 (1940) the court explained:

“The interpretation contended for by respondent would completely disregard the phrase ‘or the acts or effects thereof constituting or requisite to the consummation of the offense’ contained in the section. Obviously, the phrase, ‘or requisite to the consummation of the offense,’ means requisite to the completion of the offense — to the achievement of the unlawful purpose — to the ends of the unlawful enterprise. By the use of the word ‘consummation’ the legislature drew a distinction between an act or an eifect thereof which is essential to the commission of an offense, and an act or effect thereof which, although unessential to the commission of the offense, is requisite to the completion of the offense — that is, to the achievement of the unlawful purpose of the person committing the offense.”

•

The following excerpts from the state’s argument to the jury-are pointed to by defendant as objectionable:

“Now, three people testified to that including our police officer, and I am willing to stand on all righteousness and say that Officer Ragsdale didn’t come up here and repeat that statement if he didn’t hear it from Mr. Parker himself, and he made a police report at the time. Police reports are not admissible.”

“The State is not permitted to and has no right to permit or to call any witness to that witness stand that it cannot vouch for that witness’ credibility to you one hundred per cent.”

“* * * to determine who is telling the truth I think, and I ask you, and I have no hesitation in asking you to believe that witness Nora Keith absolutely, implicitly. She is so afraid of hell and fire and damnation that she is afraid to spit for fear she will say the wrong thing. She was an honest, completely honest witness.”

•

See cases collected in Annotation: Propriety, and prejudicial effect of, comments by counsel vouching for credibility of witness, 81 ALR2d 1240 (1962).

•

For example, see Code of Trial Conduct, § 20 (h), American College of Trial Lawyers (1963):

“A lawyer should not assert in argument his personal belief in the integrity of his client or of his witnesses or in the justice of his cause which is unrelated to a fair analysis of the evidence touching these matters.”

Cf., Canons of Professional Ethics, American Bar Association Canon 15, which reads in part as follows:

“It is improper for a lawyer to assert in argument his personal belief in his client’s innocence or in the justice of his cause.”

•

United States v. Klein, 187 F2d 873, cert. denied, 341 US 952, 71 S Ct 1021, 95 L Ed 1374 (1951); People v. Warren, 175 Cal App2d 233, 346 P2d 64 (1959); State v. Palmer, 206 Minn 185, 288 NW 160 (1939); State v. Braathen, 77 ND 309, 43 NW2d 202 (1950).