State v. Luther

• Decision Date: 07 July 1983
• Docket Number: No. C79-04-31252,C79-04-31252
• Parties: STATE of Oregon, Respondent, v. Orville John LUTHER, Appellant. ; CA 17011.
• Court: Oregon Court of Appeals

Page 1261

663 P.2d 1261

63 Or.App. 86

STATE of Oregon, Respondent, v. Orville John LUTHER, Appellant.

No. C79-04-31252; CA 17011.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted June 17, 1981.

Resubmitted In Banc Jan. 10, 1983.

Decided May 11, 1983.

Reconsideration Denied July 7, 1983.

Des Connall, Portland, argued the cause and filed the brief for appellant.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

BUTTLER, Judge.

Defendant appeals his conviction for second-degree 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 revolver ¹ 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 out 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 P.2d 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 P.2d 816, 817 (Alaska 1980). We do not construe defendant's act of closing the door as a revocation of consent, because defendant tried to open 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.

After 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. He wanted "to ask her if she recalled them being closer together," although he denied trying to influence Gena to remember defendant and Mark to have been close together. He did, however, ask the hypnotized Gena several questions about defendant's distance from Mark.

At trial, Gena testified that defendant was three feet from Mark when the gun discharged. She denied having ever related anything inconsistent with that version, except for her testimony to the second grand jury.

The physical evidence, according to the expert witnesses, indicated that the weapon discharged no more than three feet from Mark. The evidence included blood spatters on the door to Mark's room, a hole in the ceiling believed to have been caused by a bullet, and powder burns on Mark's head. In the opinion of the state's criminalist, Mark was shot while in or close to the doorway and looking out, and the bullet had travelled upward.

Defendant's second assignment is that the trial court erred in not allowing defense counsel to introduce evidence regarding what Gena said or did while under hypnosis and what type of questions were asked of her. When defense counsel asked the witness whether she had been put under hypnosis, the state objected. The trial court ruled that, first, defendant could inquire whether she had been subjected to hypnosis after her appearance before the second grand jury and whether that changed her recollection of what occurred and, second, he could also show the difference between the story she told before hypnosis and the story she told at trial. The court indicated that it was not going to permit any evidence regarding what occurred while the witness was under hypnosis. Defense counsel then asked whether he could make a record on that, to which the trial judge responded, "Surely."

Counsel then stated that he understood the court's ruling and that he would make a record "sometime before the jury comes back." He never did. The Supreme Court has stated that it is doubtful whether an...