State v. Anderson

• Decision Date: 09 June 1972
• Parties: STATE of Oregon, Respondent, v. Roscoe L. ANDERSON, aka R. L. Anderson, Appellant.
• Court: Oregon Court of Appeals

Page 1218

497 P.2d 1218

10 Or.App. 34

STATE of Oregon, Respondent, v. Roscoe L. ANDERSON, aka R. L. Anderson, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted April 17, 1972.

Decided June 9, 1972.

Edwin York, Portland, and John A. Pickard, Portland argued the cause for appellant. On the brief was John A. Pickard, Portland.

John H. Clough, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and THORNTON, JJ.

SCHWAB, Chief Judge.

Defendant appeals a jury conviction for a violation of ORS 166.270, Ex-Convict in Possession of a Firearm, on or about September 3, 1970. He assigns numerous errors in the conduct of his trial and in two subsequent hearings on his motion for a new trial.

On September 3, 1970, two policemen saw the defendant and two other men enter a Portland grocery store. These officers testified that defendant was then wearing a gold chain attached to his belt and his vest pocket. The police officers knew there was an outstanding felony warrant for defendant's arrest. When they apprehended him inside the store moments later, the chain was gone. A search of the store yielded a silver .38 caliber derringer, attached to a gold chain. A search of the defendant produced three .38 caliber bullets, one of which was linked by a firearms expert to the same derringer through a comparison of marks left on the cartridge by the derringer's firing pin. There was other testimony that the defendant had a silver .38 caliber derringer on a gold chain in his possession two or three days prior to his arrest as well as on other occasions. Finally, there was testimony from defendant's witnesses which linked him with a gold chain. Defendant's contention that there was insufficient evidence of possession has no merit.

Defendant had previously been convicted of arson, and the arson conviction was pending on appeal ¹ on September 3, 1970. Defendant contends that because the arson conviction was on appeal, he was not a 'convicted person' within the meaning of ORS 166.270 as of September 3, 1970. Several assignments of error are based on this contention. This question was decided contrary to defendant's position in State v. Brown, Or.App., 93 Adv.Sh. 444, 488 P.2d 856 (1971), rev'd on other grounds, Or., 497 P.2d 1191 (1972), where we said:

'Policy considerations underlying the prohibition against convicted felons carrying concealable firearms support a holding that the pendency of an appeal should not affect the conviction underlying the prohibition.' 93 Adv.Sh. at 446, 488 P.2d at 857.

Defendant also asserts that his former offense was not a felony since he was placed on probation for five years with the proviso that he spend a year in the county jail. He claims his sentence and therefore his crime was for a misdemeanor. The statute under which he was convicted, then ORS 164.030, set the penalty as 'imprisonment in the penitentiary for not more than 10 years,' and since the then relevant statute, ORS 161.030(2), defined a felony as '* * * a crime which is punishable by imprisonment in the penitentiary of this state * * *,' his conviction was for a felony. State v. Commedore, 239 Or. 82, 396 P.2d 216 (1964).

Defendant next assigns as error the trial court's refusal to admit into evidence hearsay statements allegedly made by a third party against penal interest. Defendant attempted to introduce hearsay evidence that one of the persons who had entered the grocery store with him was an ex-convict and had actually admitted possessing the weapon. Oregon has, contrary to defendant's assertion that it 'is a case of first impression,' determined that such statements are inadmissible under the hearsay rule. ² As was stated in State v. Coleman, 119 Or. 430, 440, 249 P. 1049, 1052 (1926):

'* * * It is a well-established principle of criminal law that a defendant in a criminal case cannot be permitted to show that a third person has admitted that he committed the crime charged against the defendant * * *.'

See also, State v. Farnam, 82 Or. 211, 227, 253, 161 P. 417, 18A Ann.Cas. 1918A, 318 (1916); State v. Fletcher, 24 Or. 295, 300, 33 P. 575 (1893).

Defendant assigns as error the state's impeachment of one of its own witnesses. The witness on direct examination testified concerning several occasions prior to September 3, 1970, when he had seen the defendant with a silver derringer and a chain attached to his pocket in the same manner it was attached on September 3, 1970. When the witness denied seeing the defendant with the weapon on or about September 1, 1970, the prosecutor impeached him with an inconsistent statement previously given. The prosecutor also used other statements previously given by the witness to amplify the description of the derringer on a chain and to expand on when and how frequently the witness had observed the defendant possessing the weapon. Connecting the defendant with the weapon on previous occasions--in particular about September 1, 1970--was important to the circumstantial evidence case for possession on September 3, 1970. The same necessity existed to create an identity between the derringer chained to defendant on previous occasions and the derringer on a gold chain found in the grocery. This witness's evidence supported the testimony of the two policemen who testified that they had observed a gold chain on defendant just prior to his entering the grocery where he was arrested.

The answers which the witness initially gave were contradictory to those which he had previously given when interviewed privately. The statements given by the witness when interviewed were admissible. State v. Gardner, 2 Or.App. 265, 267, 467 P.2d 125, Sup.Ct. review denied (1970).

Defendant predicates two assignments of error--the trial court's refusal to grant a mistrial and the refusal to grant a new trial--on problems which arose during selection of the jury. During the examination of the jurors on Voir dire, one prospective juror informed the court that he had observed the defendant writing down the names and addresses of members of the jury and was concerned over this matter. ³ Notwithstanding the fact that it was the defendant's own actions which had created this anxiety, the trial court took considerable measures to overcome any conceivable prejudice to defendant. First, the defense, Sua sponte, was given an additional peremptory challenge which it later exercised to remove the concerned juror. Second, immediately after this incident, the court addressed the prospective jurors:

'* * * May I ask * * * if any of you know of any reason why you couldn't be a completely fair and impartial juror in this matter? If there is, you have a responsibility to so advise the Court, for the reason that the defendant is entitled to a fair trial.'

There was no response, and both counsel continued Voir dire which resulted in several other prospective jurors being excused and replaced. After the verdict was returned, the court in considering the motion for a new trial held an additional hearing with the jurors. This discussion indicated that prior to being excused, the 'concerned' juror had mentioned the incident to other jurors, but none indicated that this resulted in any apprehension or prejudice on his part. To the contrary, several specifically stated to the court that they believed their names and addresses were common knowledge and a...