State v. Bishop

• Decision Date: 31 March 1981
• Docket Number: No. 18-743,18-743
• Citation: 621 P.2d 1196,49 Or.App. 1023
• Parties: STATE of Oregon, Respondent, v. John Robert BISHOP, Appellant. ; CA 14895.
• Court: Oregon Court of Appeals

Page 1196

621 P.2d 1196

49 Or.App. 1023

STATE of Oregon, Respondent, v. John Robert BISHOP, Appellant.

No. 18-743; CA 14895.

Court of Appeals of Oregon.

Argued and Submitted Oct. 20, 1980.

Decided Dec. 29, 1980.

Reconsideration Denied March 12, 1981.

Review Denied March 31, 1981.

David E. Groom, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Rudolph S. Westerband, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before SCHWAB, C. J., and RICHARDSON and BUTTLER, JJ.

BUTTLER, Judge.

Defendant appeals his conviction of first degree manslaughter ¹ for the death of his wife, asserting that the trial court erred in (1) admitting certain statements made by defendant while in custody; (2) refusing to allow defendant to put a witness on the stand whom he knew would refuse to testify; (3) admitting certain testimony by a psychiatrist called by the state; and (4) refusing to give certain jury instructions. We reverse and remand for a new trial.

Defendant admitted that he fired the pistol which caused his wife's death; the issues at trial were the circumstances under which the shooting occurred and defendant's state of mind at the time of the killing. The state contended that the killing was intentional and charged defendant with murder. Defendant pled not guilty, not guilty by reason of mental disease or defect, and also self-defense by way of justification. The evidence at trial showed that up to the time of the killing defendant had been under a great deal of stress as a result of his failing marriage with the victim and as a result of his concern over her threats to his well being and that of others close to him.

Although defendant had given different versions of what occurred, for the purposes of the issues raised on appeal, we summarize defendant's testimony at trial. He explained that on the morning of April 6, 1978, he and his wife went to their cabin near Tillamook. Sometime after they arrived, and while in a conversation with his wife, defendant heard noises outside the cabin. He went out to his truck and took out a semiautomatic pistol and an extra clip. He then returned to the cabin, placed the gun on an ice chest next to him and continued his conversation with his wife. Moments later an Indian burst into the cabin and asked defendant's wife if she was all right. Defendant took the gun off the ice chest so that the Indian could observe that he was armed. With the gun pointed in the direction of his wife, he released the safety and began to turn towards the Indian. Defendant's wife shouted, "He's got a gun" and struck defendant with a two by four. As defendant fell, the gun discharged, hitting his wife eight times. Defendant got up, changed clips, and fired some shots at the Indian, who had fled.

After cleaning up the cabin, burying his wife and discarding the pistol, he flew to Waterloo, Iowa, to see his brother, and apparently intended to commit suicide. Defendant's sister-in-law notified the local police that defendant had killed his wife and defendant was taken into custody. After reading defendant his Miranda ² rights and patting him down, Officer Penrose asked defendant to get into the back of an unmarked police car. He then asked defendant if he had any family in Oregon. Defendant responded "I don't want to talk about it." In a pre-trial Miranda hearing, Officer Penrose testified that he understood defendant's response to mean that he did not want to talk about his family in Oregon. Defendant was then handcuffed and placed in a patrol car with an Officer Arends. The two began discussing defendant's earlier days in Iowa; shortly thereafter Officer Arends asked defendant if he had been having any trouble with his wife. Defendant responded, "Not any more."

Defendant's first assignment of error is that the trial court erred in concluding that the statements made by defendant to police officers while in custody in Iowa were admissible. At the conclusion of the Miranda hearing the trial court found that defendant's statement, "I don't want to talk about it" was not sufficient to invoke his right to remain silent and that the answer he gave to Officer Arends was given voluntarily. We are bound by the trial court's findings of historical fact if they are supported by the record, Ball v. Gladden, 250 Or. 485, 443 P.2d 621 (1968), but we are not bound by conclusions reached by the trial court where, as here, they are of constitutional import. State v. Warner, 284 Or. 147, 585 P.2d 681 (1978). We have a duty to draw our own conclusions.

The Iowa police had taken defendant into custody for killing his wife in Oregon. When he was asked about his family, he stated unequivocally that he did not want to talk about "it." While the statement may lack legal precision, it made clear that defendant wanted to remain silent about his Oregon family, and, in fact, the subject was then dropped. Officer Penrose agreed at the hearing with that interpretation of defendant's statement. Once an individual in custody indicates "in any manner" that he wishes to remain silent, the interrogation must cease and his right to remain silent be "scrupulously honored." Miranda v. Arizona, 384 U.S. 436, 473-474, 479, 86 S.Ct. 1602, 1627, 1630, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966); see also, Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975).

Officer Arends' ³ question as to whether defendant was having any problems with his wife (whom the officers knew was dead) clearly was intended to invoke a response from defendant concerning the killing of his wife. As such, it was not permissible, and defendant's response should not have been admitted in evidence.

The state contends, however, that defendant's remark was merely a statement of fact, neither inculpatory nor exculpatory, and its admission was harmless. In closing argument, however, the state put particular emphasis on defendant's statement ⁴ as showing defendant's state of mind in support of its contention that defendant killed his wife intentionally rather than as a result of mental disease or defect, or emotional disturbance, or self-defense.

There is no way of knowing the effect that evidence, or the argument based thereon, had on the jury. We do know that the jury did not find defendant guilty of murder, but did convict him of manslaughter in the first degree: either the killing was committed recklessly under circumstances manifesting extreme indifference to the value of human life or was committed intentionally under circumstances not constituting murder. ORS 163.118(1)(b). In either case, that determination turns on the defendant's state of mind ⁵ at the time of the killing, and we cannot say that the error was harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 24 A.L.R.3d 1065 (1967). It follows that the admission of defendant's statement must be deemed prejudicial and that the case must be reversed and remanded for a new trial.

Given the fact that the case must be retried, we consider defendant's other assignments of error because the questions are likely to recur on retrial.

During the trial, one of defendant's witnesses, Scott, refused to testify. The basis for his refusal was never fully articulated, but because he was then an inmate at the state prison, it is suggested that he was afraid of being treated as a "snitch." However, the state granted the witness testimonial immunity, thereby eliminating any Fifth Amendment obstacle. State v. Classen, 31 Or.App. 683, 571 P.2d 527 (1977), rev'd on other grounds, 285 Or. 221, 590 P.2d 1198 (1979). After a lengthy in camera proceeding, the trial court ruled that defendant would not be allowed to place the witness on the stand and have him refuse to testify before the jury. Defendant relies on State v. Classen, supra, and State v. Abbott, 275 Or. 611, 552 P.2d 238 (1976), in contending he had the right to call Scott before the jury and to have him state his refusal to answer questions. The problem with permitting defendant to do so is that it would permit the jury to draw any inference it wished from non-testimony. In both Classen and Abbott the trial judge, but not the jury, knew that the witness had previously confessed (Classen) or pled guilty (Abbott) to participating in the crime for which defendant was standing trial, and the logical inference to be drawn from each witness's refusal to testify was the intention to protect the defendant, which influence was not unfair to the defendant.

Here, the witness Scott had not confessed to any act relating to the circumstances involving the killing of defendant's wife. However, defendant testified he had found numerous letters from Scott to his wife indicating an amorous involvement between the two. Defendant said he threw the letters in a trash can after his wife's death, so they were not available. Scott's deposition had been taken by defendant's counsel at OSP, and Scott had admitted his involvement with the victim and writing her letters. Two of the letters, defendant said, contained highly sexual overtones, and in one envelope was a nude photo of defendant's wife.

By calling Scott as a witness, his refusal to answer questions concerning his relationship with the victim, including the writing of the letters, might have led the jury to infer a relationship which, apparently, did exist, and which, in turn, would have substantiated a part of defendant's story. The state points out, however, that because Scott is an Indian, the jury might infer that he was the Indian who, according to defendant, burst into the cabin just before the killing, which, it is contended, would be unfair to the state's case. It is true that many unwarranted inferences might be drawn...