State v. Brown

• Decision Date: 02 November 1970
• Citation: 4 Or.App. 219,475 P.2d 973,91 Adv.Sh. 725
• Parties: STATE of Oregon, Respondent, v. Royce Lovell BROWN, Appellant.
• Court: Oregon Court of Appeals

Page 973

475 P.2d 973

4 Or.App. 219

STATE of Oregon, Respondent, v. Royce Lovell BROWN, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Sept. 28, 1970.

Decided Nov. 2, 1970.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

James A. Sanderson, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

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

LANGTRY, Judge.

Defendant appeals from conviction of assault with intent to commit second-degree murder. ORS 163.280. The victim was admittedly wounded, with resulting paralysis, by a pistol fired by defendant. The defendant is a cousin of the victim's wife. This woman had been living with defendant prior to the shooting. On the night the shooting occurred, the victim, who had unexpectedly appeared on the scene, and defendant had been left alone by the victim's wife in the place where she lived with defendant. The state contends that the defendant intentionally fired to kill the victim, motivated by a desire to eliminate the victim from a love triangle. Defendant contends that he had only a platonic brother-sister relationship with the victim's wife, and he shot in self-defense.

Assignments of error are (1) the court received in evidence two lewd pictures, purportedly of the victim's wife, which were among defendant's possessions when he was booked into jail on the night of the shooting; (2) when the jury requested reinstruction on two included crimes the court should have reinstructed on self-defense; and (3) the court permitted the prosecutor to appeal to racial prejudice in his closing argument.

We will consider the assignments in reverse order. The racial argument complained about in the third assignment referred to evidence that the actors are of Indian origin; that they had known each other for a long time and had fought before. Without setting the remarks out at length, we think that it is a strained construction of them, to contend that they appeal to prejudice on racial grounds. The prosecutor concluded this part of his argument with the statement:

'* * * His skin is a little darker and we know he is an Indian. They have talked a little about a stormy life. We can't say because he is a little different from us he has special rights that he can kill people when he argues with them. If he is going to be provoked and shoot somebody down, take a pistol and fire point-blank in their chest, then he has got to have the kind of provocation that would make most people very angry and do something very vicious * * *.'

The remarks were not objected to in any way by defendant's counsel and we see nothing in them that impels us to consider them as alleged error under Rule 46. ¹ See Annotation, 45 A.L.R.2d 303 (1956).

(2). Defendant contends that the court should have reinstructed on self-defense. The request of the jury was to be reinstructed on attempted second-degree murder and attempted voluntary manslaughter. The court complied with the request by reinstructing on the principal and all three included crimes involved, after asking counsel out of jury presence their opinions of what the court should do. Defense counsel did not then request the self-defense reinstruction but afterward excepted to failure to give it.

The court had already fully instructed on self-defense. It was logical, in order to comply with the jury's request, to reinstruct on all included crimes. To go beyond that would be questionable, for then the query arises whether every instruction should be given again. What instructions to give under these circumstances is a matter of discretion with the trial court. State v. Charles, Or.App., 90 Adv.Sh. 1413, 1414, 469 P.2d 792 (1970). The discretion was properly exercised.

In a supplemental brief, the defendant requests us to consider the merits of the instruction which was given on self-defense in the light of State v. Hansen, Or.App., 474 P.2d 17 (September 10, 1970). No objection was made to the instruction given by the court and for this reason we will not consider this request. State v. Charles, supra.

(1). Two lewd pictures, assertedly of the victim's nude wife, showing a woman's lower anatomy were among the defendant's effects when he was jailed. The victim's wife was living with defendant and the state contends that motive for the shooting was that defendant wanted to eliminate the victim in order to continue a lover's relationship with...