State v. Canaday
| Decision Date | 23 June 1970 |
| Citation | 2 Or.App. 390,467 P.2d 666 |
| Parties | STATE of Oregon, Respondent, v. William Grover CANADAY, Appellant. |
| Court | Oregon Court of Appeals |
Kenneth C. Hadley, Jr., Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Lee S. Werdell, Deputy Dist. Atty., Medford, argued the cause for respondent. With him on the brief was Justin M. Smith, Dist. Atty., Medford.
Before SCHWAB, C.J., and FORT and BRANCHFIELD, JJ.
Defendant was indicted, tried and convicted by a jury of the crime of unlawful possession of marihuana. ORS 474.020. Defendant duly entered a plea of not guilty by reason of insanity. Each of the three assignments of error arises out of that aspect of the case.
Competent evidence showed that some years prior to the defendant's arrest upon this charge he had been confined to Atascadero State Hospital in California for approximately four and one-half months pursuant to an adjudication in a criminal matter as an insane person. At the time he was released from there he was discharged as mentally fit. There was no evidence that thereafter any subsequent proceeding had adjudicated him as insane or caused him to be confined in a mental institution.
Following his plea in this case the court appointed two psychiatrists to examine him. Based on their report he was committed to the Oregon State Hospital until he was able to assist in his own defense. After a stay of more than two weeks he was returned to the court for trial.
At the trial the two psychiatrists who had examined him before he was sent to the Oregon State Hospital were called by the defendant. One testified that the defendant was a 'schizophrenic, chronic undifferentiated type.' The second psychiatrist testified that defendant's problem had probably been 'episodic in nature.' Each said he was insane at the time the crime was committed.
The third psychiatrist, who had had the defendant under his care at the Oregon State Hospital, testified that the defendant was not insane at the time the crime was committed. All agreed that the type of mental condition from which the defendant had suffered was the result of his habitual use of drugs.
The first assignment of error is that the court failed to instruct the jury that once insanity has been shown to have existed it is presumed to continue. In the case of State v. Garver, 190 Or. 291, 225 P.2d 771, 27 A.L.R.2d 105 (1950), the Supreme Court held it was reversible error to refuse to give such an instruction in a case of habitual or chronic insanity. Here the state contends first that since there was no request made for such an instruction, and no exception taken to the failure to give it, it is not properly before this court. Second, it contends that here it was at best a disputed question of fact whether the defendant's insanity was of an habitual nature so as to entitle him to such an instruction even if requested.
Defendant asks us to invoke Rule 46 and urges in support that it is a 'harsh' statute which imposes upon a defendant the burden of proving his own insanity. ORS 136.390. Defendant does not challenge the authority of the legislature to so provide. At the time State v. Garver, supra, was decided, the defense was required to be established beyond a reasonable doubt. § 26--929, OCLA. This was held constitutional in State v. Grieco, 184 Or. 253, 195 P.2d 183 (1948).
We do not think defendant's claim that the statute is a 'harsh' one warrants a departure from the settled rule that except in egregious instances we will not consider error not legally excepted to. State v. Hollingsworth, Or.App., 90 Adv.Sh. 355, 465 P.2d 490 (1970). We therefore do not consider it.
The second assignment of error asserts in effect that the defense of insanity was established by a preponderance of the evidence as a matter of law. Since there was a clear conflict in the opinion testimony of the three psychiatrists concerning this matter, it was a question for the jury. Indeed the defendant in oral argument conceded that if certain testimony of the state's psychiatrist was properly in evidence, then the matter was correctly submitted to the jury. This matter constitutes the third assignment of error, which we now consider.
This assignment asserts error was committed because the state's psychiatrist testified to 'incriminating admissions' made by the defendant to him in the hospital while the defendant was under his care.
Following testimony of two psychiatrists called out of order by the defendant, the state called Dr. George R. Suckow, a psychiatrist, who had examined the defendant and had been his supervising doctor during the two-week period he was confined under observation at the Oregon State Hospital pursuant to the order of the court. During examination of the defendant, Dr. Suckow testified as follows:
'Q And did you take a personal history from the defendant?
'A Yes, I did.
'Q How far back did you go with this history?
'A Well, we went back to the time he was born, essentially, and what he could remember thereafter.
'Q And you took this in order to aid you in your diagnosis of the defendant, did you?'
He then related what the defendant had told him concerning the offense charged and his arrest therefor.
We note first that no objection was made to any portion of this testimony, nor was any request made to strike any part of it after it was given.
Subsequently, following a lengthy cross-examination Dr. Suckow testified on redirect examination:
'A That's correct.'
Again we note that no objection was interposed nor request thereafter made to strike any portion of that testimony.
In this case, Dr. Danielson, called as a witness by the defendant prior to Dr. Suckow, testified on direct...
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People v. Larsen
...have defendant examined by experts of its choice and to present their opinions in evidence. In agreement with Pope is State v. Canaday (1970), 2 Or.App. 390, 467 P.2d 666. As already noted, by concluding that a defendant had waived his fifth amendment rights, Pope and Canaday implicitly rec......