State v. Capitan

• Decision Date: 09 March 1972
• Citation: 94 Adv.Sh. 615,494 P.2d 443,8 Or.App. 582
• Parties: STATE of Oregon, Respondent, v. Vincent Louis CAPITAN, Appellant.
• Court: Oregon Court of Appeals

Page 443

494 P.2d 443

8 Or.App. 582

STATE of Oregon, Respondent, v. Vincent Louis CAPITAN, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Jan. 19, 1972.

Decided March 9, 1972.

William B. Crow, Portland, argued the cause and filed the briefs for appellant.

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

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

LANGTRY, Judge.

Defendant appeals from conviction of first degree murder. ORS 163.010.

Defendant and Michael John 'Bobby' Wright, his stepson, were separately indicted for the murder of one Carlos Mendoza, and defendant was tried separately. He asserts seven errors which will be noted as they are discussed.

Evidence supported the following. On April 25, 1968, Mendoza's body was found in a 1956 Chevrolet parked near the Portland airport. The automobile had been stolen from a parking lot in the same general area on April 24. Mendoza had suffered seven head shots from a .25 caliber pistol.

On March 5, 1968, defendant and Mendoza had been charged with larceny in Yamhill County. About two weeks before trial on this charge, defendant suggested to Mendoza that Mendoza leave town so that they would not be seen together. Nevertheless, Mendoza was subpoenaed to appear in defendant's Yamhill County trial as a state's witness. Mendoza appeared pleased when the subpoena was served upon him, and remarked to his bail bondsman that he would be able to get money from defendant as a result, and that the state would be unable to prove its case against defendant unless he testified. Three witnesses for defendant testified falsely at the Yamhill County trial, which was held after Mendoza's death, that, at the time of the larceny they were with defendant in Portland. The falsity of their testimony was disclosed at the larceny trial.

One of the false witnesses, Janet Sherman, who was a former girl friend of defendant, testified in the case at bar that about a week before Mendoza's death defendant had remarked that he thought Mendoza had made a deal with the Yamhill County District Attorney; that 'it would be hard to find out who killed a man found in a stolen car shot out near the airport'; and that he was going to pay a thousand dollars to have the job done.

At 10 p.m. on April 24, 1968, defendant telephoned Mendoza. Mendoza received the call at a neighbor's residence, returned home, and told his wife, 'I don't know about that Capitan * * * 'He wants me to help him do something. '"' He immediately put on some old clothing and left. She never saw him alive again.

One Harris testified that on the night of April 24, 1968, he, Benjamin L. Willis, and Dennis L. Kniss were at a drive-in restaurant in the airport area. After Willis placed some telephone calls, the three went to a bowling alley and stole a 1956 Chevrolet which Harris said resembled the automobile in which Mendoza's body was found. They parked this automobile in an inconspicuous location, returned to the restaurant, and placed at least one more telephone call. Shortly thereafter, defendant and 'Bobby' Wright drove up in one automobile and Max Fry and a girl drove up in a white, tan or beige 1960 or 1961 Ford station wagon.

About 10 p.m. defendant walked to a telephone booth and when he returned told Wright and Fry: 'Go pick him up.' Wright and Fry drove away in the stolen Chevrolet. The others returned to the restaurant where defendant and the girl sat in the Ford. Kniss and Willis left and Harris entered the Ford. Shortly thereafter, when Harris saw the stolen Chevrolet go by with two or three occupants in it, he pointed it out. With the girl driving, the Ford and its occupants followed the Chevrolet to a place where it was parked in the area where it and Mendoza's body were later found. Defendant told the girl to stop. Wright and Fry ran from the Chevrolet and entered the Ford. It was driven back to the vicinity of the restaurant and enroute Wright remarked, 'He's a dead son of a bitch.'

A reserve deputy sheriff testified he saw automobile at the airport location around 11 p.m. on April 24, 1968. He described them as a light-colored car, a yellow and black 1950 or 1951 Plymouth, and a white 1961 or 1962 Ford station wagon.

Janet Sherman testified that the day after the murder defendant told her that he had had Mendoza killed; that he had an alibi to the effect that he and Wright had been at a bar that night, had created some disturbance, had been asked to leave, and spent the remainder of the evening at home with others present. He also told her that he had disposed of the murder weapon.

Defendant, his wife, and 'Bobby' Wright's girl friend all testified that defendant was at home the entire evening and night of April 24--25, except for a brief period between 8 and 9 p.m., when he and Wright went to a tavern to purchase some beer; and that Wright and his girl friend left between 11 and 11:30 p.m.

On rebuttal the state produced a witness who testified that he was with defendant between 4 and 8 p.m. on April 24 at several locations in downtown Portland while defendant was looking for someone named 'Carlos'; that he left defendant at the home of one Susan Thorne; and that he saw defendant and Miss Thorne leave the house within minutes after he left.

Defendant's first three assignments of error relate to his indictment and trial for larceny. The state's thesis was that defendant killed Mendoza because he thought the victim had made a deal with the district attorney to testify against him; that he knew, although only $24 was involved in the larceny, a conviction would result in a substantial sentence because of his prior convictions.

(1). Through its first witness the state introduced as exhibits the informations and judgment orders of conviction for perjury against defendant's three false witnesses in the larceny trial. Defendant objected to this evidence, asserting it only served to blacken his character by proof of irrelevant collateral misconduct.

Evidence that a criminal defendant has committed other crimes is ordinarily inadmissible, subject to exceptions. State v. McLean, 255 Or. 464, 470, 468 P.2d 521 (1970). One exception is evidence of other criminal acts which form part of a common scheme, design, or system of criminal action. 22A C.J.S. Criminal Law § 688, p. 782 (1961). A reason for this exception is that such evidence tends to show motive, State v. McDonald, 231 Or. 24, 46--47, 361 P.2d 1001 (1961), cert. denied 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399 (1962), which, in turn, may be probative of identity. McCormick, Evidence 322, 330, § 157 (1954). In the case at bar the evidence that defendant suborned perjury shared a common ground under this exception with the charge of murder, namely, obstruction of justice in the larceny trial. Although the informations charging perjury were unnecessary and superfluous to this proof, their admission into evidence engendered no harm to defendant since the judgment orders, which were properly admitted, embodied the informations.

(2). To support its contention that defendant had a motive to silence Mendoza, the state first introduced the judgment order in the larceny case which recited defendant's indictment, conviction, and sentence to five years in prison. It proved too much. A motive to kill could be found whether defendant was convicted or not. State v. Baldwin, 47 N.J. 379, 221 A.2d 199, 206, cert. denied 385 U.S. 980, 87 S.Ct. 527, 17 L.Ed.2d 442 (1966). To that end, the larceny indictment would have sufficed to show Apprehension of conviction and, thus, motive. ¹ We cannot see, however, how this surplusage prejudiced defendant, since the jury subsequently, legitimately, came into possession of this knowledge through the many references in the testimony to defendant's transfer from the Oregon State Penitentiary to the Multnomah County jail for the murder trial, and other evidence indicating he had recently been convicted. See State v. Joseph, 252 Or. 610, 613, 451 P.2d 468 (1969).

(3). To further establish defendant's fear of conviction of larceny the state introduced the judgment order for enhanced penalty on the larceny conviction, entered some six months after the larceny conviction. It showed, Inter alia, (a) the finding of the court that defendant was 'duly and regularly convicted' of two prior felonies besides the larceny ² (describing each) and, (b) the enhanced sentence of imprisonment not to exceed 20 years.

Conviction for the larceny charged had a seven year maximum prison sentence, ORS 164.320, in itself probably enough to motivate a depraved mind to murder. However, it was proper for the state to introduce this evidence. The state is entitled to prove its case to the hilt. Probative value here outweighed potential prejudice. State v. Kristich, 226 Or. 240, 246, 359 P.2d 1106 (1961). As in (2) above, the exhibit proved too much in going beyond possible Apprehension to the actual result. But the state had the right to prove the prior convictions and the length of enhanced penalty defendant might apprehend. In this regard, what the enhanced penalty assessed actually was, was no more than he might apprehend; hence, any error was harmless. ³

(4). The state introduced, over defendant's objection, an indictment charging 'Bobby' Wright with the murder of Mendoza. After reading the indictment to the jury, the court instructed:

'* * * (T)his indictment is not evidence. It is a mere pleading. It is not evidence of the guilt of the person charged and is not to be considered by you as such. And it is introduced for the sole purpose to show the fact that--that an alleged co-conspirator has been similarly charged with this particular crime * * *.'

The court correctly stated the law--an indictment cannot infer or be used as evidence of guilt. State v. Fitzgerald, 186 Or. 301, 205 P.2d 549, 206...