State v. Cole

• Decision Date: 18 December 1968
• Citation: 252 Or. 146,448 P.2d 523
• Parties: STATE of Oregon, Respondent, v. Virgil COLE, Appellant.
• Court: Oregon Supreme Court

Page 523

448 P.2d 523

252 Or. 146

STATE of Oregon, Respondent, v. Virgil COLE, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted Nov. 14, 1968.

Decided Dec. 18, 1968.

Julian Herndon, Jr., Portland, argued the cause and filed the brief for appellant.

Jacob B. Tanzer, Deputy Dist. Atty., Portland, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

Before PERRY, C.J., and McALLISTER, O'CONNELL, DENECKE, and MENGLER, JJ.

MENGLER, Justice pro tem.

The defendant and two other men were indicted jointly and charged with the crime of conspiring to commit a felony. The other two co-conspirators pleaded guilty. The defendant pleaded not guilty, was tried by jury, and was convicted.

The defendant alleges that the trial court erred as follows:

1. In allowing the two co-conspirators, as state's witnesses, to testify that they had pleaded guilty to the charge.

2. In allowing the state to question one of the co-conspirators regarding the defendant's posting his bail.

3. In permitting the state to question the co-conspirators regarding their having the same counsel as did defendant.

4. In admitting evidence obtained by an unlawful search and seizure.

5. In admitting an unlawfully-obtained statement which was a prejudicial conclusion of a witness.

6. In prejudicially curtailing defendant's case.

The basic facts giving rise to the criminal charge were as follows: On the date alleged in the indictment, the two co-conspirators, the defendant, his wife, and a 15-year-old girl, who was once a girlfriend of one of the co-conspirators, were together at defendant's home. In early evening they went to a moorage and boarded defendant's boat. At about dusk they stopped at a point on the Columbia river slough where 200 cattle were pastured. The two co-conspirators went ashore carrying two boning knives, a hatchet, a keyhole saw and a .45 pistol. One of them was wearing rubber pants and boots. The two co-conspirators were arrested near the boat for trespassing and the items seized.

Defendant, his wife, and the girl were not then arrested. The two co-conspirators and the defendant were indicted and charged with conspiracy to commit the felony of stealing livestock. The defendant contends that he did not hear, or participate, in any conversations, or have any knowledge of any scheme, or plan, to attempt to commit the felony of stealing livestock.

The first assignment of error is directed to the following portion of the testimony upon direct examination of the two co-conspirators who were called as state's witnesses:

'Q Mr. Phillips, you're a co-defendant with Mr. Cole in this charge of conspiracy to commit cattle rustling, or stealing livestock?

'A Yes.

'Q And you have already pled guilty and been sentenced for the crime charged?

'A Yes.

'* * *

'Q Mr. Shipman, is it not a fact that you have entered a plea of guilty to the charge of conspiracy to commit cattle rustling?

'A Yes, I entered a plea.

'Q You have been sentenced on that plea?

'A Yes.

'Q Now, Mr. Shipman, that was a plea to the charge we have before us today?

'A Yes.'

This court has held that where two or more persons are jointly charged with the commission of a crime, which in its nature is several, each must be tried without reference to the disposition of the case against the other, and a conviction of one, whether by a plea of guilty or by a verdict of guilty, cannot be used as criminating evidence against the other. State v. Bowker, 26 Or. 309, 38 P. 124 (1894).

We recently held in State v. Riddall, 87 Or.Adv.Sh. 405, 446 P.2d 517 (1968), that the district attorney's opening statement that one co-defendant had pleaded guilty was not ground for mistrial because any prejudice resulting from the statement to the jury was rendered harmless when the co-defendant's guilt was established by his own testimony which also implicated the defendant.

In State v. Riddall, supra, the plea of guilty of a co-defendant was put before the jury by the opening statement of the district attorney. In this case the pleas of guilty of the co-conspirators were put before the jury by them as witnesses for the state.

The question to be determined here is whether admitting the pleas of guilty of the co-conspirators was prejudicial to the defendant.

The state admits the validity of the rule of the Bowker case but contends that when a co-defendant testifies as a witness for the state, it is relevant to the issue of possible bias or interest of such state witness to show that he has pleaded guilty to the charge and has been sentenced.

This question of whether a plea of guilty by a co-defendant can be admitted for a purpose other than evidence of guilt of the defendant has been considered by other courts. In State v. Pikul, 150 Conn. 195, 198--199, 187 A.2d 442 (1962), the state called three co-defendants as state's witnesses and at the beginning of the testimony asked each whether he had pleaded guilty and each so testified. The state gave no reason for its offer of the evidence. The defendant objected on the ground that the evidence was immaterial, irrelevant, and prejudicial. The objection was overruled. On appeal the court said:

'* * * The fact that one or more persons jointly charged with the commission of a crime pleaded guilty is not admissible on the trial of another person so charged, to establish that the crime was committed. State v. Gargano, 99 Conn. 103, 107, 121 A. 657; United States v. Toner, 173 F.2d 140, 142 (3d Cir.); 2 Wharton, Criminal Evidence (12th Ed.) § 439. This is so because a plea of guilty is, in effect, merely a confession of guilt which, having been made by one of those charged with the crime, can be no more than hearsay as to another who is so charged * * *.

'The trial court * * * instructing the jury that the testimony * * * regarding their pleas of guilty was for the purpose of establishing their status as witnesses for the state and was not to be considered by the jury as evidence that anybody else had committed the crime of conspiracy. * * * (t)he evidence was inadmissible even for the limited purpose mentioned by the court * * *. This is not to say, however, that evidence of a plea of guilty by one who was charged jointly with an accused and who is produced as a witness by the state would not be admissible if it was offered by the accused, or elicited by him on cross-examination, to attack the credibility of the witness; or that if such a witness was produced by the defense, the evidence would not be similarly admissible on an offer by the state. (Citing cases.) In the present case, to convict the defendant, the state first had to establish a conspiracy. The evidence in question, as it was offered and admitted, not only was improper but was highly prejudicial. The ruling was erroneous and harmful and necessitates a new trial * * *. 48 A.L.R.2d 1016, 1023.'

The same court in a later case, State v. Taylor, 153 Conn. 72, 214 A.2d 362 (1965), held that it was proper for the court to take judicial notice of a guilty plea of a state's witness for the purpose of showing circumstances under which the witness agreed to cooperate with the police and not for the purpose of proving the guilt of defendant.

In State v. Loveless, 140 W.Va. 875, 87 S.E.2d 273 (1955), two of the state's witnesses testified about their sentence as principals in the alleged crime and their confinement in the penitentiary, and their version of the facts concerning the crime. The defendant, an accessory before the fact, urged as error the fact that the principals were permitted to testify about their status as convicted criminals who were under sentence. The court held that it was not prejudicial error because their testimony concerned the circumstances surrounding the crime and the statements as to the punishment they received was supplemental. See also State v. Fox, 12 N.J.Super. 132, 79 A.2d 76 (1951); State v. Fiore, 85 N.J.L. 311, 88 A.2d 1039 (Sup.1913).

In Dye v. State, 77 Ga.App. 517, 522, 48 S.E.2d 742 (1948), the court held that it was improper to permit the state's attorney to testify that three of four women accomplices pleaded guilty to the charge for which defendant was on trial. However, the court held that the testimony as to the plea of guilty by one of the accomplices was admissible because she was a witness against defendant. The court said:

'* * * Evidence of the conviction or a plea of guilty is admissible to show the guilt of the accomplice and thereby show the status or relationship of the parties and thus lay the foundation for determining the character of testimony against the defendant and whether or not corroboration thereof is required. The pleas of guilty of these women were not admissible against the defendant as confessions of guilt, because their confessions would not be binding upon this defendant. The pleas of guilty of Billie Johnson and Dorice Kitchens would not be admissible against this defendant for any purpose. However, the plea of guilty of Margaret Sanders is admissible for the purpose outlined * * *.'

The federal courts also follow the rule that a guilty plea cannot be used as evidence against the remaining defendants. Koolish v. United States, 340 F.2d 513 (8th Cir 1965).

The federal courts have uniformly held that it is not error, if proper cautionary instructions are given, for the jury to be informed during trial that one or more defendants have pleaded guilty, or even for the jury to be present when the pleas are entered. United States v. Crosby, 294 F.2d 928 (2d Cir 1961), cert. den., Mittleman v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962); Mittelman v. United States, 368 U.S. 984, 82 S.Ct. 599, 7 L.Ed.2d 523 (1962). See United States v. Kelly, 349 F.2d 720 (2d Cir 1965) contra on jury being present when the plea is entered.

In United States v. Aronson, 319 F.2d 48, 51, (2d Cir 1963) the court said:

'In practically every criminal prosecut...