State v. Cullop
| Decision Date | 30 December 1974 |
| Citation | 526 P.2d 1048,19 Or.App. 129 |
| Parties | STATE of Oregon, Respondent, v. James Steven CULLOP, Appellant. |
| Court | Oregon Court of Appeals |
Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FORT, JJ.
This is an appeal from conviction, upon trial by jury, of robbery in the first degree involving the use of a pistol. ORS 164.415(1)(a). 1 The relevant facts are set forth in the discussion of the defendant's assignments of error.
Defendant first contends that the court permitted the introduction of inadmissible hearsay. This arose in connection with the testimony of a Mrs. Silva who told the jury that she had engaged in a conversation with the defendant and his co-indictee, Eugene Thomas. She testified that the two told her numerous details about the robbery, but that she could not recall which statements were made by the defendant and which statements made by Thomas. The clear import of her testimony is that this was a three-way conversation in which both men were giving details and neither disputed directly or indirectly the statements of the other.
ORS 41.900 provides:
'Evidence may be given of the following facts:
'* * *
'(2) The declaration, act, or omission of a party as evidence against such party.
'(3) A declaration or act of another, in the presence and within the observation of a party, and his conduct in relation thereto.
'* * *.'
See also, State v. O'Brien, 6 Or.App. 34, 485 P.2d 434, 486 P.2d 592 (1971), aff'd, 262 Or. 30, 496 P.2d 191 (1972). It follows that Mrs. Silva's testimony was properly admitted.
Defendant next contends that it was error to take his fingerprints in the course of trial and to put them into evidence for the purpose of identifying defendant as having left the fingerprints found at the scene of the crime. Defendant was first arrested under an arrest warrant which was later declared defective. All of the evidence obtained as a result of this arrest, including the fingerprints taken at the time of arrest, was suppressed. Subsequently, a grand jury indictment was obtained, and it is under this indictment that defendant went to trial. The record indicates that fingerprints were not a basis of the indictment. While it is true that evidence obtained as the result of an illegal arrest cannot be used, this does not mean that because fingerprints were obtained illegally once, they can never be used at all, even if later obtained legally. Bunum v. United States, 104 U.S.App.D.C. 368, 262 F.2d 465 (1959). The case at bar and Bynum must be distinguished from Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394 22 L.Ed.2d 676 (1969). In Davis the illegally taken fingerprints were a vital element in the case against defendant. Here they were not. Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963), states the test of admissibility as:
'* * * Rather, the more apt question in such a case is 'whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.' * * *.' 371 U.S. at 488, 83 S.Ct. at 417.
Defendant's argument that once a person is legally in custody a search warrant is required to take his fingerprints is without merit. United States v. Dionisio, 410 U.S. 1, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973); United States v. Iacullo, 226 F.2d 788 (7th Cir. 1955), cert denied, 350 U.S. 966, 76 S.Ct. 435, 100 L.Ed. 839 (1956).
Defendant argues that the court erroneously instructed the jury in telling the jury that in order to find the defendant guilty of first degree robbery, it had to find that the defendant was armed with a deadly weapon and used that weapon in the course of the robbery. Defendant correctly points out that under ORS 164.415 the requirement of first degree robbery is that the one committing it (a) is armed with a Deadly weapon, Or (b) uses or attempts to use a Dangerous weapon. It follows that the instruction was more generous to the defendant than it need have been.
State v. Libbey, 224 Or. 431, 356 P.2d 161 (1960), cert denied, 365 U.S. 882, 81 S.Ct. 1037, 6 L.Ed.2d 195 (1961).
Defendant concedes that there was evidence that he was in possession of a deadly weapon, but argues that there was no evidence that he used or attempted to use it. There is...
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State ex rel. Juvenile Dept. of Multnomah County v. Orozco
...However, its argument rests on a strained reading of state and federal case law. The dissent reasons as follows: Because State v. Cullop, 19 Or.App. 129, 526 P.2d 1048, rev. den. (1974), held that, during his trial, a criminal defendant could be fingerprinted without a warrant, and because ......
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State v. Brown
...such as the routine fingerprinting of an arrested person. 129 Or.App. at 151-52, 878 P.2d 432; see also State v. Cullop, 19 Or.App. 129, 526 P.2d 1048 (1974) (holding that a search warrant is unnecessary to lawfully seize fingerprints from a person in custody). As the concurring opinion in ......