State v. Gardner

• Decision Date: 19 February 1974
• Citation: 16 Or.App. 464,518 P.2d 1341,98 Adv.Sh. 1218
• Parties: STATE of Oregon, Respondent, v. Riley Ritchie GARDNER, Appellant.
• Court: Oregon Court of Appeals

Page 1341

518 P.2d 1341

16 Or.App. 464

STATE of Oregon, Respondent, v. Riley Ritchie GARDNER, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Jan. 25, 1974.

Decided Feb. 19, 1974.

Phillip M. Margolin, Portland, argued the cause for appellant. With him on the briefs was Alfred M. Varnes, Jr., Portland.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

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

TANZER, Judge.

Defendant was indicted for murder, ORS 163.115(1)(b), and assault in the first degree, ORS 163.185, along with several other participants in a tavern fight which resulted in a death and several injuries. After an extensive trial, defendant was convicted of murder and three counts of assault in the second degree, ORS 163.175, and he appeals on the basis of several assignments of error.

First, defendant assigns as error the denial by the trial court of his motion for new trial and motion in arrest of judgment which raised for the first time constitutional challenges to the murder statute, ORS 163.115(1)(b), and the first degree assault statute, ORS 163.185, as void for vagueness. An objection to the constitutionality of a statute upon which an indictment is based must be raised by pre-trial demurrer and, if not, it is waived. State v. Zusman, 1 Or.App. 268, 271, 460 P.2d 872 (1969), rev. den., cert. den.398 U.S. 905, 90 S.Ct. 1698, 26 L.Ed.2d 65 (1970); State v. Krause, 251 Or. 318, 323, 445 P.2d 500 (1968). Defendant's claim that such an assertion is reviewable if first raised on a motion for new trial and motion in arrest of judgment, ORS 136.810, is incorrect. State v. Thomson, 203 Or. 1, 16, 278 P.2d 142 (1954). Consequently, we do not reach the issue.

The trial court allowed over defendant's objection testimony by the manager of the tavern where the fight occurred, that about one month before the fatal fight defendant had had a dispute at the tavern with one Lester Tompkins, a brother-in-law of Derial 'Cash' McCaw, the decedent:

'A Well, in questioning him (the defendant) to find out what was wrong, he said that Lester Tompkins had bumped into him in the can and made some statement. I said, 'Well, surely that isn't worth having a big hassle over' and he said, 'Well, that s.o.b. is still alive.' And something to that nature and I said, 'Well, I don't-- ¹

'* * *

'A * * * He (defendant) said, 'That son of a bitch is still alive and he pushed me in the can.'

'I said, 'Well, I don't think it is worth a man's life for him pushing you.'

'* * *

'A Okay, Lester Tompkins started to get in his car and there was three or four people trying to keep everything down to earth, and Ritchie Gardner was kind of half turned to me and I said, 'Come on, man, let's just let it go, because the guy is leaving and he has his wife and kids in the car.' I said, 'You don't want to hassle him in front of his wife and kids.'

'And he said, 'I will show him a hassle. I will kill that son of a bitch.' And he turned around and pointed at Cash McCaw who was standing in the doorway and he said, 'And that stubby fucker there, too. " ¹

Defendant assigns admission of the evidence of death threats as error because

'* * * evidence of a month old death threat to the deceased, which would bear on elements such as 'intent' or 'premeditation' is irrelevant when the crime charged is 'reckless' murder, because 'intent' and 'premeditation' are not elements of the crime of 'reckless' murder.'

The murder count on the indictment is brought in the statutory language of ORS 163.115(1)(b) which provides that 'criminal homicide constitutes murder when * * * (i)t is committed recklessly under circumstances manifesting extreme indifference to the value of human life,' rather than ORS 163.115(1)(a) which applies when criminal homicide 'is committed intentionally.' 'Recklessly,' as used in the indictment, is defined by ORS 161.085(9) as follows:

"Recklessly,' when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.'

Proof that the defendant articulated an intention to kill the decedent and his brother-in-law in response to slight provocation must therefore be measured for relevancy against the allegation of the indictment that defendant's conduct manifested 'extreme indifference to the value of human life.' The threats demonstrate defendant's attitude toward human life, particularly McCaw's, in that they tend to show that he had either determined to kill McCaw or, at the least, would 'consciously disregard a substantial and unjustifiable risk' that his stabbing would cause McCaw's death. Thus it was relevant on the question of defendant's state of mind and was properly admitted.

The defendant's next assignments of error challenge the admission of rebuttal evidence to impeach his testimony and that of his friend, co-defendant and witness, Steven Zabriskie. Zabriskie testified on direct examination as to the day's activities with the defendant from the time he woke up until after the fight in the evening, but he omitted any mention of an encounter with the police which occurred on their way home from an afternoon tour of some taverns. The prosecutor asked him about the encounter on cross-examination. Zabriskie testified that the police harassed members of his motorcycle club without provocation, that on that afternoon the police had pulled them over, but that there had been no 'particular hassle,' and that he, Zabriskie, had not yelled 'profanities and obscenities' at the officer before he pulled them over.

The defendant also testified on direct examination about the day's activities, including the police encounter. He denied that there had been any rough language or contentiousness. On cross-examination, however, he admitted the use of coarse name calling and said that the officer challenged him, defendant, to a fight.

The prosecutor called the police officer in rebuttal. He testified over objection, among other things, that Zabriskie had directed coarse names and gestures toward him and that the defendant repeatedly challenged him to a fight, bragged about his boxing experience, and expressed his desire to see the officer's blood and disfigurement.

The trial judge, by proper instruction, limited the jury's consideration of the officer's testimony to rebuttal purposes.

Defendant assigns the admission of the rebuttal testimony as error, urging that it is improper as impeachment on a collateral matter. State v. Edwards, 106 Or. 58, 210 P. 1079 (1922). The state responds that the evidence was properly admitted to show that Zabriskie's and defendant's testimony of the day's activities was incomplete due to defect of memory or lack of candor.

ORS 45.600 provides that a 'witness may be impeached by the party against whom he was called, by contradictory evidence * * *.' As a general rule, however, such impeachment may not relate to collateral matters. Stated otherwise, a cross-examiner must accept the answers he receives to questions 'not relevant to the issue and not touched on in direct examination.' Smith v. White, 231 Or. 425, 433, 372 P.2d 483, 486 (1962). In many cases, this one included, it is hard to draw the line of relevancy. One of the principal purposes of the rule being the expedition of trial, its application is largely left within the trial court's discretion. Flande v. Brazel, 236 Or. 156, 160, 386 P.2d 920 (1963). In this case, the impeachment testimony was properly admitted because it was opened up in the defendant's direct testimony, State v. Segura, Or.App., 519 P.2d 100 (decided February 5, 1974), and because the trial court, in the proper exercise of its discretion, did not allow the trial of one event to become the trial of another event.

Defendant complains of the manner in which the prosecutor sought to impeach him by proof of a former conviction pursuant to ORS 45.600. The defendant admitted on direct examination to having been convicted of 'Misdemeanor of malicious mischief.' He argues that under State v. Rollo, 221 Or. 428, 351 P.2d 422 (1960), the prosecutor was barred from introducing any further evidence. Here, the prosecutor was allowed to establish on cross-examination that the name of the crime was 'criminal mischief in the second degree' and that the crime and the conviction occurred in 1972. When the prosecutor began to ask regarding the facts of the case, his question was promptly interrupted by an objection and the court properly limited the inquiry. ² Defendant relies upon the following language in State v. Rollo, 221 Or. at 437, 351 P.2d at 426:

'* * * It is proper to ask a witness if he has ever been convicted of a crime. This may be done with or without a record of conviction being available. If the witness answers 'No,' that is the end of the interrogation. If an authenticated record to refute the negative answer is available it may be introduced to show an actual previous conviction of crime by the witness. Or, the record may be introduced in the first instance, without a preliminary question to the witness, to show previous convictions. That, however, is the limit permissible by our procedure. * * *'

He also cites State v. Gilbert, 138 Or. 291, 294, 4 P.2d 923, 924 (1931), which holds that the district attorney may

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