State v. Goodin

• Decision Date: 25 April 1972
• Citation: 8 Or.App. 15,93 Adv.Sh. 1588,492 P.2d 287
• Parties: STATE of Oregon, Respondent, v. Dennis Melvin GOODIN, Appellant.
• Court: Oregon Court of Appeals

Page 287

492 P.2d 287

8 Or.App. 15

STATE of Oregon, Respondent, v. Dennis Melvin GOODIN, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Sept. 23, 1971.

Decided Dec. 27, 1971.

Rehearing Denied Jan. 26, 1972.

Review Denied April 25, 1972.

Jack A. Gardner, Eugene, argued the cause for appellant. With him on the brief were Jaqua, Wheatley & Gardner, Eugene.

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

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

FOLEY, Judge.

Defendant, Dennis Melvin Goodin, was convicted by a jury of first degree murder in a trial which lasted over seven weeks. Defendant appeals, assigning 16 errors.

A summary of the complicated facts is required to understand the assignments of error. Defendant and others, including the murder victim, Paul DeGeorge, and two others indicted in the murder, Donnie Ray Gardner and Robert Bullard, were members of a tightly-knit group allegedly formed to commit burglaries. Also members of this 'clique' at the time of DeGeorge's death were Richard Hill, Charles Gardner and Eugene Gardner. On September 26, 1968, the house of the leader of this ring, Donnie Ray Gardner, was burglarized. Gardner summoned a meeting of his group as he believed that the burglar was among them. For several days Gardner and others tried to find out who had committed the burglary. Suspicion was centered on DeGeorge, although at defendant's trial it developed that Bullard had, in fact, burglarized Gardner's house.

DeGeorge's body was found October 5, having been shot 12 times. The state's theory was that Gardner, Bullard and defendant conspired to kill DeGeorge. Considerable evidence was introduced, including testimony that defendant had boasted of the shooting, which pointed to defendant as the trigger-man.

Defendant first assigns as error the trial court's refusal to grant a further continuance of the trial on September 9, 1969.

We examine the trial court's decision of denying a continuance only to determine whether there has been an abuse of discretion. State v. Young, 1 Or.App. 562, 463 P.2d 374, Sup.Ct. review denied (1970); State v. Edwards, 3 Or.App. 179, 471 P.2d 843, Sup.Ct. review denied (1970). Here, the court appointed two attorneys for the defendant on June 30 and July 2, 1969. The record further shows that an investigator who started early in July also assisted the attorneys in the preparation of the case. The trial did not commence until September 9, 1969.

Plaintiff's counsel made motions for a continuance on August 28, September 2 and September 9. On September 4 the motion of the 2nd was granted and the trial date was extended to September 9.

In reviewing the affidavits in support of the motions and considering the length of time between appointment of counsel and trial, 71 days, we cannot say the defendant was prejudiced by the denials.

The second assignment of error concerns the court's refusal to compel the prosecutor to produce a material witness, Richard Alvin Hill.

The record reveals that defense counsel and his investigator did locate and speak with Hill in person to set up a meeting. Hill at some point changed his mind and avoided the appointment but was not prevented from keeping the appointment by the prosecutor. The claimed error was thus rendered moot.

Assignments of error three and four relate to the court's refusal to grant a mistrial because of failure by the prosecutor to disclose evidence and then his closing argument in which he aggravated the problem by stating:

'I want to say to you in that regard that the law that controls prosecution of any criminal case in this day and age requires us to divulge to the defense any evidence consistent with the innocence of the defendant, and we have done so. * * *'

In actuality, the prosecutor had not done so with respect to certain evidence, the most important of which was tire tracks found at the scene of the murder.

However, the defense was able to present the exculpatory evidence in the presence of the jury through an effective examination of several witnesses. Thus, again, the withholding of the evidence and the misleading statement of the prosecutor were rendered harmless. This is particularly true since the defense counsel immediately objected to the prosecutor's comment and the judge warned the prosecutor to discontinue this line of argument. It was therefore made apparent to the jury that the prosecutor's statement was inaccurate which, if anything, was favorable to the defendant.

Defendant next assigns as error the court's refusal to suppress a .22 caliber pistol taken from defendant's premises on October 31, 1968. The weapon was discovered in a search incident to a valid arrest, and thus the court's refusal to suppress was not erroneous.

The sixth assignment of error concerns the admission of certain hearsay testimony by Rhea Connor of the statements allegedly made by Bobby Bullard on September 29. Defendant objected on the grounds it was hearsay but on appeal contends that the remakrs were inadmissible because they were made prior to any possible conspiracy and thus inadmissible as an exception to the hearsay rule as declarations of a co-conspirator. The record, however, contains evidence that at a meeting on the evening of the September 26 burglary of Gardner's house, his 'clique' decided to find and, it may be inferred, to punish the guilty individual. Bullard was not at the meeting but returned on September 29 and spoke with Gardner prior to making the statements which were objected to. Thus there was testimony showing that a conspiracy had been formed and Bullard had entered into it prior to his statements. Much of this evidence was already in the record prior to Rhea Connor's testimony. In any case, the order of proof is discretionary with the trial court. State v. Gagnon, 2 Or.App. 261, 465 P.2d 737, Sup.Ct. review denied (1970).

The seventh assignment of error concerns remarks made by the prosecutor in his final argument. The prosecutor commented on the failure of Eugene Gardner, who had been brought from the penitentiary to Eugene at defendant's request, to testify. The prosecutor's comments were within the bounds of remarks held proper in State v. Lincoln, 250 Or. 426, 443 P.2d 175 (1968). The prosecutor next argued that great danger faced Richard Hill because he had become the state's witness. This remark was a response to the defendant's closing argument wherein the defendant's attorney asserted that Hill was in no danger. This was within the limits of fair advocacy. State v. Oland, 1 Or.App. 272, 461 P.2d 277 (1969), Sup.Ct. review denied (1970).

The defense also objected to the prosecutor's inference that the defendant and Donnie Gardner were in the Oregon State Penitentiary together. While there was no testimony that they actually were in the penitentiary at the same time, there was evidence that both had been in the penitentiary and that they had known each other prior to the defendant's joining the Gardner gang in September 1968. The remark of the prosecutor was a comment on the evidence within the rule of State v. Gill, 3 Or.App. 488, 474 P.2d 23, 27, sup.Ct. review denied (1970):

'Counsel in argument is permitted to comment on the evidence and to draw all legitimate inferences therefrom, provided he does not transcend the limits of professional duty and propriety. * * *'

The defense asserts that the prosecutor injected his own credibility into the evidence by stating that Hill had been advised to 'Tell it the way it is. * * *' Absent abuse, the control of closing arguments is left to the trial court judge, who has broad authority to control the conduct of the trial. State v. Truxall, 2 Or.App. 214, 467 P.2d 643 (1970); State v. Gill, supra. There was no abuse here.

Defendant next contends that it was error for the trial judge to admit testimony from Richard Hill relating to his background--in particular, his marital status. The objections relied upon asserted that this was irrelevant and tended to endow Hill with too much credibility. However, an examination of the record shows that Hill's testimony was extremely legnthy and exhaustive. His past criminal activities involving dozens of crimes were brought out in detail both on direct and cross-examination. In view of this, we cannot say that a few preliminary questions determined the overall credibility of the witness. Absent abuse, this matter also is controlled by the trial judge. State v. Hosmer, 72 Or. 57, 142 P. 581 (1914). There was no abuse here.

The ninth assignment of error concerns another objection to the effect that the prosecutor improperly placed his own veracity before the jury. A witness testified that he last remembered seeing the deceased about October 1. Then the prosecutor asked:

'Q Do you recall telling Officer Jacobson that the last time you saw DeGeorge was on Wednesday, October 2nd, about 1:30 in the afternoon?

'(DEFENSE COUNSEL): I object to the question your Honor. * * *

'(PROSECUTOR): * * * This witness has been interviewed by Officer Jacobson in connection with this matter, and also personally by Mr. Keutzer and myself, and his statement prior to this occasion has been the statement that I am reading to him now with reference to his prior statements on this matter.'

The witness was then, over further objection, given a copy of his statement and conceded that he thought the statement was probably correct.

Defense counsel first objected on the grounds that the prosecutor was attempting to impeach his own witness with a prior inconsistent statement. Then, the objection was that the prosector was attempting to put his own credibility into the record.

ORS 45.590 provides:

'The party producing a witness * * * may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present...