State v. Hartfield

• Decision Date: 07 April 1980
• Docket Number: No. 78-10-15935,78-10-15935
• Citation: 45 Or.App. 639,609 P.2d 390
• Parties: STATE of Oregon, Respondent, v. Charles Eugene HARTFIELD, Appellant. ; CA 14132.
• Court: Oregon Court of Appeals

Page 390

609 P.2d 390

45 Or.App. 639

STATE of Oregon, Respondent, v. Charles Eugene HARTFIELD, Appellant.

No. 78-10-15935; CA 14132.

Court of Appeals of Oregon.

Argued and Submitted Feb. 15, 1980.

Decided April 7, 1980.

Judy Danelle Snyder, Portland, argued the cause and filed the brief for appellant.

Christian W. Van Dyke, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before BUTTLER, P. J., and GILLETTE and ROBERTS, JJ.

BUTTLER Presiding Judge.

Defendant appeals his conviction on two counts of arson, one in the first and one in the second degree, and for burglary in the second degree in violation on ORS 164.325, 164.315 and 164.215. The convictions for burglary in the second degree and arson in the second degree were for unlawful entry into a shoe store for the purpose of committing arson, and for arson of that store. He was convicted of arson in the first degree for placing a nearby home in danger of fire.

Defendant raises a number of assignments of error. Although we conclude that it was error to allow the state's handwriting expert witness to base his opinion on documents which were improperly admitted, the error was not such as to require reversal, and we affirm.

Shortly after midnight on May 11, 1978, fire was discovered at a Kinney Shoe Store located at 1331 North Lombard, Portland. Two persons were seen emerging from the building shortly after the fire started. Within a very short time the building was burning fiercely. The smoke was so thick that a house about 60 feet from the store was evacuated. The blaze was a hot, fast fire and there is no dispute that arson was the cause.

Investigation led to defendant and Richard Losh, the latter of whom negotiated a guilty plea of second degree arson prior to the trial of defendant. Losh was the state's chief witness at trial.

Losh testified that defendant offered him $250 to assist in the destruction of merchandise and records in the Kinney store because the store manager, a friend of defendant, feared a pending audit and had hired defendant to destroy the store contents.

The afternoon before the fire, the witness testified, he found tacked to his door a note reading:

"Here's some money buy the can's and gas. don't forget to think about how to light it. Rick OK see you at 9:00 be at Waddles Jan Beach."

Losh testified that he recognized the handwriting as defendant's and that he found $20 under the floor mat of his car, where defendant had previously told him money for the purchases would be left.

With that money Losh purchased two five gallon gasoline cans and filled them with gasoline. He said he met defendant at Waddle's restaurant at Jantzen Beach that evening and they drove to the Kinney Shoe store. Losh testified defendant unlocked the back door with a key, which defendant said was given him by the manager. Once inside, he and defendant poured gasoline throughout the store, Losh ignited the gasoline and he and defendant made a hasty exit. However, Losh received burns requiring his hospitalization.

Corroboration of Losh's testimony was provided by several state's witnesses. Two of them testified that defendant had admitted his guilt to each of them. That evidence alone was sufficient corroboration of the accomplice's testimony. State v. Howard, 214 Or. 611, 331 P.2d 1116 (1958). One, a mutual friend of Losh and defendant, testified that defendant had called him in the middle of the night of May 10-11 and asked to meet with him. When they met at a restaurant about 1 a. m. defendant told him that he and Losh had set the Kinney store on fire. The other witness, Losh's girlfriend, testified that some weeks after the fire defendant admitted to her that he and Losh set the fire. Another witness testified that defendant gave her an envelope containing $100 to deliver to Losh while he was recuperating from burns at the hospital, which she did.

The state attempted to corroborate the accomplice's testimony further by expert testimony tending to prove that defendant wrote the note produced by Losh. The handwriting expert, a corporal with the Oregon State Police, compared the handwriting on the note with employment applications for Kinney Shoe Corporation, a Naturalizer Shoe store, and documents kept in personnel files from Nordstrom's, all of which purported to contain defendant's handwriting and signature. The witness also was supplied with defendant's signature on a constitutional warning rights form and a handwriting exemplar written by defendant at the Fire Marshall's office after he was taken into custody, ¹ neither of which was used as an exemplar.

The witness testified that by using the employment applications as exemplars it was his opinion that there was a strong possibility defendant had written the note he was 90% sure. He said he could not be positive because the samples of handwriting were so few.

Defendant contends that the handwriting comparison was improper because the witness had compared the writing on the note with handwriting samples admitted in evidence over defendant's objection on the ground that they were not "admitted or treated as genuine by (defendant)" as required by ORS 42.070. That statute provides:

"Evidence respecting the handwriting may also be given by a comparison made by a witness skilled in those matters, or the jury, with writings admitted or treated as genuine by the party against whom the evidence is offered."

The statute sets a strict standard, the purpose of which is to avoid raising collateral issues. The test is not whether the exemplar used for comparison with a questioned writing is genuine, but whether the party against whom the evidence is offered (the defendant here) admits the writing is genuine or treated it as such. The state's argument that circumstantial evidence supports the genuineness of the writings is beside the point. ² The court in State v. Tice, 30 Or. 457, 460-61, 48 P. 367, 368 (1897), after reviewing the rules followed at common law and those used in various states, stated:

"Our enactment touching the subject differs from any that we have been able to find. * * * The tests of the standard prescribed by the section quoted must be held to exclude any other test that might be permissible elsewhere. Applying these tests, it is clear that the genuine will of Nancy M. Love ought not to have been admitted for the sole purpose of instituting a comparison between the signature to the alleged forged will with her mark constituting her signature to the true one. It does not appear from the record that the defendant had admitted, nor is it shown that he had treated, the true will as a genuine writing; so that it was not competent for the witness, admitting that he was a person skilled in such matters, to institute the comparison."

In State of Oregon v. Cahill, 208 Or. 538, 544, 293 P.2d 169, 171, 298 P.2d 214, cert. den. 352 U.S. 895, 77 S.Ct. 132, 1 L.Ed.2d 87 (1956), the Court elaborated on the statutory rule:

"It follows that a signature acknowledged by the defendant to be genuine is admissible for comparison by experts with the questioned document, but signatures proven to be genuine but not 'admitted or treated as genuine' are not admissible for such purpose. Whether this statutory restriction is wise in not for us to say. The statute is valid and violation of it was error. The legislative purpose in enacting the statute is fairly obvious. The receipt of signatures claimed to be genuine for comparison with a signature claimed to be false, might lead to an almost endless excursion into collateral issues. The jury would first have to resolve every contested question as to the genuineness of the signatures offered for comparison before it could safely use them for comparison with the signature on the questioned document. Signatures conclusively proven to be genuine are as relevant and as significant for purposes of comparison, as signatures 'admitted or treated as genuine' by the defendant.

"The use of the nine checks for comparison was error, not because they were not genuine, and not because they were without probative value, but simply because they were a type of evidence forbidden by the statute on the grounds of extrinsic policy the avoidance of collateral issues. In this case we would say that genuineness of the nine checks was conclusively established, but not in the manner required by statute. * * *"

Thus, no matter how strong the circumstantial evidence is that defendant's writing was contained in the employment documents, they were improperly used here for comparison. Defendant had never admitted they were genuine, nor can it be said that he treated them as genuine. Evidence that defendant had worked at two of the stores and had applied for work at the third store may tend to prove the documents pertained to him, but they do not establish that he treated the handwriting on those records as his.

It follows that it was error to have admitted the documents ³ used as exemplars and the expert's opinion testimony based thereon. Considering, however, that this evidence was only a small part of that corroborating the alleged accomplice's testimony, it is highly unlikely that the error affected the outcome. The jury had to believe Losh's testimony in order to convict defendant, and the other corroborating evidence was overwhelming in support of defendant's guilt. The error does not require reversal.

We turn to defendant's remaining assignments of error.

Prior to trial defendant had requested copies of all police reports and statements of witnesses. The district attorney's office had inadvertently omitted from the reports turned over to defendant one report containing a summary of the statement given by Richard Losh to investigators from the Fire Marshal's office. The omission was discovered at mid-trial during cross-examination of the investigator, and after Losh had...