State v. Herrera
| Decision Date | 06 November 1963 |
| Citation | 386 P.2d 448,236 Or. 1 |
| Parties | The STATE of Oregon, Respondent, v. Robert E. HERRERA, Appellant. |
| Court | Oregon Supreme Court |
Joseph W. Hagler, Klamath Falls, argued the cause and filed briefs for appellant.
Dale T. Crabtree, Dist. Atty., Klamath Falls, argued the cause for respondent. With him on the brief were Sam A. McKeen and John R. Thomas, Deputy Dist. Attys., Klamath Falls.
Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN, and DENECKE, JJ.
The defendant was indicted for first-degree murder. The jury found him guilty of second-degree murder. He appeals.
The defendant was accused of killing Frankie Long, a twenty-three-month-old boy, by kicking him to death. Frankie Long was the child of Franklin Long and Lorene Long. The defendant had been acquainted with Lorene Long before her marriage to Mr. Long. The defendant's relationship with Lorene was interrupted when the defendant pleaded guilty to the crime of contributing to the delinquency of a minor and was sent to the state penitentiary. Lorene, as the minor in that case, was committed to the Hillcrest School for girls. Upon her release from Hillcrest, Lorene married Mr. Long. Frankie was born of that union. Lorene then divorced Mr. Long. The defendant was released from prison and, after her divorce, resumed his association with Lorene.
The state contended that the defendant resented the Long child and studied its destruction. There was evidence that the defendant had attacked and beaten the child on other occasions. The mother testified, for example, that the defendant hit Frankie in the face with his fists and broke the child's jaws a few weeks before the murder. This evidence was corroborated in part by other witnesses.
At the time of the crime, the defendant was living with Lorene, Frankie, and two of his own children, a six-year-old boy and a two-and-a-half-year-old girl. The evidence tended to prove the following: During the afternoon when the murder was committed, the two children of the defendant were in a bedroom with Frankie. The three were supposed to be taking naps. Frankie began to cry. The defendant told Lorene he would go in and take care of Frankie. The defendant went into the bedroom. He emerged a short time later and repaired to a tavern. Some minutes later, Lorene went into the room to look after the children and found that Frankie was dead. The body was badly bruised. (Later examination revealed extensive internal bleeding, broken ribs, brain damage, and a ruptured liver.) Lorene ran to a neighbor's house for help. The two other children were then taken to the neighbor's house, where they watched television Meanwhile officers were summoned.
There are nine assignments of error. One challenges the conviction upon the ground of misconduct by the prosecuting attorney.
The alleged misconduct of the prosecutor consisted in declaring in his opening statement that the deceased child had been conceived while the defendant was serving time in the state penitentiary. The trial court promptly told the jury to disregard that statement by the district attorney. The matter was not mentioned again in the opening statement. In defense of conduct that appears to have been dangerously close to pettifogging, the state now asserts that it was entitled, upon trial, to prove that the child the defendant was accused of kicking to death had been conceived by his female friend while the defendant was in prison, and, therefore, the jury should be permitted to infer that the defendant had a malicious predisposition to kill the child.
Fragments of such evidence later did come in, and did have some relevance on the score of malice and premeditation. We cannot say, as a matter of law, that the fact of a defendant's prior imprisonment could never properly be brought to the attention of the jury in an opening statement. If such evidence actually has probative value concerning a material issue in the case, there is no reason why reference may not be made to it in the opening statement. Cf. State v. Martin, 47 Or. 282, 83 P. 849 (1906). See, where the evidence alluded to in opening statement was later excluded, State v. Broadhurst, 184 Or. 178, 196 P.2d 407 (1948). However, the inflammatory nature of the prosecutor's remarks in the case at bar outweighed any reasonable excuse for including them in the opening statement. It is, of course, error to permit the state to attack the defendant's character at any stage of the trial, except where the defendant has offered himself as a witness on his own behalf. State v. Ede, 167 Or. 640, 644, 117 P.2d 235 (1941). See also ORS 45.600. The accused is required to answer a charge of a specific crime, not a charge that he is a bad man. State v. Ogden, 39 Or. 195, 65 P. 449 (1901).
We do not believe, however, that the misconduct of the prosecutor resulted in actual prejudice to the defendant. It is presumed that the jury disregarded the improper remarks of counsel. If any damage to the defendant remained in the mind of any juror, it was neutralized later in the trial. The evidence on the former conviction was placed before the jury when the defendant took the stand as a witness. The state then introduced evidence of the former conviction to impeach his credibility. See State v. Rollo, 221 Or. 428, 437, 351 P.2d 422 (1960). The assignment of error based upon the conduct of the prosecutor reveals no basis for reversal.
The next assignment of error which we will consider presents a different sort of problem. During the prosecution's case, the state induced the trial court to admit evidence which the defendant characterizes as hearsay.
Some time while the Herrera children were at the neighbor's house watching television, a woman there asked the six-year-old boy what had happened. At the trial the neighbor was permitted to testify over the objection of counsel that the six-year-old had told her, 'Daddy jumped on Frankie.' The state apparently offered the testimony to prove the truth of the charge. (The state argued that the evidence was admissible as a 'spontaneous utterance.')
While the trial court has some discretion in permitting a witness to report what was said by another during or immediately after an event if the reported declaration was spontaneous or impulsive, this exception to the hearsay rule was misapplied in the case at bar. Compare State v. Hutchison, 222 Or. 533, 543, 353 P.2d 1047, 83 A.L.R.2d 1361 (1960), where the child, a victim of sexual molestation, within three or four minutes after the crime, and while still under the influence of a traumatic experience, told his mother what had happened.
It does not follow, however, that there was error requiring a reversal of the judgment. In addition to circumstantial evidence against the defendant, the state had already put in evidence the eyewitness testimony of the defendant's six-year-old son. The child's testimony had been subjected to intensive cross-examination. The defendant was not, therefore, prejudiced by any lack of opportunity to cross-examine the person who had made the out-of-court declaration. The testimony of the neighbor woman, although hearsay, was not infected with the usual prejudicial quality of hearsay, i. e., that it is not subject to cross-examination.
A more serious objection to the challenged testimony is one that was not raised during trial, and, accordingly, not presented here as error. Before the boy's testimony had been impeached in any manner, it was improper for the state to seek to help the boy's oath by bringing in the neighbor's testimony that the boy had told the same story before. For this purpose, the challenged testimony was both irrelevant and self-serving. Maeder Steel Products Co. v. Zanello, 109 Or. 562, 577, 220 P. 155 (1924); 4 Wigmore, Evidence 194-196, § 1124 (3d ed. 1940). The testimony was, accordingly, inadmissible for any purpose at the time it was offered.
The error in receiving the challenged testimony, however, in substance turned out to be an irregularity in the order of proof. Later...
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