State v. Herrera

• Decision Date: 07 February 1978
• Citation: 32 Or.App. 397,574 P.2d 1130
• Parties: STATE of Oregon, Respondent, v. Antonio Miguel HERRERA, Appellant.
• Court: Oregon Court of Appeals

Page 1130

574 P.2d 1130

32 Or.App. 397

STATE of Oregon, Respondent, v. Antonio Miguel HERRERA, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Nov. 16, 1977.

Decided Feb. 7, 1978.

Peter Robinson, Certified Law Student, Portland, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.

Before SCHWAB, C. J., and LEE and JOSEPH, JJ.

LEE, Judge.

Defendant appeals his conviction of murder. ORS 163.115 ¹. Defendant urges that (1) the court abused its discretion in denying his motion for a change of venue, ORS 131.363; (2) the court erred in permitting an accomplice's preliminary hearing testimony to be read to the jury under ORS 41.900(8) in violation of the confrontation clauses of the Oregon ² and United States ³ Constitutions; and (3) the court erred in failing to give defendant's requested instruction regarding mental disease or defect based upon ORS 161.295. We affirm.

On July 19, 1976, the body of Samuel Newman was discovered lying in a street. He had died from multiple stab wounds. On July 24, 1976, defendant was arrested in connection with the stabbing. That day defendant told police two conflicting stories about his activities on the night Newman was stabbed. Defendant did not rely on the first story at trial so it does not bear repeating. Defendant's second story was that Newman had been hitchhiking when he and the Lerma brothers, Steve and Phil, picked him up. Defendant said that he was driving and Phil was in the back seat. Newman called Phil some bad names and Phil stabbed him to death. Defendant tried to stop Phil and was cut over the right eye. Newman's body was then dumped. After talking to defendant, Phil told police essentially the same story.

On the same day, Steve told the police that he had been driving when defendant placed a knife at Newman's throat and initiated the stabbing in which Phil participated. Steve was granted immunity from prosecution on the condition that, among other things, he did not participate in robbery or any other felony. On September first and second, Steve repeated his story under oath at a preliminary hearing which involved extensive cross-examination by defendant's attorney. At the hearing Steve also testified that he had agreed to rob someone before the killing occurred.

Prior to the trial, the local news media reported the content of Steve's testimony implicating defendant and Phil as suspects. The newspapers also reported that the district attorney had revealed that a signed confession existed. Defendant moved for a change of venue. A pretrial hearing was conducted and the court denied the motion.

On the last business day before trial, the prosecution revoked Steve's conditional immunity and charged him with felony murder of Newman based upon his testimony at the preliminary hearing. At defendant's trial Steve refused to testify on the ground that it might incriminate him. Over objection, the prosecution read Steve's preliminary hearing testimony to the jury.

At trial defendant testified that he had taken several drugs on the evening of the homicide and that he had been taking different types of drugs pretty regularly for the last six years. Defendant was age 17 at the time of his apprehension and was remanded to adult court for trial. A psychiatrist testified that many regular amphetamine users become assaultive and that multiple stab wounds would indicate such a

temperament. The psychiatrist further testified that a chronic amphetamine user who had injected amphetamines into his system a few hours earlier would probably know what he was doing while stabbing someone but that his ability to conform to the law would be lacking. The trial judge refused to instruct the jury regarding the defense of mental disease or defect, ORS 161.295.

VENUE

Defendant contends that the court abused its discretion in denying his motion for a change of venue based upon ORS 131.363 ⁴ which provides:

"For the convenience of parties and witnesses, and in the interest of justice, the court, upon motion of the defendant, may order the place of trial to be changed to another county."

During a pretrial hearing defendant introduced newspaper articles which reported that police said defendant initiated the stabbing and that the district attorney said one of the defendants had signed a confession. ⁵ To counter this motion the prosecution called upon eight members of the community to testify regarding the newspaper articles. ⁶ These people were not told the name of the case or the reason for their testimony. Upon examination, most of the witnesses were aware of the killing but could not recall that they had been informed that defendant was connected with it. Only one witness could remember that the defendant was "supposed" to have done it and he wasn't sure how he acquired that information. On the basis of the evidence presented the trial judge denied the motion.

In general, motions for change of venue are addressed to the sound discretion of the trial court. State v. Little, 249 Or. 297, 312, 431 P.2d 810, cert. den., 390 U.S. 955, 88 S.Ct. 1048, 19 L.Ed.2d 1148 (1968). In exercising its discretion, the trial court should grant a change of venue where there is a reasonable likelihood that prejudicial news prior to trial will prevent a fair trial. In addition, appellate courts have the duty to make an independent evaluation of the circumstances in determining whether the trial court has taken sufficient measures to assure that an accused is tried by impartial jury free from outside influences. Sheppard v. Maxwell, 384 U.S. 333, 363, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).

In this case the newspaper articles did report the suspects' names, specific details of the crime, and the existence of a confession. We have given consideration to all of the evidence adduced at the change of venue hearing and we cannot say that the press coverage of the crime was so pervasive that it was an abuse of discretion to deny the change of venue. Cf. State v. Wampler, 30 Or.App. 931, 569 P.2d 46 (1977), rev. den. (1978).

CONFRONTATION

Defendant next contends that the court erred in admitting hearsay testimony under ORS 41.900(8) in violation of defendant's rights under the confrontation clauses of the Oregon and United States Constitutions. This issue arose when Steve's "conditional immunity agreement" ⁷ was revoked The right of confrontation given by the Oregon Constitution is a guaranty that an accused shall have the right to meet his own witnesses face to face, to cross-examine those adverse to him, and to examine them orally in the presence of the court and jury. However, this right does not do away with the established exceptions of the confrontation rule. State ex rel. Gladden v. Lonergan, 201 Or. 163, 176, 177, 269 P.2d 491 (1954); Or.Const., Art. I, § 11.

and he claimed his right [32 Or.App. 403] against self-incrimination. When this occurred, testimony from the preliminary hearing was read into evidence. The conflict arises because defendant's right to confront the witness is seemingly inconsistent with the witness's constitutional privilege against self-incrimination.

One exception to the defendant's right of confrontation is that the former testimony of a witness may be admissible, when necessary, where the opportunity of cross-examination has been afforded. State ex rel. Gladden, supra at 180, 269 P.2d 491. Such necessity may arise when a witness becomes unavailable. ⁸

In this case Steve became unavailable when he claimed his privilege and his prior testimony was admitted pursuant to ORS 41.900(8) which provides:

"Evidence may be given of the following facts:

" * * *e m

"(8) The testimony of a witness, deceased, or out of state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter."

This statute was construed in State v. Rawls, 252 Or. 556, 562, 451 P.2d 127 (1969), to include the common law rule that former testimony which was given in a previous trial may be used at a subsequent trial when the witness is no longer available. However, a witness must not go beyond the process of the court by the procurement or instigation of the offering party. Rogers v. Donovan, 268 Or. 24, 27, 518 P.2d 1306 (1974). Thus defendant contends that the state loses its right to read a witness's prior testimony at a subsequent trial after the state has revoked its "conditional immunity agreement" and indirectly caused his unavailability.

Assuming, arguendo, that the conditional immunity agreement was valid, the state may revoke it and charge the witness with commission of a crime when the state has "good reason" ⁹ to believe that the witness committed a crime and therefore breached a condition of the agreement. ¹⁰ Although such revocation may indirectly cause a witness to invoke his privilege against self-incrimination, ¹¹ the state's revocation of the immunity agreement was not the ultimate cause of the witness's unavailability instead It is well settled that testimony from a prior trial in which defendant had an opportunity to conduct cross-examination may be read at trial without denying defendant the right to be confronted by the witness. State v. Rawls, supra, 252 Or. at 561, 451 P.2d 127. We hold that a witness's testimony at a preliminary hearing sufficiently approximates the circumstances of a trial if, as in this case, (1) it is given under oath; (2) the witness is subject to cross-examination by defendant's counsel; and (3) the proceedings are recorded by a judicial tribunal. California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). The prior testimony was, therefore, properly admitted.

it was the witness's exercise of his privilege that created the...