State v. Johns

• Decision Date: 26 August 1986
• Citation: 301 Or. 535,725 P.2d 312
• Parties: STATE of Oregon, Petitioner on review, v. Philip Kenneth JOHNS, Respondent on review. CC 83-1074; CA A31705; SC S32445.
• Court: Oregon Supreme Court

Page 312

725 P.2d 312

301 Or. 535

STATE of Oregon, Petitioner on review, v. Philip Kenneth JOHNS, Respondent on review.

CC 83-1074; CA A31705; SC S32445.

Supreme Court of Oregon In Banc.

Argued and Submitted May 7, 1986.

Decided Aug. 26, 1986.

Stephen F. Peifer, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on petition were Dave Frohnmayer, Atty. Gen. and James E. Mountain, Jr., Sol. Gen., Salem.

Philip Kenneth Johns, argued the cause pro se as respondent on review.

JONES, Justice.

Defendant was convicted of murdering his wife, who was shot in the head with a revolver. He appealed to the Court of Appeals, asserting trial court error in admitting testimony concerning two prior incidents, one a crime and the other a noncriminal act. The Court of Appeals held that the evidence of prior acts was inadmissible and prejudicial, 76 Or.App. 448, 709 P.2d 1121, and reversed and remanded the case for a new trial. The state petitions this court for review. We reverse the Court of Appeals.

FACTS

At 9:06 a.m. on November 20, 1983, defendant telephoned the police to report that his wife had been shot accidentally while in the bedroom of their home. The police soon arrived and discovered the victim on the bed, lying on her back with her head on a pillow. A .38 caliber revolver and four cartridges were on the bed near the victim's knees. She was taken to the hospital, where she died the next day. An autopsy determined she died from a gunshot wound to the back of the head. The bullet traveled almost straight from the back to the front of her head, lodging above the left eye. The state's evidence was that the muzzle of the gun was about six inches to two and one-half feet from the victim's head.

Police officers described defendant as upset, in shock, nervous and talkative when they arrived. One officer observed a small drop of blood on his finger and a gray, sparkly substance on his hand. Another officer observed "flat black stains" on defendant's hands and "some dark gray fine crystalline powder residue on the right index finger area and the area up to the webbing of the thumb."

Defendant told the officer that the black stains came from polishing shoes; a pair of black shoes wet with polish was nearby. The officers believed that the gray powder was gunpowder residue. However, defendant washed his hands in the restroom at the police station despite an officer's direction to the contrary. The police found no trace of gunpowder residue on either the defendant's or the victim's hands in subsequent testing.

Defendant described the shooting as accidental. Defendant did not testify, but his version was presented to the jury through his tape-recorded statement to the police, his video-taped re-enactments of his story and an officer's testimony relating statements defendant made soon after the police arrived at the scene. According to defendant, he returned home from his graveyard shift as a security guard shortly after 8 a.m. and entered the dark bedroom. As he walked toward the bed there was a bright flash and a loud bang, which he realized was a gunshot. He shouted, "Shit, don't, it's me," and lunged for the gun. He tried to take the gun out of his wife's hand and, as he landed on the bed,

" * * * her arm just seemed to flop up against the pillow and there was a hell of a bang and she just started to moan and the first finger nearest my thumb on my right hand started to vibrate and she started to quiver and shake and I just grabbed the gun and uh opened the cylinder and just threw it down on the bed and raced around the end of the bed, grabbed the telephone and rang 911. * * * "

Defendant said that his hand was on the weapon when it discharged. The police found a bullet in the wall that had passed through a closet door and appeared to have been fired from the bed.

Defendant's version of what happened was presented to the jury without defendant ever taking an oath, the jury ever observing his testimonial demeanor and defendant ever being cross-examined. We will not comment on how much of this self-serving hearsay evidence was admissible. However, it did reveal that according to defendant his wife shot at him as he entered their bedroom and that while he was trying to wrest the weapon from her hand, the gun discharged the fatal shot to the back of her head.

The Court of Appeals detailed the prosecution's case as follows:

"The prosecution presented evidence concerning defendant's motive to kill his wife and attempted to discredit his explanation of the alleged accident both by arguing that his version was physically implausible and by introducing evidence of prior bad acts to establish intent in this case. Evidence admitted without objection establishes the following. Several witnesses testified that the victim had told them that she was unhappy in her marriage, wanted defendant to move out and desired to terminate the marriage. The victim told one witness that defendant had threatened her with guns about nine months before she died and that she was afraid of defendant. The state introduced letters written by the victim to her paramour within six months of her death, in which she wrote of her dissatisfaction with her marriage and her frustration due to her inability to get defendant to move out. She wrote that she wanted to end the marriage but was 'scared' to do it and afraid to file for divorce, because she feared that defendant would try to take her property. She wrote that defendant had threatened her, that she was living in fear for her safety and was afraid that defendant would try to hurt or kill her. She also wrote that defendant was the only person toward whom she had 'violent thoughts' and whom she had 'ever thought of hurting.' The prosecution also presented evidence that the victim was afraid of guns and did not like having them in the house.

"One witness for the prosecution testified that defendant had stated three months before the victim's death, 'My wife's a liability and not an asset and I got to figure out how to get rid of her.' Another witness testified that defendant had told her that 'if he ever found his wife with another man he would kill her,' that he subsequently had said he was positive his wife had a lover but he did not carry out his threat. Another witness testified that defendant had told him he was going to New Zealand around Christmas and would have between $80,000 and $100,000 when he returned, which he would like to invest. There were two policies insuring the victim's life for a total of $80,000 and naming defendant as beneficiary, for which application was made on June 13, 1983. Applications for comparable policies insuring defendant's life and naming the victim as beneficiary were made on the same date."

The letters referred to by the Court of Appeals also revealed that the marriage was plagued by defendant's financial dependence upon his wife and his irregular employment. Other evidence revealed that in Oregon, as in New Zealand, defendant failed to become a regular police officer, but had been a member of the Portland police reserve.

In the Court of Appeals, defendant assigned error to the trial court's denial of his motions to limit the introduction of evidence of two prior acts. The first prior act was defendant's assault on his former wife, Barbara Johns, not the victim in this case, which took place in New Zealand almost six years before the death in this case. Barbara Johns was allowed to testify to the details of that assault, as well as to describe their marital problems. In addition, a police officer from New Zealand, an acquaintance of defendant's, testified about that incident. The state transported both witnesses from New Zealand to testify.

The New Zealand incident occurred on December 25, 1977. Defendant and Barbara Johns had then been legally separated for about five months. She testified that their finances were never good and that defendant resented her role as the primary provider. Both applied to become traffic officers in May 1977, and Barbara was accepted; defendant was rejected. She felt that he was "very bitter" about the rejection. She testified that he made several threatening telephone calls to her during their separation, including that "if he couldn't have me no one else could" and "if we couldn't be together in life he wanted us to be together in death." She then testified about the December 25 assault:

" * * * About 8:45 on Christmas morning, Philip [defendant] came to my flat. He walked in and stood with his back to the door, which he closed. In his hands he had a .22 rifle fitted with a silencer. I could see that the weapon was loaded, it had a full clip on the rifle and the bolt at that stage was open. He didn't say anything. He just stood with his back to the door shaking his head and biting his lip. And I shouted, 'No.' And he cocked the rifle, he pushed the bolt home. I felt that the only way I could get out was to try and either get the gun off him or get through the door which he was blocking. And I grabbed the rifle and tried to wrestle it off him. I started screaming in hopes that somebody would hear me and he yelled at me to shut up. He started hitting me around the head with the rifle. And as a result of that I received later on a stitch to a cut on the back of my head, several other bruises and cuts on the top of my head, which were bleeding quite badly and bruises to the left hand.

"At one stage I noted that the gun was pointing down towards the floor, at a speaker of my stereo, and I tried to pull the trigger. I thought if I could get the bullets out of the chamber that it would give me time to run away, because by that stage we were slightly away from the door. I pulled the trigger and nothing happened. And Philip yelled, 'Of course the safety catch is on.' So I pushed him and the rifle away and took off and ran to a neighbor's place for help. As I ran out the door I heard him yell, 'All...