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 |
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.
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.
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 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 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:
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