State v. Johns

• Citation: 709 P.2d 1121,76 Or.App. 448
• Parties: STATE of Oregon, Respondent, v. Philip Kenneth JOHNS, Appellant. 83-1074; CA A31705.
• Decision Date: 24 January 1986
• Court: Court of Appeals of Oregon

Page 1121

709 P.2d 1121 76 Or.App. 448 STATE of Oregon, Respondent,
v.
Philip Kenneth JOHNS, Appellant. 83-1074; CA A31705. Court of Appeals of Oregon. Argued and Submitted May 29, 1985.
Decided Nov. 20, 1985.
Reconsideration Denied Jan. 24, 1986.

Stephen J. Williams, Deputy Public Defender, Salem, [76 Or.App. 449] argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

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

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

[76 Or.App. 450] WARREN, Judge.

Defendant was convicted of murdering his wife, who was shot in the head with a revolver. His appeal assigns error to the

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admission of testimony concerning two prior incidents, one a crime and the other a noncriminal act.

Defendant telephoned the police at 9:06 a.m. on November 20, 1983, to report that his wife had accidentally been shot in the bedroom of their home. The police arrived at the scene shortly thereafter and discovered the victim on the bed, lying on her back with her head on a pillow. A .38 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 the cause of death to be a gunshot wound to the back of the head. The bullet's trajectory was almost straight from the back to the front of the head, and it lodged above her left eye. The state's evidence was that the gun was fired from a distance of about six inches to two and one-half feet from the muzzle to 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. The police did not test the substance on defendant's hand, because he washed his hands in the restroom at the police station, despite an officer's direction to him not to wash his hands. No trace of gunpowder residue was found on either defendant's or the victim's hands in subsequent testing.

Defendant described the incident as an accidental shooting. Defendant did not testify, but his version was presented to the jury through his tape recorded statement to the police, his videotaped re-enactments of his story and an officer's testimony relating statements defendant made soon after the police arrived at the scene. Defendant returned home [76 Or.App. 451] from his graveyard shift as a security guard shortly after 8:00 a.m. He did some things in the apartment before he entered the dark bedroom. As he walked toward the bed, there was a bright flash and a loud bang. He realized it was a gunshot and said, "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 which had passed through a closet door and appeared to have been fired from the bed.

In sum, defendant's explanation was that his wife shot at him as he entered their bedroom and that, while he was attempting to wrest the weapon from her hand, the gun discharged the fatal shot. The evidence would support an inference either that the victim shot at defendant, thinking he was an intruder, or that she intended to kill him. Defendant's story is corroborated by the bullet fired into the closet, and his description of the fatal shooting is physically possible. Analysis of the weapon failed to identify fingerprints of either defendant or the victim.

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

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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 [76 Or.App. 452] 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.

Defendant sought to establish that the victim knew how to use guns and was not afraid of them. He stated in a videotape that his wife feared intruders and kept a gun next to the bed and that she sometimes placed it under his pillow when he worked nights. Defendant's expert testified that evidence of gunpowder residue is very fragile and that his test firing of the weapon produced only one to three "flakes," which were easily removed by blowing on or shaking the hand. He also attempted to cast doubt on the state's assertion that the bullet was fired at least six inches from the head.

Defendant assigns error to the trial court's denying his motions to limit the introduction of two prior acts. We shall deal with each separately. The first was defendant's [76 Or.App. 453] 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 was allowed to testify to the details of that assault, as well as to describe their marital situation and problems as background. In addition, a police officer from New Zealand, who was also an acquaintance of defendant's, testified about that incident. Both of the witnesses were flown from New Zealand by the state to testify.

The New Zealand incident occurred on December 25, 1977. Defendant and Barbara had been legally separated for about five months at that time. She testified that their financial situation was never good and that she felt that defendant resented the fact that she was the primary provider. Both of them 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 threats to her over the telephone 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 incident which occurred on December 25:

"* * * About 8:45 on Christmas morning, Philip came to my flat. He walked in and stood with his back to the door, which he closed. In his hands he had

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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 noticed that the gun was pointing down towards the floor, at a...