State v. Johnson

• Decision Date: 20 April 1966
• Citation: 413 P.2d 383,243 Or. 532
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Charles E. JOHNSON, Defendant, and Louis Woods, Defendant-Appellant.
• Court: Oregon Supreme Court

Page 383

413 P.2d 383

243 Or. 532

STATE of Oregon, Plaintiff-Respondent, v. Charles E. JOHNSON, Defendant, and Louis Woods, Defendant-Appellant.

Supreme Court of Oregon, Department 2.

Argued and Submitted Feb. 4, 1966.

Decided April 20, 1966.

Julian Herndon, Jr., Portland, argued the cause and filed a brief for appellant.

George M. Joseph, Deputy Dist. Atty., Portland, argued the cause for respondent. On the brief were George Van Hoomissen, Dist. Atty., and Lewis B. Hampton, Deputy Dist. Atty., Portland.

Before McALLISTER, C.J., and PERRY, SLOAN, HOLMAN and LUSK, JJ.

PERRY, Justice.

The defendant Louis Woods was convicted of the crime of obtaining money by false pretenses and appeals.

In February 1964, the defendant Woods accompanied by Charles E. Johnson went to the home of a Miss Tooley in Portland. They told Miss Tooley they were 'termite exterminators.' She told them she didn't need anything like that, but they said they wanted to look at the house anyway. Johnson looked in the attic for termites and when he came down he brought with him a piece of wood, a two-by-four about nine inches long, with termites in it and displayed it to her. Miss Tooley then told them to go ahead and treat the attic and paid the parties by check. They also represented that there were termites in the underpinnings of the house and she paid them for treating this portion of the house. Evidence introduced disclosed that the attic had not been infested with termites.

Miss Tooley also testified that subsequent to the payments to Johnson and Woods two men, a Mr. Davidson and a Mr. Williams, came to her home and represented that they were detectives. These men requested of and received from Miss Tooley the cancelled checks which represented payment to the defendants Johnson and Woods for the pretended termite extermination. They also obtained additional money from her which they represented was necessary as a bond to bring back the defendants Johnson and Woods. Miss Tooley later learned that one of these men was a brother of defendant Louis Woods and that his true name was Curtis Woods, and that the other man's true name was John Bunch.

During the trial the state called John Bunch as a witness, who purportedly had been with Curtis Woods when they represented themselves as detectives and obtained the cancelled checks from Miss Tooley. John Bunch was then under indictment and awaiting trial for his complicity in the fraud practiced upon Miss Tooley. Prior to the state calling this witness to the witness stand, counsel for the defendant Woods advised the district attorney and the trial court as follows:

'MR. HERNDON: The other thing is this: I understand a. Mr. Bunch has been subpoenaed by the State as a witness in this case. I have conferred with his attorney, Mr. Donnelly. I have conferred with Mr. Bunch. He tells me he is going to take the Fifth Amendment. I contend on behalf of the defendant that with the District Attorney's office having been put on notice that he is going to take the Fifth Amendment, for them to call him and ask him questions and have him take the Fifth Amendment will prejudice the cause of our client. There are some Federal cases that say this is improper conduct of the District Attorney's office. I want to bring this to the Court's attention so there cannot be any question of our position in this matter, their calling this witness whom they know is planning to take the Fifth Amendment.'

After being so advised, the state nevertheless called the witness to the stand and the following occurred:

'Q Your name is John Henry Bunch? Do you know this defendant, Mr. Woods?

'A I'm represented by counsel, and he's in the building, and he's on his way here in this matter, and so I refuse to answer on the ground that it might tend to incriminate me.

'Q To clarify the matter, you say counsel is coming now?

'A Yes.

'MR. HAMPTON: In that case, Your Honor, I wouldn't want to be responsible for proceeding if he is waiting for counsel.'

After further questioning of the witness by the trial court, a recess was taken until Mr. Maxwell Donnelly, the attorney for the witness, appeared in court, when the following occurred:

'Q (By Mr. Hampton) Do you know Curtis Woods?

'A I refuse to answer on the grounds it might tend to incriminate me.

'THE COURT: Keep your voice up so the jury can hear you.

'THE WITNESS: I refuse to answer on the grounds it might tend to incriminate me.

'Q (By Mr. Hampton) Are you or have you ever been a detective?

'A I refuse to answer on the ground it might tend to incriminate me.'

The defendant thereupon moved for a mistrial which was denied and the denial of this motion is assigned as reversible error.

After the jury had retired to the jury room for deliberation, and before it had returned a verdict, Mr. Donnelly, Bunch's attorney, was called to the trial court's chambers and when asked by the trial court made the following statement:

'I don't know what contracts Mr. Bunch had directly with the District Attorney or his representatives, but I had several. I think about the beginning of last week I had a phone conversation with Mr. Hampton here, and he asked me if I would phone Mr. Bunch and ask him if he would testify in these trials, and I did that and was to have called Mr. Hampton back the next day. Mr. Bunch said he would call me later and tell me whether he would or wouldn't, and so I didn't call Mr. Hampton back the next day, but I called him two or three days later and advised him that Mr. Bunch had no objection to testifying but that he felt that he didn't know anything.

'So we had some more conversations and Mr. Hampton indicated to me that he had one portion of testimony that would be valuable to the case that had nothing to do with the crime Mr. Bunch was charged with, and I said, 'If you need him, I suppose you can subpoena him and I will advise him then.'

'Then Mr. Bunch did call me and stated that he had been subpoenaed and he was down some place in California and didn't have any money to get up here, and I talked to Mr. Hampton again and told him that Bunch declared that he didn't know anything about this and didn't want to come up. Mr. Hampton advised me he insisted he be here.

'Then I believe yesterday morning, Mr. Bunch called me from here and said that this was a case involving Mrs. Tooley, that he was accused of having stolen money from, and that the matters that they were going to ask him about--he called me, I think, from the District Attorney's office, or so he said--involved this incident and people connected with it. I said, 'The only thing that you could do would be to take the Fifth Amendment.'

'In the meantime, Mr. Herndon had called me and asked me if my man was going to testify, and I said that I had just advised him he should take the Fifth Amendment. Mr. Herndon then asked me if I would call Mr. Hampton and so advise him.

'I did call him, I think before 9:30, and told him that Mr. Bunch was going to take the Fifth Amendment on anything that had to do with Mrs. Tooley, and he said, 'Well, all right.' I said, 'What are you going to do? Can you release him?' He said, 'No.' I said, 'Are you going to call him anyway?' And he said, ...