State v. Jorgensen

• Decision Date: 27 December 1971
• Citation: 8 Or.App. 1,492 P.2d 312
• Parties: STATE of Oregon, Respondent, v. Edward Ralph JORGENSEN, Appellant.
• Court: Oregon Court of Appeals

Page 312

492 P.2d 312

8 Or.App. 1

STATE of Oregon, Respondent, v. Edward Ralph JORGENSEN, Appellant.

Court of Appeals of Oregon, Department 1.

Argued and Submitted June 21, 1971.

Decided Dec. 27, 1971.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson Atty. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.

THORNTON, Judge.

Defendant Edward Jorgensen, his brother Carl Jorgensen, and Robert Brom were jointly charged in a two-count indictment with the murders in the first degree of Larry Peyton and Beverly Allan in Multnomah County on November 26, 1960.

The state chose to go to trial first on the charges against defendant Edward Jorgensen.

After a hard-fought trial lasting nearly two months, the jury found defendant guilty of second degree murder on Count I (Larry Peyton death), and guilty of first degree murder on Count II (Beverly Allan death).

On appeal defendant contends the trial court erred: (1) in overruling defendant's motions for judgment of acquittal and directed verdict because the state's proof was 'utterly unreasonable and contrary to all human experience'; (2) in denying defendant's motion for a psychiatric examination of two of the state's female witnesses, 'Nikki' Essex and Lorraine Jorgensen, and admitting their testimony into evidence; (3) in failing to exclude on its own motion the testimony of Leo Batchelor; (4) in denying defendant's motion for mistrial following introduction into evidence of a prior conviction of co-indictee Robert Brom; (5) in failing to declare a mistrial based upon the alleged misconduct of the prosecutor, certain state's witnesses, the asserted misconduct and incompetence of the defense counsel and of the trial judge; (6) in giving erroneous instructions with reference to disputable presumptions of an intent to murder from the deliberate use of a deadly weapon, of malicious and deliberate intent in the commission of an unlawful act, and that a person intends the ordinary consequences of his voluntary act; and (7) in denying defendant's motion to supplement the record with matters which he contends would have established the existence of a reasonable doubt for prosecutor's and defense counsel's failure to perform properly their responsibilities as officers of the court in presenting material evidence.

After supper on the evening of November 26, 1960, the two victims, Larry Peyton and Beverly Allan, left the Peyton family home in young Peyton's automobile for a date together. They did not return.

On the evening of the following day police discovered Peyton's body in his automobile, parked on a dead-end road in a remote area of Portland's west hills. He had been stabbed 20 times and badly beaten. Beverly Allan's blood-stained coat, her necklace, front portion of her blood-stained blouse and five buttons therefrom were found in the car. Her glasses were found in the roadway by the car door.

Over a month later the girl's body was discovered off Sunset highway, 30 miles west of Portland. Her sweater, undergarments and the remaining portion of her blouse were found nearby. Two pieces of nylon cord were found on her body. The cord matched another piece of nylon cord found near the Peyton car. Physical evidence and expert testimony indicated that she had been sexually attacked and had died from strangulation either by use of a ligature or manually.

(1) The trial judge denied a motion for judgment of acquittal at the close of the state's case. Defendant elected not to stand on his motion and presented evidence in his defense. On appeal we must consider all the evidence and affirm the trial court if the record as a whole contains sufficient evidence to support a verdict against defendant. State v. Lamphere, 233 Or. 330, 378 P.2d 706 (1963); State v. Gardner, 231 Or. 193, 372 P.2d 783 (1962); State v. Nix, Or.App., 93 Adv.Sh. 1433, 491 P.2d 635 (1971).

We have examined the entire record, including over 5,000 pages of testimony by 126 witnesses, as well as the tape-recorded psychiatric interviews with 'Nikki' Essex and other exhibits which were transmitted to this court. The evidence of defendant's alleged guilt offered by the state was part direct, part circumstantial. The latter evidence was exceptionally lengthy and involved.

The state's proof considered in its entirety was sufficient to take the case to the jury; the court properly denied defendant's motion for a judgment of acquittal. State v. Zauner, 250 Or. 105, 441 P.2d 85 (1968); State v. Freeman, Or.App., 92 Adv.Sh. 183, 481 P.2d 638 (1971). Cf. State v. Crenshaw, Or.App., 92 Adv.Sh. 1668, 486 P.2d 581 (1971).

(2) Defendant assigns as error denial by the presiding judge (who was not the trial judge) of defendant's pretrial motion for psychiatric examination of 'Nikki' Essex and Lorraine Jorgensen (no relation to defendant), and admitting their testimony in evidence.

In denying this motion the presiding judge stated the motion by its very nature was more properly addressed to the trial judge.

The mental capacity of a witness is a question for the trial court to decide in the exercise of sound legal discretion. State v. Pace, 187 Or. 498, 506, 212 P.2d 755 (1949). If defendant had any question of the mental capacity of either witness he should have renewed his motion before the trial judge. State v. Pace, supra at 506--507, 212 P.2d 755. Defendant does not claim, nor can we find in the record, that the motion was renewed before the trial judge. Instead, defendant's counsel apparently elected to attack the weight and credibility of this testimony (a) by cross-examination of these witnesses, (b) by cross-examination of the psychiatrists called by the state and (c) by the expert testimony of Dr. Paul Blachly, a psychiatrist and Dr. Colin Slade, a clinical psychologist, both of whom testified on defendant's behalf. We fail to see how the trial judge can be charged with error when he was never presented the opportunity to rule. Nor do we believe the presiding judge abused his discretion in denying the requested psychiatric examination with leave to renew it before the trial judge. See State v. Clasey, 252 Or. 22, 446 P.2d 116 (1968).

We now turn to the questioned testimony of the state's two key witnesses, 'Nikki' Essex and Lorraine Jorgensen.

'Nikki' Essex, who was 18 years of age at the time of the alleged double murder, testified that she had been with defendant and the other two accused for the greater portion of the night of the two homicides; that while with them, and following a chance meeting with Peyton and Miss Allan at a downtown restaurant, she had been instrumental in persuading Peyton and Miss Allan to accompany them by separate car to a drinking party in the west hills area; that enroute friction arose between Peyton and defendants as the result of a near collision between the vehicles; that this was followed by a wild automobile chase through the west hills area with defendant and his companions in pursuit; that this chase culminated in a bloody fight at the spot where Peyton's lifeless body was later found; that although she was at the scene at the commencement of the fight, she did not see the actual slaying of Peyton; that thereafter defendant and the other two accused abducted Miss Allan and left the scene in defendant's automobile; that shortly thereafter they deposited her (Mrs. Essex) on the street near her home in downtown Portland.

The state offered psychiatric testimony that Mrs. Essex had suffered a loss of memory of the whole affair as the result of the trauma produced by the events of the evening; that her amnesia had been corrected and her memory restored by a series of psychiatric interviews by duly licensed physicians, which included hypnosis and the administration of sodium amytol. At the request of defense counsel tape recordings of the medical interviews with Mrs. Essex were played for the jury following her sworn testimony.

The second witnesses, Lorraine Jorgensen, testified that defendant, some years after the two homicides, while intoxicated, had made several inculpatory statements in her presence concerning his participation in the two homicides. Evidence was offered by the defense showing that Lorraine had suffered from serious mental problems prior to and during trial.

Since both of these witnesses gave their testimony concerning the issues of the case in open court and were subjected to prolonged and rigorous cross-examination by defendant's counsel before the jury, we do not believe that the fact they had been subjected to certain psychiatric and medical examinations and procedures prior to testifying, which were fully exposed in the evidence, would be a basis for disallowing their testimony. Harding v. State, 5 Md.App. 230, 246 A.2d 302 (1968). ¹ Nor would the fact that Mrs. Essex had told different stories at previous times be a basis for disallowing her testimony. Harding v. State, supra, 246 A.2d at 306. See also State v. Yates, 239 Or. 596, 399 P.2d 161 (1965). Defendant's strenuous objections to their testimony both at trial and on appeal go to its weight rather than its admissibility. State v. Pace, supra, 187 Or. at 504, 212 P.2d 755. Credibility of both witnesses was for the jury. ORS 17.250, 44.370; State v. Fleming, 232 Or. 412, 375 P.2d 831 (1962). Whether or not counsel, the court or the defendant believed Mrs. Essex and Mrs. Jorgensen is immaterial. The jury evidently believed this testimony. See State v. Yates, supra, 239 Or. at 598, 399 P.2d 161.

(3) We do not find in the record any objection by the defense to the testimony of Leo Batchelor, who testified as to an alleged statement to him by defendant some years after the Peyton-Allan slayings that he, the defendant, had once killed a man, and that it bothered him to the point where he could not sleep at night. Since there was...