State v. Joseph
| Decision Date | 12 March 1969 |
| Citation | 451 P.2d 468,252 Or. 610 |
| Parties | STATE of Oregon, Respondent, v. Michael JOSEPH, Appellant. |
| Court | Oregon Supreme Court |
David R. Vandenberg, Jr., Klamath Falls, argued the cause for appellant. With him on the briefs was Donald R. Crane, Klamath Falls.
Delos B. Parks, Special Deputy Dist. Atty., Klamath Falls, argued the cause for respondent. On the brief were Sam A. McKeen, Dist. Atty., and James A. Sanderson, Deputy Dist. Atty., Klamath Falls.
Before PERRY, C.J., and SLOAN, GOODWIN, HOLMAN and HAMMOND, JJ.
Defendant appealed from a judgment of conviction of first degree murder.
Defendant claims that the court erroneously admitted evidence that defendant had committed other crimes and had been incarcerated therefor. A state's witness testified that he had had two conversations with defendant prior to the killing of the victim, in which defendant said that he was going to be sent right back from where he had come because he couldn't stand the victim and that once you kill it isn't hard to kill again.
If this evidence was relevant to an issue in the instant case, it does not become inadmissible merely because it discloses that the defendant had committed crimes other than the one for which he was being tried. State of Oregon v. Long, 195 Or. 81, 112, 244 P.2d 1033 (1952). The evidence in question was highly relevant to prove premeditation and intent to kill the victim. Therefore, there was no error in the admission of the evidence.
Defendant next contends the court erred in failing to grant a mistrial because the state's attorney in his opening statement told the jury that the state's evidence would show that one of the state's witnesses and the defendant had been acquainted while in the state penitentiary. When the state's witness was questioned during the trial the court sustained an objection to an inquiry concerning the place of defendant's and the witness's previous acquaintanceship. The witness testified he met the defendant in a tavern by accident the day before the commission of the crime after a lapse in their acquaintanceship of about five years. The witness was almost continuously in the defendant's company from the time of the accidental meeting until after the killing of the victim the next day. He testified concerning defendant's actions and statements during that time. It is a marginal question whether the trial court was correct in sustaining the objection to the testimony concerning the circumstances of the previous relationship between the witness and the defendant. Presuming that the court ruled correctly and, therefore, the state's attorney should not have made the statement to the jury, it does not follow that it was reversible error for the court to deny the mistrial unless the statement was prejudicial. In determining prejudice the court looks to the entire record. State of Oregon v. Story, 208 Or. 441, 301 P.2d 1043 (1956).
Consideration of the first assignment of error has already demonstrated that statements of a witness which were properly received in evidence informed the jury that defendant had previously been in difficulty with the law. In addition, three different jurors were asked by defendant's counsel on Voir dire if it would prejudice the defendant in their minds if it were shown that he had a criminal record. There was evidence of still another statement by defendant to the effect that everyone in the house where he was staying had a criminal record and, therefore, he did not want to have anything to do with a firearm. It is apparent that the statement of counsel could not have been prejudicial because the jury, subsequently, legitimately came into possession of similar information.
Defendant finally contends that the court erroneously admitted evidence of statements he made to police officers while he was in custody. When he was originally warned of his constitutional right to silence and a lawyer he declined to answer any questions until he talked to a lawyer and, therefore, he argues that no further statements by him were admissible until he had an opportunity to consult one. He asserts as error the admission in evidence of two different statements which he made after he had requested the services of a lawyer. There was evidence that while he was being taken from the jail...
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State v. Stilling
...statement made to the detective by the defendant was volunteered in the sense of not responding to a question. State v. Joseph, 252 Or. 610, 451 P.2d 468 (1969). It was volunteered in the sense that in indicating he didn't want to talk about the burglary, he did talk about ...
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People v. McKee
...165 N.W.2d 314; People v. Ruppuhn (1970), 25 Mich.App. 62, 180 N.W.2d 900; State v. Austin (1970), Or., 465 P.2d 256; State v. Joseph (1969), 252 Or. 610, 451 P.2d 468; State v. Billings (1968), 84 Nev. 55, 436 P.2d 212; United States v. Bourassa (C.A. 10, 1969), 411 F.2d 69; United States ......
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State v. Capitan
...to the Multnomah County jail for the murder trial, and other evidence indicating he had recently been convicted. See State v. Joseph, 252 Or. 610, 613, 451 P.2d 468 (1969). (3). To further establish defendant's fear of conviction of larceny the state introduced the judgment order for enhanc......
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State v. Monteith
...statements of a criminal defendant, not made in response to custodial interrogation, are admissible in evidence. State v. Joseph,252 Or. 610, 615, 451 P.2d 468 (1969); State v. Brotherton, 2 Or.App. 157, 465 P.2d 749 (1970); State v. Austin, 1 Or.App. 556, 465 P.2d 256 (1970). The officer's......