State v. Lerch

• Decision Date: 08 February 1984
• Docket Number: No. C,C
• Citation: 677 P.2d 678,296 Or. 377
• Parties: STATE of Oregon, Respondent on Review, v. Larry Lee LERCH, Petitioner on Review. 81-09-34281; CA A24731; SC 29862.
• Court: Oregon Supreme Court

Page 678

677 P.2d 678

296 Or. 377

STATE of Oregon, Respondent on Review, v. Larry Lee LERCH, Petitioner on Review.

No. C 81-09-34281; CA A24731; SC 29862.

Supreme Court of Oregon In Banc.

Argued and Submitted Nov. 1, 1983.

Decided Feb. 8, 1984.

Stephen A. Houze, Portland, argued the cause and filed the brief for petitioner on review. With him on the petition for review was Birkland, Koch & Houze, Portland.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

CAMPBELL, Justice.

The defendant was indicted and convicted of the murder of Michael Hanset. He appealed his conviction to the Court of Appeals setting out numerous assignments of error. The Court of Appeals affirmed. State v. Lerch, 63 Or.App. 707, 666 P.2d 840 (1983).

The only evidence of the corpus delicti, independent of the defendant's confession, was circumstantial. Our primary reason for allowing review was to consider the degree of proof required by ORS 136.425(1) to corroborate the defendant's confession, when the evidence is solely circumstantial. ¹ The defendant raised this question in the trial court by motions for judgment of acquittal and directed verdict claiming that the circumstantial evidence must be clear and convincing. The defendant relies on State v. Watts, 208 Or. 407, 301 P.2d 1035 (1956). The Court of Appeals found that the circumstantial evidence used in this case to prove the corpus delicti was not clear and convincing, but that this court in State v. Krummacher, 269 Or. 125, 523 P.2d 1009 (1974), had in effect abolished the distinction between circumstantial and direct evidence as to quality of proof. Because the defendant also assigned as separate errors the admission of certain portions of the circumstantial evidence, it will be necessary for us to consider those rulings by the trial court. We affirm the Court of Appeals.

On Monday, July 27, 1981, seven year old Michael Hanset disappeared from his home. ² He lived with his family on Southeast Belmont and near Colonel Summers Park in Portland. The defendant lived in an apartment on Southeast Morrison near the same park. In the area in question Belmont and Morrison run parallel to each other, a block apart, and are separated by the park. The boy was a frequent visitor to the park where he was in the habit of collecting used beverage cans and bottles from other visitors.

Early in the afternoon of July 27th the defendant, with Michael in tow, obtained some change from Roy Shearer so that the boy could buy some lemonade at a stand in the park. Shearer lived near the park and on occasion hired the defendant to work in his landscaping business. Jose Guzman and the defendant spent a part of the same afternoon drinking beer in the park. Guzman saw the defendant give Michael ten cents to buy lemonade. He also saw the defendant wrestle with the boy. When Guzman and the defendant ran out of beer, they agreed that Guzman would go to his bank to get some money and the defendant would go to his apartment to get some ice. After Guzman got $10 from his bank, he decided that he needed another fifty cents to buy a short keg and went to the defendant's apartment house to borrow some more money. When Guzman arrived at the defendant's apartment house, an unidentified person opened the entrance door and told Guzman that the defendant was talking to someone. Guzman entered the apartment hallway and saw the defendant standing by his door. While the two men talked, the defendant kept the door to his apartment "more closed than open." The defendant gave Guzman some money and promised to meet him at the park with some ice. The defendant did not return to the park. At least two other people saw both Michael and the defendant in the park earlier the same afternoon. Michael was last seen alive in the park wearing only a pair of pants. The police were called about 9:00 p.m. and an extensive search was not successful.

In the morning hours on Wednesday, July 29th, one of the defendant's adult sisters visited him at his apartment. He was nervous and shaky. He wanted to talk to her about the "missing boy." He told her Michael Hanset had been in his apartment on Monday. He also told her he had taken a walk on Monday night and had seen a large white canvas bag in a drop box at Ninth and Belmont. He admitted to her that he recognized the bag as his own and it had a body in it.

During the afternoon of July 29th, Joseph George Jaha smelled an odor from the garbage drop box behind his fish market at 826 Southeast Belmont. He identified the odor as coming from a dead human body. He did not look inside the box or call the police. The garbage drop box was emptied by the disposal company on Thursday, July 30th. The contents of the box were compacted and hauled to a landfill in Oregon City.

On the morning of Friday, July 31st, the defendant told another one of his sisters that on the previous Monday evening he had seen a duffle bag which he recognized as being his in a dump box. He also told her that the bag was tied with a piece of leather from one of his work boots and that he had opened the bag and a small foot fell out. The sister contacted another of the defendant's relatives who called the police. They arrested the defendant at his apartment on a different charge at approximately 5:00 p.m. on the same evening.

At approximately 7:00 p.m. on July 31st, the defendant, while in custody, was interviewed by two detectives. The defendant was advised of his Miranda rights and he waived them. He signed a form consenting to the search of his Morrison Street apartment. He also consented to take a polygraph test the following morning. During the four hour interview, he told the detectives that on July 27th he had seen Michael Hanset collecting empty bottles and that he had given the boy some change in the park. He had not seen Michael again. He told the detectives he had seen a foot sticking out of a laundry bag at the garbage box.

At 1:00 a.m. on August 1st, the two detectives, together with two officers from the state crime lab, searched the defendant's apartment. As a part of the search they examined several stains on the kitchen floor and took vacuum sweepings from the living room rug. Later at the trial, one of the detectives testified that in his opinion one of the stains was fecal matter. The vacuum sweepings included hair which was later used by one of the crime lab people to make hair comparisons.

At approximately 9:00 a.m. on August 1st, another detective gave the defendant a polygraph examination. After the detective told the defendant that he was not telling the truth, the defendant confessed. He said that he had taken the boy to his apartment to give him some bottles and the next thing he remembered he had his hand around the boy's throat and the boy was dead. The defendant said that he was under the influence of drugs. He then stated that he put the body in a laundry bag, tied it shut with a rawhide string, and carried it to the garbage box next to the fish market.

Police and landfill employees made an extensive and detailed search of the Oregon City landfill between August 4th and August 10th. They used search dogs. They found nothing. Although Michael Hanset knew the telephone numbers of his home and his grandmother's home, neither he nor his body has ever been found.

In his brief in the Court of Appeals, the defendant alleged among other assignments that the trial court had erred in allowing: (1) one of the detectives to testify that in his opinion one of the stains on the defendant's kitchen floor was fecal matter; (2) "opinion testimony regarding the smell of decomposing human flesh;" (3) "evidence relating to hairs and hair comparisons."

The Court of Appeals held that the trial court was correct in admitting this evidence. We must, as a preliminary step, reexamine these holdings in order to determine what makes up the circumstantial evidence that the state contends is sufficient to corroborate the confession. In other words, if the trial court should not have admitted the opinion testimony as to the fecal stain or the smell of decomposing human flesh or the hair comparisons, then the amount of circumstantial evidence available to corroborate the confession is correspondingly reduced.

Kerry Taylor was one of the Portland detectives who searched the defendant's apartment in the early morning hours of August 1st. At the trial he testified that on the defendant's kitchen floor he "observed a stain that I believed to be fecal matter." In the defendant's confession he said that he strangled the victim in the kitchen. A pathologist for the State testified that it was common for strangulation victims to defecate. A photograph of the stain taken on August 1st was received in evidence.

Detective Taylor's statement was offered and received as an opinion by a lay witness under OEC 701:

"If the witness is not testifying as an expert, testimony of the witness in the form of opinions or inferences is limited to those opinions or inferences which are:

"(1) Rationally based on the perception of the witness; and

"(2) Helpful to a clear understanding of testimony of the witness or the determination of a fact in issue."

In the context of this case, Taylor's opinion that he believed the stain to be fecal matter was admissible if it was rationally based upon his perception and was helpful to the determination of a fact in issue.

In the Court of Appeals, the defendant contended that Taylor's opinion was not "rationally based" because his perception of the reddish brown stain on the kitchen linoleum would permit several different inferences to be drawn as to the source of the stain, e.g., "shoe polish, food stains, or mud." The defendant also claims that Taylor's testimony was not necessary because he could have described the stain without giving his...