State v. Luther

• Decision Date: 10 January 1984
• Docket Number: No. TC,TC
• Parties: STATE of Oregon, Respondent on Review, v. Orville John LUTHER, Petitioner on Review. C7904-31252; CA 17011; SC 29693.
• Court: Oregon Supreme Court

Page 691

672 P.2d 691

296 Or. 1

STATE of Oregon, Respondent on Review, v. Orville John LUTHER, Petitioner on Review.

No. TC C7904-31252; CA 17011; SC 29693.

Supreme Court of Oregon In Banc.

Argued and Submitted Oct. 5, 1983.

Decided Nov. 15, 1983.

Rehearing Denied Jan. 10, 1984.

Jacob Tanzer, Portland, argued the cause and filed the petition for review for petitioner on review. With him on the petition for review was Wolf, Griffith, Bittner, Abbott & Roberts, Portland. Des Connall, Portland, filed the brief in the Court of Appeals for petitioner on review.

Stephen F. Peifer, Deputy 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's conviction for second degree manslaughter was affirmed by the Court of Appeals. The defendant petitioned this court for review, assigning as his sole point relied on for reversal:

"If a witness in a criminal case has been subjected to hypnosis regarding the subject matter of her testimony, evidence, such as by cross-examination, of what occurred during the hypnosis is admissible."

We granted the defendant's petition for review to decide the issue suggested, ¹ but now find that we must first decide whether the defendant protected his record and preserved the alleged assignment of error in the trial court. We find that the defendant did not. Therefore, we affirm the result reached by both the trial court and the Court of Appeals. ² State v. Luther, 63 Or.App. 86, 663 P.2d 1261 (1983). We do not reach the issue which the defendant requested we decide.

On April 13, 1979, there was an altercation between the defendant and his nephew, Mark Luther. As a result, the nephew received a gunshot wound to his head and the defendant was indicted by the grand jury for assault in the first degree. Several months later after the nephew died, the first indictment was dismissed and the defendant was reindicted for the crime of murder. The trial jury found the defendant guilty of the lesser included crime of manslaughter in the second degree.

The defendant and his nephew had separate rooms on the second floor of Gena Luther's house in the City of Portland. Gena Luther, age 78, was the mother of defendant, Orville Luther, age 45, and the grandmother of Mark Luther, age 21. Although the rooms were across the hall from each other, the doors were not directly opposite. A map drawn to scale and received in evidence shows that the hall was seven feet three inches wide and that from the center of the nephew's doorway to the center of the defendant's doorway was eight feet ten inches.

On the night in question, Gena Luther went upstairs to Mark's room, where he was asleep, to get a set of the defendant's car keys. ³ The defendant followed Gena into Mark's room where a wrestling match occurred between the two men. The defendant testified that after the first physical encounter, he heard Mark threaten, in explicit vulgar language, to kill him and that he heard Gena scream, "You give me that knife" or "Put the knife down." The defendant went to his room and got a hand gun. The nephew was shot by the hand gun in or near the doorway to his own room. The defendant on trial claimed self-defense or accident. ⁴

On the night of the incident, Gena Luther told police that she had seen the shooting and that defendant and his nephew were standing in their respective doorways when the defendant lowered his arm and fired the shot. Later she testified before the grand jury on the assault charge, but this testimony was not reported and the record does not disclose what she said at that time. After Mark died, she testified before the second grand jury and told them that she was on her way back down the stairs and did not see the shooting. Shortly thereafter she called the district attorney's office and told a deputy that she did not tell the truth when she testified before the second grand jury. ⁵

Between the time of the indictment by the second grand jury and the trial of the case, the state had Gena Luther hypnotized.

At the trial Gena's descriptions as to the location of the defendant and his deceased nephew at the time of the shooting varied somewhat from question to question, but she always kept each close to his own doorway. At one point she said: "They were both just outside their doors." At another time she said they were "half-ways" in their doorways. Gena also testified that the gun was three feet away from Mark when the shot was fired. She explained her answer:

"Well, I took the measurements even as late as yesterday of the hall, and, to my measurements, it was eight feet across there and from where Mark was standing and where Orville [defendant] was standing and--Orville reaching out and where Mark slumped."

There is evidence in the record that when Mark arrived at the hospital after the shooting, he had a powder burn the size of a fifty-cent piece on his head. The state's witness from the crime lab testified that in order to produce a powder burn, the weapon had to be fired within three feet of the deceased. The same witness testified that in his opinion Mark was in his doorway or a step or two inside his own room when the shot was fired. This opinion was based upon the location of bullet and bone fragments, the pattern of blood spots, and a point in the ceiling where a part of the spent bullet may have hit.

Because of the foregoing testimony, the defendant wanted to question Gena Luther concerning the hypnosis. Defendant's lawyer unsuccessfully attempted to ask her about what happened while she was under hypnosis:

"[DEFENDANT'S COUNSEL]: * * * After that appearance before the Grand Jury, did [Deputy District Attorney] have you put under hypnosis?

"[DEPUTY DISTRICT ATTORNEY]: I object to this * * *."

During a conference in chambers and on the record, defendant's counsel told the court that he was trying to prove that the state's investigator, Robert Bidder, conditioned Gena Luther during the hypnosis by asking suggestive questions about the locations of the defendant and the deceased nephew. Counsel for the defendant argued that the hypnosis caused the witness to change her story.

The trial court ruled:

"Well, my ruling would be that, of course, you would be entitled to inquire as to whether she had been subjected to hypnosis after her appearance at the Grand Jury and to inquire as to whether that changed her recollection of what occurred. I think that's about as far as we can go. I--I would be unwilling to introduce or to permit any testimony to go in about anything she said or did under hypnosis. * * * All your're entitled to show is the difference between the story she told before and the story she tells later, but I am not going to permit any evidence to be presented before the jury regarding what occurred during--while the time she was under hypnosis."

Although Gena Luther was later permitted to answer a similar question about whether she was placed under hypnosis, the above ruling by the trial court was assigned as error on the defendant's appeal to the Court of Appeals:

"The trial court erred in not allowing defense counsel to introduce evidence regarding what Gena Luther said or did while under hypnosis and what type of questions were asked of her."

This assignment of error has now been rephrased and has become the defendant's point relied upon for reversal in this court.

The state's position is that the defendant did not preserve the alleged error by making the necessary offer of proof. It argues that without an offer of proof, the appellate courts have "no way of determining whether the exclusion of the evidence was prejudicial to defendant." State v. Jenkins, 246 Or. 280, 281, 424 P.2d 894 (1967).

The Court of Appeals found against the defendant "We do not know what additional questions would have been asked. Assuming that a witness who has been hypnotized is competent to testify as to what occurred while he was under hypnosis, the threshold question is whether the witness states that he knew what happened. If he says he does not remember, that is the end of the matter. Because Gena was not asked, either before the jury or as an offer of proof, whether she knew what happened, we cannot tell whether the court's ruling, assuming it to have been erroneous, was prejudicial." State v. Luther, 63 Or.App. 86, 92, 663 P.2d 1261 (1983).

We reach the same result as the Court of Appeals, but for a different reason.

The defendant does not question that as a general proposition of law, it is necessary to make an offer of proof by putting in the record the testimony ruled objectionable by the trial court so that the appellate court will have a basis upon which to rule. The defendant contends that the trial court made the alleged erroneous ruling during his cross-examination of Gena Luther, invoking the exception that an offer of proof is not necessary on cross-examination. The exception is stated in State v. Davidson, 252 Or. 617, 622-623, 451 P.2d 481 (1969):

"The rule requiring an offer of proof in order to preserve an error in the exclusion of evidence does not apply to cross-examination, because the cross-examiner has no way of knowing what the answer to the question would have been. Stillwell v. S.I.A.C., 243 Or 158, 162, 411 P2d 1015 (1966); Beemer v. Lenske, 241 Or 47, 49, 402 P2d 90 (1965)."

This preliminary phase of the defendant's petition is based upon the premise that the question to Gena Luther was on the defendant's cross-examination. We disagree with the defendant. We find that the following demonstrates that at the time the defendant wanted to examine Gena Luther as to the hypnosis, she was the defendant's witness on direct examination.

The jury was selected for the trial of the defendant's case on Wednesday, December 5, 1979. The state's first witness was called at 9:40 a.m. on Thursday, December 6th. The...