State v. Maple
| Decision Date | 22 December 1975 |
| Citation | 75 Adv.Sh. 4313,23 Or.App. 626,544 P.2d 183 |
| Parties | STATE of Oregon, Respondent, v. Ray Charles MAPLE, Appellant. |
| Court | Oregon Court of Appeals |
Diane Spies, Portland, argued the cause for appellant. With her on the briefs were Connall & Spies, P.C., Portland.
W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.
Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.
Defendant was convicted of burglary in the first degree, ORS 164.225, by burglarizing premises we refer to as the Barton residence. His principal contention on appeal is that the trial court improperly admitted evidence of a '* * * prior felony murder for which the defendant had been charged and acquitted.' Counsel for the defendant has not complied with Rule 6.18 1 of this court as to this assignment of error, or, for that matter, as to the other assignments of error. Nevertheless, because of the nature of the issue, we have considered whether the jury should have been permitted to know that the murder had taken place.
On July 25, 1974, a burglary occurred at the Barton residence some time between 9:25 a.m. and 11:45 a.m.
In addition to other items, a significant amount of silverware was taken. Some time during the same period the Avio residence which was approximately one-half mile from the Barton house was also burglarized. In the course of this burglary Mrs. Avio was murdered. Defendant and one Greenwood were subsequently tried for the murder of Mrs. Avio. The defendant admitted participation in the Avio burglary, but was acquitted by the jury. 2 Greenwood was convicted.
Shortly after the burglaries the police were informed by a witness who was in possession of a credit card stolen from Mrs. Avio's residence that the defendant had shot Mrs. Avio. On July 27, defendant was arrested at his residence at which time he, his house and his automobile were searched. A substantial amount of the property stolen from the Barton residence was found in defendant's house and the Barton silverware was found in the trunk of his car.
Defendant, upon being asked by the police where he had gotten the silverware, said that he had bought it 'from some dude in the park.' However, after further questioning at the police station defendant said that he had not bought the silverware, but, rather, that it had come from the Avio burglary in which he had participated. At the same time he was confessing the Avio burglary he was denying any participation or intent to participate in the Avio murder which he contended was solely Greenwood's responsibility.
In the course of the trial of the case at bar the defendant took the stand, denied admitting that he had first lied about how he had gotten the Barton silverware and again contended that he had purchased it from an individual he had met in a park.
At a pretrial conference, the matter of defendant's conflicting statements about how he obtained the Barton silverware was discussed. The prosecutor stated that if the defense would not make the voluntariness of those statements an issue before the jury the state would direct its witnesses, when testifying as to the defendant's conflicting statements concerning the stolen property, not to mention that a murder had taken place in which defendant was implicated. Defendant refused to so stipulate. The state's position was that if it was put upon its proof as to the voluntariness of defendant's statements the state was entitled to offer the full circumstances surrounding the arrest and questioning of the defendant in order to demonstrate that the statements obtained from defendant were voluntary. As did the trial judge, we agree with the state's position.
When the trial commenced defendant was on notice that the voluntariness of his statements was the stumbling block which was preventing him from obtaining a limitation on the testimony which would exclude information about the murder. Without the stipulation, artificially withholding references to the murder would have impaired the cogency of the state's testimony. From opening statements on references were made by both the defense and the state to Mrs. Avio's death. Defendant did finally agree to stipulate that the voluntariness of his statements could be taken from the jury:
The stipulation was not accepted, but the trial judge did give a cautionary instruction at the defendant's request and without objection as to its form. The defendant, citing State v. Zimmerlee, 261 Or. 49, 492 P.2d 795 (1972), seeks to profit by this offer to stipulate. In Zimmerlee the offer to stipulate came early and fully covered any legitimate purpose the state might have had in offering evidence of a second crime. Here, however, the offer to stipulate came too late. The record was already...
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State v. Barnett, 78
...him to choose * * *." McGautha v. California, 402 U.S. 183, 213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), Quoted in State v. Maple, 23 Or.App. 626, 544 P.2d 183 (1975), Rev. den. Defendant does not appear to argue that his waiver was not made knowingly and intelligently as required in, E. g., ......
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State v. Miller
...that created by defendant's own tactical decision. Defendant is not entitled to a reversal on this point. Cf., State v. Maple, 23 Or.App. 626, 630-31, 544 P.2d 183 (1975), Rev. den. Defendant's fourth assignment of error concerns the impeachment of a defense witness by two convictions for d......
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