State v. McCormick

• Decision Date: 21 March 1977
• Citation: 561 P.2d 665,28 Or.App. 821
• Parties: STATE of Oregon, Respondent. v. Daniel Devin McCORMICK, Appellant. . *
• Court: Oregon Court of Appeals

Page 665

561 P.2d 665

28 Or.App. 821

STATE of Oregon, Respondent. v. Daniel Devin McCORMICK, Appellant.

Court of Appeals of Oregon, In Banc. ^*

Argued and Submitted Jan. 21, 1977.

Resubmitted In Banc on Record and Briefs Feb. 16, 1977.

Decided March 21, 1977.

Phillip M. Margolin, Portland, argued the cause for appellant. With him on the brief was Nash & Margolin, Portland.

Catherine Allan, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

RICHARDSON, Judge.

Defendant appeals from his conviction by a jury of criminal mischief in the second degree. ORS 164.354. Defendant contends that the trial judge erred in not giving a requested instruction on flight and in not dismissing the information brought against him.

On the evening of March 3, 1976, defendant and one John Harder were present at a party held in an apartment on the third floor of an apartment building. According to Harder, during the course of the evening each consumed about two gallons of beer. At about 4 a.m. on March 4, 1976, a fire was lit under an automatic sprinkler in the hall just outside the apartment, causing the sprinkler to activate and to release water resulting in more than $1,000 in damages to the apartment building. Harder testified that defendant activated the sprinkler in order to alleviate boredom. Defendant did not testify, but the position of his counsel throughout the trial was that Harder activated the sprinkler. Only Harder testified to witnessing the incident.

Immediately after the sprinkler was activated, Gregory Johnson, the manager of the apartment building, ran up the stairs to the third floor to investigate. Upon reaching the second floor, Johnson noticed Harder running down the back stairs in wet clothing. When Johnson arrived at the third floor, the door to the apartment where the party had been held was open, and Johnson found defendant 'passed out' on a couch in the apartment near the door. Johnson testified that the portion of defendant's clothes facing the sprinkler was wet, but the rest of defendant's clothes were dry. The condition of defendant's clothes and the fact that the door was open are consistent with defendant's contention the he was unconscious on the couch when the sprinkler was activated. Johnson testified that the water from the sprinkler was splashing about the room. Harder testified that he slept that night in the downstairs apartment of a friend and was not aroused by the activities of firemen who spend some time on the third floor looking into the cause of the sprinkler's activation. Harder testified that on March 4, after being told there was a warrant for his arrest for the sprinkler incident, and after learning that the assistant manager of the building was offering a $1,500 reward for the apprehension of the individual responsible for activating the sprinkler, ¹ he contacted a fire department investigator and implicated defendant.

The court denied defendant's request that it give the following instruction to the jury:

'I instruct you that if you find evidence that a witness in this case was a suspect and that he fled, then, you may consider that evidence as bearing upon that witness' consciousness of guilt and you may draw an inference against that witness.'

The issue posed by defendant is whether an instruction on flight should be given on inferences to be drawn from the flight of a witness. Ordinarily such instruction is given with respect to conduct of a defendant. We agree with defendant if the instruction is proper it is equally applicable to conduct of a fleeing witness. The inferable guilt of a witness would be relevant in testing his credibility. The state, in the unusual position of objecting to the instruction, makes a cogent argument that a trial court should not be required to give such instruction because in effect it singles out a particular item of evidence.

In this context we are impelled to examine critically the historical basis for allowing the instruction on flight. The genesis of such instruction is found in the principle of law that evidence of flight is relevant as circumstantial evidence of guilty knowledge. State v. Wilson, 172 Or. 373, 142 P.2d 680 (1943); State v. Redeman, 9 Or.App. 329, 496 P.2d 230 (1972); State v. McIntire, 2 Or.App. 429, 468 P.2d 536, Sup.Ct. Review denied (1970). However, such evidence is also susceptible of other inferences. A requested instruction on flight calls upon the court to point out to the jury a particular inference or perhaps instruct on multiple inferences that could be drawn. See, for example, State v. Wright, 12 Or.App. 73, 504 P.2d 1065, Sup.Ct. Review denied (1973). The arguments to the jury in this case aptly illustrate the problem. The defendant argued Harder fled because of a consciousness of guilt while the state argued his flight was evidence of nervousness and a desire not to be implicated in the actions of the defendant he had just witnessed. An instruction on flight disclosing either or both theories would be an impermissible comment upon the probative value of the evidence. ORS 17.255(1); See also Johnson v. Clark Equip. Co., 274 Or. 403, 547 P.2d 132 (1976); Hanson v. Schrick, 160 Or. 397, 85 P.2d 355 (1939); State v. High, 151 Or. 685, 51 P.2d 1044 (1935). Even if only one inference can logically be drawn from evidence of flight it serves no purpose for the court to point this out to the jury. By argument a party can present the inference he wishes the jury to draw and thereby obtain the full benefit of the evidence.

As Justice Holman's concurring opinion in Brooks v. Bergholm, 256 Or. 1, 9, 470 P.2d 154, 158 (1970), points out:

'Evidence is admitted because it is relevant to the issues in some particular manner. If it is the trial judge's duty, upon request, to point out the relevance which caused each bit of evidence to be admitted, regardless of its obvious purpose, instructions are quickly going to become more voluminous. Each side will request an instruction telling the jury the purpose for which each bit of favorable evidence may be considered. * * *'

ORS 17.255(1), while allowing a court to recite evidence for the purposes of explaining a litigant's theory of the case, does not allow a court to tell the jury what probative value the evidence may have. This invades the province of the jury. See Franks v. Smith, 251 Or. 98, 444 P.2d 954 (1968); Hanson v. Schrick, supra; State v. High, supra. An instruction on flight calls upon the court to point out a particular piece of evidence and disclose to the jury its probative value, i.e., the inference of guilt. Rarely would a party against whom such instruction is given agree with the inference. The court's instruction lends credence to the arguable inference and suggests to the jury it must be made.

We have examined the authorities in Oregon and determined the decisions are based on whether there was sufficient evidence to justify the instruction and do not flow from an inquiry as to whether such instruction ought to be given. State v. Wright, supra; State v. Bonner, 241 Or. 404, 406 P.2d 160 (1965); State v. Brown, 231 Or. 297, 372 P.2d 779 (1962); State v. Duggan, 215 Or. 151, 333 P.2d 907 (1958); State v. Wilson, supra; State v. Ching Lem, 91 Or. 611, 176 P. 590 (1918); State v. Chin Borkey, 91 Or. 606, 176 P. 195 (1918); State v. Lem Woon, 57 Or. 482, 107 P. 974, 112 P. 427, Aff'd 229 U.S. 586, 33 S.Ct. 783, 57 L.Ed. 1340 (1910).

It may be argued the implicit holding of the cases noted above is the instruction should be given when requested and based on sufficient evidence. However, appellate courts are loath to decide on questions not properly raised. As indicated our review of the previous...