State v. McFarland

• Decision Date: 18 July 1977
• Citation: 566 P.2d 539,30 Or.App. 93
• Parties: STATE of Oregon, Respondent, v. Edward Debbs McFARLAND, Appellant.
• Court: Oregon Court of Appeals

Page 539

566 P.2d 539

30 Or.App. 93

STATE of Oregon, Respondent, v. Edward Debbs McFARLAND, Appellant.

Court of Appeals of Oregon.

Argued and Submitted May 23, 1977.

Decided July 18, 1977.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

John W. Burgess, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C. J., and THORNTON and LEE, JJ.

SCHWAB, Chief Judge.

Defendant appeals from his conviction by a jury of first degree assault, ORS 163.185, and assigns as error the trial court's denial of his motion for a mistrial made after the prosecutor asked defendant two questions about prior acts of misconduct by defendant.

In the evening of August 3, 1976, police officers David Burley and Michael Gibson responded to a call reporting that a domestic dispute was in progress at defendant's apartment. Upon arriving at the apartment complex the officers were greeted by defendant's wife who told them repeatedly only that "he's got my baby" and directed them to defendant's apartment. The officers met defendant in the doorway of his apartment and asked him to step outside to talk. Defendant refused and shut the door. Burley believed that if the officers left, defendant might harm the child. Burley forced the door open and found defendant holding the child. Burley requested that defendant release the child and come outside to discuss the matter, but defendant again refused and retreated into the kitchen. As the officers followed defendant, Burley observed defendant looking at a steak knife in a dish drainer. Gibson then reached for the child while Burley tried to restrain defendant. As Gibson grasped the child, he was stabbed twice and received several lacerations from the knife. After defendant was arrested, he stated several times that the officers had no right to be in his apartment and that "if I would have had a gun, I would have shot both them bastards dead."

At trial defendant testified that he did not remember whether he had stabbed Gibson and repeated his belief that the officers had no right to be in his apartment. The record reveals that defendant relied primarily on the defense that the assault was made in the defense of his child and himself. Defendant admitted on direct examination that he had been convicted of assault, attempted possession of stolen property and several charges of driving under the influence of intoxicants. On cross-examination, the prosecutor asked the following question:

"Isn't it true that you had some difficulties in school because you were taken out of the schools and you were placed in MacLaren?"

Defendant's counsel objected before the question was answered and promptly moved for a mistrial. The court sustained the objection but denied defendant's motion on the grounds that "the defendant has taken the stand and he's admitted the commission of several crimes. I don't see how it can do him that much damage." The prosecutor resumed his cross-examination, and later the following exchange ensued:

"Q: (By the prosecutor): Now, do you recall stabbing Officer Gibson?

"A: No.

"Q: So, it's your testimony that you do not recall ever stabbing anybody, is that correct?

"A: I don't know. We were fighting and hassling. I don't know if I stabbed him or not.

"Q: Okay. My question is: Do you recall ever stabbing anybody?

"A: No.

"Q: On any occasion?

"A: No, I've never stabbed anybody.

"Q: You've never stabbed anybody, is that what your statement was?

"A: Yes.

"Q: Isn't it true that four years ago that you were picked up by the police for stabbing your brother in the back?

"Mr. Forcum (defense counsel): I'm going to object, Your honor. * * * "

Defendant then moved for a mistrial. The court sustained the objection but denied defendant's motion, commenting:

" * * * I'm going to deny your mistrial motion because I don't think there has been any prejudice done by that type of statement. The reason for that is that the testimony came in beforehand: 'You've never stabbed anyone else?'

" 'Answer: No.' That came in twice without objection."

The court then warned the jury:

"Ladies and gentlemen, the objection to the question has been sustained and I should caution you that statements by either counsel, questions they ask, are not to be considered by you as evidence. The evidence by which you should judge this case comes from the mouths of the witnesses."

The state does not contend and could not do so successfully that the prosecutor's questions set out above were proper. State v. Rollo, 221 Or. 428, 351 P.2d 422 (1960); see State v. Manrique, 271 Or. 201, 531 P.2d 239 (1975); ORS 419.567(3). ¹ The state rather argues that the court did not abuse its discretion in not granting a mistrial.

In State v. Bauer, 16 Or.App. 443, 448-49, 519 P.2d 96, 99, Sup.Ct. review denied (1974), we held that:

" * * * (T)he granting of a motion for a mistrial by a defendant must depend upon the particular...