State v. Nulph

• Citation: 572 P.2d 642,31 Or.App. 1155
• Parties: STATE of Oregon, Respondent, v. George William NULPH, Appellant.
• Decision Date: 12 December 1977
• Court: Court of Appeals of Oregon

Page 642

572 P.2d 642

31 Or.App. 1155

STATE of Oregon, Respondent, v. George William NULPH, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Sept. 21, 1977.

Decided Dec. 12, 1977.

Stephanie A. Smythe, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Melinda L. Bruce, 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.

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

TANZER, Judge.

Defendant was convicted by a jury of first degree kidnapping and murder. ¹ He appeals, making several assignments of error.

On Friday, April 2, 1976, at approximately noon, the victim left work at Osburn's grocery store in Cannon Beach on her lunch break. She said she was going to drive somewhere and eat in her car, as was her custom. She was not seen alive again. Her car was found later that afternoon on a bluff overlooking the ocean. Her lunch was mostly eaten and her upper dentures were wrapped in tissue on the car seat. There were no signs of struggle.

The following afternoon police found the victim's body about a half-mile above a gravel pit on the Tolovana Main Line Road. She had been shot three times in the chest with a .22 caliber weapon. Her body was stuffed face down between two logs. Her outer clothing was in place, but her underclothes were found hanging in trees a short distance away. Apart from the bullet wounds, her body was unmarked. There was a trace of seminal fluid on the victim's panties but none elsewhere.

On Friday defendant went clamming with friends at about 6 a. m. They stopped for breakfast afterwards and were together until about 10:30 a. m. Defendant drank several beers during this time. His companions declined an invitation to go drinking, and defendant was alone between 10:30 a. m. and 2:30 p. m., when he rejoined one of his friends.

Defendant testified that during the intervening four hours, he went home to shower and change, and had several beers and a "couple of drinks" in the process. He then drove his blue pickup truck to the country club where his wife worked and exchanged it for her late model black Plymouth Fury. Defendant stated that between 12:30 and 2:30 p. m. he drove his wife's car to Elsie and then to the Elderberry Inn in an unsuccessful attempt to find his brother-in-law's father. He continued to drink beer during this time and he said that when he rejoined his friend he was very intoxicated.

Defendant's friend testified that when they met again at 2:30 p. m. they went in defendant's car to look at jeeps. He stated that, as he got into the car, he saw defendant's .22 caliber pistol on the front seat. When he asked defendant what he had been doing, defendant replied that he had gone up to Elsie and "got a little off an older lady."

Two witnesses testified that, on Friday afternoon, while they were taking gravel from the Tolovana pit, defendant drove down the road in a black late model automobile. They stated that he asked them to move their truck so that he could pass and that he volunteered to them that he had been doing some target shooting in the woods above the gravel pit. Another witness reported seeing defendant driving a black automobile "quite fast" down the Tolovana road at about 1 p. m. on Friday afternoon.

Two young women testified that on the following Saturday afternoon at about 1 p. m. they were hitchhiking southbound on the coast highway when they were picked up by defendant, driving a blue pickup truck. As they passed a turnout overlooking the ocean, where there was a great deal of activity, defendant reportedly said: "Right there is where this lady got shot and raped. * * * They think they're going to catch me but they're not going to catch me." Police did not find the body until after 1:30 p. m. and did not discover the cause of the victim's death until approximately 5:30 p. m. that afternoon.

On Tuesday, April 6, at 10 a. m., police arrived at defendant's house, armed with a warrant, to search for his .22 caliber pistol. Defendant's wife admitted the officers and led them to the top dresser drawer where the gun was kept. It was not there. Police then encountered defendant in the bathroom where he was shaving. They asked him whether he remembered seeing people at a gravel pit on the Tolovana road on Friday, April 2. When defendant answered affirmatively, he was arrested. Defendant's pistol was then found stuffed between the mattress and boxspring of his bed. Ballistics tests showed that the bullets recovered from the victim's body had been fired from defendant's gun.

I

Defendant contends that the trial court erred in refusing to permit a defense psychiatrist to testify concerning a sedative interview with defendant. Defendant acknowledges that sedative interviews are inadmissible to prove the truth of statements made by the person interviewed or as the basis of an opinion as to the person's veracity. State v. Harris, 241 Or. 224, 405 P.2d 492 (1965); State v. Taggart, 14 Or.App. 408, 420, 512 P.2d 1359 (1973), rev den, cert den 419 U.S. 877, 95 S.Ct. 141, 42 L.Ed.2d 117 (1974). However, defendant contends that testimony concerning the interview should have been admitted to support the psychiatrist's opinion testimony as to defendant's mental state.

Generally, the admission of evidence illustrative of the testimony of an expert is subject to the discretionary balancing by the trial court of the probative quality of such evidence against its tendency to confuse, State v. Tidyman, 30 Or.App. 537, 550, 568 P.2d 666, rev pending (1977), and the rule is specifically applicable to psychiatric examinations such as this. State v. Harris, supra. In view of a jury's natural tendency to give undue weight to statements of the defendant made under the influence of a sedative such as sodium amitol, commonly albeit erroneously known as a "truth serum," we hold that the trial court acted within the range of its discretion in refusing to admit such evidence.

II

At defendant's request, the trial court properly instructed the jury on the effect of defendant's voluntary intoxication. Defendant contends that the trial court erred in refusing to also give the following instruction:

"The defendant does not have the burden of proving that his ability to form the required intent was impaired, since it is the state's burden to prove beyond a reasonable doubt that defendant did have the required intent to commit the crime."

The trial court thoroughly instructed the jury as to the state's burden of proving each element of the offense, including the element of intent. State v. Stockett, 278 Or. 637, 565 P.2d 739 (1977). Such an instruction was adequate and the intoxication instruction was not misleading so as to require further clarification as to burden of proof. State v. Gaylor, 24 Or.App. 933, 547 P.2d 651, rev den (1976).

III

Defendant contends that the trial court erred in instructing the jury as follows:

"Now, the state contends in this case that the defendant fled rapidly from the scene of the crime. In that regard, I instruct you that flight of a defendant after the commission of a crime is not sufficient, by itself, to establish his guilt, but it is a fact which, if proven, may be considered by you in deciding the question of defendant's guilt. It is your duty to determine whether or not there was such flight, and if you find that there was, then it is your duty also to determine what the defendant's purpose or motive was which prompted him so to act.

"Evidence of flight, if you find that there is such evidence in this case, may be considered by you as an indication of defendant's awareness of guilt or his guilty intent."

The basis of defendant's objection, at trial and on appeal, is that there was no evidence of flight upon which the instruction could be based. The only evidence which even arguably supports the giving of the instruction is testimony that on the day of the victim's disappearance, defendant was seen driving "quite fast" down the Tolovana Main Line Road. There is no other evidence of attempt to avoid discovery or imminent apprehension, i. e., flight, if such evidence this be. On the contrary, the testimony of the other state's witnesses who saw defendant on the Tolovana road suggests a contrary inference. Assuming that a flight instruction may be appropriate where the significance of evidence of flight is too obscure for lay jurors to understand, as State v. McCormick, Or., 571 P.2d 499 (1977), seems to hold, it was error to give such an instruction where, as here, there was negligible evidence, if any, to support it. State v. Bonner, 241 Or. 404, 406 P.2d 160 (1965); State v. Gibbons, 1 Or.App. 374, 462 P.2d 680 (1969).

Although it was error to instruct the jury on flight, the instruction given in this case was so equivocal and insubstantial that the risk of prejudice was nil. The danger of giving an unsupported instruction is that the jury will infer judicial cognition of evidence which does not exist. Here, the jury was instructed that it must determine first whether any evidence of flight existed and then whether that evidence was believable, before attaching any significance to it. It is therefore unlikely that the instruction caused the jury to assume judicial cognition of evidence of flight where there was none. See, State v. Bonner, supra. Accordingly, we hold that the error was harmless.

IV

At trial, one of the officers who arrested defendant was permitted to testify over defense objection and with no cautionary instruction as follows:

"I then stated (after advising defendant of his constitutional rights): 'Having these rights in mind, do you wish to talk to us now?' Mr. Nulph replied: 'I think I know what this is all about. I'd better talk to a lawyer.' "

Defendant contends that this entire statement should have been excluded because...