State v. Smallwood

• Court: Supreme Court of Oregon
• Writing for the Court: HOLMAN
• Citation: 561 P.2d 600,277 Or. 503
• Decision Date: 17 March 1977
• Parties: STATE of Oregon, Respondent, v. Redgie Eugene SMALLWOOD, Petitioner.

Page 600

561 P.2d 600 277 Or. 503 STATE of Oregon, Respondent,
v.
Redgie Eugene SMALLWOOD, Petitioner. Supreme Court of Oregon, In Banc. Argued and Submitted Jan. 4, 1977.
Decided March 17, 1977.

Page 601

Howard R. Lonergan, Portland, argued the cause and filed briefs for petitioner.

[277 Or. 504] W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before HOLMAN, P.J., and TONGUE, HOWELL, BRYSON, LINDE, MENGLER and BRADSHAW, JJ.

[277 Or. 505] HOLMAN, Justice.

Defendant was convicted of the crime of murder. The judgment of conviction was affirmed by the Court of Appeals. 25 Or.App. 251, 548 P.2d 1346 (1976). This court granted review.

Defendant gave notice under ORS 163.135(1) and (2) that he would introduce expert testimony of extreme mental or emotional disturbance. Thereafter the state had him examined by its psychiatrist under ORS 163.135(4). Evidence was admitted through testimony of the state's psychiatrist that defendant had asserted his right to have his attorney present during the examination as well as his right not to answer questions posed by the psychiatrist concerning the particular acts with which he was charged. ¹ Defendant contends that error was committed when the trial court failed to grant a mistrial because the jury was allowed to hear evidence that he chose to exercise his rights to remain silent and to have his lawyer present. ²

There is no doubt that it is usually reversible error to admit evidence of the exercise by a defendant of the rights which the constitution gives him if it is done in a context whereupon inferences prejudicial to

Page 602

the [277 Or. 506] defendant are likely to be drawn by the jury. ³ If, however, there was no likelihood of prejudicial inferences in this case, the evidence would be relevant and admissible for the purpose of showing the depth and circumstances of the psychiatric examination. The prosecution did not argue to the jury that any particular inference should have been drawn, and the trial court specifically cautioned the jury not to draw any inference as to defendant's guilt or innocence. ⁴ Nonetheless, it is our duty to inquire whether it was likely that the jury would draw an inference prejudicial to defendant.

The usual inference which a defendant might believe would be drawn from his assertion of his right not to discuss with the state's psychiatrist defendant's actions in connection with the charged criminal occurrence is that defendant must have performed the actions charged--otherwise, he would have no objection to discussing them. No such inference, if drawn by the jury in this case, could have been damaging under the present record. The testimony of which defendant complains was not given until the state's rebuttal of his case. From the commencement of the trial it was made clear to the jury by defendant that he did not deny killing the victim by stabbing. Defendant's attorney stated at the conclusion of his opening statement to the jury:

'The essential issue in this case is just what his state of mind was when this unfortunate incident took place and just what stage of legal responsibility he has in this. [277 Or. 507] We will offer all we have on this issue. As I say, there's no issue in my mind that he performed the act that resulted in this young woman's untimely death. The thing is, was he beside himself with rage and his mind clouded so that he was unable to conform his conduct to the law? Was he beside himself as he hit stroke after stroke in a manner that anyone knows is not a way of a person that is skilled with a knife would do but in a wild frenzy stroke after stroke? Was he under severe emotional stress because of this coming together and being discarded and the...