State v. Smallwood

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

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.

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

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.

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 the 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. 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 other men coming in and then being called back and being unable to refuse or leave the situation? That, ladies and gentlemen, is going to be the difficult and burdensome task that you have in this case.'

In addition, defendant's psychiatrist testified in defendant's case in chief that defendant had admitted to her that he had stabbed the victim at least once. Having admitted, in effect, the act of killing, defendant cannot claim he was prejudiced by the drawing of any inference to that effect.

Another adverse inference that might be drawn is that defendant did not want to talk to the state's psychiatrist about the particular occurrence because he was afraid that if he did the psychiatrist would find that he was shamming in his claim of mental disturbance. This inference does not seem likely to have been drawn in view of defendant's submission to an otherwise complete psychiatric interview and later to examination on the witness stand. In addition, the state's psychiatrist testified concerning the reason he thought defendant had refused to discuss the particular occurrence:

'Q Doctor, would the defendant discuss with you the details of the alleged crime?

'A No, it was an understanding at the beginning of the interview that we would not talk about the crime at all. The defendant gave two reasons for this: 'One, he really did not trust me, and the second one is that he said he didn't want to talk about the victim out of some sense of honor to her.'

In view of the circumstances, we believe there was no real likelihood that any adverse inferences were drawn by the jury from defendant's assertion of his right not to talk about the details of the killing. The circumstances were not such as to raise the question of whether defendant was shamming, and the guidance of both the court and the state's psychiatrist was away from drawing an adverse inference on that question.

The testimony concerning defendant's refusal to talk to the psychiatrist without the presence of his lawyer was, as follows:

'Q Doctor Colbach, now, you saw the defendant on two...