State v. Smith

• Court: Oregon Court of Appeals
• Writing for the Court: Before SCHWAB; FORT
• Citation: State v. Smith, 4 Or.App. 261, 478 P.2d 417, 91 Adv.Sh. 1291 (Or. App. 1970)
• Decision Date: 23 December 1970
• Parties: STATE of Oregon, Respondent, v. James Edward SMITH, Appellant.

Page 417

478 P.2d 417

4 Or.App. 261

STATE of Oregon, Respondent, v. James Edward SMITH, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Nov. 23, 1970.

Decided Dec. 23, 1970.

Gerald R. Pullen, Portland, argued the cause and filed the brief for appellant.

Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FORT, Judge.

Defendant was indicted, tried and convicted by a jury of forcible rape. He appeals from the resulting judgment, asserting three assignments of error. We will consider them seriatim.

The first arises out of a denial of a motion for mistrial made because of a question asked on cross-examination by the prosecutor of the defendant. During the defendant's case-in-chief he called as a witness a woman with whom he was living at the time of the commission of the crime. She testified she was not married to the defendant, had permitted him to move into her apartment, and that she had borne him two children. No objection was made to any of this testimony.

Following her testimony, the defendant took the stand. At the last of his direct examination by his own attorney, the following transpired:

'Q And the police took you to jail, is that correct?

'A Yes.

'Q Have you ever been in jail before that time?

'A One time for about a day for child support, and that is the only time I ever been in jail before, never before.

'Q Never been arrested?

'A Never been arrested before. * * *

'* * *

'Q Child support was when? How long ago?

'A Pardon?

'Q The child support problem was how long ago?

'A Oh, must have been about two years ago; a year and one-half, two years ago. And finally got married.

'MR. SHILEY: No further questions.

'CROSS-EXAMINATION

'BY MR. BENNETT:

'Q How many children do you have out and about in the community?

'MR. SHILEY: Objection.

'THE COURT: Sustained.

'MR. SHILEY: I have a motion for the Court also.'

The motion for a mistrial was then made in chambers. The court denied it. Upon resuming the bench the court clearly and emphatically instructed the jury to disregard the question to which the objection had been made and sustained and to give it no consideration.

Since the state in its brief and in oral argument expressly concedes that it was error under the foregoing circumstances for the district attorney to have asked the question, we neither consider nor decide that issue.

The general rule is that a motion for mistrial is addressed to the sound discretion of the trial court, and its exercise will not be upset except for a clear abuse. State v. Keffer, Or.App., 90 Adv.Sh. 1753, 471 P.2d 438 (1970); State v. Woolard, Or.App., 90 Adv.Sh. 1887, 472 P.2d 837 (1970); State v. Steffes, Or.App., 90 Adv.Sh. 551, 465 P.2d 905 (1970); State v. Elkins, 248 Or. 322, 432 P.2d 794 (1967); State v. Hoffman, 236 Or. 98, 385 P.2d 741 (1963).

Forensic misconduct on the part of the prosecutor then is the problem here involved.

'Prosecutor's forensic misconduct may be generally defined as any activity by the prosecutor which tends to divert the jury from making its determination of guilt or innocence by weighing the legally admitted evidence in the manner prescribed by law. It commonly involves an appeal to the jurors' prejudices, fears, or notions of popular sentiment by presenting to them inadmissible evidence; or urging them to make inferences not based on the evidence; or to disregard the evidence altogether and base their determination on wholly irrelevant factors. The jury may also be encouraged to disregard the weighing process prescribed by law and substitute one more favorable to the state, or otherwise to misapprehend its functions.

'Actually misconduct will usually involve some combination of these factors, and in fact the more that are included the more effective will be the prosecutor's argument in swaying the jury. * * *' Note, The Nature and Consequences of Forensic Misconduct in the Prosecution of a Criminal Case, 54 Colum.L.Rev. 946, 949 (1954).

Thus, it is apparent a wide, almost infinite, variety of circumstances in the trial of a case may give rise to such a complaint.

In an annotation in 109 A.L.R. 1090--1092 (1937), it is pointed out:

'Improper questions may be prejudicial in various ways, including the following:

They may plainly convey information excluded by the rules of evidence; may hint at the existence of significant though inadmissible facts, with or without a suggestion as to their exact nature; may, by the assumptions therein contained, and notwithstanding the answers being prevented, impress upon the jury, by a mere show of proof, matters which are not admissible in evidence and which perhaps could not be proved, as inferred, even if opportunity were afforded; and may, by reason of the objections made, emphasize the facts suggested more effectively then might be done by answers admitted without objection.

'* * *

'* * * The vital inquiry usually is whether or not the verdict was substantially influenced by the improper questions. Ordinarily the good or bad faith of counsel, and the extent of the bad faith where it exists, are elements which are emphasized in the decisions; but as good faith is not ordinarily a shield to a litigant whose counsel seriously errs in the matter under consideration, bad faith, without actual prejudice resulting, of course gives no cause for complaint.' (Italics supplied.)

We agree that 'The vital inquiry usually is whether or not the verdict was substantially influenced by the improper questions.' First, the question as asked here does not indicate such bad faith on the part of the prosecutor as would warrant reversal upon that ground alone. Second, the witness did not answer the question. Third, the objection was immediately sustained. Lastly, no further discussion took place in the presence of the jury until the court clearly and unequivocally told them, 'this is not a matter for your consideration,' and 'it's no concern to you in this case here.' We think the court did 'unring the bell.' State v. Louie Hing, 77 Or. 462, 469, 151 P. 706 (1915).

The second assignment of error challenges the admission in rebuttal by the state of the opinion evidence of a neighbor that the general...