State v. Tucker

• Decision Date: 01 April 1971
• Citation: 483 P.2d 825,5 Or.App. 283
• Parties: STATE of Oregon, Respondent, v. Fred Charles TUCKER, Appellant.
• Court: Oregon Court of Appeals

Page 825

483 P.2d 825

5 Or.App. 283

STATE of Oregon, Respondent, v. Fred Charles TUCKER, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted Feb. 19, 1971.

Decided April 1, 1971.

Edwin A. York, Portland, argued the cause for appellant. With him on the brief was Charles Paulson, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jacob B. Tanzer, Sol. Gen., Salem.

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

FORT, Judge.

The defendant was indicted for the crime of murder in the first degree. He was convicted by a jury and appeals, asserting five assignments of error.

The first arises from the court's denial of defendant's motion for a mistrial made on the ground that after the jury had been impaneled two jurors purchased city newspapers containing accounts of the trial and brought them into the jury room. Immediately upon being so informed, the judge held an In camera hearing with each of the two jurors in the presence of counsel and the defendant. Both jurors testified that they purchased the newspapers to read an article which contained the names, occupations and some general background biographical facts of each juror. Neither juror had read the newspapers purchased, and both stated that the papers were immediately rolled up and placed in a paper sack, and it was their intention to read the article only after the conclusion of the trial. Both also testified they had been informed by a third juror that the newspapers had an article about the jury. The third juror then testified that he had neither seen nor read the newspaper account and had only been informed of the article by his wife. Based on all the testimony the trial court found that there had been no prejudice and no improper receipt of information by the jurors. The motion for mistrial was denied.

In State v. Elkins, 248 Or. 322, 432 P.2d 794 (1967), the Oregon Supreme Court said:

'* * * There is no claim or showing that any juror was false in his answers to the court's inquiry at the time of defendant's first motion for a mistrial. The trial court and this court must presume that the answers of each juror were honest. State v. McDonald, 231 Or. 24, 37, 361 P.2d 1101 (1962). Based on these answers the trial court very properly denied defendant's first motion for mistrial.' 248 Or. at 326, 432 P.2d at 796.

Here, too, no claim is made that any juror testified falsely. The trial court has broad discretion in ruling upon motions for mistrial. McDonald v. World Wide Dodge, Inc., 243 Or. 218, 412 P.2d 371 (1966). There was no abuse of discretion here. The motion was correctly denied.

Defendant's second assignment of error challenges the admission into evidence of facts indicating the commission of other offenses by the defendant subsequent to the homicide.

The state proceeded on the theory that the deceased was murdered in the act of being robbed. During the trial the state asked a witness who was with the defendant both at the time of his arrest and at the time the murder weapon was purchased why he and the defendant bought the weapon.

'Q Now how did you happen to buy a gun? What was it that you were buying a gun for?

'A We needed some money.

'Q And what did you need the money for? What purpose did you have? * * *

'A Speed (amphetamines).'

Indeed the defendant himself testified that he was an habitual user of LSD.

The state also introduced testimony from different witnesses who, within two days or less subsequent to the homicide, had seen the defendant in possession of credit cards and checks bearing the name of the victim. The victim's wife testified that the signature appearing on a receipt from a credit card purchase effected by the defendant after the homicide was not her husband's signature. A handwriting expert testified that the signatures contained on the negotiated checks were that of the defendant. The state also showed that the defendant, while en route to California, endorsed and negotiated the victim's checks a day after the homicide, and that the victim's car was taken immediately after the homicide by the defendant and used by him to facilitate his escape to California. Other evidence showed that the victim's wallet, credit card and checks were in the defendant's possession subsequent to the murder and were used by the defendant to obtain money and property used in connection with his flight, and that while in possession of the victim's credit cards two days after the homicide, defendant tried to use the same in Medford while en route to California and shortly thereafter was apprehended in California after the victim's car which he was driving broke down.

These items of evidence constitute causal links in the totality of the homicide. Every act of the defendant, from the time of the purchase of the murder weapon, the murder itself, the appropriation of the victim's valuables and automobile and their possession and use by the defendant in his flight to California, were relevant to motive and intent and also were important links in the chain of evidence.

Evidence which demonstrates that the defendant committed other crimes may be admissible if it establishes motive for the crime charged. Indeed there are many grounds of admissibility. See, State v. Hamilton, Or.App., 483 P.2d 90, decided this day; State v. Woolard, 2 Or.App. 446, 467 P.2d 652, Sup.Ct. review denied (1970); State v. Moore, 1 Or.App. 394, 460 P.2d 866 (1969), 463 P.2d 373, Sup.Ct. review denied (1970).

'* * * (T)he real question is not whether the collateral crimes occur before or after the crime charged. The question is whether the collateral crimes tend to show motive, design or purpose for the crime charged. For this purpose, retrospective evidence may be as pertinent as prospective.' State v. Long, 195 Or. 81, 116, 244 P.2d 1033, 1048 (1952).

In State v. Jensen, 209 Or. 239, 273, 296 P.2d 618, 632 (1956), the court said:

'* * * (T)he rule excluding such evidence (evidence of other crimes) does not apply to evidence which is relevant to the issue. Here the defendant was in flight, and acts done by him in furtherance of his escape could be shown notwithstanding the conduct was criminal. * * *'

and in State v. McIntire, 2 Or.App. 429, 468 P.2d 536, Sup.Ct. review denied (1970), this court said:

'It is well established that evidence of flight or escape is admissible as evidence of guilty knowledge. * * *'

This assignment of error is without merit.

During the state's opening remarks, it contended that the victim's murder resulted from the defendant's desire to obtain money in order to buy narcotics. From our conclusion that the court did not err in admitting evidence of subsequent offenses, it follows that no error was committed and the defendant was not prejudiced by the state's remark in its opening statement outlining the evidence it intended to offer concerning these offenses as charged in defendant's third assignment of error. This assignment is without merit.

The defendant contends in his fourth assignment of error that the court erred in admitting into evidence photographs of the deceased and other items of physical evidence taken both at the murder scene and at the county morgue, on the grounds their prejudicial effect outweighed their evidentiary value and that some of them were cumulative. All are conceded to be relevant and otherwise competent.

The court held a lengthy In camera hearing and carefully examined each exhibit. Not all of the exhibits were admitted by the court. Six were excluded as being cumulative; some others were withdrawn by the state.

Whether an exhibit possesses sufficient probative value in relation to its possible prejudicial effect to warrant its admission is within the sound discretion of the court, as is the matter of cumulativeness.

In State v. Freeman, 232 Or. 267, 274--275, 374 P.2d 453, 457 (1962), the Oregon Supreme Court said:

'We adhere to the rule that it is not error to receive relevant exhibits merely because they may have a traumatic effect upon the minds of jurors. Murder is never pleasant to contemplate. It is the jury's duty, however, to examine all the evidence and from such examination to declare a true verdict. The truth may be ugly. See State v. Nunn, 212 Or. 546, 566--567, 321 P.2d 356; State of Oregon v. Long, supra; State v. Garver, 190 Or. 291, 226 P.2d 771, 27 A.L.R.2d 105.'

We find no abuse of the court's descretion. The...