State v. Wertheimer

• Decision Date: 21 September 1971
• Citation: 488 P.2d 1199,6 Or.App. 507
• Parties: STATE of Oregon, Respondent, v. Donald Jerome WERTHEIMER, aka Carl James Parks, aka Tom Harrison, aka Carl D. Parks, aka D. Carl Parks, Appellant.
• Court: Oregon Court of Appeals

Page 1199

488 P.2d 1199

6 Or.App. 507

STATE of Oregon, Respondent, v. Donald Jerome WERTHEIMER, aka Carl James Parks, aka Tom Harrison, aka Carl D. Parks, aka D. Carl Parks, Appellant.

Court of Appeals of Oregon, Department 1.

Submitted on Briefs Aug. 3, 1971.

Decided Sept. 21, 1971.

Michael O. Whitty, Coos Bay, and Donald Jerome Wertheimer, in pro. per., for appellant.

No appearance for respondent.

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

LANGTRY, Judge.

Defendant was convicted in a jury trial of armed robbery and appeals. ORS 163.280. Different counsel was appointed to represent him on this appeal than he had at the trial level, to which he has objected. Both counsel and defendant have filed briefs. Additionally, correspondence from the defendant has accumulated in the office of the Clerk of this court, which we have reviewed. From these sources we state the assertions of alleged error upon which the defendant bases his appeal:

'A The decision of the Court in regard to the Motion on Jurisdiction.

'B The decision of the Trial Court in regard to the Motion to dismiss the indictment.

'C The decision of the Trial Court in regard to the admissability (sic) of the testimony of Captain Richard Earle Shaffer and Mr. John Barry in regard to any alleged confessions or statements.

'D The decision of the Trial Court in regard to the Motion for Judgment of Acquittal.

'E The decision of the trial Court in the instructions which were given as to 'Desputable (sic) presumptions' and to a 'Loaded gun', as excepted to by Defendant's Counsel.

'F The conviction of the Trial Court of the Defendant.

'G. The instruction on voluntary confessions.'

Defendant's arguments with reference to his motion on jurisdiction and motion to dismiss the indictment (A and B above), are based upon his claim that he was illegally extradited or taken from Minnesota to Oregon for this trial. In State v. Fox, 250 Or. 83, 439 P.2d 1009, cert. denied 393 U.S. 891, 89 S.Ct. 213, 21 L.Ed.2d 171 (1968), the Oregon Supreme Court, citing many authorities, including Frisbie v. Collins, 342 U.S. 519, 72 S.Ct. 509, 96 L.Ed. 541 (1951), held that the jurisdiction of the trial court is not impaired by any defect in the proceeding by which the defendant was brought into Oregon for trial.

C. Two police officers, one from Montana and one from Minnesota, testified regarding inculpatory statements made by the defendant to them. The first statement was made to Detective Shaffer in Billings, Montana. The defendant walked into the Billings police station and asked for Detective Shaffer. The detective, who did not know defendant, introduced himself and listened to defendant who voluntarily told the detective about his involvement in several armed robberies, including the one in the case at bar. This detective, inasmuch as the defendant was doing the talking, did not advise the defendant of his Miranda ¹ rights.

The defendant was shortly returned to Minnesota where Detective Barry talked with him in the presence of his attorney, advised defendant of his rights, and defendant, with his attorney listening, made a voluntary statement concerning an armed robbery in Minnesota. The detective asked whether defendant would be willing to talk with him further, and with advice and consent of his attorney, the defendant said he would. The next day Detective Barry talked with him again and the defendant made a statement regarding the robbery in the case at bar.

With reference to this interview, at the In camera hearing Detective Barry testified:

'Q Had you received any communication from Billings, Montana, Police Department or from the North Bend, Oregon, Police Department regarding the North Bend robbery prior to either of these discussions?

'A No, sir, I had not.'

In Miranda the Supreme Court said:

'* * * There is no requirement that police stop a person who enters a police station and states that he wishes to confess a crime * * * Volunteered statements of any kind are not barred * * * and their admissibility is not affected by our holding today.' 384 U.S. at 478, 86 S.Ct. at 1630.

We have reviewed the record of the In camera hearing and find that there is more than sufficient evidence to support the trial court's ruling that the testimony of both detectives about the oral admissions would be received.

D and F. The defendant's claim of error with reference to denial of his motion for judgment of acquittal and his objection to his conviction rest upon his claim of insufficiency of the evidence. He argues at length concerning the inferences that should or should not have been drawn from the evidence--inferences which the jury obviously drew unfavorably to defendant. The testimony of the barmaid he was accused of holding up positively...