State v. White

CourtSupreme Court of Oregon
Writing for the CourtBefore PETERSON; LENT
Citation736 P.2d 552,303 Or. 333
PartiesSTATE of Oregon, Respondent on Review, v. Terry James WHITE, Petitioner on Review. TC 10-83-01183; CA A30237; SC S32313.
Decision Date12 June 1987

Page 552

736 P.2d 552
303 Or. 333
STATE of Oregon, Respondent on Review,
Terry James WHITE, Petitioner on Review.
TC 10-83-01183; CA A30237; SC S32313.
Supreme Court of Oregon.
Argued and Submitted April 1, 1986.
Decided May 5, 1987.
Reconsideration Denied June 12, 1987.

[303 Or. 334] Edward E. Hill, Eugene, argued the cause for petitioner on review. With him on the petitions was Larry O. Gildea, P.C., Eugene.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

John Henry Hingson III, Oregon City, filed a brief amicus curiae on behalf of Nat. Ass'n of Criminal Defense Lawyers.


Page 553

[303 Or. 335] LENT, Justice.

The first issue is whether the prosecutor's remarks in opening statement to the jury concerning defendant's refusal to testify in his co-defendant's trial were so prejudicial that a mistrial should have been declared. We hold that the remarks were that prejudicial and that the instruction given by the trial court in an attempt to cure the effect of the remarks was not sufficient to do so.

The second issue is whether defendant, who was here charged with aggravated murder, was entitled to a jury instruction that would have submitted to the jury whether defendant was guilty of manslaughter in the first degree as a lesser included offense of the charged crime. We hold that defendant was entitled to the instruction.

Robert Harris died of injuries he sustained from an explosion. The explosion resulted from dynamite and a blasting cap that had been placed in his car and wired to the electrical system so that when the victim switched on the ignition the explosion occurred.

Defendant and two other persons, namely, Barbara Harris, the victim's wife, and one named Kell, 1 were charged with the crime of aggravated murder under ORS 163.095(2)(c), which provides:

" '[A]ggravated murder' means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:

" * * *

"(c) The defendant committed murder by means of an explosive * * *."

The indictment charged that the crime was committed as follows:

"The defendant on or about the 2nd day of December, 1982, in the county aforesaid, acting together and in pursuance of a common intent with Michael Dale Kell and Barbara Ann Harris, did unlawfully and intentionally cause the death of Robert Eugene Harris, a human being, by means of an explosive; * * *."

[303 Or. 336] Separate trials of Barbara Harris and Kell were held before this defendant's trial. The state called this defendant as a witness on the trial of Harris, and he refused to testify, invoking his constitutional rights not to be compelled to be a witness against himself. 2


A. The Prosecutor's Remarks

On trial of the instant case, apparently during jury selection, defendant's counsel told the jury that defendant would take the stand to give testimony. During the state's opening statement, the prosecutor said:

"Well during that [Harris] trial the Defendant--you have heard he is going to testify here--the Defendant testified, or was called to testify but refused to do so."

Out of the presence of the jury, defendant's counsel immediately moved for a mistrial. The prosecutor defended his remarks by pointing out that defendant had been held in contempt for failure to testify at the Harris trial when ordered to do so under a grant of immunity. See note 2, supra. At the time of the colloquy the contempt conviction of this defendant had not yet been reversed. The prosecutor told the trial court why he had made the statement:

"What I was seeking to do in this case is * * * develop the fact that he refused to testify when ordered to do so. In other words, he refused to give a story.

" * * * If he had a legitimate story that would exonerate him and he has it now, why wouldn't he be willing to tell it

Page 554

then? So that was the basis of going into that."

The prosecutor continued his statements to the court by pointing out that in the trials of Harris and Kell, each had pointed to a co-conspirator as being the main culprit, Harris having charged that both Kell and this defendant were the [303 Or. 337] chief perpetrators. The prosecutor characterized this history as being a finger-pointing defense. 3

The trial judge explained his reasons for denial of the motion for a mistrial:

"Occurs to me that the refusal of Mr. White to testify when ordered to do so really I can't see is probative of anything. What I understand Mr. Barnes [the prosecutor] to be saying is that we are going to retry the Harris case, we are going to retry the Kell case here to show that everybody is pointing a finger at everybody else. I don't think we are going to do that, either.

"Seems to me that there are any number of reasons why--not the least of which Mr. Wold [defendant's counsel] has articulated--is the question of the constitutional--of the statute here, why Mr. White may have chosen to place himself in contempt as opposed to complying with the Court order. Certain compelling logic to me in Mr. Wold's statement that he [Barnes] couldn't have used what he [defendant] would have said at trial here. Why you should be able to use his failure to testify, I guess still mystifies me, when I don't see that it's probative of anything.

"It is not to say that the matter is of the nature that it requires a mistrial. Got all kinds of things that may or may not prove--may or may not come in. Seems to me that at this stage of the proceedings that an indication to the jury that whether or not Mr. White chose to testify in a prior proceeding is not relevant, why he didn't is not relevant and that that's no part of this case.

"My opinion, not--can't see that that's such a major matter that would require releasing the jury and starting over. I am going to deny the motion for mistrial. I do believe that the question of him not testifying earlier is not appropriate. I don't know what Mr. Barnes intends to do in terms of Mrs. Harris and Mr. Kell."

Upon return to the presence of the jury, the trial court instructed as follows:

"Ladies and gentlemen, before we recessed, Mr. Barnes [303 Or. 338] had made some comment in his opening statement about Mr. White having been called to testify in the Barbara Harris matter and not having testified, chosen not to do so.

"I have ruled that that matter is not relevant in this case. You will not be hearing any evidence about that, and that there are any number of reasons why that may have occurred would have nothing to do with any that is probative of the evidence in this case. So in no way are you to take that into account or in any way to discuss or consider what Mr. Barnes has said in regard to that. It's not evidence in this case. It's not to be taken by you as any evidence of the case or have any place in this case.

"Trust that each one of you will be able to do that. It's important that you do that."

B. The Requested Instruction on Manslaughter

Defendant testified to the following: He was aware that Kell and Barbara Harris had discussed killing her husband. He had attempted to dissuade her. He knew Kell had stolen dynamite and stored it on defendant's property. Kell had indicated to Barbara Harris that Kell could wire the dynamite to the victim's car so as to accomplish the homicide.

As part of defendant's attempt to dissuade Barbara Harris, he told her that Kell did not even know how powerful the dynamite was and how much would be necessary to kill her husband rather than make

Page 555

him a vegetable for life. Defendant accompanied Kell and Barbara Harris to a remote area to test the explosive power of the dynamite by wiring it to Barbara Harris' truck (not the vehicle used in the homicide) so that it exploded by use of the ignition system of the truck.

Later that same night, the three drove in the truck to the mill where the victim was working and where his car was parked, but they left the area. Still later that night, Kell awakened defendant and told him to come take a ride. Defendant got in Kell's car, and Kell drove to the mill parking lot. There Kell left the car for a while and then came back and reached behind the seat and again left the car for a short period of time. Kell and defendant then returned to defendant's house.

Later that day, defendant learned that the victim had been blown up in his car at the mill parking lot.

[303 Or. 339] Defendant denied that he knew that Kell had taken dynamite from the car and set it for explosion in the victim's car. Defendant denied that he had ever intended to kill the victim or plotted with Kell and Barbara Harris to kill the victim.

ORS 163.118(1)(a) provides that criminal homicide constitutes manslaughter in the first degree when it is "committed recklessly under circumstances manifesting extreme indifference to the value of human life." Defendant requested an instruction that would have permitted the jury, if it doubted that defendant was guilty of murder, to find him guilty of manslaughter in the first degree under that statute. The court refused to give the requested instruction.

Defendant was found guilty of aggravated murder and sentenced accordingly.


On appeal defendant assigned as error the trial court's denial of his motion for a mistrial and its refusal to give his requested instruction that would have submitted to the jury the lesser included offense. 4

The Court of Appeals considered the case in banc and affirmed by a six to four majority. State v. White, 75 Or.App. 722, 707 P.2d 1267 (1985). Four judges dissented on the issue of the failure to allow the motion for a mistrial, and two of the four further dissented on the refusal to instruct on the lesser included offense.

The majority assumed that the prosecutor's comment was "improper," but that because defendant testified at length, the comment was not so prejudicial that a mistrial was required;...

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