State v. MacOmber , 18 Or. App. 163 ( 1974 )

524 P.2d 574 (1974)

STATE of Oregon, Respondent,
v.
Gerald Theodore MACOMBER, Appellant.

Court of Appeals of Oregon.

Argued and Submitted June 24, 1974. Decided July 22, 1974.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Timothy Wood, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

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

LANGTRY, Judge.

Defendant appeals from conviction of two counts in one indictment: (1) attempted murder (ORS 163.115) and (2) arson in the first degree (ORS 164.325) by causing an explosion to intentionally damage the protected property, a dwelling, of another.

The facts upon which this prosecution was based grew out of another prosecution of defendant for unauthorized use of a vehicle, the appeals of which are reported in State v. Macomber, 16 Or. App. 54, 517 P.2d 344 (1973), reversed 99 Adv.Sh. 342, Or., 523 P.2d 560 (1974). Those quite-involved facts are unnecessary to relate in this opinion, except to say that the prosecution at bar involved the state's accusation that the defendant bombed with dynamite the dwelling house of one Edward Jay Myer with intent to kill the latter in order to prevent him from testifying against Macomber in the trial of the unauthorized-use-of-motor-vehicle charge. The explosion seriously injured Myer's child who was in the dwelling, and caused extensive property damage.

The assignments of error are that the trial court erred (1) in denying a defense motion to require the state to elect to proceed on one or the other count of the indictment and in imposing sentence judgments on each, and (2) in disallowing motions for mistrial or a new trial because of alleged prejudicial remarks to the jury by the prosecutor.

(1). Defendant argues that, inasmuch as the dynamiting of the dwelling was one act or transaction from which each crime charged in Counts I (attempted murder) and II (damage to protected property) necessarily flowed, the state should have been required to elect upon which count it would proceed, and additionally, that the court should not have imposed two 20-year sentences to run concurrently. The rationale of this argument is based upon ORS 132.560^[1] and recent Oregon appellate case law exemplified by State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971); State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972); State v. Clipston, 3 Or. App. 313, 473 P.2d 682 (1970); State v. Welch, 11 Or. App. 140, 500 P.2d 1071 (1972), reversed 264 Or. 388, 505 P.2d 910 (1973); State v. Sanchez, 14 Or. App. 234, 511 P.2d 1231, Sup.Ct. review denied (1973); and State v. Fitzgerald, 12 Or. App. 495, 506 P.2d 733, affirmed 267 Or. 266, 516 P.2d 1280 (1973).

When defense counsel moved to require the state to elect, he relied upon State v. Brown, supra. He said defendant is entitled to go to trial on one or the other count since both are based on one act "and that the ruling on that act will be the only crime for which he can be prosecuted or convicted for the one act charged." He said the jury would have to find intent to damage property and intent to kill to find defendant guilty of both counts, and there can only be "one intent per act, * * *" which means the counts could only be in the alternative, citing ORS 132.560(1).^[1] The trial court correctly pointed out a defendant could harbor both intentions, and overruled the motion, relying upon ORS 132.560(2).^[1]

With reference to case law defendant relies most strongly in his brief upon State v. Brown, supra, and State v. Woolard, supra. In Brown the court distinguished a situation like that at bar:

"Second, we wish to point out that our decision in this case is limited to instances of successive prosecution, and has no application to the question of multiple punishment. As we have said, the two problems involve entirely different considerations, and this opinion is not intended to limit in any way the power of the legislature to provide for separate and cumulative punishments for different aspects of a single act or course of conduct * * *." 262 Or. at 459, 497 P.2d at 1199.

In Woolard the court held that it is a question of legislative intent whether a defendant can be convicted and sentenced for more than one crime growing out of the same act or transaction. In that case it held that the legislature, in a burglary-larceny situation, intended only one, and limited the decision to that unique situation.

We have examined the Criminal Law Revision Commission's Commentary with reference to the arson and murder provisions thereof, and find nothing — nor do we find anything elsewhere — to indicate with any clarity that the legislature intended punishment for only one crime in a situation like that at bar. Therefore, we conclude that in this situation the rule restated in State v. McDonald, 231 Or. 48, 52, 365 P.2d 494, 496 (1961), cert. denied 370 U.S. 903, 82 S.Ct. 1247, 8 L.Ed.2d 399 (1962), is still applicable law in Oregon:

"In State v. Weitzel, 157 Or. 334, 340, 69 P.2d 958, 961, and State v. Stewart, 11 Or. 52, 53, 4 P. 128, we quoted with approval the following from Morey v. Commonwealth, 108 Mass. 433, 434:

"``"A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other."'"^[2]

See also State v. Huennekens, 245 Or. 150, 152, 420 P.2d 384 (1966), and State v. Welch, supra.

(2). The defendant contends a motion for mistrial based on the prosecutor's misconduct should have been allowed, or in the alternative a motion for a new trial, on the same basis.

The prosecutor made a lengthy summation of the complicated evidence in his closing argument to the jury which takes up 43 pages of transcript. At the 40th page he commenced asking rhetorical questions, commencing with the preface:

"It's a common defense technique to put on trial the defense attorney's office; police officers; other witnesses; everybody involved in the case except the defendant, in order to distract your attention from the real issues in this case."

In the next two pages the transcript shows the prosecutor at random points said "ask the defendant to explain * * *," "[a]sk the defendant how he explains * * *," "[a]sk him how the telephone records * * *," "[a]sk him to explain those things * * *."

The argument was then closed, and defense counsel, in camera, immediately moved for mistrial. We think the motion was timely made under these circumstances.

The prosecutor conceded he should have use the word "defense" rather than "defendant" and "him."

The court said it did not believe the choice of language by the prosecutor was inadvertent, and that it was "an extremely close question" whether the prosecutor had made prejudicial comments on the defendant's having exercised his constitutional right not to testify.

Every prosecutor, if not every lawyer, should know that in Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 1233, 14 L.Ed.2d 106 (1965), the United States Supreme Court said:

"* * * [T]he Fifth Amendment * * * in its bearing on the States by reason of the Fourteenth Amendment, forbids * * * comment by the prosecution on the accused's silence * * *."

This rule applied in Oregon prosecutions prior to the decision in Griffin. State v. Wederski, 230 Or. 57, 368 P.2d 393 (1962). When a prosecutor chooses to circumvent this rule by cleverly worded arguments, he does no service to the system of justice. We agree with the trial court that the remarks did not appear to be inadvertent, but we doubt that they were sufficiently prejudicial, particularly in view of a curative instruction which the court gave the jury, for us to say the trial court went beyond the limits of its discretion in denying the motions. The prosecutor's remarks were not specifically pointed at and critical of the failure of defendant to testify as they were in Griffin and may be classed as "insignificant" as similar remarks have been in other jurisdictions. See Annotation, 24 ALR3d, infra. Further, the curative instruction was given with defense counsel's concurrence. Each such transgression must be judged against its own backdrop of facts. This is pointed out in the exhaustive annotation on the subject in 24 ALR3d 1093 (1969).

In Wederski, after relating the prosecutor's indirect reference to the defendant's failure to testify which was followed by a motion for mistrial, the court said:

"* * * The trial judge denied the motion, saying he would cure the errors in his instructions. Had he done so, the presumably harmful effect of the district attorney's remarks might have been removed and the denial of the motion for a mistrial might well have been within the permissible limits of discretion. The instructions, however, failed to caution the jury that they could not consider the presence in the courtroom of silent witnesses in aid of the state's case. Neither did the court instruct the jury that the defendant had no duty to prove or disprove anything; that his plea of not guilty denied everything; and that the jury could draw no inferences from the defendant's failure to contradict any evidence in the case. As the court failed to admonish the jury to disregard the improper argument of the district attorney, the case went to the jury with the prejudicial statements approved, so far as the jury knew, by the court's silence." 230 Or. at 60-61, 368 P.2d at 395.

The instructions in the case at bar fulfilled all of the deficiencies of the instructions mentioned by the court in Wederski. We think that such harm as there was in the remarks was removed. See also State v. Conway, 2 Or. App. 49, 51, 465 P.2d 722 (1970).

Affirmed.

NOTES

[1] ORS 132.560 provides:

"The indictment must charge but one crime, and in one form only, except that:

"(1) Where the crime may be committed by the use of different means, the indictment may allege the means in the alternative.

"(2) When there are several charges against any person or persons for the same act or transaction, instead of having several indictments, the whole may be joined in one indictment in several counts; and if two or more indictments are found in such cases, the court may order them to be consolidated."

[2] Separate trials would now be prohibited by the holding in State v. Brown, 262 Or. 442, 497 P.2d 1191 (1972).