Opinion
No. 16-827
Argued January 20, 1975
Affirmed February 10, 1975 Reconsideration denied March 19, 1975 Petition for review denied April 15, 1975
Appeal from Circuit Court, Tillamook County.
THOMAS E. EDISON, Judge.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Janet A. Metcalf, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Lee Johnson, Attorney General, and W. Michael Gillette, Solicitor General, Salem.
Before SCHWAB, Chief Judge, and LANGTRY and THORNTON, Judges.
AFFIRMED.
Defendant was convicted after a jury trial of murdering Theodore Bochanyin in Tillamook while defendant and a confederate were committing or attempting to commit a burglary of the victim's restaurant. ORS 163.115(1) (c).
ORS 163.115(1)(c) provides:
"(1) Except as provided in ORS 163.125, criminal homicide constitutes murder when:
"* * * * *
"(c) It is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit arson in the first degree, burglary in the first degree, escape in the first degree, kidnapping in the first degree, rape in the first degree, robbery in any degree or sodomy in the first degree and in the course of and in furtherance of the crime he is committing or attempting to commit, or the immediate flight therefrom, he, or another participant if there be any, causes the death of a person other than one of the participants."
The sole issue involved in this appeal is whether the trial judge erred in allowing the state to reopen its case after having rested and after defendant had taken the stand and testified, in order to secure a redetermination by the court if certain incriminating statements made by defendant were voluntary and could be used for purposes of impeachment.
The murder occurred in the early hours of June 19, 1973. Later the same day defendant was apprehended. After he had been duly advised of his rights defendant told the police that he and a confederate got drunk and broke into the restaurant looking for money and various things; that the victim arrived around 5 a.m. and defendant and his confederate hid in a back room; that when the victim came into the back room they jumped and stabbed him. Defendant admitted stabbing the deceased a number of times. The men then left through a window located on the west side of the building and went to the confederate's Tillamook apartment. They divided $34 at the latter's apartment and defendant left, hitchhiking to Lee's Camp, which is located on the Wilson River highway some 25 miles east of Tillamook; that defendant took his bloody clothes and placed them in a duffel bag underneath the bridge across the Wilson River at the camp.
Prior to trial defendant's counsel moved to suppress as involuntary "any written or oral confession or statement which may have been made by Defendant." Three weeks before trial the court held an in camera hearing. At that hearing the state introduced a tape recording of defendant's confession given on June 19, 1973. The state also introduced evidence as to other incriminating statements made by defendant to Tillamook Police Chief Callister on June 20 and 25, 1973. This testimony was that Chief Callister talked to defendant on those dates; that the officer gave defendant the Miranda advice; that the defendant understood the warnings; and that the defendant wished to talk to Chief Callister. However, the district attorney did not inquire as to the content of the conversations, their length or the circumstances of the interrogations.
Miranda v. Arizona, 384 U.S. 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966).
At the conclusion of the hearing the court held that the defendant's statements were voluntary and denied defendant's motion to suppress them.
At the trial, during the presentation of the state's case, Chief Callister took the stand. The June 19 taped confession was played for the jury. However, when Chief Callister mentioned the June 20 conversation the defendant objected. After extended discussion in chambers, the court ruled that "* * * it's difficult, if not probably impossible, for a court * * * to decide whether a statement was voluntarily made unless it hears the statement in its entirety. On that ground, I'm going to rule that these things [the June 20 and 25 statements] are inadmissible * * *." After putting the remainder of its case in evidence the state rested. The defendant put forward the defense of insanity.
When he took the stand in his own defense, he admitted his involvement in the homicide but asserted that at the time of the killing he was legally insane. The state then sought to impeach the defendant through the use of prior inconsistent statements made by defendant to Chief Callister on June 20 and 25. Defense counsel objected.
The trial court, then, in an in camera hearing, allowed the state to reopen the question of the voluntariness of the June 20 and 25 statements. After Chief Callister testified as to the content and circumstances of the two conversations, the court held that the defendant's statements were voluntary and could be used to impeach the defendant.
The main thrust of the Public Defender's argument for reversal of defendant's conviction is this: Where, as here, the court had already ruled that the statements made by defendant to the police were involuntary and therefore inadmissible, and defendant thereafter took the stand in reliance on this ruling, the state should be estopped from requesting the court to reopen, reexamine and redetermine the issue of the voluntariness of those same statements; and that the action of the court in redetermining this issue and allowing these statements to be used for impeachment constituted an abuse of discretion.
The state contends that the action of the trial court was authorized by ORS 17.215, and well within the bounds of the court's discretion. For the reasons which follow we conclude that the trial court did not err.
ORS 17.215 provides:
"The order of proof shall be regulated by the sound discretion of the court. Ordinarily, the party beginning the case shall exhaust his evidence before the other begins."
Under ORS 17.215 the trial court has the discretionary authority in a criminal case to allow under appropriate circumstances a party to reopen his case. State v. Eppers, 138 Or. 340, 3 P.2d 989, 6 P.2d 1086 (1932); State v. Brawley, 4 Or. App. 229, 476 P.2d 942 (1970), Sup Ct review denied (1971).
In State v. Cole, 252 Or. 146, 159, 448 P.2d 523 (1968), the court said:
"The order of proof and leave to reopen is within the sound discretion of the trial court and will not be disturbed on appeal except for abuse. * * *"
We are satisfied that the action of the trial judge, in allowing the state to reopen in order to secure a redetermination by the court of the voluntariness of the challenged statements and their admissibility for impeachment purposes under the facts involved here, was not an abuse of discretion. Defendant does not contend that he was denied a full and fair opportunity to rebut the new evidence.
In view of the trial court's subsequent redetermination that the challenged statements were voluntary, defendant's reliance upon the rule of inadmissibility announced by our Supreme Court in State v. Goodwin, 207 Or. 642, 298 P.2d 1024 (1956), and State v. Brewton, 247 Or. 241, 245, 422 P.2d 581, cert denied 387 U.S. 943 (1967), and followed by this court in State v. Haas, 13 Or. App. 368, 510 P.2d 852, aff'd 267 Or. 489, 517 P.2d 671 (1973), cert allowed (October 15, 1974), is misplaced. This rule has no application here. Cf., Harris v. New York, 401 U.S. 222, 91 S Ct 643, 28 L Ed 2d 1 (1971).
As to defendant's argument that the state should be estopped to reopen, a defendant in a criminal proceeding has no vested right in any neglect or omission of the prosecuting attorney. State v. Klein, 195 Wn. 338, 80 P.2d 825 (1938). Courts in other jurisdictions have taken the same view in similar situations. See, Rayburn v. State, 188 So.2d 374 (Fla App 1966); State v. Cota, 99 Ariz. 237, 408 P.2d 27, cert denied 383 U.S. 929, 86 S Ct 937, 15 L Ed 2d 848 (1965); People v. Richardson, 192 Cal.App.2d 166, 13 Cal Rptr 321 (1961); State v. Caro, 55 N.M. 176, 228 P.2d 957 (1951).
Affirmed.