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Oregon v. Hooser

June 21, 1973

STATE OF OREGON, RESPONDENT,
v.
HAROLD LYNN VAN HOOSER, PETITIONER



On review from the Court of Appeals.

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for petitioner. On the briefs were Gary D. Babcock, Public Defender, and J. Marvin Kuhn, Deputy Public Defender, Salem.

Doyle L. Schiffman, District Attorney, Roseburg, argued the cause and filed a brief for respondent.

In Banc. Denecke, J.

Denecke

The defendant was convicted of the kidnapping and rape of a 12-year-old girl. The Court of Appeals decided error had been committed in the trial court but found it was not prejudicial and affirmed. 11 Or App 146, 501 P2d 78 (1972). We granted defendant's petition for review.

Both assignments of error charge the improper receipt of testimony by an alleged accomplice, Kirk. Kirk's testimony included the following exchange with the prosecutor:

"Q While you were both together in front of the officers, did you ever tell officers in front of the defendant here that you were both involved in this rape?

"A Yes.

"Q And kidnap of the girl?

"A Yes.

"Q Did he say anything to you as a result of that?

"A No."

Defendant moved to strike the answers as being in violation of ORS 136.540 (2).*fn1 The trial court denied the motion. The Court of Appeals found the ruling in error. The prosecutor admitted in oral argument before this court that the motion to strike should have been granted. However, he stated that the question itself was not objectionable because he expected the witness to answer that the defendant had threatened him ...


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