flight instruction in Oregon

1978Following the Supreme Court’s decision in McCormick, we held in State v. Nulph, 31 Or App 1155 , 572 P2d 642 (1977), that while the giving of a flight instruction was error because the evidence of flight was negligible, the error was harmless because the instruction was "so equivocal and insubstantial that the risk of prejudice was nil.” 31 Or App at 1155 .

1978Following the Supreme Court’s decision in McCormick, we held in State v. Nulph, 31 Or App 1155 , 572 P2d 642 (1977), that while the giving of a flight instruction was error because the evidence of flight was negligible, the error was harmless because the instruction was "so equivocal and insubstantial that the risk of prejudice was nil.” 31 Or App at 1155 .

1977See State v. Wilson, 172 Or. 373 , 142 P.2d 680 (1943), in which defendant leaving the scene had said that he could be found at home and was in fact found there; State v. Bonner, 241 Or. 404 , 406 P.2d 160 (1965), in which the only evidence was one statement that defendant "beat it out of the room." Moreover, the flight instruction as stated in Bonner , the most recent decision on the point, is as concerned with deterring the jury from making too much of the evidence as with drawing it to their attention.

1977See State v. Wilson, 172 Or. 373 , 142 P.2d 680 (1943), in which defendant leaving the scene had said that he could be found at home and was in fact found there; State v. Bonner, 241 Or. 404 , 406 P.2d 160 (1965), in which the only evidence was one statement that defendant "beat it out of the room." Moreover, the flight instruction as stated in Bonner , the most recent decision on the point, is as concerned with deterring the jury from making too much of the evidence as with drawing it to their attention.

1978Subsequently in State v. Wright, 31 Or App 1345 , 572 P2d 667 (1977), we applied by analogy the rule announced by this court in McCormick to an instruction concerning testimony that defendant had concealed evidence of the crime charged.

1978Subsequently in State v. Wright, 31 Or App 1345 , 572 P2d 667 (1977), we applied by analogy the rule announced by this court in McCormick to an instruction concerning testimony that defendant had concealed evidence of the crime charged.

1978Without approving of the instruction, we note the evidence is sufficient to meet defendant’s objections. *418 In State v. Kiser, 31 Or App 29, 32-33 , 569 P2d 681 (1977), rev den 281 Or 1 (1978), we addressed a similar objection to a flight instruction on sufficiency grounds: «* * * This ground is refuted by the evidence since we find that there was sufficient evidence to support a flight instruction, putting aside for the moment the issue on which McCormick was decided.” As to the additional inferences which could be drawn from the evidence of flight, defendant did not move for additional ins

1978Without approving of the instruction, we note the evidence is sufficient to meet defendant’s objections. *418 In State v. Kiser, 31 Or App 29, 32-33 , 569 P2d 681 (1977), rev den 281 Or 1 (1978), we addressed a similar objection to a flight instruction on sufficiency grounds: «* * * This ground is refuted by the evidence since we find that there was sufficient evidence to support a flight instruction, putting aside for the moment the issue on which McCormick was decided.” As to the additional inferences which could be drawn from the evidence of flight, defendant did not move for additional ins

1977State v. Bonner, 241 Or 404 , 506 P2d 160 (1965); State v. Gibbons, 1 Or App 374 , 462 P2d 680 (1969).

1977State v. Bonner, 241 Or 404 , 506 P2d 160 (1965); State v. Gibbons, 1 Or App 374 , 462 P2d 680 (1969).

1977In that opinion Justice Holman went on to state 256 Or. at page 10 , 470 P.2d at page 158 : "In most situations, the relevance of the evidence is so obvious that an instruction should not be given.

1977In that opinion Justice Holman went on to state 256 Or. at page 10 , 470 P.2d at page 158 : "In most situations, the relevance of the evidence is so obvious that an instruction should not be given.

1977As we noted in McCormick , one problem with the flight instruction is that by pointing to one inference that may be drawn from evidence of flight, the trial court "lends credence to the arguable inference and suggests to the jury it must be made.” 28 Or App at 826 .

1977Assuming that a flight instruction may be appropriate where the significance of evidence of flight is too obscure for lay jurors to understand, as State v. McCormick, 280 Or 417 , 571 P2d 499 (1977), seems to hold, it was error to give such an instruction where, as here, there was negligible evidence, if any, to support it.

1977Assuming that a flight instruction may be appropriate where the significance of evidence of flight is too obscure for lay jurors to understand, as State v. McCormick, 280 Or 417 , 571 P2d 499 (1977), seems to hold, it was error to give such an instruction where, as here, there was negligible evidence, if any, to support it.