State v. Strickland, 335 P.3d 867

Defendant charged with DUII; prior DUII convictions can elevate to felony under ORS 813.011 if two priors within 10 years.
Defendant filed a pretrial affidavit challenging the constitutional validity of a 2004 DUII conviction, claiming he pleaded guilty only to secure release and was not advised about proceeding without counsel.
The state sought to call defendant for cross-examination on the affidavit; defendant invoked his Fifth Amendment privilege and refused.
The state moved to strike the affidavit for lack of opportunity to cross-examine; the trial court denied the motion and excluded the prior conviction under State v. Probst.
State appealed only the trial court’s denial of the state’s request to call defendant for cross-examination; this court reviewed legal error and reversed and remanded.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether submitting an affidavit waives the Fifth Amendment privilege and permits state cross-examination	Affidavit waived privilege as to its contents; state entitled to cross-examine for inconsistencies	Affidavit did not require waiver or force defendant to testify; he may refuse invocation at hearing	Waiver applies: defendant waived privilege regarding affidavit contents; state should have been allowed to cross-examine
Whether the state preserved its challenge without an explicit offer of proof	State argued its objections and stated it sought to question inconsistencies, which adequately informed the court of scope	Defendant argued lack of formal offer of proof preserves trial court ruling	Preserved: prosecutor’s statements and context sufficed to preserve error despite no formal offer of proof
Whether denial of cross-examination was harmless error	State: exclusion prevented addressing inconsistencies and developing record; not harmless	Defendant: evidence was cumulative and no prejudice to state	Not harmless: denial of cross-examination likely affected outcome; requires remand

State v. Probst, 339 Or 612 (analysis of burden to challenge prior conviction)
State v. Cox, 337 Or 477 (cross-examination significance; waiver implications)
State v. Cole, 323 Or 30 (harmless error standard)
State v. Hovies, 320 Or 414 (denial of right to cross-examine generally not harmless)
State v. Rogers, 330 Or 282 (trial court discretion over evidence presentation)
State v. Mende, 304 Or 18 (affidavit at hearing can constitute waiver of privilege)