328 P.3d 788
Or. Ct. App.2014Background
- Defendant was charged with robbery (convicted of second-degree robbery) after the state presented detectives’ testimony about defendant’s denials during a custodial interview.
- Defendant did not testify at trial but elicited the detectives’ testimony in his case-in-chief to present his exculpatory out-of-court statements (that he was not in Walgreens and not involved).
- After defendant elicited those statements, the state sought to impeach the declarant (defendant) by introducing his prior convictions (second-degree theft and possession of heroin) under OEC 609 and OEC 806.
- Trial court admitted the prior-conviction evidence; the jury convicted defendant of second-degree robbery.
- On appeal, defendant argued OEC 806 should not apply because the state, not defendant, first elicited the statements during its case-in-chief; the state conceded it first elicited them but maintained that defendant’s later use of the statements triggered OEC 806.
- The court affirmed, holding that when defendant introduced the statements as exculpatory hearsay, OEC 806 permitted impeachment as if he had testified, so prior convictions were admissible under OEC 609.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior convictions could be used to impeach defendant after detectives testified about his statements | Once defendant utilized his own statements as exculpatory hearsay, OEC 806 allowed the state to impeach the declarant with prior convictions under OEC 609 | OEC 806 should not apply because the state first elicited the statements during its case-in-chief, so defendant did not ‘introduce’ them and thus should not be subject to impeachment | Held: OEC 806 applies when defendant elicits his out-of-court statements for their truth; defendant’s use of the statements as exculpatory hearsay triggered impeachment as if he had testified, so prior convictions admissible under OEC 609. |
Key Cases Cited
- State v. Dishman, 148 Or. App. 404 (Or. Ct. App.) (when defendant elicits his own exculpatory out-of-court statements, OEC 806 permits impeachment as if defendant had testified)
- State v. McCoy, 165 Or. App. 499 (Or. Ct. App.) (reaffirming that introduction of defendant’s out-of-court statements permits impeachment by prior convictions under OEC 806/609)