Lead Opinion
Defendant was charged with robbery in the first degree. One Newton was also charged in connection with the same incident, and the two were tried separately. Newton had been found guilty but had not been sentenced at the time of defendant’s trial. He refused to testify during the state’s case in chief and during the presentation of defendant’s evidence, claiming his Fifth Amendment right to not incriminate himself. After defendant had testified, Newton agreed to testify in rebuttal of defendant’s testimony. The circuit court allowed Newton to testify but limited the scope of defendant’s cross-examination of Newton. Defendant was convicted of the lesser included offense of robbery in the second degree, and the Court of Appeals affirmed. State v. Affeld,
Defendant objected to allowing Newton to testify on rebuttal, claiming that defendant could not adequately cross-examine Newton. Prior to Newton’s testifying before the jury, an offer of proof was made to show what Newton’s testimony would be. During the offer of proof, defendant, in a simulated cross-examination, attempted to ask Newton about the encounter with the victim. The trial court stated that the question elicited testimony outside the scope of direct examination which had been
On appeal, the Court of Appeals, sitting in banc, affirmed the conviction over the dissent of four members of the court. Both the majority and dissenting opinions addressed the proper interpretation of OEC 611(2) in attempting to determine whether questioning Newton about the encounter would exceed the permissible scope of cross-examination.
Normally, an offer of proof is required to preserve error when a trial court excludes testimony. The purpose of this rule is to assure that appellate courts are able to determine whether it was error to exclude the evidence and whether any error was likely to have affected the result of the case. State v. Jenkins,
Luther follows a line of cases, State v. Davidson, 252 Or 617, 622-23,
If an offer of proof could only be made by means of a statement by a party or the party’s attorney, the rationale for the rule would be valid. However, an offer of proof may be made by means of a question and answer out of the presence of the jury. Defendant was aware that an offer of proof could be made in such a fashion because the court’s restriction on cross-examination was imposed in such an offer of proof, not during testimony before the jury.
Article VII (Amended), section 3, of the Oregon Constitution requires this court to affirm judgments of lower courts if, in the opinion of this court, the judgment achieved the correct result, even if error was committed. That constitutional provision makes it incumbent on lower courts and the parties appearing in lower courts to ensure that the record reviewed by this court is adequate for this court to make a reasoned decision. A record can be adequate in situations in which the scope of testimony is restricted by the trial court only if an offer of proof is made. There is no reason not to require an offer of proof on cross-examination.
The only situations in which an offer of proof is not required are those situations in which an offer of proof is impossible because of a trial court’s refusal to allow the offer of proof to be made. An offer of proof was possible in this situation, and none was made. The holding of Luther, and the line of cases it follows, that an offer of proof need not be made on cross-examination, is expressly overruled.
Defendant also did not properly raise the issue of the limitation on cross-examination in the trial court. Defendant’s only assignment of error was that the trial court denied defendant’s motion for a mistrial. On arguing the motion, defendant did not argue that the proposed cross-examination was within the scope of the direct examination but only argued that defendant’s right to confront Newton would be violated if Newton were allowed to testify in a limited fashion when the cross-examination would be limited. It was to show that there would be restrictions on cross-examination, not to show that the restrictions were improper,
Defendant’s only assignment of error on appeal was that the trial court erred in denying defendant’s motion for a mistrial. The substance of the motion was not that it was error to restrict the cross-examination, but that it was error to allow Newton to testify at all when the cross-examination would be restricted. Given the evidence and arguments presented to it, the trial court did not abuse its discretion by denying the motion for a new trial.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
Notes
Although defendant has argued the constitutional issues relating to the right to confront witnesses at every stage of this proceeding, the failure to make an offer of proof prevents this court from addressing that issue. While in certain circumstances this court will consider constitutional issues that are not properly raised and preserved, we choose not to do so under the circumstances of this case because the issue was collateral to the main proceedings.
The jury found defendant guilty of second degree robbery. If the jury had believed Newton’s testimony, it would have found defendant guilty of first degree robbery. Given that the jury did not believe Newton, allowing his testimony did not amount to an abuse of discretion.
Dissenting Opinion
dissenting.
I do not object to the principle that a party generally should make an offer of proof as a basis for appealing a trial court’s ruling limiting cross-examination, but to apply the principle so as to sustain the present conviction leaves this defendant in an unusual predicament.
I shall not set out the details in this dissenting opinion, but there seems to be little doubt that the trial court improperly limited defense counsel’s cross-examination of a prosecution witness contrary to OEC 611(2). Defense counsel did not attempt to place on record what the questions and answers would have been if the intended cross-examination had been allowed. The court now holds that this failure precluded defendant’s appeal on that issue.
Ordinarily, if a defendant’s appointed counsel commits a significant procedural mistake that materially prejudices her client’s defense, the defendant can expect relief in post-conviction proceedings on grounds of inadequate representation by counsel. ORS 138.530. A good argument could be made that this issue should be open for examination on a defendant’s direct appeal so as to save a separate proceeding in the circuit court if no new record is needed, but in any event, the law provides that remedy.
In the present case, however, this court for the first time announces a requirement of an offer of proof when a trial court excludes questions on cross-examination, and it expressly overrules its prior contrary decisions. It would be ironic if the state, having won affirmance of the conviction on the ground that defendant failed to preserve the error assigned on appeal, thereafter were to argue that defendant was not denied the adequate assistance of counsel because a competent lawyer had no reason to know that an offer of proof was needed. Defense counsel may, of course, have made other mistakes entitling defendant to post-conviction relief, but there should be no need to pursue that question.
I believe that the majority might well express its view on the proper procedure, but it should not insist on that procedure as a reason not to correct the error in this defendant’s trial. I therefore dissent.