*1 July August Argued affirmed denied reconsideration September 18, petition for allowed October review v. MICHAEL OF OREGON, Respondent, STATE BURR, (No. 43051) Appellant. DOUGLAS
Dаwn D. Bennett, Certified Law Student, Salem, argued the cause for her on respondent. With the brief Attorney and Michael General, W. Johnson, were Lee General, Salem. Gillette, Solicitor Judge, and Fort Before Schwab, Chief Judges. Thornton,
SCHWAB, C.J. jury, Upon defendant was con- trial without a degree, arson in victed of the first OBS 164.325. On appeal assignments he makes four of error. does One The other three a not warrant discussion. address single may credibility issue: is the witness who impeached by be evidence that in a proceeding by admitted if an act committed which, meaning would crime within the adult, constitute 45.600, OBS which states: may impeached by party “A witness be the * * * against may whom he called, but he impeached by wrongful particular
be evidence except may by acts, tion or that it shown be his examina- by judgment, record of that he has been convicted of a crime.” perpetration
An admission of an act is not equivalent adjudication of an that the act constitu ted a “a[n] crime. Further, statute, OBS 419.543, adjudication by juvenile court that a is within child its jurisdiction is not a conviction of crime or offense.” The basic statute, intent of which is furthered (3), per OBS 419.543, OBS 419.567 which reads in part: tinent appearing “No information record of ** * [the proceeding] relating case * * * ** history
the child’s be disclosed * * [juvenile] without the cоnsent of the of argument the sake Furthermore, assuming ORS 45.600 was broad susceptible interpreta tion we would seeks, going against defendant if so judicial thinking thrust of current we were to interpret it. majority dissenting opinions See Mаrtinson, Marshall v. P2d 1312 268 Or and authorities cited therein. that Defendant 415 US argues L S Ct Ed 2d holds that 347 (1974), violate interpretation give we statutes would the above his Sixth Amendment confront witnesses do not so read Davis but, rather, in against him. We it as terpret holding solely confidentiality record way offender’s must give for bias of an “effective cross-examination adverse witness.” ‹ 39 L Ed 2d 356. (Emphasis supplied.)
In the at bar, two state’s witnesses were *3 juveniles, of whom had a each admitted to series ‹ The disagree dissent does not 415 US that impeachment 94 S Ct L Ed 2d to involved bias, apparently party establish but would hold that whenever a impeach young by showing juvenile desires to adjudication a witness a delinquency, necessarily attеmpt this includes an disregards long-recognized to show bias. This distinction be impeachment by relatively showing bias, tween credibility, on a direct attack impeachment by showing prior conviction, versus relatively credibility. сollateral attack on This distinction was recognized by defense counsel at trial when he stated to his desire juvenile witness was limited latter: attacking veracity witness, Honor, “We are Your bringing just crime; not we are out that that’s a we are trying guy talking to find what kind of we out are to here.” However, position adopted by we concede that the dis- supported by language sent can be some of the broad in Davis. persuaded But we are holding to limit our to decision the more narrow practice impeachment of Davis because otherwise the by prior practice subject convictions, a to considerable contem- porary debate, present statutory basis, would be elevated from its 45.600,subject change by ORS legislature, to an immutable constitutional basis. defend- The court proceedings. burglaries on contend nor does he trial showing at ant made no concerning sought that inquiries appeal 1n see, “bias,” admissions related juveniles’ use the attempt more than an anything or supra, convictions previous admissions as the equivalent juvеniles’ attacking for of crimes the purpose as the equivalent the admissions treating credibility by 45.600. ORS of convictions under Affirmed.
FORT, J., dissenting. offender for the anonymity The concept his has belief because society’s its rоots in by measured acts should be juvenile’s immaturity, than that ac- standards different and less rigorous has extended corded to adults. the state Because hand for the benefit of protective arm and guiding how- society imрly, —and —does are less unlawful than that his unlawful acts ever, is a similar an view my act committed adult. Nor does it that he is when cross-examined imply exempt witness, whether or adult proceed- from ing, what would otherwise cross- proper examination matters were he an adult, including relevant to his credibility. witness
Here, 17-year-old was, by own testimony, with the defendant within the build present ing the time the crime was committed. He charged under there сircumstances which well might support inference the trier of fact he was *4 himself in engaged the commission Al burglary. though the defendant here was tried arson, also at the time, under the state’s theory, in engaged burglary with witness.
the commission ORS 164.215. purpose here to show that
Thе effort forty-odd burglaries witness had committed adjudicated delinquent reason and had been necessarily attempt bias. included an to show thereof, strong That witness had a self-interest which might, significantly of fact, mind of the triеr credibility affect seems clear me on these facts. (hornbook § McCormick, 78-80, series, Evidence 1972), length meaning 2d ed of bias discusses at respect scope with of cross-examination in con- impeachment. nection with The author states: “Bias. recognizes slanting
“The law
effect
testimony
feelings
human
or
the emotions
parties
witness toward the
or
the self-interest
Partiality,
the witness in
case.
the outcome
reasonably
relationships
or
acts,
or motives
likely
produce
may
proved
it,
be
credibility.
too
partiality
The kinds and sources of
are
infinitely
varied to be here
reviewed, but
few
* * *
of the common instances
be mentioned.
may also
shown
Self-interest
when the witness testifies for the state and it is
pending against
shown that an indictment is
him,
or
accomplice
ishe
or co-indictee in the
* crime on trial.
See also: State v. Moore et al, 180
Or
P2d
507, 176
631, 177 P2d 413, cert
denied
US
68 Ct S
(1947).
Indeed, state here, to the cross- proffered examination, did not contend the evidence did tend to simply show bias. Eather, it took the position juvenile, since that, he was a his acts in сom
499 as a adjudication and' mitting burglaries the not and were thus did constitute crime not delinquent 45.600. ‹ under admissible ORS 1105, 1112, 94 S Ct Alaska, 308, In 415 US a con- court, reversing the in 39 L Ed 2d (1974), viction, said: interest in the protecting
“The State’s policy record can- offender’s confidentiality juvenile not right of so a constitutional yielding vital require as for bias the effective cross-examination could adverse witness. The have protected State from in juvenile adjudicаtion Green of his exposure him from circumstances by refraining using these ‹ Independently question constitutional confronta tion and cross-examination which Davis v. US 1105, 1112, (1974), based, L 94 S Ct 39 Ed 2d meaning of the word “crime” under ORS 45.600 and its relation shiр impeachment juveniles under that statute warrants That examination. statute was in enacted 1862 and remains un changed. Deady, Oregon 1845-64, General Laws of Code on Civil Procedure, pp ch 354-55.No code existed at that time (3), upon majority nor did ORS 419.543or ORS which 419.567 part any relies, clear, in in other form. It is therefore as that originally enacted the acts which here resulted in the witness’ adjudication delinquent as a would doubtless have in his resultеd conviction of a “crime” time statute was enacted. Noth ing statutory history requires legis its in the conclusion that enacting any way in lature the Juvenile Code intended to limit granted a witness under ORS 45.600 eliminating juveniles. offenses committed Legislative Additionally, the Interim Committee on Judicial Report, II, Administration Part Juvenile Law 46§ purpose (3) part, discusses the of what is now ORS 419.467 follows: (3) designed “Subsection of section 46 is to assure maxi- mum provides disclosurе of facts It court. brought information out in the not be used proceeding as evidence elsewhere in civil or criminal * * *” against (Emphasis supplied.) the child. Here, being proceed- the excluded evidencе was not used ain ing brought against However, the child. I since believe this case is governed by Davis, necessary I conclude it is to decide this question. consistent cannot, out its the State case; require petitionеr confrontation,
with vindicating the State’s the full burden to bear secrecy records. in the interest [*] said: Davis, In court also Supreme accept Court’s the Alaska cannot “We per conclusion the cross-еxamination that develop adequate to mitted defense counsel was jury. properly counsel of bias While issue *6 permitted was biased, was whether he to ask Green to counsel argue from which was unablе a record to might why or other been biased Green have expected degree impartiality of lack that of wise limited cross- of the a witness trial. the basis permitted On might jury well examination was engaged thought was have that defense counsel speculative on the cred a ibility line of attack and baseless apparently as or, witness
of an
blameless
objection
prior
prosecutor’s
put
a ‘rehash’
it,
сlear to
cross-examination.
these facts it seems
On
inquiry
us
effective,
that make
such
defense
to
permitted
expose to
counsel
to
should have been
jury
jurors,
the facts from which
as the sole
credibility,
appropriately
triers of fact and
could
reliability
relating
draw
inferences
witness. Petitioner was thus denied
‘
con
effective
which “would be
cross-examination
magnitude
no
stitutional error of the first
showing
prejudiсe would cure
amount of
want
1245,
it.” Brookhart v.
86 Ct.
Janis,
384 U.S.
S.
Illinois,
Accordingly, dissent. respеctfully › This pursuant case, waiver, was tried the court with jury. Ordinarily case, record, here, out a in such a where as argument admissibility shows the court in of the evidence in course of on question substantially juve advised of the witness, prejudicial might nile record the existence of error questioned. Here, however, well be the record shows that the court expressly ordered that such It evidence be stricken. also shows the following stаtement the court: testimony comment, “THE COURT: I would is no there regard record, interrupting and in this is—this your argument point would out to the defendant that —I provides clearly only permissible statute rather that the use dispositional hеarings record is in in Juvenile sentencing object Court or in in adult court. The State didn’t firmly limitedly but I believe that is the law. The State did object. pro- That is the law and I shall consider in this ceeding.” foregoing From the it seems clear the court in its deliberation accorded, law, weight the facts as a matter no attempted impeachment of the witness.