State v. GilbertState v. Gilbert
- Reporters:
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- Before:
- Linde
The issue is raised by a brief episode in defendant’s trial for burglary and rape. Defendant called as a witness a Mr. Brewer, who had been defendant’s employer during part of the period of the alleged crimes. In introducing this witness, defendant’s counsel inquired if it was the case that he had been convicted of “something to do with drugs.” The prosecutor successfully objected to the question, and the direct examination turned to other matters.
The prosecutor’s cross-examination began as follows:
Q Mr. Brewer, have you ever been convicted of a crime?
A Yes, I have.
MR. LONERGAN: I will object to that.
THE COURT: Objection overruled.
MR. LONERGAN: He stopped me from asking.
THE COURT: Objection overruled, and you know the law as to who is entitled to bring this out.
MR. LONERGAN: I disagree with that intermediate case.
The witness responded that about half a year earlier he had been convicted of “selling drugs or something.” The cross-examination then turned to the substance of Brewer’s testimony.
The “intermediate case” to which defendant’s counsel referred was presumably State v. Miller, 1 Or App *312 460, 460 P2d 874 (1969), review denied (Or 1970). On appeal in the present case, the majority of the Court of Appeals reaffirmed its ruling in Miller that the party calling a witness (in that case, the defendant himself) may not introduce his prior criminal convictions. Chief Judge Schwab, dissenting, would have overruled Miller, 30 Or App 297, 301-303, 567 P2d 1030 (1977).
The precise question has not been decided by this court. The correctness of the interpretation given
The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided inORS 45.610. However, when a party calls as a witness either an adverse party or the assignor, agent, officer or employe of an adverse party, he shall not be deemed to have vouched for the credit of that witness and he may impeach the credit of that witness in the same manner as in the case of a witness produced by an adverse party.
It is apparent on the face of the section that it deals with efforts that a party producing a witness might thereafter make to “impeach his credit,”
i.e.,
to cast doubt upon his testimony. To “impeach,” with respect to testimony, has been defined as meaning to “dispute, disparage, deny, or contradict.” Black’s Law Dictionary 886 (4th ed 1951),
quoted in State v. Van Hooser,
11 Or App 146, 152 note 2, 501 P2d 78 (1972),
affirmed,
266 Or 19, 511 P2d 359 (1973). That
Of course, defendant in this case was not seeking to dispute, disparage, or deny Brewer’s testimony or induce the jury to disbelieve it. To the contrary, he wanted the jury to credit what Brewer said, and to do so after having Brewer introduced to them for who he was, without the “surprise” revelation, on cross-examination, that this witness presented to them without disclosure by defendant turns out “really” to be a sometime narcotics offender. Such an objective is not to impeach one’s own witness. It is difficult to perceive any prejudice to the opposing party merely because it is deprived of the opportunity to produce the same revelation which it would not allow on direct examination, and
In short,
It remains to be examined whether the trial judge’s ruling requires reversal of defendant’s conviction. It is difficult to see how defendant was prejudiced by the ruling in this case. The witness Brewer was called only to testify that in late 1975 defendant worked nights in his restaurant, that defendant had been off work on the night when one of the crimes occurred, and that he looked the same then as at the time of the trial. Both the direct examination and cross-examination were brief, and after eliciting Brewer’s admission of his prior conviction, the prosecutor did not pursue the matter nor make any particular effort to question Brewer’s testimony. The closing arguments of counsel were not transcribed, and there is no claim that the prosecutor made any further reference to Brewer’s *315 testimony or to his credibility. On this record, we hold that the ruling to which defendant objects was harmless error.
Defendant also assigned as error the exclusion of evidence of police harassment of defendant, which was offered to show that the police had reason to plant defendant’s fingerprint at the scene of the crime, and also the exclusion of testimony by black witnesses that they were often misidentified by white persons. On examination of the record we conclude that the trial court’s rulings on defendant’s offers of proof did not exceed the court’s discretion.
Affirmed.
Notes
Smith v. Durant, 271 Or 643, 534 P2d 955 (1975); Marshall v. Martinson, 268 Or 46, 518 P2d 1312 (1974). See a/soLacy, Oregon Evidence Law in the Sixties: Problems, Patterns, and Projections, 49 Or L Rev 188, 196-198 (1970). Revision of this area of the law is receiving legislative attention. Bills were introduced dining the last two legislative sessions, see HB 2280, 58th Or Legis Ass’y (1975); HB 2726, 59th Or Legis Ass’y (1977), and another proposal is presently being prepared by an advisory committee to the Law Improvement Committee.
A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth is bad or that his moral character is such as to render him unworthy of belief; but he may not be impeached by *314 evidence of particular wrongful acts, except that it may be shown by his examination or by the record of the judgment, that he has been convicted of a crime.