*1 5, 15, 1983,petition rehearing Argued and October November submitted affirmed for January 10,1984 denied OREGON, STATE OF Review, Respondent v. LUTHER,
ORVILLE JOHN on Review Petitioner (TC C7-04-31252, 29693) CA SC
672 P2d Tanzer, Jacob Portland, argued the cause filed the petition for for petitioner review on review. him on With petition Wolf, Griffith, Bittner, for review was & Abbott Roberts, Connall, Portland, Portland. Des filed the brief in the Court of Appeals petitioner for on review. Attorney Deputy
Stephen General, Salem, Peifer, F. argued respondent for on review. and filed the brief the cause Frohnmayer, Attorney Dave him on the brief were With Gary, General, Salem. General, and William F. Solicitor CAMPBELL, J. *2 opinion.
Peterson, J., and filed C. concurred an CAMPBELL, J.
The defendant’s for degree conviction second man- slaughter was affirmed by Appeals. Court The defen- petitioned review, dant this court for assigning as his sole point relied on for reversal:
“If subjected hypnosis a witness in a criminal case has been subject regarding testimony, evidence, matter her such cross-examination, by during hypno- as sis is admissible.” of what occurred granted
We
petition
defendant’s
for review to
decide
suggested,1
the issue
but
find
now
that we must first
decide whether the
protected
defendant
pre-
his record and
alleged assignment
served the
error
the trial court. We
find
Therefore,
the defendant did not.
we affirm the
result
reached
both the trial court and the Court of
Luther,
State v.
Appeals.2
(1983).
63 Or App
On April
there was an altercation between
result,
defendant and his nephew, Mark Luther. As a
nephew
a gunshot
received
wound to his head and the defen-
*3
dant
by
grand
was indicted
jury
the
for assault
in the first
degree.
later,
Several months
nephew died,
after the
the first
1
defendant,
support
position,
State
The
v.
his
relies
ORS 136.675 and
Jorgensen,
People
Shirley,
App 1,
(1971);
18,
v.
8 Or
The defendant and had rooms City on in the second floor of Gena Luther’s house age Luther, 78, defendant, Portland. Gena was mother age grandmother Luther, Luther, and the of Mark Orville age Although were across the hall from each 21. the rooms directly opposite. map other, the not A drawn to doors were that the hall was seven scale and received evidence shows center of the three inches wide and that from the feet doorway nephew’s doorway to the center of the defendant’s eight was feet ten inches. question, upstairs night in Luther went
On the Gena asleep, get room, a set of the where he was Mark’s keys.3 into car The defendant followed Gena defendant’s Mark’s room where wrestling match occurred between the physical defendant testified that after the first two men. The explicit vulgar encounter, threaten, in lan- give he heard Mark guage, scream, “You him he heard Gena to kill and that me or knife down.” The defendant went that knife” “Put the nephew got gun. The was shot to his room and a hand gun doorway to his own room. hand in or near or trial claimed self-defense accident.4 defendant on police night incident, Gena Luther told On the shooting and his had seen the and that defendant she doorways nephew respective standing when were their Later she his arm and fired the shot. defendant lowered grand jury charge, but this before the the assault testified testimony reported not and the record does not disclose died, she testified at that time. After Mark what she said grand jury on her she was them that and told before second keys because that he was disturbed about car The defendant testified keys daughter previously to the defendant’s had taken the Mark and defendant’s car, permission girlfriend’s car and wrecked the without *4 “And, my was I room and he trial testified: went [Mark] On the defendant my just completely hysterical, in the screaming, I and went closet and went to room my I to his revolver and went back over the out took out service and took suitcase and gun thing I got fight off. know a next the went And we in a scuffle and there. The room. complete trigger gun total shock my I was—in a on the of the and didn’t have hand gun the ever went off.” and —that way Shortly shooting. did back down the stairs and not see attorney’s and told a thereafter she called the district office deputy that she did not tell the truth when she testified before grand jury.5 the second the time of the indictment the second
Between grand jury case, the trial of had and state Gena Luther hypnotized. descriptions
At the trial Gena’s as to the location of nephew the defendant and his deceased at the time of the shooting question question, varied somewhat from but she always kept doorway. point each close to own his At one she “They just said: were both outside their doors.” At another they “half-ways” doorways. time she said were in their Gena gun away also testified that the three was feet from Mark explained when the shot was fired. She her answer: “Well, I yesterday took the measurements even as late as hall, and, my measurements, eight it was feet across standing there and from Mark where was where Orville and — standing reaching was Orville out and [defendant] slumped.” where Mark There is evidence in the record that when Mark hospital shooting, powder arrived at the after the he had a fifty-cent piece burn the size a on his head. The state’s produce witness from the crime lab testified that order to a powder weapon burn, had to be fired within three feet of opinion the deceased. The same witness testified that in his doorway step Mark was in his or or two inside his own room opinion when the shot was fired. This location of bullet and bone was based fragments, pattern of blood spots, point ceiling part spent and a in the where a of the bullet may have hit. foregoing testimony,
Because of the the defendant question concerning hypnosis. wanted to Gena Luther lawyer unsuccessfully attempted Defendant’s what to ask her about happened hypnosis: while she was under ** * appearance After that “[DEFENDANT’S COUNSEL]: Jury, before the [Deputy Attorney] Grand did District have you put hypnosis? trial, “Well, gotten At Luther Gena testified: that had emotional and that * * * all, my it wanted it corrected. After son and I didn’t tell the truth.”
6 ** object *.” to this DISTRICT
“[DEPUTY ATTORNEY]: During record, on in and a conference chambers prove trying to court that he was told the counsel defendant’s investigator, Bidder, Gena conditioned Robert that state’s questions by asking suggestive hypnosis during the Luther nephew. and the deceased the defendant the locations of about argued hypnosis caused the that the defendant for the Counsel story. change to her witness ruled: court trial “Well, course, my ruling that, you would be of would be inquire subjected entitled to as to she whether had been to hypnosis Jury appearance after her at the Grand and to inquire as her changed to whether that recollection of what go. occurred. think that’s about as far as we can I—I would unwilling permit any testimony go be to to introduce or to ** * anything hypnosis. about she said or did under All your’re story to is entitled show the difference between the she later, story going told before and the she tells not but am permit presented jury regarding evidence to be before during hypno- what occurred time under she was —while sis.” permitted Although Gena Luther later to answer was placed hypno- question similar about whether she was ruling by assigned sis, the the trial was as error above court appeal Appeals: of the defendant’s to the Court counsel allowing “The in not defense trial court erred regarding Luther said or did evidence what Gena introduce type questions were asked hypnosis what of while under and of her.” rephrased assignment has now been of error
This point for reversal relied the defendant’s has become this court. position not did is that the defendant
The state’s
making
necessary
preserve
alleged
offer of
error
appellate
proof,
proof.
argues
of
that without an offer
It
determining
way
the exclusion
whether
“no
courts have
Jenkins,
prejudicial
State v.
to defendant.”
the evidence was
(1967).
280, 281,
The defendant does not
a
that as
proposition
necessary
proof by
law,
of
it is
to make an offer of
putting
testimony
objectionable by
in the record the
ruled
appellate
upon
trial court so
court will have a basis
which to rule. The defendant contends that the trial court
alleged
ruling during
made the
erroneous
his cross-examina
exception
invoking
Luther,
tion of Gena
that an
offer
proof
necessary
exception
is not
on cross-examination. The
is
Davidson,
617,
stated
State v.
622-623,
252 Or
This of the defendant’s is premise question based that the to Gena Luther was disagree on the defendant’s cross-examination. We with the following defendant. We find that the demonstrates that at the time the defendant wanted to examine Gena Luther to hypnosis, she was the defendant’s witness on direct examination. jury was selected for the trial of the defendant’s Wednesday,
case on December 1979. The state’s first Thursday, witness was called at 9:40 a.m. December 6th. The state’s third witness was Gena Luther. She was called during sometime the middle of the same afternoon. After her re-direct examina- examination, cross-examination and direct following hypnosis, tion, reference to without occurred: honor, we no other Your will have COUNSEL]:6 “[DEFENSE
questions Luther. I would ask her to remain of Mrs. subpoena for our case.
if* * * [*] [*] asked to Could Mrs. Luther be “[DEFENSE COUNSEL]: few remain in attendance for a minutes? Suppose.
“THE COURT: later, going If I to call her am “[DEFENSE COUNSEL]: better we do it now. prefer I would much DISTRICT “[DEPUTY ATTORNEY]:
that, Your Honor.” description by defen- a The above is followed to he trial court in chambers as what dant’s counsel to the hypnotic tape Luther’s session.7 on the video of Gena observed questioned by the state’s the fact that she was He refers to investigator. pitch to the court was that Defense counsel’s testimony trying, through Luther, to of Gena state was nephew enough fit the close and his move the defendant by: physical followed This statement was evidence. this, say may like But if would “[DEFENSE COUNSEL]: up opens lot collateral give thought lot because it it a substantially going if it’s to be of delays the not issues and trial —is, client, pursue If if my going to it. it I’m not value *7 petition argued in review this court. counsel who the for Not videotape in hypnotic accordance Luther recorded on session of Gena was The jury: videotape submitted to the “[DEFENSE The was not with ORS 136.675. Honor, tape speak simply say, itself. I for that the does I would Your COUNSEL]: part of the file of request a Exhibit and a it marked as Defense become would that be jury to for the record.” the the but this case—not for submission provides:
ORS 136.675 any proceeding prosecution in the State of in criminal or defense “If either defendant, including testimony any person, who Oregon of the to offer the intends any subjected hypnosis, form the exertion of or other of to mesmerism has been power suggestion or in a state of power which is intended to results the of will or subject relating trance, partial matter sleep to the of or unconsciouness or entire testimony, performed by any person, a the use proposed it be condition of shall the videotape testimony procedure or be recorded either on the entire of such recording videotape unabridged recording or mechanical device. The mechanical party parties in with ORS or accordance to the other shall be made available 135.805 to 135.990.” So, value, pursue I think will want it. what I it is then to posture. would like to do is leave case this Mrs. Luther — go pursue home if if I I could and decide want to that and it, permits put me do then I would on the Court to her lay impeachment go stand and a for and forward. foundation [*] * * * Well, the time this is done can be “[DEFENSE COUNSEL]:
anytime. just my right putting I don’t want waive her back laying on the stand and a foundation. already
“THE COURT: You haven’t. We have stated on the record that she would available be and D.A.’s office to have her available.” jury
The was the day. Friday, excused for On 7th, December five additional witnesses were called and part examined of the state’s case chief. Gena Luther was not recalled. Monday, 10th,
On December state its case rested in chief approximately at 10:00 a.m. The defendant then moved for a judgment acquittal all of renewed his previous motions. The trial court denied all the defendant’s present motions. The defendant then started to his case to the jury. early 10th, During afternoon hours December defendant called Gena Luther as his fifth witness: We’llcall Mrs. Luther.”
“[DEFENSE COUNSEL]: matters, testimony After considerable on other defendant asked Gena Luther the question opened which subject that is critical petition to this for review: * * * appearance After that before
“[DEFENSE COUNSEL]: Jury, [Deputy Attorney] put you Grand did District have hypnosis? under object DISTRICT this. We “[DEPUTY ATTORNEY]: gone through
have this. just opening We it haven’t. “[DEFENSE COUNSEL]: ¡Jí s]: >> Up following discussion was held in chambers. * * * unwilling
“THE or to COURT: would be to introduce permit any testimony anything ingo about she said or did hypnosis.” leading questions? How about “[DEFENSE COUNSEL]: *8 I so. “THE COURT: don’t think <is}c * * * * May I make on this out of a record COUNSEL]: “[DEFENSE any can do at time. presence jury? We that Surely.
“THE COURT: really I make a record do want to COUNSEL]: “[DEFENSE I think that it’s critical. on that. * * * <<* * ruling I the Court’s understand COUNSEL]: “[DEFENSE jury comes back I make a time before the
and will record some questions.” these following proceedings were “(Whereupon the jury.) Open Court before the resumed may proceed with the commensurate “THE COURT: You ruling. Court’s you, Thank Your Honor. COUNSEL]:
“[DEFENSE Ma’am, you appeared before after COUNSEL]: “[DEFENSE time, you Jury hypnotized? were the last the Grand LUTHER: Yes. “MRS. DISTRICT At [DEPUTY COUNSEL]: “[DEFENSE request?
ATTORNEY’S] LUTHER: Yes. “MRS. When that? COUNSEL]:
“[DEFENSE recollect date.” “MRS. LUTHER: don’t hypnotized right. All And who COUNSEL]: “[DEFENSE you? you recall? Do hyp- Well, does the man that LUTHER: either —the “MRS. * * * deputy district judge— I mean notizing [the —the forget the name was there and attorney] was there. Bidders me, sorry. I’m hypnotized that of the doctor Ma’am, Bidder ask Okay, did Mr. COUNSEL]: “[DEFENSE day? you questions that just recall who asked I don’t LUTHER: That “MRS. questions. * *
a* * * honor, may this Your DISTRICT ATTORNEY]: “[DEPUTY excused? be witness [Mrs. Luther] Yes. COUNSEL]: “[DEFENSE you “THE COURT: assume willnot needher further. may.”
You reading quoted It is clear to us from the above portions transcript of the the trial counsel for the *9 defendant considered Gena Luther aas defendant’s witness questions on direct examination when he asked the concern- ing hypnosis. hypnosis during There was no mention of Gena testimony by during Luther’s either the state or defendant Then, state’s case. “remain after defense counsel asked that she subpoena played case,” for our he with the idea questioning her the same afternoon. He concluded that he idea, wanted to think about the but at the same time reserved right “put lay to her on the stand and a foundation for impeachment.” making This is not inconsistent with Gena Luther the defendant’s witness. This case was tried before the adoption Oregon impeachment of the Rules of Evidence. The party’s governed by of a own witness at the time of trial was former ORS 45.590.8 through
The defendant then waited the balance of day Friday part Monday the state’s case in chief all and a morning asking without to recall Gena Luther. After the state Monday morning, judg- rested on ment of again the defendant moved for a acquittal previous and renewed all of his motions— attempt during with no to recall Gena Luther the state’s Monday case. The defendant then went into the middle of afternoon when he called Gena Luther as his fifth witness. No attempt calling was made to define her status such as her as an “adverse” or “hostile” witness.9 receiving ruling
Even after the adverse from the trial separate court, the defendant in three in statements effect provides: Former ORS 45.590 party producing impeach by “The a witness is not allowed to his credit character, may evidence, may evidence of bad but he contradict him other also show that he has made at other times statements inconsistent with his present testimony, provided However, party in ORS 45.610. when a calls as a party assignor, agent, employe witness either an adverse or the officer or of an party, adverse he shall not be deemed to have vouched for the credit of that may impeach witness and he the credit of that in witness the same manner as produced by party.” the case of a witness an adverse imply We do not the defendant should have called Luther as an Gena “adverse” or “hostile” witness or that it would have made difference in our simply decision. We mention this as one indication of the overall intention of defendant’s counsel. presence he a record of the
said that wanted make out of jury. he make This an indication that knew he had to an is proof preserve Finally, alleged error. offer of defendant making Gena Luther to be excused without
allowed any objection.
We find that Gena Luther the defendant’s own ask on direct examination when he desired to her witness hypnosis. proof, being questions no about the There offer nothing have to review. we concurring.
PETERSON,
J.,C.
analysis
majority,
in the
and result of the
but
concur
express my
proposi-
separately
disagreement
with a
write
appeared
previous
improvidently
law
has
tion of
which
majority opinion.
opinions, and
is referred to in the
which
majority opinion
page
is
On
7 of the
reference made
*10
proposi
claimed to stand for the
to a line
cases which are
proof
required
objection
that
is
when an
is
tion
no offer
my quick
upon
research, the
cross-examination.1 In
sustained
Arthur
rule that I have found is
v.
earliest reference
(1935).
court,
Parish,
There,
582, 591, 47P2d 682
150Or
judgment
affirming
setting
a
aside a
lower court’s order
necessary
proof
granting
stated,
is
as
new trial
“No offer
opinion
contains
matter
on cross-examination.”
arose
authority
support
proposition.
no citation of
analysis
footnote will
of the cases cited
Careful
most,
cases,
if
all of
the statement is
reveal that in
not
dispensing
good
not,
exists for
dictum. Dictum or
no
reason
proof
requirement
in such a
an offer of
be made
with the
adequate
great
record on
The need
for an
circumstance.
is
question
appeal
arises
direct examination or
whether the
knowing
of the
Without
what
answer
cross-examination.
Shepler Weyerhaeuser
v.
proposition
which
reference to this
include
1 Cases
make
Davidson,
617,
477, 510,
(1977),
Company;
v.
State
252 Or
279