STATE OF OREGON, Rеspondent, v. DANIEL ALLEN MCLEAN, Appellant.
STATE OF OREGON
April 22, 1970
468 P. 2d 521
Argued and submitted on review March 2, affirmed April 22, 1970
Jacob B. Tanzer, Solicitor General, Salem, argued the cause for respondent. With him on the brief was George Van Hoomissen, District Attorney, Portland.
TONGUE, J.
Defendant appeals from conviction of the crime of assault and battery by means of force likely to produce great bodily injury, under
Defendant‘s conviction was affirmed by the Court of Appeals. 1 Or App 147, 459 P2d 559 (1969). We granted defendant‘s petition for review because of the serious nature of the question raised by defendant‘s
Was it error for the trial court to refuse to allow defendant to testify that he had been acquitted of the charge for which he was being held in jail at the time of the assault and, if so, was any such error prejudicial, sо as to require reversal of the conviction?
Because of the sordid nature of the offense, the evidence will be summarized as briefly as possible. The victim of the assault, who will remain unnamed, upon transfer from Rocky Butte to the Oregon State Correctional Institution shortly after the assault, was examined and found to have numerous “contusions and abrasions” on various parts of his body. He was then interviewed by a detective, who observed about 20 scars and abrasions, some not yet healed or “scabbed over“, and each about 3/8 of an inch in diameter. These were on top of his head, on his chin, right elbow, and abdominal area and on the backs of his arms and legs.
He reported to the detective that after being held as an inmate of Rocky Butte jail for six months on a charge of taking and using an automobile without the owner‘s permission he was placed in a “tank” with some 15 other inmates; that the defendant and three other men then approached him and demanded that he go to talk with them in the back of the “tank“; that he was then beaten around the fаce and arms and was forced to submit to an act of sodomy after defendant and two others “put out” lighted cigarettes on his head and other parts of his body; that the next day defendant and two others repeated the same thing three or four times and also forced him to drink out of a “butt can“, among other indignities; that he complained unsuccessfully to a guard and was then beaten again, and
The detective testified that he interviewed the victim on two separate occasions and found no serious discrepancies in his story. The detective also testified, on cross-examination, that the victim submitted to a polygraph test, which he “passed.” Some other inmates of the tank were also apparently interviewed.
The testimony offered on trial by the state consisted of the testimony by the OCI hospital technician, the detective and the victim of the assault, all to the same effect, corroborated by the testimony of one other inmate of the tank, an ex-convict, who testified that he saw defendant and the others jerk the victim off his bunk and drag him to the back of the “tank” and also saw the defendant and two others “putting out cigarettes” on his face and arms and force him to drink from the “butt can“, among other things; that the same individuals (including defendant) also hit him again the second day and “started on him again” after he tried to get out of the tank, and that defendant also forced him to do another indecent act on threat of “knocking his head off“.
The defendant, testifying on his own behalf, denied any assault or other acts of misconduct. The defense also offered the testimony of four other inmates of the “tank“, including one indicted for the same assault and an admitted friend of defendant. They all corroborated defendant‘s story that neither he, nor anyone else, had hit the complaining witness or burned him with cigarettes. None of them, however, offered any
The state impeached all four of defendant‘s witnesses (but not the defendant), by proof of the record of their previous convictions. One of defendant‘s witnesses was also impeached by a detective, who testified that the witness had been interviewed by him in the course of his investigation and had told him that defendant and three other men had, in fact, “corralled” and abused the complaining witness by hitting and threatening him and by committing sex acts.
In arriving at its verdict of “guilty“, the jury obviously chose to disbelievе defendant and his witnesses and to believe the testimony of the complaining witness, as corroborated by the one other inmate (who the jury probably found to be the only other inmate willing to tell the truth), as well as by the testimony of the investigating detective and the physical evidence of the numerous cigarette burns upon the body of the victim of the assaults.
The Trial Court‘s Refusal to Permit Testimony of Defendant‘s Acquittal of the Charge on Which He was Being Held.
When defendant was called as a witness in his own behalf he testified that at the time of the incidеnt in question he was being held in Rocky Butte jail on a charge of “taking and using” an automobile and that he was later released on his own recognizance. His attorney then asked “What was the disposition of that case?” An objection to that question was then sustained.
It is not contended that the refusal to permit the answer to this question constituted constitutional
In support of this contention defendant argues that although the state could properly show that defendant was in jail at the time of the crime, the result of this ruling was to lead the jury “to infer that the defendant had been convicted of or was charged with a crime“; that since the jury was instructed that “some of the witnesses have formerly been convicted of a crime” and could thus consider this in determining the credibility “of any such witness“, it follows, by “analogy“, that defendant “should have been allowed to show the disposition of that independent crime“, so as to remove “the false albatross of guilt thаt hung about the defendant‘s neck“.
Defendant further contends that the error in refusing to permit him to do so was prejudicial error, requiring reversal, under the following “test“, as stated in State v. Hatcher, 29 Or 309, 313, 44 P 584 (1896):
“* * * Unless the record conclusively shows that the error in the admission of incompetent evidence was not prejudicial to the party objecting, the judgment should be reversed.”
These contentions were rejected by the Court of Appeals holding that it was error for the trial judge to refuse to permit defendant to show the disposition of the prior charge, but that “оnly such error as is found to have been prejudicial to a substantial right of the defendant” will justify a reversal (citing
The Exclusion of Such Testimony as Possible Error.
First, to discuss the question whether it was error to exclude evidence of the disposition of the “taking and using” charge and the “analogy” claimed by defendant between such evidence and evidence that a defendant has committed other crimes.
It is elementary, of course, that evidence that a criminal defendant has committed other crimes is ordinarily inadmissible, subject, however, to various exceptions. State v. Brown, 231 Or 297, 300, 372 P2d 779 (1962). It must also be kept in mind that such evidence may be offered for two purposes: 1) as substantive evidence, or 2) for purposes of impeachment.
When offered as substantive evidence, an exception is recognized to the rule excluding evidence of other crimes when such evidence is relevant in establishing the particular crime charged in another criminal proceeding. State v. Oster, 232 Or 389, 395, 376 P2d 83 (1962). Thus, defendant cites Demons v. State, 17 Ga App 480, 87 SE 690 (1916), in which it was held that there was no error in receiving testimony that defendant was serving a sentence on a chain gang, when offered for the sole purpose of establishing his whereabouts at the time of a separate crime which was the subject of the charge against him in that case.
In such a case, the evidence is offered not to im-
When, however, evidence of the commission of another crime is offered not as substantive evidence, but for the purpose of impeaching the credibility of the defendant as a witness, a different problem is presented. But even in such cases, the courts are not in entire agreement even though, when offered for purposes of impeachment, the evidence must ordinarily be limited to proof of the conviction of a crime, rather than evidence of arrest or prosecution for a crime.
Thus, some courts exclude any testimony by the impeached witness by way of explanation, mitigation, or denial of guilt. Other courts, on the contrary, permit the witness to make a brief statement in explanation, mitigation or denial of guilt. Still other courts hold that it is within the discretion of the trial judge to permit or exclude such a statement. McCormick on Evidence 93, § 43 and cases cited therein. See also 166 ALR 211.
In Lucas v. Kaylor, 136 Or 541, 546, 299 P 297 (1931), this question was discussed, but not decided by this court.
“Just where to draw the line, in order to avoid both unfairness to the witness and confusion of issues, is a question which must frequently arise. The correct rule in such cases, we think, is to recognize a wide discretion in the trial judge. He observes the conduct of counsel, the reaction of the witness under examination, and the resulting effect upon the jury. In other words, he is aware as no appellate court can be of the courtroom psychology and can best determine whether particular testimony should or should not be received.”
In this case the state did not offer evidence that defendant had been convicted of any crime and no evidence was offered by the state for the purpose of impeaching defendant‘s credibility. On the contrary, at the time that defendant sought to state the disposition of the charge on which he was being held in jail, evidence had been offered not only by the state, but also by four previous defense witnesses that defendant was an inmate of Rocky Butte jail at the time of the assault of which he was charged.
Under these circumstances, and since defendant was permitted to show that the charge on which he was held was that of “taking and using” an automobile and that he was later released on his own recognizance, it may be that no error was committed in refusing to permit defendant to testify further that he was acquitted of that charge, at least if the correct rule to be applied in such cases is to leave such questions to the discrеtion of the trial court.
In any event, and while we believe that it would
The Exclusion of Such Testimony Was Not Prejudicial Error.
As previously stated, defendant contends that any error in the exclusion of such testimony requires a reversal of his conviction. The authority relied upon by defendant is the proposition that “error in the admission of incompetent evidence” requires the reversal of a conviction unless the record “conclusively shows” that such error was not prejudicial to the defendant, quoting from State v. Hatcher, 29 Or 309, 313, 44 P 584 (1896).
First, it is to be noted that the rule of Hatcher has been cited with approval by this court in more recent cases. State v. Thomson, 203 Or 1, 15, 278 P2d 142 (1954); State v. Harley, 218 Or 263, 270, 344 P2d 773 (1959); and State v. Gardner, 225 Or 376, 383, 358 P2d 557 (1961). In all of these cases the rule was applied, in accordance with its terms, to the improper admission of evidence claimed to be prejudicial, rather than to the improper exclusion of evidence.
It may be contended, with some plausibility, thаt it would be far more difficult to demonstrate (if demonstration be required) that the admission of improper evidence did not prejudice a criminal defendant, than to demonstrate that such a defendant was not prejudiced by the exclusion of some evidence that might have been admissible, as in this case. This might well depend, of course, on the nature of such evidence.
“After hearing the appeal, the court shall give judgment, without regard to the decision of questions which were in the discretion of the court below or to technical errors, defects or exceptions which do not affect the substantial rights of the parties.” (Emphasis added.)
“If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial; * * *.” (Emphasis added.)
In State v. Harley, however, this court recognized (at p 267) that under
In numerous cases this court has relied upon
In 1864, the legislature of Oregon directed this court to “give judgment, without regard to * * * tеchnical errors, defects or exceptions which do not affect the substantial rights of the parties” (1864, D. ch 23, § 246; now
In 1910 the people of Oregon, by the adoption of an amendment to the Constitution of Oregon as an initiative measure, directed that if this court shall be of the opinion “after consideration of all the matters thus submitted (on appeal), that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial” (
In the exercise of the powers thus conferred upon this court we have affirmed verdicts and judgments in a number of criminal cases in which evidence was improperly received without regard to whether the resulting error was “technical” or otherwise so unsubstantial that this court, upon a consideration of the entire record, was able to conclude that the verdict and judgment was “such as should have been rendered in the case.”5
In view of “the troubled times in which we live today,” this court has no reason to believe that the legislature or the people of Oregon now have any desire that this court should hesitate to exercise the powers conferred by these mandates. Indeed, the purpose to be served by these statutory and constitutional provisions is now of particular importance, in view of the unfortunately increasing technicalities of mod-
We are not unmindful that in this, as in all criminаl cases, our decision must not conflict with any overriding mandate by the Supreme Court of the United States. Any such concern, however, would appear to be put at rest by the decision of that court in Chapman v. California, 386 US 18, 87 S Ct 824, 17 L Ed 2d 705 (1967).
In Chapman it was held (at p 24) in an opinion by Justice Black, that when a federal constitutional right is involved, the court must be able to declare a belief that an error is harmless “beyond a reasonable doubt“, rather than to “conclusively demonstrate” that the error was harmless, as in Hatcher. The court also stated (at p 21) that:
“The application of a state harmless-error rule is, of course, a state question where it involves only errors of state procedure or state law.”
The court also said (at p 22) with regard to rules relating to harmless error, that:
“All of these rules, state or federal, serve a very useful purpose insofar as they block setting aside convictions for small errors or defects that have little, if any, likelihood of having changed the result of the trial.” (Emphasis added.)
Indeed, there has long been a federal “harmless error” statute, and one not limited to “technical errors“. Thus,
“On the hearing of any appeal or writ of certiorari in any case, the court shall give judgment after an examination of the record without regard
to errors or defects which do not affect the substantial rights of the parties.”
It was held by the Supreme Court of the United States in Berger v. United States, 295 US 78, at 82, 55 S Ct 629, 79 L Ed 1314 (1935), with reference to this statute, that:
“Evidently Congress intended by the amendment to § 269 to put an end to the too rigid application, sometimes made, of the rule that error being shown, prejudice must be presumed; and to establish the more reasonable rule that if, upon an examination of the entire record, substantial prejudicе does not appear, the error must be regarded as harmless.”
To the same effect,
“Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded.”
Thus, by statute and rule of court, the federal courts, including the Supreme Court of the United States, recognize and apply a rule of “harmless error” almost identical with that required in Oregon by statute and by constitutional provision.
This court is fully aware of its duty to continue to protect the constitutional right of all persons accused of crime to a fair trial, as well as the rule that any error in a criminal trial is presumed to be prejudicial. We are also fully aware of the grave responsibility involved in the exercise of the powers conferred upon this court by
We hold, however, in accordance with the terms and purposes of that statute and the constitutional
In our best judgment this is such a case. Although defendant and four jailmates denied that either defendant or anyone else burned the complaining witness with cigarettes, they made no attempt to explain the presence of numerous cigarette burns on his body, of which there was no dispute. Thus, the truth of the testimony of the victim of the assault was strongly corroborated by that physical evidence, as well as by the testimony of another inmate and that of the detective.
In addition, we are convinced, as was the Court of Appeals, that there was little, if any, likelihood that under the facts and circumstances of this case it would have made any difference in the verdict of the jury if defendant had been permitted to testify not only that he was being held in jail on a charge of “taking and using” an automobile and was later released on his own recognizance (as he was permitted to do), but also that he was later acquitted of that charge.
Indeed, defendant contends on this appeal no more than that from the fact that he was in Rocky Butte jail at the time of the crime charged the jury could
In addition, although the state offered copies of the record of the previous conviction of defendant‘s four corroborating witnesses, no such record of any conviction of defendant was offered by the state. Also, the instruction given by the court was that “some of the witnesses have formerly been convicted of a crime” and that the jury could consider that fact in determining the credibility of “any such witnesses.”
Thus, it was far more likely that the jury would infer that defendant had not been previously convicted of a crime than the contrary. This is not to say that the erroneous exclusion of evidence offered by a criminal defendant may not require reversal when offered to rebut an unfavorable inference from evidence offered by the state when such an inference was the natural and probable inference to be drawn from such evidеnce. When, however, the sole purpose of the erroneously excluded evidence was to rebut some possible unfavorable inference from some testimony offered by the state, as in this case, such a case, depending on its facts, may well be one in which this court should exercise the power conferred upon it to affirm the verdict and judgment despite error in the exclusion of such evidence.
Finally, the crime of “taking and using” an auto-
For all of these reasons, we hold that any error in the exclusion of defendant‘s testimony that he was acquitted of the charge of “taking and using” an automobile was not prejudicial to defendant.
By a second assignment of error defendant contends that the trial court improperly limited the disclosure to dеfendant of the state‘s investigation reports to portions relating to statements of witnesses called by the state and did not disclose portions of such reports relating to interviews with other witnesses, including a witness called by the defendant who was impeached by the use of such a statement.
For the reasons stated by the Court of Appeals (1 Or App 147, 459 P2d 559), there was no error in limiting the disclosure to defendant‘s attorney of those portions of the state‘s investigation report relating to the statements of witnesses called by the state, under the rule previously approved by this court in State v. Foster, 242 Or 101, 103, 407 P2d 901 (1965).
Affirmed.
MCALLISTER, J., concurring in the result.
I agree with thе Court of Appeals that the trial court erred in refusing to let defendant testify that he had been acquitted of the charge on which he was being held in Rocky Butte Jail. State v. Leahy, 243 Iowa 959, 54 NW2d 447 (1952); Nolan v. State, 213
I concur only in the result of the majority opinion.
DENECKE, J., specially concurring.
I concur in the reasoning of the majority opinion; however, I would dismiss the proceeding upon the ground that we should not have granted the petition for review.
The principal ground for the petition for review was the contention that the Court of Appeals erred in holding that the trial court‘s error was not prejudiсial. The facts involved in the alleged error were unusual and it is doubtful whether an issue similar to this will arise again. Under these circumstances I am of the opinion, regardless of whether we were of the opinion that the Court of Appeals erred, the question is not one of such substance that we should have granted the petition for review. Even if we are of the opinion error has been committed, usually this alone should not be grounds for granting review; we should grant review only if the error raises an issue of importance beyond the immediatе case. See note to Rule 47-A, Supreme Court Rules of Procedure.