In this consolidated appeal, defendant appeals from judgments convicting her in one case of felon in possession of a firearm and revoking her probation in another case based, in part, on the firearm conviction. The sole issue on appeal is whether the trial court erred in giving what is known as the “witness-false-in-part” jury instruction. ORS 10.095(3); UCrJI 1029.
The pertinent facts are undisputed. Around midnight on January 8, 2010, Deputy Shaw and another officer responded to a report of a domestic disturbance. Defendant’s mother, who had placed the 9-1-1 call, led the deputies to defendant’s bedroom. Shaw listened at the door and could hear loud music and a man and woman arguing. He knocked on the door for about 10 minutes before defendant opened it and camе out into the hall, wearing only a t-shirt and underwear. She closed the door immediately behind her.
Shaw asked defendant if her boyfriend, Brett, who Shaw knew was on probation, was in the room. Defendant denied that he was there. Saying that she needed to put on some clothes, she then stepped into a bathroom and closed the door. When she emerged a few minutes later, Shaw told her that he had heard her talking with a man in the bedroom, that he knew Brett was there, and that Brett needed to come out. Defendant again denied that Brett was there, saying that she had been talking to her dog. Defendant then quickly opened the bedroom door, saying, “See, he’s not in here,” and “he must have gone out the window.” Shaw knew that no one had gone out the window, however, because hе was aware that another officer had arrived on the scene and was watching the bedroom window from outside. Shaw looked into the room and spotted Brett, who was lying on the floor up against the bed. Shaw ordered Brett to stand and took him into custody on a probation violation detainer.
The officers brought Brett and defendant outside to their patrol cars. As they were placing Brett in one of the cars, the other deputy told Shaw that he had seen a “rifle round [lying] on the bed.” When Shaw asked defendant about the rifle round and if there
The felon-in-possession charge was tried to a jury. At trial, Shaw testified to the above-recounted facts. Defendant also testified. On direct examination, defendant related that she and Brett were in the bedroom “just kind of like yelling at each other over really loud music” when the police came to the door. She admitted that she was on probation at the time of the offense, and, although a condition of her probation was that she not drink alcohol, she had had a relapse and was inebriated that night. When asked if she had been “trying to allow there to be some time for [Brett] to leave” when she stepped out of the bedroom in response to the officer’s knocking, she replied, “No.” She also testified that she had not seen аny bullets or a gun.
Then, on cross-examination, the following exchange took place:
“Q. Okay. Why did you tell the officers that [Brett] wasn’t in your room?
“A. Because I — because I didn’t want him to go to jail.
“Q. Go to jail for what?
“A. Drinking.
“Q. And did it seem reasonable to you to say that it was the dog, that you were talking to the dog?
“A. No.
“Q. And when you opened the door and said, ‘See, there’s no one there [,]’ did you expect to see him hiding? Did you expect that he would have gone out the windоw? Why did you say that?
“A. I don’t know, I just figured that — I didn’t know there was a cop outside the window, I — you know? I just figured that they would be like, ‘Okay. He’s not there [,] ’ and then leave, I guess is what I was thinking.
“Q. So, you figured enough time had passed that he would have gone out the window?
“A. No, I — no, I knew he didn’t go out the window.
“Q. So, then you knew he would be hiding?
“A. Yeah.”
The state asked the court to give the witness-false-in-part jury instruction. Defense counsel objected, asserting that the instruction typically applied to “liеs witnesses are— are caught in on the stand” and that was not the case here. The prosecutor agreed with that proposition — that is, that the instruction applied only to statements “on the stand”— but continued:
“But, the incident to which I’m referring is the confusion and the misstatements regarding whether he had gone out the window, no he was hiding and there was inconsistencies which I think are partial lies thаt happened there. You know, ‘Did you give him an opportunity to go out the window?’ ‘No, I wasn’t.’ But then she opens the door and says, ‘See there’s no one there [,]’ thereby implying that he would have had an opportunity to go out of the window.
“And then she changed it to, ‘Well, no, I didn’t think he’d gone out the window, then I must have thought he was hiding.’ And I think that string of question and answers is sufficient to support a witness false in part.”
Defеnse counsel disagreed that there was any “clear contradiction that you could call a falsehood in [defendant’s] testimony today” and that what the prosecutor “is talking about is a contradiction between on-stand testimony and things that were said before.”
The trial court reasoned that, although the instruction refers to “testimony,” the explanatory comment to the instruction indicated “that it wouldn’t be an abuse of discretion to
On appeal, defendant argues that, contrary to the state’s theory at trial, “[n]o part of [defendant’s] testimony on cross-examination contradicted any part of her testimony on direct nor was it internally inconsistent.” Moreover, defendant contends, the trial court’s reasoning for giving the instruction was flawed because inconsistencies between defendant’s trial testimony and her statements to the police at the scene do not demonstrate that she “‘consciously testified falsely.’” (Quoting Ireland,
The state responds that the instruction was justified based on either theory — that is, based on internal inconsistencies in defendant’s trial testimony or because her trial testimony was inconsistent with her statements to the police at the scene. Regarding the latter, the state contends thаt the case law does not support defendant’s asserted distinction “that only instances of perjury at trial authorize giving the witness-false-in-part instruction.” The state also suggests that, in any event, any error in giving the instruction was harmless.
As explained below, we agree with defendant. We also conclude that the error was not harmless. Therefore, we reverse and remand defendant’s judgment оf conviction for felon in possession of a firearm, as well as the resulting judgment of probation violation.
The statutory instructions set forth in ORS 10.095 are to be given “on all proper occasions.” A “proper occasion” for giving the instruction stated in ORS 10.095(3) — “[t]hat a witness false in one part of the testimony of the witness is to be distrusted in others” — is when there is sufficient evidence from which the jury could decide “that at least one witness consciously testified falsely.” Ireland,
We begin with the reasoning on which the trial court apparently relied — that the instruction was proper due to inconsistencies between defendant’s trial testimony and her statements to the police at the scene. As an initial matter, we agree with the trial court (and the state) that, as a general matter, a witness’s unsworn statements that contradict the witness’s testimony can provide the basis for giving the instruction; in other words, it need not be shown that the witness was inconsistent within the witness’s trial testimony itself — as defense counsel put it at trial, that the witness be “caught” in a lie on the stand.
Next, in Long, the trial court gаve the instruction over the defendant’s objection. The only possible basis for the instruction was a conflict between the defendant’s and another witness’s testimony at trial.
Finally, in State v. Weaver,
Those cases instruct that inconsistencies between a witness’s trial testimony and (1) his or her deposition testimony, (2) another witness’s trial testimony, or (3) the witness’s prior, unsworn statements to investigating officiаls can support the giving of a witness-false-in-part instruction if the jury could find from those inconsistencies that the witness willfully testified falsely. The mere fact that the testimony of a witness is contradicted, however, is not conclusive as to its falsity. Long,
Thus, we agree with the trial court that inconsistencies between a defendant’s trial testimony and the defendant’s earlier statements to the police can provide evidence that the defendant has willfully testified falsely and, thus, support the giving of the instruction. However, that is not the case here. Although defendant told the police something different about her behavior the night of the offense than she testified to at trial, in her trial testimony, she admitted that she had lied to the police earlier. In response to questions on cross-examination, defendant explained that she had lied about Brett being in the bedroom beсause she did not want him to get into trouble for drinking in violation of his probation. Thus, the identified inconsistency does not tend to show that there was anything about defendant’s testimony that was false — let alone consciously false — when measured against her earlier statements. Instead, defendant’s testimony in this case demonstrates quite clearly that her prior statements were false, not that her testimony was false. In other words, there is nothing about defendant’s statements to the police that contradicts her testimony at trial that she had lied in making those statements. In short, defendant’s statements at the scene do not provide a basis from which the jury could find that defendant consciously testified falsely, and the court abused its discretion in giving the instruction on that basis.
We turn to the alternative reasoning advanced by the state — that inconsistencies within defendant’s trial testimony justified the court’s decision to give the instruction. See Outdoor Media Dimensions Inc. v. State of Oregon,
The state points out that defendant testified, “I don’t know,” when asked whether, when she let the officers see into the bedroom, she expected to see Brett hiding or expected that he would have gone out the window, then later said she “knew [Brett] didn’t go out the window,” and agreed that she “knew he would be hiding.” We disagree that that constitutes evidence from which a jury could find that defendant “consciously testified falsely.” Ireland,
Defendant’s testimony was not internally inconsistent. Her statement, “I don’t know,” was in response to a compound query that posed three questions, two of which were contradictory. That exchange proceeded as follows:
“Q. And when you opened the door and said, ‘See, there’s no one there [,]’ did you expect to see him hiding? Did you expect that he would have gone out the window? Why did you say that?
“A. I don’t know, I just figured that — I didn’t know there was a cop outside the window, I — you know? I just figured that they would be like, ‘Okay. He’s not there [,] ’ and then leave, I guess is what I was thinking.
“Q. So, yоu figured enough time had passed that he would have gone out the window?
“A. No, I — no, I knew he didn’t go out the window.
“Q. So, then you knew he would be hiding?
“A. Yeah.”
Thus, defendant’s testimony that she “d[i]dn’t know” reflects that she had not thought about what she expected Brett to have done; she hoped only that the officers would not see him. Her subsequent response indicating that she did not think enough time had passed for Brett to have gone out the window and therefore she “knew” that he was hiding dоes not contradict her testimony that she had not thought about what she expected when she opened the door. Accordingly, we decline to affirm the trial court’s ruling on the alternative basis advanced by the state.
We also must consider whether the trial court’s error in giving the instruction was harmless. Article VII (Amended), section 3, of the Oregon Constitution requires us to affirm the trial court’s judgment evеn if error was committed, if that error was harmless. State v. Affeld,
The state suggests that the error here was harmless because, given defendant’s admission at trial that she had lied to the police at the scene, the jury “undoubtedly was on notice that defendant’s credibility was suspect,” even without the instruction. Moreover, the state contends, the uncontested evidence shows that the rifle that formed the basis for the felon-in-possession charge was in plain view in the bedroom — thus, defendant’s testimony that she was unaware of it was “patently unbelievable.”
We disagree. The erroneously given instruction bears on the credit to bе given to defendant’s testimony under oath, which is qualitatively different from whether she was prepared to lie to the police at the scene. The credibility of that testimony was essential to defendant’s success at trial: her theory was that the gun belonged to Brett, that she had not seen it before, and that he had brought it into her bedroom without her knowledge. Moreover, as defendant points
“I want you to assume that the defendant was lying on that stand. And there’s going to be a jury instruction that you’re going to get that talks about that and it’s called ‘witness false in part.’ And whаt it says is ‘A witness who lies in one part of his or her testimony is likely to lie in other parts of [the witness’s] testimony and you may distrust [the witness’s] entire testimony.’”
Given those circumstances, we cannot say that the court’s error in giving the instruction was unlikely to have affected the jury’s verdict.
Finally, as noted, defendant’s conviction for felon in possession of a firearm also formed the basis, in part, for the court’s revocation of defendant’s probation.
Reversed and remanded.
Notes
ORS 10.095(3) provides, in part, that the jury is “to be instructed by the court on all proper occasions” “[t]hat a witness false in one part of the testimony of the witness is to be distrusted in others.”
The version of Uniform Criminal Jury Instruction 1029 in effect at the time of defendant’s trial provided:
“A witness who lies under oath in some part of his or her testimony is likely to lie in other parts of his or her testimony. Therefore, if you find that a witness has lied in some part of his or her testimony, then you may distrust the rest of that witness’s testimony.
“Sometimes witnesses who are not lying may give incorrect testimony. They may forget matters or may contradict themselves. Also, different witnesses may observe or remember an event differently.
“You have the sole responsibility to determine what testimony, or portions of testimony, you will or will not rely on in reaching your verdict.”
The instruction has since been revised, effective December 2012.
At the time, the comment to Uniform Criminal Jury Instruction 1029 provided, as relevant:
“ORS 10.095(3); Ireland v. Mitchell,226 Or 286 , 293,359 P2d 894 (1961); see State v. Weaver,139 Or App 207 ,911 P2d 969 (1996) (court did not abuse discretion by refusing to give instruction when there were only minor inconsistencies between the witness’s testimony and her previous statements).”
At the time Ireland was decided, the instruction was codified at former ORS 17.250(3); that statute was renumbered in 1981 as ORS 10.095. The text has remained essentially the same.
It is unclear whether the rifle was in plain view, because photographs that were admitted at trial appear to show it partially protruding from underneath a bed.
The other basis was defendant’s admission that she had violated her probation by consuming alcohol.