State v. Shelly

157 P.3d 234, 212 Or. App. 65, 2007 Ore. App. LEXIS 523

• Court: Court of Appeals of Oregon
• Decided: April 11, 2007
• Docket: CR0000746; A127028
• Status: Published

Opinions

SCHUMAN, J.

Defendant appeals from a judgment of conviction for robbery in the first degree, ORS 164.415, and burglary in the first degree, ORS 164.225. She assigns error to the trial court’s refusal to permit cross-examination of a witness for the purpose of establishing that the witness had an interest in currying favor with the prosecution and that, therefore, his testimony might lack credibility. In particular, defendant wanted to cross-examine the witness about his status at the time of trial as a probationer exposed to revocation. We agree with defendant that the court erred in not permitting that cross-examination. Accordingly, we reverse and remand for a new trial.¹

Because the jury found defendant guilty, we state the facts in the light most favorable to the state, State v. Langley, 314 Or 247, 249, 839 P2d 692 (1992), adh’d to on recons, 318 Or 28, 861 P2d 1012 (1993), but we are cognizant of the fact that the truth of the testimony on which the jury’s finding rests is the subject of this appeal.

Defendant was acquainted with a man named Hahn and knew that he kept valuable baseball cards in his apartment. She discussed that fact with her friend (and ultimate codefendant) Werner. About a month later, defendant, Werner, and another individual, Thurber, went to Hahn’s apartment. Hahn was not home, but his roommate, Lustri, was. Upon being admitted, Thurber threw Lustri to the ground, put a machete to the back of his neck, and demanded to know where Hahn kept the baseball cards. Lustri replied that he did not know where most of them were, but he revealed where one was, as well as some other valuable property. Defendant and Werner then took the card, some compact discs, a VCR, and a portable stereo from the apartment. According to Lustri, defendant also kicked him and threatened to use the machete on him. Defendant, Werner, and Thurber then left. Approximately an hour later, police found the three at the apartment of another friend, where they recovered the stolen property and arrested the three suspects.

Defendant was charged with first-degree burglary and first-degree robbery. At trial, defendant wanted to question Lustri about a criminal investigation that the police conducted regarding an event that occurred after the charged events in this case. Defendant explained to the court that evidence of the investigation, which had not led to the filing of charges, could be relevant to establish that Lustri had an interest in telling police what they wanted to hear with regard to defendant — in other words, that Lustri had lied to the police so that they would be inclined not to charge him with the subsequent crime. The trial court refused to allow the questioning on the ground that its potential to create prejudice outweighed its probative value. For the same reason, the court also refused to allow defendant to question Lustri about whether he was currently on probation and had recently violated its terms. Again, defendant’s intention, as explained to the trial court, was to demonstrate that Lustri had an interest in giving the police information, regardless of its truth, if it would allow them to prove the charges against defendant.

We conclude that the trial court erred in prohibiting defendant from cross-examining Lustri in order to show that his testimony lacked credibility because it might have been influenced by his desire to please the prosecutors. The evidence was relevant, even though it did not deal directly with the charged events.

“ ‘Matters which would otherwise be irrelevant may be offered to show the bias or interest of a witness.’ State v. Dowell, [274 Or 547, 550, 547 P2d 619 (1976)]; O’Harra v. Pundt, 210 Or 533, 543, 310 P2d 1110 (1957). To be relevant, evidence introduced to impeach a witness for bias or interest need only have a mere tendency to show the bias or interest of the witness. * * * Evidence of bias or interest relates to the credibility of the witness. It need not be relevant to another matter of consequence to the determination of the case.”

State v. Hubbard, 297 Or 789, 796, 688 P2d 1311 (1984). Evidence that a person is on probation and at risk of having that probation revoked is generally relevant to that person’s credibility when he or she testifies for the prosecution in a criminal case, except, perhaps, in extraordinary circumstances not present here (for example, if the term of probation was due to expire very shortly after the trial). In State v. Weinstein, 108 Or App 486, 487, 814 P2d 565 (1991), we agreed with the state’s concession that the trial court erred in not allowing the defendant to impeach the state’s witness by eliciting on cross-examination evidence that the witness was on probation; the evidence showed bias, because the witness had a motive to lie to avoid having his probation revoked. See also Davis v. Alaska, 415 US 308, 318, 94 S Ct 1105, 39 L Ed 2d 347 (1974) (constitutional error “of the first magnitude” to prohibit the defendant from impeaching state’s witness by showing that he was on probation and that his cooperation was motivated by fear of revocation (internal quotation marks omitted)).

Relevant evidence, of course, is not automatically admissible. Ordinarily, under OEC 403, the court has discretion to reject evidence if its probative value is substantially outweighed by the danger of unfair prejudice. However, “[t]he authority [under OEC 403] to limit impeachment evidence does not stand for the proposition that trial judge discretion justifies exclusion of an initial showing, by relevant evidence, of sufficient facts from which the bias or interest of a witness may be inferred.” Hubbard, 297 Or at 799. In other words, the court’s discretion to limit impeachment evidence that goes to interest or bias applies only to evidence that amplifies, develops, or elaborates an “initial showing.” Here, the court invoked OEC 403 to prohibit the entire line of questioning. That was error.²

The court in some circumstances may also limit the scope of cross-examination under OEC 611(2).³ This case does not present such circumstances. “The discretion of the trial judge to control the scope of cross-examination pursuant to OEC 611(2) does not allow the exclusion of evidence offered to impeach a witness for bias or interest.” Id. at 799.

Finally, we must determine whether the trial court’s error in prohibiting the evidence of bias or interest was harmless. As the Supreme Court observed in Hubbard,

“It is error for the trial judge to exclude evidence which establishes sufficient facts from which the bias or interest of a witness may be inferred. If in the context of the entire trial, the exclusion is prejudicial to the party who sought to introduce the impeachment evidence, it is reversible error. The United States Supreme Court has provided a thoughtful statement on this prejudice in a case involving cross-examination which attempted to show the bias or interest of a witness. It stated:

“ ‘It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury can’t fairly appraise them.’ Alford v. United States, 282 US 687, 692, 51 S Ct 218, 219, 75 L Ed 624, 628 (1931).

“We subscribe to the quoted statement from Alford and hold that a decision to exclude evidence relevant to bias or interest which is error, is reversible if it denies the jury an adequate opportunity to assess the credibility of a witness whose credibility is important to the outcome of the trial.”

297 Or at 800.

In this case, Lustri was the sole nondefendant witness to the crime. The only other testimony regarding the details of the incident came from Werner, whose testimony minimized his and defendant’s role. Although Werner testified that defendant was present at the robbery, he also testified that defendant may not have been aware that Thurber intended to rob Lustri before going into the house; that instead of threatening to hurt Lustri, defendant told Thurber not to hurt him; and that defendant’s only involvement in the crime was to carry out a VCR. Werner also testified that he had participated in the robbery only because he was afraid that Thurber would hurt him, defendant, and Lustri if he did not participate. The jury, then, could easily have inferred from Werner’s testimony that defendant never intended to rob Lustri and that she had carried out the VCR under duress. Lustri’s credibility was important to the outcome of the trial and the trial court’s refusal to allow defense counsel to impeach Lustri’s credibility for bias or interest was not harmless.

Reversed and remanded for new trial.

1 Defendant raises additional assignments of error that we reject without discussion.

2 We hold only that the court erred in not allowing evidence that Lustri was on probation. Admitting evidence of the facts underlying his probationary status would raise issues under OEC 608 and OEC 609, which we need not confront.

3 OEC 611(2) provides:

“Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.”