State v. Verardo

328 P.3d 788, 263 Or. App. 452, 2014 WL 2608488, 2014 Ore. App. LEXIS 762
CourtCourt of Appeals of Oregon
DecidedJune 11, 2014
Docket104678; A148187
StatusPublished
Cited by1 cases

This text of 328 P.3d 788 (State v. Verardo) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Verardo, 328 P.3d 788, 263 Or. App. 452, 2014 WL 2608488, 2014 Ore. App. LEXIS 762 (Or. Ct. App. 2014).

Opinion

DUNCAN, J.

Defendant appeals his conviction for second-degree robbery, arguing that the trial court erred when it ruled that the state could introduce evidence of his prior convictions in order to impeach him.1 As explained below, we conclude that the court did not err; evidence of the convictions was admissible to impeach defendant as a hearsay declar-ant under OEC 609 (providing for impeachment by certain prior convictions) and OEC 806 (providing for impeachment of hearsay declarants).2 Therefore, we affirm.

Defendant was charged with robbing a Walgreens pharmacy. In its case-in-chief, the state called two detectives as witnesses and questioned them about statements that defendant had made when the detectives had interviewed him about the robbery. One detective, Lane, testified that defendant had denied ever being in the pharmacy. The other detective, Meister, testified that he and Lane had interviewed defendant and

“during the interview basically in substance [we] asked him if he was involved in the robbery of Walgreens. He said that he was not. * * * [W] e asked him specifically if he’s ever been in Walgreens and he said he has not. We actually asked him that twice and both times he said he’s never been to Walgreens.”

Defendant did not testify at trial. During his casein-chief, defendant called Lane as a witness and questioned him about the interview:

“[DEFENSE COUNSEL]: And during the course of that interview, I think we know, did you ask [defendant] if he committed the robbery of the Walgreens?
“[LANE]: I did.
“ [DEFENSE COUNSEL]: And what was his response?
[454]*454“[LANE]: No, don’t know anything about Walgreens robbery.
“ [DEFENSE COUNSEL]: Sorry?
“[LANE]: He said, T don’t know anything about the Walgreens robbery.’”

During its subsequent cross-examination of Lane, the state sought to admit evidence of defendant’s prior convictions on the theory that, because defendant had elicited evidence of his exculpatory hearsay statements from Lane, the state could introduce evidence of defendant’s prior convictions in order to impeach him pursuant to OEC 806. The state argued:

“[T]here was a question by [defense counsel] about what was said and statements offered from [defendant] in this case by [defense counsel] about when the Walgreens robbery happened, did you have anything to do with it and his response was, no I didn’t have anything to do with it. So, under our evidence code we have an opportunity under [OEC] 806 to put in the prior convictions of [defendant] because statements have been offered from [defendant].”

In support of its claim, the state cited State v. Dishman, 148 Or App 404, 939 P2d 1172 (1997), and State v. McCoy, 165 Or App 499, 998 P2d 709, rev den, 331 Or 193 (2000), in each of which we held that, because the defendant had introduced evidence of his own exculpatory hearsay statements, the state could introduce evidence of the defendant’s prior convictions to impeach him.

In response, defendant argued that evidence of his prior convictions was not admissible because the detectives’ testimony about his statements had been “elicited by [the state] during the State’s case in chief,” and “[t]hat does not open the door[.]” Defendant contended that, once the state had questioned the detectives about the statements, he “was then free *** to inquire further.” Defendant further contended that Dishman and McCoy were distinguishable because the defendants in those cases had introduced their statements in the first instance:

“[I]nboth [Dishman] and I believe [McCoy,] it was the defendant who first elicited or introduce [d] his own exculpatory [455]*455statement tending to show, if the jury believed it, that he didn’t do it. Here it was, in my opinion clearly the State on two occasions through [the prosecutor’s] direct examination of Detective Lane and Detective Meister, it was the state who elicited or introduced to use the verb which is used in [Dishman] introduced that testimony. Again, I was free to inquire.”

The trial court rejected defendant’s argument and ruled that evidence of defendant’s prior convictions was admissible. The court told defense counsel, “You’re eliciting exculpatory statements without having the defendant take the stand under oath and tell the jury that he didn’t do it. That’s the purpose in eliciting that testimony.”

Based on the court’s ruling, the state questioned Lane about defendant’s prior convictions, and Lane testified that defendant had previously pleaded guilty to second-degree theft, ORS 164.045, and possession of heroin, ORS 475.854. The state also submitted certified copies of the judgments convicting defendant of those crimes. At the conclusion of the trial, the jury found defendant guilty of the charged second-degree robbery. This appeal followed.

On appeal, defendant assigns error to the trial court’s ruling that evidence of his prior convictions was admissible, and he renews his argument that OEC 806 did not apply because he did not introduce the evidence of his out-of-court statements in the first instance, the state did. In response, the state concedes that it elicited the statements in the first instance, but argues that “once defendant utilized his own statements, OEC 806 permitted the state to introduce evidence impeaching defendant’s credibility.”

We review the trial court’s ruling for errors of law. Dishman, 148 Or App at 407 (applying standard). We begin with the relevant rules: OEC 609 and OEC 806.

OEC 609 governs the use of prior convictions to impeach witnesses. It provides, in part:

“(1) For the purposes of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime:
[456]*456“(a) Was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted; or
“(b) Involved false statement or dishonesty.”

Thus, as relevant here, a witness may be impeached by evidence of prior convictions for crimes punishable by more than one year in prison and crimes of dishonesty. Possession of heroin, a Class B felony, ORS 475.854, is punishable by more than one year in prison, and second-degree theft is a crime of dishonesty.

OEC 806 permits a party to impeach the declarants of certain out-of-court statements as if the declarants had testified at trial. It provides, in part:

“When a hearsay statement * * * has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if the declarant had testified as a witness.”

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Related

State v. Smith
455 P.3d 520 (Court of Appeals of Oregon, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
328 P.3d 788, 263 Or. App. 452, 2014 WL 2608488, 2014 Ore. App. LEXIS 762, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-verardo-orctapp-2014.