State v. Washington

585 P.2d 24, 36 Or. App. 547, 1978 Ore. App. LEXIS 1961
CourtCourt of Appeals of Oregon
DecidedOctober 16, 1978
DocketNo. C77-05-07402, CA 9520
StatusPublished
Cited by9 cases

This text of 585 P.2d 24 (State v. Washington) 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. Washington, 585 P.2d 24, 36 Or. App. 547, 1978 Ore. App. LEXIS 1961 (Or. Ct. App. 1978).

Opinions

TANZER, J.

This is an appeal from a criminal conviction of one count of criminal activity in drugs by possession of heroin and a second count of harassment by kicking a narcotics officer. There is an array of assignments of error and we review those which are dispositional.

The defendant was arrested following the search pursuant to a warrant of the home which he shared with a woman. Small quantities of heroin and sugar were found in two places in the home.

I. $5,000 AND THE PICTURE

Defendant first assigns as error admission over objection of evidence that he was in possession of over $5,000 in currency and of a photograph of Debra Gill, the woman with whom he lived, which portrayed her in possession of currency. Defendant argues that the only relevance is to show that a black man with a lot of money must be engaged in illegal activity. To the contrary, taken together with evidence that the defendant had been unemployed for three months, that Debra Gill was receiving public assistance, and that in the home there were blenders, a container with milk sugar and packages of balloons, all of which are commonly used for the preparation and packaging of heroin, as well as a phonograph record jacket with scraping marks which, in the custom of the trade, are characteristic of repeated use for cutting heroin, defendant’s possession of a large quantity of money is a circumstance from which the jury might reasonably infer that he was in possession of the heroin powder found in the home because he was selling heroin.

This differs from a similar inference which was disallowed in State v. Manrique, 271 Or 201, 531 P2d 239 (1975), which concerned admissibility of other sales of heroin to prove the same with which defendant was charged. There other sales were deemed inadmissible because they were remote from the charge and [550]*550prejudicial. "Prejudicial” as used in Manrique apparently means excessively relevant to jurors. Here, however, we do not deal with other sales at other times as in Manrique. Rather, we deal with evidence indicating a contemporaneous reason for defendant’s possession of heroin at the time charged. As such, it was relevant, albeit at the edge of relevance, and it was therefore admissible.

A disclaimer is appropriate. Somewhere between clearly relevant and clearly irrelevant circumstances are those circumstances the relevance of which undeniably exists, but is not weighty. There is no objective test for the right or wrong of admissibility rulings for circumstances which imply relevant inferences but do not imply them strongly. Rather, we implicitly acknowledge that admissibility rulings require a sensitive exercise of discretion by the trial court and, unless we as an appellate court can say with conviction that the trial court’s judgment call was wrong, we refrain from substituting our judgment in such rulings.

This practice of appellate restraint is appropriate for at least two reasons. First, the trial judge has a better sense of the atmosphere of the trial. Second, the drastic remedy of reversal is the only means by which to impose our will. Reversal is warranted where we are confident that our sense of discretion is better, but not where we would merely have ruled differently had we presided at trial.

II. PRIOR CONVICTIONS

The more difficult issue is presented by the handling of evidence of defendant’s prior convictions for attempted criminal activity in drugs and criminal drug promotion. On voir dire, without objection, defense counsel asked the prospective jurors about their attitudes regarding the existence of defendant’s prior convictions.1 Defendant testified. Upon the state’s [551]*551preliminary objection, defense counsel was prevented from asking the defendant about his prior convictions on direct examination. On cross-examination, copies of the judgments of conviction offered by the state were admitted into evidence. Upon re-direct examination, defense counsel asked defendant what drugs were involved in the prior convictions. The state’s objection was sustained. In an offer of proof, defendant showed that one conviction related to amphetamines and that the other was for one marijuana "joint”; in other words, neither of them related to heroin.

Until recently, the rules in this area were clear and capable of certain application. Evidence of a witness’ prior convictions of crime was regarded as impeaching evidence available to the proponent of the witness only under exceptional circumstances. ORS 45.590. Once the name of the crime and the date and place of the conviction were established, no further details of the conviction were admissible. State v. Johnson, 277 Or 45, 48, 559 P2d 496 (1977).

State v. Gilbert, 282 Or 309, 577 P2d 939 (1978), changed all that. Gilbert held that the proponent of a witness may disclose prior convictions on direct examination "as part of his background.” Such evidence is not barred on direct examination by ORS 45.590 or 45.6002 because, the court held, the evidence of prior [552]*552convictions is offered to make the witness credible, not noncredible. Exactly what it is about prior convictions that tends to enhance a witness’ credibility is not explained. Rather, although tactical advantage has never hitherto been a basis for relevancy determinations, the Gilbert opinion speaks of the tactical benefit of defusing anticipated impeachment by early disclosure. Which rationale predominates, relevancy or tactic, is unclear from the opinion.

This case presents the first opportunity for this court to apply these new principles, and the task is not altogether simple. First, the sustaining of the state’s preliminary motion to bar defendant from disclosing his prior convictions on direct examination was error. Gilbertholás, however, that failure to allow a party to enhance a witness’ credibility by showing his prior criminal convictions as part of his background is not necessarily prejudicial. Gilbert pointed out that it is "difficult to perceive any prejudice” arising from allowing on direct what would have been revealed later on cross-examination; conversely, by the same reasoning, it is hard to perceive prejudice from delaying until cross-examination the same revelation which should have been allowed on direct examination. Where, as here, defendant’s attorney questioned prospective jurors about defendant’s prior convictions3 and the prosecutor remedied the omission by eliciting the desired evidence on cross-examination, we conclude [553]*553with reasonable certainty that the verdict was unaffected by the legally erroneous timing of the disclosure.

The refusal to allow defendant to testify that his prior convictions were for drugs other than and of a lesser magnitude than heroin presents a more difficult question. If the rationale of Gilbert is that the proponent of a witness is entitled to show criminal convictions "as part of [the witness’] background” along with address, occupation, family situation, etc., then certainly the witness should be able to describe the nature of his past crimes in at least summary terms.

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State v. Washington
585 P.2d 24 (Court of Appeals of Oregon, 1978)

Cite This Page — Counsel Stack

Bluebook (online)
585 P.2d 24, 36 Or. App. 547, 1978 Ore. App. LEXIS 1961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-washington-orctapp-1978.