State v. Affeld

NEWMAN, J.,

dissenting.

The trial court improperly limited defendant’s right to cross-examine Newton and also violated defendant’s rights of confrontation under Article I, section 11, and the Sixth Amendment. Defendant’s motion for a mistrial was based on the court’s action in limiting cross-examination. The court committed reversible error when it denied defendant’s motion for a mistrial.

Defendant was charged with robbery in the first degree. ORS 164.415.1 The jury found him guilty of the lesser included offense of robbery in the second degree. ORS 164.405.2 Contrary, however, to the suggestions in the majority opinion, the “principal issue” here was not merely whether defendant was guilty of robbery in the first degree or robbery in the second degree, or “whether defendant’s gun was *36loaded.” 90 Or App at 34.3 Defendant pleaded not guilty. He denied that, in the taking of Ortiz’ wallet, he had used or threatened the immediate use of physical force or that he represented by word or conduct that he was armed with a dangerous or deadly weapon. His testimony, if believed, could support the conclusion that he committed theft, but not robbery in the first or second degree. The court charged the jury on the elements of robbery in the first degree, robbery in the second degree and also on the lesser included offense of theft in the second degree.4 The verdict form gave the jury the choice of finding defendant guilty of robbery in the first degree, robbery in the second degree, theft in the second degree or not guilty.

In his defense, defendant testified that Newton and he had been target shooting that day, but that his gun was not loaded when they met Ortiz and was hung on his shoulder by the shoulder strap with the muzzle pointing straight up. He denied that he had participated in the robbery and testified that he did not know exactly what had occurred between Ortiz and Newton, because Ortiz said something in Spanish which defendant did not understand and also because he was three or four feet away and is deaf in one ear. He testified that Ortiz threw his wallet to him and he threw it back, that Ortiz and Newton exchanged more words, that Ortiz then threw the *37wallet at defendant’s feet and ran away, and that defendant then picked up the wallet and Newton grabbed the laundry bag and they both ran away. Defendant testified that he went through the wallet and that he and Newton spent the money that was in it. He denied that he intended that Ortiz give the wallet to him, that he had pointed a gun at Ortiz, or that he had gestured at Ortiz with his gun or otherwise threatened him.

Newton’s testimony for the state on rebuttal directly contradicted defendant’s testimony. Newton testified that he and defendant were walking along the railroad tracks on the way to Odell on June 29,1985, carrying loaded rifles, that both had shot their rifles on the way into Odell and that the rifles were still loaded when they walked back. The jury could reasonably infer, therefore, on the basis also of what it had already heard from Ortiz and defendant, that Newton’s direct testimony on rebuttal covered a time period that included the time of the robbery and that both rifles were loaded at the time of the robbery.

When defendant’s attorney asked Newton on cross-examination during the offer of proof, out of the presence of the jury, for “a statement of what happened on the transaction when you met Mr. Ortiz,” the prosecutor objected “because it’s outside the scope of direct.”5 The court sustained the objection. The court did not believe that the cross-examination was “reasonably within the scope of rebuttal or the scope of direct examination.”6 Defendant promptly moved for a mistrial. The court asked counsel to renew the motion later “in some general terms so that the jury will not recognize what is going on in the presence of the jury” and to “remind me” that the motion is pending. At the close of testimony before the jury, defendant’s counsel reminded the court, as it had suggested, of the pending motion, and the court denied it.

The court plainly erred when it limited defendant’s right to cross-examine. Defendant’s question to Newton of *38“what happened on [sic] the transaction when you met Mr. Ortiz,” was well within the “subject matter of the direct examination.” OEC 611(2).7 The questions that the state had asked Newton in his direct examination related to the encounter with Ortiz and the actual robbery incident. Newton had testified on direct to matters that included the time of the robbery and were directly related to it: both defendant and Newton had carried loaded rifles along the railroad track to and from the robbery site on the track. That would permit the jury to infer that both Newton and defendant had carried loaded rifles at the time of the robbery. The majority concedes that “the question asked by defendant’s counsel on cross-examination * * * had some relationship to what Newton had testified to on direct examination.” 90 Or App at 33. Counsel’s question on cross-examination about the meeting with Ortiz, therefore, grew out of the direct examination and was reasonably suggested by it. See State v. Smith, 86 Or App 239, 246, 739 P2d 577 (1987). It was germane and not collateral to what Newton testified to on direct.

Moreover, when, as here, a key witness for the state claims the privilege against self-incrimination in the state’s case-in-chief, and the state then presents his testimony only on rebuttal, a court should be particularly sensitive, in determining what is within the scope of the direct testimony, to a defendant’s need effectively to cross-examine. The majority argues that the court had to take into consideration that Newton’s attorney “would advise him to assert the privilege in response to question directed at his participation in the robbery.” 90 Or App at 33. It asserts that the court was faced with “the thorny question * * * whether ordering [Newton] to testify would immunize him from retrial if his conviction were set aside or reversed on appeal.” 90 Or App at 33. Those are not sufficient bases for barring the cross-examination. The state called Newton. His testimony that the state elicited on direct covered a time period that included the robbery. The trial court abused its discretion in ruling that defendant’s questions were outside the scope of the direct examination.

*39The court also violated defendant’s right to confrontation under Article I, section 11, and the Sixth Amendment. Neither party offers an argument for interpreting the state provision, as it applies here, differently from the Sixth Amendment, and the Supreme Court has used Sixth Amendment cases in its interpretation in Article I, section 11. See State v. Campbell, 299 Or 633, 648, 705 P2d 694 (1985); see also State v. LeClair, 83 Or App 121, 128, 730 P2d 609 (1986), rev den 303 Or 74 (1987). If too great a restriction is placed on cross-examination, a defendant’s rights of confrontation may be infringed. See Alford v. United States, 282 US 687, 51 S Ct 218, 75 L Ed 624 (1931); United States v. Mayer, 556 F2d 245, 250 (5th Cir 1977). Although trial judges, in the face of the Confrontation Clause, may impose reasonable limits on cross-examination based on a concern over “interrogation that is * * * only marginally relevant,” Delaware v. Van Arsdall, 475 US 673, 679, 106 S Ct 1431, 89 L Ed 674, 683 (1986), the matters to which Newton testified, and about which defendant’s counsel wished to examine him, were not “marginally relevant.” They were at the heart of the state’s case. Moreover, contrary to the majority’s statement that defendant’s confrontation rights “were not eclipsed by the court’s ruling,” 90 Or App at 34, the Confrontation Clause gives a defendant, not merely a right to test the witness’ perception, memory and credibility, but also a right effectively to cross-examine him on matters not collateral to the direct testimony. See Davis v. Alaska, 415 US 308, 315, 94 S Ct 1105, 39 L Ed 2d 347 (1974); State v. Herrera, 286 Or 349, 353, 594 P2d 823 (1979); see also United States v. Newman, 490 F2d 139, 145 (3rd Cir 1974); United States v. Cardillo, 316 F2d 606, 611 (2nd Cir 1963). Defendant had the right on cross-examination to test not only the perception, memory and credibility of Newton in the abstract, but his perception, memory and credibility of the events that were most important: what happened at the robbery scene.

Moreover, the issues under OEC 611(2)and the Confrontation Clauses are interrelated. As I have stated, when, as here, a key witness for the state claims the right against self-incrimination in the state’s case in chief, and the state presents his testimony only on rebuttal, a court should be particularly sensitive, in determining what is within the scope of direct testimony, to a defendant’s need effectively to cross-*40examine. Indeed, the Confrontation Clause “tips the scales” in favor of permitting cross-examination if it could reasonably be expected to have an effect on the jury. Hughes v. Raines, 641 F2d 790, 792 (9th Cir 1981).

Accordingly, the court should have granted defendant’s motion for a mistrial. In State v. Stanley, 30 Or App 33, 36, 566 P2d 193, rev den (1977), we noted that “[prejudice, as it may flow from the denial of * * * a mistrial, means a reasonable possibility that the judge or jury will be influenced in the performance of the fact-finding function by the irregular event.” Here, there was clearly a reasonable possibility that the jury would be influenced by defendant’s inability fully to cross-examine and confront Newton. Contrary to what the majority would have us believe, and as I have emphasized, the controversy was not simply whether defendant was guilty of robbery in the first degree or robbery in the second degree or whether his gun was loaded. It also concerned whether, alternatively, he was guilty of theft in the second degree or not guilty. Newton’s testimony about what happened at the time of the robbery undermined defendant’s assertion that he was not guilty or, at least, not guilty of robbery. The court’s ruling barred him from cross-examining Newton regarding critical events. It prejudiced him.8 As we stated in State v. McFarland, 30 Or App 93, 97, 566 P2d 539 (1977):

“The trial court’s discretion * * * is not without bounds, and a motion for a mistrial should be granted when it is apparent that some aspect of the conduct of the trial has interfered with a defendant’s ability to obtain a fair adjudication of the facts.”

I dissent.

Joseph, C. J., and Buttler and Warden, JJ., join in this dissent.

ORS 164.415 provides:

“(1) A person commits the crime of robbery in the first degree if the person violates ORS 164.395 and the person:

“(a) Is armed with a deadly weapon; or

“(b) Uses or attempts to use a dangerous weapon; or

“(c) Causes or attempts to cause serious physical injury to any person.

“(2) Robbery in the first degree is a Class A felony.”

ORS 164.405 provides:

“(1) A person commits the crime of robbery in the second degree if the person violates ORS 164.395 and the person:

“(a) Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon; or

“(b) Is aided by another preson actually present.

“(2) Robbery in the second degree is a Class B felony.”

ORS 164.395 provides:

“(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft the person uses or threatens the immediate use of physical force upon another person with the intent of:

“(a) Preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking; or

“(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft.

“(2) Robbery in the third degree is a Class C felony.”

The majority at times recognizes that the issues here are more complex. It states, 90 Or App at 34, that “the principal issue” was whether defendant’s gun was loaded. (Emphasis supplied.) At 90 Or App at 33, it states, however, that "a central issue” was whether defendant’s gun was loaded and, thus, whether he would be guilty of first or second degree robbery. (Emphasis supplied.) At 90 Or App at 32, it states that "a principal issue at trial was not whether defendant was involved but whether he was guilty of first or second degree robbery.” (Emphasis supplied.)

ORS 164.045 provides:

“(1) A person commits the crime of theft in the second degree if, by other than extortion, the person:

“(a) Commits theft as defined in ORS 164.015; and

“(b) The total value of the property in a single or aggregate transaction is under $200.

“(2) Theft in the second degree is a Class A misdemeanor.”

ORS 164.015 provides, in part:

“A person commits theft when, with intent to deprive another of property or to appropriate property to the person or to a third person, the person:

“(1) Takes, appropriates, obtains or withholds such property from an owner thereof.”

The question was asked on cross-examination during the offer of proof in chambers, but not during cross-examination before the jury. Under the circumstances, however, that was not inappropriate.

Just before defendant’s counsel’s question which the court did not permit, defendant’s counsel asked Newton on cross-examination if Ortiz had tried to take a swing at him when he first encountered him. The court allowed the question.

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.”

Defendant’s attorney told the court that, “I am hemmed in so I cannot represent my client.”