State v. Mills

*303GILLETTE, J.

Defendant appeals his convictions for sodomy in the first degree, ORS 163.405,1 and sexual abuse in the first degree. ORS 163.425.2 He argues that the trial court erred in its partial denial of his motion to suppress statements which, although ruled inadmissible for use by the state in its case-in-chief, were allowed for use as impeachment evidence. We affirm.

In January, 1984, the Eugene Police Department received a report that defendant was allegedly engaging in sexual contact with a six-year-old boy. During the ensuing investigation, defendant was interviewed by two members of the Eugene Police Department, Officer Harada and Detective Poppe. On four different occasions, defendant allegedly made incriminating statements: (1) in a telephone call he made to Harada on January 15, 1984; (2) in two telephone calls to Poppe on January 16,1984; and (3) during an interview with Poppe at the Linn County Jail on February 8, 1984, where defendant was being held on an unrelated charge.

At a pretrial hearing, defendant moved to suppress *304the three sets of statements. The trial court held the two sets taken over the telephone admissible, ruling that they were noncustodial and voluntarily given. However, the statements taken at the Linn County jail were ruled inadmissible on the court’s finding that Poppe had continued to question defendant after he had requested an attorney. See Edwards v. Arizona, 451 US 477, 101 S Ct 1880, 68 L Ed 2d 378 (1981). Defendant’s statements made at the jail were accordingly suppressed from use by the state in its case-in-chief; the state did not appeal that decision.

However, the trial court went on to state:

“It will be the further ruling of the Court they [the statements taken at Linn County Jail] will be admissible on rebuttal for impeachment if the defendant should take the stand and testify and in that testimony testify to the area or subject matter of the interview, and thus make those statements available for impeachment.”

This ruling is the sole issue on appeal. Defendant argues that, under the Oregon Constitution, it was error for the trial court to refuse to extend suppression of the statements to include any potential impeachment use by the state. By his argument, he asks for a rule excluding Miranda-violative statements for all purposes, based on Article I, section 12, of the Oregon Constitution. Before we can reach the merits of defendant’s argument, however, we must address a contention of the state on a procedural point.

The state argues that defendant failed to make a sufficient record for this court to review the ruling of the trial court. It relies on State v. McClure, 298 Or 336, 692 P2d 579 (1984). The Supreme Court there discussed how counsel can preserve evidentiary claims involving potential, but unrealized, impeachment evidence concerning a defendant. The court adopted the procedure enunciated in a federal case that held that the record is sufficiently protected in a case involving the admission of evidence for impeachment purposes if a defendant, through an offer of proof, “[e]stablish[es] on the record that he will in fact take the stand and testify * * * and * * * [sufficiently outline[s] the nature of his testimony.” State v. McClure, supra, 298 Or at 341 (citing United States v. Cook, 608 F2d 1175, 1186 (9th Cir 1979), cert den 444 US 1034 (1980)). (Emphasis supplied.)

*305The impeachment evidence in McClure and in Cook, the federal case on which it relied, involved the use of prior convictions under OEC 609(l)(a) and its federal counterpart. OEC 609(1)(a) specifically requires a balancing test in a criminal case, under which the court decides the admissibility of a prior conviction by weighing the probative value of admitting evidence of the conviction against its prejudicial effect to the defendant should he testify.

The same cannot be said for statements of a defendant. The only requirements under OEC 613 — the rule of evidence pertinent to this case — for the introduction of a prior inconsistent statement are that the defendant be “afforded an opportunity to explain or deny the same and [that] the opposite party is afforded an opportunity to interrogate the witness thereon.” See State v. Brown, 299 Or 143, 150, 699 P2d 1122 (1985). As such, determining the admissibility of a defendant’s prior inconsistent statement does not involve a balancing test as under OEC 609(1) and, therefore, the need does not exist for the record to reflect the factors discussed in State v. McClure, supra, in order to preserve the record for review. Because an inconsistent statement may only be introduced if a defendant chooses to testify and does so contrary to the prior statement and because, once it is introduced, the defendant can explain or deny the statement, the considerations expressed in State v. McClure, supra, do not apply to the facts of this case. It follows that even less of an offer of proof than that found adequate in McClure is sufficient here. Defendant’s claim is preserved. We now address his argument on the merits.

Although we may interpret our own state constitution to provide greater protection to our citizens than United States Supreme Court interpretations of the federal constitution provide, see Oregon v. Hass, 420 US 714, 719, 95 S Ct 1215, 43 L Ed 2d 570 (1973); State v. Caraher, 293 Or 741, 750, 653 P2d 942 (1982); State v. Soriano, 68 Or App 642, 684 P2d 1220, adopted 298 Or 392 (1984), steps to adopt a stricter standard should be taken cautiously and be supported by reasoned analysis and sound policy considerations. For example, the Oregon Supreme Court’s rejection of the federal Fourth Amendment approach to search and seizure law in State v. Caraher, supra, occurred only after an exhaustive analysis had satisfied the court that the desired need for *306clarification and uniformity in that area of the law was not being achieved by the federal courts and that, at least arguably, an adequate body of state law was available as a substitute source of precedent. State v. Caraher, supra, 293 Or at 749. Unlike the law of search and seizure, however, the law in Oregon on Miranda-violative statements and their use for impeachment purposes has been exclusively based in federal constitutional principles.

Defendant argues that we should adopt the rationale of State v. Brewton, 247 Or 241, 422 P2d 581, cert den 387 US 943 (1967), as the Oregon rule. In Brewton, the Oregon Supreme Court held that the failure of the police to warn the defendant of his Fifth and Sixth Amendment rights, which rendered his statements inadmissible in the state’s case-in-chief, also precluded the use of the statements as impeachment evidence. We do not find Brewton to be a particularly useful precedent.

The court in Brewton attempted to decide the case consistently with the then recent case of Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 (1966), and its own decision in State v. Neely, 239 Or 487, 395 P2d 557, 398 P2d 482 (1965), the latter a case in which the court adopted the federal exclusionary rule analysis as “a necessary procedural device to implement the substantive rights written into the Fourth, Fifth and Sixth Amendments.” State v. Brewton, supra, 247 Or at 244-45. The court’s holding in Brewton was thought — and intended — to be consistent with the federal line of analysis. Four years later, however, the United States Supreme Court reached a contrary result in a case with similar facts.

In Harris v. New York, 401 US 222, 91 S Ct 643, 28 L Ed 2d 1 (1971), the Court specifically held that statements which would otherwise be inadmissible in a prosecution’s case-in-chief under Miranda may be admitted for impeachment purposes as prior inconsistent statements to rebut a defendant’s direct testimony. The court warned:

“Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury * * *.
“The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk *307of confrontation with prior inconsistent utterances.” 401 US at 225. (Citations omtted.)

The court expressed its conviction that the impeachment process serves as a valuable safeguard against perjury and an important technique to assist the trier of fact in the assessment of a witness’ credibility. This point was reemphasized by the court in its later decision in Oregon v. Hass, supra.

In Hass, as in Harris, the defendant’s inculpatory statements had been ruled inadmissible by the trial court in the prosecution’s case-in-chief. The trial court admitted the statements in rebuttal, however, to impeach the defendant’s direct testimony. This court reversed, relying on State v. Brewton, supra3 The Oregon Supreme Court took review for the purpose of deciding whether to overrule Brewton but concluded:

“[W]e now find that it is not necessary to make this determination in deciding this case because whether the reasoning of Brewton or of Harris is used, the opinion of the Court of Appeals must be affirmed.” State v. Haas, 267 Or 489, 492, 517 P2d 671 (1973).

On certiorari, the United States Supreme Court, citing Harris, held the statements admissible for impeachment purposes. In reversing both this court and the Oregon Supreme Court, the Court stated:

“[I]t does not follow from Miranda that evidence inadmissible against Hass in the prosecution’s case in chief is barred for all purposes, always provided that ‘the trustworthiness of the evidence satisfies legal standards.’ Again, the impeaching material would provide valuable aid to the jury in assessing the defendant’s credibility; again, ‘the benefits of this process should not be lost’ and, again, making the deterrent-effect assumption, there is sufficient deterrence when the evidence in question is made unavailable to the prosecution in its case in chief.” 420 US at 722.

The Harris/Hass rule is clear and unambiguous: Miranda- violative statements ruled inadmissible in a prosecution’s case-in-chief may be admissible for impeachment purposes to provide a safeguard against perjury and to assist the *308trier of fact in assessing the witness’ credibility4 The rule’s clarity and its underlying policy of deterring perjury strongly commend it.

Defendant points, however, to cases in three jurisdictions which have rejected the Harris/Hass rule under their applicable state constitutional provisions against self-incrimination, and argues that we should follow suit. People v. Disbrow, 16 Cal 3d 101, 127 Cal Rptr 360, 545 P2d 272 (1976) (Cal Const, Art I, § 15; juries cannot be relied on to limit use of impeaching material to impeachment, creating impermissible pressure on defendant not to exercise basic right to testify); State v. Santiago, 53 Haw 254, 492 P2d 657 (1971) (Hawaii Const, Art I, § 8; Hawaiian citizen “privileged to freely choose whether or not to incriminate himself,” so constitution forbids even impeachment use); Commonwealth v. Triplett, 462 Pa 244, 341 A2d 62 (1975) (Pa Const, Art I, § 9; Harris rule imposes a “grisly Hobson’s choice,” either to forego testifying or face impeachment).

On the other hand, our research indicates that, in the 19-year period since Harris v. New York, supra, was decided, the overwhelming majority of states have either adopted or expressed approval of the rule in Harris,5 albeit usually with*309out separate consideration of their own constitutions, with only California, Hawaii and Pennsylvania rejecting the rule on the basis of their respective constitutional provisions.6 Even Pennsylvania has since significantly narrowed its holding in Commonwealth v. Triplett, supra, now allowing the use of a suppressed statement for impeachment purposes if a defendant chooses to testify and his testimony relates to the existence and substance of such a statement. Commonwealth v. Anderson, 302 Pa Super 457, 460, 448 A2d 1131 (1982);7 Commonwealth v. Mobley, 267 Pa Super 29, 405 A2d 1287 (1979).

*310The dissent takes up defendant’s cudgel by arguing (76 Or App at 314),

“The Harris rule deters a defendant who has been the subject of illegal police conduct from testifying in his own defense. It undermines a defendant’s right under Article I, section 11, of the Oregon Constitution to testify in his own behalf.”

What the dissent is really saying — but does not seem to recognize — is,

“[The rule we announce today] undermines a defendant’s right under Article I, section 11, of the Oregon Constitution [to lie under oath with impunity].”

It would be nice to think that to state such a proposition is to refute it, but that obviously is not the case. We shall be more concrete:

We reject the dissent’s view because we believe it is a perversion of an Oregon constitutional right to turn a shield (the right to keep the state from using illegally obtained evidence) into a sword (the right to take affirmative advantage of the unavailability of that evidence to work a fraud on the trier of fact). One of the functions of the exclusionary rule is to preserve the integrity of our judicial system by refusing admission to evidence that was obtained in violation of the document that created the judicial system — the constitution. But a court system that countenances perjury also loses its integrity — there can be no respect for law when a court is not even free to insist that witnesses appearing before it obey the oath they take to tell the truth. The proper balance of these twin challenges to the integrity of our judicial system is, we think, to permit a defendant to keep illegally obtained evidence from a jury unless he takes the stand — something he cannot be compelled to do — and, by his testimony, makes that evidence pertinent to determining whether he is telling the truth. This is a very limited rule: The evidence against defendant is not made generally admissible if he testifies; it is admissible only and to the extent it impeaches a statement he had made under oath at trial. He is still free to testify as to other matters, and many defendants may choose to do so. But he is not free to take the oath with his fingers crossed.

A defendant’s right to testify does not exist in a vacuum independent from the truth-seeking purpose of our *311judicial process, a process in which the technique of impeachment plays a vital role. To eliminate one of the impeachment process’ more valuable tools — the use of prior inconsistent statements that are otherwise reliable — simply licenses perjury. This we will not do. We accordingly reject defendant’s argument for an independent rule under Article I, section 12, of the Oregon Constitution. Assuming, without deciding, that the Miranda rule applies under the Oregon Constitution, we adopt the rule of Harris v. New York, supra.

Affirmed.

ORS 163.405 provides:

“(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:
“(a) The victim is subjected to forcible compulsion by the actor; or
“(b) The victim is under 12 years of age; or
“(c) The victim is under 16 years of age and is the actor’s brother or sister, of the whole or half blood, his son or daughter or his spouse’s son or daughter.
“(2) Sodomy in the first degree is a Class A felony.”

ORS 163.425 provides:

“(1) A person commits the crime of sexual abuse in the first degree when that person:
“(a) Subjects another person to sexual contact; and
“(A) The victim is less than 12 years of age; or
“(B) The victim is subjected to forcible compulsion by the actor; or
“(b) Subjects another person to sexual intercourse, deviate sexual intercourse or, except as provided in ORS 163.412, penetration of the vagina, anus or penis with any object not a part of the actor’s body, and the victim does not consent thereto.
“(2) Sexual abuse in the first degree is a Class C felony.”

State v. Haas, 13 Or App 368, 510 P2d 852 (1973). Defendant’s true last name is Hass, the spelling of which was adopted by the United States Supreme Court in Oregon v. Hass, supra.

See United States v. Havens, 446 US 620, 100 S Ct 1912, 64 L Ed 2d 559 (1980) (reaffirming vitality of Harris/Hass rule).

See Roynica v. State, 54 Ala App 436, 309 So 2d 475, 482 (1974), cert den 423 US 858 (1975) (no constitution cited; federal probably intended); State v. Johnson, 109 Ariz 70, 505 P2d 241 (1973) (no constitution cited; federal probably intended); Rooks v. State, 250 Ark 561, 466 SW2d 478 (1971) (no constitution cited; both apparently intended); Jorgenson v. People, 174 Colo 144, 482 P2d 962 (1971) (no constitution cited; federal probably intended); State v. Nardini, 187 Conn 513, 447 A2d 396 (1982) (no constitution cited; federal probably intended); Williams v. State, 301 A2d 88 (Del 1973) (dictum); Nowlin v. State, 346 So 2d 1020 (Fla 1977) (no constitution cited; both intended); Campbell v. State, 231 Ga 69, 200 SE2d 690 (1973) (reaffirmed in Manbeck v. State, 165 Ga App 625, 302 SE2d 361 (1983)) (no constitution cited; federal probably intended); State v. Moulds, 105 Id 880, 673 P2d 1074 (1983) (dictum; federal intended); People v. Sturgis, 58 Ill 2d 211, 317 NE2d 545 (1974), cert den 420 US 936 (1975) (both intended); Johnson v. State, 258 Ind 683, 284 NE2d 517, 288 NE2d 553 (1972) (no constitution cited; federal apparently intended); State v. Martin, 217 NW2d 536 (Iowa 1974) (dictum; federal probably intended); State v. Osbey, 213 Kan 564, 517 P2d 141 (1974) (partially disapproved and limited in State v. Roberts, 223 Kan 49, 574 P2d 164 (1977)) (no constitution cited; both probably intended); Murphy v. Commonwealth, 652 SW2d 69 (Ky 1983) (dictum; federal probably intended), cert den US(1984); State v. McCarty, 421 So 2d 213 (La 1982) (no constitution cited; federal intended); State v. Gervais, 317 A2d 796 (Me 1974) (dictum); Hall v. State, 292 Md 683, 441 A2d 708 (1982) (federal constitution); Commonwealth v. Harris, 364 Mass 236, 303 NE2d 115 (1973) (both constitutions); People v. Graham, 386 Mich 452, 192 NW2d 255 (1971) (dictum; federal constitution); State v. Gabler, 294 Minn 457, *309199 NW2d 439 (1972) (federal constitution); Sanders v. State, 260 So 2d 466 (Miss 1972) (no constitution cited; both probably intended); State v. Cartwright, 650 P2d 758 (Mont 1982) (no constitution cited; both probably intended); State v. Bazis, 190 Neb 586, 210 NW2d 919 (1973), cert den 415 US 933 (1974) (no constitution cited; federal intended); Johnson v. State, 92 Nev 405, 551 P2d 241 (1976) (no constitution cited; federal intended); Stone v. Shea, 113 NH 174, 304 A2d 647 (1973) (no constitution cited; federal intended); State v. Miller, 67 NJ 229, 337 A2d 36 (1975) (both constitutions); State v. Trujillo, 93 NM 724, 605 P2d 232 (1980) (dictum; no constitution cited; federal probably intended); People v. Wise, 46 NY2d 321, 413 NYS2d 334, 385 NE2d 1262 (1978), aff’d 82 App Div 2d 869, 440 NYS2d 266 (1981) (no constitution cited; both probably intended); State v. Evans, 17 NC App 561, 195 SE2d 102 (1973) (no constitution cited; federal intended); State v. Iverson, 187 NW2d 1 (ND), cert den 404 US 956 (1971) (both constitutions); State v. Kassow, 28 Ohio St 2d 141, 277 NE2d 435 (1971), vacated in part 408 US 939, 92 S Ct 2876, 33 L Ed 2d 762 (1972) (federal constitution); Criss v. State, 507 P2d 935 (Okla Crim 1973) (no constitution cited; federal probably intended); State v. D’Alo, 435 A2d 317 (RI 1981) (dictum; federal constitution); State v. Mercado, 263 SC 304, 210 SE2d 459 (1974) (dictum; federal constitution); State v. Williamson, 349 NW2d 645 (SD 1984) (federal constitution); Brewer v. State, 501 SW2d 280 (Tenn 1973) (dictum; probably both constitutions); Girndt v. State, 623 SW2d 930 (Tex Crim 1981) (limited in Alfaro v. State, 638 SW2d 891 (Tex Crim 1982)) (dictum; no constitution cited; federal probably intended); State v. Kish, 28 Utah 2d 430, 503 P2d 1208 (1972) (no constitution cited; federal probably intended); Santmier v. Commonwealth, 217 Va 318, 228 SE2d 681 (1976) (dictum; no constitution cited; federal probably intended); State v. Kilborn, 143 Vt 360, 466 A2d 1175 (1983) (dictum; no constitution cited; federal probably intended); Riddell v. Rhay, 79 Wash 2d 248, 484 P2d 907, cert den 404 US 974 (1971) (no constitution cited; federal intended); State v. Burgess, 329 SE2d 856 (W Va 1985) (dictum; no constitution cited; federal intended); Ameen v. State, 51 Wis 2d 175, 186 NW2d 206 (1971) (no constitution cited; federal intended).

Alaska has not flatly rejected the rationale of Harris v. New York, supra, and allows the use of illegally obtained statements under Miranda in a prosecution for perjury under Alaska Rule of Evidence 412. This rule has been termed “clearly consistent with federal law” under Harris. See Wortham v. State, 657 P2d 856, 858 n 1 (Alaska App), aff’d 666 P2d 1042 (Alaska 1983) (Singleton, J., concurring).

The dearth of jurisdictions rejecting Harris was aptly noted by one of the dissenting judges on the California court.

“One may seriously and fairly question the strength of a juridical light that is discerned by so few and invisible to so many.” People v. Disbrow, supra, 127 Cal Rptr at 378. (Richardson, J., dissenting.)