State v. Washington , 36 Or. App. 547 ( 1978 )

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 prejudicial. "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 preliminary 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 convictions 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 with 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. Under this theory, it would seem prejudicially erroneous to prevent defendant from showing that his prior drug offenses related to less serious drugs than heroin. If, however, the rationale of Gilbert is that the proponent may offer such evidence to gain tactical advantage by defusing anticipated impeachment, then a summary description of the crime could not be offered because under State v. Rollo, 221 Or 428, 351 P2d 422 (1960), the impeaching party may not inquire into the circumstances of the conviction and under State v. Johnson, supra, the proponent cannot so inquire for rehabilitation.

Here, the defendant offered the proof on re-direct examination for its rehabilitative effect. Although it might be inferred that he would have so testified on direct examination had he been allowed to do so and the theoretical dilemma of Gilbert would have to be resolved, the procedural posture of this case does not require it. Rather, we conclude that the Supreme Court was motivated in Gilbert more by a sense of fairness rather than a Cartesian devotion to logic. If it were faced with these particular facts, the court would likely relax the strict Johnson rule sufficiently to allow a brief specification of the charge in an impeaching prior conviction, but no more because the issue should not be open to relitigation of the former charge except possibly for equally summary contradiction by the other party. It was therefore error not to have allowed the defendant to briefly specify the charge for which he had been formerly convicted and, given the nature of this charge, the error was prejudicial.

Reversed and remanded for new trial.

1 The questioning is not transcribed, but it is later referred to during a hearing on the prosecutor’s preliminary objection:

"[PROSECUTOR]: * * * [Defense counsel] on voir dire has indicated to the jury that his Defendant has been convicted of a crime.

"Of course, that’s fine, but I would ask the Court to caution any possible impeachment of him on direct examination if he does take the stand because I’m afraid it would preclude me from offering the judgment rolls themselves which I do intend to offer.”

2 ORS 45.590 provides:

"The party producing a witness is not allowed to impeach his credit by evidence of bad character, but he may contradict him by other evidence, and may also show that he has made at other times statements inconsistent with his present testimony, as provided in ORS 45.610. However, when a party calls as a witness either an adverse party or the assignor, agent, officer or employe of an adverse party, he shall not be deemed to have vouched for the credit of that witness and he may impeach the credit of that witness in the same manner as in the case of a witness produced by an adverse party.”

ORS 45.600 provides:

"A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth is bad or that his moral character is such as to render him unworthy of belief; but he may not be impeached by evidence of particular wrongful acts, except that it may be shown by his examination or by the record of the judgment, that he has been convicted of a crime.”

3 In this respect the case differs from State v. Ziebert, 34 Or App 497, 579 P2d 275 (1978).