State v. Jalo , 27 Or. App. 845 ( 1976 )

SCHWAB, C. J.

Defendant was indicted for three counts of first degree sodomy, ORS 163.405, and two counts of attempted first degree rape, ORS 161.405 and 163.375. Trial began in November 1975. That trial was aborted when, on motion of the state, the court declared a mistrial. Before being retried in January 1976, defendant moved to dismiss on grounds of double jeopardy. The motion was denied. Defendant was convicted on all counts and now appeals.

Resolution of the double-jeopardy issue depends upon resolution of whether defendant was entitled to introduce evidence of the complainant’s previous sexual conduct.

The charges arose when the 10-year-old complainant reported that the 41-year-old defendant had engaged in and attempted various sexual acts with her. Defendant denied this, contending he had discovered that the girl had engaged in sexual conduct with his 13-year-old son, another young boy and her uncle, had told her he would inform her parents, and that before he did so she falsely accused him of the crimes charged.

In his opening statement to the jury in the first trial, defense counsel alluded to this line of defense:

"Now, it’s also our position that at about this time in the events two things come up which we feel are very material to this. One is that she told the defendant that she had had sexual intercourse with a * * * boy by the name of * * * at this time, and also he found out that his own son, his thirteen year old son was having sexual intercourse with her. We put this into the usual pattern, that if a young girl has sexual intercourse with a boy her age and she gets caught; she gets scared; she is afraid something will come of it; she gets her rear end paddled, but if she accuses an older man she is called a 'poor little dear’ and she gets all the sympathy in the world.”

At the conclusion of the opening statements the state moved for a mistrial on the ground that defense counsel had violated ORS 163.475(3), which provides:

"* * * [I]n a prosecution under ORS 163.355 to 163.425, evidence of previous sexual conduct of a complainant shall not be admitted and reference to that conduct shall not be made in the presence of the jury.”

A mistrial was declared over defendant’s objection.

During defendant’s second trial the court, pursuant to ORS 163.475(3), consistently ruled defense evidence of this nature inadmissible. The following was developed by offer of proof from defendant’s son:

"Q * * * What took place when you and [complainant] were in the woods there in Canby in April?

"A I don’t know how to really say it, but there was — Well, I don’t know how to put it in words that would be allowable.

"Q * * * You put it in words to me, so put it in words to His Honor the same way you put it in words to me.

"A Well, she went out and she was running, and I was chasing her and then she went into this bush and I couldn’t find her and whenever I finally found her, she had her clothes off.

"Q She had her clothes what?

"A Off.

"Q All of them?

"A Yeah.

"Q What happened then?

"A Well, I don’t know how to say it.

"Q You told it to me before; tell it to His Honor.

"A Well, I don’t know how to say it, but I guess you could call it sexual intercourse.

"Q Between you and her?

"A Yes.

"Q Did it happen more than once?

"A Yes, a few more times, few more times.

"Q And later did you have occasion to tell your father about that?

"A Yes.”

Defendant also testified out of the presence of the jury as follows:

"Q * * * You did have a conversation with your son about this time?

"A Yes, I did.

"Q And what had he told you about his relationship with [complainant]?

"A He told me that a number of times in the past that he had had oral sex with [complainant].

"Q Did he tell you not only oral sex, but other kinds of sex?

"A He did tell me he tried to have — well I will use the word sexual intercourse, but that is not the word he used, but we are in mixed company and I didn’t get mad at him or anything because my children has always confided in me.

"Q Stick to the point. We have just a little bit of time. As a result of that, did you have any conversation with [complainant]?

"A Yes, I did.

"A I was telling her that I thought that her parents should be notified. I should consult her parents about this because she is going to get herself in trouble, is what I told her.

"Q * * * Did she tell you about having sexual relations with anyone else besides your son?

"A She did tell me about a number of different people.

"Q Who are they?

"A [R],

"Q He’s a boy about the same age as your son?

"A I think [R] is about an eighth grader in the same school my son goes to. I’m not sure.

"Q He’s about fourteen?

"A Right.

"Q Who else did she talk about?

"A She did mention to me that she had sexual intercourse with her uncle, [B], somewhere in California.

"Q When you told her that you ought to tell her parents, did she say anything?

"A She just asked me not to; that she would stop.”

The relevant double-jeopardy rules are stated in United States v. Jorn, 400 US 470, 91 S Ct 547, 27 L Ed 2d 543 (1971), State v. Embry, 19 Or App 934, 530 P2d 99 (1974), Sup Ct review denied (1975), and codified in ORS 131.525(2)(c).¹ Jeopardy having attached in defendant’s first trial before a mistrial was declared, ORS 131.505(5)(b), the question becomes whether that trial was properly terminated over defendant’s objection. For a mistrial to be properly ordered, error must have been committed.

Whether any error was committed at defendant’s first trial depends upon whether ORS 163.475(3) is constitutional as applied to the facts at bar. Here the only evidence adverse to defendant came from the complainant. In response the defendant sought to place before the jury evidence, not inherently incredible, that he had discovered the young complainant’s sexual misconduct and had threatened to tell her parents. This was offered to attempt to establish the inference, not inherently unreasonable, that the complainant had a motive to and did falsely accuse defendant of the offenses in question.

ORS 163.475(3) prohibits introduction of this evidence for this purpose. However, Davis v. Alaska, 415 US 308, 94 S Ct 1105, 39 L Ed 2d 347 (1974), compels the conclusion that ORS 163.475(3) infringes upon defendant’s constitutional right to confrontation as here applied to prohibit evidence of the complainant’s ulterior motive for making a false charge. In Davis, the defendant had been prohibited from cross-examining a crucial state’s witness about a juvenile adjudication and the possible bias that could have arisen therefrom. The Supreme Court reversed:

"We cannot speculate as to whether the jury, as sole judge of the credibility of a witness, would have accepted [the defense] line of reasoning had counsel been permitted to fully present it. But we conclude that the jurors were entitled to have the benefit of the defense theory before them so that they could make an informed judgment as to the weight to place on [the] testimony ‡ ‡

"* * * In this setting we conclude that the right of confrontation is paramount to the State’s policy of protecting a juvenile offender. * * *” 415 US at 317, 319.

The only difference between Davis and this , case is that the policy of ORS 163.475(3) is to protect a sex-crime complainant. On the facts at bar, however, this policy must likewise be subordinated to the defendant’s constitutional right to confrontation.

It follows that defense counsel’s reference to admissible evidence in defendant’s first trial was not an error and that there was no basis for the declaration of a mistrial. Therefore, defendant’s second trial was barred by the double-jeopardy rules discussed above.

Finally, we note that a procedure exists to attempt to accommodate the tension between ORS 163.475 and the Confrontation Clause without creating the double-jeopardy problems upon which this case turns. ORS 135.037 provides that the court shall, upon motion of any party, hold a pretrial hearing at which the court may consider any matters which will facilitate trial. This statute is sufficiently broad to authorize pretrial consideration of and a ruling upon the constitutional problems that ORS 163.475 may create on a given set of facts. Had this procedure been invoked in this case the final disposition might have been different.

Reversed.

"A previous prosecution is not a bar to a subsequent prosecution when the previous prosecution was properly terminated under any of the following circumstances:

"(2) The trial court finds that a termination, other than by judgment of acquittal, is necessary because:

"(c) Prejudicial conduct, in or outside the courtroom, makes it impossible to proceed with the trial without injustice to either the defendant or the state * * *

"* * * * * ” ORS 131.525.