State v. Busby , 315 Or. 292 ( 1993 )

UNIS, J.,

concurring in part.

Because defendant did not make a sufficient record for this court to determine the merits of his constitutional claims, I agree with the court’s conclusion of affirmance. Because I do not wholly agree with the remainder of the court’s opinion, I write separately.

Oregon Evidence Code (OEC) 609(1)(a), ORS 40.355(l)(a), as amended in 1986 by the “Crime Victims’ Bill of Rights” initiative measure, Or Laws 1987, ch 2, § 9, provides that, subject to certain qualifications, ¹ any conviction for a crime “punishable by death or imprisonment in excess of one year under the law under which the witness was convicted” is admissible in evidence “[f]or the purpose of attacking the credibility of a witness,” including a testifying defendant.²

In this case, defendant seeks reversal of his conviction for sexual abuse in the first degree, a Class C felony, ORS 163.425. He claims that, to the extent that OEC 609(l)(a) requires a trial court to allow the state to impeach a testifying defendant with a prior felony conviction³ without balancing the probative value of that conviction against its prejudicial effect, it infringes upon the defendant’s constitutional right to be heard and to be tried by an impartial jury under Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution, and upon his due process rights under the Fourteenth Amendment to the United States Constitution.

Defendant filed a motion in limine⁴ to prevent the state from using his prior conviction for sexual abuse in the first degree to impeach him if he took the stand to testify on his own behalf. At the pretrial hearing, defendant told the trial court that “[i]t is imperative that [he] testify on his own behalf. There is no one else who can tell [his] side of the story.” Defendant also told the court that, if his prior conviction were admissible for impeachment, he would waive jury trial. The court ruled that, if defendant testified, the state could use defendant’s prior conviction for impeachment purposes. Defendant did not waive jury trial. At the conclusion of the state’s case-in-chief, defendant renewed his motion to prevent the state from using his prior conviction to impeach him if he testified. The court denied defendant’s motion. Defendant did not testify, and evidence of his prior conviction was not offered in evidence by the state. Defendant appealed from his conviction for sexual abuse in the first degree, arguing his constitutional claims.

In State v. McClure, 298 Or 336, 341, 692 P2d 579 (1984), this court held that a defendant in a criminal trial need not testify at trial and be impeached with a prior conviction in order to obtain appellate review of an evidenti-ary ruling denying a motion to bar the state’s use of a prior conviction for impeachment purposes.⁵ Although “[i]t is not realistic or necessary for a defendant to have to wait until he is on the stand to find out whether he will be impeached with prior crime evidence,”⁶ the defendant nonetheless must protect the record. State v. McClure, supra, 298 Or at 341. McClure held that, to preserve error for appellate review, a defendant must (1) establish on the record that he will in fact testify if the prior crime evidence is excluded and (2) sufficiently outline on the record the nature of his testimony. Id.

Although McClure involved a non-constitutional evi-dentiary claim of improper impeachment with a prior conviction, and this case concerns constitutional claims of improper impeachment with a prior conviction, the reasons for, and the means of, protecting and preserving the record for appellate review as stated in McClure apply equally with respect to the constitutional claims that defendant makes in this case. A defendant’s decision not to testify often is triggered by a variety of considerations. A reviewing court cannot, therefore, take for granted that a defendant’s decision not to testify resulted from an adverse ruling on the motion in limine. More importantly, without knowing the nature of the defendant’s testimony, whatever harm that may have flowed from the trial court’s in limine ruling is purely speculative. Stated differently, without knowing the essence of the defendant’s testimony, it is speculative for an appellate court to determine the impact that any impermissible impeachment may have had in the light of the record as a whole, i.e., whether any error that resulted from the trial court’s ruling was likely to have affected the verdict.

This court has stated that “a substantial right of a criminal defendant is not affected if there is * * * little likelihood that the error affected the verdict. ’ ’ State v. Hansen, 304 Or 169, 180, 743 P2d 157 (1987) (citing State v. Miller, 300 Or 203, 220-21, 709 P2d 225 (1985)). See State v. Williams, 313 Or 19, 56, 828 P2d 1006 (1992) (Unis, J., dissenting) (stating test for harmless error under Article VII (Amended), section 3, of the Oregon Constitution); id. at 59 n 13 (stating test for federal constitutional “harmless error”). See also State v. Affeld, 307 Or 125, 128, 764 P2d 220 (1988) (one purpose of an offer of proof is to enable reviewing court to determine whether any error was likely to have affected the result of the case); State v. Montez, 309 Or 564, 604, 789 P2d 1352 (1990) (declining to resolve “extremely important as well as difficult questions” in constitutional challenge “merely because the question is raised,” where analysis is inadequate).

Here, neither defendant nor his lawyer stated unequivocally on the record that defendant would have testified but for the trial court’s ruling on defendant’s motions. Assuming, arguendo, that defendant’s statements to the trial court amounted to an assertion that he in fact would have testified if his prior conviction for sexual abuse in the first degree were excluded, defendant did not preserve for review his constitutional claims. Defendant did not make an offer of proof on the record as to what his testimony would have been had he testified in his own defense.

I agree with the majority that defendant did not adequately protect the record and preserve for appellate review his state and federal constitutional claims concerning the use under OEC 609(l)(a) of his prior conviction for impeachment purposes. Any comments concerning the merits of defendant’s constitutional claims are, therefore, inappropriate.

Van Hoomissen, J., joins in this opinion.

“Evidence of a conviction under [OEC 609] is not admissible if:

“(a) A period of more than 15 years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date[.]” OEC 609(2)(a).

1 Moreover, if “[t]he conviction has been expunged by pardon, reversed, set aside or otherwise rendered nugatory,” it is not admissible for impeachment purposes. OEC 609(2)(b).

2 Convictions for crimes ‘involving] false statement or dishonesty’ ’ are admissible for the same purpose. OEC 609(l)(b).

3 OEC 609(l)(a) does not use the term “felony.” “[I]t allows impeachment by any criminal conviction ‘punishable by death or imprisonment in excess of one year under the laws under which the witness was convicted.’ In most jurisdictions, this definition encompasses only felony crimes. However, in a few states this definition may include criminal convictions that are not felonies.” Kirkpatrick, Oregon Evidence 358 (2d ed 1989). In this opinion, the term “felony” will be used as a shorthand description of the type of crime described in OEC 609(l)(a).

4 In State v. Foster, 296 Or 174, 183, 674 P2d 587 (1983), this court expressly approved the use of a pretrial motion in limine to obtain a ruling on evidence before the evidence is sought to be introduced. See State v. Clowes, 310 Or 686, 692, 801 P2d 789 (1990) (to the same effect); State v. McClure, 298 Or 336, 340, 692 P2d 579 (1984) (to the same effect).

5 In State v. McClure, supra, 298 Or at 342 n 4, this court expressly disagreed with the holding of the Supreme Court of the United States in Luce v. United States, 469 US 38, 105 S Ct 460, 83 L Ed 2d 443 (1984). In Luce, the defendant made a motion in limine to exclude the use of a prior conviction to impeach him if he elected to testify. The trial judge ruled that the conviction would be admissible to impeach. As a result, the defendant elected not to testify. The Court held that, in order to raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify at trial and be impeached with the prior conviction. Luce v. United States, supra, 469 US at 43.

6 In State v. McClure, supra, this court recognized the need for the “trial courts [to] rule on the admissibility of prior crime impeachment evidence as soon as possible after the issue is raised,” that “[i]t is only after a ruling on the admissibility of a conviction that the prosecutor and defense counsel can make an informed decision how to effectively try the case,” and that “[t]he decision has a significant impact on what questions to ask the jurors during voir dire, what to say in opening statements and the questioning of witnesses.” Id. at 340. In McClure, this court observed that “[w]hether the defendant takes the stand changes the entire complexion of the case.” Id.