State v. Hubbard

• Decision Date: 04 March 1983
• Docket Number: No. C,C
• Citation: 657 P.2d 707,61 Or.App. 350
• Parties: STATE of Oregon, Respondent, v. Gary Thomas HUBBARD, Appellant. 81-07-33514; CA A23649.
• Court: Oregon Court of Appeals

Page 707

657 P.2d 707

61 Or.App. 350

STATE of Oregon, Respondent, v. Gary Thomas HUBBARD, Appellant.

No. C 81-07-33514; CA A23649.

Court of Appeals of Oregon.

Argued and Submitted Sept. 10, 1982.

Decided Jan. 19, 1983.

Reconsideration Denied March 4, 1983.

Phillip M. Margolin, Portland, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

GILLETTE, Presiding Judge.

Defendant was convicted in a jury trial of escape in the second degree, reckless driving and attempting to elude a police officer. He appeals, contending that the trial judge erred by refusing to allow him to cross-examine Officer Brose, the prosecution's principal witness, about his knowledge of standard police department procedures employed against officers who use unnecessary force. ¹ According to defendant's counsel at trial, the purpose of the thwarted cross-examination was to "test [Brose] for bias and corruption." We reverse.

At trial, Brose and defendant gave drastically different accounts of the events that occurred the night of defendant's alleged wrongdoing. The jury believed Brose. The only issue of merit on appeal concerns defendant's attempt to impeach Brose's credibility. Summaries of both Brose's and defendant's stories follow.

Brose testified that at approximately 3:00 one morning he observed defendant speeding in downtown Portland and pulled him over. Defendant's appearance, breath odor and movements prompted Brose to ask if he had been drinking. Before defendant answered, he received a message on a paging device in his car. In response to the message, defendant told Brose he had to leave immediately. Brose told defendant that he could not go until Brose had determined that he was sober. When defendant insisted on leaving, Brose told him that he was under arrest and ordered him from the car. At that point, defendant drove off. Brose chased defendant to his house, called for cover and then attempted to handcuff defendant. Defendant resisted, hitting Brose in the face with his elbow and then attacking with his fists; Brose struck back with his service baton. The entire fight lasted between 30 seconds and one minute. Defendant then disappeared into his garage, and Brose retreated to his car to await the arrival of another officer.

Defendant claims that he was driving through downtown Portland, obeying traffic signals and traveling at a speed that he believed was within the limit. Brose pulled him over, asked him whether he had been speeding and drinking and asked to see his license. Defendant's pager then went off, followed by defendant's wife's voice asking him to come home immediately. Defendant told the officer that he had to go home and asked Brose to follow him. Brose did not respond and did not place defendant under arrest. Defendant left.

Brose and defendant reached defendant's house at about the same time. As defendant was getting out of his car, Brose suddenly placed a handcuff on defendant's left hand. Defendant asked Brose what was "going on." Brose asked defendant if he had ever been maced and then proceeded to hit him about a dozen times with his club. Defendant testified that he had screamed to his wife for help and tried to stop Brose's blows, but that he never struck the police officer. Defendant escaped into his house, pursued by the police officer, who banged on the door and threatened to break it down.

Defendant's version of the story was partially corroborated at trial by one of his tenants, who heard defendant screaming his wife's name. Defendant's wife also corroborated his testimony about the paging, his screams for help, his flight to safety and the police officer's threats to break into the house.

After Brose had given his version of the story at trial and defendant's counsel had subjected him to some cross-examination, the following exchanges occurred:

"Q: [By defense counsel] Now if a Portland police officer acts unreasonably and uses too much force at an arrest scene, are there internal procedures regarding that question?

"A: Yes.

"Q: And an officer who did something like that would have to do what--stand a board trial or--by the department?

"MR. BALL: Your Honor, I'd have to object to this.

" * * *

"THE COURT: I sustain the objection.

" * * *

"As soon as we have a recess, you can make your record, Mr. Connall."

At the first recess, the following occurred:

"THE COURT: * * *

"The second question you asked was the question: 'Whenever an officer uses excessive force'--you started asking that question, and it's perfectly proper, Mr. Connall, if Mr. Hubbard--had he filed a complaint with the Police Department, you could ask him then and proceed with the inquiry, but just to make a broad statement about some officer being investigated and what is the procedure--

"MR. CONNALL: May I be heard?

"THE COURT: Certainly. * * * Just proceed with what question you were going to ask him and I'll make a ruling.

"Q: [By Mr. Connall] Are you aware of internal police procedure regarding what happens when a police officer uses too much force out on the street against a citizen?

"THE COURT: Answer.

"THE WITNESS: Yes, I am.

"Q: [By Mr. Connall] And if those charges are sustained against an officer, are you aware of what could happen to an officer?

"A: Yes.

"Q: What is that?

"A: There are varying things that can happen. Internal Affairs can decide to turn the investigation over to the detectives who may want to do it like a criminal proceeding, because, if Internal Affairs interviews me knowing that what I say is going to be used against me in court because--or any officer--because it would be coerced out of me or they could just send it to the Chief, and the Chief can decide on discipline, and the union can decide to appeal and it can go to arbitration. There's just all kinds of things that can happen.

"MR. CONNALL: Thank you.

"MR. BALL: I would have just one question in this offer of proof. Do you [police officer] know if Mr. Hubbard ever lodged an Internal Affairs complaint against you?

"THE WITNESS: I know that he has not * * *.

"MR. BALL: Thank you.

"THE COURT: I'm not going to allow the testimony on this matter of proof, but I gave a reason for it, as I said before. I assume there must be a complaint filed with the Police Department by somebody before any activity takes place. You leave an inference with this jury, in a way, that would be that he did have some complaint or something to that effect filed against him and the effect of it. This is not proper, Mr. Connall; you know it and I know it.

" * * *

"MR. CONNALL: I'm simply attempting to test this witness for bias and corruption. I have my record." (Emphasis supplied.)

Defendant contends that the trial judge committed reversible error by refusing to allow the impeachment. The trial judge explained his ruling by stating that the resulting evidence would leave the jury with an incorrect inference that defendant had filed a complaint against Brose. On appeal, the state recasts the judge's ruling in terms of relevancy: "The matter was too remote to constitute proper impeachment," because defendant had not indicated that he had filed or was going to file a complaint against the police officer. As we see it, the questions to be resolved are (1) whether the proffered evidence is relevant to show bias, interest and motive to testify; and (2), if so, whether the trial judge abused his discretionary authority to limit the scope of cross-examination by excluding the evidence?

A defendant in a state criminal proceeding is entitled, as a matter of federal constitutional right, to cross-examine prosecution witnesses. U.S. Const.Amend. VI and XIV; Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed.2d 420 (1966); State v. Ramos, 121 N.H. 863, 435 A.2d 1122 (1981); State v. Anthony, R.I., 422 A.2d 921 (1980). Although it is generally within the trial judge's discretion to limit the scope of cross-examination for bias, Shrock v. Goodell, 270 Or. 504, 510, 516, 528 P.2d 1048 (1974); McCarty v. Hedges, et al., 212 Or. 497, 516, 309 P.2d 186, 321 P.2d 285 (1958), a criminal defendant should be given great latitude to cross-examine. State v. Day, 236 Or. 458, 389 P.2d 30 (1964); State v. Williams, 6 Or.App. 189, 487 P.2d 100 (1971), cert. den. 406 U.S. 973, 92 S.Ct. 2420, 32 L.Ed.2d 673 (1972). Free and vigorous cross-examination is particularly important when prosecution and defense witnesses give sharply conflicting accounts of the facts and the jury must assess the credibility of the witnesses. See Alford v. United States, 282 U.S. 687, 691-92, 51 S.Ct. 218, 219, 75 L.Ed. 624 (1931); United States v. Barrentine, 591 F.2d 1069, 1081 (5th Cir.), cert. den. 444 U.S. 990, 100 S.Ct. 521, 62 L.Ed.2d 419 (1979); United States v. Fowler, 465 F.2d 664, 666-67 (D.C.Cir.1972). Despite the breadth of a trial judge's discretion with regard to the scope of cross-examination, he can abuse that discretion by completely foreclosing a legitimate defense attempt to cross-examine. State of Oregon v. Bailey, 208 Or. 321, 300 P.2d 975, 301 P.2d 545 (1956); see also State v. Ramos, supra; State v. Anthony, supra; McCormick on Evidence, § 40, 81 (2d ed. 1972).

In this case, Brose and defendant are the only witnesses to the events giving rise to the charges against defendant. Their accounts of what happened bear little resemblance to one another. Because Brose was the only eyewitness to testify against defendant, defendant's conviction would likely have resulted from the jury's determination that his testimony was more credible than defendant's. Inasmuch as the outcome of this case probably turned on the jury's determination of credibility, it was imperative that both sides have ample opportunity to cross-examine each other's witnesses....