State v. McClure

Citation298 Or. 336,692 P.2d 579
PartiesSTATE of Oregon, Respondent on review, v. Philip Wade McCLURE, Petitioner on review. TC 10-82-09308; CA A27547; SC S30560.
Decision Date18 December 1984
CourtSupreme Court of Oregon

[298 Or. 337-A] David E. Groom, Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the petition was Gary D. Babcock, Public Defender, Salem.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

JONES, Justice.

In this criminal appeal, the defendant seeks reversal of his convictions for rape in the first degree, sodomy in the first degree, kidnapping in the first degree and robbery in the first degree.

We need not detail the sordid facts of this case. Suffice it to say that a young student at the University of Oregon was running on a public bike path when she was kidnapped, raped, sodomized and robbed. The defendant had just been paroled from the Oregon State Penitentiary after being convicted of raping a 15-year-old near the same area in Eugene three years previously. In the present case he denied guilt and professed an alibi defense.

We accepted review in this case to determine whether the circuit court erred in denying defendant's motion to exclude evidence of his prior conviction of rape in the first degree. This evidence was offered by the prosecution under OEC 609(1), which provides in relevant part as follows:

"For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime in other than a justice's court or a municipal court shall be admitted if elicited from the witness or established by public record, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the defendant * * *."

Instead of waiting to object to the prior conviction impeachment evidence when offered by the prosecutor during defendant's cross-examination, the defense in this case filed a formal motion "in limine," see State v. Foster, 296 Or. 174, 182, 674 P.2d 587 (1983), prior to trial to exclude the evidence of the prior rape conviction. At the conclusion of the pretrial hearing, the trial judge stated that he would allow the prior conviction in evidence, but did not designate when, under what conditions or to what extent the evidence would be received.

The state claims that the defendant did not make a sufficient record for this court to review the trial court's ruling admitting the prior rape conviction for impeachment in the event the defendant testified. The state's brief reads:

"The defendant did not testify and made no offer of proof that the reason for his failure to take the stand was the pre-trial ruling."

The trial court had under advisement the admissibility of testimony about the prior rape committed by the defendant offered by the state as a "signature" type crime under OEC 404(3), which provides:

"Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident."

When defense counsel stated, "Well, I will represent to the Court, if your honor does permit the other crimes evidence, Mr. McClure will not testify," the court also had under advisement the state's offer of the prior conviction for impeachment purposes under OEC 609(1)(a). We believe that the message, though ambiguous, was that the defendant would not testify if the prior crime evidence was allowed in as substantive evidence under OEC 404(3) or for impeachment under OEC 609(1)(a).

During the pretrial hearing to limit evidence, defense counsel also told the court the essence of defendant's proposed testimony:

" * * * I believe it's very important for the defendant to get up to the stand and say where he was at the time and what he was doing and be able to state that he did not commit the crime."

The procedural question arises whether this is a sufficient record to preserve any error for our review. Can defense counsel rely on a pretrial ruling of the court or must counsel wait until trial and put his client on the stand to obtain a ruling during trial in order to protect his record? The defendant with a criminal record faces a serious dilemma. The defendant's problem is described by Professor McCormick as follows:

" * * * If the accused is forced to admit that he has a 'record' of past convictions, particularly if the convictions are for crimes similar to the one on trial, there is an obvious danger that the jury, despite instructions, will give more heed to the past convictions as evidence that the accused is the kind of man who would commit the crime on charge, or even that he ought to be put away without too much concern with present guilt, than they will to the legitimate bearing of the past convictions on credibility. The accused, who has a 'record' but who thinks he has a defense to the present charge, is thus placed in a grievous dilemma. If he stays off the stand, his silence alone will prompt the jury to believe him guilty. If he elects to testify, his 'record' becomes provable to impeach him, and this again is likely to doom his defense. * * *" McCormick, Evidence § 43, 99 (3rd ed 1984).

We believe trial courts should rule on the admissibility of prior crime impeachment evidence as soon as possible after the issue is raised. It 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. The 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. Whether the defendant takes the stand changes the entire complexion of the case. In discussing the procedure to be utilized in deciding when and which unlisted crimes to use in "false statement" crimes under OEC 609(1)(b), the legislative commentary makes the following recommendation:

" * * * Normally, the issue should be raised by motion in limine, as the court's ruling may have important tactical consequences at trial. * * * The Legislative Assembly intends that the trial court have full discretion in passing on any such motion."

The same procedure should be followed under OEC 609(1)(a) for the same reasons. Of course, depending on the circumstances, a trial judge may wish to withhold ruling on prior conviction evidence until he or she has heard all the trial testimony presented by both sides in order to effectively weigh the probative value of admitting the evidence against its prejudicial effect. See, United States v. Oakes, 565 F.2d 170 (1st Cir.1977). However, this should be a rare occurrence, because in most cases the trial judge should be able to make this determination from an offer of proof in a pretrial motion to limit the introduction of the prior crime impeachment evidence. We do not contemplate the necessity of a mini-trial for this decision. The prosecutor can merely tell the judge what evidence is expected to be presented and the defense counsel can do the same. 1 As the Oregon legislative commentary points out:

" * * * The court need not take defendant's testimony to decide its importance. In the interests of judicial efficiency, the court may make this determination based upon the summary of the accused's testimony as presented by defense counsel. Additionally, the court may take into consideration other remarks made by respective counsel about the nature of the case, and evidence already introduced, if any."

It 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. We agree with Judge Goodwin, writing for the Ninth Circuit in United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979), when he said that it is sufficient to protect the record in a criminal case for a defendant, by a statement of his attorney, to:

"(1) Establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and

"(2) Sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can do the necessary balancing contemplated in Rule 609. The trial court can then articulate its reasons for ruling as it does in each case." 2

In this case defense counsel did tell the court, "I guess what I would say first of all, with respect to--it's the intent of the defendant at this point to take the stand [if the prior conviction for rape would be held inadmissible as impeachment evidence]." Counsel then made the brief offer of proof previously mentioned. 3 The trial judge chose to rule at the time of the pretrial hearing that from what he had heard from the prosecution and the defense he would admit the prior crime evidence for impeachment purposes. The trial court chose to abide by that ruling throughout the trial by not reconsidering it and, therefore, the trial court and the parties were bound by that ruling. 4 The pretrial ruling is subject to our review. See, State v. Foster, supra.

In making his ruling, the trial judge referred to the legislative commentary to OEC 609(1)(a) and to the Court of Appeals case of State v. Carden, 58 Or.App. 655, 650 P.2d 97 (1982). The court also made reference to the New York Court of Appeals case of People v. Bennette, 451 N.Y.S.2d 647, 56 N.Y.2d 142, 436 N.E.2d 1249 (1982).

We turn first to the legislative commentary to OEC 609(1)(a). The commentary begins:

"The introductory phrase of the subsection states its purpose. The...

To continue reading

Request your trial
59 cases
  • People v. Hall
    • United States
    • California Court of Appeals Court of Appeals
    • 18 Mayo 2018
    ...Settles v. State (Miss. 1991) 584 So.2d 1260, 1265 ; State v. Ritchie (1984) 144 Vt. 121, 473 A.2d 1164, 1165.) And, in State v. McClure (1984) 298 Or. 336, 692 P.2d 579 ), where the trial court denied the defendant's in limine motion to exclude a prior conviction for impeachment and the de......
  • State v. Brunson
    • United States
    • New Jersey Supreme Court
    • 15 Junio 1993
    ...v. Richardson, 674 S.W.2d 515 (Ky.1984) (same); State v. Pitts, 212 Neb. 295, 322 N.W.2d 443 (1982) (same); State v. McClure, 298 Or. 336, 692 P.2d 579 (1984) (sanitizing similar prior convictions); State v. Rutchik, 116 Wis.2d 61, 341 N.W.2d 639 (1984) (sanitizing all prior convictions). S......
  • Jordan v. State
    • United States
    • Maryland Court of Appeals
    • 1 Septiembre 1990
    ...394, 395, 548 N.Y.S.2d 344, 346 (1989); State v. Whitehead, supra, 104 N.J. at 357-359, 517 A.2d at 375-376; State v. McClure, 298 Or. 336, 342 n. 4, 692 P.2d 579, 584 n. 4 (1984); Commonwealth v. Jackson, 385 Pa.Super. 401, 408, 561 A.2d 335, 338 (1989), aff'd, 526 Pa. 294, 585 A.2d 1001 (......
  • State v. Busby
    • United States
    • Oregon Supreme Court
    • 28 Enero 1993
    ...Moreover, defendant's careful consideration of that choice was facilitated by the timing of the ruling. In State v. McClure, 298 Or. 336, 340, 692 P.2d 579 (1984)--a case decided under the former version of OEC 609(1) that provided for discretionary balancing of probative value versus preju......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT