Howard v. Jammer Cycle Products, Inc.
| Citation | 80 Or.App. 492,723 P.2d 1012 |
| Parties | Ross E. HOWARD, Appellant, v. JAMMER CYCLE PRODUCTS, INC., and Mike Farmer and Joy Farmer dba M & J Custom Bikes, Respondents. 40021; CA A33094. |
| Decision Date | 06 August 1986 |
| Court | Court of Appeals of Oregon |
J. Richard Urrutia, Eugene, argued the cause for appellant. On the brief were Donald A. Bick and Bick & Monte, P.C., Eugene.
John Folawn, Portland, argued the cause for respondent Jammer Cycle Products, Inc. On the brief were Lee Aronson and Holmes, DeFrancq & Schulte, P.C., Portland.
Sarah K. Rinehart, Salem, argued the cause for respondents Mike Farmer and Joy Farmer dba M & J Custom Bikes. On the brief were Sam F. Speerstra and Rhoten, Rhoten & Speerstra, Salem.
Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.
Plaintiff brought this action to recover damages for personal injuries and property damage sustained in a motorcycle accident. He appeals from the judgment entered on a jury verdict finding him 50 percent at fault. 1 We reverse and remand with instructions.
The accident occurred on April 16, 1980, when the front wheel of plaintiff's customized Harley-Davidson motorcycle struck a large pothole. Plaintiff alleges that hitting the pothole caused him to lose control of the motorcycle because its modified front forks, manufactured by defendant Jammer Cycle Products, Inc., and sold to him by defendants Farmer, were defectively designed and were sold without adequate instruction for assembly. The issue on appeal is whether evidence of plaintiff's unrelated felony conviction on March 12, 1984, for the unlawful possession of marijuana was admissible under OEC 609(1)(a) for the purpose of impeaching his credibility without first weighing the probative value of the evidence against its prejudicial effect under either OEC 609(1)(a) or OEC 403.
OEC 609 sets forth the circumstances under which a witness may be impeached by evidence of a conviction. OEC 609(1) distinguishes crimes that do not inherently involve elements of untruthfulness, deceit or false statement, from those that do. It provides:
"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, or (b) involved false statement."
Defendants concede that the crime of unlawful possession of marijuana does not involve false statement; therefore, evidence of plaintiff's conviction was properly admitted only if it was admissible under OEC 609(1)(a).
Plaintiff contends, alternatively, that OEC 609(1)(a) applies only to criminal cases; or, if it applies to civil actions, the trial court, pursuant to the statute, was required to determine that the probative value of the conviction, as to his credibility, outweighed its prejudicial effect; or, if the balancing prescribed in OEC 609(1)(a) does not apply in civil actions, the trial court was required to determine that the prejudicial effect did not substantially outweigh its probative value under the general, less protective standards set forth in OEC 403. He argues that, if balancing is required under either OEC 609(1)(a) or OEC 403, the trial court erred in failing to apply the balancing process before it allowed evidence of his conviction to be introduced.
Plaintiff bases his first two contentions on a strictly grammatical interpretation of OEC 609(1)(a). He points out that it appears to set forth a two-prong test for admissibility: (1) that the crime be a felony, and (2) that the probative value of the evidence outweigh the prejudicial effect to the defendant. He contends that, because there is no "defendant" in the criminal sense involved in civil actions, the second prong of the test either renders OEC 609(1)(a) inapplicable in civil actions or that, in civil actions, "defendant" must be read broadly to encompass all parties potentially prejudiced by the proffered evidence.
Before the enactment of OEC 609 in 1981, evidence that a witness had been convicted of any crime was admissible to impeach the witness' credibility in both criminal and civil cases. No distinction was drawn between types of crimes and no balancing was prescribed or permitted. Smith v. Durant, 271 Or. 643, 534 P.2d 955 (1975). In contrast, OEC 609 clearly distinguishes between crimes that inherently reflect on the perpetrator's credibility and those that do not; the last phrase of subsection (1)(a) provides that evidence of conviction of the latter may be admitted only if the crime is a felony and only if the trial court determines, at least in criminal cases, apparently, that the probative value of the proffered evidence outweighs its prejudicial effect to the defendant.
Whether any part of OEC 609 applies to civil cases has not been decided in Oregon. The legislative commentary does not suggest that the drafters intended to limit the introduction of evidence under subsection (1)(a) to criminal cases; however, it does suggest that the prescribed balancing test is applicable only in criminal cases. 2 The statute is ambiguous, and the courts may consider the commentary as a guide to interpretation, although they are not bound by it.
Given the state of the law that existed before OEC, we conclude that OEC 609(1) applies to civil cases, as well as to criminal cases, forgetting for the moment the balancing test. We do so because it is apparent that the earlier law permitted evidence of any conviction for the purpose of impeaching a witness, regardless of the seriousness of the crime or the probative value of the conviction with respect to credibility. OEC 609 softens the earlier law in order to provide more assurance that evidence of a conviction, on its face, has some probative value. We perceive no persuasive reason to restrict the first portion of OEC 609(1)(a) to criminal cases.
With respect to the balancing test contained in subsection (1)(a), its application to civil cases is more problematical, because of the use of the word "defendant." If we were writing on a clean slate, we would conclude that the reference to "defendant" in the balancing test was unintentional. It makes little sense to apply the rule in a bifurcated manner in civil cases. Unfair prejudice to a party may result from admission of the evidence in both criminal and civil cases. Although the consequences of admitting it may be more severe in criminal cases, a party in a civil case may be treated unfairly by the jury because it may view the party as a bad person, even though the conviction has little or nothing to do with his believability. The same reasons apply in both categories of cases and, if the legislature had intended to limit the balancing test to the defendant in a criminal case, it could have done so in clear, unambiguous language. Accordingly, we would hold, if we were free to do so, that the balancing test applies to any party to litigation.
However, we do not write on a clean slate. In State v. McClure, 298 Or. 336, 343, 692 P.2d 579 (1984), a criminal case, the court accepted the view expressed in the legislative commentary. It stated:
"The commentary [to OEC 609] makes it clear that the balancing of the probative value against the prejudice only applies in a criminal case, and then only on behalf of the defendant in a criminal case."
Given the court's acceptance of the commentary, we hold that subsection (1)(a) applies generally to both criminal and civil actions, but that its balancing test applies only to the defendants in criminal cases.
We next consider plaintiff's contention that balancing probative value against prejudicial effect is required under OEC 403, regardless of whether the evidence is otherwise admissible under OEC 609. OEC 403 provides:
"Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence."
It is apparent that the weighing prescribed in OEC 403 applies to any relevant evidence and is more conducive to the admissibility of evidence than is its counterpart in OEC 609(1)(a). As stated in Kirkpatrick, Oregon Evidence, Rule 609, Art. VI at 251 (1982):
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State v. King
...in limine, that notwithstanding the 1986 amendment to OEC 609, balancing still is required by OEC 403 and Howard v. Jammer Cycle Products, 80 Or.App. 492, 723 P.2d 1012 (1986). He made no federal or state constitutional arguments in the Court of Appeals. In this court, defendant continues h......
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State v. Dick
...effect under the balancing test of OEC 403 and State v. Johns, 301 Or. 535, 725 P.2d 312 (1986). He relies on Howard v. Jammer Cycle Products, 80 Or.App. 492, 723 P.2d 1012 (1986), for the proposition that OEC 403 applies to evidence otherwise admissible under OEC 609(1)(a). The state argue......