768 P.2d 391 (Or. 1989), SC S35218, State v. King

Docket Nº:TC 87C-20700A; CA A45979, CA A45980, CA A45981; SC S35218.
Citation:768 P.2d 391, 307 Or. 332
Opinion Judge:VAN HOOMISSEN, J.
Party Name:STATE of Oregon, Respondent on Review, v. Robert Edward KING, Petitioner on Review.
Attorney:Ingrid A. MacFarlane, Salem, argued the cause for petitioner on review. With her on the the petition was Gary D. Babcock, Public Defender, Salem. Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the response to the petition were Dave Froh...
Case Date:January 31, 1989
Court:Supreme Court of Oregon
 
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Page 391

768 P.2d 391 (Or. 1989)

307 Or. 332

STATE of Oregon, Respondent on Review,

v.

Robert Edward KING, Petitioner on Review.

TC 87C-20700A; CA A45979, CA A45980, CA A45981; SC S35218.

Supreme Court of Oregon.

January 31, 1989

Argued and Submitted Sept. 7, 1988.

[307 Or. 333] Ingrid A. MacFarlane, Salem, argued the cause for petitioner on review. With her on the petition was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response to the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before PETERSON, C.J., and LINDE, CAMPBELL, [*] CARSON, JONES, GILLETTE and VAN HOOMISSEN, JJ.

[307 Or. 334] VAN HOOMISSEN, Justice.

This case involves the interpretation and constitutionality of OEC 609, as amended in 1986 by the "Crime Victims' Bill of Rights," Or.Laws 1987, ch. 2, § 1. 1

Page 392

Defendant appeals convictions on three counts of robbery in the first degree with a firearm. ORS 164.415; 161.610. He contends that the trial court erred in denying his motions to exclude evidence of his prior convictions and for a judgment of acquittal on one of the robbery counts. The issues are whether the trial court was required to "balance" the probative value of the evidence against its prejudicial effect, and whether there was sufficient evidence to find beyond a reasonable doubt that defendant robbed Dwight Lamb, one of the three victims, with a deadly weapon. The Court of Appeals affirmed from the bench. State v. King, 90 Or.App. 645, 754 P.2d 39 (1988). We affirm the decisions of the Court of Appeals and the trial court.

In December 1986, three masked men broke into the home of Dwight and Ruth Lamb and their son Andrew. Ruth and Andrew were in the living room. Dwight, recently returned home from the hospital, was asleep in the bedroom. 2 [307 Or. 335] One man carried a sawed-off shotgun, another a pistol and the third a screwdriver. The robbers wrapped Andrew's hands, legs, mouth and eyes with duct tape, but he could still see the shotgun pointed at him. He saw them bind his mother. The robber with the shotgun threatened her and waved the shotgun at her. Andrew heard "scuffling" in the bedroom and he saw pictures being knocked off the walls. After about 25 minutes, the robbers left, taking with them cash, jewelry and other property. Andrew immediately removed the tape and checked on his father. He found him on the floor covered by a blanket. The robbers had knocked over shelves, emptied drawers and had piled things on the bed. Defendant, his brother Bill and Eric Harris were later charged with three counts of robbery.

At trial, defendant decided to testify on his own behalf. He anticipated that the state would offer evidence of his prior convictions to impeach his credibility. Recognizing that the 1986 amendment to OEC 609 had eliminated the OEC 609(1)(a) requirement that a trial court must first balance the probative value of such evidence against its prejudicial effect, he asked the court in a motion in limine to balance the evidence under OEC 403. 3 He argued that OEC 403 applies to evidence otherwise admissible under OEC 609(1). He relied primarily on State v. McClure, 298 Or. 336, 692 P.2d 579 (1984). He also argued that failure to balance denied him "due process under both federal and state constitutions." Defendant cited no specific provision of the Oregon Constitution in making his state "due process" claim. Nor did he point to any reason why the result might be different under the state constitution. See State v. Farber, 295 Or. 199, 207 n. 10, 666 P.2d 821 (1983). The trial court concluded that no balancing was required under current law and denied the motion. 4 After this adverse ruling, in an attempt to take [307 Or. 336] the sting out of the state's impeaching evidence, defendant mentioned some of his prior convictions during his direct testimony. On cross-examination, the state offered evidence of all of defendant's prior

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convictions to impeach his testimony. OEC 609. The jury convicted him on all three counts.

In the Court of Appeals, defendant argued, as he did in his motion 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...

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