Powers v. Cheeley
| Decision Date | 04 April 1989 |
| Docket Number | C-10512 |
| Parties | Stephen POWERS, Respondent on Review, v. Officer CHEELEY and the City of Salem, Petitioners on Review. TC 87; CA A46380; SC S35705. |
| Court | Oregon Supreme Court |
William G. Blair, Asst. City Atty., Salem, argued the cause and filed the petition for petitioners on review. With him on the brief was William J. Juza, City Attorney, Salem.
J. Michael Alexander, Salem, argued the cause for respondent on review. With him on the response to the petition was Burt, Swanson, Lathen, Alexander & McCann, Salem.
This civil assault case involves the admissibility of an out-of-court statement offered to prove the truth of the matter asserted. The trial court entered judgment, which the Court of Appeals affirmed, on a jury verdict for Plaintiff Stephen Powers against the Defendants Salem Police Officer Cheeley and the City of Salem. Powers v. Officer Cheeley, 93 Or.App. 294, 762 P.2d 1019 (1988). The out-of-court declarant, William Beaty, testified that Cheeley had tried to pull Powers out of a car through an open window. Beaty's wife, Vicky, subsequently testified that her husband told her the same account of events on the night of the incident.
The general rule is that out-of-court declarations are excluded from evidence when offered to prove the truth of the matter asserted therein. OEC 802 and 801(3); McCormick, Evidence 744, § 251 (3d ed. 1984). Powers urges that Vicky Beaty's testimony as to what her husband told her is a consistent statement which is admissible by reason of the recent fabrication exception in OEC 801(4)(a)(B) which provides:
A statement is not hearsay if:
The Court of Appeals affirmed the judgment. Defendant appeals. The central issue is: Was there an implied charge of recent fabrication in this case within the meaning of the Oregon Evidence Code? The Court of Appeals reasoned:
Supra, 93 Or.App. at 299, 762 P.2d 1019 (1988).
The Court of Appeals also found that "in building their entire case on the theory that plaintiff's allegations were fabricated, defendants 'opened the door' to an implication that Beaty was lying." 93 Or.App. at 298, 762 P.2d 1019.
We disagree with the analysis of the Court of Appeals and with its reading of the rule. Admitting the out-of-court statement was error in the circumstances of this case. But because the error was not prejudicial, we affirm the judgment.
In the early morning hours of March 19, 1986, three police officers from two police agencies left a restaurant. At trial, they testified that their attention was drawn to a 1955 Chevrolet which they decided to pursue because of the manner in which it was being driven. State Trooper Pecyna stopped the vehicle. Immediately thereafter, State Trooper Gilbert and defendant Cheeley arrived in their separate vehicles. Pecyna began to cite William Beaty, the Chevrolet's driver, for excessive tire noise. Cheeley approached Powers, who occupied the passenger side of the Chevrolet, and asked Powers to get out. When Powers did not get out, Cheeley, who stands six feet three inches tall and weighs 225 pounds, pulled the passenger side-door handle off the automobile.
What happened next is disputed. Cheeley testified that he did not touch Powers. Powers testified that Officer Cheeley reached into the vehicle with both hands and tried to pull Powers out through the open window, stopping only when it became apparent that Powers was a paraplegic.
Powers contends that he was pulled across the seat of the auto, opening a recent skin graft which had been surgically implanted to correct pressure ulcers in the area between his rectum and scrotum. Cheeley argued that this injury occurred either when he was not present or that Powers had opened the skin graft by sliding across the seat in the opposite direction to avoid being near the open window on the vehicle's passenger side.
Over objection, Vicky Beaty testified that, when her husband and Powers returned to the Beaty household about 15 minutes after the incident, Mr. Beaty told her that a policeman tried to pull Powers through the window. She also testified, without objection, that upon returning home her husband took down Powers's pants, looked at the area of Powers's body, and told her it was pretty bad, too bad for her to look at.
Plaintiff's plastic surgeon, who had implanted the skin graft five weeks before the incident and who had continued to follow the plaintiff's condition since that operation, testified that he had treated the aggravated condition within hours after the incident.
Powers claims damages from Cheeley and the City of Salem as his employer.
The order of proof was unusual in this case and that, perhaps, led the trial court into a mistake. At trial Powers's counsel called Trooper Gilbert as his first witness and asked:
Defendant made no objection or motion to strike.
Powers later called to the witness stand Mr. Beaty, who was not asked about and did not testify to the out-of-court statement. 1 Powers next called Vicky Beaty:
The objection was sustained on the ground that the testimony would not be within OEC 801(4)(a)(B). After an offer of proof, the court focused on the words "implied charge" in OEC 801, referred in general to the commentary to the rule, 3 and decided to admit the statement into evidence.
Vicky Beaty testified that when her husband arrived home after the alleged assault he said to her "that they were stopped and that the police officer hadn't believed Steve [Powers] couldn't get out of the car and tried to pull him out through the window." Defendants assign error based upon admission of this testimony.
Was this testimonial evidence admissible under the recent fabrication rule? A requirement for admissibility is that the "declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement * * *." OEC 801(4)(a) (emphasis added). Although William Beaty was not asked about his out-of-court statement, he did testify. No effort was made to recall him for cross-examination concerning the statement. For the purposes of this case we will assume that that portion of the rule just quoted was satisfied. See supra, note 1. But to be admitted under this exception, the out-of-court statement must be "consistent with the testimony of the [declarant as a] witness." OEC 801(4)(a)(B). Because the rule is couched in terms of "offered to rebut," there is some authority that impeachment of the declarant witness is a precondition to admissibility. 4 Weinstein, Evidence 801-152-53 (1988). Our decision does not turn on this point.
"Recent fabrication" are words of art having a meaning and a context in which they were customarily employed in the law long before the Oregon Evidence Code was adopted. In 1836, Justice Story recognized a specific hearsay exception, describing it "as where the testimony is assailed as a fabrication of a recent date, or a complaint recently made; for there, in order to repel such imputation, proof of the antecedent declaration of the party may be admitted." Ellicott v. Pearl, 35 U.S. (10 Pet.) 412, 439, 9 L.Ed. 475, 487 (1836).
This court recognized the rule that generally prior consistent declarations of a witness are inadmissible in Maeder Steel Products Co. v. Zanello, 109 Or. 562, 577, 220 P. 155 (1924). The Maeder court noted an exception which allows admitting out-of-court declarations of a witness that are consistent with the witness's testimony at trial but only if qualified under the recent fabrication rule:
" 'Where, however, a witness has been assailed on the ground that his story is a recent fabrication, or that he has some motive for testifying falsely, proof that he gave a similar account of the transaction when the motive did not exist, before the effect of such account could be foreseen, or when motives of interest would have induced a different statement, is admissible * * *.' " 109 Or. at 578, 220 P. 155 (citation omitted).
Maeder implies what other cases expressly hold, that the word "recent" means that the prior consistent statement which may be admitted is one made before the alleged motive to fabricate arose. As Professor McCormick explains, the class of statements are admissible "to show that a witness whose testimony has allegedly been influenced told the same story before the influence was brought to bear." McCormick, Evidence 747, § 251(d)(1)(B) (3d ed. 1984) (emphasis added). That chronology of prior statement first, influence or motive second, distinguishes the admissible statement from one which may be fabrication of "recent" origin. The absence of motive or influence to fabricate at the time the statement was made increases its trustworthiness. A statement made after the motive...
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