Powers v. Cheeley

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: ROSSMAN
• Citation: Powers v. Cheeley, 762 P.2d 1019, 93 Or.App. 294 (Or. App. 1988)
• Decision Date: 25 November 1988
• Docket Number: C-10512
• Parties: Stephen POWERS, Respondent, v. Officer CHEELEY and the City of Salem, Appellants. 87; CA A46380.

Page 1019

762 P.2d 1019

93 Or.App. 294

Stephen POWERS, Respondent, v. Officer CHEELEY and the City of Salem, Appellants.

87C-10512; CA A46380.

Court of Appeals of Oregon.

Argued and Submitted June 15, 1988.

Decided Oct. 5, 1988.

Reconsideration Denied Nov. 25, 1988.

William G. Blair, Asst. City Atty., Salem, argued the cause for appellants. With him on the brief was William J. Juza, City Atty., Salem.

J. Michael Alexander, Salem, argued the cause for respondent. With him on the brief was Burt, Swanson, Lathen, Alexander & McCann, Salem.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

ROSSMAN, Judge.

Defendants appeal the trial court's judgment for plaintiff in this action for assault and battery. Defendants assign as error the trial court's admission of testimony about a witness's prior consistent statements to rebut a charge of recent fabrication under OEC 801(4)(a)(B). We affirm.

On March 19, 1986, defendant Cheeley and Trooper Gilbert assisted Trooper Pecyna in the stop of a vehicle driven by Beaty. The car was owned by plaintiff, a paraplegic, who was a passenger in the right front seat. While Pecyna was talking to the driver, plaintiff rolled down his window and began to argue with Gilbert and Cheeley. During the course of the argument, Cheeley ordered plaintiff to get out of the car. When plaintiff refused, Cheeley grabbed the car door handle, which came off in his hand.

What happened next was the subject of directly conflicting testimony at trial. According to plaintiff, after ripping the door handle off, Cheeley became enraged and attempted to pull plaintiff through the open window. Plaintiff charged that, by dragging him across the car seat, Cheeley damaged the skin in the area of plaintiff's recent surgery. Cheeley testified, however, that he looked at plaintiff's legs through the car window and realized that he is a paraplegic. At that point, he and Gilbert broke off their discussion with plaintiff. According to Cheeley, he at no time touched plaintiff.

The order in which plaintiff called his witnesses bears on the issues presented here. Plaintiff first called Gilbert as an adverse witness. Gilbert testified that, so far as he recollected, "nobody touched anybody that evening." When plaintiff asked him whether "any evidence to the contrary would be fabrication," Gilbert replied, "Yes." ¹ Plaintiff later called Beaty, who testified that Cheeley had grabbed plaintiff and tried to pull him through the car window. He also testified that, when he and plaintiff had returned to Beaty's home, they examined the area of plaintiff's surgery and spoke to Beaty's wife, Vicki.

Plaintiff then called Vicki to testify that, when Beaty and plaintiff returned home, both men told her that the police had tried to pull plaintiff from the car. Defendants objected on the basis of hearsay. After an offer of proof, the court excluded Vicki's testimony regarding plaintiff's statements, because plaintiff had not yet testified. It did, however, admit her testimony as to Beaty's statements under OEC 801(4)(a)(B):

"(4) Statements which are not hearsay. A statement is not hearsay if:

"(a) Prior Statement by Witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is:

" * * *

"(B) Consistent with the testimony of the witness and is offered to rebut * * * an express or implied charge against the witness of recent fabrication or improper influence or motive * * *."

Vicki's testimony is admissible if defendants made "an express or implied charge of recent fabrication" against Beaty. Defendants argue, however, that they made no such charge. We thus consider for the first time the issue of what kind of impeachment is necessary to constitute a charge of recent fabrication under 801(4)(a)(B).

Defendants first contend that Gilbert did not charge Beaty, specifically, with fabricating the story that Cheeley had tried to pull plaintiff out of the car. Rather, plaintiff asked Gilbert a hypothetical question, namely, whether "any evidence to the contrary [of Gilbert's testimony] would be fabrication?" Because Beaty had not yet even testified, and because Gilbert did not name Beaty specifically as having fabricated a story, defendants argue that Gilbert's statement could not have impeached him.

Second, defendants argue, even if Gilbert's statement can be construed as an implied attack on Beaty's credibility, plaintiff elicited the testimony himself. Defendants assert that permitting a party to suggest that its own witness has fabricated testimony in effect allows the setting up of straw men to knock down with evidence of prior consistent statements. If that is allowed, defendants contend, the hearsay exception embodied in OEC 801(4)(a)(B) will destroy the limits of the rule.

Finally, defendants argue that their cross-examination of Beaty contained no express or implied charge of recent fabrication. Instead, it focused on areas related to potential conflicts between the testimony of Beaty and of plaintiff, serving mainly to lay a foundation for later argument. Because Beaty's credibility was never the object of a "focused and coherent attack," either in Gilbert's testimony or on cross-examination, defendants contend, Vicki's testimony did not fall within the OEC 801(4)(a)(B) exception, but merely bolstered her husband's testimony.

Under the circumstances of this case, however, admission of Vicki's testimony fell within both the plain language and the legislative intent of OEC 801(4)(a)(B). The rationale behind OEC 801(4)(a)(B) is that, when a question has been raised concerning a witness's veracity, proof that he made earlier statements consistent with his testimony under circumstances in which he had no reason to lie should be allowed to remove doubts about his truthfulness. In this case, the trial court recognized that Beaty would have no reason to fabricate a story for his wife's benefit a few minutes after the alleged incident took place. Beaty was available for cross-examination regarding his statements. Moreover, 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. Consequently, the court's admission of Vicki's testimony clearly was proper.

The legislative commentary accompanying subsection 4 of OEC 801 supports this view. It states, in part:

"Prior statements admissible under subparagraph (a)(B) * * * are admitted as substantive evidence. The prior statement reinforces the testimony given on the stand. If the opposite party wishes to open the door for its admission into evidence by attacking the witness, either through the substantive use of prior inconsistent statements or by impugning the witness' motive, no sound reason is apparent why it should not be received generally.

"The Legislative Assembly does not intend, in adopting Rule 801(4)(a)(B), to overrule either Cook v. Safeway Stores [266 Or. 77, 511 P.2d 375 (1973) ] or Hale v. Smith [254 Or. 300, 460 P.2d 351 (1969) ]. The Legislative Assembly recognizes that in both of those cases the court may have expressed a willingness to allow prior consistent statements for purposes other than to rebut a charge of recent fabrication or improper influence or motive, e.g. to rebut an imputation of inaccurate memory."

This commentary demonstrates a liberal attitude toward admission of prior consistent statements made by a declarant subject to cross-examination at trial. Conforming with this expression by...