State v. Affeld

• Decision Date: 16 November 1988
• Docket Number: CA,CR-85-77
• Parties: STATE of Oregon, Respondent on Review, v. Jeffrey Curtis AFFELD, Petitioner on Review. TCA38006, SC S35085. *
• Court: Oregon Supreme Court

Page 220

764 P.2d 220

307 Or. 125

STATE of Oregon, Respondent on Review, v. Jeffrey Curtis AFFELD, Petitioner on Review.

TC CR-85-77, CA A38006, SC S35085.

Supreme Court of Oregon,

In Banc ^*.

Argued and Submitted July 12, 1988.

Decided Nov. 16, 1988.

Diane L. Alessi, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the petition for review was Gary D. Babcock, Public Defender, Salem.

Philip Schradle, Asst. Atty. Gen., Salem, argued the cause and filed a response to the petition for review. With him on the response were Dave Frohnmayer, Atty. Gen. and Virginia L. Linder, Sol. Gen., Salem.

CAMPBELL, Justice.

Defendant was charged with robbery in the first degree. One Newton was also charged in connection with the same incident, and the two were tried separately. Newton had been found guilty but had not been sentenced at the time of defendant's trial. He refused to testify during the state's case in chief and during the presentation of defendant's evidence, claiming his Fifth Amendment right to not incriminate himself. After defendant had testified, Newton agreed to testify in rebuttal of defendant's testimony. The circuit court allowed Newton to testify but limited the scope of defendant's cross-examination of Newton. Defendant was convicted of the lesser included offense of robbery in the second degree, and the Court of Appeals affirmed. State v. Affeld, 90 Or.App. 26, 751 P.2d 229 (1988). The issue addressed by the Court of Appeals was whether the limitation of the cross-examination was proper. We hold that the Court of Appeals should not have addressed this issue because defendant made no offer of proof and failed to raise any issue relating to statutory issues at trial. We affirm the decision of the Court of Appeals and the judgment of the circuit court.

Defendant objected to allowing Newton to testify on rebuttal, claiming that defendant could not adequately cross-examine Newton. Prior to Newton's testifying before the jury, an offer of proof was made to show what Newton's testimony would be. During the offer of proof, defendant, in a simulated cross-examination, attempted to ask Newton about the encounter with the victim. The trial court stated that the question elicited testimony outside the scope of direct examination which had been concerned primarily with whether defendant's rifle was loaded at the time of the robbery. Defendant did not ask any further questions, did not argue that the limitation improperly restricting the scope of cross-examination was contrary to OEC 611(2) and made no offer of proof as to what Newton would have replied to the question.

On appeal, the Court of Appeals, sitting in banc, affirmed the conviction over the dissent of four members of the court. Both the majority and dissenting opinions addressed the proper interpretation of OEC 611(2) in attempting to determine whether questioning Newton about the encounter would exceed the permissible scope of cross-examination.

Normally, an offer of proof is required to preserve error when a trial court excludes testimony. The purpose of this rule is to assure that appellate courts are able to determine whether it was error to exclude the evidence and whether any error was likely to have affected the result of the case. State v. Jenkins, 246 Or. 280, 281, 424 P.2d 894 (1967). An exception to the general rule has been allowed on cross-examination, and no offer of proof has been required on cross-examination. State v. Luther, 296 Or. 1, 7, 672 P.2d 691 (1983).

Luther follows a line of cases, State v. Davidson, 252 Or. 617, 622-23, 451 P.2d 481 (1969); Stillwell v. S.I.A.C., 243 Or. 158, 162, 411 P.2d 1015 (1966); Beemer v. Lenske, 241 Or. 47, 49, 402 P.2d 90 (1965); and Arthur v. Parish, 150 Or. 582, 591, 47 P.2d 682 (1935), which stated that no offer of proof is required on cross-examination. The only justification for the exception offered by any of these cases is that a cross-examiner has no idea what the answer to the question will be. While this might be so, there is no reason that the cross-examiner should not determine the answer by asking the question as part of the offer of proof.

If an offer of proof could only be made by means of a statement by a party or the party's attorney, the rationale for the rule would be valid. However, an offer of proof may be made by means of a question and answer out of the presence of the jury. Defendant was aware that an offer of proof could be made in such a fashion because the judge's restriction on cross-examination was imposed in such an offer of proof, not during testimony before the jury.

Article VII (Amended), section 3, of the Oregon Constitution requires this court to affirm judgments of lower courts if, in the opinion of this court, the judgment achieved the correct result, even if error was committed. That constitutional provision makes it incumbent on lower courts and the parties appearing in lower courts to ensure that the record reviewed by this court is adequate for this court to make a reasoned decision. A record can be adequate in situations in which the scope of testimony is restricted by the trial court only if an offer of proof is made. There is no reason not to require an offer of proof on cross-examination.

The only situations in which an offer of proof is not required are those situations in which an offer of proof is impossible because of a trial court's refusal to allow the offer of proof to be made. An offer of proof was possible in this situation, and none was made. The holding of Luther, and the line of cases it follows, that an offer of proof need not be made on cross-examination, is expressly overruled. Without an offer of proof, the issue raised by defendant should not be addressed on appeal.

Defendant also did not...