State v. Blake

• Decision Date: 08 September 1981
• Docket Number: No. 79-7-322,79-7-322
• Citation: 633 P.2d 831,53 Or.App. 906
• Parties: STATE of Oregon, Respondent, v. Micheal Edward BLAKE, Appellant. ; CA 17577.
• Court: Oregon Court of Appeals

Page 831

633 P.2d 831

53 Or.App. 906

STATE of Oregon, Respondent, v. Micheal Edward BLAKE, Appellant.

No. 79-7-322; CA 17577.

Court of Appeals of Oregon.

Argued and Submitted Dec. 12, 1980.

Decided Sept. 8, 1981.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Karen H. Green, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before JOSEPH, P. J., and WARDEN and WARREN, JJ.

WARREN, Judge.

Defendant seeks reversal of his convictions for first degree rape, ORS 163.375, and first degree sodomy, ORS 163.405. He assigns as error the trial court's: (1) denial of his motion for new trial; (2) failure to give his requested instruction that the complainant's testimony should be viewed with caution; and (3) denial of his motion objecting to the exclusion of the public from the sexual conduct hearing held pursuant to ORS 163.475(4). We affirm.

Defendant contends that his motion for new trial should have been granted because the prosecutor: (1) during both voir dire and closing arguments violated a court order prohibiting the introduction of evidence of complainant's belief that defendant had put LSD into her drink; and (2) in the presence of the jury improperly referred to defendant's prior drug use.

In State v. Truxall, 2 Or.App. 214, 217, 476 P.2d 643 (1970), we stated:

" ' * * * Denial of a motion for a new trial based upon alleged errors committed on (sic) the trial, of which errors the appellant had knowledge at the time, may not be assigned as error on appeal. Sullivan et al. v. Carpenter, 184 Or. 485, 494, 199 P.2d 655 (1948); Shearer v. Lantz, 210 Or. 632, 312 P.2d 581 (1957).(')"

However, due to the fact that the defendant in Truxall had objected below to each of the errors claimed on appeal, we considered his alleged errors and did not penalize him for improperly referring to his motion for new trial.

In the present case, defendant objected to the prosecutor's comment on voir dire concerning the victim's belief that defendant had drugged her. Defendant also objected to the prosecutor's remark regarding his prior drug use. In both instances, he moved for mistrial. Thus, defendant preserved these issues for review. Even though here, as in Truxall, defendant has erroneously assigned as error the denial of his motion for a new trial, we will treat his arguments as attacking the trial court's denial of his motions for mistrial. However, defendant failed to object to the prosecutor's comment during closing argument regarding complainant's belief that she had been drugged by defendant. This alleged error has not been preserved, and we will not consider it. State v. Gwyther, 4 Or.App. 473, 476, 479 P.2d 248 (1971).

The decision to grant a motion for mistrial rests in the sound discretion of the trial court. Kashmir v. Patterson, 43 Or.App. 45, 50, 602 P.2d 294 (1979), aff'd 289 Or. 589, 616 P.2d 468 (1980). Such a ruling will not be overturned absent a showing that the trial court abused its discretion by improperly tolerating uninvited prejudice. While we agree that the prosecutor's comment on voir dire was improper, it did not constitute reversible error. Moreover, we note that the trial court gave a cautionary instruction immediately after the remark was made.

Defendant further maintains that error was committed when the prosecutor posed the following question to the complainant:

"Q. Did he ever tell you about his prior drug use?

"A. No."

This question may have implied to the jury that defendant had previously used drugs. However, in view of complainant's negative answer and her subsequent testimony, which defendant sought to have introduced, that on the night before the alleged rape and sodomy she, defendant, and another man smoked hashish together, we concluded reversible error was not committed.

In his second assignment of error, defendant contends that the trial court erred in failing to instruct the jury that the victim's testimony should be viewed with caution. While such a cautionary instruction has been approved by this court, the decision to give it is discretionary. State v. Harwood, 45 Or.App. 931, 941, 609 P.2d 1312, rev. den. 289 Or. 337 (1980). After reviewing the testimony, we conclude that the trial court did not abuse its discretion by refusing to give the requested instruction.

Finally, defendant challenges the constitutionality of ORS 163.475(4), which requires an in camera hearing to determine the admissibility at trial of the victim's prior sexual conduct. Defendant asserts that this procedure denies the accused his right to a public trial, guaranteed by Article I, sections 10 ¹ and 11, ² of the Oregon Constitution and by the Sixth ³ and Fourteenth Amendments to the Constitution of the United States.

In order to pass on the constitutionality of subsection (4) of ORS 163.475, we must view it in perspective with the entire statute. ORS 163.475 provides:

"(1) For the purposes of this section, 'complainant' means the alleged victim of the crime for which the defendant is prosecuted.

"(2) In a prosecution under ORS 163.355 to 163.425, evidence of the sexual character or sexual reputation of the complainant is not admissible for any purpose, and reference to the sexual character or sexual reputation of the complainant shall not be made in the presence of the jury.

"(3) Except as provided in subsection (4) of this section, in a prosecution under ORS 163.355 to 163.425, evidence of previous sexual conduct of a complainant is presumed to be irrelevant and shall not be admitted and reference to that conduct shall not be made in the presence of the jury. This presumption may be overcome.

"(4) If a defendant wishes to elicit evidence or testimony concerning previous sexual conduct of the complainant, the defendant must, prior to the offering of such evidence or making reference thereto, request a hearing to be held to determine whether the evidence will be admitted. The request for a hearing shall be made prior to the trial unless for good cause shown. Good cause shall be deemed to exist if the defendant shows that the evidence he wishes to offer was not reasonably available to him prior to trial. The court shall conduct a hearing out of the presence of the jury and the public and shall take such testimony and evidence as it deems necessary. If the court finds that the evidence or testimony sought by the defendant regarding the previous sexual conduct of complainant is relevant for the purpose offered and is not otherwise inadmissible, the court shall issue an order stating what evidence may be introduced by the defendant, and the nature of the questions permitted at trial.

"(5) Evidence of the complainant's previous sexual conduct that may be considered relevant includes, but is not limited to:

"(a) Evidence that relates to the motive or bias of the complainant; or

"(b) Evidence that is necessary to rebut or explain scientific or medical evidence offered by the state.

"(6) Nothing in this section shall limit the right of either the state or the defendant to impeach the credibility of a witness by proof of a prior conviction of a crime." (Emphasis supplied.)

The right to public trial in all criminal prosecutions is guaranteed by Article I, section 11, of the Oregon Constitution and by the Sixth Amendment to the United States Constitution. However, the right to public trial is not absolute. Gannett Co. v. DePasquale, 443 U.S. 368, 383, 99 S.Ct. 2898, 2907, 61 L.Ed.2d 608 (1979); State v. Lehnherr, 30 Or.App. 1033, 1039, 569 P.2d 54 (1977). Courts have recognized that the right to public trial must be balanced against other interests that may justify exclusion of the public from the courtroom. United States v. Eisner, 533 F.2d 987 (6th Cir. 1976), cert. denied 429 U.S. 919, 97 S.Ct. 314, 50 L.Ed.2d 286 (1976); Geise v. United States, 262 F.2d 151 (9th Cir. 1958), reh. den. 265 F.2d 659, cert. denied 361 U.S. 842, 80 S.Ct. 94, 4 L.Ed.2d 80 (1959); United States ex rel. Smallwood v. LaValle, 377 F.Supp. 1148 (E.D.N.Y.1974), aff'd 508 F.2d 837 (2nd Cir. 1974), cert. denied 421 U.S. 920, 95 S.Ct. 1586, 43 L.Ed.2d 788 (1975); see generally Annot., Exclusion of Public During Criminal Trial, 156 A.L.R. 265 (1945); Annot., Validity and Construction of Constitution or Statute Authorizing Exclusion of Public in Sex Offense Cases, 39 A.L.R.3d 852 (1971); Annot., Federal Constitutional Right to Public Trial in Criminal Case Federal Cases, 61 L.Ed.2d 1018, § 10 et seq. (1980).

In holding the Sixth Amendment applicable to the states through the Fourteenth Amendment, the Supreme Court in In Re Oliver, 333 U.S. 257, 266, 270, 68 S.Ct. 499 504, 506, 92 L.Ed. 682 (1948), described the history and significance of the Sixth Amendment as follows:

"This nation's accepted practice of guaranteeing a public trial to an accused has its roots in our English common law heritage. * * *

" * * *

" * * * Whatever other benefits the guarantee to an accused that his trial be conducted in public may confer upon our society, the guarantee has always been recognized as a safeguard against any attempt to employ our courts as instruments of persecution. The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power." (Footnotes omitted.)

The benefits inuring from public trial were recapitulated in Gannett Co. v. DePasquale, supra, 443 U.S. at 383, 99 S.Ct. at 2907, wherein the Supreme Court stated:

"There can be no blinking the fact that there is a strong societal interest in public trials. Openness in court proceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to...