State v. Busby

• Decision Date: 28 January 1993
• Citation: 315 Or. 292,844 P.2d 897
• Parties: STATE of Oregon, Respondent on Review, v. Haywood Oliver BUSBY, Petitioner on Review. CC 89-06-1596-C; CA A62705; SC S37685.
• Court: Oregon Supreme Court

Page 897

844 P.2d 897

315 Or. 292

STATE of Oregon, Respondent on Review, v. Haywood Oliver BUSBY, Petitioner on Review.

CC 89-06-1596-C; CA A62705; SC S37685.

Supreme Court of Oregon,

In Banc.

Argued and Submitted April 4, 1991.

Decided Jan. 28, 1993.

Irene B. Taylor, Salem, filed the petition and argued the cause for petitioner on review. With her on the petition was Sally L. Avera, Public Defender.

Timothy A. Sylwester, Asst. Atty. Gen., Salem, filed the response and argued the cause for respondent on review. With him on the response were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Janet A. Klapstein, Asst. Atty. Gen.

FADELEY, Justice.

Following a jury trial in which he did not testify, defendant was convicted of sexual abuse in the first degree. He appeals, claiming that OEC 609 violates his constitutional rights to be heard in his own defense and to trial by an impartial jury. On defendant's appeal, the Court of Appeals affirmed from the bench. State v. Busby, 104 Or.App. 306, 799 P.2d 1155 (1990).

The part of OEC 609 on which defendant bases his constitutional attack provides:

"(1) For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or (b) involved false statement or dishonesty."

OEC 609 mandates admission in evidence, if offered, of certain prior felony convictions of any witness "[f]or the purpose of attacking the credibility of" the witness. ¹

Our decision on review turns on the threshold requirements for mounting a constitutional challenge to a rule of evidence. The dispositive question is: May a defendant attack OEC 609, relating to impeachment of the defendant by certain prior convictions, as violative of constitutional protections without demonstrating how the operation of the rule in the defendant's case prevented or diminished enjoyment of those protections? We hold that such a demonstration is required. Because defendant did not show by offer of proof the substance of his proposed testimony that he contends was lost to him because of the rule of evidence and, thus, did not show how or whether his testimony might have contributed to his defense, we affirm.

Defendant was charged with first degree sexual abuse of a 15-year-old girl. Defendant moved pretrial to exclude evidence of his prior conviction for sexual abuse, arguing that, if evidence of his prior conviction were admitted, he would be "forced, because of the extreme prejudicial value of this evidence and the necessity that he testify on his own behalf, to waive trial by jury."

The trial court ruled that evidence of the prior conviction would be admissible at trial if defendant became a witness. The trial court concluded:

"3. Defendant's right to testify and to be heard is not itself directly affected by the admission of prior convictions for impeachment purposes. Defendant may still testify and state his version of the facts to a jury.

"4. Defendant will suffer no constitutional deprivation by the admission of the above-noted prior felony convictions."

At the conclusion of the state's case-in-chief, defendant renewed his motion to exclude evidence of the prior conviction. At that time, defendant asserted that he "is going to choose to exercise his right not to testify" because of the "fact" that the conviction would be used to impeach him. Prior to trial, defendant had said that he would waive jury trial. But after the court ruled that it would permit his prior conviction to be placed in evidence, he did not waive a jury. Instead, at trial, defendant took the position that the trial court's ruling that the prior conviction would be admitted for impeachment was, in effect, a ruling that excluded his testimony because, if he testified, the impartiality of the jury would be destroyed when the jury heard of his prior conviction for sexual abuse.

Defendant did not explain, represent, or offer what his "excluded" testimony would have been, either in support of his pretrial motion nor later at the time of its renewal after the state presented its case-in-chief. Defendant did not testify. The jury was never apprised of defendant's prior conviction. It returned a verdict of guilty.

Defendant contends that OEC 609 violates his rights to be tried by an impartial jury and to be heard under Article I, section 11, of the Oregon Constitution, ² and also his rights under the federal constitution to a fair trial by an impartial jury and to due process of law. Defendant states that his right to testify in his own defense was taken from him by that rule of evidence because, had he testified, evidence of his prior conviction of sexual abuse would have come before the jury "automatically" on the state's offer of it. Defendant argues that, having heard the prior conviction evidence, the jury's ability to decide the present charge impartially would be destroyed. Defendant concedes that instructions limiting the prior sexual abuse conviction evidence to impeachment, if such instruction is requested, would be available, OEC 105, but contends that the jury would not follow that limiting instruction, in part because the prior conviction was for the same offense.

Defendant asserts that OEC 609 violates the state and federal constitutional protections cited by mandating admission, if offered, of evidence for impeachment purposes of certain previous felony convictions without permitting prior "balancing" by the court of its probative value versus its prejudicial effect. He complains of the "wholesale admission" of a defendant's prior convictions without consideration of their relevance or effect on the impartiality of the jury.

In his pretrial motion to exclude evidence of his prior conviction, defendant argued: "[I]t is imperative that [defendant] testify on his own behalf. There is no one else who can tell [defendant's] side of the story." As noted, defendant did not elaborate further about what his side of the story would be, nor did he make any representation or offer of proof. Defendant claims that the exercise of his right to speak in his own behalf was "chilled," violating his Article I, section 11, right to be heard.

The trial court's ruling, that the impeachment evidence was admissible, did not preclude defendant from testifying. The trial court so found. That is obviously accurate in a literal sense. Defendant's choice, not the trial court's ruling, resulted in the jury's not hearing defendant's testimony.

Moreover, defendant's careful consideration of that choice was facilitated by the timing of the ruling. In State v. McClure, 298 Or. 336, 340, 692 P.2d 579 (1984)--a case decided under the former version of OEC 609(1) that provided for discretionary balancing of probative value versus prejudicial effect--the court wrote:

"We believe trial courts should rule on the admissibility of prior crime impeachment evidence as soon as possible after the issue is raised. It is only after a ruling on the admissibility of a conviction that the prosecutor and defense counsel can make an informed decision how to effectively try the case."

We continue to approve that practice under the present version of OEC 609. This court has recognized that a defendant's decision whether to testify has a significant impact on what questions to ask jurors during voir dire, what to say in opening statements, and the questioning of witnesses. See State v. McClure, supra, 298 Or. at 340, 692 P.2d 579; State v. Foster, 296 Or. 174, 183, 674 P.2d 587 (1983) (reasons for seeking pretrial rulings are to obtain guidance on how to conduct voir dire and opening statements and to avoid contaminating the jury).

Defendant's decision in this case not to testify, when to do so would entail exposure of his criminal record, was a component of his overall trial strategy. A defendant's choice of strategy under the amended version of OEC 609 is no different than the choice that a defendant would have faced before the rule was amended to delete the trial court's exercise of discretion. There always was a risk of impeachment by prior convictions. ³

The testimony that defendant here chose not to present might or might not have been judged by the jury sufficient to support reasonable doubt. We have no way of considering what effect defendant's testimony might have had. Under OEC 103(1)(b), when a trial court excludes testimony or other evidence, an offer of proof by the proponent of the evidence is required to preserve any claim of error related to what the evidence would have shown. State v. Olmstead, 310 Or. 455, 459-60, 800 P.2d 277 (1990); State v. Affeld, 307 Or. 125, 128, 764 P.2d 220 (1988). ⁴

Adequate offers of proof are required to ensure that appellate courts are able to determine (1) whether it was error to exclude the evidence, and (2) whether any error was likely to have affected the result of the case. State v. Affeld, supra, 307 Or. at 128, 764 P.2d 220. State v. McClure, supra, 298 Or. at 341, 692 P.2d 579, quoting with approval United States v. Cook, 608 F.2d 1175, 1186 (9th Cir.1979), cert. den. 444 U.S. 1034, 100 S.Ct. 706, 62 L.Ed.2d 670 (1980), which set two requirements for an offer of proof:

"In future cases, to preserve the issue for review, a defendant must at least * * * (1) establish on the record that he will in fact take the stand and testify if his challenged prior convictions are excluded; and (2) sufficiently outline the nature of his testimony so that the trial court, and the reviewing court, can [intelligently consider the ruling]."

This court previously has required a defendant to comply with the second prong of the requirements for an adequate offer of proof. State v. Foster, supra. In order to protect his claim of error concerning that...