State v. Claridy

• Court: Court of Appeals of Oregon
• Writing for the Court: Before SCHWAB; LEE
• Citation: 29 Or.App. 435,563 P.2d 1239
• Decision Date: 16 May 1977
• Parties: STATE of Oregon, Respondent, v. Ronald Olin CLARIDY, Appellant.

Page 1239

563 P.2d 1239 29 Or.App. 435 STATE of Oregon, Respondent,
v.
Ronald Olin CLARIDY, Appellant. Court of Appeals of Oregon. Argued and Submitted March 21, 1977.
Decided May 16, 1977.

Page 1240

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

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was James A. Redden, Atty. Gen., Salem.

[29 Or.App. 436] Before SCHWAB, C.J., and LEE and RICHARDSON, JJ.

[29 Or.App. 437] LEE, Judge.

Defendant appeals from his jury conviction of 'robbery in the third degree' (ORS 164.395). He assigns as error both the admission into evidence of testimony elicited at the preliminary hearing from a witness who was unavailable at the time of trial, and the refusal of the court to declare a mistrial when, after some five-and-one-half hours of deliberation, the jury indicated that it was at an apparent deadlock.

Although ORS 41.900(8), ¹ authorizing the admission into evidence of testimony obtained at a preliminary hearing where the witness is unavailable at the time of trial and was subjected to cross-examination by defense counsel at the earlier proceeding, has previously been held to be constitutionally sound, ² defendant contends that the use of the prior testimony in this case was nonetheless improper due to the fact that his cross-examination of the witness was substantially limited, and thus rendered ineffective, by both the conditions under which it occurred and the unavailability of crucial information--i.e., the witness' criminal record.

The testimony in question was obtained from the robbery victim while he was still hospitalized and recovering from a stab wound inflicted in the course of the robbery. Contrary to defendant's contentions, however, the record indicates that the cross-examination of the witness conducted by attorneys representing [29 Or.App. 438] both defendant and a codefendant was neither handicapped nor abbreviated in any material way by his physical condition. After defendant's counsel had completed his cross-examination and before counsel for the codefendant began his separate examination he noted that the witness appeared to be somewhat uncomfortable and asked if he should proceed. The witness indicated that he would try to continue; he was then instructed that if at any time he wished to stop the proceedings he was to so state. No such request was made prior to the completion of the subsequent cross-examination. While defendant's attorney testified that he had limited the scope of his cross-examination in deference to what he perceived to be the physical discomfort of the witness, at no point did he more specifically indicate in what respect or to what extent his questioning would have been different had the...