State v. Davis, MB81-317

• Decision Date: 12 October 1983
• Docket Number: No. MB81-317,MB81-317
• Citation: 670 P.2d 192,65 Or.App. 83
• Parties: STATE of Oregon, Respondent, v. Terry Larkin DAVIS, Appellant. ; CA A26266.
• Court: Oregon Court of Appeals

Page 192

670 P.2d 192

65 Or.App. 83

STATE of Oregon, Respondent, v. Terry Larkin DAVIS, Appellant.

No. MB81-317; CA A26266.

Court of Appeals of Oregon.

Argued and Submitted March 16, 1983.

Decided Oct. 12, 1983.

Ronald K. Cox, Asst. Public Defender, Coquille, argued the cause and filed the brief for appellant.

Sheryl Dawson, Certified Law Student, Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., and Stephen F. Peifer, Asst. Atty. Gen., Salem.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

WARDEN, Judge.

Defendant appeals his conviction on two counts of menacing. He assigns as error the trial court's (1) refusal to allow a state's witness to be cross-examined with respect to his avoidance of defendant's investigator and (2) failure to give a self-defense instruction to the jury. We reverse and remand for a new trial.

The state's account of the facts only slightly resembles defendant's version. According to the state, on May 20, 1982, defendant and his wife entered the Belle Bee Tavern in Coos Bay shortly after 1:00 a.m. After exiting through the rear door, they again entered the front door, and defendant ordered a beer. Mrs. Charleston, the bartender, refused to serve defendant because of a prior incident. After that refusal, defendant drew a knife and threatened that he would "get her." Charleston's husband asked defendant to leave, and defendant responded by waving the knife around at persons in the bar, including Charleston and Foster, a tavern patron who was about two and one-half feet from defendant. Defendant then backed out the door and stated that he would get them one at a time.

By defendant's account, he entered the tavern to see if the owner was in. He intended to discuss what he believed was Charleston's role in the theft of a hat. Finding the owner absent, he started to leave but was stopped by a man who displayed a gun in his waistband. In order to protect himself, defendant drew a knife and placed it against the man's chest. Simultaneously, a crowd of tavern patrons, at the urging of Charleston, began to rush defendant. Fearing for his safety, he waved the knife, thereby successfully delaying the crowd's approach, and left the Belle Bee.

In his first assignment of error defendant contends that the trial court erred in sustaining, on relevance grounds, the state's objection to evidence that Foster, an alleged victim, had avoided talking to defendant's investigator. That evidence, he argues, would have shown Foster's bias against defendant.

OEC 609-1(1) states that "[t]he credibility of a witness may be attacked by evidence that the witness engaged in conduct or made statements showing bias or interest." We have recognized that a defendant in a criminal proceeding is entitled, as a matter of federal constitutional right, to cross-examine prosecution witnesses. State v. Hubbard, 61 Or.App. 350, 355, 657 P.2d 707, rev. allowed 294 Or. 749, 662 P.2d 726 (1983). We stated in Hubbard that, although it is generally within the trial judge's discretion to limit the scope of cross-examination for bias, a defendant in a criminal case should be given great latitude to cross-examine, because "[f]ree and vigorous cross-examination is particularly important when prosecution and defense witnesses give sharply conflicting accounts of the facts and the jury must assess the credibility of the witnesses." State v. Hubbard, supra, 61 Or.App. at 356, 657 P.2d 707. We concluded that a trial judge may abuse his discretion by completely foreclosing a legitimate defense attempt to cross-examine. 61 Or.App. at 356.

Although a criminal defendant is allowed broad latitude in cross-examining witnesses, the judge may properly exclude that which is of little or no probative value. See Shrock v. Goodell, 270 Or. 504, 510, 528 P.2d 1048 (1974); State v. Newlin, 92 Or. 589, 182 P. 133 (1919). In Newlin, for example, where a witness' employment as a hired detective who expected to get a reward--which itself sufficiently demonstrated his motive--had already been elicited, the court held that it was not error to limit further cross-examination as to his motives. Similarly, in the case at bar the jury was well aware that the witness testifying was one of the...