State v. Derryberry

• Decision Date: 21 November 1974
• Citation: State v. Derryberry, 528 P.2d 1034, 270 Or. 482, 99 Or.Adv.Sh. 2604 (Or. 1974)
• Parties: STATE of Oregon, Respondent, v. Tony Estes DERRYBERRY, Petitioner. . *
• Court: Oregon Supreme Court

Page 1034

528 P.2d 1034

270 Or. 482

STATE of Oregon, Respondent, v. Tony Estes DERRYBERRY, Petitioner.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted July 10, 1974.

Decided Nov. 21, 1974.

J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief were Gary D. Babcock, Public Defender, and John K. Hoover, Deputy Public Defender, Salem.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and Jim G. Russell, Asst. Atty. Gen., Salem.

TONGUE, Justice.

Defendant was convicted of first degree theft under ORS 164.055. In his appeal to the Court of Appeals defendant contended that the trial court erred in instructing the jury that it could consider a prior inconsistent statement by a state's witness not only for the purpose of impeaching the credibility of that witness, but also as substantive evidence to establish the truth of the facts stated, as provided by Rule 63(1) of the proposed Uniform Rules of Evidence.

The Court of Appeals affirmed the conviction, holding that such an instruction was proper and that it was consistent with and supported by the reasoning of recent decisions of this court. 17 Or.App. 262, 521 P.2d 1065 (1974). Schwab, C.J., dissented. We granted defendant's petition for review because of the importance of the question whether the instruction by the trial court and the decision by the Court of Appeals are consistent with the decisions of this court and, if not, whether this court should adopt Rule 63(1) of the proposed Uniform Rules of Evidence.

The facts of this case are of importance because they provide an excellent illustration of the impact of that proposed rule, particularly in criminal cases. Summary of the facts.

This prosecution is based on the following series of events. On January 25, 1973, all the furnishings disappeared from the home of Mary Young. On February 8, 1973, the police found and arrested Joel Clark for parole violation at defendant's trailer home. The arresting officers became suspicious that the furniture in defendant's home was stolen and after some investigation returned with a search warrant. A large part of Mary Young's furniture was thus recovered.

The only factual issue at defendant's trial was whether he knew that the furniture found in his possession was stolen. Joel Clark was called by the state and testified that defendant had told him he had obtained the goods by purchase or trade. Two police officers were then called and testified that after they had arrested Clark for parole violation he told them that defendant had told him on January 26 that he had 'ripped off' the furniture the previous day.

It becomes obvious upon a reading of the record that the testimony of the police officers that they heard the witness Joel Clark say that he heard the defendant say that he had stolen the furniture was vital to the state's case. It was the only direct evidence upon the only contested issue in the case--whether defendant knew that the furniture was stolen. The only other evidence on that issue was the circumstantial evidence that defendant had made inconsistent statements as to how he acquired the furniture--by purchase or gift.

It is also clear from the record that the state's attorney knew in advance of the trial that Clark would recant his previous statements to the police. In spite of that knowledge the state called Clark as a witness and made an offer of proof outside the presence of the jury of his testimony and that of the police officers. At that time witness Clark denied making such statements to the officers but they testified that he did so and that he had promised to so testify. In argument over the admissibility of that testimony, the state's attorney stated that he intended to offer the testimony of the officers 'for impeachment purposes only.'

The trial court then overruled defendant's objections to the offered testimony. While still out of the presence of the jury, and before witness Clark was called to testify before the jury, he was told by the trial judge that the matter would be referred to the grand jury for possible prosecution for perjury, presumably if in his testimony he continued to deny such statements.

Joel Clark was then called by the state as a witness. At the time of his previous conversations with the police officers he was in the county jail, following arrest for parole revocation, and faced a possible eight-year sentence. At the time of his testimony, however, he was a prisoner in the Oregon State Penitentiary and his parole had apparently been revoked.

Clark testified that he did not remember whether he told the police that defendant had said that he stole the furniture. When pressed further, he testified to the contrary, that defendant told him that he bought or traded for the furniture. He also testified that he was told by the police that they would contact his parole board if he did not testify that defendant told him that he had stolen the furniture and that he was also told by the state's attorney that if he did not so testify he would be prosecuted for perjury.

Consistent with the previous position of the state that the testimony of the officers was offered 'for impeachment purposes only,' the state's attorney made no request for an instruction that such testimony could be considered as substantive evidence. The defendant, however, requested an instruction that such testimony could be considered for impeachment only, and not in considering the truth or falsity of statements by defendant to Clark.

The trial court then, on its own initiative, instructed the jury that the testimony of the police officers 'concerning statements allegedly made by the witness, Joel Clark, regarding statements made by the defendant to him concerning the source of the property' could be considered by the jury not only 'for the purpose of determining the truth or falsity of the testimony of witness Clark,' but also 'for purposes of determining whether or not the defendant himself made such statements to Joel Clark.'

Defendant took exception to that instruction, as well as to the failure to give the instructions requested by him. The trial court then stated that:

'* * * (S)ince the Court has not determined whether or not it will adopt Rule 63.1 of the proposed Uniform Evidence Act, * * * I think the rule should be adopted and since the matter is open, I am basing the instructions on that uniform rule.'

The instruction by the trial court was not only contrary to the rule as previously established by decisions of this court, but was inconsistent with much of the previously established law of Oregon relating to hearsay testimony.

This court has previously held, in accordance with the well-established common law rule, that testimony of prior inconsistent statements by a witness is admissible solely for purposes of impeachment, and not as substantive evidence. As stated in an article by Swearingen, How the Adoption of the Uniform Rules of Evidence Would Affect the Law of Evidence in Oregon: Rules 62--66, 42 Or.L.Rev. 200, 203--04 (1963):

'* * * Virtually all courts have held to the rule denying prior contradictory statements any substantive value.

'Oregon is in accord with the prevailing authority. (Citing cases) Since those early cases, the Oregon court has often reaffirmed its position that proof of a witness's prior statements is admissible only for the purpose of impeaching the witness, and not as substantive evidence of the truth of the facts previously stated.'

It follows that the instruction by the trial court, as approved by the Court of Appeals, was contrary to the previously existing rule in Oregon relating to the use of prior inconsistent statements of a witness.

See Madron v. Thomson, 245 Or. 513, 516, 419 P.2d 611, 423 P.2d 496 (1967); State v. Schwensen, 237 Or. 506, 524, 392 P.2d 328 (1964); State v. Herrera, 236 Or. 1, 9, 386 P.2d 448 (1963); State of Oregon v. Watts, 208 Or. 407, 411, 301 P.2d 1035 (1956); Austin v. Portland Traction Co. et al., 181 Or. 470, 478, 182 P.2d 412 (1947); State v. Opie, 179 Or. 187, 209, 170 P.2d 736 (1946); State v. Newburn, 178 Or. 238, 240, 166 P.2d 470 (1946); In re Lambert's Estate, 166 Or. 529, 538, 114 P.2d 125 (1941); Schluter v. Niagara Fire Ins. Co., 124 Or. 560, 567, 264 P. 859 (1928); Timmins v. Hale, 122 Or. 24, 36, 256 P. 770 (1927); Anderson v. Aupperle, 51 Or. 556, 563, 95 P. 330 (1908); State v. Jarvis, 18 Or. 360, 366, 23 P. 251 (1890); State v. Waites, 7 Or.App. 137, 143, 490 P.2d 188 (1971); State v. Christensen, 3 Or.App. 442, 447, 474 P.2d 782 (1970).

The testimony of the police officers that they heard the witness Clark say that he heard the defendant say that he stole the furniture was 'double hearsay.' Thus, that testimony was inadmissible as substantive evidence upon the ground that it was hearsay unless it came within some exception to the general rule prohibiting the use of hearsay testimony.

Most, if not all, of the exceptions to the hearsay rule, as previously recognized by the decisions of this and other courts, satisfy either one or both of the following requirements: (1) Some special circumstances to vouch for the trustworthiness of the out-of-court statement, so as to justify dispensing with the need for cross-examination At the time the statement was made (Examples: dying declarations, spontaneous statements, statements against interest and admissions by a party), and/or (2) Some necessity for the use of the out-of-court statement, usually as a result of the unavailability of the witness. (Examples: dying declarations, declarations against interest and former testimony).

Under the rule adopted by the Court of Appeals, neither of these requirements would be satisfied: (1) There were no circumstances to vouch for the trustworthiness of the statement by Joel Clark which the police officers say they heard him make. On the...