State v. Derryberry

• Jurisdiction: Oregon
• Parties: STATE of Oregon, Respondent, v. Tony Estes DERRYBERRY, Appellant.
• Citation: 17 Or.App. 262,521 P.2d 1065
• Court: Oregon Court of Appeals
• Decision Date: 11 June 1974

Page 1065

521 P.2d 1065

17 Or.App. 262

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

Court of Appeals of Oregon.

Argued and Submitted March 27, 1974.

Decided April 29, 1974.

Rehearing Denied June 6, 1974.

Review Granted June 11, 1974.

John K. Hoover, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

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

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

Defendant appeals from a jury trial conviction of first degree theft. ORS 164.055. The sole question on appeal is whether the trial court erred in instructing that evidence of a prior inconsistent statement of a witness who had testified in defendant's favor could be considered by the jury as evidence of impeachment and also To determine the truth of the matter asserted in the out-of-court declaration.

The fact issue at trial was whether defendant knew property found in his possession was stolen. Burglars completely emptied the home of Mary Young of furnishings on January 25, 1973. On February 8, 1973 Joel Clark was found and arrested on a warrant at defendant's trailer home for a parole violation. The arresting officers became suspicious that the furniture they noticed in defendant's trailer was stolen. After further investigation they returned with a warrant and seized about one-third of the items that had been stolen from Mary Young's home.

Joel Clark was called as a witness by the state. He testified that defendant told him he had bought or traded for the furniture. Two police officers then testified that Clark previously had told them that he was at the defendant's home January 26, 1973, and that defendant had shown him the furniture and said he had stolen it the previous day. Clark was recalled to the stand and admitted having talked to the officers but denied having said defendant told him the property was stolen. He was questioned and cross-examined in detail as to his motives for testifying at trial in behalf of defendant and for possibly incriminating defendant in his conversation with the police.

The state in its case-in-chief established that defendant had told the manager of the trailer court that the stolen furniture had been given to him by his father. Police testified that upon his arrest defendant, after waiving his Miranda rights (Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 A.L.R.3d 974 (1966)), told them he bought the furniture from a young, black man named Robert Young. Witnesses for defendant testified they had been present when a young, white man named Robert Young sold defendant the furniture.

Throughout the course of the trial the prosecution took the position that the evidence of Clark's out-of-court conversation was offered for impeachment purposes only and defendant's counsel took all appropriate objections and exceptions to its use. The court instructed the jury:

'Testimony regarding the oral statements (made out of court) of persons are to be viewed with caution for the following reasons: * * *

'Testimony has been introduced concerning statements allegedly made by the witness, Joel Clark, regarding statements made by the defendant to him concerning the source of the property which defendant is charged with theft by concealing.

'You may, but you are not required to, consider these statements, if you find that they were made(,) for two purposes:

'First, for purposes of determining the truth or falsity of the testimony of the witness Clark. Second, for purposes of determining whether or not the defendant himself made such statements to Joel Clark.'

Thereafter, out of the presence of the jury the court stated to defense counsel that it had purposely given the dual instruction in view of Oregon decisions with reference to Rule 63(1) of Uniform Rules of Evidence (Rule 63(1) is quoted in State v. Fennell, infra), and specifically cited State v. Fennell, 7 Or.App. 256, 489 P.2d 964, Sup.Ct. review denied (1971).

In Fennell we held that evidence of an out-of-court identification was admissible under an exception to the hearsay rule. A passage of that opinion not relied upon in reaching the result states:

'* * * In State v. Randolph, 251 Or. 45, 444 P.2d 545 (1968), the court noted that the testimony of a detective about an extrajudicial description by the victim of the defendant was hearsay and inadmissible. Then the court said:

"As a part of its argument the state urges in effect that we adopt Rule 63(1) of the proposed Uniform Evidence Act. ¹ In two previous cases this court has indicated tacit approval of such a rule. State v. Opie, 1946, 179 Or. 187, 170 P.2d 736; State v. Herrera, 1963, 236 Or. 1, 7, 8, 386 P.2d 448. However, in this case it is not necessary to decide if the proposed Uniform Rule should be adopted as a fixed rule of evidence because we have determined that the evidence, if error, was not prejudicial.

Several weeks after we decided Fennell, in State v. Waites, 7 Or.App. 137, 490 P.2d 188 (1971), we considered the admissibility of a prior Consistent statement by the alleged victim in a statutory rape case:

'* * * In this case the out-of-court declarant, i.e., the prosecuting witness, was obviously 'present at the hearing and available for cross examination.' Thus Rule 63(1) would permit Mrs. Bryan to testify to the full details of the September 18, 1969, conversation with the prosecuting witness.

'It has been pointed out that the law in Oregon is not in accord with the proposed Uniform Rule. See, 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 (1963), and cases cited therein. More recently, our Supreme Court has stated:

'(See quotation in State v. Fennell, supra, from State v. Randolph, supra.)

'We quoted this same passage from Randolph in State v. Fennell, 7 Or.App. 256, 489 P.2d 964, Sup.Ct. review denied (1971), and noted that the Randolph decision left the question of whether Rule 63(1) is or is not the law of Oregon in doubt. As doubtful as the question remains, we now conclude that the quoted passage from Randolph cannot be interpreted as meaning our Supreme Court has adopted the proposed Rule, and thus by silent implication overruled numerous of its prior decisions. Therefore, we follow those prior decisions. See, 42 Or.L.Rev. 200, supra, at 201--202.' (Footnote omitted.) 7 Or.App. at 142--143, 490 P.2d at 190, 191.

Preliminarily, it should be noted that there is no apparent conflict between Rule 63(1) and the 'confrontation' clauses of the U.S. Constitution. Nelson v. O'Neil, 402 U.S. 622, 91 S.Ct. 1723, 29 L.Ed.2d 222 (1971); California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

In light of two recent Oregon Supreme Court decisions our rejection of Rule 63(1) in Waites may have been premature.

In Sheedy v. Stall, 255 Or. 594, 468 P.2d 529 (1970), decided before we decided Waites but overlooked by this court therein, the court stated:

'The correct application of the rule that hearsay evidence is not admissible is one of the most difficult tasks in the law. An examination of the reasoning behind the rule is probably the best basis for determining whether the evidence is admissible.

'Hearsay evidence is excluded because of its untrustworthiness. The declarant's accuracy and veracity cannot be tested by cross-examination. State v. Kendrick, 239 Or. 512, 515, 398 P.2d 471 (1965). It is not the untrustworthiness of the testimony of the witness on the stand who is asked to testify to what the declarant said that causes the exclusion of hearsay testimony. The credibility of the witness can be tested by cross-examination. The problem of the trustworthiness of the witness in the courtroom is the same whether the witness is testifying to another's conduct or to another's words. It is the untrustworthiness of the declarant's statement that causes hearsay testimony to be excluded.' (Emphasis supplied.) 255 Or. at 596--597, 468 P.2d at 530.

In Timber Access Ind. v. U.S. Plywood, 263 Or. 509, 503 P.2d 482 (1972), the court again dealt with the admissibility of hearsay:

'Over defendant's objection that it was hearsay, the court permitted Ramsey, plaintiff's president, to testify that after he had received the letter from Kostur refusing to take logs after November 30, he called Girard, who was then the operations manager of Plywood's Gold Beach plant, and was told by Girard that it had been his intent to buy the logs unconditionally and that Plywood had bought and was obligated to take six million board feet of logs. Girard died prior to trial. Plywood contends the court erred in receiving this testimony.

'The presently recognized definition of hearsay is stated in McCormick on Evidence § 246, at 584 (2d ed 1972):

"* * * Hearsay evidence is testimony in court, or written evidence, of a statement made out of court, the statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.' (Emphasis in original; footnote omitted.)

Because the person making the statement is not under oath nor is subject to cross-examination, and the jury has no opportunity to observe or to evaluate his demeanor, the truthfulness of the statement is suspect.

'There is no doubt that the testimony in question is hearsay. Girard's out-of-court statement was used for the purpose of proving that Plywood unconditionally agreed to purchase six million board feet of logs. Therefore, unless the testimony came within an exception to the hearsay rule, it was not admissible. The exceptions to the rule usually encompass situations in which the out-of-court statements are made under circumstances which guarantee the probable...