State v. Grey

• Decision Date: 05 July 2001
• Citation: 175 Or. App. 235,28 P.3d 1195
• Parties: STATE of Oregon, Respondent, v. Catherine A. GREY, Appellant.
• Court: Oregon Court of Appeals

28 P.3d 1195

175 Or. App. 235

STATE of Oregon, Respondent, v. Catherine A. GREY, Appellant.

98-10-49448; A106924

Court of Appeals of Oregon.

Argued and Submitted July 11, 2000.

Decided July 5, 2001.

Clint A. Lonergan, Portland, argued the cause for appellant. With him on the brief was Richard L. Lonergan, Portland.

Jennifer Scott Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge,¹ and DEITS, Chief Judge, and WOLLHEIM, Judge.

WOLLHEIM, J.

Defendant appeals her conviction for harassment. ORS 166.065. The issue before us is whether the trial court properly admitted evidence of defendant's prior arrest and conviction for theft in the third degree and an arrest for driving while under the influence of intoxicants (DUII). We conclude that the evidence was properly admitted and affirm.

Because the jury found defendant guilty, we present the facts pertaining to the crime for which defendant was convicted in the light most favorable to the state. State v. Tucker, 315 Or. 321, 325, 845 P.2d 904 (1993). Defendant lived in Japan from her birth until the age of 18, when she moved to the United States with her parents. Upon her arrival, she attended an English-language high school and received her diploma. Defendant then began taking college courses at the Pacific Northwest College of Art in Portland.

In October 1998, defendant and her boyfriend, Nowak, attended a party at a friend's house. There, defendant had a single drink while Nowak had a substantial amount more. The couple left the party after a few hours and returned to their apartment. Nowak then began to feel ill. Defendant took a bath and, afterwards, discovered that Nowak had thrown up. As defendant began cleaning up the mess, Nowak became angry and started yelling and throwing things. Someone else telephoned the police and reported a domestic disturbance.

Officers Johns, Rabey, and Engen responded to the call. When they arrived, from the street they could hear defendant and Nowak yelling at each other. After the officers located the apartment and knocked, Nowak answered the front door, stepped outside and began crying and apologizing. Johns entered the apartment to verify that no one there was injured, while Rabey and Engen remained outside with Nowak. Defendant showed Johns around the apartment and was cooperative and quiet at that time.

Johns then decided to take Nowak to detox. At that point, Johns and Engen were with Nowak just outside the front door and Rabey was blocking the doorway. Nowak became very upset and began yelling obscenities when Johns and Engen started to handcuff him. Upon hearing the yelling, defendant, who was inside the apartment, tried to make her way around Rabey. Rabey stopped defendant and asked her to go back into the apartment and to sit down. As Rabey was escorting defendant back into the living room, defendant began to push and shove Rabey in an effort to get outside. Defendant asked Rabey where they were taking Nowak. Rabey answered, "He's going to detox." Asked where detox was, Rabey replied, "That's not important right now." Defendant then began screaming and flailing her arms. Engen saw the commotion in the apartment and left Johns and Nowak to help Rabey. Engen, Rabey, and defendant struggled in the living room and the officers eventually brought defendant down to the floor and handcuffed her. Rabey's police jacket was torn from the armpit to the waist in the struggle. Defendant was arrested and was later charged with attempted assault of a public safety officer, ORS 163.208, and harassment by subjecting Rabey to "offensive physical contact," ORS 166.065(1)(a)(A).

Immediately preceding the commencement of trial, the state objected to the representations made by defense counsel during voir dire concerning the type of evidence the defense was going to present. When the trial court asked what that evidence would consist of, defense counsel replied

"The cultural stuff? Basically, I want to talk about how the police, that the entire mind set of the culture that she's from is different. In other words, the police in Japan do not act like police here. The society is built around a great reverence for authority, and the fact that the police officers in this case—and to understand the culture she comes from."

The trial court concluded that the evidence would be relevant to intent and that it would be admitted.

During his opening statement, defense counsel explained the cultural background aspects of the defense theory to the jury.

"Now what you will learn is that what you are and what you are thinking and what's going on in your mind, you cannot divorce what you are from what you are thinking. So the cultural aspects that we are going to present will become important. When I say the cultural aspects, what you are going to find from [defendant's father], her father's testimony and from [defendant's] testimony is essentially the police here in the United States are quite different from the police in Japan, and the culture in Japan is quite different from the culture here in the United States.

"In Japan there's an ultimate sort of respect for authority, to the point where most of us would think, you know, how could you let the government tell you what to do like that. Our mind set is sort of the opposite. In other words, we don't just accept immediately what the government says or some person in authority.

"Japan is somewhat different. It is a society that has an ultimate respect for authority and for police. At the same time, the culture also is reciprocal, in that you will not see police officers in Japan swearing at people. You will not see them being impolite. The politeness and respect that they are shown is returned, and that's what you are going to find in this case about [defendant] and how it's so difficult for her to understand what's going on and what these police officers are doing."

The prosecutor did not raise the cultural background issue during the presentation of the state's case. The second witness to testify for the defense was defendant's father. He described his background and how he came to live in Japan for 25 years. He then described cultural differences between Japan and the United States. In particular, defendant's father explained how the two cultures possess differing concepts of community, individuality and the role and function of the police. He then testified about defendant's English language abilities and limitations and about how he helped defendant following her arrest.

Before cross-examining defendant's father, the prosecutor requested a conference with the judge. The following discussion ensued out of the presence of the jury:

"[PROSECUTOR]: Your Honor, as we discussed at side bar, I believe that through this witness an inference has been tended to the jury that in fact the defendant does not understand interaction with American or western police officers. I would ask that I be allowed to cross examine the basis for that opinion and rebut that inference through her prior police contacts.

"[DEFENSE COUNSEL]: It's inadmissible, prior police contacts. What police contacts? What were the police contacts, what was said, what wasn't said. I mean, basically, unless somehow what is admissible of course has to do with prior convictions and nothing would fall under that exception, he's trying to show some other thing. I don't know what it is, motive.

"THE COURT: Okay. I'm not sure what you can accomplish with this witness.

"* * * * *

"[PROSECUTOR]: It's the basis of his opinion. If he is not knowledgeable of these events, then it goes to the credibility of his opinion.

"* * * * *

"THE COURT: I'm not going to allow you to raise those inferences unless you tell me you can bring in somebody uninvolved that's going to establish these facts. I think you've got a point as to the opening of the door that has been created if there's been previous police contacts and you can prove it through something other than documents. You know, if she takes the witness stand, that's something to pursue.

"* * * * *

"[DEFENSE COUNSEL]: I'll object to it. I think it's irrelevant and I know of no basis to make it relevant. I mean, basically what they are going to do is try and show that she's had some sort of prior contact with police. So what? We have prior contacts, priors cases all the time where people, it's not their first contact with police.

"THE COURT: I understand. But you've made an issue of it.

"[DEFENSE COUNSEL]: I made an issue of the fact she doesn't understand English as well, * * * and doesn't always use the right word is an issue in the case.

"THE COURT: You made an issue in your opening statement and through this witness that there's a difference in the way police behave in Japan and here and, therefore, she behaved in a certain way on this occasion. That has nothing to do with necessarily the language.

"[DEFENSE COUNSEL]: Quite frankly, I think it does. It basically has to do with a cultural difference. I mean, basically you can't separate the two.

"THE COURT: That's not language. I'm going to allow the DA to pursue it if he finds a way to do it. Not with this witness, I don't think, because I don't know what you can establish with this witness. But if you have a rebuttal witness, and especially if it's going to be cross examination with defendant, you might be able to establish various things.

"[PROSECUTOR]: Thank you, Your Honor.

"[DEFENSE COUNSEL]: I'd just like an objection to that.

"THE COURT: You have your objection, but I haven't heard anything that's a basis for it. Once you have chosen to make this an issue, her lack of understanding of how the police in this country operate, and that is not necessarily based on language and certainly based on this witness's testimony is not based on language much at all.

"[DEFENSE COUNSEL]:

...