State v. Hayes
| Decision Date | 19 July 1995 |
| Parties | STATE of Oregon, Respondent, v. Michael Edward HAYES, Appellant. C930154CR; CA A80905. |
| Court | Oregon Court of Appeals |
Irene B. Taylor, Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.
Jonathan H. Fussner, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen. and Virginia L. Linder, Sol. Gen.
Before RIGGS, P.J., and LANDAU and LEESON, JJ.
Defendant appeals his convictions for first degree rape, third degree rape, and third degree sodomy. ORS 163.375; ORS 163.355; ORS 163.385. He argues that the trial court erred in admitting evidence that he failed to appear for a scheduled blood draw appointment. The state concedes that the trial court erred, but argues that the error was harmless. We affirm.
Following a conviction, we review the evidence in the light most favorable to the state. State v. Brown, 310 Or. 347, 350, 800 P.2d 259 (1990). On the evening of August 9, 1994, defendant drank a case of beer at his apartment. He then went to a coworker's apartment, where he had agreed to spend the night in order to help move some items the next morning. The coworker's four children including the 14-year old victim, were also at the apartment. While at the apartment, defendant drank five or six more beers before they all went to sleep. The coworker slept in the bedroom with his two sons, the two daughters slept on a mattress on the living room floor and defendant slept on the floor between the kitchen and the living room.
One of the daughters woke up in the middle of the night with defendant on top of her trying to engage in intercourse with her. Her jeans and panties were on the floor next to her. She curled up to try to get him to stop, but he grabbed her ankles and pulled her legs apart. He kissed her and put his tongue on her vagina and repeatedly tried to have intercourse with her. At some point, defendant asked the victim whether she was awake and she replied that if she were awake, she might do something that she would regret. He got off her and she got dressed. He then apologized, got dressed and left at about 4:30 or 5:00 a.m. He did not return that day to help the victim's father move.
When the rest of the family awoke, the victim had already taken a shower; she was upset and refused to speak to anyone except her Aunt Peggy. Her father took her to her aunt's house, where she revealed that she had been raped. Her father called the police and they brought her to the emergency room. Samples of hair and swabs from her vagina were taken, but no evidence of sperm was found.
On August 18, 1993, Detective Danielson contacted defendant at work and asked defendant about his activities on August 9. Defendant said that he could not remember anything that happened between drinking the case of beer and waking up around 6 a.m. the next morning in his Lake Oswego apartment. Defendant and Danielson then made arrangements to meet the following morning. Shortly after 5:00 p.m., defendant called Danielson and said that Danielson might as well come back and get him; he did not want to cause anybody any more trouble. Danielson assured defendant that it would be best to meet the following morning as planned.
The next morning, defendant met with Danielson for a tape-recorded interview. After defendant was advised of his Miranda rights, Danielson described what the victim alleged to have occurred. Defendant said "I don't remember doing any of that[;] * * * I would never do anything like that." Danielson then asked under what conditions he might do something like that and defendant replied:
Defendant eventually recalled talking to the victim and apologizing to her before leaving her apartment. Danielson continued to ask him what else he remembered from that night:
At the end of the interview, Danielson took some hair samples and arranged for a blood draw the following Friday. The next day, an attorney called Danielson and said that defendant was invoking his constitutional rights until further notice. Defendant did not appear for the blood draw.
At trial, the victim, her father, her sister and her aunt testified. In addition, Danielson, the examining physician, the emergency room nurse and a number of other witnesses testified for the prosecution. Defendant did not testify, but the tape-recorded interview with Danielson was played. During the state's case-in-chief, Danielson testified as follows:
Defendant objected to the testimony as an improper comment on the exercise of his constitutional right to silence, but the objection was overruled. At the end of the trial, in the rebuttal argument to the jury, the prosecutor said:
(Emphasis supplied.)
Defendant was convicted.
On appeal defendant argues that the court erred in allowing the prosecution to comment on his exercise of the constitutional right to silence by allowing the prosecution to refer to his failure to show up for the blood draw. The state concedes that the court erred and, although we are not bound by the state's concession, State v. Jones, 129 Or.App. 413, 879 P.2d 881 (1994), we agree that the court erred.
Nonetheless, the state argues that the error was harmless. There is no doubt that, normally, it is reversible error to
"admit evidence of the exercise by a defendant of the rights which the constitution gives him if it is done in a context whereupon inferences prejudicial to the defendant are likely to be drawn by the jury." State v. Smallwood, 277 Or. 503, 505-06, 561 P.2d 600, cert. den. 434 U.S. 849, 98 S.Ct. 160, 54 L.Ed.2d 118 (1977).
But error, even of constitutional proportions, may be found harmless. State v. Walton, 311 Or. 223, 230-31, 809 P.2d 81 (1991). The harmless error rule, which arises from Article VII (amended), section 3, of the Oregon Constitution, 1 requires us to affirm a defendant's conviction, even though a trial court committed error,
"whenever there is (1) substantial and convincing evidence of guilt and (2) little, if any, likelihood that the error affected the verdict." State v. Parker, 317 Or. 225, 233, 855 P.2d 636 (1993).
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