State v. Herrera

• Decision Date: 08 May 1979
• Docket Number: No. 76-278-C,76-278-C
• Citation: 286 Or. 349,594 P.2d 823
• Parties: STATE of Oregon, Respondent, v. Antonio Miguel HERRERA, Petitioner. TC; CA 7539; SC 25764. . *
• Court: Oregon Supreme Court

Page 823

594 P.2d 823

286 Or. 349

STATE of Oregon, Respondent, v. Antonio Miguel HERRERA, Petitioner.

TC No. 76-278-C; CA 7539; SC 25764.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Oct. 9, 1978.

Decided May 8, 1979.

[286 Or. 350-A] Thomas J. Crabtree, Deputy Public Defender, Salem, argued the cause for petitioner. On the brief were Gary D. Babcock, Public Defender, and Peter Robinson, Law Intern, Salem.

Catherine Allan, Asst. Atty. Gen., argued the cause for respondent. On the brief were James A. Redden, Atty. Gen., Al J. Laue, Sol. Gen., and John W. Burgess, Asst. Atty. Gen.

LENT, Justice.

Defendant was convicted by a jury of murder. ORS 163.115. His conviction was affirmed by the Court of Appeals, State v. Herrera, 32 Or.App. 397, 574 P.2d 1130 (1978). We allowed review to consider (1) whether the defendant's right to confront witnesses against him was violated when the state introduced into evidence the testimony of a key witness given upon preliminary hearing; and (2) whether the defendant's requested instructions concerning his affirmative defense of mental disease or defect excluding responsibility based on drug dependence should have been given. We reverse and remand for a new trial.

On July 19, 1976, Samuel Newman was found stabbed to death. Several days later defendant was arrested in connection with the stabbing. At that time defendant told the police that Newman had been hitchhiking when defendant and the Lerma brothers, Steve and Phil, picked him up. Defendant said that he was driving the car, that Phil Lerma was in the back seat, that Newman and Phil got into an argument, and that Phil stabbed Newman to death while defendant tried to stop him.

Phil Lerma told the police essentially the same story as defendant. Steve Lerma, however, told the police that he had been driving, that defendant had initiated the stabbing, and that Phil had participated in the stabbing.

On August 1, 1976, Steve Lerma and the district attorney entered into a "Conditional Immunity Agreement." The agreement specified, among other things, that if Steve Lerma gave a full statement to the police, "passed" a polygraph test, and agreed to testify for the state at all hearings, he would not be prosecuted. ¹ A few days later he gave the police a statement and "passed" the polygraph test.

On September 1 and 2 Steve Lerma testified for the state at the defendant's preliminary hearing. On November 24, 1976, the last business day before defendant's trial, Steve Lerma was charged by information with felony murder. Until that time there had never been any indication by the district attorney that he did not plan to honor the August immunity agreement.

At defendant's trial Steve Lerma refused to testify on the ground that his testimony might incriminate him. Over defendant's objection, the prosecutor read a transcript of Steve Lerma's preliminary hearing testimony to the jury.

After the defendant was convicted, Steve Lerma was allowed to plead guilty to a charge of hindering prosecution, a class C felony, and on February 11, 1977, was placed on three years probation.

I. Admission of prior testimony

Defendant's first assignment of error concerns the admissibility at trial of Steve Lerma's testimony from the preliminary hearing. The trial court allowed the state to introduce the testimony over defendant's objection that its admission denied him his right to confront witnesses face to face. ²

The right of confrontation protects two vital interests of the defendant. First, it guarantees that the defendant has an opportunity to cross-examine the witness against him in order to test his sincerity, memory, ability to perceive and relate, and the factual basis of his statements. This purpose of confrontation helps to assure the accuracy of the result of the truth-determining process by giving the accused an opportunity to test the recollection and sift the conscience of a witness. Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). We do not understand defendant to contend that either his opportunity to cross-examine or his cross-examination was insufficient to protect this first interest.

The second interest of the defendant which the right to confrontation protects is enabling the defendant to demonstrate to the jury the witness' demeanor when confronted by the defendant so that the credibility of the witness is displayed in the courtroom. This second purpose is no less important than the first. As this court recently said in State v. Smyth, Or., 593 P.2d 1166 (1979):

"In our system a defendant is not tried on a dossier compiled in prior hearings, no matter how fairly and judiciously conducted. His guilt must be established at the trial by evidence that convinces a factfinder beyond a reasonable doubt. But the earlier opportunity to question the witness will often avail little when the jury at the trial sees neither the witness nor the effect of the cross-examination recorded in a cold transcript. As the United States Supreme Court stated in Barber, '(t)he right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.' 390 U.S. at 725, 88 S.Ct. at 1322, * * * "

This case, as well as any, demonstrates the importance to the defendant of cross-examining a witness in the presence of the jury so that it may judge the witness' credibility. Here there seems to be no dispute that three persons defendant, Phil Lerma, and witness Steve Lerma picked up the victim. The actions of these three people, therefore, are the key to defendant's guilt or innocence. Since the testimony of one of these three people, Steve Lerma, constitutes in significant measure the state's case against defendant and since his story differs significantly from that of the defendant and Phil Lerma, the defendant's case at trial will center on Steve Lerma's credibility. If the jury does not believe Steve Lerma's story beyond a reasonable doubt, defendant might well be acquitted.

The confrontation clause, while guaranteeing the defendant the right to confront a witness face to face, is not without exception. One such exception under which prior recorded testimony which was subject to cross-examination may be introduced into evidence at trial exists when a witness is truly unavailable to testify at a trial. Barber v. Page, supra. However, because of the defendant's strong interest in confronting his accusers and the prosecutor's duty to provide a fair trial for the defendant and protect the defendant's constitutional rights, ³ the prosecutor's invocation of this exception cannot be granted routinely.

Before a prosecutor can use prior recorded testimony and thus deprive a defendant of his right at trial to confront his accusers face to face, he must first show the trial court that use of the former testimony is a genuine necessity. State v. Smyth, supra. The burden is on the prosecutor to produce evidence to show the trial court what circumstances exist which make use of the prior recorded testimony genuinely necessary.

Here the state has not made such a showing. The state argues that Steve Lerma's assertion of the privilege against self incrimination at trial is a claim of a personal privilege over which it had no control. While it is true that a claim of a privilege is personal to the witness and in many circumstances may constitute sufficient unavailability to justify use of former testimony, ⁴ the relationship between the state and Steve Lerma in this case requires further inquiry into the circumstances of his assertion of the privilege.

Before the preliminary hearing the district attorney and Steve Lerma executed the conditional immunity agreement. The record indicates that before the preliminary hearing Steve Lerma met the conditions of the agreement by giving a statement to the police and "passing" a polygraph exam. He then testified at the preliminary hearing based on the assumption that the immunity agreement was in effect. The state obtained Steve Lerma's preliminary hearing testimony with a promise of immunity. In order to use that testimony on the basis of unavailability of the witness at trial, at the minimum the state must show good cause for breaking its promise or why it does not wish to avail itself of statutes which can compel his testimony at the trial.

The prosecutor has discretion in charging persons for crimes. He can, therefore, execute immunity agreements such as the one in this case. He also has the power, by statute, ⁵ to ask the trial court to compel a witness to testify and thereby be granted immunity from prosecution. Either of these powers will eliminate a witness' privilege not to testify. If the state uses the existence of its power to obtain for itself favorable preliminary hearing testimony, it must explain why it does not wish to further use its power to produce testimony at trial in order to satisfy the defendant's right to confrontation. Without requiring such an explanation from the prosecutor, he is in a position of preserving and using favorable preliminary hearing testimony from a potentially uncredible witness by charging or threatening to charge the witness with a crime before trial. ⁶

In this case not only did the state fail to explain the circumstances surrounding its agreement with Steve Lerma, it asserted and the trial court apparently agreed that the defendant had the burden of showing the prosecutor's bad faith toward the defendant. This, of course, is an incorrect statement of the applicable standard just set forth. The prosecutor is the party who wishes to use the prior recorded testimony which will deny the defendant his constitutional right to confront witnesses. He must, therefore, justify the use of the evidence and show he was in no way responsible for the necessity of its use.

An explanation of the circumstances surrounding the immunity agreement, preliminary...