State v. Hubbard
| Decision Date | 18 September 1984 |
| Citation | 297 Or. 789,688 P.2d 1311 |
| Parties | STATE of Oregon, Petitioner on Review, v. Gary Thomas HUBBARD, Respondent on Review. TC C81-07-33514, CA A23649, SC 29358. . * |
| Court | Oregon Supreme Court |
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With him on briefs were Dave Frohnmayer, Atty. Gen. and William F. Gary, Sol. Gen., Salem.
Phillip M. Margolin, Portland, filed the brief and argued the cause for respondent on review.
The question presented in this case is whether cross-examination related to the arresting officer's knowledge of internal police department procedures and the potential sanctions against officers who use unnecessary force is relevant to show bias or interest and, if so, whether it was reversible error for the trial judge to exclude the evidence.
Defendant was convicted by a jury of and sentenced by the trial court for Escape The officer testified that he stopped defendant as a suspected drunken driver; when the officer told defendant he was under arrest, defendant drove away at high speed; defendant was subsequently apprehended in his driveway where the officer attempted to handcuff defendant; defendant struck the officer repeatedly with his fists, causing the officer to defend himself with his nightstick; defendant ran into his residence and the officer, accompanied by several recently arrived police officers, forcibly entered the residence, but was unable to find defendant.
in the Second Degree, Reckless Driving and Attempting to Elude a Police Officer. The charges stemmed from an encounter between defendant and a police officer, the details of which both defendant and the officer testified to at trial.
Defendant testified that he was stopped by the officer; while stopped, defendant's wife called him on his radio communication pager and asked that he come home immediately; defendant asked the officer to follow him home a few blocks away so that defendant could respond to his wife's page; upon arrival at his house, the officer unexpectedly attempted to handcuff him, threatened to mace him and then beat him with a nightstick; defendant escaped into his house, pursued by the officer, who banged on the door and threatened to break it down; defendant then hid outside the home from the officer for several hours.
Defendant and the officer were the only two witnesses to the incident surrounding the charges of which defendant was convicted. Consequently, the credibility of the officer was a critical prosecutorial element of the trial.
Defendant attempted to cross-examine the officer regarding the officer's knowledge of internal police department disciplinary measures available against an officer who uses excessive force at an arrest scene. The alleged purpose of the questioning was to show that the officer had a personal interest in the outcome of the case and that his version of the events might be slanted because of his desire to avoid departmental discipline. The trial judge disallowed the questioning because no complaint of excessive force had been filed against the officer and because the resulting evidence would leave the jury with an incorrect inference that defendant had filed such a complaint. The Court of Appeals held the exclusion of the testimony was an abuse of discretion and reversed and remanded for a new trial. State v. Hubbard, 61 Or.App. 350, 657 P.2d 707 (1983).
In deciding whether the trial court ruling was correct, we first review how the proffered evidence developed on cross-examination. Defense counsel asked the officer in the presence of the jury:
The following colloquy took place outside the presence of the jury:
The outcome of this case lies in the resolution of the potential conflict between a basic principle of the law of evidence and a rule of procedure involving the admission of evidence. The principle, as relied upon by defendant, establishes that a criminal defendant has great latitude in cross-examining a prosecution witness, particularly in cases where the prosecution witness and the defendant give sharply conflicting accounts of the facts, and the outcome of the case rests heavily upon the credibility of the witnesses. State v. Day, 236 Or. 458, 389 P.2d 30 (1964). The rule, as apparently relied upon by the trial judge, prescribes that the trial judge has discretion 2 to limit the extent of cross-examination for bias or interest. Shrock v For some years the bench and bar of this state, and elsewhere, have sought to define the reach or breadth of a trial court's discretion. Sometimes the post-hoc pronouncements by appellate courts are stated in terms of "abuse of discretion," a term that is deprecating to the trial judge and less than helpful to the bench and bar in defining the authority of the trial court. In other cases, appellate courts have determined that certain impeachment evidence was relevant and have reversed or affirmed on that basis. Yet another variant is to determine whether the trial judge's admission or exclusion of certain impeachment evidence was reversible error.
Goodell, 270 Or. 504, 510, 528 P.2d 1048 (1974); McCarty v. Hedges, 212 Or. 497, 309 P.2d 186, 321 P.2d 285 (1958). Obviously, neither the principle nor the rule is absolute. The task of harmonizing the principle with the rule is before this court.
Obviously, by cataloguing the cases where evidence has been found to be admissible (or inadmissible), lines have been drawn to mark, in most cases, the outer limits of the trial judge's discretion. Presumably, no trial judge would repeat a ruling that once has been held to be error or an abuse of the judge's discretion; so, to that extent, bright lines have emerged. For instance, this court has allowed impeachment for bias or interest by showing: (1) that the witness was a party to another legal action, the outcome of which would be influenced directly by the outcome of the present case, Clevenger v. Schallhorn, 205 Or. 209, 286 P.2d 651 (1955) (); (2) that the witness had a motive to curry favor with the prosecution (to avoid his own prosecution), State v. Bailey, 208 Or. 321, 300 P.2d 975, 301 P.2d 545 (1956) (); (3) that a witness had accepted a bribe to refrain from testifying, State v. Dowell, 274 Or. 547, 547 P.2d 619 (1976) (); and (4) that the defense witness was personally hostile to the plaintiff, Rhodes v. Harwood, 280 Or. 399, 571 P.2d 492 (1977) (). The Court of Appeals also has drawn some lines delineating the trial judge's discretion by allowing impeachment to show: (1) that defense witness had been an acquaintance of the defendant while both were in the penitentiary, State v. Guerrero, 11 Or.App. 284, 501 P.2d 998 (1972) (); (2) that the victim was contemplating a civil action against the defendant, State v. Delucia, 40 Or.App. 711, 596 P.2d 585 (1979) (); and (3) that the victim stood a chance of prosecution himself, State v. Sheeler, 15 Or.App. 96, 514 P.2d 1370 (1973) ().
The issue of impeachment for bias or interest has not been comprehensively treated in Oregon caselaw. In order to do so, three questions must be analyzed: (1) Is the proffered evidence relevant to the bias or interest...
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