State v. Lajoie
| Citation | 316 Or. 63,849 P.2d 479 |
| Parties | , 61 USLW 2706 STATE of Oregon, Respondent on Review, v. Clinton Keith LAJOIE, Petitioner on Review. CC 10-88-08977; CA A63706; SC S37935. |
| Decision Date | 25 May 1993 |
| Court | Supreme Court of Oregon |
Michael V. Phillips, of Johnson, Clifton, Larson & Bolin, P.C., Eugene, argued the cause and filed the petition for petitioner on review.
Jas. Adams, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response brief were Dave Frohnmayer, Atty. Gen., and Virginia Linder, Sol. Gen., Salem.
At issue in this case is whether an accused's failure to give statutorily mandated notice of his intention to offer evidence of the alleged victim's past sexual behavior requires a trial court to refuse to allow the accused to present such evidence at trial and, if it does, whether such a requirement is constitutional. Under the specific facts presented here, we hold that such a failure does so require and that the requirement is constitutional.
Defendant was charged with rape in the first degree, ORS 163.375, sodomy in the first degree, ORS 163.405, and sexual abuse in the first degree, ORS 163.427, involving a child under the age of 12 years. Seven days before the scheduled trial date, defendant made a written motion to offer evidence of the alleged victim's past sexual behavior under OEC 412(2). 1 The state moved to strike defendant's motion on the ground that it was not timely filed, relying on OEC 412(3), which requires the motion to be made "not later than 15 days" before the scheduled trial date. The trial court granted the state's motion, concluding that, because defendant's motion was untimely, the court was required to preclude evidence offered by defendant at trial of the alleged victim's past sexual behavior. Defendant attempted to introduce the same evidence during cross-examination of the state's witnesses, but the trial court precluded the cross-examination as an extension of its ruling that the evidence was inadmissible for failure to comply with the notice procedure of OEC 412. A jury convicted defendant of all three charges.
On appeal, defendant argued that OEC 412 does not apply to evidence elicited on cross-examination where the cross-examination is properly within the scope of the direct examination. Defendant also argued that preclusion of evidence as a mandatory sanction for failure to comply with the notice requirement of OEC 412 is unconstitutional under the Oregon and United States Constitutions. The Court of Appeals affirmed without opinion. State v. Lajoie, 105 Or.App. 226, 804 P.2d 1230 (1991).
We first consider defendant's argument that OEC 412 does not apply to evidence elicited on cross-examination. See Priest v. Pearce, 314 Or. 411, 414, 840 P.2d 65 (1992) ().
OEC 412 provides:
Neither defendant nor the state argues that the evidence at issue in this case is not evidence of the alleged victim's "past sexual behavior" within the meaning of OEC 412. 2 Defendant asserts, however, that failure to comply with the notice requirement of OEC 412 cannot be used to limit cross-examination, citing State v. Reiter, 65 Or.App. 304, 307, 672 P.2d 56 (1983) ().
The wording of OEC 412 provides no basis for defendant's argument. OEC 412 is a blanket limitation on the introduction of "evidence" of an alleged victim's past sexual behavior in a prosecution for a sexual crime. 3 By its terms, OEC 412 does not distinguish between evidence offered on direct examination and evidence offered on cross-examination.
OEC 412(1) provides that "reputation or opinion evidence of the past sexual behavior of an alleged victim of [a sexual] crime is not admissible." No distinction is made between reputation or opinion evidence introduced on cross-examination and such evidence introduced on direct examination. This type of evidence simply is "not admissible," regardless of the method by which it is offered.
Similarly, OEC 412(2) provides that "evidence of a victim's past sexual behavior other than reputation or opinion evidence [i.e., specific acts evidence] is also not admissible," with only three exceptions. Subject to compliance with the procedural requirements of OEC 412(3), such evidence is admissible only if it "(A) [r]elates to the motive or bias of the alleged victim; or (B) [i]s necessary to rebut or explain scientific or medical evidence offered by the state; or (C) [i]s otherwise constitutionally required to be admitted." OEC 412(2)(b). Each of those three exceptions applies to evidence that could be elicited on cross-examination. First, evidence relating to a victim's motive or bias could be elicited on cross-examination. Second, evidence to rebut or explain medical evidence could be elicited on cross-examination; indeed, the cross-examination at issue in this case was an attempt to elicit such evidence. Third, constitutional requirements can demand the opportunity to elicit evidence on cross-examination. See Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) ().
Further, the notice requirement of OEC 412(3) makes no distinction between evidence sought to be elicited on direct examination and that sought to be elicited on cross- OEC 412(3)(a) provides an exception from the notice requirement "if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case." If either of those conditions is met, the defendant can introduce evidence of past sexual behavior even though the notice requirement was not met. The defendant could introduce such evidence either by cross-examination of the state's witnesses or by direct examination of his own, and nothing in the wording of OEC 412(3)(a) suggests otherwise.
Finally, OEC 412(3)(c), which describes how the trial court is to determine the admissibility of evidence offered under OEC 412, expressly refers to evidence offered on cross-examination. If the trial court, following the hearing in chambers described in ...
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