State v. Mack
Decision Date | 11 December 1978 |
Docket Number | No. 103285,103285 |
Citation | 587 P.2d 516,37 Or.App. 487 |
Parties | STATE of Oregon, Respondent, v. Roger John MACK, Appellant. ; CA 10808. |
Court | Oregon Court of Appeals |
Philip J. Hand, Woodburn, and A. B. Cummins, Jr., Salem, argued the cause for appellant. On the brief were Rhoten, Rhoten & Speerstra, and A. B. Cummins, Jr., Salem.
Jan P. Londahl, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.
Before SCHWAB, C. J., and JOHNSON, GILLETTE and ROBERTS, JJ.
Defendant appeals from his conviction and sentence for the crime of rape in the first degree, raising three assignments of error, all related to the introduction of evidence of prior crimes or arrests. We affirm.
Defendant first contends that the trial court erred in denying a defense motion for a mistrial following cross-examination of a character witness by the prosecution concerning a prior arrest of defendant which did not lead to a conviction. A character witness had testified on defendant's behalf that he knew the defendant and found the charge against him unbelievable. The assignment of error focuses on the propriety and effect of the following question asked on cross-examination:
"Q Tell me, * * * you heard (sic) this defendant previously had been arrested for sodomy "
The trial court sustained defendant's objection because the arrest had not led to a conviction and instructed the jury to disregard the question, but refused to grant a mistrial.
In State v. Kendrick, 31 Or.App. 1195, 572 P.2d 354 (1977), Rev. den. 282 Or. 385 (1978), we stated:
31 Or.App. at 1200, 572 P.2d at 356.
This rule applies even where the "incident" raised on cross-examination is an arrest which has not led to conviction. Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948), sets forth the distinction between the questioning of a character witness as to knowledge of the defendant's arrest record and questioning of a witness as to his own arrests:
(Footnote omitted.) 335 U.S. at 482-83, 69 S.Ct. at 222.
Rulings on motions for mistrial are properly within the discretion of the trial court and we review those rulings only for abuse of discretion or "the tolerance of uninvited prejudice." State v. Stanley, 30 Or.App. 33, 36, 566 P.2d 193, Rev. den. (1977). Since the trial court could properly have allowed the prosecution's question about defendant's arrest, the defendant was not prejudiced by the question. The jury was, in fact, instructed to disregard the question, leaving the defendant in, if anything, a more advantageous position than warranted.
Defendant next contends that the trial court erred in permitting the prosecution to question the defendant about a prior conviction for attempted adultery because the conviction was not a crime at either the time of the alleged commission of or trial for the present crime and because the conviction is nearly 12 years old and, therefore, too remote to have any probative value. 1 Following arguments outside the presence of the jury, the trial judge ruled in advance that the prosecution could question the defendant about his prior conviction for attempted adultery, stating that defendant's objections spoke only to the weight to be given the evidence.
Impeachment of a witness through evidence of prior convictions is governed by ORS 45.600 which provides:
"A witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth is bad or that his moral character is such as to render him unworthy of belief; but he may not be impeached by evidence of particular wrongful acts, Except that it may be shown by his examination or by the record of the judgment, that he has been convicted of a crime." (Emphasis supplied.)
In 1966, defendant was arrested for the crimes of assault and attempted rape. He pled guilty to the crime of attempted adultery. Defendant contends that because this offense has since been removed from the Oregon Criminal Code 2 it is no longer a crime within the meaning of ORS 45.600. In Marshall v. Martinson, 268 Or. 46, 518 P.2d...
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State v. Lawson, C
...and not the length or content, of defendant's testimony. See Marshall v. Martinson, 268 Or. 46, 518 P.2d 1312 (1974); State v. Mack, 37 Or.App. 487, 587 P.2d 516 rev. den. Affirmed. 1 ORS 45.600 provides:"A witness may be impeached by the party against whom he was called, by contradictory e......
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Miller v. Maass, 89-35215
...Nevell's arrest record was not Brady material. Evidence of arrests is generally inadmissible and may not be used for impeachment. State v. Mack, 587 P.2d 516. 517-518 (Or.Ct.App.1978). 1 Inadmissible evidence is not Brady material "because it never would have reached the jury and therefore ......