State v. McLean

• Decision Date: 22 April 1970
• Citation: 90 Or.Adv.Sh. 1035,255 Or. 464,468 P.2d 521
• Parties: STATE of Oregon, Respondent, v. Daniel Allen McLEAN, Appellant.
• Court: Oregon Supreme Court

Page 521

468 P.2d 521

255 Or. 464

STATE of Oregon, Respondent, v. Daniel Allen McLEAN, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted March 2, 1970.

Decided April 22, 1970.

Ken C. Hadley, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was George Van Hoomissen, Dist. Atty., Portland.

TONGUE, Justice.

Defendant appeals from conviction of the crime of assault and battery by means of force likely to produce great bodily injury, under ORS 163.255. The crime took place while defendant was being held in Rocky Butte jail in Portland while awaiting prosecution on another charge. The victim of the assault was also an inmate in the jail.

Defendant's conviction was affirmed by the Court of Appeals. 89 Adv.Sh. 315, 459 P.2d 559 (1969). We granted defendant's petition for review because of the serious nature of the question raised by defendant's first assignment of error. That question may be stated as follows:

Was it error for the trial court to refuse to allow defendant to testify that he had been acquitted of the charge for which he was being held in jail at the time of the assault and, if so, was any such error prejudicial, so as to require reversal of the conviction.

Because of the sordid nature of the offense, the evidence will be summarized as briefly as possible. The victim of the assault, who will remain unnamed, upon transfer from Rocky Butte to the Oregon State Correctional Institution shortly after the assault, was examined and found to have numerous 'contusions and abrasions' on various parts of his body. He was then interviewed by a detective, who observed about 20 scars and abrasions, some not yet healed or 'scabbed over', and each about 3/8 of an inch in diameter. These were on top of his head, on his chin, right elbow, and abdominal area and on the backs of his arms and legs.

He reported to the detective that after being held as an inmate of Rocky Butte jail for six months on a charge of taking and using an automobile without the owner's permission he was placed in a 'tank' with some 15 other inmates; that the defendant and three other men then approached him and demanded that he go to talk with them in the back of the 'tank'; that he was then beaten around the face and arms and was forced to submit to an act of sodomy after defendant and two others 'put out' lighted cigarettes on his head and other parts of his body; that the next day defendant and two others repeated the same thing three or four times and also forced him to drink out of a 'butt can', among other indignities; that he complained unsuccessfully to a guard and was then beaten again, and that on the next night he complained again and was finally removed from the 'tank'. During the interview he identified defendant and the others from a series of 22 photographs, including various inmates of that 'tank.'

The detective testified that he interviewed the victim on two separate occasions and found no serious discrepancies in his story. The detective also testified, on cross-examination, that the victim submitted to a polygraph test, which he 'passed.' Some other inmates of the tank were also apparently interviewed.

The testimony offered on trial by the state consisted of the testimony by the OCI hospital technician, the detective and the victim of the assault, all to the same effect, corroborated by the testimony of one other inmate of the tank, an exconvict, who testified that he saw defendant and the others jerk the victim off his bunk and drag him to the back of the 'tank' and also saw the defendant and two others 'putting out cigarettes' on his face and arms and force him to drink from the 'butt can', among other things; that the same individuals (including defendant) also hit him again the second day and 'started on him again' after he tried to get out of the tank, and that defendant also forced him to do another indecent act on threat of 'knocking his head off'.

The defendant, testifying on his own behalf, denied any assault or other acts of misconduct. The defense also offered the testimony of four other inmates of the 'tank', including one indicted for the same assault and an admitted friend of defendant. They all corroborated defendant's story that neither he, nor anyone else, had hit the complaining witness or burned him with cigarettes. None of them, however, offered any explanation for the cigarette burns on his body at the time of his transfer from Rocky Butte, other than to deny that they saw any such burns.

The state impeached all four of defendant's witnesses (but not the defendant), by proof of the record of their previous convictions. One of defendant's witnesses was also impeached by a detective, who testified that the witness had been interviewed by him in the course of his investigation and had told him that defendant and three other men had, in fact, 'corralled' and abused the complaining witness by hitting and threatening him and by committing sex acts.

In arriving at its verdict of 'guilty', the jury obviously chose to disbelieve defendant and his witnesses and to believe the testimony of the complaining witness, as corroborated by the one other inmate (who the jury probably found to be the only other inmate willing to tell the truth), as well as by the testimony of the investigating detective and the physical evidence of the numerous cigarette burns upon the body of the victim of the assaults.

The Trial Court's Refusal to Permit Testimony of Defendant's Acquittal of the Charge on Which He was Being Held.

When defendant was called as a witness in his own behalf he testified that at the time of the incident in question he was being held in Rocky Butte jail on a charge of 'taking and using' an automobile and that he was later released on his own recognizance. His attorney then asked 'What was the disposition of that case?' An objection to that question was then sustained.

It is not contended that the refusal to permit the answer to this question constituted constitutional error. It is contended, however, that the trial judge erred in that ruling and that this was prejudicial error, requiring reversal of the conviction.

In support of this contention defendant argues that although the state could properly show that defendant was in jail at the time of the crime, the result of this ruling was to lead the jury 'to infer that the defendant had been convicted of or was charged with a crime'; that since the jury was instructed that 'some of the witnesses have formerly been convicted of a crime' and could thus consider this in determining the credibility 'of any such witness', it follows, by 'analogy', that defendant 'should have been allowed to show the disposition of that independent crime', so as to remove 'the false albatross of guilt that hung about the defendant's neck'.

Defendant further contends that the error in refusing to permit him to do so was prejudicial error, requiring reversal, under the following 'test', as stated in State v. Hatcher, 29 Or. 309, 313, 44 P. 584, 586 (1896):

'* * * Unless the record conclusively shows that the error in the admission of incompetent evidence was not prejudicial to the party objecting, the judgment should be reversed.'

These contentions were rejected by the Court of Appeals holding that it was error for the trial judge to refuse to permit defendant to show the disposition of the prior charge, but that 'only such error as is found to have been prejudicial to a substantial right of the defendant' will justify a reversal (citing ORS 138.230; Amended Art. VII, § 3, Oregon Constitution); that 'in making this determination we look to the entire record' (citing cases); that 'the crime of 'taking and using an automobile' is not such as would likely have made the jury more readily believe the defendant committed the crime of assault and battery, particularly in light of the sordid facts involved here', and that 'the defendant was not prejudiced by the ruling of the trial judge' (89 Adv.Sh. 315, 459 P.2d 559 (1969)).

The Exclusion of Such Testimony as Possible Error.

First, to discuss the question whether it was error to exclude evidence of the disposition of the 'taking and using' charge and the 'analogy' claimed by defendant between such evidence and evidence that a defendant has committed other crimes.

It is elementary, of course, that evidence that a criminal defendant has committed other crimes is ordinarily inadmissible, subject, however, to various exceptions. State v. Brown, 231 Or. 297, 300, 372 P.2d 779 (1962). It must also be kept in mind that such evidence may be offered for two purposes: 1) as substantive evidence, or 2) for purposes of impeachment.

When offered as substantive evidence, an exception is recognized to the rule excluding evidence of other crimes when such evidence is relevant in establishing the particular crime charged in another criminal proceeding. State v. Oster, 232 Or. 389, 395, 376 P.2d 83 (1962). Thus, defendant cites Demons v. State, 17 Ga.App. 480, 87 S.E. 690 (1916), in which it was held that there was no error in receiving testimony that defendant was serving a sentence on a chain gang, when offered for the sole purpose of establishing his whereabouts at the time of a separate crime which was the subject of the charge against him in that case.

In such a case, the evidence is offered not to impeach the credibility of defendant, but as substantive evidence, relevant to an issue in the case. Thus, it does not necessarily follow that the defendant in such a case would have had the right to offer as relevant and substantive evidence the fact that he had been pardoned or otherwise exonerated of the crime for which he was then being held in jail and defendant has not cited any such case. Indeed, it may be contended that in such a case the...