State v. Olmstead

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: Before PETERSON, C.J., CARSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ., and GRABER; GRABER; GILLETTE; VAN HOOMISSEN
• Citation: State v. Olmstead, 800 P.2d 277, 310 Or. 455 (Or. 1990)
• Decision Date: 25 October 1990
• Parties: STATE of Oregon, Respondent on review, v. Kenneth Dale OLMSTEAD, Petitioner on review. DC 88-11312; CA A50685; SC S36654.

Page 277

800 P.2d 277

310 Or. 455

STATE of Oregon, Respondent on review, v. Kenneth Dale OLMSTEAD, Petitioner on review.

DC 88-11312; CA A50685; SC S36654.

Supreme Court of Oregon.

Argued and Submitted April 10, 1990.

Decided Oct. 25, 1990.

Michael McGrady, Eugene, argued the cause and filed the petition for petitioner on review.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent on review.

Before PETERSON, C.J., CARSON, GILLETTE, VAN HOOMISSEN, FADELEY and UNIS, JJ., and GRABER, J. Pro Tem.

GRABER, Justice Pro Tem.

Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010, ¹ and driving while suspended (DWS), ORS 811.182. ² Pursuant to ORS 161.309, he gave notice of his intent to raise the affirmative defense of guilty except for insanity under ORS 161.295. The state filed a motion in opposition, requesting "that the court strike defendant's Notice of Intent to Rely Upon The Mental Disease or Defect Defense Under ORS 161.295." The trial court granted the motion. It reasoned:

"[State v.] Maguire[, 78 Or.App. 459, 717 P.2d 226 (1986), aff'd without opinion by an equally divided court 303 Or. 368, 736 P.2d 193 (1987),] very specifically holds that the defense created by ORS 161.295 is not available in a DUII prosecution. The majority's reasoning therein would make it clear that the defense is likewise not available to a defendant charged with DWS, since DWS is likewise a strict liability offense. [State v.] Buttrey[, 293 Or. 575, 651 P.2d 1075 (1982) ]."

After a trial on stipulated facts, the court found defendant guilty of both DUII and DWS. Defendant appealed from the resulting judgment, arguing that the court erred in striking his "Notice of Intent to Defend Under ORS 161.295." The Court of Appeals affirmed the judgment on the ground that "[t]he defense under ORS 161.295 is not available, because driving under the influence of intoxicants and driving with a suspended license are both strict liability offenses. State v. Buttrey, 293 Or 575, 651 P2d 1075 (1982); State v. IMaguire, 78 Or App 459, 717 P2d 226 (1986), affirmed without opinion by an equally divided court 303 Or 368 [736 P2d 193] (1987)." State v. Olmstead, 99 Or.App. 41, 42, 780 P.2d 1201 (1989). We reverse the decision of the Court of Appeals.

We allowed review to decide whether the defense of guilty except for insanity is available to persons charged with DUII and DWS. At oral argument, however, we asked whether, at the hearing on the state's motion to strike, defendant had made an offer of proof concerning the nature of his alleged mental disease or defect. He had not. After argument, we asked the parties to respond to these questions:

"Is this case in a proper procedural posture to permit the court to resolve the issue argued by the parties? More specifically, was defendant required to make an offer of proof to preserve the error he now claims?"

Defendant maintains that this case is in a proper procedural posture for appellate review, while the state argues otherwise.

Defendant argues that, because he followed the procedure for giving notice under ORS 161.309, he has satisfied all requirements for the presentation of evidence at trial and for the preservation of error on appeal. That is, he asserts, the filing of the notice requires this court to presume that there is an adequate factual basis for the defense, which he could have proved but for the trial court's refusal to permit the defense. The state counters that the statutory notice is a necessary, but not a sufficient, condition for the preservation of error.

ORS 161.309 provides in part:

"(1) No evidence may be introduced by the defendant on the issue of insanity under ORS 161.295, unless the defendant gives notice of intent to do so in the manner provided in subsection (3) of this section.

" * * * * *

"(3) A defendant who is required under subsection (1) * * * of this section to give notice shall file a written notice of purpose at the time the defendant pleads not guilty. The defendant may file such notice at any time after the plea but before trial when just cause for failure to file the notice at the time of making the plea is made to appear to the satisfaction of the court. If the defendant fails to file notice, the defendant shall not be entitled to introduce evidence for the establishment of a defense under ORS 161.295 * * * unless the court, in its discretion, permits such evidence to be introduced where just cause for failure to file the notice is made to appear."

ORS 161.309 delineates preconditions to a defendant's introduction at trial of evidence under ORS 161.295. A defendant may not introduce evidence concerning insanity under ORS 161.295, unless the defendant has given the required notice or the trial court has found just cause for the failure to give it. The legislative history of ORS 161.309 shows that its purpose "is to avoid surprising the prosecution with a highly technical and complicated issue where experts are going to be used by the defense." Commentary to Proposed Oregon Criminal Code 39, § 40 (1970). ³

Nothing in the words or the history of ORS 161.309 suggests that the statute is meant to govern preservation of error for appellate review. Neither does that statute or its history suggest that the mere giving of notice requires appellate courts to presume that the defendant can establish a valid defense. Because ORS 161.309 does not address the issue, we turn to the usual principles that govern the preservation of error.

Whether an offer of proof was required depends on how we view the nature of the state's motion and the trial court's ruling. The motion can be seen as the functional equivalent of a pretrial motion in limine. The state asked the trial court to preclude defendant from introducing evidence on the issue of insanity under ORS 161.295, because it was irrelevant to the crimes charged. Under that view, the court's ruling, in essence, upheld a general objection to the relevance of the proposed evidence. In order to preserve error relating to the exclusion of evidence, a party ordinarily must make an offer of proof as to the content of the excluded evidence. OEC 103(1)(b); ⁴ State v. Affeld, 307 Or. 125, 128, 764 P.2d 220 (1988).

We believe, however, that a more apt analogy is to a motion to strike an affirmative defense for legal insufficiency in a civil case. We agree with Wright and Graham, Federal Practice and Procedure: Evidence 165-66, § 5034 (1977), in their analysis of the federal counterpart to OEC 103(1)(b), ⁵ that the better rule is not to require an offer of proof when the trial court strikes a claim or defense as a matter of law:

"One particularly troublesome spot on the border of Rule 103(a) is found at the point where substance and procedure meet. Suppose, for example, that a plaintiff offers evidence of the wealth of the defendant on the theory that he is entitled to punitive damages. The evidence violates none of the specific rules of evidence such as hearsay or privilege, but the judge excludes it because he disagrees with the plaintiff's claim that he can recover punitive damages. Must the plaintiff make an offer of proof to preserve the point for appeal? It can be argued that this is a ruling on relevance, now that the Rules have merged the concepts of relevance and materiality, and that therefore the offeror must comply with Rule 103. On the other hand, if the ruling had been made prior to trial, say on a motion to strike the prayer for punitive damages, no one would contend that the plaintiff would have to offer proof at trial to preserve the error for review. There seems to be no good reason why the prerequisites for appeal should vary simply because the judge makes the substantive error at trial rather than earlier. The pre-existing caselaw does not seem to have reached any clean-cut resolution of this point but it seems likely that many of the cases creating an exception to the requirement of an offer of proof when the ruling of the trial judge made such an offer futile would, on inspection, be found to fall into this category." (Footnotes omitted.)

The trial court's ruling had an effect on the presentation of evidence, but it was not primarily an evidentiary ruling.

One purpose of an offer of proof is to assure that appellate courts are able to determine whether the ruling was erroneous. State v. Affeld, supra, 307 Or. at 128, 764 P.2d 220. When the trial court rules that a party may not present any evidence on a defense, on the ground that the defense is unavailable as a matter of law, that purpose is fulfilled without the need for an offer of proof. In this situation, an offer would give us no additional information that bears on the legal question of the availability of the defense.

Another purpose of an offer of proof is to assure that the trial court can make an informed decision. An offer of proof permits the parties to raise additional arguments, if appropriate, and gives the court an opportunity to reconsider its ruling and correct any error. Booth-Kelly Lumber Co. v. Williams, 95 Or. 476, 483, 188 P. 213 (1920); I Wigmore, Evidence 858, § 20a (Tillers ed 1983). The parties in this case fully argued the merits of the legal issue, and there is nothing to suggest that an offer would have altered the court's analysis. Indeed, an offer would not have been responsive to the state's motion, which framed only the broad legal issue. When the trial court excludes an entire class of evidence by declaring, in advance, that it is inadmissible as a matter of law, the ruling renders a further offer futile.

We hold that defendant was not required to make an offer of proof to preserve the error that he now claims. Therefore, we turn to the merits.

This court has ruled that both DUII and DWS are strict liability offenses. That is, the state need not prove a culpable mental state as an element of either crime. State v. Miller, 309 Or. 362, 371...