State v. Payne

• Decision Date: 02 July 2020
• Docket Number: SC S066919
• Citation: 366 Or. 588,468 P.3d 445
• Parties: STATE of Oregon, Respondent on Review, v. Isaiah K. PAYNE, aka Isaiah Khalil, Petitioner on Review.
• Court: Oregon Supreme Court

366 Or. 588

468 P.3d 445

STATE of Oregon, Respondent on Review,

v.Isaiah K. PAYNE, aka Isaiah Khalil, Petitioner on Review.

SC S066919

Supreme Court of Oregon, En Banc.

Argued and submitted January 16, 2020.

July 2, 2020

Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.

Joanna Hershey, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

NAKAMOTO, J.

During defendant's trial for third-degree sexual abuse, the complainant denied including a racial description of defendant in her statement to police and accused defense counsel of trying to make her look racist. The author of the police report testified that he had included that racial description in quotation marks because it was a direct quote from the complainant. Based on the difference between the officer's testimony and the complainant's testimony, defendant requested the uniform witness-false-in-part jury instruction. The trial court denied that request, and the jury found defendant guilty. The Court of Appeals affirmed, concluding that, even if the trial court had erred in failing to deliver the requested witness-false-in-part instruction, any error was harmless. State v. Payne , 298 Or. App. 438, 442, 447 P.3d 71 (2019).

We allowed defendant's petition for review to address whether a trial court must give a requested witness-false-in-part jury instruction if there is evidence to support a conclusion that a witness consciously testified falsely. The first question on review is whether the trial court erred in refusing to give the requested instruction. Based on our statutory construction of the phrase "all proper occasions" in ORS 10.095, we conclude that the court should have given the instruction. The second question on review is whether the trial court's failure to give that instruction constituted harmless error. We conclude that it did not. Accordingly, we reverse the decision of the Court of Appeals and the judgment of conviction on the sexual abuse count, and we remand the case to the circuit court for further proceedings.¹

I. BACKGROUND

The trial concerned an encounter between two young adults—the complainant, who is white, and defendant, who is Black—as they sat in defendant's parked car. After the complainant reported the incident to the police two days later, the state charged defendant with third-degree sexual abuse. At trial, the defense theory was that the complainant had made a false report about a consensual sexual encounter. The key witnesses at trial were the complainant and defendant.

The complainant testified to the events of that night and explained that the sexual contact was unwanted: She knew defendant socially, and defendant had unexpectedly arrived at her and her mother's apartment that night. Defendant had recently been hit by a car and was using crutches. They began a conversation outside and then agreed to continue it in defendant's car. She removed defendant's hand from her thigh three times before he eventually exposed himself, took her hand, and put her hand on his penis, causing her to masturbate him. After defendant ejaculated on her hand, she got out of the car and wiped her hand on her pants. She estimated that she was in the car for 30 to 45 minutes and stated that she had not left the car because she was afraid of defendant, who on two occasions had shown her a gun that he owned. Her boyfriend, whom she described as a "jealous" person, and her mother encouraged her to go to the police.

On cross-examination, defense counsel questioned the complainant about her statement to the police. As pertinent here, the responding officer's report quoted the complainant as saying, "There is no doubt that if I ran, a strong muscular black man could catch me." The complainant denied referring to defendant's race and stated that she referred only to his size and muscles as a reason she had not left the car. Over the course of the exchange, the complainant responded that she "did not say it like that," that she "[didn't] remember saying those words," that "those words are not exactly [her] words," and that she "didn't say things like that; that [did] not sound like [her.]" The complainant also stated that she "didn't not [sic ] say strong black man" and that she had heard defense counsel "yesterday trying to make [her] sound like [she] was racist."

After the complainant testified, defense counsel informed the court that he would be requesting the witness-false-in-part instruction because he anticipated conflicting testimony from the police officer who made the report. The court described the instruction as "disfavor[ed]" and explained that "[a]ny presentation by an attorney requesting it * * * requires [that attorney] to make a showing that it actually applies in this case for some reason."

The police officer subsequently testified. He confirmed on cross-examination that he had asked the complainant why she had not gotten out of the car and that her explanation, including the phrase "strong muscular black man," was a direct quote from the complainant.

Defendant, the sole witness in his defense, described the encounter differently than the complainant had: A mutual friend invited him to the gathering at complainant's apartment. Because a car had hit him while he was crossing a street several days earlier, he drove across the street to the complainant's apartment complex. He joined the gathering, and, when he was leaving, the complainant walked with him downstairs to his car. They sat in his car for 45 minutes to an hour. Their encounter was mutually flirtatious, and the complainant was a willing participant. He did not use any force or coerce the complainant to engage in sexual contact. He noticed that the complainant's body language changed only when her boyfriend pulled up in the spot next to his car.

Based on the conflict between the complainant's testimony and the police officer's testimony, defense counsel requested the uniform witness-false-in-part instruction. That instruction provides:

"Sometimes a witness may give incorrect or even inconsistent testimony. This does not necessarily constitute lying on the part of the witness. The witness's testimony may be an honest mistake or confusion. The witness may simply forget matters, or his or her memory of an event may contain honest inconsistencies or contradictions. Also, different witnesses may observe or recount the same event differently.

"However, if you find that a witness has intentionally lied in part of his or her testimony, you may, but are not required to, distrust other portions of that witness's testimony.

"As jurors, you have the sole responsibility to determine which testimony or portions of testimony you will or will not rely on in reaching your verdict."

UCrJI 1029.

In support of his request, defense counsel argued that the uniform instruction did not direct the jury to conclude that any witness had lied and instead offered guidance. He also argued that the record supported giving the instruction because the conflicting testimony went beyond "just inconsistency." The prosecutor did not contend that the uniform instruction was legally incorrect or otherwise faulty. She argued that the court could not give it because the record reflected the complainant's mistake, confusion, or hazy recollection rather than willfully false testimony. The trial court refused to give the instruction, determining that defendant had "made an insufficient showing to trigger the giving of that instruction."

During closing argument, defense counsel repeatedly attacked the complainant's credibility. Among other things, he drew the jury's attention to the difference between her trial testimony and her statement to the police. Defense counsel also argued that the complainant was motivated to report the event as nonconsensual to save her relationship with her boyfriend and that the complainant's friends and mother and "society's expectations" supplied other reasons for the complainant to make a false report. The jury found defendant guilty.

Defendant appealed and, as relevant here, assigned error to the trial court's failure to give the uniform witness-false-in-part instruction.

Payne , 298 Or. App. at 440, 447 P.3d 71. Although the parties at trial had not disputed whether the complainant's denial of what she had told the police was material, in the Court of Appeals, the state contended that (1) the trial court had correctly concluded that the evidence was insufficient to require giving the witness-false-in-part instruction and, in any event, (2) the "testimonial conflict was not material or significant."

The Court of Appeals affirmed defendant's conviction, explaining that it did not need to determine whether the trial court erred, because, ultimately, any error was harmless. Payne , 298 Or. App. at 440-41, 447 P.3d 71. It concluded that there was "little likelihood that the failure to deliver the uniform witness-false-in-part instruction affected the verdict, given the nature of the witness-false-in-part instruction itself and the record of the trial." Id . at 441, 447 P.3d 71. The court described the instruction as having "long been subject to criticism, given that it not only fails to require anything of the jury but also merely restates common sense and can consist of an improper comment on the evidence." Id . at 441, 447 P.3d 71. And, the court noted, defendant had been able to specifically address the inconsistency between the complainant's trial testimony and the police report during closing argument. Id . at 442, 447 P.3d 71. Thus, while expressing doubt about the necessity of the instruction in any case, the Court of Appeals concluded that any error in defendant's case was harmless. Id .

II. ANALYSIS

The...