State v. Smith
| Decision Date | 25 August 2004 |
| Citation | 96 P.3d 1234,194 Or.App. 697 |
| Parties | STATE of Oregon, Respondent, v. Leo Alva SMITH, Appellant. |
| Court | Oregon Court of Appeals |
Andrew S. Chilton argued the cause for appellant. With him on the brief was Chilton & Ebbett, LLC.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.
Defendant appeals his conviction for first-degree sexual abuse. In his sole assignment of error, defendant asserts that the trial court erred in excluding on hearsay grounds defendant's proffered testimony that his father told him that a police officer had told his father that defendant's parents would lose their home if defendant contested the charges in this case. Defendant asserts that both statements included in the proffer were relevant for a nonhearsay purpose, namely, to show that defendant had a motive to confess falsely to one of the crimes with which he was charged. We reverse and remand.
Defendant was charged with first-degree rape and first-degree sexual abuse of his then five-year-old niece. Detective Stratford investigated the case. After defendant was arrested, Stratford interviewed him. Defendant admitted to Stratford that he had digitally penetrated the victim's vagina. Before trial, defendant moved to suppress his statement. Defendant testified at the pretrial hearing that Stratford had told him that, if defendant fought the charges against him, defendant's parents would lose their home. The trial court denied the motion to suppress.1
Defendant's primary defense at trial was to attack the credibility of his statement to Stratford. In her opening statement, defendant's attorney told the jury that Stratford had threatened defendant with the loss of his parents' home if defendant fought the charges. During her cross-examination of Stratford, defense counsel asked Stratford whether he had asked defendant if "he wanted his parents to lose their house." Stratford denied asking such a question.
In his own case-in-chief, defendant called his father as a witness. Defendant's father testified briefly and generally about defendant's relationship with the victim and her family. Defendant's counsel did not ask defendant's father whether Stratford had ever stated to the father that defendant's parents would lose their home if defendant contested the charges, nor whether he had told defendant that the detective had made such a threat. After his testimony ended, defendant's father was released as a witness and remained in the courtroom.
Defendant testified on his own behalf the next day. Defendant testified that, when he made the incriminating statement to Stratford, he believed that he would be convicted no matter what he said. Defendant also testified that he believed that, by making the statement, he would get a shorter sentence and spare the victim, himself, and his family the pain of having to try the case.
During direct examination of defendant, the following colloquy occurred:
There ensued a colloquy about whether defendant's father could be recalled to allay the court's foundational concerns. The court then reiterated its concern about the lack of foundation for the purported statement to defendant's father:
The court ruled that defendant's father could not be recalled as a witness to testify concerning Stratford's alleged statement to him because defendant's father had been released as a witness and had attended the trial ever since. The court then made its final ruling on the disputed evidentiary issue:
The jury ultimately acquitted defendant on the rape charge but convicted him of first-degree sexual abuse.
On appeal, defendant does not challenge the trial court's ruling that his father could not be recalled as a witness to lay a foundation for the statement that Stratford allegedly made to him. Rather, defendant's sole contention is that the trial court erred in excluding his own testimony concerning that statement on hearsay grounds. We review determinations of whether evidence qualifies for admission for errors of law. State v. Arellano, 149 Or.App. 86, 90, 941 P.2d 1089 (1997), rev. dismissed, 327 Or. 555, 971 P.2d 411 (1998).
The state initially asserts that defendant did not preserve the asserted error before the trial court because he did not make an adequate offer of proof. The state notes that, as shown by the colloquy quoted above, defendant never testified, nor did his counsel make a representation to the court, as to the substance of his father's statement. According to the state, that omission was fatal. We disagree. The Supreme Court has stated, State v. Phillips, 314 Or. 460, 466, 840 P.2d 666 (1992) (citing State v. Affeld, 307 Or. 125, 128, 764 P.2d 220 (1988)). Moreover, OEC 103(1)(b) provides that error may be predicated on a ruling excluding evidence if the substance of the evidence "was made known to the court by offer or was apparent from the context within which questions were asked." (Emphasis added.)
Here, it is apparent from the colloquy between the trial court and defendant's counsel quoted above that the court understood, from the context of the question asked, that defendant would testify that his father told him that Stratford had told defendant's father that he would lose his house if defendant contested the charges. In making its ruling, the court twice referred to "a statement like this," first in correctly observing that defendant's father had not testified about the statement and, second, in commenting on the "prejudicial impact" of the statement "in terms of the State's case as to whether or not, in fact, it was made." Moreover, the question that provoked the answer to which the prosecutor objected was whether the detective ever had said anything about his parents' house. When defendant answered that question by referring to a statement by his father, it was obvious that he was about to testify to a statement by the detective concerning his parents' house that his father had relayed to him. Under the circumstances, defendant was not required to do more to preserve his claim of error when the court foreclosed that line of inquiry. Accordingly, we turn to the merits.
Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered...
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