State v. Titus

• Citation: 328 Or. 475,982 P.2d 1133
• Parties: STATE of Oregon, Respondent on Review, v. Tracey Mack TITUS, Petitioner on Review.
• Decision Date: 20 May 1999
• Court: Supreme Court of Oregon

982 P.2d 1133

328 Or. 475

STATE of Oregon, Respondent on Review, v. Tracey Mack TITUS, Petitioner on Review.

(CC 93-1324; CA A89485; SC S43817)

Supreme Court of Oregon.

Argued and Submitted September 5, 1997.

Decided May 20, 1999.

Mary M. Reese, Deputy Public Defender, Salem, argued the cause for petitioner on review. With her on the briefs was Sally L. Avera, Public Defender.

Douglas F. Zier, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General. Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, and DURHAM, Justices.¹

CARSON, C.J.

This criminal case presents three questions, each involving evidentiary issues. First, whether, as defendant contends, the trial court erred by excluding evidence suggesting that a state's witness improperly had attempted to influence the trial by threatening a defense witness. Second, whether the trial court improperly admitted certain hearsay evidence. Third, whether the trial court erred when it admitted, over his relevancy objection, evidence of defendant's prior drug use.

As to the first question, we conclude that, although the trial court erred in excluding the evidence of improper conduct of a witness, that error was harmless. We further conclude that defendant's second and third arguments do not require reversal and that a discussion of those assignments would not benefit the bench or bar. Accordingly, we affirm defendant's conviction.

Defendant was arrested and charged with possession and delivery of a controlled substance. At trial, one of the state's witnesses, Bassett, testified that he had helped defendant become a drug dealer and that defendant subsequently had supplied him with drugs.

Defendant sought to lessen the impact of Bassett's testimony by demonstrating that Bassett was biased against him. For example, on cross-examination during the state's case-in-chief, Bassett admitted that he thought that defendant was a "punk" and that he had volunteered to make a controlled purchase of drugs from defendant for the police. He also testified that, after defendant's arrest, he had broken into defendant's apartment and stolen some of defendant's property. Finally, a police officer testified on cross-examination that Bassett had admitted that he was "out to get" defendant.

Defendant claims that, after he presented that impeachment evidence, he discovered that Bassett had threatened a defense witness, Bassett's ex-wife, in an attempt to dissuade her from testifying. Specifically, Bassett allegedly had told his ex-wife that, if she testified for the defense, Bassett would use that testimony—which would place her in the company of a suspected drug dealer— against her in pending child custody proceedings.

Defense counsel first attempted to introduce evidence of that alleged threat (the "threat evidence") while cross-examining Bassett during the state's case-in-chief. The following exchange took place:

"[Defense Counsel:] Mr. Bassett, just about a couple of hours ago you were sitting out in the hallway, were you not?

"[Bassett:] Yes, I was.

"[Defense Counsel:] And your estranged wife, Gloria Bassett, was out there with you, was she not?

"[Bassett:] Yes, she was.

"[Defense Counsel:] And Brenda Aerni was out there, too, wasn't she?

"[Bassett:] Yes, she was.

"[Defense Counsel:] Didn't you tell Brenda Aerni that if Gloria Bassett testifies in this case, you're going to use that against her?

"[Bassett:] No. I made an exact statement that I didn't understand why my wife, who [had] willingly done a controlled buy or attempted a controlled buy on Tracey Titus's house and who was also one of the people who tried to take him down in December of '93, would walk into a courtroom and get up on the stand and testify for him.

"[Defense Counsel:] The question to you was: Didn't you say to Brenda Aerni that you would use it against her if she testified?

"[Bassett:] No, I did not. You can't use this court case in my custody case.

"[Defense Counsel:] All right. You say you did not.

"[Bassett:] No, I did not.

"[Defense Counsel:] Didn't you actually tell her, `Yes, I will use it against you,' when she found out that you had said that to Brenda Aerni?

"[Prosecutor:] Objection, your Honor. This is asked and answered—

"* * * * *

"[Defense Counsel:] Well, your Honor, I didn't ask him whether he asked his wife this. I intend to have her come in and testify that he did say that to her, so I think I have to ask him that question in order to lay a foundation for her to testify to that."

The state then objected, arguing that the evidence should be excluded because it was offered to impeach on a collateral matter. The court sustained the objection.

During defendant's case-in-chief, defense counsel again offered evidence of Bassett's alleged threat. The defense called Bassett's ex-wife and asked whether Bassett had threatened her in order to dissuade her from testifying. The state again objected, upon the ground that the evidence constituted impeachment on a collateral matter, because it was offered merely to contradict Bassett's testimony. Defendant explained that the evidence was not being offered to impeach by contradiction but, rather, to demonstrate Bassett's bias against him. After considering defendant's offer of proof, the trial court sustained the state's objection, concluding that the evidence was not relevant to Bassett's bias against defendant:

"Mr. Bassett's threat, as I understand it, was that if she testifies, he's going to be using that or would use that in a custody case against her.

"I don't see where that shows any bias or interest in—to or against [defendant].

"* * * * *

"Now, you talked about that testimony showing threatened behavior or abusive behavior of Mr. Bassett, and that is simply not impeachable information. I mean, that's not part of this case. That's not relevant to the elements in this case. It is not relevant to the truthfulness of Mr. Bassett. * * * [W]hat you are saying that you want to show by this evidence simply has nothing to do with this case."

The jury convicted defendant of possession and delivery of a controlled substance.

On appeal, defendant assigned error to both rulings excluding the threat evidence. In each assignment, defendant argued that the evidence was relevant to bias, because it had a tendency to prove that Bassett was willing to take improper actions to increase the likelihood of defendant's conviction. The Court of Appeals affirmed the trial court from the bench, State v. Titus, 144 Or.App. 329, 927 P.2d 157 (1996), and we allowed defendant's petition for review.

Before this court, defendant first contends that the trial court erred when it prevented defense counsel from asking Bassett, on cross-examination during the state's case-in-chief, if he had threatened his ex-wife. As he did at trial, defendant asserts that, in questioning Bassett about the threat, he intended to lay a foundation for contradictory evidence that he would have introduced later. Defendant's argument on that issue is not well taken.

A witness cannot be cross-examined on a collateral matter if the purpose of that cross-examination merely is to discredit the witness by subsequently admitting evidence to contradict the witness's testimony. Compare State v. Burdge, 295 Or. 1, 6 n. 3, 664 P.2d 1076 (1983)

(a witness may be impeached by evidence that contradicts the witness's testimony on any independently relevant fact). Applying that principle to this case, the trial court properly excluded the evidence, because defense counsel's stated purpose merely was to lay a foundation to contradict Bassett's testimony.

Defendant next argues that the trial court erred when it concluded that the testimony of Bassett's ex-wife was not relevant under OEC 401 to demonstrate Bassett's bias against him.² OEC 401 defines relevant evidence as evidence that has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." The rule establishes a "very low threshold" for the admission of evidence. State v. Hampton, 317 Or. 251, 255 n. 8, 855 P.2d 621 (1993). Evidence is relevant so long as the inference desired by the proponent is reasonable, even if the evidence also could support a contradictory inference. Hampton, 317 Or. at 255,855 P.2d 621.

At the outset, we must determine the appropriate standard of review for trial court determinations of relevance under OEC 401—a question that previously has not been addressed expressly by this court. In considering that question, we note the distinction between the determination of relevance under OEC 401 and the question of admissibility under OEC 403. A decision to exclude evidence under OEC 403 is reserved to the trial court's discretion. State v. Moore, 324 Or. 396, 407, 927 P.2d 1073 (1996); State v. Hubbard, 297 Or. 789, 798, 688 P.2d 1311 (1984). That is so because application of OEC 403 may allow for more than one legally correct outcome. Hubbard, 297 Or. at 794 n. 2, 688 P.2d 1311. For example, in some cases, the record may support either the admission or exclusion of otherwise admissible evidence under OEC 403, and neither result legally would be incorrect. See Carter v. Moberly, 263 Or. 193, 201, 501 P.2d 1276 (1972)

(so stating in a civil case).

Relevance determinations under OEC 401, by contrast, can yield only one correct answer; evidence either is relevant or it is not. Under OEC 401, if evidence logically is relevant, a trial court has no discretion to label it as irrelevant. See generally Christopher B. Mueller and Laird C. Kirkpatrick, Federal Evidence, 420 (2d ed 1994) (because determinations of relevance are based upon logic and experience, there is little reason to defer to the trial court). Accordingly, we conclude that we must review determinations of relevance for errors...