Filed: May 20, 1999
IN THE SUPREME COURT OF THE STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
TRACEY MACK TITUS,
Petitioner on Review.
(CC 93-1324; CA A89485; SC S43817)
On review from the Court of Appeals.*
Argued and submitted September 5, 1997.
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.**
CARSON, C.J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
*Appeal from Tillamook County Circuit Court,
David W. Hantke, Judge.
144 Or App 329, 927 P2d 157 (1996).
**Fadeley, J., retired January 31, 1998, and did not participate in this decision; Graber, J., resigned March 31, 1998, and did not participate in this decision; Kulongoski, J., did not participate in the consideration or decision of this case.
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 P2d 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 P2d 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.(1) 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 P2d 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.
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
P2d 1073 (1996); State v. Hubbard, 297 Or 789, 798, 688 P2d 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. 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 P2d 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 of
law.
We now apply the foregoing standard of review to this
case. Assuming that Bassett did, in fact, threaten a defense
witness, it is unclear from the record whether that threat was
inspired by his alleged animosity for the witness, for defendant,
or both. However, it is indisputable that Bassett's threat, if
successful, would have eliminated a defense witness, thereby
possibly increasing the likelihood of defendant's conviction.
Thus, although evidence of the threat could have supported more
than one theory of bias, the evidence had a tendency to make the
existence of bias against defendant more probable than it would
have been if the evidence were excluded. It follows that the
evidence was relevant under OEC 401. The trial court's
conclusion to the contrary was error.
Having concluded that the trial court erred in
excluding the threat evidence, we now must determine whether that
error requires reversal of defendant's conviction. Evidentiary
error is not presumed to be prejudicial. OEC 103(1). An adverse
verdict may be affirmed, notwithstanding the evidentiary error,
if there is little likelihood that the error affected the
verdict. State v. Hansen, 304 Or 169, 180, 743 P2d 157 (1987).
As to evidence of bias, in Hubbard, this court stated:
"It is error for the trial judge to exclude evidence
which establishes sufficient facts from which the bias
or interest of a witness may be inferred. If in the
context of the entire trial, the exclusion is
prejudicial to the party who sought to introduce the
impeachment evidence, it is reversible error."
297 Or at 798. Where, as here, an error results in the exclusion
of bias evidence, the specific issue is whether the error denied
the jury "an adequate opportunity to assess the credibility of a
witness whose credibility is important to the outcome of the
trial." Id. at 800. Thus, under Hubbard, the trial court's
error in this case would be harmless if either: (1) despite the
exclusion, the jury nonetheless had an adequate opportunity to
assess Bassett's credibility; or (2) Bassett's credibility was
not important to the outcome of the trial.
We first consider whether the jury had an adequate
opportunity to assess Bassett's credibility. The jury already
had heard substantial evidence of Bassett's bias when the threat
evidence was excluded. In addition to the previously discussed
impeachment evidence, defendant also presented testimony from
Bassett's ex-wife that Bassett hated defendant and wanted to
"get" defendant "busted." However, that evidence, at the most,
established only that Bassett was hostile toward defendant. If
that had been the only evidence admitted, then the jury might
have believed that, despite his ill feelings toward defendant,
Bassett nonetheless had obeyed the law and testified honestly.
By contrast, the threat evidence might have suggested that
Bassett was willing to act unlawfully based upon his feelings
toward defendant in order to undermine the fairness of
defendant's trial. In other words, the jury might have concluded
that, if Bassett unlawfully had threatened a defense witness, he
also would have had no compunction about lying under oath. Thus,
the threat evidence could have informed the jury's credibility
assessment of Bassett in a way that the evidence of Bassett's ill
feelings might not have.
We think it significant that the threat evidence
demonstrated an attempt by Bassett to undermine the legal
proceeding itself. In our view, that suggests bias qualitatively
different in nature from that suggested by the evidence of
Bassett's ill feelings toward defendant. Thus, we cannot
conclude that the jury had an adequate opportunity to assess
Bassett's credibility absent consideration of evidence of
Bassett's alleged threat.
Next, we consider whether Bassett's credibility was
important to the outcome of the trial. "If numerous other
witnesses testified to a given fact, then the exclusion of
evidence of a witness' bias or interest who testified to the same
fact might be 'harmless error' in the context of a given trial."
Hubbard, 297 Or at 800. However, such an error would not be
harmless "where the impeached witness is the sole witness on a
given issue and there is no corroborating evidence." Id. at 800-01.
We begin by reviewing the evidence presented against
defendant.
Defendant was charged with possession and delivery of a
controlled substance on or about December 3, 1993. Because both
parties presented evidence relating to events several months
before his arrest, the trial court ruled that defendant could be
convicted based upon any facts alleged to have occurred between
March 1 and December 9, 1993.
The state's first two witnesses were police officers:
Officer Woodruff, a City of Tillamook police officer, and
Detective Nafziger, an Oregon State Police detective specializing
in narcotics. Woodruff testified that Aerni, a friend and former
roommate of defendant's, had told Woodruff that she had obtained
methamphetamine from defendant and that defendant was the primary
drug dealer in her town. Woodruff testified that, on December 3,
1993, he went to defendant's apartment to investigate a report
that defendant had drugs in his apartment and unlawfully
possessed a firearm. According to Woodruff, when he arrived at
defendant's apartment, defendant was wearing a coat, which
defendant took off and set down on a piece of furniture in the
apartment. Nafziger and another officer then arrived and
searched defendant's apartment with defendant's consent.
Nafziger found several syringes, some used, in a drawer in
defendant's bedroom. Nafziger also found nine one-quarter gram
bags of methamphetamine in the pocket of defendant's jacket.
Although defendant admitted that he had worn the jacket for
several hours before the search, he denied any knowledge of the
methamphetamine and claimed that someone must have put it there
in an effort to frame him. Defendant later presented evidence
that Bassett had possession of the jacket for some period during
the week before defendant's arrest. Defendant also denied any
knowledge of the syringes in his bedroom.
Next, Nafziger testified that he had seen what he
believed to be needle marks on defendant's arm. Defendant
offered no explanation for the marks at the time but, at trial,
suggested that perhaps there was a rash on his arm from working
with fiberglass.
Nafziger also testified that, at the time of his
arrest, defendant had $1,768 in cash in his wallet, and his
checkbook recorded recent balances at least as high as $8,000 --
despite the fact that he had been unemployed for several months.
Defendant explained that those balances were attributable to his
recent receipt of inheritance income. Finally, Nafziger
testified that defendant had admitted selling a $20 bag of
methamphetamine on behalf of his roommate. According to
Nafziger, defendant then recanted, stating that he had not
delivered the drugs himself, but merely had taken the money for
his roommate, who earlier had delivered the drugs.
Bassett was the state's third witness. He testified
that he had helped defendant find a drug supplier so that
defendant could operate as a drug dealer. He also testified that
he had purchased drugs from and used drugs with defendant during
the period from June 1993 until defendant's arrest in December
1993.
The state's fourth witness was Aerni, who testified to
the following: Bassett had obtained his methamphetamine from
defendant; defendant was selling drugs for a living when she met
him; and, while living with defendant for several months before
his arrest, she had observed him selling drugs and had
accompanied him on trips to buy as much as three ounces of
methamphetamine. According to Aerni, defendant bought and sold
six to eight ounces of methamphetamine each week and divided that
amount into one-quarter gram bags. She claimed that defendant
often paid more than $800 for an ounce of methamphetamine and
typically more than doubled his investment by reselling the one-
quarter gram bags. Finally, Aerni testified that defendant had
injected methamphetamine on December 2, 1993, the day before his
early morning arrest, and that, several hours before his arrest,
defendant had stated that his drug supply was low and that he
planned to buy two more ounces that night.
Bassett's testimony contains only two statements that
conceivably could have contributed to defendant's conviction.
First, Bassett testified that he had helped defendant find a drug
supplier so that defendant could operate as a drug dealer. That
testimony, however, would not by itself have supported
defendant's conviction -- it merely invited an inference that
defendant at some point possessed and delivered illegal drugs.
In light of the evidence just discussed, that testimony was
unlikely to have affected the outcome of defendant's trial.
Second, Bassett testified that he regularly purchased
drugs from defendant during the period from June or July 1993
through December 1993. That testimony is significant, because it
independently could have supported defendant's conviction. It
follows that the risk of prejudice from the erroneous exclusion
of impeachment evidence against Bassett was significant.
However, Bassett was only one of four witnesses called
by the state, and neither of the charges against defendant were
supported solely by his testimony. Three other witnesses
testified that defendant regularly had possessed and delivered
drugs between March 1 and December 3, 1993. It also is
significant that drugs were found in defendant's jacket at the
time of his arrest. Finally, defendant's hasty admission to
Nafziger that he had participated in a drug sale, although
quickly retracted, also could have supported defendant's
conviction.
It also is significant that other witnesses
corroborated Bassett's testimony that he had bought drugs from
and used drugs with defendant. First, Woodruff testified that
Aerni had told him that defendant was the drug dealer in town and
that she regularly had bought methamphetamine from him. Second,
Aerni testified that she and Bassett had obtained drugs from
defendant and regularly had used the drugs together.
Based upon that independent evidence of defendant's
guilt and the testimony corroborating Bassett's allegations, we
conclude that the erroneous exclusion of the impeachment evidence
concerning Bassett was not likely to have affected the outcome of
this case below. It follows that the trial court's error was
harmless. Compare Hubbard, 297 Or at 802 (exclusion not harmless
error when no additional testimony supported defendant's
conviction).
The decision of the Court of Appeals and the judgment
of the circuit court are affirmed.
1. On review, the state argues that, in addition to holding the evidence to be irrelevant under OEC 401, the trial court "implicitly" determined that the evidence was cumulative and confusing under OEC 403. The record does not support that assertion. Also, we do not consider the state's additional argument that the trial court's exclusion of the evidence was, at most, harmless error, because the evidence would have been excluded as cumulative under OEC 403. Our harmless error analysis on review of a trial court's determination of relevance under OEC 401 does not include discretionary rulings the trial court could have made under OEC 403.
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