Submitted December 18, 2013
Multnomah County Circuit Court. 100331055. Michael J. McShane, Judge.
Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[262 Or.App. 759] TOOKEY, J.
Defendant appeals a judgment of conviction for one count of murder, ORS 163.115, two counts of assault in the second degree, ORS 163.175, one count of unlawful possession of methamphetamine, ORS 475.894, two counts of robbery in the first degree, ORS 164.415, and three counts of robbery in the second degree, ORS 164.405. Defendant presents two assignments of error on appeal. We reject defendant's second assignment of error without published discussion and write only to address his first assignment of error in which he argues that the trial court violated his right " to be heard by himself" under Article I, section 11, of the Oregon Constitution, when it denied his request to make an unsworn statement to the jury during trial. We conclude that defendant's Article I, section 11, right to be heard does not include the right to present his version of the facts to the jury, unsworn, during his case-in-chief. Accordingly, we affirm.
The relevant procedural facts are not in dispute. Defendant was charged with multiple crimes based on his participation in a residential burglary. At trial, during the presentation of defendant's case, defense counsel informed the trial court, " [Defendant] does not want to be a witness in the case in chief, but he would like to make an unsworn statement." In support of that request, defense counsel argued that a defendant's right to be heard under Article I, section 11, grants criminal defendants the right to make an unsworn statement in addition to the right to testify. He cited State v. Stevens, 311 Ore 119, 806 P.2d 92 (1991), to
support his assertion that the right to be heard includes [262 Or.App. 760] the right to make an unsworn statement, and DeAngelo v. Schiedler, 306 Ore 91, 94, 757 P.2d 1355 (1988), to support his assertion that the right to be heard applies throughout the entire criminal prosecution. Defense counsel asserted that, because defendant would not legally be a " witness," he should be allowed to introduce unsworn statements without being subject to impeachment, cross-examination, or risk of perjury charges.
In response, the state remarked:
" Although the State does not agree that [defendant] may make a statement to the jury, it would be irrelevant to have him comment to the jury before sentencing unsworn to give his version of the events.
" And, obviously, with his four Robbery I convictions he's highly motivated to avoid cross-examination, which would include that. Plus would go into every other aspect of his activities that evening and at other times as well. I can't think of a reason that the ...