Argued and Submitted March 26, 2014
Hood River County Circuit Court No. 120135CR, John A Olson, Judge.
Reversed and remanded.
Doug M. Petrina, Senior Assistant Attorney General, argued the cause for appellant. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Lindsey Burrows, Deputy Public Defender, argued the cause for respondent. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Before Ortega, Presiding Judge, and DeVore, Judge, and Edmonds, Senior Judge.
[265 Or.App. 461] DEVORE, J.
In this criminal case, the state appeals the trial court's order granting defendant's motion in limine preventing the state from introducing evidence of a prior conviction for driving under the influence of alcohol. See ORS 138.060(1)(c) (appeal from order suppressing evidence). The state first assigns error to the trial court's denial of the state's request to call defendant as a witness for cross-examination, arguing that defendant had waived his right against self-incrimination by submitting an affidavit. Second, because the state had been precluded from developing cross-examination, the state assigns error to the trial court's denial of the state's motion to strike defendant's affidavit. Third, the state assigns error to the trial court's order excluding evidence of defendant's prior conviction. We write only to address the state's first assignment and review for legal error. State v. Lea, 146 Or.App. 473, 482-85, 934 P.2d 460, rev den, 325 Or. 438, 939 P.2d 622 (1997) (applying that standard). We reverse and remand.
The facts are undisputed and predominantly procedural. Defendant was charged with driving under the influence of intoxicants (DUII) ORS 813.010. Under ORS 813.011, that offense is a felony if the driver has at least two previous DUII convictions within 10 years of the current offense. At a pretrial hearing, defendant moved to exclude evidence of a previous DUII conviction in 2004. He submitted an affidavit that challenged the constitutional validity of the conviction, asserting that he had not knowingly waived his right to counsel and that the court had not advised him of the danger of proceeding without an attorney. The affidavit claimed that defendant had pleaded guilty to the offense because he had been told it was the only way that he could be released from jail.
[265 Or.App. 462] The state attempted to call defendant as a witness for cross-examination regarding the claims in the affidavit. Defendant asserted his Fifth Amendment right against self-incrimination. The state objected to the affidavit and moved to strike it, indicating that " the state has had no chance to actually respond to [statements therein] or cross-examine the witness." The state urged that defendant had waived his right against self-incrimination with respect to statements in the affidavit. The state also argued that defendant had not met his burden under State v. Probst, 339 Or. 612, 124 P.3d 1237 (2005), to show that he had not validly waived his right to counsel in the 2004 conviction. The trial court denied the motion to strike and permitted defendant to refuse to be called as a witness by exercise of his Fifth Amendment right. The trial court determined that defendant had met his burden under Probst and excluded the evidence of the previous DUII conviction.
As a threshold matter, on appeal, defendant interjects that this court does not have subject matter jurisdiction and that the appeal is unreviewable. We disagree. ORS 138.060(1)(c); see also State v. Hess, 342 Or. 647, 654, 159 P.3d 309 (2007) (rejecting a similar argument and concluding court's pretrial order had the effect of excluding evidence from the jury's consideration).
Defendant also contends that the state's lead issue is unpreserved because the state failed to make an offer of proof. Defendant suggests that the state should have further developed the record " by identifying what questions it wished to ask defendant and its purpose in seeking cross-examination." We have observed that " [t]o assure that appellate courts are able to determine whether a trial court erred in excluding ...