Submitted February 25, 2014
Marion County Circuit Court. 11C51403. Susan M. Tripp, Judge.
Peter Gartlan, Chief Defender, and Mary M. Reese, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Andrew M. Lavin, Senior Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and De Muniz, Senior Judge.
[266 Or.App. 626] NAKAMOTO, J.
Defendant was convicted of one count of first-degree assault, ORS 163.185. Defendant and the victim, Johnson, had been drinking together. After Johnson put defendant in a headlock and punched him in the head several times, defendant retrieved a knife from his backpack and repeatedly stabbed Johnson. Defendant asserted that he had acted in self-defense. During the jury trial, defendant testified that he had never stabbed anyone before. The state successfully argued that defendant's testimony could be impeached on cross-examination through questioning about a prior, unrelated incident, in which defendant had threatened a bicyclist with a knife. On appeal, defendant
argues that the trial court erred by allowing that evidence, and that the error requires a reversal of his conviction for first-degree assault. We conclude that the trial court erred in admitting the evidence because the prior incident was not relevant to impeach defendant's testimony that he had never stabbed anyone before. However, we also conclude that the error was harmless. Accordingly, we affirm.
The facts relevant to our disposition are undisputed. Defendant, Johnson, and a third man were together at Johnson's apartment one night. Defendant and Johnson were drinking beer, playing music, and playing a game with a cue ball. At some point, Johnson placed defendant in a headlock and punched him on top of the head a couple of times. After Johnson released defendant, defendant retrieved a knife from his backpack and stabbed Johnson in the neck. Defendant proceeded to stab Johnson seven more times, including in the back of his legs. Defendant testified at trial that he was in fear of his life because, during the course of the night, Johnson had periodically become angry and hit defendant and had refused to let defendant leave. Defendant testified that he had preexisting spinal conditions that made him fearful that being hit again could cause paralysis or death.
[266 Or.App. 627] During the prosecutor's cross-examination of defendant, the following exchange occurred:
" [Defendant]: * * * I'm going, what did I do, I'm sitting there freaking out. I don't know, you never been in--
" [Prosecutor]: I've never stabbed ...