Submitted December 22, 2015.
County Circuit Court 1311304CR; W. D. Cramer, Jr, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Kristin A. Carveth, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Paul L. Smith, Deputy
Solicitor General, and Peenesh H. Shah, Assistant Attorney
General, fled the brief for respondent.
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
State v. Bouthillier, 4 Or.App. 145, 149, 479 P.2d
512 (1970) (on rehearing), rev den (1971).
HADLOCK, C. J., concurring.
agree with the majority that the outcome in this case is
dictated by State v. Bouthillier, 4 Or.App. 145,
149, 479 P.2d 512 (1970) (on rehearing), rev den
(1971). Moreover, defendant has not argued that we should
overrule that decision as "plainly wrong, " and,
absent argument from the parties, I am not persuaded that
that demanding standard is met in these circumstances.
See State v. Civil, 283 Or.App. 395, 406, 388 P.3d
1185 (2017) (Court of Appeals overrules its own precedent
only when that precedent is "'plainly wrong, ' a
rigorous standard grounded in presumptive fidelity to
stare decisis”). Accordingly, I concur in the
majority's affirmance of the judgment of conviction on
the ground that the trial court's error was harmless as
described in Bouthillier. I write separately,
however, to express my doubts about the continuing viability
of Bouthillier in light of our modern harmless-error
by describing the events leading to defendant's trial.
Defendant was charged with multiple crimes arising from a
November 2013 assault on the victim, defendant's former
girlfriend. Before trial, defendant moved in limine
for an order admitting evidence that the victim had pleaded
guilty to perjury in mid-2013. The victim had entered that
plea in conjunction with a diversion agreement in which entry
of a judgment of conviction was deferred while the victim
worked to satisfy the diversion agreement's requirements.
Defendant anticipated that the state would call the victim as
a witness and he argued that, if the state did so, evidence
of the victim's guilty plea to perjury would be
admissible for impeachment purposes. The trial court excluded
evidence of the victim's guilty plea on the ground that
no conviction had yet been entered. Defendant's case was
then tried to a jury in 2014 and he was convicted of
attempted fourth-degree assault, strangulation, and
appeal, defendant assigns error to the trial court's
ruling that excluded evidence of the victim's guilty plea
to perjury. He contends that the victim's guilty plea
[287 Or. 688] meant that the victim had been
"convicted" of perjury for purposes of OEC
609(1). Accordingly, defendant argues, the
victim's plea was admissible for impeachment purposes.
Defendant relies on State v. Smith, 298 Or. 173, 691
P.2d 89 (1984), for the proposition that the word
"convicted, " as used in OEC 609(1), refers to a
factual determination of guilt, and not to entry of
a judgment of conviction. See Smith, 298 Or at 182
(so holding). Defendant further argues that the trial
court's exclusion of evidence of the victim's guilty
plea was not harmless because, given that the only two
witnesses to the incident were defendant and the victim, it
was likely that the victim's credibility was significant
to the jury's decision. Defendant points out that the
trial court acknowledged that the excluded evidence
"would be something very helpful to your client to be
able to impeach in that way."
response, the state concedes that, under Smith, the
trial court erred in excluding evidence of the victim's
guilty plea. I agree with the parties that the trial court
erred in excluding that evidence. Nonetheless, the state
argues that the error was harmless and therefore does not
warrant reversal. In making that harmless-error argument, the
state does not challenge defendant's contention
that exclusion of the evidence could have affected the
jury's verdict at the 2014 trial. Instead, the
state's argument is based on its view of what would
happen if we reversed defendant's judgment of conviction
and defendant was tried again on remand. That argument is
based on two premises that, together, lead to the state's
conclusion. First, the state asserts that the victim has now
completed her diversion program and her perjury case has been
dismissed without entry of judgment. [287 Or. 689] Second, also
relying on Smith, the state contends that, when the
victim completed her diversion agreement and the perjury
charge was dismissed, her guilty plea to perjury could no
longer be used to impeach her. See Smith, 298 Or at
182 n 5 ("If the finding of guilt * * * is duly set
aside as, for example, in the granting of a motion for a new
trial by a trial court, the 'conviction' by the trier
of fact could not be used for impeachment purposes.").
Based on those two premises, the state concludes that,
"even if this court were to grant a new trial, defendant
would not be able to impeach the victim in that new trial,
and that new trial would therefore unfold exactly as his
original trial did." Put differently, the state contends
that-whether or not the error in excluding the victim's
guilty plea was harmless at defendant's 2014 trial- the
error "has been rendered harmless by the subsequent
dismissal of [the victim's] perjury prosecution, "
resulting, in the state's view, in "no object
[being] served by a new trial."
support of its contention that the trial court's error
became harmless when the victim's perjury case
was later dismissed, the state relies on
Bouthillier. In that case, we concluded that the
trial court had erroneously admitted impeachment evidence
that, under then-current law, was inadmissible. State v.
Bouthillier,4 Or.App. 145, 146-47, 476 P.2d 209,
modified on reh'g,4 Or.App. 149, 479 P.2d 512
(1970), rev den (1971). Specifically, the trial
court had erroneously allowed impeachment of a witness with
evidence that a jury had found the witness guilty of armed
robbery, even though no conviction for that crime had yet
been entered.Accordingly, we reversed, holding that the
error in allowing impeachment of the witness was not
harmless. Id. at 149. The state then sought
rehearing, asserting that the ...