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State v. McLean

Court of Appeals of Oregon

September 7, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
GEORGE EARL McLEAN, Defendant-Appellant.

          Submitted December 22, 2015.

         Grant County Circuit Court 1311304CR; W. D. Cramer, Jr, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Peenesh H. Shah, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

          PER CURIAM

         Affirmed. State v. Bouthillier, 4 Or.App. 145, 149, 479 P.2d 512 (1970) (on rehearing), rev den (1971).

         [287 Or. 687]

          HADLOCK, C. J., concurring.

         I 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 cases.

         I start 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 menacing.[1]

         On 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).[2] 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."

         In 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.[3] [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."

         In 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.[4]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 ...


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