DocketNumber： C041787CR; A126788
Judges： Haselton, Armstrong, Rosenblum
Filed Date： 10/8/2008
Status： Precedential
Modified Date： 11/13/2024
Court of Appeals of Oregon.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, for petition.
Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.
PER CURIAM.
The state petitions for reconsideration of our decision in State v. Ramirez, 219 Or.App. 598, 184 P.3d 1138 (2008). We held that the trial court erred in refusing to allow defendant to cross-examine his codefendant, Garcia, about whether defendant was under the influence of methamphetamine when they committed an armed robbery, which was pertinent to defendant's assertion that he was voluntarily intoxicated and thus could not *405 form the intent to commit the offense. In support of its petition, the state makes several arguments asserting that the trial court's error was harmless. We allow reconsideration to briefly address one of those arguments and reject the others without discussion. We adhere to our former opinion.
The state argues that any error in refusing to allow defendant to cross-examine Garcia was harmless because defendant could have called Garcia in his own case-in-chief and elicited the same information that he attempted to elicit through cross-examination. The state's argument is not well taken. A trial court error is harmless if there is little likelihood that it affected the verdict. State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003). The availability of mitigating measures to the party against whom an erroneous ruling was made does not mean that the ruling was unlikely to have affected the verdict. In other words, the fact that defendant could have taken measures that would have rendered the trial court's error harmless does not mean that the error was harmless.
Reconsideration allowed; former opinion adhered to.