State v. Gilbert

FORT, S. J.

Defendant was convicted upon consolidation of four indictments of four counts of burglary I, three counts of rape I, and one count of attempted rape I. He appeals from the resulting judgments and assigns three errors, emphasizing particularly the refusal of the trial judge to allow him, on direct examination of his own witness, to inquire whether that witness had been convicted of a crime. The state on cross-examination made such an inquiry.

ORS 45.590 provides in pertinent part:

"The party producing a witness is not allowed to impeach his credit by evidence of bad character * *

In State v. Miller, 1 Or App 460, 460 P2d 874, Sup Ct review denied (1970), this court considered a similar contention and said:

"Defendant contends that it was error for the cotut to refuse, while he was on the stand, defendant’s request to lay before the jury his record of prior criminal convictions. The prosecutor introduced the record on cross-examination. Defendant claims that if he had been allowed his request it would have been clear to the jury he was not hiding his record. This reasoning ignores the statute which is the basis for allowing evidence of prior criminal convictions. The statute, ORS 45.600,[¹] limits the purpose to impeachment. ORS 45.590 provides:

" 'The party producing a witness is not allowed to impeach his credit * * *.’

"This statute applies to parties as witnesses for themselves. The court’s ruling was correct.” 1 Or App at 465-66.

To the same effect, see State v. Howard, 6 Or App 230, 233, 486 P2d 1301, Sup Ct review denied (1971).

Defendant acknowledges the above authorities but asks us to overrule them, and suggests that such may have been the intention of the Supreme Court in State v. Estlick, 269 Or 75, 523 P2d 1029 (1974), a case which was concerned, we point out, with bias and intent, not bad character, as evidenced by prior conviction of crime. See generally 1 Underhill’s Criminal Evidence 684, Impeachment of Own Witness § 231, n 1 (6th ed P. Herrick 1973); McCormick, Evidence 84, Character: Conviction of Crime § 43 (2d ed E. Cleary 1972). In Estlick the court said:

"ORS 45.590 provides, in part: 'The party producing a witness is not allowed to impeach his credit by evidence of bad character * * ” 269 Or at 77.

As we read Estlick it establishes only that:

"ORS 45.590 does not prohibit a party from impeaching a witness it has produced by a showing of bias or interest. * * *” 269 Or at 78.

In a footnote in Estlick, the court said:

"In Oregon the use of criminal convictions in this setting raises a special question because of ORS 45.600, providing for impeachment of a witness for the adverse party by proof of conviction of a crime, and ORS 45.590, providing that one may not impeach one’s own witness by evidence of bad character. The question of impeachment by prior criminal convictions was not raised on appeal in this case and so we need not and do not pass on it here. We intend to express no opinion on the correctness of State v. Miller, 1 Or App 460, 460 P2d 874 (1970).” 269 Or at 79, n 1.

Here the obvious purpose of the question² was to show at the beginning of the direct examination the previous bad character of the witness by reason of his conviction of a crime, and thereby to ameliorate the possible impact upon the jury when that fact was later brought out on cross-examination.

We think ORS 45.590 is clear and unambiguous. Nor do we find in State v. Estlick, supra, any language indicating an intent to nullify the statute. In our view that is the exclusive province of the legislature. We adhere to the rules as stated in Miller and Howard and reiterated in Estlick.

The remaining assignments of error do not warrant discussion.

Affirmed.

1 "A witness may be impeached by the party against whom he was called, by contradictoiy evidence or by evidence that his general reputation for truth is bad or that his moral character is such as to render him unworthy of belief; but he may not be impeached by evidence of particular wrongful acts, except that it may be shown by his examination or by the record of the judgment, that he has been convicted of a crime.” ORS 45.600.

2 ",DIRECT EXAMINATION

"BY MR. LONERGAN:

"Q Mr. Brewer, how long have you resided in Portland?

"A I came to Portland in ’56.

"Q You do have a conviction for something to do with drugs, do you not?

"MR. WITIMAYER: Objection, Your Honor.”