State v. Derryberry

¶1dissenting.

¶2Our function as an intermediate appellate court is limited to ascertaining and applying Oregon law as articulated by the Oregon Supreme Court. The Su*276preme Court nas repeatedly held that prior inconsistent statements are only admissible as impeachment, and not as substantive evidence. For example, in Madron v. Thomson, 245 Or 513, 516, 419 P2d 611, 423 P2d 496, 27 ALR3d 953 (1966), the court stated:

“The rule is that prior statements of a witness, not a party, made out of the courtroom, are only admissible for the purpose of impeachment and have no other probative value. This rule has been criticized, but we have followed it. E.g., State v. Watts, 208 Or 407, 411, 301 P2d 1035 (1956); for criticism see cases collected at 133 ALR 1454, 1462 (1941). The rule is a part of the hearsay rule. The statements are hearsay because they are not made under oath and are not subject to cross-examination at the time made.”①

¶3The majority departs from this settled doctrine. The basis for so doing, the majority reasons, is its conclusion that the cases cited above and in n 1 have all been sub silentio overruled by six Supreme Court decisions: Timber Access, Ind. v. U.S. Plywood, 263 Or 509, 503 P2d 482 (1972); Sheedy v. Stall, 255 Or 594, 468 P2d 529 (1970); State v. Randolph, 251 Or 45, 444 P2d 545 (1968); State v. Kendrick, 239 Or 512, 398 P2d 471 (1965); State v. Herrera, 236 Or 1, 386 P2d 448 (1963); State v. Opie, 179 Or 187, 170 P2d 736 (1946). I do not agree with the majority’s interpretation of those six opinions, although there is language in some *277which, indicates lack of positiveness on the merits of the issue.

¶4Timber Access was a case where offered hearsay evidence did not fit comfortably into any of the recognized exceptions to the hearsay rule. Seasoning by analogy to the declaration-against-interest exception the Supreme Court concluded:

“… The declarant’s interest, although not pecuniary, was sufficient to assure that he was not lying and that the statement was not the result of any mistake of fact.” 263 Or at 520.

¶5Concerning another hearsay problem in the case, the court stated:

“… The letter was self-serving and should not have been admitted to confirm what Eamsey said Girard told him. Admissibility in such a situation would permit Eamsey to write five letters to Plywood and to introduce all five of them to bolster his credibility … 263 Or at 523.

¶6If Rule 63 (1) of the Uniform Rules of Evidence were the law of Oregon, this last quoted statement would be inaccurate.

¶7Sheedyheld that evidence was admissible because it was not hearsay, i.e., was not offered to prove the truth of an out-of-court statement, but only to show that a statement was made. Sheedyalso emphasized that such evidence was only admissible for the limited purpose of showing that a statement was made. If Rule 63 (1) were the law of Oregon, this latter observation would be inaccurate.

¶8The question in Randolphwas the admissibility of hearsay testimony that a robbery victim had previously identified the defendant as the robber. The Supreme Court stated, “the … testimony was *278hearsay and inadmissible.” 251 Or at 46, but held the error to be harmless. If Rule 63 (1) were the law of Oregon, the quoted statement would be inaccurate. Yet in Randolphthe court also stated it had previously “indicated tacit approval” of Rule 63 (1). 251 Or at 47. I can only conclude, given the huge body of contrary authority, see n 1, supra, that “tacit approval” is considerably less than literal approval.

¶9Kendrickwas a spontaneous exclamation case. I find nothing in that opinion at all helpful in this case.

¶10Herreramerely held that admission of hearsay was harmless error. By contrast, the threshold question in this case is whether any error was committed.

¶11Likewise, Opiewas a harmless error case. When evidence was admitted that would be admissible under Rule 63 (1), the Supreme Court noted this was a “technical violation of the hearsay rule,” but found the error to be harmless. 179 Or at 207. It is hard to understand how this amounts to approval, tacit or otherwise, of Rule 63 (1). Moreover, concerning another aspect of the case—admission of a prior inconsistent statement—the court stated:

“We think the testimony should have been received for the purpose of impeachment only … 179 Or at 209.

¶12In summary, the Oregon Supreme Court has, on many occasions dating back to 1867, ruled that prior inconsistent statements are not admissible as substantive evidence, but only for purposes of impeachment, see n 1, supra; those cases have never been expressly overruled; and I do not agree with the majority’s conclusion that such a large, body of au*279thority has, by silent implication, been overruled by the six cases relied upon by the majority. Accordingly, I would hold that the trial court erred in instructing the jury that a prior inconsistent statement could be regarded as substantive evidence of the truth of the matter asserted therein.

¶13I would also hold the error prejudicial. The Supreme Court’s opinions in Randolph, Kerr era and Opieall suggest that if an out-of-court declarant is available for cross-examination then violation of the hearsay rule is not prejudicial error. However, two differences between those cases and this case should lead to a different conclusion here in my opinion: (1) here the trial court explicitly instructed the jury that it could regard Clark’s prior inconsistent statement to the effect that defendant knew property was stolen as substantive evidence that defendant did know that fact; and (2) there was little other evidence of guilty knowledge. I cannot say that this error “was very unlikely to have changed the result of the trial.” State v. Van Hooser, 266 Or 19, 511 P2d 359, 363 (1973). I would reverse.

¶14Finally, I emphasize that my dissent is based solely on what I understand the current Oregon law to be, and is not based on what I think Oregon law should be. The parties’ arguments in this case present strong arguments for and against the adoption of Buie 63 (1). Indeed, there is some indication that this case comes to us as a “test case” to finally resolve the Buie 63 (1) issue. There is nothing wrong with test cases. But if test case this be, it belongs in the court with the ability to change and clarify Oregon case law discussed above, that is, the Oregon Supreme Court.