State v. Gardner

467 P.2d 125 (1970)

STATE of Oregon, Respondent, v. Eugene Audie GARDNER, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted January 21, 1970.

Decided March 26, 1970.

Rehearing Denied April 22, 1970.

Review Denied June 9, 1970.

*126 Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.

Michael E. Murphy, Deputy Dist. Atty., Eugene, argued the cause for respondent. With him on the brief was John B. Leahy, Dist. Atty., Eugene.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

FOLEY, Judge.

Defendant was convicted by jury of grand larceny and sentenced to 10 years' imprisonment. He appeals assigning improper admission of impeaching testimony and the failure of the court to require a unanimous verdict.

The unanimous verdict assignment has been determined adversely to the defendant in State v. Gann, 89 Or.Adv.Sh. 853, 463 P.2d 570 (1969).

Mr. Richardson, co-owner of a tavern, surprised the defendant, whom he knew, hiding in the tavern office. Richardson recognized defendant, and noticed that a cabinet which held money had been pried open. He frisked defendant, found a quantity of currency in his pocket, and called the police. He later permitted them to record his report of the incident which included a statement that defendant had "eighty some dollars in his pocket" at the time of the frisk.

When called as a state's witness at the trial, Mr. Richardson testified that he did not know how much money he found in the defendant's pocket. The state then offered that portion of the tape recording containing the statement quoted above as a prior inconsistent statement tending to impeach Mr. Richardson. Defendant objected to its admission as a prior inconsistent statement claiming that the state would first have to establish surprise, that Mr. Richardson was an adverse witness, and that the statement given was prejudicial to the state, citing State v. Merlo, 92 Or. 678, 173 P. 317, 182 P. 153 (1919). The court admitted the portion of the tape-recorded statement for the sole purpose of impeachment, and so instructed the jury.

ORS 45.590 is the applicable statute. The relevant portion reads as follows:

"The party producing a witness * * may * * * show that he has made at other times statements inconsistent with his present testimony * * *."

There is no requirement of surprise or that the witness be adverse. State v. Merlo, supra, in discussing the statute, holds that the witness must give testimony prejudicial to the party calling him to allow introduction of the impeaching statement.

In this case, if the jury believed Richardson's testimony that he did not count the money found by frisking defendant, whom he caught red-handed in his office, they could conclude that Richardson either did not consider this to be the money stolen from him, or had so little concern about it as to raise a question in the minds of the jury whether it was, in fact, his money. In this sense, we think Richardson's testimony was prejudicial to the state. No objection was made by the defendant on the basis of materiality.

*127 "* * * The state could impeach its own witness by showing prior inconsistent statements. ORS 45.590. See also State v. Rosser, 162 Or. 293, 348, 86 P.2d 441, 87 P.2d 783, 91 P.2d 295; State v. Merlo, 92 Or. 678, 173 P. 317, 182 P. 153 * * *." State v. Holleman, 225 Or. 1, 6, 357 P.2d 262, 264 (1960).

Finding the assignments of error without merit, the judgment is affirmed.