State v. Sutterfield

607 P.2d 789 (1980)

45 Or.App. 145

STATE of Oregon, Respondent, v. Gary Lynn SUTTERFIELD, Appellant.

No. 18-632; CA 14302.

Court of Appeals of Oregon.

Argued and Submitted December 12, 1979.

Decided March 10, 1980.

*790 J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Melinda L. Bruce, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before JOSEPH, P.J., RICHARDSON, J. and SCHWAB, C.J.[*]

JOSEPH, Presiding Judge.

Defendant appeals his convictions for rape in the first degree, sodomy in the first degree and kidnapping in the second degree, contending that the trial court erred in allowing the state to call a witness who it knew would invoke his privilege against self incrimination.

The state called the witness, Steven Ewing, to testify on rebuttal. Out of the presence of the jury, the court asked him whether he intended to answer any questions. Ewing emphatically refused, because he had an appeal pending from convictions for crimes resulting from the same events that he would be asked to testify about. The court ruled that, having been convicted, he could not assert the privilege against self incrimination and ordered him to testify. He then appeared before the jury and, in response to questioning, asserted his right against self incrimination because of his pending appeal. The court, also before the jury, ordered him to answer. He refused. He then left the witness stand after being warned that he might be held in contempt.

In State v. Abbott, 275 Or. 611, 613, 552 P.2d 238, 239 (1976), the Supreme Court reaffirmed its holding in State v. Johnson, 243 Or. 532, 413 P.2d 383 (1966), "that it was prejudicial error for the state to call a witness who was defendant's alleged accomplice where the state had been informed that the witness would, as he did, exercise his privilege against self-incrimination." The court in Abbott affirmed that conviction because the accomplice had no privilege to assert, having pled guilty. In the present case, the witness had pled not guilty, had been convicted and had an appeal pending. At the time of the trial, Ewing still had a privilege against self incrimination because of the possibility of his being granted a new trial. See State v. Rawls, 252 Or. 556, 557, 451 P.2d 127 (1969). Calling Ewing as a witness and forcing him to assert his right before the jury was prejudicial.[1]

Reversed and remanded for new trial.

[*] SCHWAB, C.J., vice LEE, J., deceased.

[1] The state's suggestion that because the witness' conviction was affirmed subsequent to the assertion of the privilege (State v. Ewing, 42 Or. App. 261, 600 P.2d 977 (1979)) "any error has become harmless" is, to put it charitably, beside the point.