[DV_listserv] Recent Case

[Domestic Violence issues]

Prosecutors: The recent holding in Everett re: Defendant's right to cross-examine and court's broad discretion to determine what constitutes adequate cross-examination could be helpful in DV cases with recalcitrant victim-witnesses (i.e., we've all had the experience of the "cooperative" victim/witness who may testify minimally (but effectively) on direct and then respond on cross-examination w/ "I don't know, or I don't remember, or "I don't want to answer that question").


INMATE PROPERLY CONVICTED OF SOLICITATION TO COMMIT AGGRAVATED MURDER FOR
ATTEMPTING TO PERSUADE ANOTHER INMATE TO PASS INFORMATION TO BIKER GANG;
TRIAL COURT PROPERLY REFUSED TO STRIKE WITNESS'S TESTIMONY ON DIRECT WHEN HE
INVOKED FIFTH ON CROSS-EXAMINATION
State v. Everett, __ Or App __, __ P3d __ (March 28, 2012) (Clackamas) (AAG Doug
Zier). Defendant attempted to run over Deputy Moss. Then, while in jail awaiting trial, he
attempted to solicit Piatt, who was an enforcer for "the Outsiders" (an outlaw motorcycle gang)
to murder Moss. But Piatt informed the police and testified before the grand jury, which indicted
defendant for solicitation to commit aggravated murder of Moss, listing Piatt as a witness. While
awaiting trial on this new solicitation charge, defendant met Van Alstine and solicited him to
deliver incriminating evidence to the Outsiders motorcycle gang showing that Piatt was a police
informer; defendant told Van Alstine that the Outsiders would "take care of" Piatt so he would
not appear in court. But Van Alstine also was an informer, and defendant was charged with
solicitation to commit aggravated murder of Piatt, too. At trial, Piatt testified at trial, admitted he
had engaged in illegal activities as "enforcer," but when he was asked a question on cross examination
whether he had ever killed anyone, he invoked the Fifth and refused to answer.
Defendant moved to strike Piatt's testimony or for a mistrial, but the trial court denied those
motions. Defendant was convicted of those charges.
Held: Affirmed (Nakamoto, J.). [1] The trial court correctly denied defendant's motion
for a judgment of acquittal on the charge that he solicited Van Alstine to murder Piatt. Although
defendant intended that Van Alstine to be only a messenger to the Outsiders rather than the
killer, if Val Alstine had provided the information he knowingly would have been an accomplice.
"As a matter of law, a person commits the crime of solicitation when that person solicits an
intermediary to procure a third party to commit the intended crime so long as the intermediary is
aware of that intended crime." [2] "Trial courts have broad discretion to control the presentation
of evidence, including the discretion to strike the testimony of a witness who refuses to answer
questions on cross-examination or to impose a less onerous sanction when appropriate. Our
review of the trial court's denial of a mistrial is also for abuse of discretion because the trial court
is in the best position to assess and to rectify the potential prejudice to the defendant."
[3] "When a witness refuses to answer questions on cross-examination that are necessary to test
the witness's direct testimony, the trial court has discretion to strike the witness's testimony
because it undermines the trier of fact's ability to rely on the witness's direct testimony.
Whether the court should strike the witness's testimony depends on whether the question directly
relates to the subject matter of the witness's direct examination or relates to a collateral matter."
[4] "Given the attenuated relevance of the proposed question and possible answer and
defendant's otherwise unfettered ability to cross-examine Piatt, the trial court's exclusion of the
question did not require it to strike all of Piatt's testimony." [5] Defendant was not entitled under
Crawford v. Washington to have Piatt's testimony stricken based on his refusal to answer the
question: "Piatt's trial testimony was not an out-of-court statement, so Crawford does not apply
to it [and] Piatt was available for cross-examination and was, in fact, cross-examined about his
direct testimony."
http://courts.oregon.gov/Publications/A140675.pdf


REMEMBER ALSO:

(Uncooperative victim/witness) The case that I always cite is State v. Sullivan, 217 Or App 208 (2007) (fact that cross-examination was not effective does not mean that defendant lacked that opportunity; victim's lack of memory did not mean that defendant was denied opportunity for cross-examination).  There's also (slightly more recently) State v. Bumgarner, 219 Or App 617 (2008) (holding the same thing).

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