State v. RawlsAnnotate this Case
451 P.2d 127 (1969)
STATE of Oregon, Respondent, v. Jerry Lee RAWLS, Appellant.
Supreme Court of Oregon, Department 1.
Argued and Submitted February 5, 1969.
Decided February 26, 1969.
Oscar D. Howlett, Portland, argued the cause and filed the brief for appellant.
Thomas H. Denney, Deputy Dist. Atty., Oregon City, argued the cause for respondent. With him on the brief was Roger Rook, Dist. Atty., Oregon City.
*128 Before PERRY, C.J., and SLOAN, O'CONNELL, DENECKE, and LANGTRY, JJ.
LANGTRY, Justice (Pro Tempore).
Rawls and Frazier were jointly indicted for murder. Separate trials were held, Frazier's being the first. He was convicted. On the subsequent trial of Rawls, Frazier testified, even though his case was on appeal and he could have claimed the privilege against self-incrimination. Rawls was convicted of second-degree murder and appealed to this court, which reversed and remanded the case for a new trial. State v. Rawls, 247 Or. 328, 429 P.2d 574 (1967). In the meantime, this court had affirmed Frazier's conviction and Frazier had then filed for a writ of habeas corpus in the United States District Court, where it was granted, and, in effect, the holding of this court was vitiated. The district court decision was appealed and the Ninth Circuit Court of Appeals reversed. Gladden v. Frazier, 388 F.2d 777. Certiorari in Frazier's case is pending in the United States Supreme Court. Frazier v. Cupp, 89 S. Ct. 222.
On Rawls's second trial, Frazier was called as a witness for the prosecution. On advice of his counsel he refused to testify, claiming the privilege against self-incrimination. Oregon Constitution, Art. I, § 12; U.S. Constitution, amend. V. His claim of the privilege was allowed and, over objection, all of Frazier's testimony in Rawls's first trial was read to the jury. Rawls was again convicted of second-degree murder and sentenced.
In this appeal, Rawls asserts that Frazier should have been required by the trial court, regardless of his claim of privilege, to testify. He claims that he was constitutionally entitled to be confronted by the witnesses. Oregon Constitution, Art. I, § 11, U.S. Constitution, amend. VI. He also claims error in that after the claim of privilege was allowed, Frazier's former testimony was read to the jury. In this connection he cites ORS 41.900(8). Evidence may be given of:"(8) The testimony of a witness, deceased, or out of the state, or unable to testify, given in a former action, suit, or proceeding, or trial thereof, between the same parties, relating to the same matter."
This statute, he states, exclusively lists those situations in which former testimony may be used.
With reference to the first claim of error the weight of authority and the general rule often repeated in American jurisprudence is that by testifying at a preliminary hearing, before a coroner's jury, before a grand jury, or at a previous trial, a witness does not waive his right to claim the privilege at a later trial. This general rule is repeated in varying forms in many cases and most of the works on evidence. United States v. Miranti, 253 F.2d 135 (2d Cir.1958); United States v. Malone, 111 F. Supp. 37 (N.D.Cal. 1953); Bridges v. State, 26 Ala.App. 1, 152 So. 51, cert. den. 228 Ala. 72, 152 So. 54, and 292 U.S. 633, 54 S. Ct. 718, 78 L. Ed. 1487 (1933); In re Sales, 134 Cal. App. 54, 24 P.2d 916 (1933); Johnson v. People, 152 Colo. 586, 384 P.2d 454 (1963); Georgia Railroad & Banking Co. v. Lybrend, 99 Ga. 421, 27 S.E. 794 (1896); Samuel v. People, 164 Ill. 379, 45 N.E. 728 (1896); State v. Reidie, 142 Kan. 290, 46 P.2d 601 (1935); People v. Pickett, 339 Mich. 294, 63 N.W.2d 681, 45 A.L.R.2d 1341, cert. den. 349 U.S. 937, 75 S. Ct. 781, 99 L. Ed. 1266 (1954); State v. DeCola, 33 N.J. 335, 164 A.2d 729 (1960); People v. Cassidy, 213 N.Y. 388, 107 N.E. 713 (1915); Exleton v. State, 30 Okl.Cr. 224, 235 P. 627 (1925); Commonwealth v. Fisher, 398 Pa. 237, 157 A.2d 207 (1960); Cullen v. Commonwealth, 65 Va. (24 Grat.) 624 (1873); Rose v. The King, 3 Crim.R. 277, 88 Can.Crim.Cas. 114,  3 DLR 618 CA (Quebec); 58 Am. Jur. 82, Witnesses § 99; McCormick, Evidence 274, § 130 (1954); 3 Wharton, Criminal Evidence 37-38, § 730 (12 ed. 1955); 8 Wigmore, Evidence 470-72, § 2276 (McNaughton rev. ed. 1961); Comment, 73 Dick.L.Rev. 80 (1968).
*129 When the privilege is claimed, the former testimony may be repeated or read to the court and jury. Mason et al. v. United States, 408 F.2d 903 (10th Cir.1969); Bridges v. State; State v. Reidie; Exleton v. State; Rose v. The King; People v. Pickett; Johnson v. People; supra, and State v. Stewart, 85 Kan. 404, 116 P. 489, 493 (1911); 20 Am.Jur. 594, Evidence § 709. Most of these cases involved statutes much like ORS 41.900(8), quoted above. Like the Oregon statute, they do not specifically provide that the previous testimony may be used where the privilege is claimed. Such statutes usually are declaratory of the common law. The Oregon statute was of this type and was adopted in 1862, immediately after state-hood. General Laws of Oregon, § 696, p. 322 (Deady, 1845-1864)."* * * [I]f the evidence meets the common law requirements, it will usually come in even though the permissive provisions of the statute do not mention the particular common law doctrine which the evidence satisfies * * *." McCormick, Evidence 481, § 230 (1954).
Only two cases have come to the court's attention where the former testimony was excluded after the privilege was claimed. People v. Lawrence, 168 Cal. App. 2d 510, 336 P.2d 189 (1959); Commonwealth v. Turner, 389 Pa. 239, 133 A.2d 187 (1957).
The Dickinson Law Review Comment cited above, published after the briefs were written in this case, discusses in detail questions involved here. It is critical of the general rules, contending that where the witness is called in a second trial, he should be forced to testify under threat of contempt. The writer's theory is that the waiver of privilege given in one trial should be construed as continuing into the next. McCormick, Evidence 274, § 130 (1954). What should be done if the witness chooses contempt instead of testifying is not discussed. Regardless, the majority and almost uniform rule is that the witness may avail himself of the privilege at a later trial, and several courts in the cases cited above have specifically rejected the contention that the waiver made at one trial should be construed as continuing into the next."`The privilege belongs exclusively to the witness, who may take advantage of it or not at his pleasure. * * * If ordered to testify in a case where he is privileged, it is a matter exclusively between the court and the witness. The latter may stand out, and be committed for contempt, or he may submit; but the party has no right to interfere or complain of the error.'" Samuel v. People, 164 Ill. 379, 387, 45 N.E. 728 (1896).
Defendant Rawls asserts that he has the right to be confronted by the witnesses, including Frazier. He had that opportunity at the first trial and his counsel cross-examined. The loss is that the jury in the second trial did not have an opportunity to note Frazier's demeanor on the witness stand. Largely to accomplish this purpose, ORS 136.530 provides that testimony shall be oral.
The right to oral testimony and confrontation with witnesses on the part of the defendant, and the right to the privilege against self-incrimination on the part of the witness, become, at least in some degree, inconsistent constitutional rights in this setting. If neither gives way to the other, justice itself is defeated, for available testimony is denied the court in its quest for truth. Should one give way to the other, and, if so, which? Interpretations of statutes such as ORS 41.900(8), quoted above, attempt to meet this problem, while giving effect to the constitutional rights of both witness and party. This is done by interpreting the statute to mean not only exactly what it says, but also by ascribing to it the full common law meaning of which it was intended to be declaratory. At common law the former testimony *130 of a witness no longer available could be used. 5 Wigmore, Evidence 163-64, § 1409 (3d ed 1940). In People v. Pickett, supra, which is in point with the instant case on its facts, the court said:"Availability [of a witness] * * * must be broadly construed in the context in which it is found. This word does not mean physical presence alone, but is definitive of `having sufficient force or efficacy for the object,' which object in this instance is the attainment of Justice through the admission of the witness's former testimony." 339 Mich. at 306, 63 N.W.2d at 687.
In State v. Stewart, supra, also in point on the facts, where the court distinguished the availability of a witness from the availability of his testimony, it held that the availability statutes, such as ORS 41.900(8), which were declaratory of the common law, were aimed at the testimony and not the witness. To the same effect, see Habig v. Bastian, 117 Fla. 864, 158 So. 508 (1935) (in this Florida case, the court referred to the Oregon statute, now ORS 41.900(8) and said: "* * * such statutes have been said to be declaratory of the common law." 117 Fla. at 869, 158 So. at 510). State v. Wilson, 24 Kan. 189 (1880); McCormick, Evidence 495, § 234 (1954).
The recent cases of Whitehead v. State, 4 Crim.L.Rptr. 2294 (Tex. Crim. App., December 18, 1968); People v. Berger, 258 Cal. App. 2d 622, 66 Cal. Rptr. 213 (1968); Barber v. Page, 390 U.S. 719, 88 S. Ct. 1318, 20 L. Ed. 2d 255 (1967); and Mason et al. v. United States, supra, illustrate that the right of confrontation is not violated where the oral testimony of the witness is in fact unavailable and his "* * * testimony at previous judicial proceedings against the same defendant which was subject to cross-examination by that defendant" is used. "* * * This exception has been explained as arising from necessity and has been justified on the ground that the right of cross-examination initially afforded provides substantial compliance with the purposes behind the confrontation requirement. See 5 Wigmore, Evidence, §§ 1395-1396, 1402 (3d ed 1940); McCormick, Evidence §§ 231, 235 (1954)." Barber v. Page, supra, 390 U.S. at 722, 88 S. Ct. at 1320. This language was quoted by the Tenth Circuit Court of Appeals in Mason et al. v. United States, supra, in a case exactly in point with the case at bar. The circuit court of appeals stated that the test is "whether the testimony of the witness is available or not and not whether the witness's body is available."
We are satisfied there was no error in the case at bar.
 "* * * The statute was intended to make the general rule, concerning the taking of depositions, inapplicable to criminal trials; but we cannot think it was designed to abrogate a doctrine so firmly established and generally applied as that of permitting the testimony of a witness given in the manner required by statute to be used by either the state or defense on a subsequent trial, when he has since died or is absent from the state. A strict construction of the language of the section would, perhaps, exclude such testimony; but it would also exclude the dying declarations of the deceased, which are everywhere admitted, on the ground of necessity. It is for the same reason that the testimony of a deceased or absent witness is admissible, and the technical language of the statute must give way to public policy and necessity. It is just as important for a defendant that the testimony of a witness in his behalf, given on a former trial, should be competent at a second trial, where the witness is dead or is without the reach of process, as it is for the state, and the statute should, we think, be so interpreted as to protect and preserve the rights of both." State v. Walton, 53 Or. 557, 565, 99 P. 431, 434, 101 P. 389, 102 P. 173 (1909).
 In this case a federal statute granting the witness immunity against prosecution if the witness will testify was invoked by the prosecutor. When the witnesses persisted in claiming the privilege in spite of the immunity thus granted, they were held in contempt, and their former testimony was read to the jury. The use of the immunity statute does not prevent the case from being in point. For a similar statute used in a similar situation, see People v. Cassidy, 213 N.Y. 388, 107 N.E. 713 (1915).