State v. Verardo

When a defendant proffers exculpatory hearsay statements for the truth of the matter asserted during his case-in-chief, defendant is subject to impeachment under OEC 806, even where the State had offered the statements in the first instance as statements of a party opponent under OEC 801(4)(b)(A).

Defendant appealed his conviction for second-degree robbery. Defendant argued that the trial court erred when it ruled that the State could introduce evidence of his prior convictions in order to impeach him pursuant to OEC 609 and OEC 806. The State questioned a detective who had interviewed Defendant about a robbery. Detective testified to statements made by Defendant. During Defendant's case-in-chief, Defendant called the detective as a witness and questioned him about the interview of and statements by Defendant. On cross-examination, in response to the hearsay statements of Defendant elicited from the detective, the State sought to admit evidence of Defendant's prior convictions to impeach defendant under OEC 806. Prior conviction evidence was allowed and Defendant was convicted. On appeal, Defendant argued that because the State initially offered the evidence of out-of-court statements made by Defendant, the State could not offer evidence of prior convictions to impeach Defendant. The Court held that when the State introduced the statements, OEC 806 was not triggered; however, when Defendant introduced the statements, OEC 806 was triggered and Defendant was subject to impeachment. Affirmed.