# State v. Haugen > Oregon Supreme Court · November 4, 2010 · 349 Or. 174 URL: https://www.frixlaw.com/law-library/cases/9503242 ## Case - **Full name:** STATE OF OREGON, Respondent, v. GARY HAUGEN, Appellant - **Court:** Oregon Supreme Court - **Decided:** November 4, 2010 - **Citations:** 349 Or. 174; 243 P.3d 31; 2010 Ore. LEXIS 829 - **Precedential status:** Published - **Opinion:** Concurrence by De Muniz - **Judges:** Guimond, Balmer, De Muniz, Gillette, Durham - **Cited by:** 26 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9503242 ## How later opinions describe it (automated extraction) - reasoning that the legislature’s use of a qualifying term in one section and not *542 another “demonstrates that the legislature knew how to use such a term but did not do so” - holding that, when a sufficient factual foundation is laid from which a jury may infer a witness’s bias, the trial court has discretion to exclude additional evidence of bias - reasoning that the legislature’s use of a qualifying term in one section and not another “demonstrates that the legislature knew how to use such a term but did not do so” - concluding that an offer of proof sufficiently informed the court of the testimony the defendant sought to present ## Opinion text DE MUNIZ, C. J., concurring. With one exception, I concur in both the reasoning and the result of the majority’s opinion in this case. The exception involves the sixth assignment of error, which dealt with the alleged statement “How do you like me now?” by witness Robert Cameron as he was stepping away from the witness stand. The majority concludes that the alleged error was preserved, but concludes that, even assuming Cameron’s statement was evidence of bias, the trial court did not err in refusing to admit the evidence. 349 Or at 189-95. In my view, defendant failed to preserve any error regarding Cameron’s alleged statement. I, therefore, would not reach the merits of the assigned error. 1 The pertinent facts are correctly set out in the majority opinion. After Cameron had left the witness stand — and after the court had taken a recess — defense counsel informed the court that, as Cameron was leaving the witness stand, he *206 had stated “How do you like me now?” loud enough for counsel and co-counsel to hear the statement. The judge and the prosecutor both indicated that they had not heard it. Defense counsel stated that he “would like to make sure that the jury is informed that he [Cameron] made that statement.” Defense counsel did not request that Cameron be retained as a witness and counsel did not attempt to recall Cameron to the witness stand. Neither did defense counsel offer to call any other witness to the statement. The substance of defense counsel’s offer of proof was the assertion that the statement had been made and a request that the jury be “informed” about it. It has long been the preferred practice in this state that offers of proof ordinarily be made by questioning a witness outside the presence of the jury, not by counsel summarizing the expected testimony. “Unless the calling of witnesses is waived by the court or by the adverse party, we think the better practice is to call the witnesses relied on and ask appropriate questions.” Columbia R. I. Co. v. Alameda L. Co., 87 Or 277, 291 , 168 P 64 (1917), on reh’g, 168 P 440 (1918); see Ashmun v. Nichols, 92 Or 223 , 178 P 234 , on reh’g, 180 P 510 (1919) (quoting Columbia with approval). Offers of proof involving the mere “avowals of counsel” often are problematic. See Null v. Siegrist, 262 Or 264, 267 , 497 P2d 664 (1972) (evidentiary hearing conducted outside presence of jury “was in the nature of an offer of proof and, assuming that plaintiff did change doctors for the reason his counsel indicated, he should have so testified” (footnote omitted)); First Nat. Bank v. Oregon Paper Co., 42 Or 398, 402 , 71 P 971 (1903) (“If the appellants were not allowed to prove their claims, they should have called witnesses, and stated to the court the testimony which it was expected would be elicited from them, and upon a refusal to receive such testimony take an exception.” (Citation omitted.)). Here, defendant made no effort to recall Cameron, and defendant offered no additional witness to testify to what was said. Defendant merely asked that the jury be “informed” about the statement. Simply put, there was no *207 offer of proof, because defendant did not offer to prove anything. Requesting that the court inform the jury of a statement that the court did not even hear is not sufficient to preserve the evidentiary error, and this court errs in concluding otherwise. Although I concur in the majority’s decision to reject defendant’s sixth assignment of error, I do so only because the error was not preserved. Gillette and Durham, JJ., join in this concurring opinion. Because I would not reach the merits of the assigned error, I am not required to express an opinion about the correctness of the majority’s conclusion regarding the trial court’s ruling. I note in passing, however, that the witness’s expressed defiance of defendant (if it actually occurred), while it might have a benign or insignificant impact on a jury, also could be seen as an outburst of animosity that had finally found an outlet. If the latter, I think that a reasonable juror could have considered it the pivotal piece of evidence concerning the witness’s credibility, and a valid reason to question that credibility. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9503242. Public record. Not legal advice.