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State v. McNeely - 330 Or. 457, 8 P.3d 212 (2000)

Rule:

When dealing with a matter of conditional relevancy under Or. Evid. Code 104(2), the judge determines whether the foundation evidence is sufficient for the jury reasonably to find that the condition on which relevance depends has been fulfilled. If so, the evidence is admitted; if not, the evidence is not admitted. After the judge decides that the foundation evidence is sufficient for the jury reasonably to find the contested fact under Or. Evid. Code 104(2), either party may introduce evidence before the jury that is relevant to the weight and credibility of the evidence. 

Facts:

McNeely was convicted of aggravated murder and sentenced to death. One state witness, Thompson,  was an inmate who gained information from McNeely while incarcerated. Because Thompson gathered the information and provided it to police without direction from the state, Thompson was not an agent of the state, and the information was admissible. Thompson’s failure to identify McNeely at trial was not cause to suppress his testimony, but rather went to the jury's determination of his credibility as a witness. The trial court held that a reasonable jury could find that McNeely was the person Thompson had spoken to in jail, even if Thompson could not identify McNeely in court. McNeely was convicted of aggravated murder. McNeely appealed the admission of Thompson’s testimony.

Issue:

Did the trial court err in denying McNeely’s motion to suppress the testimony of Thompson?

Answer:

No

Conclusion:

The Court agreed with the trial court and found Thompson's inability to identify McNeely at trial went to the weight the jury might give to his testimony, not to its admissibility. It follows that the trial court did not err in leaving the matter to the jury.

The prosecution's reference to the victim during closing argument did not deny McNeely his right to confront witnesses. Prosecution's statements during the penalty phase of the trial regarding McNeely's history of failure to take responsibility for his actions was relevant to the propensity for future dangerousness of defendant and did not constitute a comment regarding defendant's failure to testify at trial. Prosecution was permitted to present argument in support of a death sentence. Therefore, defendant's conviction and sentence of death were affirmed.

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