STATE v. PRATT (2004)

Defendant is charged with witness tampering arising from a previous trial on robbery charges.   The state appeals the trial court's order in this case denying the state's motion to admit defendant's prior testimony given on cross-examination in the robbery trial and granting defendant's motion to suppress his prior testimony.   In the testimony, defendant admitted that he knew an alleged accomplice to the witness tampering and that that person had told him that witnesses to the robbery were “snitching” on him.   The trial court accepted defendant's argument that the testimony violated his right against self-incrimination, and it ruled that he should have received new Miranda warnings before testifying in the robbery trial.   We reverse.

In State v. Randall, 27 Or.App. 869, 557 P.2d 1386 (1976), rev. den., 278 Or. 553 (1977), we held that the state's use of the testimony of a defendant who had previously testified at a parole revocation hearing without receiving Miranda warnings did not violate the Fifth Amendment to the United States Constitution.   The same analysis applies under Article I, section 12, of the Oregon constitution.   Here, defendant's testimony in the robbery trial was relevant to those charges.   The fact that the testimony that the state offered in this case occurred on cross-examination rather than on direct examination does not affect its admissibility.   By testifying on his own behalf on direct examination, defendant waived the constitutional protection on all matters properly germane to and connected with his testimony in chief.   State v. Cruse, 231 Or. 326, 330, 372 P.2d 974 (1962);  see also ORS 136.643.

Reversed and remanded.

 PER CURIAM.