State v. Addicks

• Decision Date: 28 February 1977
• Citation: 28 Or.App. 663,560 P.2d 1095
• Parties: STATE of Oregon, Respondent, v. Roderick Raymond ADDICKS, Appellant.
• Court: Oregon Court of Appeals

Page 1095

560 P.2d 1095

28 Or.App. 663

STATE of Oregon, Respondent, v. Roderick Raymond ADDICKS, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Sept. 20, 1976.

Reargued and Submitted Dec. 22, 1976.

Decided Feb. 28, 1977.

Paul J. De Muniz, Deputy Public Defender, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Solicitor Gen., Salem.

Before SCHWAB, C.J., and THORNTON and LEE, JJ.

LEE, Judge.

Defendant appeals his jury verdict convictions of arson in the first degree (ORS 164.325) and theft in the first degree (ORS 164.055). The convictions resulted from a scheme whereby, during the summer of 1973, defendant purchased and thereafter burned a house in order to collect fire insurance benefits. Defendant contends error in that the court (1) refused to suppress testimony of defendant's accomplice; (2) permitted testimony tending to identify defendant with the purchase of fire insurance; (3) abused its discretion in admitting both a statement made by him prior to his arrest and certain photographs offered by the state, neither of which had been 'disclosed' as required by ORS 135.815; (4) admitted evidence allegedly tending to prove that defendant was the kind of person who might commit the crimes charged; (5) abused its discretion in not granting defendant a continuance to prepare rebuttal to his presentence report; and (6) imposed an Additional 10-year sentence ostensibly pursuant to the 'dangerous offender' provisions of ORS 161.725.

A principal witness on behalf of the state, Mr. Cross, was an admitted accomplice of defendant in the arson/theft scheme. Prior to the arrest of defendant, Cross had retained an attorney in the state of Washington for the purpose of communicating with Oregon authorities regarding a grant of immunity in exchange for his testimony concerning defendant's guilt. As a result of that attorney's efforts Cross was eventually granted the immunity he had requested; he was also provided by the state with funds sufficient to meet both the costs he had incurred in retaining the Washington attorney and the cost of a bodyguard he had retained for protection until defendant's arrest. Defendant contends that, because of the payment by the state, Cross' testimony should have been suppressed, urging that the use of testimony so acquired denied him the 'due process' guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution. The payment was disclosed to the jurors who, as the 'exclusive judges' of Cross' credibility, were permitted to take it into account in weighing his testimony. ORS 44.370. ¹ United Farm Agency v. Crawford, 248 Or. 484, 435 P.2d 1016 (1967); State v. Fleming, 232 Or. 412, 375 P.2d 831 (1962). Defendant's motion to suppress the testimony was properly denied.

Another witness for the state, Mr. Mitchell, was a fire insurance agent who could not make in-court identification of defendant but testified that he did 'recall having done some business with a man named Rod Addicks.' Denial of defendant's motion to strike the agent's testimony is assigned as error. The identity of a person may be presumed from identity of name. ORS 41.360(25). ² The inability of the witness to physically identify the defendant goes to the weight of his testimony, not its competency. The jurors are the judges of the 'effect or value of the evidence addressed to them * * *.' ORS 17.250(1). ³ There was no error.

A further witness for the state was Mr. Austin, an insurance investigator who, prior to defendant's arrest, interviewed him concerning his whereabouts on the night of the fire. During the prosecutor's direct examination of Austin the following colloquy occurred:

'Q Did you have any conversation with Mr. Addicks with respect to the fire?

'A Yes, I did. I had one conversation with Mr. Addicks.

'Q Do you recall the content of that discussion?

'A Yes, at that time he stated--

'MR. ADDICKS: Your Honor, I object. I asked specifically of Mr. Rieke (the deputy district attorney) if any statements made by me would be used in this trial and he said no.'

Thereafter Austin testified, over said objection, that defendant had told him that defendant was in company with Cross, the ostensible owner of the burned house, in Ilwaco, Washington, on the night of the fire.

The defendant's objection to the statement was on the basis of the violation of a pretrial commitment by the prosecutor; that is, that he would not use any statements made by the defendant. Assuming Arguendo that the prosecutor did so agree and that his agreement was intended to apply to the oral statement made by the defendant to the insurance adjuster, no conceivable prejudice resulted. The statement was exculpatory and completely in accord with defendant's position at trial. Although defendant did not take the stand, it is evident from the nature of his cross-examination of state's witnesses that one of his major defenses was that he was in Ilwaco, Washington, on the night of the fire. Defendant's statement which is at issue here was that he was in Ilwaco, Washington, on the night of the fire.

A real estate broker, Mr. Dinneen, called by the state testified that defendant had participated in the purchase of two other properties which the state sought to prove were in a rundown condition and therefore suitable for defendant's scheme of arson. Defendant objected to the admission of the photographs because they had not been disclosed prior to trial. The court admitted the photographs over defendant's objection without inquiring concerning whether or not the photographs had, in fact, been disclosed to defendant.

ORS 135.815 provides in relevant part that:

'Except as otherwise provided in ORS 135.855 and 135.873, the district attorney Shall disclose to the defendant the following material and information within his possession or control:

'* * *

'(4) Any books, papers, documents, Photographs or tangible objects:

'(a) Which the district attorney intends to offer in evidence at the trial * * *

'* * *.' (Emphasis supplied.)

ORS 135.865 sets forth the options open to the trial court upon a party's failure to comply with discovery requirements and provides:

'Upon being apprised of any breach of the duty imposed by the provisions of ORS 135.805 to 135.873, the court May order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or Enter such other order as it considers appropriate.' (Emphasis supplied.)

In State v. Wolfe, 273 Or. 518, 542 P.2d 482 (1975), our Supreme Court noted the broad discretion that is conferred upon the trial court by ORS 135.865 in the choice of sanctions imposed in the event of a failure to disclose the names of witnesses in a criminal case contrary to the pretrial discovery statutes and said:

'The presence or absence of prejudice is a most important factor to be considered by the trial court in exercising the Discretion conferred upon it by ORS 135.865 in the choice of sanctions, particularly in imposing the extreme sanction of refusing to receive in evidence the material not disclosed. The terms of the statute, however, do not appear to make the presence or absence of prejudice a necessary factor in the exercise of the Discretion conferred by the statute in the choice of any of the sanctions to be imposed by its terms.' (Emphasis supplied.) 273 Or. at 524--25, 542 P.2d at 485--86.

See also State v. Johnson, 26 Or.App. 651, 554 P.2d 624, Sup.Ct. Review denied (1976).

In State v. Castro, 25 Or.App. 873, 551 P.2d 488, Sup.Ct. Review denied (1976), we considered the application of ORS 135.865 and said:

'Under this statute, the determination of what If any authorized sanctions for breach of the discovery rules should be imposed is entrusted to the trial court * * *.' ⁴ (Emphasis supplied.) 25 Or.App. at 876, 551 P.2d at 489.

The exercise of discretion, no matter how broad, is the exercise of judgment. Judgment cannot be exercised in a factual vacuum. Here, the defendant objected to the introduction of the photographs on the ground that he had not been given pretrial discovery. The judge's immediate response, without inquiry or comment, was '(objection) denied.' This appears to us to constitute an exercise of will rather than an exercise of judgment and accordingly constituted an abuse of discretion. An initial determination as to whether defendant was in fact given discovery of the pictures and the prejudice he might have suffered as a result should...