State v. Bockorny

• Decision Date: 26 January 1994
• Citation: 126 Or.App. 504,869 P.2d 349
• Parties: STATE of Oregon, Respondent, v. Randy Charles BOCKORNY, Appellant. C90-08-34879 and C89-10-35768. CA A69266 (Control) and CA A69267. . On Appellant's petition for Reconsideration
• Court: Oregon Court of Appeals

Page 349

869 P.2d 349

126 Or.App. 504

STATE of Oregon, Respondent, v. Randy Charles BOCKORNY, Appellant.

C90-08-34879 and C89-10-35768.

CA A69266 (Control) and CA A69267.

Court of Appeals of Oregon.

On Appellant's petition for Reconsideration Jan. 26, 1994 Decided Feb. 23, 1994 Review Denied May 31, 1994.

Michael E. Swaim, Salem, for petition.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

De MUNIZ, Judge.

Defendant has petitioned for review of our decision. 125 Or.App. 479, 866 P.2d 1230 (1993). We treat the petition as one for reconsideration, ORAP 1.10; former ORAP 9.15, and allow it to address defendant's assertion that our opinion does not adequately develop certain facts.

Defendant argued that the trial court erred in allowing the state to call one of his expert witnesses, Dr. Grimsbo, to testify on behalf of the state. Defendant contends that our opinion does not show that Grimsbo

"was compelled by the trial court to speak to the prosecution and would not have cooperated with the prosecution if not so compelled. Over defense counsel's vigorous objection, the court ordered defense counsel not to instruct the defense expert from talking to the prosecution. Dr. Grimsbo felt that he was under court compulsion to speak with the prosecution * * *."

Any compulsion Grimsbo felt cannot be attributed to the trial court, which ruled:

"I'm going to make this ruling. I'm willing to discuss this further with you, but consider this your marching orders, at least for now. I'm going to ask that [defense counsel] not instruct the witness, that man Grimsbo or Dr. Brady, not to talk to the District Attorneys. I have no authority, as I view it, to require them to talk to the District Attorneys so they'll have to make their own decision. But I would feel that both the work product and the attorney/client privilege should be maintained to this extent, and that is, [defense counsel], you are permitted to tell those witnesses that they need not disclose to the District Attorney or their representatives any communication that you've made to them, any discussion that you've had with them[.]

"So I think, essentially, I'm saying the District Attorneys have the right to contact these witnesses, have the right to ask them any questions they wish, and they have the right to answer or not to answer, but they are to do it on their own determination and not on the instruction of defense counsel except that I can give them, pass on to them the right to, or the...