State v. Burdge

• Decision Date: 10 May 1983
• Docket Number: No. 81,81
• Citation: 295 Or. 1,664 P.2d 1076
• Parties: STATE of Oregon, Respondent on Review, v. Emery Monroe BURDGE, Petitioner on Review. 1520; CA A24751; SC 29283.
• Court: Oregon Supreme Court

Page 1076

664 P.2d 1076

295 Or. 1

STATE of Oregon, Respondent on Review, v. Emery Monroe BURDGE, Petitioner on Review.

No. 81 1520; CA A24751; SC 29283.

Supreme Court of Oregon.

Argued and Submitted April 6, 1983.

Decided May 10, 1983.

[295 Or. 2-A] Helen I. Bloch, Portland, argued the cause and filed the petition for petitioner on review. On the brief was Gary D. Babcock, Public Defender, Salem.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before LENT, C.J., and PETERSON, CAMPBELL, ROBERTS, CARSON and JONES, JJ.

JONES, Justice.

This case involves two issues.

First, we consider the propriety of a trial judge's refusal to allow a defense witness to testify because the defense failed to disclose the name of the witness prior to trial allegedly in violation of reciprocal discovery statutes.

Second, we consider the propriety of the trial judge's refusal to allow a witness's testimony because of violation of a stipulated agreement between the attorneys to exclude witnesses and the application of OEC 615 to this case.

We hold that exclusion of the witness's testimony was reversible error.

FACTS

In this case, an undercover operative, apparently working under an agreement that he would not be prosecuted for drug charges, was hired to a temporary position as a deputy sheriff for Linn County. His tenure was to be for four months during which he was to participate in an undercover drug buy program and then testify against the sellers.

After a series of introductions and negotiations with the defendant and his son regarding a marijuana purchase, the operative met the defendant at a gas station on June 9, 1981. The operative testified that the defendant explained he had been having trouble contacting his drug connection and provided the operative a telephone number to call that evening. The operative testified that he called and spoke to the defendant several times at this number.

The following day, June 10, 1981, the operative met the defendant and his son at the gas station, and a short time later a third party arrived and was pointed out to the operative as the proverbial "connection." Defendant's son introduced the operative to the "connection" and one pound of marijuana was purchased for $500.

In addition to the operative's testimony, a detective testified to observing the defendant at the gas station on the dates of the alleged meetings, to witnessing the operative make telephone calls (he did not testify as to having seen what number was called or what was said), and to following him to the defendant's estranged wife's residence.

Defense counsel was not told before trial what telephone number the operative called. The state did not reveal the number on direct examination and it was only on cross-examination that the number was disclosed as 367-4815, which apparently was the home number of the defendant's wife. The telephone number was written on a small scrap of paper produced by the operative while on the witness stand. Throughout the operative's testimony, the defendant's wife was seated in the courtroom in a position to hear the testimony. She had not been included on the defense witness list provided to the state since the defendant did not intend to call her as a witness.

Later, defense counsel attempted to call the defendant's wife as a witness concerning the telephone number. The prosecuting attorney initially objected to her testimony on "discovery grounds." The prosecutor also advised the trial court that there had been a stipulation between the attorneys that witnesses to be called would be excluded, raising this as a further ground for his objection to the wife's testimony. Defense counsel acknowledged that such an agreement between the attorneys had been made and both sides agree that the court had not been advised of the agreement prior to the prosecutor's objection. ¹ The trial court then asked the defense for an offer of proof. The court was advised that if the wife was allowed to testify she would state that the telephone number testified to by the operative was her home telephone number, and that during the period of days involved in the drug negotiations and subsequent transaction she and her husband were separated and he was not living at her residence. She would further testify that on the evening the operative testified he called her number and spoke to her husband that her husband was not there and that no such call was received. After hearing the offer of proof, the trial court sustained the state's objection without comment. Therefore, the record is unclear as to the basis for the court's ruling and, consequently, our analysis assumes that either one or both grounds were the basis for the court's ruling.

THE DISCOVERY ISSUE

In State v. Mai, 294 Or. 269, 271, 656 P.2d 315 (1982), we pointed out:

"ORS 135.805-.873 are comprehensive statutes which provide for reciprocal discovery by the prosecution and the defense. The statutes require, inter alia, the disclosure of the names and addresses of witnesses the party intends to call at trial. ORS 135.865 provides that the trial court, '[u]pon being apprised of any breach of the duty [of disclosure] * * * may * * * refuse to permit the witness to testify * * *.' "

In Mai, defense counsel advised the jury in his opening statement that he would present certain witnesses. The witnesses had previously not been disclosed to the prosecution and the state objected to the calling of the witnesses. The court found that defense counsel had in fact failed to comply with ORS 135.835 and directed him to make his witnesses available for interviews during the recess. Defense counsel then obstructed the prosecutor's attempt to interview the witnesses by advising them that they need not answer the state's questions during the interview. After being advised of defense counsel's conduct, the trial court imposed sanctions and prohibited the calling of the defendant's girl friend as a witness as a penalty for violation of the reciprocal discovery statutes and obstruction of the discovery process. Because the defendant's attorney thwarted the court's efforts "to avoid prejudice to the defendant and to the state," the state was prejudiced by its inability to talk to the witnesses in advance. Our holding in Mai limited the language in State v. Wolfe, 273 Or. 518, 524-25, 542 P.2d 482 (1975), and State v. Dyson, 292 Or. 26, 36, 636 P.2d 961 (1981), ² insofar as the rights of the defendant are concerned. We held that prejudice to the state must be shown before preclusion is appropriate. We also pointed out that prejudice to the defendant need not be shown in order to preclude prosecution witnesses. We do not depart from our holding in Mai; however, we find this case to be factually distinguishable from Mai primarily because of the type of witness and testimony offered here.

This case is simply a matter of tactical trial advocacy. Counsel elected to call an "impeachment" witness after hearing the operative's testimony.

Proffered testimony of the defendant's wife would have been of substantial value to the defendant. The wife's testimony would have been important for the purpose of impeaching the police operative's testimony. This is often called impeachment by "contradiction." See McCormick on Evidence 97, § 47 (2nd ed. 1972). ³

While we are not passing judgment upon the credibility of the operative, we do note that the record clearly reflects that this operative was, to use police vernacular, "working off a beef," and the jury had heard testimony alerting them to the predicament that this witness was in. His failure to cooperate could have resulted in his own prosecution. The wife's testimony could have led the jury into a weighing process as to whether or not the police operative had actually made the critical telephone call testified to. This is clearly the nature of a jury's work.

The use of impeachment witnesses is so basic a function of trial advocacy as to engender it a special place in trial lawyer training. ⁴ Further, while it may in many cases be reasonably predictable what an adverse witness will testify to, therefore making the selection of impeachment witnesses possible, this is not always the case. The operative's disclosure of the telephone number required defense counsel to offer an impeachment witness that had not previously been contemplated. The record clearly shows that defense counsel was not advised via police reports, prosecutors' disclosures or in any other manner the exact telephone number that the operative called. We believe this is inconsistent with the discovery requirements of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). ⁵ It was only on cross-examination that this information became known to the defense. Without this information, defense counsel could not have anticipated that it would become necessary to call the wife to impeach the operative. In State v. Wolfe, 273 Or. at 522, 542 P.2d 482, we stated:

"It appears from a reading of the provisions of these statutes that, depending upon the facts of the particular case, these provisions of ORS 135.835(1) and 135.845(1) may have no proper application to a defense witness who was called to impeach the testimony of a state's witness. Thus, it may not develop until the trial is in progress that a state's witness has given testimony which is subject to impeachment by some person the defense had not previously intended to call as a witness."

Our review of the trial record indicates that as soon as defense counsel became aware that it would be necessary to call the wife to impeach the operative, he advised both the prosecuting attorney and the court and suggested that the state be allowed a reasonable time to interview the witness. We believe this is consistent with our further holding in Wolfe where we stat...