State v. Cartwright

• Decision Date: 14 March 2001
• Citation: 20 P.3d 223,173 Or. App. 59
• Parties: STATE of Oregon, Respondent, v. David Brian CARTWRIGHT, Appellant.
• Court: Oregon Court of Appeals

20 P.3d 223

173 Or. App. 59

STATE of Oregon, Respondent, v. David Brian CARTWRIGHT, Appellant.

(; CA A101495)

Court of Appeals of Oregon.

Argued and Submitted February 22, 1999.

Decided March 14, 2001.

Kenneth A. Morrow, Eugene, argued the cause for appellant. With him on the brief was Morrow, Monks & Sharp, P.C.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and DEITS, Chief Judge,¹ and LINDER, Judge.

LINDER, J.

Defendant appeals from a judgment of conviction on eight counts of harassment, ORS 166.065, and two counts of criminal trespass in the second degree, ORS 164.245 (1997). The primary issue presented is whether defendant was entitled, either before or during trial, to inspect a nonparty's "privileged" audiotape recordings for possible inconsistent prior statements of the victim-witnesses. Defendant also challenges the trial court's jury instruction on the meaning of "intimate parts" for purposes of the harassment statute. We affirm.

Defendant was employed as general manager of Southern Curry Ambulance Association, Inc. (SCAA). In the fall of 1997, an SCAA employee complained to SCAA that defendant had sexually harassed her. Other employees later made similar complaints. As part of an internal investigation and in anticipation of civil litigation, officials of SCAA interviewed several employees, asking them questions about defendant's conduct. SCAA officials recorded those interviews on audiotape. Later, defendant was criminally charged with multiple counts of harassment and criminal trespass, allegedly committed against several SCAA employees. Through a combination of subpoenas duces tecum and motions to compel, defendant sought to have the taped interviews produced both prior to trial and during trial so that he could inspect them for possible inconsistent statements that might impeach the potential victim-witnesses. In each instance, the trial court declined to order SCAA to release the tape recordings to defendant.

The trial court's rulings in that regard are the target of defendant's first argument. On appeal, in a single assignment of error, defendant challenges the trial court's rulings on his various procedural efforts to obtain and review the tape recordings.² He argues that he was entitled to the tape recordings under the compulsory process guarantees of the state and federal constitutions, notwithstanding SCAA's status as a nonparty to the proceedings and its assertion that the information sought was "privileged as work-product material." The state responds that, to trigger either the state or the federal constitutional guarantee, defendant was required to show that the contents of the tape recordings were both material and favorable to him and that he failed to do so.³

To put the issue in its proper perspective, we begin by describing in some detail the precise procedural devices that defendant used to seek access to the tape recordings, the procedural timing of those efforts, and the trial court's rulings in response to each. Several weeks before trial was scheduled to begin, defendant served a subpoena duces tecum (the first subpoena) on SCAA, directing it to produce the tape recordings made in the course of its investigation.⁴ SCAA entered a special appearance and moved to quash the first subpoena on the grounds that defendant had no authority to obtain discovery from a nonparty in a criminal case and the information sought was "privileged as work-product material." Relying on ORS 136.580, Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution, defendant responded to SCAA's motion by filing a motion to compel production of the tape recordings.⁵ Defendant attached to that motion to compel an affidavit of a former SCAA official who was involved in investigating the SCAA employees' allegations that they were sexually harassed by defendant. In the affidavit, the former official stated only that he had recorded statements of "many of the complaining witnesses" and had turned the tape recordings over to another SCAA official. The affidavit contained no representations as to the nature or scope of SCAA's investigation or the substance of the statements made by the witnesses.

The trial court granted SCAA's motion to quash and issued a letter opinion explaining its ruling in detail. The court found, as SCAA had argued, that the tape recordings "were made by corporate officials for corporate purposes" and "to protect themselves from current or future claims by employees."⁶ Also, the trial court determined that defendant was using the subpoena duces tecum to seek pretrial "discovery" from a nonparty. On that point, the court specifically found that the tape recordings were not in the state's possession or control and had never been provided to the district attorney's office. The trial court further found that defendant made no showing that "the alleged victims would testify any differently at trial than they did during their corporate interviews." Concluding that a criminal defendant has no statutory or constitutional right to compel "discovery" from nonparties, the trial court quashed the first subpoena.

Defendant then served SCAA with another subpoena duces tecum (the second subpoena) and filed another motion to compel, again seeking to have SCAA appear and produce the tape recordings.⁷ SCAA again moved to quash. The matter was heard by a different judge from the one who had quashed the first subpoena. As before, the trial court granted SCAA's motion to quash and issued a letter opinion explaining its ruling. Apparently relying on the earlier ruling, the trial court "assumed" the facts to be that the state was prosecuting defendant for harassment of the alleged victims, that SCAA had interviewed the alleged victims in anticipation of civil litigation, that tape recordings were made of those interviews, and that the state had not reviewed those tape recordings and did not have them in its possession. The trial court quashed the second subpoena, concluding that defendant's constitutional rights to production did not "over-ride the privilege of a non-party." The trial court also denied defendant's motion to compel production of the recordings, similarly reasoning that a person not a party to a criminal case is not subject to a motion to compel.

Defendant made one more procedural effort to obtain access to the tape recordings, this time during trial. After the first victim-witness testified on direct examination, defendant on cross-examination asked her if she had been interviewed by SCAA about the sexual touching that was the subject of the witness's direct testimony and if that interview had been tape-recorded. When she answered affirmatively, defense counsel orally moved that the trial court order SCAA to "produce" the tape recordings, advising the trial court that defendant was relying on the same arguments that he had advanced in support of the subpoenas duces tecum. The trial court denied defendant's motion, stating that it was not going to revisit its prior ruling. The trial court reiterated, so "that everyone understands," that the tape recordings were not subject to an "order to compel" because they had never been available to the prosecution and they were in the control of a nonparty rather than the prosecution. Defense counsel responded that he was not seeking "pretrial discovery" but instead was requesting enforcement of the subpoenas.⁸ The trial court declined to alter its earlier rulings quashing the subpoenas. Subsequently, in pro forma fashion, defendant made the same request after laying the same foundation with each victim-witness, and the trial court, likewise in pro forma fashion, denied each of those requests.

In analyzing defendant's claim of right to inspect the tape recordings, we begin by differentiating, in a way that the parties do not, between a criminal defendant's right to pretrial discovery and a criminal defendant's right to produce testimonial or other evidence for use at trial. Fundamentally, pretrial discovery and production of evidence are different concepts. As the Oregon Supreme Court has aptly described, discovery is investigatory or informational in nature:

"Pretrial discovery is a valid procedural tool; however, it is a `fishing expedition' in the sense that the searcher does not know what is available for `catching.' For this reason, the searcher wants to use as large a net as possible. On the other hand, discovery under such circumstances can be abused; therefore, the right of pretrial discovery is limited by statute."

Pacific N.W. Bell v. Century Home, 261 Or. 333, 339, 491 P.2d 1023 (1971), opinion withdrawn in part by 261 Or. 333, 494 P.2d 884 (1972) (discussing general principles of discovery in the context of civil case). See generally ORS 135.835 et seq. (providing for discovery in criminal cases). Discovery typically relates to the right to receive information and documents from the opposing party in a case and is a reflection of principles that seek to minimize trying cases "by ambush." See, e.g., State v. Dickerson, 36 Or.App. 479, 485, 584 P.2d 787 (1978)

(discussing policies underlying Oregon's criminal discovery statutes, which were modeled on ABA standards). A court's traditional subpoena power, on the other hand, is not a device for a "mere exploring expedition," but instead is a means to produce, at a court hearing or in advance of it, testimony or other materials of known relevance and materiality for evidentiary use in a proceeding. See State v. Yee Guck, 99 Or. 231, 236-37, 195 P. 363 (1921).

We first consider whether defendant had a statutory discovery right to obtain and inspect the tape recordings.⁹ Below, the trial court rejected defendant's pretrial efforts to do so, relying in part on State ex...