State v. Clements

• Decision Date: 18 May 1981
• Docket Number: No. DA,DA
• Citation: 628 P.2d 433,52 Or.App. 309
• Parties: STATE of Oregon, Appellant, v. James Stuart CLEMENTS, Respondent. 191522-8004; CA 18483.
• Court: Oregon Court of Appeals

Page 433

628 P.2d 433

52 Or.App. 309

STATE of Oregon, Appellant, v. James Stuart CLEMENTS, Respondent.

No. DA 191522-8004; CA 18483.

Court of Appeals of Oregon.

Argued and Submitted Jan. 26, 1981.

Decided May 18, 1981.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for appellant. On the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., William F. Gary, Deputy Sol. Gen., and John C. Bradley, Asst. Atty. Gen., Salem.

Steven Jacobsen, Portland, argued the cause and filed the brief for respondent.

Before GILLETTE, P.J., and ROBERTS and YOUNG, JJ.

ROBERTS, Judge.

This is an appeal by the state from an order of the trial court dismissing the complaint which charged defendant with the theft of two food items, a package of meat and some clams, ¹ from a Tradewell store. We reverse.

At time of trial defendant filed a motion to produce for inspection the meat which was alleged to have been stolen or, in the alternative, to dismiss the complaint. ² Defendant's motion relied on ORS 135.805-135.873, the criminal discovery statute, and Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The affidavit submitted in support of the motion states:

"On April 20, 1980, at approximately 2:35 p. m., I entered the Tradewell Store at 3955 S. E. Powell carrying a package of beef boneless chuck steak I had purchased at that store earlier the same day. After my initial purchase, I returned home, partially unwrapped the beef and after smelling the meat, determined it was spoiled.

"Thereupon, I returned to the Tradewell Store with the intention of returning the beef. Shortly after entering the store with the beef in my hand, I realized I had left my wallet in the car. I returned to the car, and upon reaching the car was approached by two security officers who took the beef from me; and the last I saw it, it was in the custody and control of the Tradewell security officers."

In the interim between the incident in the store and defendant's trial the meat, which had been retained by Tradewell, was, apparently inadvertently, destroyed. When the state was unable to produce the meat, the complaint was dismissed.

The state's position is that the dismissal should not have been ordered because: (1) the evidence would have been available had the defendant requested it earlier; (2) defendant failed to make a showing that the evidence was favorable and material; (3) the loss of the evidence could not amount to a violation of defendant's constitutionally protected due process rights because the meat was at all times in the possession of Tradewell and, therefore, no state action was involved; and (4) the state should have been allowed to proceed on the charge of theft of the other food item regardless of the court's action regarding the meat.

Because defendant's motion to dismiss was based both on the criminal discovery statute and Brady, we think it important to discuss, and to distinguish in this case, the application of each, even though that issue is not dispositive of this case.

Pursuant to ORS 135.815

" * * * 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:

"* * *

"Which were obtained from or belong to the defendant."

The state argues that defendant should have made a motion to produce earlier. The state's objection seems to be based in part upon its understanding that the defendant wanted the state to produce the meat so it could be tested for spoilage, and that the defendant presented no evidence that it could have been so tested. The state misses the point of defendant's argument. Defendant maintains that the evidence itself was exculpatory because of defendant's claim that he had purchased the meat earlier and that it was his property. This, he believed, would have been corroborated by the fact that the package had been unwrapped. The question is whether, under the facts of this case, defendant's motion was timely filed. ³ We conclude that the motion was timely as it related to discovery, but did not timely present a Brady issue.

The criminal discovery statutes, ORS 135.805 to 135.873, state in mandatory terms the duty of the prosecutor to disclose among other things, tangible objects taken from the defendant. ⁴ Disclosure by the prosecutor is intended to be automatic, and the statute "is designed to require discovery to proceed without the obtaining of routine court orders." Proposed Oregon Criminal Procedure Code 185, Commentary, § 321 (1972). Disclosure is to take place "as soon as practicable following * * * the filing of a complaint charging a misdemeanor * * *." ORS 135.845.

The statute does not, however, require that a defendant request discovery material at any particular time if the state does not comply with its discovery obligations. Here the defendant's use of the meat package required no examination prior to trial, and defendant merely expected the package to be available for use during trial. When he became aware that the state would not have the package available, defendant made the motion to produce.

If the state had a duty to disclose the evidence, it also had a duty to preserve that evidence so that it would be available for discovery purposes. The defendant requested the production of the item in time for trial, which is when he needed it. The motion to produce based on the discovery statute was timely.

We conclude, however, that defendant's motion was not timely as to the Brady question raised. Under Brady v. Maryland, supra, the state has a duty to disclose material evidence favorable to the accused. The duty to disclose also operates as a duty to preserve exculpatory evidence. United States v. Bryant, 439 F.2d 642 (DC Cir. 1971); People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 527 P.2d 361 (1974); see also State v. Michener, 25 Or.App. 523, 550 P.2d 449 (1976). Here, however, there is no indication that the state had any reason whatever to know that the condition of the package was material to the defendant's case until defendant's motion was filed. By that time the meat and its package had been lost or destroyed. Defendant, on the other hand, was aware of the exculpatory nature of the evidence from the time it was taken from him at the store.

The situation is distinguishable from that presented in State v. Michener, supra, in which we held the destruction of breathalyzer ampules before the defendant could have them independently tested was a Brady violation. The materiality of the test results in Michener was apparent, and the reliability of those results might be expected to be at issue. Here, however, it appears that the state had no reason to know that the condition of the meat package would be at issue or that defendant believed it to be exculpatory. We do not believe the state's duty to preserve evidence under Brady arises until the state knows, or has reason to know, that the...