State v. Cooper

• Decision Date: 16 June 1994
• Parties: STATE of Oregon, Petitioner on Review, v. Mark K. COOPER, Respondent on Review. DC 91-2249-C; CA A72530; SC S40539.
• Court: Oregon Supreme Court

Page 822

874 P.2d 822

319 Or. 162

STATE of Oregon, Petitioner on Review, v. Mark K. COOPER, Respondent on Review.

DC 91-2249-C; CA A72530; SC S40539.

Supreme Court of Oregon.

Argued and Submitted Jan. 4, 1994.

Decided June 16, 1994.

Amy E. Alpaugh, Asst. Atty. Gen., Salem, argued the cause for petitioner on review. With her on the petition were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

James N. Varner, Deputy Public Defender, Salem, argued the cause for respondent on review.

Before CARSON, C.J., and GILLETTE, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.

FADELEY, Justice.

The issue in this criminal case is whether a city police officer who investigates charges of a state crime and charges a defendant with that crime may be designated by the state in a state criminal trial based on this charge as a representative of the state under the second exception to the rule governing exclusion of witnesses that is stated in OEC 615. Stating that exception, OEC 615(2) in part provides:

"At the request of a party the court may order witnesses excluded until the time of final argument, and it may make the order of its own motion. This rule does not authorize exclusion of * * * (2) an officer or employe of a party which is not a natural person designated as its representative by its attorney * * *."

The Court of Appeals sitting in banc concluded that the city police officer was not an "officer" of the state for purposes of OEC 615(2) and reversed and remanded for a new trial. State v. Cooper, 120 Or.App. 490, 852 P.2d 948 (1993). We disagree, holding that the officer was, in the circumstances of this case, the functional equivalent of a state police officer, and reverse.

Defendant was charged with assault in the fourth degree and criminal mischief in the second degree. The main issue at trial was who was the aggressor in the fight leading to those charges. Each party to the fight accused the other. Each gave a different version of the event and wanted to press charges against the other. Brooks, the city police officer who responded to and investigated the altercation, took the witness' statements and charged defendant with the crimes stated above.

At trial, defendant moved under OEC 615 to exclude witnesses. The prosecutor designated Officer Brooks as the state's representative and asked that she be allowed to sit at counsel table. The court granted the prosecutor's request and denied defendant's exclusion request as to her. Brooks testified during trial, both in the state's case-in-chief and on rebuttal. Defendant was convicted.

On appeal, defendant contended that the trial court erred by refusing to exclude Brooks from the courtroom under OEC 615. The Court of Appeals plurality held that the state could not avoid exclusion of Brooks by designating her as its representative. That court reasoned that Brooks could not be an "officer" of the state, because she was employed by the City of Ashland, not by the State of Oregon. The plurality also reasoned that, having concluded erroneously that Brooks was exempt from exclusion, the trial court failed to exercise its discretion whether to exclude Brooks, an exercise that the plurality held OEC 615 requires. Finally, the plurality reversed and remanded for a new trial on the presumption that defendant was prejudiced by failure to exclude Brooks. Id. at 494-96, 852 P.2d 948.

In a concurring opinion, three judges concluded that the trial court erred by failing to exercise its discretion in considering whether to exclude Brooks, notwithstanding the state's designation of her as its representative. 120 Or.App. at 496, 852 P.2d 948 (Edmonds, J., concurring). Those concurring judges construed OEC 615 "to mean that the trial court retains the discretion to veto the state's designated representative" if necessary to ensure a fair trial. Id. at 497, 852 P.2d 948. In a concurring and dissenting opinion, two other judges concluded that the alleged error was neither preserved nor properly assigned as error in defendant's opening brief. Ibid. (Rossman, J., concurring and dissenting.) Nonetheless, they would have held on the merits that a city police officer who investigated a state crime that is being prosecuted is an "officer" of the state under OEC 615(2). Id. at 497-505, 852 P.2d 948. Finally, one judge dissented solely on the ground that defendant failed to preserve the alleged error. Id. at 505, 852 P.2d 948 (DeMuniz, J., dissenting). ¹

We allowed the state's petition for review to determine the proper interpretation of the second exception stated in OEC 615, which is quoted, in relevant part, above. ² The state is a party in a criminal prosecution for violation of state crimes. ORS 131.025. Therefore, the state in this case is a "party" within the meaning of OEC 615(2). The meaning of that aspect of the exception--who is a party entitled to designate a representative who will be exempt from exclusion--having been determined, the question in this case is whether a city police officer who investigated and charged a state crime may be considered an "officer" of the state and, therefore, may be exempt from exclusion under OEC 615(2) as a designated representative of the state.

In interpreting a statute, the court's task is to discern the intent of the legislature. In doing so, the best evidence of the legislature's intention and the first level of analysis is to examine the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-11, 859 P.2d 1143 (1993). The context of the statute includes other provisions of the same statute and other related statutes. Id. at 611, 859 P.2d 1143. Words of common usage typically should be given their plain, natural, and ordinary meaning. Ibid.

Text and context of OEC 615 are not dispositive as to the issue presented in this case, because relevant statutes do not define the term "officer." The common meaning of "officer" is "one charged with a duty: Agent." Webster's Third New Int'l Dictionary 1567 (unabridged ed. 1993). That definition would appear to permit designation of a city police officer who investigated charges of a state criminal violation as an "officer" of the state. However, the issue of the legislature's intent as to the meaning of OEC 615(2) is not settled by reference to the dictionary's quite general definition.

If the word "officer" always required that the officer also be an "employee" of a non-natural party, the word "employee" would have been sufficient to indicate who may be designated as the party's representative. Yet both words are used in the rule, not just "employee." This use of two separate words cannot be explained logically in this case by the possibility that the legislature was simply using redundant synonyms. The words are not synonyms and, moreover, are joined by the word "or," a word normally used as a disjunctive connector. Thus analyzed, the potential ambiguity of the phrase may be explained by asking two questions. Does "officer" mean one who is an employee or who holds the ongoing status of an officer of the designating party? Or, does "officer" have a broader connotation, as a representative of the party designated for purposes of the specific trial? Because either interpretation is reasonable, the word is ambiguous and text and context are not decisive of the legislature's intent. Therefore, we proceed to the second level of analysis, which concerns the legislative history of the statute. See PGE v. Bureau of Labor and Industries, supra, 317 Or. at 611-12, 859 P.2d 1143 (explaining methodology).

Although the Oregon legislative history does not comment directly on the intended meaning of "officer," as relevant here, that history reveals that OEC 615(2) originally was adopted from its federal counterpart, FRE 615(2). ³ When the Oregon legislature adopts a statute modeled after another jurisdiction, an interpretation of that statute by the highest court of that jurisdiction that was rendered in a case decided before adoption of the statute by Oregon is considered to be the interpretation of the adopted statute that the Oregon legislature intended. State v. Stockfleth/Lassen, 311 Or. 40, 50, 804 P.2d 471 (1991).

In this case, however, the Supreme Court of the United States had not interpreted FRE 615 before Oregon enacted OEC 615. However, the Oregon legislature (as well as the experts on evidence who appeared before it generally urging adoption of the federal rules of evidence as the Oregon Evidence Code) knew of the significant role played by Congress in adopting the federal rules. Thus, we give weight to a pre-existing interpretation by Congress of the language adopted by the Oregon legislature and look to the legislative history of FRE 615 for guidance in determining Oregon legislative intent concerning OEC 615(2). See McKean-Coffman v. Employment Div., 312 Or. 543, 550, 824 P.2d 410 (1992) (legislative history of federal statute is persuasive in interpreting an Oregon statute based on the federal statute); Karsun v. Kelley, 258 Or. 155, 161, 482 P.2d 533 (1971) (legislative history of a federal act is of significant interest in construing a statute that adopted substantially the same terms as were set forth in the federal act).

The legislative history of FRE 615 reveals that an investigative officer from a federal agency other than the prosecutor's office is intended to be considered an "officer" of the federal government even though a witness in the case and, therefore, falls within the purview of FRE 615(2). The Senate Judiciary Committee Report, recommending adoption of FRE 615, states:

"Many district courts permit government counsel to have an investigative agent at counsel table throughout the trial although the agent is or may be a witness.[ ⁴ The practice is permitted as an exception to the rule of exclusion and compares with the situation defense counsel finds himself in--he always has the client with him to...