State v. Curtis

Decision Date11 March 1975
Citation530 P.2d 520,20 Or.App. 35
PartiesSTATE of Oregon, Respondent, v. Willie B. CURTIS, Appellant.
CourtOregon Court of Appeals

Robert C. Cannon, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Timothy Wood, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and THORNTON, JJ.

SCHWAB, Chief Judge.

Defendant was convicted of robbing a grocer. ORS 164.405. On appeal he assigns as error: (1) the trial court's denial of defendant's motion for a continuance; (2) the trial court's refusal to admit evidence of specific instances of defendant's good character; (3) the trial court's refusal to exclude the testimony of a state's witness whose name had not been given as a potential witness to the defense counsel before trial; and (4) the trial court's refusal to grant a mistrial because the state failed to make pre-trial disclosure of oral statements made to a police officer by the defendant which were not contained in the police reports.

1. Motion for continuance

On the day of trial defendant orally moved for a continuance in order to locate alibi witnesses in addition to the several that he already had available to testify. A ruling on a motion for a continuance will not be disturbed absent a showing of abuse of discretion by the trial court. State v. Young, 1 Or.App. 562, 463 P.2d 374, S.Ct. review denied (1970). In the case at bar defendant had the services of an attorney and an investigator to assist him in his preparation for trial. Furthermore, when defendant made his motion he gave no specific facts as to whom he hoped to locate if the continuance was granted. And, in any event, defendant offered no affidavit showing 'sufficient cause' as is required by ORS 136.070. 1 See, State v. Longoria, 17 Or.App. 1, 520 P.2d 912, S.Ct. review denied (1974).

2. Character evidence

The court did not err in its refusal to allow the testimony of one Rev. Dodd concerning specific instances of worthy behavior by the defendant. The rule in Oregon is, and long has been, that a litigant's character may be proved only by his general reputation in the community. State v. Bateham,94 Or. 524, 186 P. 5 (1919). This is also the rule in most other jurisdictions. See, McCormick, Evidence 454, 455, § 191 (2d ed. Clearly 1972).

3. The state's use of a witness whose name had not been given to defendant prior to trial.

During the course of trial defendant objected to the admission of certain evidence on the ground that the chain of custody had not been established. The state then called Officer Fegles, the property officer, to establish the chain of custody. Defendant then objected to Fegles' testimony but made no motion for a continuance or claim of prejudice. Assuming arguendo that the state should have anticipated that it would need to call Officer Fegles and therefore should have listed him as a witness, absent some showing of prejudice no reversible error was committed. ORS 135.865 2 makes it clear that not every breach of duty imposed by the pre-trial discovery statutes, ORS 135.805 et seq., requires suppression of the proffered evidence. See, State v. Hand, Or.App., 99 Adv.Sh. 2542, 528 P.2d 126 (1974).

4. The trial court's refusal to grant a mistrial on the prosecution's failure to disclose oral statements made by the defendant which were not contained in police reports.

ORS 135.815(2) requires the prosecution to disclose to a defendant '(a)ny written or recorded statements or memoranda of any oral statements made by the defendant, or made by a codefendant if the trial is to be a joint one.' At trial an officer testified concerning his conversation with defendant at the time of defendant's arrest. The defendant objected to this testimony because it was not memorialized in the police report made following the arrest. Defense counsel moved for a mistrial solely on the basis that the discovery statute had been violated and not on any claim of prejudice.

The language of the pertinent portion of the discovery statute, ORS 135.815(2), is not as broad as the language contained in the ABA Project on Standards for Criminal Justice, Discovery and Procedure Before Trial 52, 53, § 2.1(ii) (1970), which would require disclosure of 'any written or recorded statements and the substance of any oral statements made by the accused * * *.' The Criminal Law Revision Commission had the ABA Proposed Standards before it when drafting Oregon's pre-trial discovery statutes, See, Proposed Oregon Criminal Procedure Code 186, § 322, Commentary (1972). However, we need not here decide that it was not the intent of Oregon's discovery statute that unrecorded statements would be subject to discovery.

Discovery of unrecorded comments is not always necessary to due...

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9 cases
  • State v. Davis, 10-79-11533
    • United States
    • Court of Appeals of Oregon
    • 5 Octubre 1981
    ...455, § 191, the prosecution may not prove defendant's bad character through evidence of specific acts. See, State v. Curtis, supra (20 Or.App. 35, 530 P.2d 520, rev. den. (1975)) State v. Ewing, supra, 174 Or. at 503, (149 P.2d 765) McCormick, supra at 459, § 192; 1 Wigmore on Evidence 643,......
  • State v. Mai, s. T
    • United States
    • Court of Appeals of Oregon
    • 19 Octubre 1981
    ...inter alia : "We agree with the Court of Appeals in its opinion in this case to the effect that its previous opinion in (State v.) Curtis (20 Or.App. 35, 530 P.2d 520) does not impose a requirement that a party to a criminal case may not object to the calling against him of a witness whose ......
  • State v. King
    • United States
    • Court of Appeals of Oregon
    • 25 Julio 1977
    ...trial courts' failure to impose any sanction. State v. Castro, 25 Or.App. 873, 551 P.2d 488, Sup.Ct. review denied (1976); State v. Curtis, 20 Or.App. 35, 530 P.2d 520, Sup.Ct. review denied (1975). In all of these cases, ostensibly the same statute, ORS 135.865, was being applied. It is th......
  • State v. Wolfe
    • United States
    • Supreme Court of Oregon
    • 14 Noviembre 1975
    ...not be prejudiced 'because they knew that she is a possible witness.' Defendant supports this contention by citing State v. Curtis, 20 Or.App. 35, 530 P.2d 520 (1975), in which the Court of Appeals affirmed a conviction in a criminal case where the state had been permitted to call a witness......
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