State v. Dyson

• Decision Date: 02 December 1981
• Docket Number: No. D1-8347,D1-8347
• Citation: 292 Or. 26,636 P.2d 961
• Parties: STATE of Oregon, Respondent on Review, v. Thomas Wayne DYSON, Petitioner on Review. ; CA 19853; SC 27960.
• Court: Oregon Supreme Court

Page 961

636 P.2d 961

292 Or. 26

STATE of Oregon, Respondent on Review, v. Thomas Wayne DYSON, Petitioner on Review.

No. D1-8347; CA 19853; SC 27960.

Supreme Court of Oregon, In Banc.

Argued and Submitted Nov. 3, 1981.

Decided Dec. 2, 1981.

Elizabeth A. Baldwin, Staff Atty. for Public Defender for Lane County, Eugene, argued the cause and filed the petition and brief for petitioner on review.

Frank Papagni, Jr., Asst. Dist. Atty. for Lane County, Eugene, argued the cause for respondent on review. On the brief was J. Pat Horton, Dist. Atty. for Lane County, and Alexander A. Wold, Jr., Asst. Dist. Atty. for Lane County, Eugene.

TONGUE, Justice.

The state appealed to the Court of Appeals from an order by a trial court allowing defendant's motion under ORS 135.865 ¹ to exclude testimony of all state's witnesses upon the ground that the state had not complied with defendant's request for discovery by providing defendant with the names of the state's witnesses and their written statements as required by ORS 135.815. ² The Court of Appeals reversed that order by the trial court, holding that under its previous decisions ³ "exclusion of evidence is appropriate only where the violations substantially prejudice the other party in preparing its case for trial and no less severe sanction will obviate the prejudice." 52 Or.App. 833, 836, 629 P.2d 887 (1981). We allowed defendant's petition for review because of our concern that this holding by that court may be contrary to the holding by this court in State v. Wolfe, 273 Or. 518, 542 P.2d 482 (1975).

The Facts.

On October 27, 1979, defendant was riding as a passenger in a pickup truck being driven by another person when the truck was stopped by two state police officers, who cited both defendant and, presumably, the driver for "illegal possession of doe deer," a Class A misdemeanor (ORS 496.162(2)(a) and ORS 496.992).

The facts relating to defendant's subsequent request for discovery under ORS 135.815 and the conduct of the District Attorney pursuant to that request are set forth in the following findings by the trial court as the basis for its order that the state not be permitted to call as witnesses the two state police officers and one other witness:

"1. That the defendant, through Counsel, requested discovery in this case by a letter dated June 20, 1980, and directed to the District Attorney;

"2. That there was no response by the District Attorney's Office to Defendant's discovery letter until at least January 2, 1981 "3. That Counsel for the defense made telephone inquiry to the prosecutor's office regarding discovery on December 19, 1980, and that Counsel's telephone call was not returned;

"4. That at Docket Call on December 22, 1980, the State reported ready for trial, but the defendant indicated that he was not ready because he did not have any discovery at all, and that to this representation by the defendant the State replied that it did not have the discovery material either;

"5. That at Docket Call the Court then directed that the State provide discovery to the defendant by noon on Friday, December 26, 1980;

"6. That the day following Docket Call, December 23, 1980, the District Attorney informed the Court by letter that it was having difficulty complying with the deadline imposed by the Court because one of the State troopers involved in the case was on vacation;

"7. That on January 2, 1981, the defense attorney received partial discovery, and that the defense attorney received additional new discovery on January 5, 1981;

"8. And that it has been shown that defense counsel and the defendant have had some difficulty communicating effectively as to the late discovery materials because the defendant resides out of this County, and that defense counsel is uncertain as to whether a Motion to Suppress would be appropriate due to the late discovery and the trial date scheduled for January 9, 1981; * * *."

It also appears that at that time the trial court made the following statement:

"I want to make it very clear, that I deem her motions to be most well-founded indeed in all particulars, Mr. Wold. I do not read them as being at all frivolous given your history of non-compliance with court rules and court directives. Her motion is very well taken."

The trial court properly excluded the testimony of the state's witnesses for failure by the state to disclose their names and statements on defendant's request until four days before trial.

ORS 135.815 provides that:

"Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to the defendant the following material and information within his possession or control:

"(1) The names and addresses of persons whom he intends to call as witnesses at any state of the trial, together with their relevant written or recorded statements or memoranda of any oral statements of such persons."

ORS 135.845(1) provides that:

"The obligations to disclose shall be performed as soon as practicable following the filing of an indictment or information in the circuit court or the filing of a complaint charging a misdemeanor or violation of a city ordinance. The court may supervise the exercise of discovery to the extent necessary to ensure that it proceeds properly and expeditiously."

ORS 135.865 provides:

"Upon being apprised of any breach of the duty imposed by the provisions of ORS 135.805 to 135.873, the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate." (Emphasis added)

In State v. Wolfe, 273 Or. 518, 524-25, 542 P.2d 482 (1975), this court held that:

"By the terms of ORS 135.865, broad discretion is conferred upon the trial court in the choice of sanctions to be imposed in the event of a failure to disclose the names of witnesses in a criminal case, contrary to the provisions of ORS 135.835 and 135.845. * * *

" * * *

"The presence or absence of prejudice is a most important factor to be considered by the trial court in exercising the discretion conferred upon it by ORS 135.865 in the choice of sanctions, particularly in imposing the extreme sanction of refusing to receive in evidence the material not disclosed. The terms of the statute, however, do not appear to make the presence or absence of prejudice a necessary factor in the exercise of the discretion conferred by the statute in the choice of any of the sanctions to be imposed by its terms." ⁴

In so holding, we examined the history of ORS 135.865 and noted that:

"ORS 135.865, which provides sanctions for failure to comply with statutory discovery provisions, appears to be based upon provisions included in Rule 16(g) of the Federal Rules of Criminal Procedure, 18 U.S.C.A. 16(g). It is of interest to note, however, that § 4.7 of the American Bar Association 'Standards Relating to Discovery and Procedure Before Trial' (1970), which was also based upon provisions of Rule 16(g), does not specifically include the 'preclusion sanction.' Specific reference to that sanction was intentionally omitted by the ABA Committee because 'some members of the Committee thought there would be difficulties in applying it against accused persons, and unfairness if the sanction was applied only against the prosecution.' ABA Standards, supra, Commentary at 107." (273 Or. at 525 n. 3, 542 P.2d 482)

In State v. King, 30 Or.App. 223, 230, 566 P.2d 1204 (1977), rev. den. 281 Or. 1 (1978), the Court of Appeals held that:

" * * * no sanction for violation of the discovery statutes is warranted when the violation causes no prejudice in the preparation of the case for trial."

As the basis for that holding, the Court of Appeals also examined the legislative history of ORS 135.865 and then said as follows:

"In footnote 3 of its Wolfe opinion, the Supreme Court cited the legislative history we have quoted extensively above. We therefore infer the court was aware of the draftsmen's intent that: (1) the extent of prejudice was relevant to the selection of sanctions for breach of discovery duties; and (2) the imposition of sanction was to be subject to appellate supervision. Aware of this history, we cannot believe the Supreme Court intended to hold that the trial courts' discretion was so broad as to allow imposition of no sanction for a highly prejudicial violation of the discovery statutes or so broad as to allow imposition of an extreme sanction for a technical, nonprejudicial violation of the discovery statutes. We therefore conclude that our present analysis of ORS 135.865 is consistent with Wolfe." (30 Or.App. at 231, 566 P.2d 1204)

That holding by the Court of Appeals was reaffirmed by it in State v. Campbell, 44 Or.App. 3, 6, 604 P.2d 1266 (1980), rev. den. 289 Or. 71 (1980), in holding that:

"As we held in State v. King, 30 Or.App. 223, 228, 566 P.2d 1204 (1977), rev. den. 281 Or. 1 (1978), exclusion of evidence is appropriate only where the violation substantially prejudices the other party in preparing its case for trial and no less severe sanction will obviate the prejudice."

In view of these holdings by the Court of Appeals, we have re-examined the legislative history of ORS 135.865, paying particular attention to the following: the Commentary on the Proposed Oregon Criminal Procedure Code, Final Draft and Report, November 1972; ⁵ the minutes of the meetings of March 16, 1972, and June 2 1972, of Subcommittee 3 of the Criminal Law Revision Commission; ⁶ and the minutes of the Senate Judiciary Committee hearings of February 21, 1973, and March 19, 1973, on the Proposed Code. ⁷ These sources together, in the words of John W Osburn, who participated in drafting the pretrial discovery provisions of the Proposed Code, provide "(t)he most complete and authoritative legislative history of Article XI (ORS 135.805 through ORS...