State v. Harshman

• Decision Date: 16 February 1983
• Docket Number: 6174,Nos. 6170,6173,6180 and 6785,s. 6170
• Citation: 658 P.2d 1173,61 Or.App. 711
• Parties: STATE of Oregon, Respondent, v. Noel Gay HARSHMAN, Appellant. ; CA A23239, CA A23240.
• Court: Oregon Court of Appeals

Page 1173

658 P.2d 1173

61 Or.App. 711

STATE of Oregon, Respondent, v. Noel Gay HARSHMAN, Appellant.

Nos. 6170, 6173, 6174, 6180 and 6785; CA A23239, CA A23240.

Court of Appeals of Oregon.

Argued and Submitted July 12, 1982.

Decided Feb. 16, 1983.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

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

YOUNG, Judge.

Defendant appeals his convictions, after a jury trial, for delivery of a controlled substance, ORS 475.992(1), and possession of a controlled substance. ORS 475.992(4). The charges arose out of the possession of nine pills and their delivery to an undercover informant on April 13, 1981. He assigns as error the admission of evidence of "other crimes"; the failure to grant a continuance or alternatively to exclude the other crimes evidence because of claimed pretrial discovery violations of ORS 135.805, et seq.; the failure to merge the two convictions; and the revocation of his probation on four earlier drug related convictions. We reverse.

The undercover informant, Batsell, provided most of the evidence used to convict defendant. According to his testimony, on April 13, 1981, he and his girlfriend were driving from Lexington to Boardman, in Morrow County, when he saw defendant hitchhiking. Batsell did not know defendant but stopped and picked him up. Batsell engaged defendant in a conversation about drugs and asked if he knew where there was any cocaine. Defendant said that he had been "busted" twice before and had to be careful. After further conversation, however, defendant said that he would give Batsell "a sample" of some drugs that he had with him and handed Batsell nine pills, later determined to contain methamphetamine. During the conversation, defendant also stated that he had dealt in drugs in Seaside and Alaska. He said that he had "100 pounds" of drugs for sale and that Batsell could contact him at his father's tavern in Lexington if he wanted more.

Over defendant's objections, Batsell testified to the arrangement of an attempted, but cancelled, meeting with defendant in Lexington on April 15 and a successful meeting in the parking lot at the "Blue Bucket" ¹ on April 17, at which time Batsell had purchased 800 pills from defendant for $250. The pills were later found to contain amphetamine and methamphetamine. Batsell's girlfriend testified to the conversation between Batsell and defendant. She said that Batsell had asked defendant for drugs and that defendant had handed him some pills. She also testified that defendant had told Batsell to try the pills and that he could get more.

Although defendant did not testify, it is his contention, through his attorney's opening and closing statements, that the drug exchange did not take place and that Batsell, supported by his girlfriend, fabricated the entire story. To this end, his attorney attempted to show on cross-examination that the witnesses had a financial stake in securing drug convictions and that their testimony was unreliable. The attorney argued that defendant had been selected for the false charges because of his admitted prior involvement in drugs.

We first consider defendant's claim that the state failed to comply with statutory pretrial discovery. ORS 135.815 to 135.873. He argues that pursuant to ORS 135.865, the trial court should have excluded evidence of the Blue Bucket sale or, in the alternative, a continuance should have been granted.

On the morning of trial, the state gave notice of its intention to offer evidence of "other bad acts as evidence of motive." The "bad acts" was the Blue Bucket sale on April 17, four days after defendant gave Batsell the nine pills. When the state gave notice of its intention to offer other crimes evidence it also delivered to defense counsel certain written materials relating to the Blue Bucket sale. ² Defendant moved to exclude the other crimes evidence because the "failure to provide discovery [was] very nearly deliberate." He also expressed a willingness "to accept a continuance, if that's the best I can do * * *." Defendant did not claim any specific prejudice that would result by reason of the claimed discovery violation. He told the trial judge that, because he had just received the material and lacked time to read it or reflect, he had no idea how it would prejudice defendant. Defendant argues that the trial court abused its discretion when it failed to exclude the evidence or to grant a continuance.

A party must disclose discoverable material "as soon as practicable" following the filing of the indictment. ORS 135.845. If a party has disclosed some material and later finds other discoverable material, "either before or during trial," then that party "must promptly notify the other party of the additional material or information." ORS 135.845(2). Sanctions may be imposed for the failure to comply. 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."

The state argues that defendant was neither surprised nor prejudiced by the state's untimely disclosure. Defense counsel knew before trial about the Blue Bucket sale. He acknowledges he had discussed that sale with Batsell in an earlier interview. He had also discussed the sale with the prosecutor in the context of plea negotiations. Nonetheless, the fact is that the state's last minute disclosure of the material was neither "prompt" nor "as soon as practicable." The state breached its statutory duty to disclose.

The trial court, when faced with a breach of the duty of discovery, may choose among sanctions, which include the granting of a continuance or a refusal to admit the evidence not disclosed. ORS 135.865; State v. Dyson, 292 Or. 26, 636 P.2d 961 (1981); State v. Wolfe, 273 Or. 518, 542 P.2d 482 (1975). ³

Other crimes evidence carries with it the hazard of unfair prejudice to the defendant. The failure to timely disclose the discoverable evidence thwarts the purposes of discovery. Surprise looms large, and defense counsel is denied the opportunity to meet the evidence. The denial of a continuance to prepare for such grave evidence was actual prejudice.

Even if defendant were not substantially prejudiced by the use of the evidence, sanctions might still be appropriate.

"[A]nother important purpose of the criminal discovery statutes is one of efficient judicial administration, i.e., to avoid unnecessary trials, to expedite trials, and to prevent the expense and delay of continuances when either party claims to be unprepared to go to trial because of failure by the other party to comply with these discovery statutes." State v. Dyson, supra, 292 Or. at 36, 636 P.2d 961.

The effective administration of justice requires that discoverable evidence be provided much sooner than "moments" before trial. We hold that the trial court should have at least granted a continuance.

Because defendant is entitled to a new trial, we address his assignment of error concerning the admissibility of "other crimes" evidence. Defendant claims that it was error to admit evidence, during the state's case in chief, of the alleged sale of 800 pills on April 17, 1981, at the Blue Bucket. He argues that the relevance and probative value of this evidence is outweighed by the unfair prejudicial portrayal of defendant as "a large quantity drug-dealer." The state contends that the evidence was relevant to prove motive and that its prejudicial impact is insignificant because of other substantial evidence of defendant's involvement in prior illegal drug activity. ⁴

All relevant evidence is admissible unless it falls within one of the "exclusionary rules of evidence." State v. Manrique, 271 Or. 201, 205, 531 P.2d 239 (1975). As a general rule, evidence of other crimes in a criminal prosecution is excluded for the reason that its prejudicial impact would outweigh its probative value. State v. Manrique, supra, 271 Or. at 205-06, 531 P.2d 239. The rule is subject to various exceptions. State v. Madison, 290 Or. 573, 580, 624 P.2d 599 (1981). Common exceptions are made for showing motive, intent, the absence of mistake or accident, common scheme or plan and identity. State v. Lehmann, 6 Or.App. 600, 602, 488 P.2d 1383 (1971). The list of exceptions may be limitless. McCormick, Evidence 446, § 189 (2d ed 1972). ⁵ The exceptions, however, do not "open wide the courtroom doors to whatever evidence may be offered in their names." State v. Manrique, supra, 271 Or. at 210, 531 P.2d 239, quoting from United States v. Goodwin, 492 F.2d 1141, 1155 (5th Cir.1974) . The trial judge must undertake to balance the relevance and probative value of the evidence against unfair prejudice to the defendant. State v. Hockings, 29 Or.App. 139, 144-45, 562 P.2d 587 (1977).

Evidence of the sale of 800 pills to Batsell is relevant to prove defendant's motive. The evidence is that defendant delivered the nine pills as a "sample" of the 100 pounds of drugs that he had for sale. Without evidence of the later sale, the state is left with the unexplained gift of nine pills by a hitchhiker to a paid drug informant. "[A] party cannot be required to 'sanitize' his evidence by deleting background information to the point that the evidence actually presented seems improbable or incredible to some degree." State v. Hockings, supra, 29 Or.App. at 147, 562 P.2d 587, quoting from State v. Remington, 15 Or.App. 170, 515 P.2d 189 (1973), rev....