State v. Hartfield

Decision Date04 March 1981
Citation624 P.2d 588,290 Or. 583
PartiesSTATE of Oregon, Plaintiff-Respondent, v. Charles Eugene HARTFIELD, Defendant-Petitioner. CA 14132; SC 27019. . *
CourtOregon Supreme Court

Judy Danelle Snyder, Portland, argued the cause and filed the briefs for defendant-petitioner.

Thomas Denney, Asst. Atty. Gen., Salem, argued the cause for plaintiff-respondent. On the brief were James A. Redden, Atty. Gen., Walter L. Barrie, Sol. Gen., and Christian W. Van Dyke, Asst. Atty. Gen., Salem.

LENT, Justice.

There are two issues. The first is whether, after a witness has testified on direct examination by the state, the defendant is entitled to hear an existing tape recording of that witness's testimony given in the grand jury proceedings that led to the return of the indictment upon which trial is held. We hold the defendant is so entitled. The second issue is whether one may be found guilty of the crime of burglary when, outside of business hours, he enters a retail store intending to commit arson of the store owner's property, but the entry was invited by the manager of the store, to whom the owner had entrusted regulation of entry to the premises. We hold that one may be found guilty.


On May 11, 1978, fire engulfed a Kinney Shoe Store in North Portland. Investigation led to one Richard Losh who had been hospitalized shortly after the fire for burns to his arms and upper body. Losh later negotiated a guilty plea to second degree arson, testified before the grand jury leading to the indictment of defendant, and subsequently testified as the state's chief witness at defendant's trial.

Prior to commencement of the trial defendant attempted to depose Losh, but Losh declined. Defendant also sought disclosure of the grand jury testimony of Losh and production of the prosecutor's records of the investigation of the fire. The prosecutor supplied certain records, but omitted written reports by investigators of conversations and interviews with Losh and refused to disclose tape recordings of Losh's grand jury testimony.

At trial Losh testified that he and defendant gained entry to the Kinney Shoe Store by means of a key given to defendant by the store manager for the purpose of setting fire to the business to destroy inventory and records prior to an upcoming audit. Losh related that he had used money given to him by defendant to purchase gas cans and gasoline which served as the incinerant to start the fire, that he and defendant had set the fire and that he received $200 for his participation in the arson.

The trial judge, after Losh had testified, ordered disclosure of the written reports of investigatorial interviews with Losh and gave defendant the weekend to peruse the reports and prepare for cross examination but refused defendant's request for production of the tapes of Losh's testimony before the grand jury.

Defendant was convicted of arson in the first degree, arson in the second degree and burglary in the second degree. 1 The Court of Appeals affirmed the convictions. State v. Hartfield, 45 Or.App. 639, 609 P.2d 390 (1980).

I. Production of Grand Jury Tapes

The state contends that the trial court did not err in refusing to permit inspection of the tape of Losh's testimony. The argument made in support of that contention rests upon ORS 135.855(1)(c), which provides:

"(1) The following material and information shall not be subject to discovery under ORS 135.805 to 135.873:

" * * *.

"(c) Transcripts, recordings, or memoranda of testimony of witnesses before the grand jury, except transcripts or recordings of statements made by the defendant."

The state claims that this statute reflects a long established policy that maintains the secrecy of grand jury proceedings and cites State ex rel. Johnson v. Roth, 276 Or. 883, 557 P.2d 230 (1976), as authority for that claim. In a sense, Roth may be read as so describing ORS 135.855(1)(c), but we believe a closer analysis reveals the true place of ORS 135.855(1)(c) in the statutory scheme.

In Roth this court noted the existence of a policy long established by the courts to maintain the secrecy of grand jury proceedings. We further noted that the statutes seek to preserve that policy and cited ORS 132.060, 132.210 and 132.220. ORS 132.060 prescribes the form of oath to be administered to the members of the grand jury, and the oath provides, in part, "that you will keep secret the proceedings before you." ORS 132.210 provides:

"A grand juror cannot be questioned for anything he says or any vote he gives, while acting as such, relative to any matter legally pending before the grand jury, except for a perjury or false swearing of which he may have been guilty in giving testimony before such jury."

ORS 132.220 provides:

"A member of a grand jury may be required by any court to disclose:

"(1) The testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court.

"(2) The testimony given before such grand jury by any person, upon a charge against such person for perjury or false swearing or upon his trial therefor."

In Roth we took note that ORS 135.855(1)(c) was a rejection of a proposal to "broaden" the opportunities for discovery of grand jury testimony and that ORS 135.855(1) reflected the policy already statutorily prescribed by ORS 132.220. We noted the official commentary of the Criminal Law Revision Commission contained in the Proposed Oregon Criminal Procedure Code, Final Draft and Report ("Report"), November, 1972, at page 190:

"Subsection (1)(c) is based upon the present secrecy of grand jury proceedings, as prescribed in ORS 132.220." (Emphasis added.)

Exceptions to the secrecy requirements of ORS 132.220 had existed long prior to the enactment of ORS 135.855(1)(c). As we observed in Roth :

"However, disclosure of the testimony of witnesses called before the grand jury may be permitted in three instances: (1) when the testimony of a witness at a criminal trial may be inconsistent with his testimony before the grand jury, ORS 132.220(1); (2) when a witness is charged with perjury, ORS 132.220(2); and (3) when permitted by the court in the furtherance of justice, Gowin v. Heider, 237 Or. 266, 286, 386 P.2d 1, 391 P.2d 630 (1964)(.)"

276 Or. at 886, 557 P.2d 230. The "furtherance of justice" exception is not some recent judicial gloss upon ORS 132.220. That section comes from Deady, General Laws of Oregon, Criminal Code, § 58, 2 which was considered by this court in this respect in State of Oregon v. Moran, 15 Or. 262, 14 P. 419 (1887). The issue was phrased by the court:

"It therefore becomes necessary to determine whether or not it is competent for the trial court, in the exercise of a sound judicial discretion, to allow a grand juror to testify as to matters which transpired before that body, when, in the opinion of the court, the ends of justice require it." (Emphasis added.)

15 Or. at 273, 14 P. 419. Relying upon § 58 and cases from other jurisdictions and upon a quote from a treatise, this court resolved that the grand juror should be allowed to testify.

In 1 Bishop on Criminal Procedure, § 859 (2d ed. 1872), the author is concerned with the oath of secrecy taken by a grand juror and concludes the discussion as follows:

" * * * If we look at the principle on which this question rests, we have the following. The reasons which require the secrecy are of a nature looking to the public good; because, if the grand jury could leave their room and disclose what they are doing, defendants who had not been arrested could make their escape; and because, also, persons would be deterred from voluntarily going forward and informing of crime before them. But when the reasons for keeping the testimony private have passed away, the obligation of secrecy would seem to have ended also. Yet when, in addition to this, the claims of public justice must go unsatisfied unless the disclosure is made, the same reason which originally required secrecy requires that the secret be no longer kept. The result, on the whole, is, that, in matter of principle, the disclosure should never be made except in obedience to a duty; but, when, after the offender has been arrested, some demand is made on behalf of public justice, or there is some other call of duty of the like urgency, the obligation of secrecy should yield to the new claim. * * * " (Emphasis added.) 3

It is seen, therefore, that the idea of piercing the veil of grand jury secrecy "in the furtherance of justice" is not new; it should not be startling.

Despite what the Criminal Law Revision Commission specifically said in its Report at page 190, quoted above, it has been argued to us that ORS 135.855(1) (c) was meant to protect a recording of the testimony of a witness before the grand jury from discovery at any and all times. 4 If so, the Commission and the legislature chose an odd place in which to codify that section. By its own terms, the section applies only to "discovery under ORS 135.805 to 135.873." The Commission's draft from which those sections of ORS are taken separately groups the sections under the name, "Pre-Trial Discovery" as Article 11 of the Final Draft and Report. The commentary reveals the following sense of the Commission with respect to the application of what is now ORS 135.805 to 135.873:

"Section 321 (pertinent part codified as ORS 135.805) is derived from the ABA Standards Relating to Discovery and Procedure Before Trial * * *." (Emphasis added.)

ORS 135.805 describes the applicability of the sections contained in ORS 135.805 to 135.873. In the case at bar we are not concerned with discovery before trial.

If, as has been argued, the Commission and the 1973 Legislature, which acted upon the Commission's Report, meant to absolutely bar a defendant from discovery in the circumstances presented by this case, they chose a...

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