State v. King

• Decision Date: 25 July 1977
• Citation: 30 Or.App. 223,566 P.2d 1204
• Parties: STATE of Oregon, Respondent, v. Wayman Ray KING, Appellant.
• Court: Oregon Court of Appeals

Page 1204

566 P.2d 1204

30 Or.App. 223

STATE of Oregon, Respondent, v. Wayman Ray KING, Appellant.

Court of Appeals of Oregon.

Argued and Submitted May 23, 1977.

Decided July 25, 1977.

Stephanie A. Smythe, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was James A. Redden, Atty. Gen., and W. Michael Gillette, Solicitor Gen., Salem.

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

SCHWAB, Chief Judge.

Since becoming effective January 1, 1974, Oregon's criminal discovery statutes, ORS 135.805-135.873, have been interpreted in numerous appellate decisions. ¹ This case offers the opportunity to collect and synthesize those prior decisions.

In the course of defendant's trial for burglary, it developed that the state had failed to disclose to the defense the names of two witnesses one of the residents of the burglarized premises and the crime laboratory technician who compared defendant's fingerprints with those found in the burglarized premises. The trial court expressed its displeasure ² but nevertheless permitted the witnesses to testify over defendant's objection. On appeal defendant contends the trial court erred in not granting any remedy for the (apparently now-admitted) state's violation of the discovery statutes.

The appellate decisions indicate there have been relatively few problems with the questions of what is subject to discovery and the mechanics of discovery, the statutes on these subjects being largely self-explanatory. A recurring problem, however, has been the question of what remedy to impose for breach of a duty to disclose imposed by the discovery statutes. 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 legislative history indicates this statute was derived from the American Bar Association Standards Relating to Discovery and Procedure Before Trial, § 4.7 (1970). ³ One part of the commentary to the ABA Standard states:

"Rather than attempt to provide specific sanctions for specific violations, the Committee deemed it wise to leave the sanctions by and large to the discretion of trial courts under appellate court supervision." (Emphasis supplied.) ABA Commentary, § 4.7, p 107.

In interpreting and applying ORS 135.865, our cases have, at least partially, recognized the role of appellate court supervision. In State v. Addicks, 28 Or.App. 663, 560 P.2d 1095 (1977), an objection was made at trial to the introduction of exhibits on the ground that they had not been disclosed pretrial. Without inquiry or comment, the trial court overruled the objection. We reversed and remanded on the ground that neither the trial court's initial exercise of discretion nor our review thereof could be exercised in a factual vacuum. 28 Or.App. at 669, 560 P.2d 1095. Thus, Addicks requires that when a claim of a violation of the criminal discovery statutes arises during trial, the court must make a record or permit the parties to make a record of whether, in fact, the discovery statutes were complied with or not, the explanation for noncompliance, and the impact of noncompliance on the aggrieved party.

If the Addicks procedure establishes a violation of the discovery statutes, the question remains of fashioning an appropriate remedy. Our prior cases interpreting and applying ORS 136.865 may not have sufficiently considered the role of appellate supervision at this level. In some cases involving breach of the discovery statutes, we have affirmed suppression and exclusion of nondisclosed evidence. State v. Johnson, 26 Or.App. 651, 554 P.2d 624, Sup.Ct. review denied (1976); State v. McNamara, 23 Or.App. 475, 543 P.2d 14 (1975), rev'd on other grounds 274 Or. 565, 547 P.2d 598 (1976); State v. Wolfe, 21 Or.App. 717, 536 P.2d 555, aff'd 273 Or. 518, 542 P.2d 482 (1975). In other cases involving similar breaches of the discovery statutes, we have affirmed 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 the proper role of appellate courts to at least minimize inconsistent results in the application of a single statute by different trial courts.

The ultimate rule being statutory, we return to the legislative history noted above. The commentary to the ABA Standard, from which ORS 135.865 was derived, states:

" * * * (R)ights and duties are ephemeral indeed without remedies. Thus, by this standard, the Committee intends to emphasize that discovery rules must be enforced.

" * * * It was thought useful to suggest that explicit orders to disclose may be effective where persons affected fail to understand the more general provisions of a rule or statute. If the duty breached is clear, however, it would usually be inefficient as well as superfluous to issue further orders. Continuances should also be utilized where necessary if a party is surprised because of his adversary's failure to disclose. Beyond these two specific suggestions, the Committee is of the view that other specific suggestions would tend to limit the ingenuity of trial courts with respect to matters peculiarly suited to their judgment and administration.

"Section 4.7 was adapted from FED.R.CRIM.P. 16(g) (1966). The commentary applicable to the pertinent part of that rule is especially cogent:

" '(The rule) gives wide discretion to the court in dealing with the failure of either party to comply with a discovery order. Such discretion will permit the court to consider the reasons why disclosure was not made, the extent of the prejudice, if any, to the opposing party, the feasibility of rectifying that prejudice by a continuance, and any other relevant circumstances.'

39 F.R.D. at 178 (1966). * * * The Committee's general view, moreover, was that the court should seek to apply sanctions which affect the evidence at trial and the merits of the case as little as possible, since these standards are designed to implement, not to impede, fair and speedy determinations of cases. " ABA Standards, Commentary at 107-08.

The commentary to the Oregon statute adds:

" * * * Should the court find that nondisclosure is wilful, the court could consider that the withholding of evidence is contumacious, and the offending party might be punished for contempt." Commentary to Proposed Oregon Criminal Procedure Code 190, § 327 (1972).

This legislative history indicates that the various draftsmen intended: (1) trial courts would have discretion and could use ingenuity to fashion remedies for violation of the discovery statutes, subject to appellate court supervision; (2) that the extent of prejudice caused by nondisclosure would be relevant to the formulation of a remedy; (3) generally, an order to disclose and a reasonable continuance would be the most appropriate remedy in the majority of situations; and (4) that the sanction of ruling nondisclosed evidence excluded from the trial should be used only in the most extreme situations.

This legislative history furnishes substantial guidelines for the application of ORS 135.865. We add, for the sake of emphasis, a statement of our understanding of the concept of prejudice in this context. Every time there is a failure to disclose evidence subject to pretrial discovery, there will be some surprise and thus arguably some prejudice at trial. However, the general purpose of the Oregon criminal discovery statutes is to "minimize surprise." Commentary, Proposed Oregon Criminal Code 186, § 322 (1972). The operative word is "minimize," not "eliminate." Thus, the prejudice inquiry must first focus on the extent of surprise.

The record in the present case illustrates our point. Defense counsel had access to police reports that stated the names of the residents of the burglarized premises. However, for some reason, the prosecution failed to serve formal notice that it intended to call one of the residents as a witness. Genuine surprise, if any, resulting from this omission had to be minimal; it takes little imagination for defense counsel to anticipate that the residents of burglarized premises will be called as witnesses in a burglary trial. The record does not disclose a claim of actual surprise.

The second aspect of the prejudice inquiry is: What would the party to whom disclosure should have been made reasonably have done differently to prepare for trial had disclosure occurred? The record in this case also illustrates this point. In this court, defendant argues he was prejudiced by the nondisclosure of the state's intent to call the fingerprint-analysis witness, Mr. Lauer:

"The prejudice to defendant, in allowing * * * Mr. Lauer to testify, is readily apparent. The state's case stood or fell on the evidence of fingerprints found at the scene, later identified to be defendant's. Without the fingerprints, the state had insufficient evidence to connect defendant with the crime. * * * Mr. Lauer's testimony was necessary to identify the fingerprints as belonging to defendant. More crucial witnesses cannot be imagined."

True, Mr. Lauer's testimony was "prejudicial" to defendant at the time of trial. But that is not the appropriate inquiry for purposes of administering pretrial...