State v. Koennecke

• Decision Date: 29 January 1976
• Citation: 545 P.2d 127,274 Or. 169
• Parties: STATE of Oregon, Petitioner, v. Glenn Frederick KOENNECKE, Respondent.
• Court: Oregon Supreme Court

Page 127

545 P.2d 127

274 Or. 169

STATE of Oregon, Petitioner, v. Glenn Frederick KOENNECKE, Respondent.

Supreme Court of Oregon, In Banc.

Argued and Submitted Jan. 8, 1976.

Decided Jan. 29, 1976.

[274 Or. 170-A] W. Michael Gillette, Solicitor Gen., Salem, argued the cause for petitioner. With him on the brief were Lee Johnson, Atty. Gen., and Timothy Wood, Asst. Atty. Gen., Salem.

Dwight L. Schwab, Portland, argued the cause for respondent. With him on the brief were James C. Niedermeyer and Hutchison, Schwab, Burdick & Hilton, Portland.

TONGUE, Justice.

Defendant was indicted for attempted murder of a police officer by 'firing a high-powered rifle' at him. Defendant filed a motion to produce a large number of items, including the service revolvers of two other police officers who were involved in the exchange of shots that led to the charge. The court allowed that motion and subsequently ordered that these revolvers be delivered to defendant's attorney for a period of 30 days. The two police officers, to whom the revolvers belonged, refused to produce them under the terms of that order. The court then entered an order that the testimony of the two officers 'is inadmissible in any trial of the above entitled cause.' The state appealed from that order.

The Court of Appeals, in a divided opinion, held (1) that 'defendant had a right under appropriate circumstances to have his own qualified expert make such examination of the * * * guns * * * as was reasonably necessary to ascertain facts material to the charge'; (2) that the state was not excused from producing the guns by the refusal of the officers to cooperate 'except on their own terms;' but (3) that it was error for the trial court not to have exercised its power to 'supervise' the discovery by the entry of an order providing for the time, place or circumstances of the inspection of the guns when the parties could not agree upon these matters. ¹ Or.App., 75 Adv.Sh. 2581, 537 P.2d 1160 (1975).

We granted the state's petition for review of that decision because of the importance of two questions: (1) Whether the order precluding the testimony of the two officers was appealable by the state as an order 'suppressing evidence' made prior to trial pursuant to ORS 138.060(3); and (2) Whether the revolvers were properly subject to discovery.

1. The order suppressing the testimony of the police officers was an order 'suppressing evidence' under ORS 138.060(3).

ORS 138.020 limits appeals by the state in criminal cases to those allowed by ORS 138.060, which provides that:

'The state may take an appeal from the circuit court to the Court of Appeals from:

'(1) An order made prior to trial dismissing or setting aside the accusatory instrument;

'(2) An order arresting the judgment;

'(3) An order made prior to trial suppressing evidence; or

'(4) An order made prior to trial for the return or restoration of things seized.' (Emphasis added)

It is suggested that subsection (3) has application only to orders entered either in response to a 'motion to suppress,' as provided by ORS 133.673, or after an 'omnibus hearing' held, in accordance with ORS 135.037. Those contentions were considered by the Court of Appeals in State v. Hoare, 75 Adv.Sh. 699, 702--03, 20 Or.App. 439, 532 P.2d 240, 242 (1975), and rejected by it, holding that:

'Defendant's narrow interpretation of ORS 138.030(3)--founded on a distinction between 'pretrial motions' and mere 'preliminary objections'--is unwarranted. The state's right to appeal from '(a)n order made prior to trial suppressing evidence' is based on a statutory provision enacted some four years before ORS 133.673 and 135.037 were incorporated into the criminal code. * * *

'* * * (F)or purposes of determining whether the state may appeal an order 'suppressing' * * * evidence, the significant factor is whether the order has been made as the result of Some pretrial action by the parties. When a defendant raises an objection to evidence in advance of trial, he takes the risk that the state may have an opportunity to obtain review of an adverse decision it would otherwise be deprived of if the objection were made during the course of the proceeding. * * *' (Emphasis theirs)

We agree with that statement. We also believe that the application of this rule is not limited to cases in which an order to suppress evidence has been the result of an objection by the defendant to evidence in advance of trial.

As held by the Court of Appeals in State v. Robinson, 3 Or.App. 200, 210, 473 P.2d 152, 157 (1970):

'* * * The language of the statute in regard to orders 'suppressing evidence' is clear and unambiguous. * * *'

For these reasons, we hold that the order suppressing the testimony of the two police officers in this case was an order 'suppressing evidence' under ORS 138.060(3).

It is contended by the defendant in this case, however, that any error in the entry of this order was at most 'invited error' because it was the state's attorney who suggested to the trial court, after the two officers had refused to surrender their revolvers for a period of 30 days for testing, that the court enter such an order. Defendant also says that the state's attorney agreed in the trial court to be bound by the order suppressing the testimony of the two officers and thus should not be permitted to appeal from that order.

Upon examination of the record we find it to be true that this order was entered upon the suggestion of the state's attorney, who also agreed that the state would be bound by it. Under ORS 135.835 there were other options available to the trial judge, from which the state would have had no right of appeal, when he was confronted with the refusal of the officers to produce their revolvers for inspection and testing for a period of 30 days, as previously ordered by the court. The trial judge might well have chosen some other option, except for the suggestion by the state's attorney that under ORS 135.835 the court could refuse to permit the police officers to testify and that 'the state would be bound' by such an order. ²

Although the order suppressing the testimony of the two officers was an 'appealable order' by the state within the meaning of ORS 138.060(3), to hold that the state was entitled to appeal from that order under the circumstances of this case would permit the state to appeal from all orders requiring it to produce evidence by first refusing to produce that evidence, then suggesting to the trial court that it enter a subsequent order suppressing other evidence to which no pretrial objection had been made by the defendant, agreeing to be bound by that order, and then appealing from that order. Under these circumstances we hold that the state was not entitled to appeal from the order suppressing the testimony of the two police officers. ³

In the ordinary case, upon holding that an appellant is not entitled to appeal, it then becomes unnecessary to consider the merits of the case and the appeal is then dismissed. Because, however, this case comes to us on petition for review from the Court of Appeals and because one of the two reasons why we accepted the petition for review was our concern whether the opinion by the Court of Appeals correctly states the law on the question whether the trial court properly ordered the production of the two guns, we shall next consider that question.

2. The two revolvers in this case were not shown by defendant to be properly subject to discovery.

Defendant's motion for discovery in this case demanded the production of 22 items, including the service revolvers of two police officers and stated that it was 'based on Amendment VI to the Constitution of the United States and Brady v. Maryland, 373 U.S. 82, 83 S.Ct. 1194, 10 L.Ed.2d 215.'

As previously stated, the majority opinion by the Court of Appeals held that the state could not excuse its failure to produce the revolvers upon the ground that the officers refused to make their service revolvers available for test firing except upon their own terms. We agree with that holding.

We also agree with the holding by the Court of Appeals that when the attorneys for the parties were unable to agree upon the time, place and circumstances for the inspection of the items to be produced, the trial court should have intervened and should have entered an order fixing reasonable and necessary terms relating to the time, place and circumstances for such an inspection. The trial court had both the power and the duty to do so, not only to protect the rights of both parties, but also in order that the case might be brought to trial without unreasonable delay. ⁴ See State ex rel Dooley v. Connall, 257 Or. 94, 102, 475 P.2d 582, (1970), and ORS 135.845.

As also previously stated, the majority opinion held that 'defendant had a right under appropriate circumstances to have his own qualified expert make such examination of the * * * guns * * * as was reasonably necessary to ascertain facts material to the charge,' citing Brady v. Maryland, supra, among other cases. The opinion also appears to hold that disclosure would be required by reason of ORS 135.805, 135.815 and 135.845. We disagree with those holdings.

As stated by Chief Judge Schwab in his dissenting opinion, the rules governing the rights of discovery in criminal cases under Brady and these rights arising under ORS 135.805 to 135.873 are 'not necessarily synonymous.' Defendant's motion in this case is based specifically upon Brady, without reference to those statutes. In any event, they have no proper application in determining defendant's right to inspection of the two guns. ORS 135.815(4) requires the production for examination by the defendant in a criminal case of 'tangible objects,' such as guns, only when 'the district attorney intends to offer (the) evidence at the trial'; or when such objects 'were obtained from or belong to the defendant.' The state's attorney informed the trial court ...