State v. Liston

• Decision Date: 30 July 1974
• Citation: 523 P.2d 609,18 Or.App. 26
• Parties: STATE of Oregon, Respondent, v. James Robert LISTON, Appellant.
• Court: Oregon Court of Appeals

Page 609

523 P.2d 609

18 Or.App. 26

STATE of Oregon, Respondent, v. James Robert LISTON, Appellant.

Court of Appeals of Oregon.

Argued and Submitted May 24, 1974.

Decided June 17, 1974.

Rehearing Denied July 17, 1974.

Review Denied July 30, 1974.

George A. Haslett, Jr., Portland, argued the cause and filed the brief for appellant.

Jim G. Russell, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

FORT, Judge.

Defendant was convicted by a jury of the crime of first degree burglary. ORS 164.225. He appeals, asserting as sole assignment of error a ruling allowing a defense witness to be impeached upon rebuttal by a witness who was permitted to refresh his memory from a transcript made from a tape recording.

During the course of the trial the defendant called one Cromwell as a witness. Mr. Cromwell and the defendant had been arrested together, inside the building where and at the time the burglary charged was committed. Cromwell testified ¹ that he and 'another fellow' had committed the crime charged. He denied that this defendant had committed the crime with him or been in any way involved in it. On cross- examination he was asked if he recalled being interviewed in the Washington County Courthouse by a police detective, Jerry Sargeant, concerning the burglary charged, but he was unable to remember many of the details of the conversation. He testified on redirect examination that the conversation was tape recorded and that it took from 15 minutes to a half hour.

On rebuttal, the state called Detective Sargeant. He testified that he had conducted that interview with Cromwell, that it had been tape recorded, and that in the usual course of police department business the interview had been promptly transcribed. Viewing his testimony ² as a whole, we conclude, though inartfully expressed, it supports the conclusion that shortly following its transcription he had examined the typed interview, and, as transcribed, it then correctly reflected his memory of the interview. Thereafter, the tape was erased and reused in the normal process of police department activity.

He then testified that he had reviewed the 11-page transcription of the interview two hours before he was called to testify. The transcript was identified by him, marked as an exhibit and shown to both counsel who had it available for purposes of examination and cross-examination of Detective Sargeant. It was not offered as an exhibit by either party. Defendant objected at trial to its use for any purpose including its use by the officer to refresh his recollection prior to trial because the original tape had been destroyed, and because there was no certification of the transcribed statement.

ORS 45.580 provides:

'A witness is allowed to refresh his memory respecting a fact by anything written by himself, or under his direction, at the time when the fact occurred or immediately thereafter or at any other time when the fact was fresh in his memory and he knew that it was correctly stated in the writing; but in either case the writing must be produced, and may be inspected by the adverse party, who may, if he chooses, cross-examine the witness upon it, and read it to the jury. The witness may testify from that writing, though he retains no recollection of the particular facts; but the evidence shall be received with caution.'

In State v. Crater, 230 Or. 513, 517, 370 P.2d 700, 702 (1962), the Supreme Court said:

'There is no rule of evidence which precludes a witness from testifying merely because he refreshed his recollection from a written document of some kind prior to taking the stand. If it is shown that a witness's testimony consists of matter which he had forgotten and that the recollection of that testimony is made possible only by reference to a writing not prepared by him, the jury is entitled to take into consideration that fact when weighing the witness's testimony and, as preliminary matter, it is within the discretion of the trial court to exclude or strike such testimony if it appears that the witness's mind was not actually refreshed and that he was not, therefore, competent to testify. * * *' In its footnote, the court said:

'United States v. Riccardi, 174 F.2d 883, 889 (3d Cir. 1948); 'It is a preliminary question for his (the trial judge's) decision whether the memorandum actually does refresh and from the nature of the memorandum and the witness's testimony he may find that it does not.' McCormick, Evidence § 9, p. 17 (1954). * * *' 230 Or. at 517, n. 2, 370 P.2d at 702.

In Waterway Terminals v. P. S. Lord, 242 Or. 1, 406 P.2d 556, 13 ALR3d 1 (1964), the court discussed at length (pp. 55--61, 406 P.2d 556) the matter of Refreshing Witness' Recollection And Impeachment, and its relation to ORS 45.580. In the course of the opinion it stated:

'* * * In fact, it has been strongly suggested by this court that ORS 45.580 is applicable only where a memorandum is used as a record of past recollection and not for the purpose of reviving present recollection * * *.' 242 Or. at 57, 406 P.2d at 581.

In McCormick, Evidence 18--19, § 9 (2d ed 1972), the author states:

'The line between using the writing as an aid to memory and basing one's testimony upon it as a correct record of past memory is sometimes shadowy. Must it be shown that the witness has no present recollection of the matters embodied in the memorandum before he can use it as an aid to memory? It is sometimes said that this must appear, but it is believed that this requirement is unsound. The witness may believe that he remembers completely but on looking at the memorandum he would be caused to recall additional facts. As the Chinese proverb has it, 'The palest ink is clearer than the best memory.' On the other hand, there is here the ever-present danger that a suggestible witness may think that he remembers a fact because he reads it. It seems eminently a matter for discretion, rather than rule. Similarly, it would seem that a witness may recognize from present memory the correctness of successive facts set out in a memorandum, but that he may be unable, despite this recognition, to detail those facts from memory without continuing to consult the writing. Accordingly, the statement that a witness once refreshed must speak independently of the writing seems too inflexible, and it is believed that the matter is discretionary and that the trial judge may properly permit the witness to consult the memorandum as he speaks, especially where it is so lengthy and detailed that even a fresh memory would be unable to recite all the items unaided.'

We think the foregoing is consistent with the Oregon authorities previously cited and approve it. See also: Waterway Terminals v. P. S. Lord, supra, 242 Or. at 60, 406 P.2d 556, where the court quoted a portion of the foregoing reasoning with approval.

McCormick, Evidence 17--18, § 9 (2d ed 1972) points out that the rule provides two safeguards:

'* * * The first safeguard is the power of control by the trial judge. It is a preliminary question for his decision whether the memorandum actually does refresh, and from the nature of the memorandum and the witness's testimony he may find that it does not. Moreover, in the exercise of his discretion to control the manner of the examination, as in the case of leading questions, he may decline to permit the use of the aid to memory where he regards the danger of undue suggestion as outweighing the probable value.

'The second safeguard is the rule which entitles the adverse party, when the witness seeks to resort to the memorandum, to inspect the memorandum so that he may object to its use if ground appears, and to have the memorandum available for his reference in cross-examining the witness. With the memorandum before him, the cross-examiner has a good opportunity to test the credibility of the witness's claim that his memory has been revived, and to search out any discrepancies between the writing and the testimony. This right to demand inspection has usually been limited to writings used by the witness on the stand, but the reasons seem equally applicable to writings used by the witness to refresh his memory before he testifies. * *...