State v. Morrison
Citation | 575 P.2d 988,33 Or.App. 9 |
Parties | STATE of Oregon, Respondent, v. Larry Dean MORRISON, Appellant. |
Decision Date | 01 March 1978 |
Court | Court of Appeals of Oregon |
Deane Sterndale Bennett, Portland, argued the cause and filed the brief for appellant.
Kent B. Thurber, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Al J. Laue, Sol. Gen., Salem.
Before SCHWAB, C. J., and THORNTON and JOSEPH, JJ.
Defendant appeals his jury conviction from criminal activity in drugs. ORS 167.207. His principal assignment of error requires an analysis of the meaning of the term pretrial "written statements" of a witness, which ORS 135.815(1) requires the prosecution to make available for discovery by a criminal defendant. 1
Defendant and a companion furnished heroin to Robert Phillips, who had been hired jointly by the Hillsboro and Oregon State Police departments to make contacts with drug sellers, to purchase drugs and to cooperate with other officers in doing what was necessary to obtain convictions of the sellers, including testifying in court. The next day, Phillips made a writing concerning the transaction. During the suppression hearing Phillips testified that it was a complete summary of what had happened. He also testified that He said that the writing had contained abbreviations and in his opinion was not "decipherable" by anyone but himself.
About six weeks after the drug transaction, Phillips received a request from the district attorney for his "notes" concerning the drug purchase from defendant. In response, Phillips prepared a letter which contained an account of the transaction with defendant. Phillips testified that he used the original writing to prepare the letter, but the precise correlation between the two documents is not clear. At the suppression hearing he testified that he "improved upon" the original by writing words out fully, but that the contents were otherwise unchanged from the original. At trial, however, he admitted that he had added some "detail" when preparing the letter. After preparing the letter, Phillips lost or destroyed his original writing.
Defendant sought discovery of pretrial statements of all prosecution witnesses. Phillips' letter to the district attorney was made available. Phillips' original writing, having been lost or destroyed, obviously was not made available. Before trial defendant moved to suppress Phillips' testimony on the ground of violation of the discovery statutes. At trial defendant moved to strike Phillips' testimony on the same ground. Denial of these motions is assigned as error.
ORS 135.815(1) provides:
We have previously interpreted "written statements" as including things intended by their makers as an account of an event or a declaration of fact, but not including notes or rough drafts which are merely steps in the preparation of a statement. State v. Jackson, 31 Or.App. 645, 571 P.2d 523 (1977), rev. den. (1978); State v. Bray, 31 Or.App. 47, 569 P.2d 688 (1977). Under this standard, Phillips' original writing was not a statement within the meaning of ORS 135.815(1), but was more akin to notes or a rough draft the ultimate proof that Phillips did not intend it to be an account of an event or a declaration of fact being that he never submitted it to his supervisors as such, but instead redrafted it.
Indeed, the facts of this case are so similar to the facts of State v. Jackson, supra, that it would be possible to affirm with just a citation to our prior decision. But in view of the dissent in this case, we will reexamine the legislative intent expressed in ORS 135.815(1).
ORS 135.815(1) was derived from ABA Standards Relating to Discovery and Procedure Before Trial, § 2.1 (Approved Draft 1970). Commentary to Proposed Oregon Criminal Procedure Code 186 (1972). The commentary of the ABA draftsmen cites Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103 (1957), and the subsequent legislative adoption of the basic rule of that case, Crimes and Criminal Procedure Act, 18 U.S.C. § 3500, which requires disclosure of a witness's prior statements after he has testified at trial. The ABA commentary states:
" * * * (F)airness requires that the statements be disclosed during trial in any event * * * (and) if the disclosures are made prior to trial, the delays and attendant inconveniences occasioned by disclosures during trial will be avoided * * *. " ABA Standards at 56-58.
We interpret the ABA Standard as thus explained to be basically an adoption of the philosophy of the Jencks Act, with the modification that disclosure of statements should occur pretrial.
" * * * (W)e construe the statute (ORS 135.815(1)) to require production of any 'statement' which is intended by its maker as an account of an event or a declaration of fact. * * * " State v. Bray, supra, 31 Or.App. at 51, 569 P.2d at 690.
Under the Jencks Act, the federal courts have rather consistently held that notes and rough drafts subsequently transcribed and incorporated into a final report are not statements, as distinguished from the final report which is a statement. United States v. Carrasco, 537 F.2d 372 (9th Cir. 1976); United States v. Jiminez, 484 F.2d 91 (5th Cir. 1973); United States v. Terrell, 474 F.2d 872 (2d Cir. 1973); United States v. Spatuzza, 331 F.2d 214, cert. denied, 379 U.S. 829, 85 S.Ct. 58, 13 L.Ed.2d 38 (7th Cir. 1964). Different federal courts state the rule differently, with a variety of minor qualifications * * *
United States v. Terrell, supra, 474 F.2d at 877.
"* * * Moreover, in our opinion (18 U.S.C. § 3500) does not require government agents to preserve their notes after they have been transcribed and the reports checked for accuracy * * *." United States v. Spatuzza, supra, 331 F.2d at 218.
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...v. Taylor, 133 Or.App. 503, 509, 892 P.2d 697, opinion adhered to as modified 134 Or.App. 501, 895 P.2d 357 (1995); State v. Morrison, 33 Or.App. 9, 12, 575 P.2d 988 (1978); State v. Bray, 31 Or.App. 47, 50, 569 P.2d 688 (1977). We have also held that police notes are not discoverable when ......
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