State v. Morrison

Citation575 P.2d 988,33 Or.App. 9
PartiesSTATE of Oregon, Respondent, v. Larry Dean MORRISON, Appellant.
Decision Date01 March 1978
CourtCourt 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.

SCHWAB, Chief Judge.

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 "My notes just basically told where I went to. Like I went to the Gypsy. Where I met people at, at the Friendly Village and what names I have." 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:

"Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to the defendant the following material and information within his possession or control:

"(1) The names and addresses of persons whom he intends to call as witnesses at any state (sic) of the trial, together with their relevant written or recorded statements or memoranda of any oral statements of such persons."

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:

" * * * (D)efense counsel must be permitted to prepare adequately to cross-examine the witnesses against the accused * * *.

" * * *

" * * * (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.

We have previously suggested that "statements" within the meaning of ORS 135.815(1) and the ABA Standard from which it was derived may have been intended to have a broader meaning than the same term used in the federal Jencks Act. State v. Bray, supra, 31 Or.App. at 50, 569 P.2d 688. However, for present purposes whether written notes and drafts are statements we see no significant difference between the federal approach,

"The term 'statement' * * * in relation to any witness called by the United States means (1) a written statement made by said witness and signed or otherwise adopted or approved by him * * *." 18 U.S.C. § 3500(e)(1) (Emphasis supplied),

and our own prior approach,

" * * * (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 " * * * This court has several times held in varying contexts that the Jencks Act, 18 U.S.C. § 3500, imposes no duty on the part of law enforcement officers to retain rough notes when their contents are incorporated into official records and they destroy the notes in good faith. E.g., United States v. Covello, 410 F.2d 536, 545 (2d Cir. 1968), cert. denied, 396 U.S. 879, 90 S.Ct. 150, 24 L.Ed.2d 136 (1969) (good faith destruction does not require new trial; United States v. Jones, 360 F.2d 92, 95 (2d Cir. 1966), cert. denied, 385 U.S. 1012, 87 S.Ct. 721, 17 L.Ed.2d 549 (1967) (good faith destruction does not requiring striking agent's testimony). Here there was no suggestion or showing as in United States v. Lonardo, 350 F.2d 523 (6th Cir. 1965), that the notes were deliberately destroyed on the eve of trial and were substantially different in content from the formal report. * * *

"While, of course, it is difficult to prove such a difference absent the original notes, it is not impossible. Other evidence such as a stenographer's recollections can be adduced. E.g., United States v. Lonardo, 350 F.2d 523 (6th Cir. 1965). The courts have, in effect, given law enforcement agents a little leeway to destroy immaterial matter." United States v. Terrell, supra, 474 F.2d at 877.

"Defendants complain that enforcement of (18 U.S.C. § 3500) was thwarted when the FBI agents destroyed notes taken during interviews with witnesses. The agents testified, however, that the reports furnished defendants accurately reflected these notes and all the information contained in the notes was included in the reports.

"* * * 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.

"The case is not comparable to United States v. Lane, 6 Cir., 1973, 479 F.2d 1134, 1135-36, cert. denied, 414 U.S. 861, 94 S.Ct. 78, 38 L.Ed.2d 112, or United States v. Terrell, 2 Cir., 1973, 474 U.S. 872, 877, both of which are cited to us by the government. In those cases agents had destroyed their own rough notes after incorporating the substance of them into final reports. It may be that the * * * witness * * * who adapts a final report from preliminary memoranda will tailor his observations to fit his conclusion, but the danger is not nearly so great as when he revises the notes or the full statement of another. Cf. Palermo v. United States, supra, 360 U.S. (343) at 352-53, 79 S.Ct. 1217, (3 L.Ed.2d 1287). The benefits to defendants in those few cases in which revision produces substantial distortion may not justify the costs of retaining all rough notes in all cases. See United States v. Comulada, 2 Cir., 1965, 340 F.2d 449, 451, cert. denied, 380 U.S. 978, 85 S.Ct. 1343, 14 L.Ed.2d 272. Moreover, preliminary notes of an agent from which he later prepares a report are not statements as that term is defined in the Jencks Act. See State v. Maluia,...

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  • State v. Wrisley
    • United States
    • Oregon Court of Appeals
    • December 27, 1995
    ...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 ......
  • State v. Smith
    • United States
    • Oregon Court of Appeals
    • January 11, 1984
    ...assignment of error, defendant refers to "field notes." Police officers' fragmentary field notes are not discoverable. State v. Morrison, 33 Or.App. 9, 575 P.2d 988 (1978); State v. Bray, 31 Or.App. 47, 569 P.2d 688 (1977). Therefore, even if defendant is correct in his assertion that the o......
  • State v. Divito
    • United States
    • Oregon Court of Appeals
    • February 25, 1998
    ...of the discovery statute, such as rough notes and preliminary drafts, can present only a constitutional issue." State v. Morrison, 33 Or.App. 9, 17, 575 P.2d 988 (1978). In this case, Moore is the witness that the state intended to call, and the matter that defendant claims that the state w......
  • State v. Johnson
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    • Oregon Court of Appeals
    • February 7, 2007
    ...and "merely steps in the preparation of a statement," the state is not statutorily required to provide them. State v. Morrison, 33 Or.App. 9, 12, 575 P.2d 988 (1978). See also State v. Bray, 31 Or.App. 47, 50, 569 P.2d 688 In State v. Divito, 152 Or.App. 672, 955 P.2d 327 (1998), aff'd, 330......
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