State v. Spada

• Decision Date: 08 May 1979
• Citation: 286 Or. 305,594 P.2d 815
• Parties: STATE of Oregon, Respondent, v. George J. SPADA, Petitioner. CA 9090; SC 25763. . *
• Court: Oregon Supreme Court

Page 815

594 P.2d 815

286 Or. 305

STATE of Oregon, Respondent, v. George J. SPADA, Petitioner.

CA 9090; SC 25763.

Supreme Court of Oregon, In Banc. ^*

Argued and Submitted Oct. 10, 1978.

Decided May 8, 1979.

Susan Elizabeth Reese, Portland, argued the cause and filed a brief for petitioner.

Thomas H. Denney, 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.

HOWELL, Justice.

Defendant was charged with violation of the basic rule for travelling 56 miles per hour in a 30-mile per hour zone. The officer who issued the citation noted thereon that defendant's speed had been determined by radar. Prior to trial, defendant filed a motion for discovery requesting, Inter alia, disclosure of the repair and maintenance records for the radar device used to determine his speed. The prosecution refused to produce the records, and defendant filed a motion to dismiss the complaint "on the grounds that plaintiff did fail and refuse, without any excuse or just cause whatsoever, to comply with defendant's pretrial discovery demand * * * ."

The trial court heard arguments on the motion to dismiss and concluded that defendant had a right under "both state and federal due process" to obtain the radar records. Accordingly, the court ordered the prosecution to produce the records, and when the prosecution refused the court dismissed the complaint "in furtherance of justice" pursuant to ORS 135.755.

The State appealed to the Court of Appeals, which reversed, holding that defendant was not entitled to obtain the records in question absent a showing that the records would be favorable to his case and material to his guilt or innocence. 33 Or.App. 257, 259-60, 576 P.2d 33 (1978). We granted review. ¹

Defendant's sole contention on appeal is that he has a right to obtain the requested evidence under the fifth amendment to the United States Constitution. ² Defendant relies on Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and subsequent decisions of this court interpreting Brady. See State v. Koennecke, 274 Or. 169, 545 P.2d 127 (1976); State ex rel. Dooley v. Connall, 257 Or. 94, 475 P.2d 582 (1970).

In Brady v. Maryland, supra, the United States Supreme Court held that

" * * * (T)he Suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87, 83 S.Ct. at 1196-1197 (emphasis added).

The federal constitution, as interpreted in Brady, prohibits the "suppression" of evidence "favorable" to the accused. The State contends that absent a showing that the evidence requested in this case would In fact be favorable to the defendant, he has no right to pretrial discovery of such evidence. We do not reach the question of what showing the defendant would be required to make to obtain this evidence under Brady, however, because we conclude that under Oregon statutory law, there has been no "suppression" of evidence.

In a letter to counsel following oral argument in this case, we requested that the parties examine certain Oregon statutes to determine whether the evidence sought by defendant might not be obtained by means other than a claim under the federal constitution. In response, the State agreed that the statutes afforded the defendant a right to the evidence, but noted that defendant did not pursue the procedures mandated by these statutes. Defendant, on the other hand, while conceding that the statutes "may well" be applicable, argued in effect that we need not reach any statutory issue in this case because the case can be disposed of on constitutional grounds. ³

Defendant puts the cart before the horse. It is basic that determination of Oregon statutory law is antecedent to any claim under the federal constitution, because the State does not violate any of a defendant's constitutional rights if, under this court's interpretation of the controlling statutes, those rights are in fact protected. State v. Scurlock, 286 Or. 277, 593 P.2d 1159 (1979); State v. Flores, 280 Or. 273, 282, 570 P.2d 965 (1977) (Linde, J., dissenting). Nor can the parties foreclose an appellate court from consulting statutory law simply by limiting their arguments on appeal to constitutional issues. ⁴

The State concedes that the records defendant seeks in this particular case could have been obtained by means of a subpoena duces tecum pursuant to ORS 136.567 and 136.580. ⁵ The State also concedes that the records are subject to disclosure pursuant to the Public Records Inspection Act, ORS 192.410-.500. ⁶ It follows that there has been no "suppression of evidence" in this case, and the trial judge therefore should not have dismissed the complaint on that basis. If defendant wishes to obtain the radar records in question, he need only follow the procedures provided by the statutes.

The decision of the Court of Appeals is affirmed, but for the reasons stated in this opinion.

* Holman and Bryson, JJ., did not participate in this decision.

1 We originally granted review in this case because of a concern that the Court of Appeals had established an unwarranted limitation on the due process right of an accused in a criminal case to obtain evidence in the hands of the prosecution. See State v. Michener, 25 Or.App. 523, 532, 550 P.2d 449 (1976) (requiring that a defendant establish by "concrete evidence" that the requested evidence would be favorable to his cause). For the reasons stated below, we are precluded from reaching that...