State v. Wolfe

CourtSupreme Court of Oregon
Citation75 Or. Adv.Sh. 3787,273 Or. 518,542 P.2d 482
PartiesSTATE of Oregon, Respondent, v. Garrrett Caner WOLFE, Petitioner.
Decision Date14 November 1975

John K. Hoover, Deputy Public Defender, Salem, argued the cause for petitioner. With him on the brief was Gary D. Babcock, cock, Public Defender, Salem.

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

Before O'CONNELL, C.J., and McALLISTER, DENECKE, TONGUE, HOWELL and BRYSON, JJ.

TONGUE, Justice.

Defendant was convicted of theft of a safe and contents from a store in Eugene. In appealing to the Court of Appeals he contended that the trial court erred in sustaining taining the state's objections to the testimony of two defense witnesses on the ground that the defendant had failed to comply with the requirements of ORS 135.835 by previously disclosing to the state the names of such witnesses.

The Court of Appeals affirmed the judgment of conviction. Or.App., 75 Adv.Sh. 2237, 536 P.2d 555 (1975). We granted defendant's petition for review because of concern whether, in reaching that result, the Court of Appeals properly construed and applied the Oregon criminal discovery statutes to the facts of this case.

1. Defendant's duty of disclosure.

The trial of this case began on Tuesday, July 16, 1974. On Wednesday, July 24, after five days of trial, the state rested its case. The defense called as its first witness Frances Howard. The state objected on the ground that defendant had not previously disclosed to the state the name of that witness, as required by ORS 135.835. In response the defense attorney stated that he told the prosecuting attorney 'yesterday that I intended to call a number of people, and I don't know whether I gave him the names.' The trial judge held that 'under the provisions of (ORS) 135.865, the court is going to refuse to permit the witness to testify.' The defendant made no offer of proof of what the witness's testimony would have been.

Under these facts we agree with the trial court and the Court of Appeals that under the terms of ORS 135.835, 135.845 and 135.865 the trial court was justified in invoking sanctions provided by ORS 135.865 for use in the event of violations of ORS 135.835 and 135.845. 1 The Court of Appeals was also correct in holding that in the absence of an offer of proof any error in the refusal of the trial court to permit this witness to testify, as provided by ORS 135.865, did not present a 'cognizable issue on appeal.'

A more serious question, however, is presented by defendant's contention that the trial court also erred in sustaining the same objection by the state to the testimony of a second witness, Mrs. Shay Boyd, in view of defendant's contention at the time that her testimony would be 'in rebuttal and impeachment of a state witness.'

The opinion of the Court of Appeals, in affirming the exclusion by the trial judge of the testimony of this witness and in quoting only the provisions of ORS 135.835(1), appears to hold that such a ruling was proper by reason of the provisions of ORS 135.835(1) and 435.845(1), under which a defendant is required to disclose to the state the names of persons 'whom he intends to call as witnesses at the trial' and to do so 'as soon as practicable following the filing of an indictment or information.' 2

It appears from a reading of the provisions of these statutes that, depending upon the facts of the particular case, these provisions of ORS 135.835(1) and 135.845(1) may have no proper application to a defense witness who is called to impeach the testimony of a state's witness. Thus, it may not develop until the trial is in progress that a state's witness has given testimony which is subject to impeachment by some person the defense had not previously intended to call as a witness.

It does not follow, however, that in such an event the defendant has no duty to disclose to the state the name of such a witness. ORS 135.845(2) provides that if a party finds 'either before or During trial, additional material or information which is subject to or covered by these provisions, he must Promptly notify the other party of the additional material or information.' (Emphasis added)

It appears from the record in this case that Mrs. Boyd was offered by defendant as a witness on Wednesday, July 24, and that upon objection by the state to her testimony the attorney for defendant made the following statement:

'I learned Friday, Your Honor, that there was a subpoena issued by the state for Mrs. Boyd.

'I learned from an interview with her of a conversation that had taken place between her and Officer Morton. I asked Officer Morton about that conversation while he was on the stand.

'There was no objection, I contacted Mrs. Boyd, and She has been here yesterday and today To testify in the case.

'It's in rebuttal and impeachment of a state witness.' (Emphasis added)

It also appears that it was on the previous day, Tuesday, July 23, that defendant's attorney had cross -examined Officer Morton about his conversation with Mrs. Boyd.

Under these circumstances, it appears that defendant's attorney learned of this 'additional material or information' on the day prior to calling Mrs. Boyd as a witness, at the latest, and did not then 'promptly notify' the state of his intention to call her as a defense witness, as required by ORS 135.845(2). On this basis we hold that the trial judge was justified in invoking sanctions provided by ORS 135.865 for use in the event of violations of ORS 135.845(2).

2. The exclusion of testimony as a penalty for violation of disclosure statute.

Defendant also contends in his petition for review that both the trial court and the Court of Appeals erred for the additional reason that to impose the extreme sanction of 'refus(ing) to permit the witness to testify' was improper in this case because the state made no showing that it would be prejudiced by permitting defendant to call Mrs. Boyd as a witness. Thus, defendant contends:

'* * * Refusal to allow a witness to testify is the ultimate penalty for failure to comply with the discovery provisions ans should be invoked only when a continuance or right of inspection would be perjudicial to the other party. Defendant was denied the right to present an effective defense, and the court abused its discretion by sustaining the state's objections upon no rational basis.'

In support of this contention defendant also says that Mrs. Boyd had been interviewed by the state and subpoenaed by it; that defendant's attorney thought that he had mentioned to the state attorney that he was going to call her, but could not be sure; and that, in any event, the state could not be prejudiced 'because they knew that she is a possible witness.'

Defendant supports this contention by citing State v. Curtis, 20 Or.App. 35, 530 P.2d 520 (1975), in which the Court of Appeals affirmed a conviction in a criminal case where the state had been permitted to call a witness whose name had not been previously disclosed to the defendant, pointing out that defendant made no claim of prejudice at the time of trial and holding that 'absent some showing of prejudice no reversible error was committed.'

We agree with the Court of Appeals in its opinion in this case the effect that its previous opinion in Curtis does not impose a requirement that a party to a criminal case may not object to the calling against him of a witness whose name has not been previously disclosed by the other party unless he can show that he would be prejudiced by the calling of that witness. Neither does Curtis require the trial court to make a finding of prejudice in such a case as a condition of sustaining an objection to the testimony of such a witness.

By the terms of ORS 135.865, broad discretion is conferred upon the trial court in the choice of sanctions to be imposed in the event of a failure to disclose the names of witnesses in a criminal case, contrary to the provisions of ORS 135.835 and 135.845. Thus, the statute provides that in such an event:

'* * * (T)he court May order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate.' (Emphasis added)

The presence or absence of perjudice is a most important factor to be considered by the trial court in exercising the discretion conferred upon it by ORS 135.865 in the choice of sanctions, particularly in imposing the extreme sanction of refusing to receive in evidence the material not disclosed. The terms of the statute, however, do not appear to make the presence or absence of prejudice a necessary factor in the exercise of the discretion conferred by the statute in the choice of any of the sanctions to be imposed by its terms.

As pointed out by the special concurring opinion, a possible problem may arise in the event that a defendant contends that to impose the sanction of refusing to permit a witness called by him to testify would violate his rights under the Sixth Amendment of the Constitution of the United States which provides that 'in all criminal prosecutions, the accused shall * * * have compulsory process for obtaining witnesses in his favor * * *.' 3

We need not decide that question in this case, however, because defendant made no contention that any of his constitutional rights were violated, either on trial, in the Court of Appeals, or in this court. See Delaney v. Gladden, 232 Or. 306, 374 P.2d 746 (1962).

A further reason why we need not consider that constitutional question in this case, even on our own motion, is that it appears from the record that the testimony of Mrs. Boyd would have been inadmissible even in the event that defendant had been permitted to offer...

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