State v. Wolfe

Decision Date16 June 1975
Citation536 P.2d 555,75 Adv.Sh. 2237,21 Or.App. 717
PartiesSTATE of Oregon, Respondent, v. Garrett Caner WOLFE, also known as Garrette Caner Wolfe, Appellant.
CourtOregon Court of Appeals

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

Timothy Wood, 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 THORNTON and LEE, JJ.

THORNTON, Judge.

Defendant was convicted by a jury verdict of theft in the first degree. On appeal he makes one assignment of error: The trial court erred in suppressing the testimony of two defense witnesses because defendant had not given the state notice that he intended to call them as witnesses.

During trial defense counsel attempted to call as a defense witness Frances Howard. The state objected on the ground that defendant had not complied with the provisions of ORS 135.835, which provides in part:

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

'(1) The names and addresses of persons, including himself, whom he intends to call as witnesses at the trial, together with relevant written or recorded statements or memoranda of any oral statements of such persons other than himself.'

After listening to arguments on the objection the court ruled that defendant had not given proper notice and refused to allow Howard to testify.

Later in the trial defendant called Shay Boyd as a defense witness. The state also objected to the testimony of Boyd on the ground that it had not been furnished the name of Boyd as required by ORS 135.835. The court refused to allow Boyd to testify for the same reason Howard's testimony was suppressed.

The state contends that there is no cognizable issue on appeal because after the court refused to allow the witnesses to testify defendant did not make an offer of proof in order to preserve this issue for appeal.

With respect to witness Howard the state is correct. We have examined the transcript, and we are unable to find an offer of proof as to Howard. However, with respect to Boyd, defendant clearly made an offer of proof to preserve this issue, as to Boyd only, on appeal:

'MR. JAMES: Your Honor, the reason I have asked to have just a moment to put something on the record is in connection with my calling Shay Boyd to the stand and not being able to continue with her testimony.

'I would like to state for the record what I anticipated her testimony would be.

'* * *

'This testimony was offered in impeachment of questions that were put to George Morton, Detective Morton from the Eugene Police Department on his direct examination the prior day.'

Turning our attention to the pretrial discovery statutes, we note that ORS 135.865 clearly authorizes the circuit court to suppress testimony by any witness if a party has failed to comply with the provisions of ORS 135.835. ORS 135.865 provides:

'Upon being apprised of any breach of the duty imposed by the provisions of ORS 135.805 to 135.873, the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify,...

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4 cases
  • State v. King
    • United States
    • Oregon Court of Appeals
    • July 25, 1977
    ...(1976); State v. McNamara, 23 Or.App. 475, 543 P.2d 14 (1975), rev'd on other grounds 274 Or. 565, 547 P.2d 598 (1976); State v. Wolfe, 21 Or.App. 717, 536 P.2d 555, aff'd 273 Or. 518, 542 P.2d 482 (1975). In other cases involving similar breaches of the discovery statutes, we have affirmed......
  • State v. Wolfe
    • United States
    • Oregon Supreme Court
    • November 14, 1975
    ...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 constru......
  • State v. McNamara
    • United States
    • Oregon Court of Appeals
    • December 8, 1975
    ...the prosecutor objected to the film's admission on this ground and the trial judge sustained the objection. In State v. Wolfe, Or.App., 75 Adv.Sh. 2237, 2239, 536 P.2d 555, 557, Aff'd. 75 Or. Adv.Sh. 3787, 542 P.2d 482 (1975), the court stated the applicable rule as 'It is within the discre......
  • State v. Johnson
    • United States
    • Oregon Court of Appeals
    • September 7, 1976
    ...refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate.' In State v. Wolfe, 21 Or.App. 717, 536 P.2d 555 (1975), this court held that the choice of sanctions to be applied following a violation of ORS 135.835 1 is a matter of discreti......

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