State v. Wyatt
| Decision Date | 01 December 2000 |
| Citation | 15 P.3d 22,331 Or. 335 |
| Parties | STATE of Oregon, Petitioner on Review, v. Ralph Adrian WYATT, Respondent on Review. |
| Court | Oregon Supreme Court |
Robert M. Atkinson, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the petition were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Per C. Olson, of Hoevet, Snyder & Boise, P.C., Portland, argued the cause for respondent on review. With him on the brief was Ronald H. Hoevet.
Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, LEESON, and RIGGS, Justices.1
The state seeks review of a Court of Appeals' decision reversing defendant's convictions for rape, sexual abuse, and delivery of a controlled substance. The Court of Appeals held that the trial court committed reversible error in excluding the testimony of defendant's expert witness as a sanction for a violation of the reciprocal criminal discovery statutes. State v. Wyatt, 155 Or.App. 192, 962 P.2d 780 (1998). Because we conclude that defendant did not preserve at trial the issue of the appropriate sanction, we reverse the decision of the Court of Appeals.
In preparation for defendant's trial, the prosecution obtained a written report and notes regarding certain physical evidence from Hormann, the state's DNA expert. The prosecution timely disclosed the report and notes to defense counsel, and its intention to call Hormann as a witness. After Hormann had testified on the second day of trial, defense counsel told the prosecutor that he might call Grimsbo, a forensic scientist, as an expert witness. He did not then disclose the nature of Grimsbo's anticipated testimony. Defense counsel had not listed Grimsbo on the defense witness list that he had provided to the state.
Early on the third day of trial, the prosecutor asked defense counsel whether he intended to call Grimsbo as a witness. Defense counsel responded that he did not think that he would call Grimsbo, but that he was "not certain." Later that evening, defense counsel left a recorded telephone message at the prosecutor's office to the effect that he would call Grimsbo as a witness. The prosecutor listened to that message at about 6:30 a.m. on the fourth day of trial.
When the trial resumed that morning, the prosecutor objected to Grimsbo's testimony "on the basis that it's a violation of discovery."2 The prosecutor noted that, because the state timely had disclosed Hormann's report and notes, as well as its intent to call her as a witness at trial, defense counsel had had ample time to prepare to cross-examine Hormann and to rebut her testimony. The prosecutor continued:
"And for us to adequately prepare for Mr. Grimsbo's testimony, it would necessitate having Mrs. Hormann here, at a minimum, and we have not prepared to do that because we didn't have anything but a possibility that [Grimsbo] may be called as a witness."
Defense counsel responded that, notwithstanding his receipt of Hormann's report and notes, "the clarity of the issue and the need for Mr. Grimsbo's testimony was not clear to me until after [Hormann] testified." At that time, defense counsel did not argue that there was no discovery violation or that there was no prejudice to the state. Defense counsel then made an offer of proof concerning Grimsbo's anticipated testimony. Thereafter, the court excluded Grimsbo's testimony as a sanction for defendant's discovery violation, explaining:
"[G]iven the stage of the proceedings, that the potential for Mr. Grimsbo's testimony should have been obvious earlier in the proceeding, there's a lack of notice to the State, and that evidence would be excluded."3
Defense counsel did not ask the trial court to consider alternatives to precluding Grimsbo's testimony. Defendant was ultimately convicted.
After judgment was entered, defendant moved for a new trial. That motion was based, in part, on the exclusion of Grimsbo's testimony. At the hearing on the motion, defendant asserted for the first time that the trial court had erred by not first considering alternatives to exclusion. The trial court denied defendant's motion.
On appeal, defendant assigned error to the exclusion of Grimsbo's testimony. He argued that there was no discovery violation, that there was no prejudice to the state, and that the trial court erred in failing to consider alternatives to exclusion. In the Court of Appeals, the state agreed that defendant had preserved the sanction issue at trial. The Court of Appeals assumed, without deciding, that defendant had committed a discovery violation and that the state would have suffered actual prejudice from Grimsbo's testimony. Wyatt, 155 Or.App. at 202, 962 P.2d 780. The court then concluded that the trial court erred in failing to consider whether the prejudice could have been remedied by a less onerous sanction. Id. After further concluding that the error was not harmless, the court reversed the judgment and remanded the case for a new trial. Id. at 204, 962 P.2d 780. We allowed the state's petition for review.
On review, the state argues that, rather than remanding for a new trial, the Court of Appeals should have remanded the case to the trial court for findings regarding whether a less onerous sanction was available. Defendant responds that the trial court could not conduct a suitable inquiry regarding the existence of a less onerous sanction at this time and, therefore, a new trial is the only appropriate remedy.
In so arguing, defendant primarily relies on two decisions of this court. State v. Mai, 294 Or. 269, 656 P.2d 315 (1982), involved a challenge to the constitutionality of the witness preclusion sanction provided for in ORS 135.865. In Mai, this court upheld a trial court's statutory right to exclude witness testimony as a sanction for a discovery violation in certain circumstances:
"[T]he preclusion sanction of ORS 135.865 is not inconsistent with Article I, section 11, of the Oregon Constitution,4 provided that the court finds that the prosecution is prejudiced by the defendant's failure to comply with the reciprocal discovery statutes, and provided further, that it appears that no sanction short of preclusion effectively will avoid the prejudice which the defendant's lack of compliance created."
Id. at 280, 656 P.2d 315. Thus, the court determined that two predicates are necessary for ORS 135.865 to be applied consistently with the Oregon Constitution: The trial court was obligated to make determinations regarding the existence of prejudice and the necessity of the preclusion sanction.
In State v. Ben, 310 Or. 309, 798 P.2d 650 (1990), the trial court excluded the testimony of a defense witness due to a discovery violation. This court agreed with the trial court that both the defendant and his counsel had committed discovery violations. Nevertheless, this court reversed the defendant's convictions, explaining:
Id. at 318, 798 P.2d 650. Ben illustrates this court's willingness to determine from the record, and in the absence of pertinent findings, that the trial court had failed to meet the requirements of Mai.
As the quoted material from Mai and Ben illustrates, defendant's reliance on those cases is understandable. However, an examination of the briefing in those cases establishes that a preliminary question—preservation—was not at issue in either case. That preliminary question is present here. Accordingly, before allowing the state's petition for review here, we requested briefing regarding whether defendant preserved at trial the issue whether the trial court considered the availability of a less onerous sanction and, assuming that that issue was not preserved, the effect of the state's failure to raise preservation as an issue to the Court of Appeals. We address those issues first.
Generally, an issue not preserved in the trial court will not be considered on appeal. Ailes v. Portland Meadows, Inc., 312 Or. 376, 380, 823 P.2d 956 (1991); State v. Abel, 241 Or. 465, 467, 406 P.2d 902 (1965); ORAP 5.45(2).5 Defendant contends that he preserved the sanction issue at trial "by opposing the [s]tate's motion to exclude [Grimsbo] and by making an offer of proof as to the witness's testimony." We understand defendant to argue that the question here is whether there was a discovery violation and that that question is broad enough to encompass everything from whether the trial court's finding of a discovery violation was correct, to whether the violation caused prejudice to the state, to whether the sanction imposed by the court was impermissible for any reason. The state responds that defendant did not preserve the dispositive issue that the Court of Appeals considered, i.e., whether the trial court erred in excluding Grimsbo's testimony. As noted, the state agreed before the Court of Appeals that defendant had preserved the sanction issue at trial. On review, however, the state now argues that a party may not waive, either by failing to raise or by conceding the issue, the requirement that the adversely affected party must preserve an issue at trial.6
In State v. Hitz, 307 Or. 183, 188, 766 P.2d 373 (1988), this court stated:
(Emphasis in original.)
Defendant relies on Stull v. Hoke, 326...
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