State v. York

• Citation: 291 Or. 535,632 P.2d 1261
• Decision Date: 09 September 1981
• Docket Number: No. C80-02-30569,C80-02-30569
• Parties: STATE of Oregon, Respondent, v. Rosie Lee YORK, Petitioner. ; CA 17779; SC 27711.
• Court: Supreme Court of Oregon

Page 1261

632 P.2d 1261

291 Or. 535

STATE of Oregon, Respondent, v. Rosie Lee YORK, Petitioner.

No. C80-02-30569; CA 17779; SC 27711.

Supreme Court of Oregon.

Argued and Submitted June 3, 1981.

Decided Sept. 9, 1981.

Lawrence Matasar, Metropolitan Public Defender, Portland, argued the cause and filed a brief for petitioner.

James C. Rhodes, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol., and William F. Gary, Deputy Sol. Gen., Salem.

Before DENECKE, C. J., and TONGUE, LENT, LINDE, PETERSON and TANZER, JJ.

PETERSON, Justice.

Defendant appeals her conviction of theft and assault arising from a shoplifting incident after which she stabbed a store employee who confronted her. The case was tried to the court without a jury. She assigns as error the denial of her motion for mistrial based on claimed misconduct of the prosecutor in advising prospective witnesses that "it would be better if we didn't say anything" to the defense. The Court of Appeals, 51 Or.App. 155, 624 P.2d 660, did not express approval of the prosecutor's advice, but affirmed the conviction. ¹

The state called the store manager and the assault victim as witnesses. The manager testified that he refused to discuss the case with defense investigators before trial because it was "against store policy" to do so. The victim testified:

"Q (By defense attorney) Did somebody call you on the telephone, say that he was an investigator from the Public Defender's Office, that he represented a Ms. Rosie York and that he wanted to talk about this case with you?

"A (By Employe) Yes.

"Q What did you tell him?

"A I said, 'No, I won't talk about it until the trial.'

"Q Did somebody tell you to say that?

"A No.

"Q That was just your idea?

"A Yeah.

"Q Mr. Ortner never mentioned that to you?

"A (No audible response.)

"Q It's not a store policy or anything like that?

"A No. They said it would be better if we didn't say anything, but I wouldn't have anyway.

"Q Who said that?

"A The DA.

"Q (A deputy district attorney) told you that?

"A Yeah, he said specifically we had our choice whether or not we wanted to. And I chose not to.

"Q But he said it was better if you didn't say anything?

"A No, he didn't. He said he said

"Q Go ahead.

"A He said it was our choice whether we wanted to or didn't want to, and it was up to us.

"* * * .

"Q (By Defense Attorney) My question is: You said 'they' said that, meaning somebody from the District Attorney's Office said it would be better if you didn't say anything. We're just trying to find out if that's what they said. Who was the 'they'?

"A (By Employe) Uh-huh, they said that. The DA's Office, (a deputy district attorney) they told us. The DA's Office, * * * , who we had contact with. He said that it was our choice whether or not we wanted to say anything, that if we said anything, it can be used for us or against us at it's better off if we don't say anything until the trial, and then we talk about it then. And then it will come up then." (Emphasis added.)

Defendant's motion for mistrial was denied. Upon a motion for reconsideration, the prosecutor testified that he had told the two witnesses it was their choice whether to talk to attorneys for either side. He further testified that he could not and would not tell them not to talk to the defense. He denied telling the witnesses it would be better not to do so. The trial court nevertheless found:

" * * * The Court finds based on this record and I am not now trying to say verbatim what was said but the Court finds that the prosecutor did state to two prosecution witnesses that they might be contacted by defense counsel or representatives of defense counsel; that he told them that he was not telling them that they should not talk to the person, but that he did tell them that if they were interviewed, that their interview would either be taped or otherwise recorded and that their statements could be used against them at trial and that it would be better if they didn't say anything.

"Based on this entire record, the Court does not feel under these circumstances that that constitutes misconduct in this case and does not find that there is a basis for a mistrial and continues its decision as before. Therefore, the motion for reconsideration is denied." (Emphasis added.)

The finding of fact is binding on appeal. The conclusion that the prosecutor's act was not "misconduct" is a decision of law which is subject to appellate scrutiny. We allowed review to consider two questions: first, whether it is improper for a prosecutor to encourage a witness to refuse requests for interviews or information from the defense, and second, if this is improper, what remedies are available to the defendant.

I

It is improper for a prosecutor to instruct prospective

witnesses that they should not talk to the defense

A district attorney's duty to prosecute persons charged with crime does not authorize the prosecutor to frustrate, by improper means, the legitimate efforts of the defense to defend the case. Clearly, efforts of the defense to interview prospective witnesses are legitimate activities of a defense attorney. ² The pivotal question, and the principal issue in this case, is whether it is improper for a prosecutor to impede defense efforts to interview prospective witnesses by instructing them not to talk to the defense attorney, or as in this case, by telling them (as the trial court found) " * * * that it would be better if they didn't say anything."

Although no statute or rule expressly forbids such prosecutorial conduct, we believe that both statutory law and disciplinary rules, examined collectively, leave little doubt of this state's policy toward the principle of non-interference with defendant's access to witnesses. ORS 135.815(1) requires the district attorney, prior to trial, to disclose to the defendant materials of various kinds, including "(t)he names and addresses of persons whom he intends to call as witnesses at any state (sic) of the trial." The section continues by requiring the district attorney to disclose the written or recorded statements of such witnesses or memoranda of their oral statements. ORS 135.815(2). It hardly is consistent with the policy of this section to require the prosecutor to disclose to the defense the "names and addresses" of witnesses, on the one hand, and on the other, to authorize the prosecutor to encourage the witnesses not to be interviewed concerning legitimate defense questions bearing on the alleged crime.

Section DR7-103(B) of Oregon's Code of Professional Responsibility is addressed specifically to prosecutors and requires a prosecutor to "make timely disclosure" to the defense of the existence of any exculpatory evidence. DR7-109, more generally, forbids any lawyer either to suppress any evidence that either he or his client (in this case, the government) is obliged to reveal or produce, or to "advise or cause a person to secrete himself * * * for the purpose of making him unavailable as a witness." ³ A parallel policy not limited to litigation finds expression in DR7-102(A)(3). ⁴

We do not imply that the prosecutor in this case violated one of these disciplinary rules. If the issue were professional discipline, the rules would not apply beyond their terms, whatever the underlying policy. See In re Ainsworth, 289 Or. 479, 493, 614 P.2d 1127 (1980). But this perspective, appropriate when a professional license or reputation is at stake, does not mean that the rules have no underlying policy. Implicit in the rules, as in ORS 135.815, plainly is a policy favorable to access to witnesses and evidence and hostile to improper adversarial interference with such access. In the context of a criminal prosecution, this principle denies the state the right to discourage witnesses from telling the defense what they know.

We are mindful that some witnesses may decline to be interviewed by the defense. We do not hold that witnesses may be compelled to speak with the defense counsel prior to trial. Compare United States v. Long, 449 F.2d 288, 295-296 (8th Cir. 1971), cert. den. 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 247 (1972). We do not hold that the prosecutor must encourage witnesses to consent to being interviewed by defense counsel, or that it is improper for a prosecutor to advise prospective witnesses of their right to refuse to submit to a pretrial interview by the defense. Compare, United States v. White, 454 F.2d 435, 439 (7th Cir. 1971), cert. den. 406 U.S. 962, 92 S.Ct. 2070, 32 L.Ed.2d 350 (1972). We hold that a prosecutor should not improperly interfere with the effort by the defense to interview prospective witnesses by instructing them not to talk to the defense attorney or by telling them that "it would be better if they didn't say anything."

Criminal trials should be conducted fairly. Although the system may not always guarantee equal access to relevant evidence, our system certainly should not put a premium upon prosecutorial suppression of access to relevant evidence. The secretion of witnesses is expressly prohibited by DR7-109, and ORS 135.815 suggests the conclusion that the district attorney not frustrate the defense in the preparation of its case by preventing interview of important witnesses by the attorney for the defendant.

The following statement of the Supreme Court of Pennsylvania, made in a case in which the witness was willing to be interviewed, buy only if the district attorney consented, is in point:

"We are aware of no authority in the law which gives the district attorney the right, in general, to deny defense counsel access to the Commonwealth's witnesses. Under the ethical standards of our profession, in the absence of special circumstances to which we hereinafter allude, the consent of the district attorney should not be necessary to insure defense counsel's right to interview a...