Stevens v. Czerniak

• Decision Date: 05 February 2004
• Citation: 84 P.3d 140,336 Or. 392
• Parties: Gary Todd STEVENS, Petitioner-Relator, v. Stan CZERNIAK, Superintendent of Oregon State Penitentiary, Defendant Adverse Party.
• Court: Oregon Supreme Court

84 P.3d 140

336 Or. 392

Gary Todd STEVENS, Petitioner-Relator, v. Stan CZERNIAK, Superintendent of Oregon State Penitentiary, Defendant Adverse Party.

CC 99C20086; SC S50103.

Supreme Court of Oregon, En Banc.

Argued and Submitted November 7, 2003.

Decided February 5, 2004.

Kenneth Lerner, Portland, argued the cause and filed the briefs for petitioner-relator. Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for defendant-adverse party. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Marc Sussman, P.C., Portland, filed the brief for amicus curiae Oregon Criminal Defense Lawyers Association.

David Sugerman, Paul and Sugerman, P.C., Portland, filed the brief for amicus curiae Oregon Trial Lawyers Association.

KISTLER, J.

This mandamus case arises out of a post-conviction proceeding. Petitioner (the relator in the mandamus case) contends that the trial court impermissibly required him to rely on written submissions to prove his case and to provide pretrial disclosure of his expert witnesses' names and testimony. We conclude that the premise of petitioner's first objection—that the court required him to prove his case by written submissions—is not well taken. We agree, however, that the court lacked authority to order pretrial disclosure of petitioner's expert witnesses' names and testimony. We conclude that a peremptory writ should issue directing the trial court to delete or modify that portion of its order.

Although this litigation has a lengthy history, the dispute that gives rise to this mandamus proceeding can be summarized fairly simply. Petitioner filed a petition for post-conviction relief alleging that his trial counsel had been constitutionally inadequate. In an effort to make the hearing more efficient, the trial court limited the parties' ability to call witnesses at the hearing. The court directed the parties to submit their evidence in written form unless an assessment of a witness's credibility was necessary to resolve a factual dispute. Petitioner objected, explaining that his post-conviction case involved complex factual issues that should be explored through in-court testimony rather than written submissions. He also argued that the court's order impermissibly required pretrial disclosure of his expert witnesses' names and testimony.¹

To clarify its ruling, the trial court entered a trial management order and later an amended trial management order. After the trial court entered the amended trial management order, petitioner asked this court to issue an alternative writ of mandamus. Specifically, petitioner sought relief from the rulings in the amended trial management order that (1) "compell[ed] pretrial disclosure of attorney-client privileged information in the form of affidavits of expert witnesses' opinions and required deposition testimony"; (2) directed that "the record [be] held open after the trial date to permit Defendant-Adverse Party additional time in which to take further depositions and produce responsive evidence"; and (3) "refus[ed] Petitioner-Relator the right to present relevant live expert witness testimony at his post-conviction hearing."

This court issued an alternative writ of mandamus directing the trial court "to vacate the Amended Trial Management Order of December 2, 2002, and enter a trial management order consistent with the relief sought in the petition, or in the alternative to show cause for not doing so." In response to the alternative writ, the trial court issued a second amended trial management order. In a cover letter to counsel, the court stated that it believed that the second amended trial management order "is consistent with the relief sought in the Petition for Alternative Writ of Mandamus."

The second amended trial management order begins by reciting a series of findings. The fifth finding provides that, "[w]here a specific credibility question exists between two witnesses on a factual matter, live testimony will be allowed." The order then states in part:

"1. Petitioner's Motion for Reconsideration is granted in part. The findings and Orders announced on August 14, 2002 and on November 6, 2002 are clarified and supplemented as indicated herein.

"* * * * *

"3. The parties are ordered within 21 days to supply the court with the names of the witnesses to be called at trial. Counsel shall summarize the substance of each witness' expected testimony with an explanation of how that testimony relates to the issues raised by the pleadings. The summary will be used by the court in working with the parties to make a determination whether the witness should appear and testify in person, or whether a stipulation of counsel as to the witness' testimony can be achieved, or an affidavit of the witness would be sufficient.

"4. Prior to trial, opposing counsel may depose any witness who has provided an affidavit, and so perpetuate the witness' cross-examination for the consideration of the court at the post conviction trial. As in any other case, the court may order that the record be left open at the conclusion of trial for the receipt of additional evidence in the event of any unexpected or surprise witness.

"* * * * *

"7. At trial, testimony shall be presented in the form of affidavits, deposition testimony and live testimony as described herein, except as expressly provided otherwise by further order of this court, and upon good cause shown."

The trial court also issued an order vacating the amended trial management order and replacing it with the second amended trial management order.

Although the trial court thought that the second amended trial management order complied with the alternative writ, petitioner argues that it does not do so. He raises two objections to the order. First, he contends that the order impermissibly limits his right to call live witnesses. He argues that, under the terms of the order, he can call live witnesses only if an assessment of the witness's credibility is necessary to resolve a disputed issue of material fact. Second, petitioner argues that the second amended trial management order impermissibly requires pretrial disclosure of his expert witnesses' names and testimony.²

We begin with petitioner's first objection. Paragraph 3 of the second amended trial management order sets out a process for the court and counsel to follow in determining the form in which the parties will submit their evidence. That paragraph directs counsel to "summarize the substance of each witness' expected testimony with an explanation of how that testimony relates to the issues raised by the pleadings." The paragraph then provides that the summaries "will be used by the court in working with the parties to make a determination whether the witness should appear and testify in person, or whether a stipulation of counsel as to the witness' testimony can be achieved, or an affidavit of the witness would be sufficient."

Having considered the terms of the second amended trial management order, we conclude that it does not have the effect that petitioner perceives. Paragraph 3 describes a general process by which the court and the parties will work together to identify which testimony the parties will present through live witnesses, by stipulation, and in writing. Unlike the trial court's earlier orders, the terms of the second amended trial management order leave the result of that process open.

Petitioner argues, however, that we should read the order in light of the findings that precede it. As noted, one finding states that, "[w]here a specific credibility question exists between two witnesses on a factual matter, live testimony will be allowed." Given that finding, petitioner argues that the apparently open-ended process described in paragraph 3 will lead ineluctably to one conclusion: He may not call a witness to testify unless the witness's credibility bears on a disputed factual issue. Petitioner reads too much into the court's finding. That finding states one circumstance in which the court will allow live testimony; it does not exhaust those circumstances. Given the wording of the second amended trial management order,³ we decline to assume that the trial court will permit live testimony only in the one circumstance that it mentioned.

Petitioner also argues that we should read paragraph 3 in light of earlier statements that the court made. Those statements make clear, he contends, that the court will allow witnesses to testify only in very limited circumstances. The terms of the written order, however, control over the court's earlier statements. See State v. Swain/Goldsmith, 267 Or. 527, 530, 517 P.2d 684 (1974) (stating principle). Moreover, the court entered the second amended trial management order in response to the alternative writ and in the stated belief that the order complied with the writ. Even if we were to consider the order's context, we cannot ignore the fact that the second amended trial management order reflects the court's stated intent to provide petitioner with the relief that he sought in the alternative writ.⁴

In short, the second amended trial management order leaves the trial court with discretion to determine the form in which the parties will submit "each witness['s]" testimony; it does not predetermine how the court will exercise its discretion. We assume that, consistently with paragraph 3 of the second amended trial management order, the trial court will not impose the blanket limitation on calling live witnesses that the amended trial management order did. We also assume that the trial court will exercise sound discretion in implementing the second amended trial management order to ensure that the parties have a full and fair opportunity to present their evidence. At this point in the process, we cannot say that this aspect of the second amended trial management order is unlawful.⁵

Petitioner challenges a second aspect of...