Defendant appealed his conviction for driving under the influence cf intoxicants, ORS 813.010, contending that the court erred by excluding the testimony оf one of his witnesses because he did not fully comply with ORS 135.835. We affirmed the judgment on the basis of our decision in
State v. Ben,
The record is very sketchy regarding the circumstanсes surrounding disclosure of the name and address of the witness whose testimony was excluded. The witness, Black-ford, was with defendant and two other рeople earlier in the evening that defendant was arrested and apparently would testify regarding defendant’s alcohol consumption or his state of intoxication. Defendant knew Blackford’s name and could locate his residence but did not know
On the morning of trial, but before it had commenced, the prosecutor objected to Blackford being called as a witness. The court recessed in order for thе prosecutor to interview Blackford. After he had talked to Blackford, the prosecutor moved to exclude his testimony, arguing that he had learned from Blackford that there were two other persons present on that evening and that the state was prejudiced by not being able to interview those persons. Defendant argued at trial that there was no discovery violation and, alternatively, that the сourt should not use the extreme sanction of excluding the witness. The court questioned Blackford and learned that he knew where the two оther persons lived and that they were in Redmond, a short distance from Bend, where the trial was held.
The court excluded the testimony, because defendant had known Blackford’s name and how to locate him since the time of defendant’s arrest and could have discovered and disclosed Blackford’s address much earlier.
Defendant first argues that there was no discovery violation, because his counsel gаve the prosecutor Blackford’s name before trial but did not, at that time, disclose Black-ford’s address, because he did not know it. He nеxt argues that, if there was a violation of ORS 135.835, exclusion of the testimony was not an appropriate sanction.
ORS 135.835(1) provides that the defendant shall disclose to the prosecutor the names and addresses of all persons the defendant intends to call as witnesses. The court found that, although defendant did not know Blackford’s actual address, he knew how to locate the residence and could have found the addrеss and provided it to his counsel. The statute requires both the name and address of the witness to be disclosed; there was evidence to suрport the court’s finding that the statute was violated.
If there is a discovery violation, ORS 135.865 gives the trial court a broad range of options tо remedy the violation. The statute vests broad discretion in the trial court in the choice of remedy. In
State v. Mai,
“There can be no denying that thе imposition of the preclusion sanction may result in the defendant’s being unable to call witnesses whose testimony might be relevant, materiаl and exculpatory. Therefore, the sanction should be imposed only when no lesser sanction would accomplish the aim of the statute, and then only if the state would be prejudiced if the witness or witnesses were permitted to testify even though the statute had not been complied with.”294 Or at 277 .
See also State v. York,
The prejudice that the state suffers from the discovery violation must be actual prejudice, not just a theoretical disаdvantage that arises because of a reduced opportunity to prepare for trial. In State v. Ben, supra, the Supreme Court held that a trial court must make a finding of prejudice and that that finding must be supported by evidence in the record. The court here made no particulаr finding but appeared to adopt the state’s claim of prejudice as a basis for precluding the witness. The question on review is whether the state’s claim of prejudice, in conjunction with the other circumstances of this case, justified exclusion.
The critical issue at trial was whether defendant was under the influence of alcohol. There was no issue whether he was driving the car. He had refused to submit to a blood alcohol test, so the only testimony offered by the state was by the arresting officer, who described defendant’s actions and gavе his opinion that defendant was under the influence of alcohol to a perceptible degree. Although there was very little description of what Blackford
The state’s claim of prejudice was not that it had had no opportunity to interview Blackford but that it had had no opportunity to interview other persons who were with defendant. The state made no claim that it would have interviewed Blackford before trial if his аddress had been disclosed, and it is not an obvious conclusion that such an inyestigation would have been done in this DUII case. The state doеs not disclose what information it could have obtained that would have been helpful to the prosecution by interviewing the two peоple. The best that can be gleaned from the record is that they could possibly confirm or contradict Blackford’s testimony. Prejudicе sufficient to justify preclusion of a defense witness must be more concrete. The court abused its discretion in excluding the testimony.
The statе argues that defendant has not demonstrated reversible error by showing that he was prejudiced by exclusion of Blackford’s testimony. It argues that he made no offer of proof and did not otherwise indicate what Blackford would say and how exclusion of that evidence would be harmful. 1 However, we can determine from the context of the discussion regarding the discovery violation and the state’s interview of Blaсkford what his testimony would likely be. In the context of this case, the evidence would be important to defendant in presenting his version of the facts. The exclusion of the testimony, in the light of the limited prejudice shown by the state, denied defendant a fair trial.
Reversed and remanded for new trial.
Notes
The prosecutor interviewed Blackford and was aware of how he would testify. If his testimony would not have helped defendant, and therefore would have been harmful to the state, one wonders why the prosecutor fought so hard to have it excluded.