Lead Opinion
In this сriminal case, the court is asked to construe ORS 135.815 (1997), which provides, in part:
“Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to the defendant the following material and information within the possession or control of the district attorney:
“(1) The names and addresses of persons whom the district attorney intends to call as witnesses at any stage of the trial, together with their relevant written or recorded statements or memoranda of any oral statements of such persons.”1
Defendant was charged with driving while under the influence of intoxicants (DUII). ORS 813.010. She seeks review of the Court of Appeals’ decision reversing the trial court’s pretrial order that excluded the testimony of a state’s witness as a sanction for an asserted violation of ORS 135.815(1) by the state. State v. Divito,
We take the following facts from the Court of Appeals’ opinion and from the record. A police emergency response operator (“9-1-1” operator) dispatched State Police Trooper Shephard to the scene of an accident. Trooper Moore also arrived at the scene. The troopers found defendant in an intoxicated state and arrested her for DUII. Following defendant’s arrest, Moore went into a nearby video store and spoke with the manager, Dean. Dean told Moore that an unidentified man had come into the video store and asked him to telephone 9-1-1 to report an accident. The man told Dean that, just minutes before, he almost had been hit by a woman on the road, and the man pointed to a car off the side of the road about 200 yards away. The man said that, after the near miss, he had looked to see if the woman was injured. The man said that the woman was intoxicated and that she kept mumbling that she had to get home. The man said that he had told the woman that she should not drive and that he would
Moore took notes of his conversation with Dean, but did not write a police report. Shephard’s police report, which the state furnished to defendant during pretrial discovery, contained information about Moore’s investigation, including the fact that Moore had contacted a video store clerk. However, Shephard’s report did not contain Dean’s name or address, or disclose what Dеan had told Moore.
Pursuant to ORS 135.815(1) (1997), the district attorney advised defense counsel that she intended to call Moore as a witness at trial.
While reviewing her case the night before defendant’s trial, the district attorney wondered why the police report contained nothing about any contact with a 9-1-1 operator. She telephoned 9-1-1 and reached a supervisor, who was able to retrieve information about thе call that the 9-1-1 operator had received on the night of the accident. Using that information, the district attorney was able to identify and contact Dean that night. Dean told the district attorney about the unidentified man who had come into the video store on the night of the accident and what the man had reported. At that time, the district attorney decided to subpoena Dean to testify about the unidentified man’s statemеnts as an “excited utterance.” See OEC 803(2) (setting out excited utterance exception to hearsay rule).
The next morning, during a pretrial hearing, the district attorney gavе defense counsel a written summary of the statement that Dean had made to her the night before.
Dean was the only witness at the pretrial hearing. He testified that, on the night of the accident, he had had a conversation with Moore and that Moore had made notes during their convеrsation. Insofar as the record shows, that was the first time that either the district attorney or defense counsel learned that Moore had made notes during his conversation with Dean.
The trial court ruled that the state’s failure to provide the defense with information about Dean’s identity and what Dean had told Moore was a discovery violation. We set out the court’s ruling at length, because it is pivotal to the appropriate disposition of this case. The trial court found:
“The District Attorney’s Office, in and of itself, did everything they could do, in a timely fashion once they were aware оf this information.
“The problem, I find is one created by the police officers in the beginning. The DA’s Office is in the position of having*324 to deal with what they get and not to create that which the investigating officers didn’t complete.
“The police are indeed a branch of the State, and to that extent, have some obligations in the discovery area similar to that which the State has.
“There is no mention of any kind, in any report made available to the defense, that anybody talked to, identified or discovered this critical witness * * *. [T]he evidence is that [Dean] was visited by some police officer who took notes that night. So [Dean’s] identity and the information he had to offer, was known to the State on the night of the event.
“Then, from my reading of the police reports, while it’s not crystal clear in there that there’s a dispatch call * * * there is some indicаtion in there that there was a dispatch call. The 9-1-1 tape is available to anybody * * *.
“So, the fact that there was a [Dean] at Hollywood Video could have been discovered by the defense as well. What could never have been discovered by the defense, without the police officer writing the proper report, is what [Dean] was going to say. * * *
“So, I find, first, a discovery violation, not the DA’s office, hut certainly thrоugh the police, who neglected to write a pretty critical piece of information up.”
(Emphasis added.) As a sanction, the court excluded Dean’s testimony about the unidentified man’s statements.
A divided Court of Appeals, sitting en banc, reversed. The majority concluded that the state had not violated ORS 135.815(1) (1997). Focusing on the phrase “relevant * * * statements * * * of such persons,” the court reasoned that “relevant statements” are statements pertaining
“[A]n officer’s notes become ‘relevant statements’ within the meaning of [ORS 135.815(1) (1997)] when they can be used for purposes of impeachment. In order for notes to be used for purposes of impeachment, they must be relevant to some witness’ testimony. In this case, Moore’s notes about his contact with Dean were not relevant to his testimony because the state did not intend to offer evidence about the excited utterance until it discovered the existence of Dean. When it made that discovery and formed the intention to call Dean as a witness, it complied with the discovery statutes.”
Id. at 683. Because the court concluded that Moore’s notes were not discoverable, it did not address whether the notes were within the “possession or control” of the district attorney under ORS 135.815 (1997).
Three members of the court dissented. The dissenters agreed with the trial court that the state had violated ORS 135.815(1). Id. at 684 (Armstrong, J., dissenting). The dissenters concluded that the legislature intended “relevant statements” in ORS 135.815(1) to have a much broader scope than the majority assumed:
“[T]he legislature intended ‘relevant written or recorded statements or memoranda of any oral statement of [persons to be called as witnesses]’ to include any information tending to prove or disprove the charges against the defendant[.]”
Id. at 686 (Armstrong, J., dissenting). We allowed defendant’s petition for review.
Defendant argues, as did the Court of Appeals’ dissenters, that the discovery rules should be read broadly to include any information tending to prove or disprove the charges against her. Defendant asserts that ORS 135.815(1) (1997) requires the state to disclose to a defendant either notes or complete reports of a police officer that memorialize what state’s witnesses said to the officer concerning the facts that gave rise to the prosecution of the defendant. Defendant
At the outset, we emphasize that the rules relating to reciprocal discovery are entirely statutory.
Turning to this case, the question presented is one of statutory interpretation. In interpreting a statute, this court follows the methodology set out in PGE v. Bureau of Labor and Industries,
This case is disposed of at that first level of analysis. By its terms, ORS 135.815 (1997) imposes discovery obligations only on the district attorney. Thе statute imposes no separate discovery obligations on the police. Moreover, ORS 135.815(1) (1997) does not require disclosure of material and information unless it is a name, an address, a written or recorded statement, or a memorandum of an oral statement.
The record shows that the district attorney was unaware of Dean’s existence until the night before trial and that she was unaware that Moore had made notes during his conversation with Dean until Dean testified to that effect at the pretrial hearing. The trial court implicitly accepted the district attorney’s good faith in the matter when it found that
“[t]he District Attorney’s Office, in and of itself, did everything they could do, in a timely fashion, once they were aware of this information.”
The court nonetheless found a discovery violation,
“not [by] the DA’s office, but certainly through the police, who neglected to write a pretty critical piece of information up.”
The trial court’s justification for invoking the sanction under the discovery statute was based entirely on the failure of the police to include certain information in the reports that they had submitted to the district attorney’s office.
Stating the trial court’s rationale in those bald terms leads to the following question: Where in ORS 135.815 (1997) (or in any other statute) is there a requirement that the police place certain information in their notes or reports, at the risk of having evidence suppressed if they do not? The answer is plain: There is no such requirement. Neither ORS 135.815 (1997) nor, so far as we are aware, any other statute imposes discovery obligations on the police. And, even if there were some other statute that imposed such a requirement, the court claimed authority to rule as it did only under ORS 135.815 (1997). It follows that the trial court acted on the basis of a misunderstanding of the law.
“In a prosecution, the prosecutor is responsible for evidence in the possession of the police. * * * And, of course, information that the prosecutor may obtаin directly is within the prosecutor’s ‘control’ as well, even if it was not in the prosecutor’s physical possession.”
Those statements are correct, but must be understood in their proper context.
In Warren, a criminal defendant sought discovery of a state agency’s files that contained memoranda of statements by witnesses. The state argued that, although the prosecutor was entitled by statute to request copies of the files, the prosecutor had not done so and, consequently, did not possess or control the files within the meaning of ORS 135.815 (1997). This court, in the passage quoted above, disagreed, concluding that the prosecutor’s statutory right to obtain access to the files amounted to “control” over the files under ORS 135.815 (1997). Significantly, Warren compelled the discovery of agency files that already existed. We do not read Warren to suggest that the state’s discovery obligation under ORS 135.815 (1997) includes a duty to expand the scope of existing documents, such as police reports, to incorporate additional information of which only the police are aware. The trial court’s reliance on Warren for the imposition of that kind of discovery obligation under ORS 135.815(1) (1997) was not justified.
The trial court erred in finding a violation of ORS 135.815(1) (1997) and in imposing a sanction based on that supposed violatiоn. Our identification of the trial court’s principal error means that the “relevant statements” issue over which the Court of Appeals divided need not be considered here. Although we express no opinion concerning the Court of Appeals’ rationale, we affirm the decision of that court to reverse the trial court’s order and to remand the case to the trial court for further proceedings.
Notes
ORS 135.815 was amended by the 1999 Legislature. Or Laws 1999, ch 304, § 1. The parties do not argue that that amendment affects the analysis or outcome of this case.
This case has proceeded on the theory that the unidentified man’s statements qualify as an “excited utterance.” Neither party has raised that question to this court, and we do not consider it.
Moore’s notes were not introduced into evidence at the hearing and are not part of the record.
ORS 135.845 provides, in part:
“(1) The obligations to disclose shall be performed as soon as practicable following the filing of an indictment or information in the circuit court ® ® ®.
“(2) If, after complying with the provisions of ORS 135.805 to 135.873, a party finds, either before or during trial, additional material or information which is subject to or covered by these provisions, the party must promptly notify the other party of the additional material or information.”
The trial court denied the state the benefit of a witness, rather than simply granting a continuance to permit the defense to prepare for the new evidence, based on this reasoning:
‘TUf we are ever going to get the reporting officers to do the job that I think the stаtute requires them to do so that the State can do the job that they’re required to do, it is not to set [the easel over to fix it.”
(Emphasis added.)
ORS 135.815(1) (1997) is derived generally from the more extensive provisions of the American Bar Association Standards Relating to Discovery and Procedure Before Trial, § 2.1 (approved draft 1970). The enumeration of discoverable material and information in ORS 135.815 (1997) is similar but not identical to the prosecutor’s disclosurе obligations described in § 2.1 of the ABA Standards. See John W. Osburn, Pretrial Discovery Under The Oregon Criminal Procedure Code, 10 Willamette L J 145 (1974) (reviewing each section of the pretrial discovery article and reflecting on some of the policy choices).
We express no opinion respecting what ruling would be appropriate if, on remand, defendant wishes to see a copy of any notes that Moore actually might have made of his conversation with Dean.
Concurrence Opinion
concurring.
I write separаtely to state the basis for my concurrence with the court’s disposition.
I agree that ORS 135.815(1) (1997) does not impose on police officers an obligation to incorporate into their police reports all pertinent information of which they are aware regarding a person who has witnessed or has information about a crime.
The trial court’s reliance on that reasoning obviated the need for it to address separately another question that defendant’s motion raised. That question is whether ORS 135.815(1) (1997) obligated the state to disclose Moore’s notes that he wrote during or after his conversation with Dean. Defendant’s discovery request sought any notes that Moore might have prepared. The trial court found that Moore had made notes of his exchange with Dean and that the information that Dean had related to Moore was critically important to this case.
My preliminary view is that Moore’s notes fall within the scope of ORS 135.815(1) (1997) because they constitute a “memorand[um] of [an] oral statement” by the state’s witness, Dean. Moore’s notes are “relevant” to defendant’s criminal proceeding, within the meaning of ORS 135.815(1) (1997), because the notes tend to make the existence of a fact that is of consequence to the determination of
Moore’s notes might have referred almost entirely to inculpatory information, but, under the discovery statute, that is beside the point. The notes were in Moore’s possession when defendant sought discovery of them and, thus, were within the prosecutor’s control even if not in the prоsecutor’s physical possession. See State v. Warren,
Hоwever, and assuming that my tentative view of the issue is correct, we cannot determine from the record whether the trial court would have ordered the same sanction solely for the state’s nondisclosure of Moore’s notes, because the trial court relied on another rationale. That fact precludes this court from affirming the trial court on an alternative decisional basis. Our decision reserves the questions of the discoverability of Moore’s notes and any potential sanction for nondisclosure for consideration by the trial court on remand.
For the foregoing reasons, I concur.
ORS 135.815(1) (1997) provides:
“Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to the defendant the following material and information within the possession or control of the district attorney:
“(1) The names and addresses of persons whom the district attorney intends to call as witnesses at any stage of the trial, together with their relevant written or recorded statements or memoranda of any oral statements of such persons.”