637 P.2d 1305 | Or. Ct. App. | 1981
Defendant appeals his conviction for assault in the second degree.
On the evening of September 6,1980, the victim, Dr. Buchanan, attended a concert with his wife. Due to an asthma attack, he left in the middle of the concert and drove, by himself, to an ice cream parlor. He thought that ice cream might help relieve the asthma. He parked his car on the street near the parlor and started walking on the sidewalk toward the building.
Buchanan testified that he had a “vague recollection” of being “forced backward” as he passed a group of people walking in the opposite direction, when defendant, a
When Buchanan again awoke, he found that he was bleeding. He stumbled to a nearby parking lot, where he found officers of the Corvallis Police Department. He told them that he was trying to talk a man out of a fight when he was struck in the head with what he believed was a club. He confronted and identified defendant, who was then in custody, as his assailant.
Corvallis Police Officer Gunter had already encountered defendant near the scene. Defendant’s clothes were covered with blood, and he was staggering. When Gunter approached him, defendant fled but was later apprehended by Officer Cooksley. Cooksley testified that defendant was intoxicated. Investigations at the scene produced only two pieces of wood, which appeared to be the remnants of a single, club-like object, as possible weapons.
Buchanan testified that, as a .result of the blows, he continued to suffer from retrograde amnesia at the time of the trial. He also testified that, on the day he was attacked, he had taken four different types of medicine for treatment of asthma and high blood pressure. On that afternoon, he had consumed one or two alcoholic drinks; he also had drunk one beer before leaving the concert center.
Terry Gibson, an eyewitness, testified that she saw defendant and Leonard Ortega, his companion, remove a
Officer Cooksley testified that he spoke with Terry Gibson at the hospital emergency room immediately following the assault. He also testified that Gibson told him that Leonard Ortega was beating a man with a club and that defendant was kicking and hitting him. Gibson did not, at that time, say anything to Cooksley about defendant being armed with a weapon.
The state also called as a witness Paul Polasek, who was with defendant and Ortega before the assault occurred. Polasek testified that he saw defendant bump into a man near the ice cream parlor on the night Buchanan was assaulted and that he thought the bump was accidental. He testified that he then moved to the corner of the block. He said he thought he remembered Ortega walking over to the car but claimed he did not see and could not remember anything else about the incident. Earlier, Polasek had given a far more complete description of events to Cooksley. At trial he professed to recall very little.
The state also called Daniel Polasek, Paul Polasek’s father, apparently to explain why the younger Polasek claimed to recall so little of the incident. After Mr. Polasek stated his name and his relation to Paul Polasek, defendant raised the following objection:
“[COUNSEL]: Your Honor, I’m going to object to any testimony on behalf of this witness. We were not afforded an opportunity of notice by the state to know that he was going to be testifying today. I think that violates all normal rules of discovery. I do think that it may very well be prejudicial to the defendant’s case for denying us an opportunity to interview him prior to this hearing.”
As the state concedes, on defendant’s objection to Mr. Polasek’s testimony, the trial court should have inquired into the alleged discovery violation. State v. Addicks, 28 Or App 663, 560 P2d 1095, rev den (1977). In Addicks, the defendant objected to the introduction of certain photographs, arguing that the pictures had not been provided in pre-trial discovery. The trial court denied the objection without comment. We stated:
“This appears to us to constitute an exercise of will rather than an exercise of judgment and accordingly constituted an abuse of discretion. An initial determination as to whether defendant was in fact given discovery of the pictures and the prejudice he might have suffered as a result should have been made.” 28 Or App at 669.
In Addicks, we reversed and remanded for further proceedings. The trial court committed an identical error in this case.
The state argues that the error was harmless, citing State v. Van Hooser, 266 Or 19, 511 P2d 359 (1973). There the court held that a reviewing court may affirm despite error if 1) there was substantial and convincing evidence of guilt, and 2) the error committed was unlikely to have changed the result of the trial. 266 Or at 25-26.
As the foregoing extensive description of the evidence in this case shows, neither of the Van Hooser criteria is present here. The state’s key witnesses, Buchanan and Gibson, were both subject to impeachment — Buchanan because his memory was understandably hazy, Gibson because she was drinking and because she might be biased in favor of Ortega.
Reversed and remanded for a new trial.
ORS 163.175 provides:
“(1) A person commits the crime of assault in the second degree if he:
“(a) Intentionally or knowingly causes serious physical injury to another; or
“(b) Intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon; or
“ (c) Recklessly causes serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life.
“(2) Assault in the first degree is a Class A felony.”
ORS 135.815(1) 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 his possession or control:
“(1) The names and addresses of persons whom he intends to call as witnesses at any state of the trial, together with their relevant written or recorde statements or memoranda of any oral statements of such persons.”
ORS 135.865 provides:
“Upon being apprised of any breach of the duty imposed by the provisions o ORS 135.805 to 135.873, the court may order the violating party to permi inspection of the material, or grant a continuance, or refuse to permit the witnes to testify, or refuse to receive in evidence the material not disclosed, or enter sue other order as it considers appropriate.”
Defendant does not separately assign error to the admission of the contents of Mr. Polasek’s testimony.