*1 15, Argued February and submitted 15, April May affirmed reconsideration denied petition only for review allowed first (289 337) points July two Or OREGON, STATE OF Respondent, HARTFIELD, CHARLES EUGENE Appellant. (No. 14132) 78-10-15935, CA
BUTTLER, P. J.
BUTTLER, P. J. appeals on two counts his conviction degree, in the second arson, one in the first and one degree burglary in violation in and for second 164.325,164.315 and The convictions ORS burglary 164.215. degree in the second the second in and arson degree entry store for were for unlawful shoe committing arson, for arson of that degree first store. He was convicted of arson placing nearby danger fire. home assignments Defendant raises a number of error. Although we conclude that it error to allow the handwriting expert state’s witness to base his improperly admitted, on documents which were require reversal, error was not such as we affirm.
Shortly midnight May after 11, 1978, fire was Kinney discovered Shoe Store at 1331 located persons Lombard, North Portland. Two were seen *3 emerging building shortly from the after the fire start- very burning building ed. Within a short time the was fiercely. The smoke was so a thick that house about feet from the hot, store was evacuated. The blaze awas dispute fast fire and there is no that arson was the cause. Losh,
Investigation Richard and led to defendant guilty plea negotiated second a whom the latter of prior degree Losh defendant. to trial of arson trial. chief witness at the state’s to him $250 offered that defendant testified Losh records and merchandise destruction of in the assist the manager, friend Kinney store store hired pending had audit and defendant, feared destroy contents. the store to defendant testified, fire, witness reading: before the The afternoon note his to door tacked he found gas. don’t can’s money buy "Here’s some you Rick OKsee it. light think about how forget to Jan Beach.” at Waddles 9:00 be Losh testified that he recognized the handwriting defendant’s and that he found the floor mat under $20 car, of his where defendant previously told him money for the purchases would be left.
With money Losh gallon two purchased five gasoline cans and filled them with He said he gasoline. met defendant at Waddle’s at Jantzen restaurant evening Beach that and they Kinney Shoe drove store. testified Losh defendant unlocked the back door with a which key, defendant given said was him the manager. inside, Once he poured and defendant gasoline throughout store, ignited Losh gasoline and he hasty and defendant made a exit. However, Losh bums hospitali- received his requiring zation.
Corroboration Losh’s testimony provided by state’s several witnesses. Two of them testified defendant had admitted guilt his That to each them. evidence alone was sufficient corroboration accomplice’s Howard, testimony. State v. (1958). One,
The state attempted accomplice’s corroborate the testimony tending further expert *4 prove that defendant wrote Losh. produced the note handwriting The expert, corporal Oregon a with the Police, compared handwriting State the on the note with employment applications Kinney Corpo- Shoe ration, store, a Naturalizer Shoe and documents kept
[642] Nordstrom’s, pur of which files all in from personnel signa handwriting to contain defendant’s ported defendant’s also with supplied ture. The witness form warning rights on a constitutional signature the by defendant handwriting exemplar written a custody,1 office after he was taken Fire Marshall’s exemplar. which was used as an neither of testified the by using employment The witness that that there as it his exemplars applications the had written strong possibility note; positive sure. He could not be he was 90% said he few. handwriting the were so samples handwriting compari- contends the compared improper son was because the witness writing handwriting samples the note the with on the objection admitted in evidence over defendant’s they or treated as were not "admitted ground [defendant]” ORS 42.070. required by as genuine That statute provides: may respecting handwriting also be
"Evidence given by comparison by witness skilled made matters, jury, or or writings these admitted genuine by against treated as whom party is evidence offered.” standard,
The statute sets a
strict
test is
raising
is to avoid
collateral
issues.
with a
exemplar
comparison
not whether
used for
writing
genuine,
party
is
whether
questioned
(the
whom the
is
against
evidence
offered
here)
treated
writing
genuine
admits
is
The state’s
circumstantial
evi
argument
such.
writings
supports
genuineness
dence
Tice,
The court in
point.2
beside
State
rules
460-61,
(1897),
reviewing
P 367
48
after
handwriting
exemplar
be
distorted
on that
too
was considered
purposes
comparison.
to be useful
2Handwriting exemplars
comparison if admitted or
are admissible for
offered, regardless
against
they
genuine
party
are
treated as
whom
purpose.
be
other
of whether
would
admissible
evidence for
(1896).
Co.,
Ins.
Munkers v. Farmer’s
any that we have been able to find. The tests of prescribed by the standard quoted the section must be held to exclude might permis- other that test be tests, sible Applying elsewhere. it these is clear that genuine Nancy ought will of M. Love to not have been admitted for instituting the sole of comparison signature between the alleged forg- with ed will her constituting signature mark her the true one. It does not appear from the that record admitted, defendant had nor is it that he shown treated, genuine writing; true will as a so it competent witness, was not admitting for the person matters, skilled in such the comparison.” institute In Oregon Cahill, 538, 544, State P2d 298 P2d (1956), cert den US 895 Court elaborated the statutory rule: signature by "It follows that a acknowledged genuine comparison to be is admissible for document, by experts questioned signa- with the but proven genuine tures to be 'admitted but not or genuine’ pur- treated as are not admissible for such pose. Whether this statutory is is restriction wise say. for us to The statute is of it valid violation legislative enacting was error. The purpose in fairly statute obvious. receipt signatures to be genuine comparison signa- claimed for with a false, be might ture claimed to lead an almost endless excursion jury collateral issues. first every would have resolve question contested genuineness signatures as to the offered for comparison safely before could for com- use them parison signature questioned on the docu- Signatures genuine conclusively proven ment. to be significant are as relevant and as purposes comparison, signatures as 'admitted treated genuine’ the defendant.
"The use of the comparison nine checks for error, they genuine, not because and not were not value, they probative because were without they forbid- of evidence simply type were grounds policy— the statute on the extrinsic den this case we of collateral issues. In the avoidance say genuineness the nine checks would established, re- conclusively but not in the manner * *”* quired statute. Thus, evi- matter the circumstantial strong no how in the was contained writing dence is that defendant’s documents, used improperly were employment never admitted comparison. Defendant had here *6 said that he treated they genuine, were nor can it be worked Evidence defendant had genuine. them as at the two of the stores and had for work applied may prove pertained third store tend to the documents him, they but do not that he treated establish handwriting on those as records his.
It follows that was error to have admitted used as exemplars expert’s documents3 and however, testimony Considering, based thereon. only this evidence was a small of that corroborat part alleged testimony, highly it is ing accomplice’s jury unlikely that error affected the outcome. had to believe Losh’s in order to convict defendant, corroborating and the other evidence was overwhelming guilt. of defendant’s support not require error does reversal.
We turn defendant’s remaining assignments error. of all requested
Prior to trial defendant had copies The district and statements of witnesses. police reports had from the inadvertently office omitted attorney’s containing report turned over defendant one reports Losh to of the Richard summary given by statement office. The from the Fire Marshall’s investigators records, 41.690. OES The documents were also admitted as business them, offered, however, any They proof as fact contained were not handwriting expert to them for permitting to refer for handwriting comparison purposes. as busi- admissible Even if were meeting records, they exemplars the test as could be used without ness 42.070. of OES omission discovered at during mid-trial cross- examination of the investigator, after Losh had and been examined and cross-examined. The court then compelled disclosure and gave statement defendant weekend in prepare which to additional cross-examination of Losh. The omitted statement was one, an important question is whether the trial court should have imposed or differ stringent more sanction, ent such as suppression testimony, of Losh’s as requested by defendant. Our written review of the report us persuades nothing there was could defendant have if done been supplied with the statement before trial: the substance of the Losh, report was what said defendant versa, vice and what the two of fail them did. We to see any investigation how upon based report could have accomplished useful no purpose, matter how much time he had.4 to talk to Losh refused or his prior counsel to trial. Under circumstances, the trial court’s of the matter handling and within appropriate his discretion. also claims the denial error trial court of requests tapes defendant’s at trial for testimony by girlfriend Richard Losh and his before *7 grand jury. argues knowing that not contents these witnesses’ grand jury testimony, he had no means to discover whether their testimony trial differed from it. This thwarted hope might have of testimony. their He impeaching rights contends that his to due of law to process confront witnesses against infring- him were thus ed.
Consideration of light this issue must be made in the "long established policy secrecy maintains grand jury proceedings,” ex Johnson v. State rel 883, Roth, 885, (1977), 276 Or P2d U. quoting 557 230 Gamble, 677, 983, S. v. & 2 L Procter 356 US 78 S Ct the time [4] Defendant relied on the fire. The friend an alibi: so testified. he was in Vancouver visiting a friend at (1958). in a discrete may Disclosure be had Ed 2d 1077 instances, of which one manner in certain and limited trial of a at a criminal testimony witness "when the is grand testimony before inconsistent his may be 886; at ORS ex v. Roth State rel Johnson jury.” 132.220(1). 135.855(l)(c) disclosure specifically forbids
ORS provides: That statute material defendant seeks. "(1) following information The material and subject discovery under ORS 135.805 not be shall to 135.873:
«sfí "(c) [*] # # Transcripts, ifc recordings or memoranda jury, except grand of witnesses before recordings made or of statements transcripts defendant.” Roth, atOr in State ex rel v. 276 Court Johnson 5, statute, however,
887, n
despite
noted that
testi-
jury
of grand
certain circumstances
disclosure
The court
be
mony may
constitutionally
compelled.
1194, 10
83,
v.
US
83 S Ct
Brady Maryland,
cited
373
Koennecke,
(1963),
2d
274 Or
L Ed
215
State v.
(1976),
App
P2d
v.
Cupp,
Hanson
(1971),
Those
312,
In his final assignment error, argues defendant the trial court should have granted defendant’s motion judgment for of acquittal on the burglary charge because, argues, the evidence established that no burglary was in fact committed.
The elements of second degree burglary are stated 164.215(1): in ORS person
"A commits the crime of burglary in the degree second if he enters or remains in a unlawfully building with intent to commit a crime therein.” argues Richard Losh, relied upon by state, establishes there was no unlawful entry because, to his testi according mony, defendant had been provided a to the store key by the manager, and had his permission to enter the building to bum it. If the owner had defendant given key with permission to enter for that purpose, defendant would have a point. But this is not such a Here, case. relies on permission by an agent of the owner to enter a building crime, committing known to be adverse to inter ests of the owner. According Losh, manager concerned about an audit his was about employer conduct and hired defendant to make it impossible the audit to be conducted. Not facts only do those negate any express authority in also agent, negate any implied apparent of the mana authority ger to permit entry for that State v. purpose. Keys, See (1966).5 P2d an character of 5Keys court, was decided a divided but has not been overruled. majority Keys While the rule enunciated supports our decision here, go There, we need not far so as the court did in that case. the owner of telephone booth, but, public generally booth invited the according majority, only telephone to use the in a lawful manner. Here, text, invite, tacitly permit, as noted in the the owner did not or even manager’s key night destroy to enter the store with the property, support any owner’s and the record does not inference that contrary. defendant believed to the *9 unlawful the is not less entry premises owner’s acting outside employees one of the owner’s the defendant authority of his invited scope destroy property. Losh inside to owner’s Affirmed.
GILLETTE, J., dissenting concurring part in part. save for its
I in all of the majority opinion concur burglary a ruling on whether question must enter or burglary, committed. To commit one I "unlawfully” building. remain in a ORS 164.215. not "unlawful.” entry would hold here was discloses, majority entry As the in this case means of a the defendant by key given was made "agent” and his someone —labeled an accomplice but in fact an majority accomplice —who and, entitled record here key to have so far as the shows, would himself have been entitled to enter such building at the time the defendant did. Under circumstances, I en- cannot see how the defendant’s to what inside —can try opposed he did once he was —as be called "unlawful.” The of this result anomaly that, highlighted giving fact instead of key, might other two the the man key who had the gone have there and taken the inside himself or two acts, I gone even alone and set the fire. Those submit, Yet, burglary. cannot be we here hold that legal equivalent burglary. them is majority Keys, relies State v. Or upon (1966). case, Oregon 419 P2d In that strange Court, vote, by a 4-3 held that one who Supreme entered into a the intent to break telephone booth with I thief, its open only burglar. coin box that, today, am were the same issue raised persuaded Court would have sense. Supreme better I dissent. respectfully