*1 5,1986, 17, 1987 Argued submitted affirmed March November OREGON, STATE OF review, Respondent HIATT, EARL WAYNE on review. Petitioner S33110) (CC 85-195; A37976; SC CF CA P2d Defender, Salem, Alessi, argued L. Deputy Dianne Public petition With her on on review. petitioner the cause Defender, Salem. Babcock, Gary D. Public Terry Attorney Leggert, General, Salem, Ann Assistant argued respondent the cause for on review. Ransom, Blackman, and Marc D.
Lisa A. Maxfield Simson, Portland, & filed a brief amicus curiae on Blackman behalf of the American Civil Liberties Union. Jacobson, Lee
Steven Lawrence Matasar Janet Hoffman, Portland, filed a brief amicus curiae on behalf of the *2 Oregon Lawyers Criminal Defense Association.
JONES, J.
Campbell, opinion. concurring J., filed a
JONES, J. petitions convic- this court to reverse his Defendant Sodomy Degree Rape in the First First tions for Appeals alleges Degree. erred affirm- He that the Court psychologi- ing of both his motion for a the trial court’s denial the victim and his motion for cal examination continuance to examined the psychotherapist previously subpoena a who victim. affirm. We relationship charges defendant’s with The arose from daughter wife. Defendant married the child’s the mother in 1976. November sister) of his former They separated August In of 1982. (the her half- victim and the two children custody their mother were left in defendant’s because financially. support The children them was unable to remained with returned to their mother. February they 1983, when defendant until couple in October divorced returning mother, the victim traveled After to her her natural weeks in order to visit with Arizona for several father and his mother that she grand- parents. her In June she informed sexually had molested been custody. led to This information while she had been in his sole *3 by Oregon investigation Serv- authorities. The Children’s an (CSD) Department of Human Resources of the ices Division Attorney allegations reported of Umatilla to the District County County.1 Subsequently, Attor- District the Umatilla agency notify appropriate by law enforcement was bound statute to CSD reported abuse. part: provides in ORS 418.750 any “Any private having public cause to believe or official reasonable capacity suffered in in an official the official comes contact child with whom abuse, any person in in an official the official comes contact or with whom report report manner capacity to be made child shall or cause a has abused a
required in ORS 418.755.” Department 418.740(3) (e) employes designates Human Resources all ORS “public private or official[s].” provides part: ORS 418.755 telephone immediately by report otherwise to the “An shall be made oral agency any law enforcement Services Division or local office of the Children’s making report county person of the contact. is at the time where the
within * * * report by the division Services Division is received the Children’s When a county immediately notify agency where the within the a law enforcement shall report made.” was defendant. charges against these ney’s brought Office the child sub- trial, moved to have defendant Prior determine whether she examination to mit to a this testify as a witness. Defendant based competent history physical had a his claims that the child motion on (non-sexual) prob- her natural father and behavioral abuse facilities juvenile to her commitment lems which had led medications. The trial psychotropic use of prescribed and the motion, stating: judge denied this very is whether this
“The narrow issue before the Court psychiatric examination of the witnesses Court should allow * * * competency. Competency is ulti- their to determine alone, if mately to the Court these children are an issue represented, they’re presumptively age 12 and as has been competent. only incompe- thing
“The for the Court ever to determine witness, tency, perceived, having is whether can or not they things perceived. relate have in fact I think there’s those showing compelling been an insufficient circumstances to permit There is no evidence before this Court of [the motion]. — instability by girls certainly mental or emotional these corroborated, they whether or not their stories are whether — reported tardily, they changed whether their stories rather credibility, separate relate to is a issue which distinct competence. from event, any motion], “In should the Court allow which [the so, should,
I’m if declining to do I don’t see the Court how declines, girls mother of the the Court could it. how order Court, party “She’s not the before the so I have no author- ity appreciate I over her. that issue is not before the Court at time, certainly something this but it the Court should con- sider. So will be denied.” [the motion] case, made a
At the close of the state’s upon motion for a continuance. This motion was based the vic- began fact that defendant learned after the trial *4 tim had a examination nine months undergone prior requested to trial. Defendant a continuance so be sub- physician who conducted this examination could poenaed testify. The trial denied the motion as judge have untimely, noting proper procedure also that would petitioned discovery have been for defendant to the court earlier in the of the CSD files case. appealed, citing
Defendant was convicted and he
Appeals
error the denial of the two motions. The Court of
(1986).
App 277,
affirmed. 80 Or
part
pretrial discovery. Third,
whether
judge
denying
a
defendant a continuance to call
erred
reach the second
witness. We conclude that we are unable to
procedural background
of this case.
issue because
I. PSYCHOLOGICAL EXAMINATION
judge
Defendant and amici assert that a trial
inherent
to order a
examination
citing
complaining
in a criminal case. In addition to
witness
Clasey,
they rely
cases,2
on State v.
other state and federal
(1968),
Walgraeve,
328,
22,
v.
243 Or
Or
In this court wrote: “The authorities mandatory [requiring pretrial justify examination of rule alleged intent of State v. offenses]. victims of sex It was the mandatory Walgraeve Walgraeve rule. to refuse authority deprive to order intended to the court of the Clasey, This last sentence examination.” 23-24. upheld Clasey Walgraeve, In this court was incorrect. rape undergo victim to of a defense motion to order denial psychiatric reasoning adopted The court examination. expert Appeals the use of Court of the California District opinion expert’s credibility a witness based on on the change policy “a interview was fundamental out-of-court See, Benn, (DC 1973); 1127, 1130 e.g., Ballard v. n 12 United States 476 F2d Cir Court, 838, (1966); 159, 302, Superior State v. Rptr 410 P2d 64 Cal 2d 49 Cal Butler, 27 NJ 143 A2d 553-56
65 quot- Legislature.” 331, at 243 Or should come from the [that] ing (1965).3 Rptr Superior 291, Court, 44 294 Cal Ballard v. impose Walgraeve refusing court, in to a man- The datory pretrial psychiatric witnesses, rule examination for long-term the issue of the results concerned with broader was credibility allowing experts The make decisions. such to legislature to the to such decision court instead chose leave machinery fully investigative to evaluate “which has the specify operation.” proposal, 243 Or its and its mode of limits Rptr supra, quoting Superior 331, Court, 44 at Ballard v. Cal at Walgraeve competency speak The did not to decisions. 294. request was an examination as to the victim’s “character.” Clasey Walgraeve opinion; any language sug- misstated discretionary power undergo gesting a a order to to a witness credibility psychiatric competency, or other- examination for disregarded. should wise be subsequent Clasey, Walgraeve
In cases
to both
impotent
generally
this court
noted that trial courts are
to
specific
engage
to
order witnesses
conduct outside
legislative
In
rel
courtroom absent
authorization.
State ex
Roth,
636,
Roach v.
293 Or
Defendant asserts that source of trial authority is found in the order examinations provides only compe- Oregon that Evidence Code. The Code expert testimony may testify, 601; is tent witnesses OEC understanding evidence, 702; OEC admissible to assist relevant, and that is admissible when OEC evidence specifically recognizing provisions these While none of 3 reconsideration, Walgraeve v. in State was adhered to on decision 23, 412 328, 412 (1966), although Superior Ballard Court modified P2d P2d 609 appeal, Rptr P2d 2d 49 Cal Cal
allows a trial judge order a psychological examination out- court, side of defendant argues that such a implied is provisions. those He contends that if the responsible — for determinations of competency defined OEC 601 as — ability perceive and to relate perceptions those court must also be authorized to order a exam- ination to determine whether a psychological impairs disorder ability perceive reality, witness’s to recollect events or to communicate about them. persuaded by
We are not arguments. these The OEC provisions judge authorize to admit expert testi- mony in court and to exclude incompetent witnesses does not imply right to call on experts credibility to evaluate the *6 of competency witnesses in an proceeding. out-of-court 1.010, The defense specifies also relies on ORS which of the trial court to administer and business proceedings. provides: That statute
“Every justice power: court of “(1) preserve pres- To and enforce order in its immediate ence.
“(2) it, enforce in proceedings To order before or person body empowered judicial before a or to conduct a investigation authority. under its
“(3) provide orderly To proceedings conduct of before it or its officers.
“(4) decrees, compel judgments, To obedience its process, court, judge orders and in and to orders of a out of action, proceeding pending an suit or therein. “(5) control, justice, To in the conduct furtherance of any officers, persons its ministerial all and other in manner it, judicial every proceeding connected with a in matter before appertaining thereto.
“(6) compel testify persons To the attendance in an action, therein, proceeding pending suit or in the cases and provided by manner statute.
“(7) action, proceeding in To administer oaths an suit or therein, pending may in all other cases where it be neces- sary powers performance in the exercise of its of its added.) (Emphasis duties.” Olsen, 107, 663 P2d 767 ex Roach
In State
rel
extent of a trial
to evaluate the
opportunity
we had the
held that ORS
powers
subsection
We
court’s
under
pro
CSD to
1.010(5)
a trial court
order
not authorize
does
to a child witness. We concluded
a defendant access
vide
“
any
persons
’all
authority to control
other
trial court’s
it’ in sub
proceeding
with a
before
judicial
manner connected
not unless it has
(5)
[CSD],
least
does
extend
section
the case
duty in connection with
some official
undertaken
the court.”
There are alternatives to Any party examination. psychological mit to an out-of-court OEC may attacking competency. evidence a witness’s present may testimony and competency hearings be held 601. Pretrial to may incompetent. if a witness is found be be barred perceive a to and commu- abilities “Whether or witness’s competent under to make the witness nicate are sufficient the to determine under Rule Rule 601 is an issue for court (1982). 209 A 104(1).” Oregon psycho- Kirkpatrick, Evidence competency hearing a therapist may subject observe a See opinion regarding competency. an OEC expert offer equivalent exclude evidence not the power But a court’s to take outside the non-party a to action power compel to provided legisla- courtroom. Such must be denying ture.4 The trial court did not err in defendant’s compel to motion examination.
II. DISCOVERY OF CSD FILES requested Although parties we that the brief issue accessibility upon defendant, of the reviewing of CSD files to a criminal procedural impediments we record find prevent reaching us from that issue. prior
The record indicates that to trial the defense investigator requesting CSD, with communicated access to its regarding apparently files dant the victim. refused, CSD defen Attorney August
sent letter the District stating investigator that CSD had told the that access to the being Attorney. files on refused the advice of the District Attorney responded advising The District there had been with a letter order CSD
no to withhold the files from defendant, and that if CSD refused to release the files defen produc compel dant should make motion before the court compel; tion. Defendant did not make motion subpoena instead issued a duces tecum to the CSD social bring worker to the files to court the date of trial. appeared day The social worker on the first of trial with the files and did turn them over to Thus the defendant. ultimately requested, did defense receive information any delay was due to the failure of the defense to make a timely motion to the court.
III. THE DENIAL OF A CONTINUANCE day trial, On the first at the close of the state’s case-in-chief, defendant moved for a continuance. He stated they had he reviewed CSD files and discovered that contained a evaluation of victim that had performed requested been nine months earlier. Defendant physician performed continuance so that the exam- who subpoenaed testify. ination could be The trial denied untimely. this motion as Oregon legislature rejected proposed legislation has twice which would have (1985);
given judges authority. such HB HB *8 of a continu request the
The trial court’s denial of testimony proffered the ance was because justified to it be relevant the basis that would of the psychotherapist the of her credibility testimony only on basis child’s the her a witness on disqualify and not to psychiatric condition showing that made no incompetency. of Defendant grounds statements, testify prior to inconsistent the witness would The defense impeachment admissible evidence. bias or other attorney stated: * “* * case, report upon I the think bear does [T]his
probably jury to at least the doctor should go should the or testify as to his conclusions. testimony weight they go of
“I believe to the [the victim’s] he her things he when interviewed as to the observed [in] January year. of this State
“There has evidence that she has been been Hospital type of medication and suffer- has been on some ing type psychological from some of disorder. at time made
“We did not have that information we I think the bottom our motion for evaluation. line is that there was evaluation available weight.” of the facts as trier Walgraeve,
In State v. supra, specifically this court rejected testimony this to evaluate the cred- type expert ibility witness, stating: testimony psychiatric urged use in the manner
“The opinion of cases in which defendant would create class would, fact, credibility of witnesses. evidence determine the truth, jury is find its role is the function of a Unless jury obligation this Often the can meet devoid of substance. only by determining credibility jury The witnesses. society It system, imperfections, its has served well. with all yet psychiatry art of has been demonstrated that the not such basic developed exact as to warrant into a science so jury process.” intrusion into relevant, proffered not and the trial evidence was produce request denying
did err in defendant’s not credibility of the victim. testify as to the psychotherapist (wit- Middleton, (1983) See State v. Or 657 P2d to truth- ness, otherwise, may opinion as give expert witness). of another fulness Appeals
The Court of is affirmed.
CAMPBELL, J., concurring. Although I Olsen, dissented State ex rel Roach v. *9 (1983), 295 Or P2d Roth, and State ex rel Roach v. P2d opinion it is my those cases can distinguished be from this case and I therefore con- cur.