State v. Mai , 54 Or. App. 334 ( 1981 )

THORNTON, J.

Defendant was convicted after jury trial in the district court of driving under the influence of intoxicants, attempting to elude a police officer. The sole issue presented on appeal is whether the trial judge committed reversible error in refusing to allow testimony of defendant’s girlfriend as a penalty for the defense attorney’s violation of the discovery statute. ORS 135.835.¹

Defendant makes two main contentions, first, that no sanction was permissible since defense counsel’s misconduct caused the state no prejudice; and second, that this ruling violated his Sixth Amendment right to compulsory process.

The essential facts are as follows:

After the state had rested its case-in-chief, defense counsel informed the court that in addition to calling defendant, he intended- to call defendant’s father and defendant’s girlfriend as witnesses.² The prosecutor objected on the ground that defendant had not complied with ORS 135.835 by providing the prosecutor with the names and addresses of those witnesses. Defense counsel does not contest the fact that he failed without good cause to comply with the prosecutor’s pretrial demand for discovery.

In an attempt to remedy the problem created by the misconduct of defense counsel, the trial court stated:

"THE COURT: Mr. Schneider, I’m trying to devise a procedure whereby this witness might be allowed to testify. You have already acknowledged that you violated the discovery laws concerning the nondisclosure of this witness. Now, I’m trying to get enough cooperation out of you, if you’re interested in giving it to allow you to call that witness. Now, I will let you know plainly, sir, at this point, which is twenty til twelve, that we have nearly two hours between now and when we take up with your evidence, if you have any in this case. We will take up again with the matter of your violation of the discovery statute at 1:30. At that time I will, I will make inquire [sic] of the state’s attorney as to what attempts she has made to avoid any surprise and prejudice that’s been created by your, I think you called it, nonfeasance, and then we’ll take up the questions of whether or not you’ll be allowed to call that or any other witness that you have not disclosed to the state’s attorney in this case.

After the noon recess the prosecutor advised the court that she had been unable to interview defendant’s girlfriend or defendant’s father because defense counsel had instructed both of them not to talk to the prosecutor. After argument about whether the witnesses could testify, the court ruled:

"The court will accordingly rule that not only has there been a violation of the discovery statutes with respect to calling of the two witnesses but that the only reasonable course the court can take in view of the situation including conduct of counsel will be to direct counsel not to call them as witnesses. I further advise you * * * not to refer in any fashion to them by name or in any other way during the balance of this trial.”

Defendant’s request to make an offer of proof was denied.

ORS 135.865³ gives a trial judge broad discretion in the choice of sanctions which may be imposed in the event of the failure of a party to comply with the discovery provisions of ORS 135.805 et seq. In State v. King, 30 Or App 223, 566 P2d 1204 (1977), rev den 281 Or 1 (1978), we said:

"[The] legislative history [of ORS 135.865] indicates that the various draftsmen intended: (1) trial courts would have discretion and could use ingenuity to fashion remedies for violation of the discovery statutes, subject to appellate court supervision; (2) that the extent of prejudice caused by nondisclosure would be relevant to the formulation of a remedy; (3) generally, an order to disclose and a reasonable continuance would be the most appropriate remedy in the majority of situations; and (4) that the sanction of ruling nondisclosed evidence excluded from the trial should be used only in the most extreme situations.” 30 Or App at 228.

We then held that:

"* * * [N]o sanction for violation of the discovery statutes is warranted when the violation causes no prejudice in the preparation of the case for trial. * * *

"* * * [A] party aggrieved by a violation of the criminal discovery statutes who establishes substantial prejudice to the preparation of his case for trial is entitled to some remedy for the other party’s breach of statutory duty. * * *

"* * * [T]he selection of a sanction to be imposed upon the offending party is limited by the guidelines noted above. * * *” 30 Or App at 230.

It is undisputed that defendant’s attorney failed to furnish the names and addresses of witnesses in advance of trial as required by ORS 135.835. Further, it appears that in the course of trial and during a recess the defense attorney ordered defendant’s girlfriend and his father not to talk to the prosecution.

ORS 135.865 specifically authorizes the trial judge under these circumstances to refuse to receive in evidence the material not disclosed. In State v. Wolfe, 273 Or 518, 524, 542 P2d 482 (1975). Our Supreme Court said, inter alia:

"We agree with the Court of Appeals in its opinion in this case to the effect that its previous opinion in Curtis does not impose a requirement that a party to a criminal case may not object to the calling against him of a witness whose name has not been previously disclosed by the other party unless he can show that he would be prejudiced by the calling of that witness. Neither does Curtis require the trial court to make a finding of prejudice in such a case as a condition of sustaining an objection to the testimony of such a witness.”

The girlfriend was in effect a surprise witness.

The Supreme Court’s decision in Wolfe provides us with direct guidance here. In Wolfe, as in the case at bar, defendant had failed to give the State notice that he intended to call two defense witnesses. As a penalty for these violations of the discovery statute the trial court refused to allow either to testify at the trial. The Supreme Court affirmed on two separate grounds: As to the first witness, the court held that in the absence of an offer of proof, any error in the trial court’s refusal to admit the testimony was not a cognizable issue on appeal. As to the second witness, who was offered to impeach one of the State’s witnesses on a collateral point, the court held that the exclusion of this witness’ testimony as a penalty for violating the discovery statute was not reversible error where (a) defendant knew of the additional information to be supplied by the witness on the day before she was called, and (b) the offered testimony would not have been admissible anyway.

We find the case at bar to be an eminently proper case for the imposition of the sanction imposed by the trial judge. Defendant’s counsel admitted that he violated the discovery statute. The trial judge tried to give the defense an opportunity to rectify the situation so that defendant could still call his witnesses. This was by allowing the prosecution to talk to the witnesses during the recess. Instead of cooperating in the salvage effort suggested by the court, defense counsel ordered the two witnesses not to talk to the deputy district attorney. This was impermissible. See State v. York, 291 Or 535, 632 P2d 1261 (1981).

Because of defense counsel’s own actions in blocking any form of discovery and frustrating the efforts by the court to rescue the defense from its own predicament, defendant is in no position to complain on appeal.

The United States Supreme Court in U.S. v. Nobles, 422 US 225, 241, 95 S Ct 2160, 45 L Ed 2d 141 (1975), rejected the compulsory process argument by defendant where a trial court excluded testimony of a witness after defendant failed to meet discovery obligations. See also Wardius v. Oregon, 412 US 470, 474, 93 S Ct 2208, 37 L Ed 2d 82 (1973).

We need not consider whether it was error to deny defendant’s offer of proof as to the proposed testimony of defendant’s girlfriend since defendant does, not assign this as error.

Summarizing, we hold that under the facts presented the trial court did not abuse its discretion in refusing to allow defendant’s girlfriend to testify.

Affirmed.

1 ORS 135.835 provides:

"* * * [T]he defendant shall disclose to the district attorney * * *:

"(1) The names and addresses of persons, * * * whom he intends to call as witnesses at the trial, * * *.

«* * * *

2 Defendant proposed to call two witnesses, Miss Cansler, defendant’s girlfriend, and defendant’s father. The state objected to both witnesses. The father did in fact testify, and therefore the only assigned error is the ruling that Miss Cansler could not testify.

3 ORS 135.865 provides:

"Upon being apprised of any breach of the duty imposed by the provisions of ORS 135.805 to 135.873, the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate.”