State v. Hartfield , 290 Or. 583 ( 1981 )

LENT, J.

There are two issues. The first is whether, after a witness has testified on direct examination by the state, the defendant is entitled to hear an existing tape recording of that witness’s testimony given in the grand jury proceedings that led to the return of the indictment upon which trial is held. We hold the defendant is so entitled. The second issue is whether one may be found guilty of the crime of burglary when, outside of business hours, he enters a retail store intending to commit arson of the store owner’s property, but the entry was invited by the manager of the store, to whom the owner had entrusted regulation of entry to the premises. We hold that one may be found guilty.

FACTS

On May 11, 1978, fire engulfed a Kinney Shoe Store in North Portland. Investigation led to one Richard Losh who had been hospitalized shortly after the fire for bums to his arms and upper body. Losh later negotiated a guilty plea to second degree arson, testified before the grand jury leading to the indictment of defendant, and subsequently testified as the state’s chief witness at defendant’s trial.

Prior to commencement of the trial defendant attempted to depose Losh, but Losh declined. Defendant also sought disclosure of the grand jury testimony of Losh and production of the prosecutor’s records of the investigation of the fire. The prosecutor supplied certain records, but omitted written reports by investigators of conversations and interviews with Losh and refused to disclose tape recordings of Losh’s grand jury testimony.

At trial Losh testified that he and defendant gained entry to the Kinney Shoe Store by means of a key given to defendant by the store manager for the purpose of setting fire to the business to destroy inventory and records prior to an upcoming audit. Losh related that he had used money given to him by defendant to purchase gas cans and gasoline which served as the incinerant to start the fire, that he and defendant had set the fire and that he received $200 for his participation in the arson.

The trial judge, after Losh had testified, ordered disclosure of the written reports of investigatorial interviews with Losh and gave defendant the weekend to peruse the reports and prepare for cross examination but refused defendant’s request for production of the tapes of Losh’s testimony before the grand jury.

Defendant was convicted of arson in the first degree, arson in the second degree and burglary in the second degree.¹ The Court of Appeals affirmed the convictions. State v. Hartfield, 45 Or App 639, 609 P2d 390 (1980).

I. Production of Grand Jury Tapes

The state contends that the trial court did not err in refusing to permit inspection of the tape of Losh’s testimony. The argument made in support of that contention rests upon ORS 135.855(l)(c), which provides:

"(1) The following material and information shall not be subject to discovery under ORS 135.805 to 135.873:

« * * * * *

"(c) Transcripts, recordings or memoranda of testimony of witnesses before the grand jury, except transcripts or recordings of statements made by the defendant.”

The state claims that this statute reflects a long established policy that maintains the secrecy of grand jury proceedings and cites State ex rel Johnson v. Roth, 276 Or 883, 557 P2d 230 (1976), as authority for that claim. In a sense, Roth may be read as so describing ORS 135.855(l)(c), but we believe a closer analysis reveals the true place of ORS 135.855(l)(c) in the statutory scheme.

In Roth this court noted the existence of a policy long established by the courts to maintain the secrecy of grand jury proceedings. We further noted that the statutes seek to preserve that policy and cited ORS 132.060,132.210 and 132.220. ORS 132.060 prescribes the form of oath to be administered to the members of the grand jury, and the oath provides, in part, "that you will keep secret the proceedings before you.” ORS 132.210 provides:

"A grand juror cannot be questioned for anything he says or any vote he gives, while acting as such, relative to any matter legally pending before the grand jury, except for a perjury or false swearing of which he may have been guilty in giving testimony before such jury.”

ORS 132.220 provides:

"A member of a grand jury may be required by any court to disclose:

"(1) The testimony of a witness examined before the grand jury, for the purpose of ascertaining whether it is consistent with that given by the witness before the court.

"(2) The testimony given before such grand jury by any person, upon a charge against such person for perjury or false swearing or upon his trial therefor.”

In Roth we took note that ORS 135.855(l)(c) was a rejection of a proposal to "broaden” the opportunities for discovery of grand jury testimony and that ORS 135.855(1) reflected the policy already statutorily prescribed by ORS 132.220. We noted the official commentary of the Criminal Law Revision Commission contained in the Proposed Oregon Criminal Procedure Code, Final Draft and Report ("Report”), November, 1972, at page 190:

"Subsection (l)(c) is based upon the present secrecy oí grand jury proceedings, as prescribed in ORS 132.220.” (Emphasis added.)

Exceptions to the secrecy requirements of ORS 132.220 had existed long prior to the enactment of ORS 135.855(l)(c). As we observed in Roth:

"However, disclosure of the testimony of witnesses called before the grand jury may be permitted in three instances: (1) when the testimony of a witness at a criminal trial may be inconsistent with his testimony before the grand jury, ORS 132.220(1); (2) when a witness is charged with perjury, ORS 132.220(2); and (3) when permitted by the court in the furtherance of justice, Gowin v. Heider, 237 Or 266, 286, 386 P2d 1, 391 P2d 630 (1964)[.]”

276 Or at 886. The "furtherance of justice” exception is not some recent judicial gloss upon ORS 132.220. That section comes from Deady, General Laws of Oregon, Criminal Code, § 58,² which was considered by this court in this respect in State of Oregon v. Moran, 15 Or 262, 14 P 419 (1887). The issue was phrased by the court:

"It therefore becomes necessary to determine whether or not it is competent for the trial court, in the exercise of a sound judicial discretion, to allow a grand juror to testify as to matters which transpired before that body, when, in the opinion of the court, the ends of justice require it.” (Emphasis added.)

15 Or at 273. Etelying upon § 58 and cases from other jurisdictions and upon a quote from a treatise, this court resolved that the grand juror should be allowed to testify.

In 1 Bishop on Criminal Procedure, § 859 (2d ed 1872), the author is concerned with the oath of secrecy taken by a grand juror and concludes the discussion as follows:

"* * * If we look at the principle on which this question rests, we have the following. The reasons which require the secrecy are of a nature looking to the public good; because, if the grand jury could leave their room and disclose what they are doing, defendants who had not been arrested could make their escape; and because, also, persons would be deterred from voluntarily going forward and informing of crime before them. But when the reasons for keeping the testimony private have passed away, the obligation of secrecy would seem to have ended also. Yet when, in addition to this, the claims of public justice must go unsatisfied unless the disclosure is made, the same reason which originally required secrecy requires that the secret be no longer kept. The result, on the whole, is, that, in matter of principle, the disclosure should never be made except in obedience to a duty; but, when, after the offender has been arrested, some demand is made on behalf of public justice, or there is some other call of duty of the like urgency, the obligation of secrecy should yield to the new claim. * * * ” (Emphasis added.)³

It is seen, therefore, that the idea of piercing the veil of grand jury secrecy "in the furtherance of justice” is not new; it should not be startling.

Despite what the Criminal Law Revision Commission specifically said in its Report at page 190, quoted above, it has been argued to us that ORS 135.855(l)(c) was meant to protect a recording of the testimony of a witness before the grand jury from discovery at any and all times.⁴ If so, the Commission and the legislature chose an odd place in which to codify that section. By its own terms, the section applies only to "discovery under ORS 135.805 to 135.873.” The Commission’s draft from which those sections of ORS are taken separately groups the sections under the name, "Pre-Trial Discovery” as Article 11 of the Final Draft and Report. The commentary reveals the following sense of the Commission with respect to the application of what is now ORS 135.805 to 135.873:

"Section 321 [pertinent part codified as ORS 135.805] is derived from the ABA Standards Relating to Discovery and Procedure Before Trial * * (Emphasis added.)

ORS 135.805 describes the applicability of the sections contained in ORS 135.805 to 135.873. In the case at bar we are not concerned with discovery before trial.

If, as has been argued, the Commission and the 1973 Legislature, which acted upon the Commission’s Report, meant to absolutely bar a defendant from discovery in the circumstances presented by this case, they chose a strange way to do so. The Commission’s commentary as to what it did intend and its placement of the section relied upon as a bar, when taken together with the case law from State of Oregon v. Moran, supra, through Gowin v. Heider, 237 Or 266, 386 P2d 1, 391 P2d 630 (1964), leads us to the conclusion that there was no legislative intent to overrule the recognized exception to the rule of grand jury secrecy which rests upon furthering justice.⁵

As its point of departure, the dissent takes the decision of this court in State v. Foster, 242 Or 101, 407 P2d 901 (1965), and states that we there adopted the "Jencks” rule. We believe that is not the proper interpretation of Foster. Indeed, that opinion expressly rejects the assertion that Jencks v. United States, 353 US 657, 77 S Ct 1007, 1 L Ed 2d 1103 (1957), provides the basis for the decision in Foster:

"It has been urged that the rule we approve is of recent origin and comes as an aftermath of Jencks v. United States, 1957, 353 US 657, 77 S Ct 1007, 1 L Ed2d 1103, and the subsequently enacted Jencks Act (18 USCA 3500, (1957)), and is, therefore, limited to practice in the Federal courts. In essence the Jencks Act only codifies the rule that had been of long standing in both federal and many state courts. Orfield, Discovery and Inspection in Federal Criminal Procedure, 1957, 59 W Va L Rev 221. See Gordon v. United States, supra, 344 US 419, where the court, in adopting this rule, made this mention of its prior existence: 'Despite some contrary holdings on which the courts below may have relied, we think their reasoning is outweighed by that of highly respectable authority in state and lower federal courts in support of the view that an accused is entitled to the production of such documents.*’ (Footnote of citations omitted). The Gordon opinion utilized a statement, also found in other cases, by Judge Cooley in People v. Davis, 1884, 52 Mich 569, 573, 18 NW 362: The State has no interest in interposing an obstacle to the disclosure of facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons.’ ”

242 Or at 104. Although the dissent states that the rule we expressed in Foster is based upon questionable observations, we find upon re-examination of Professor Orfield’s article and of Gordon v. United States, 344 US 414, 73 S Ct 369, 97 L Ed 447 (1953), that the criticized observations are sound.

It is true that in Foster we held that the discovery of the state’s witness’s pre-trial statements could not take place until after the witness had testified upon direct examination. It is also true that we held there was no right to pre-trial discovery of the statements, and that holding has surely been vitiated by the enactment of ORS 135.805 through 135.873.

We do not understand, however, that there is anything in Foster or in State ex rel Dooley v. Connall, 257 Or 94, 475 P2d 582 (1970), also cited by the dissent as a part of the historical setting of the 1973 revision of the law pertaining to criminal procedure, that should cause us to agree with the dissent’s position that ORS 135.855(l)(c) bars discovery of the tape in the circumstances presented in the case at bar.

The dissent has traced some legislative history, which supports a conclusion that some members of the Criminal Law Revision Commission were concerned about destroying secrecy of grand jury proceedings. Our examination of that history leads us to believe that perhaps those members were not aware of then existing statutes and case law above discussed which permitted some piercing of the veil. The "crack” feared by Mr. Blensly had long existed.

It is our conclusion that the legislative history does not lead unerringly either to the result we reach or that for which the dissent contends. Quite simply, we believe that either result is permissible, and we hold that the tape is discoverable in the circumstances in the furtherance of justice.⁶

The state’s final position is that if discovery of Losh’s testimony before the grand jury is to be allowed, that can only be accomplished as prescribed in ORS 132.220 by calling a grand juror.⁷ This argument confuses discovery with manner of proof. ORS 132.220 deals with the power of a court to require a grand juror to testify as a means of proving what took place before the grand jury.⁸ Unless the defendant is afforded the right to inspect the tape of Losh’s testimony, defendant has no practical method of discovering whether to call a grand juror to testify as to inconsistencies, if any.⁹

We hold that after a witness has testified on direct examination by the state, the defendant is entitled to examine an existing tape recording of that witness’s testimony given in the grand jury proceedings that led to the return of the indictment upon which trial is held.

We do not, by this decision, condone wholesale orders for disclosure of grand jury recordings. Where a witness before the grand jury has testified at trial for the state, a particularized need for disclosure exists for purposes of testing the witness’s credibility. Compare, United States v. Procter & Gamble, 356 US 677, 683, 78 S Ct 983, 2 L Ed 2d 1077 (1958). As such, the furtherance of justice requires disclosure of prior recorded statements.

II. Burglary

ORS 164.215(1) defines burglary in the second degree:

"A person commits the crime of burglary in the second degree if he enters or remains unlawfully in a building with intent to commit a crime therein.”¹⁰

The Court of Appeals relied on State v. Keys, 244 Or 606, 419 P2d 943 (1966), in affirming defendant’s burglary conviction. State v. Hartfield, 45 Or App 639, 609 P2d 390 (1980).

State v. Keys, supra, involved a situation in which defendant entered an open telephone booth to remove coins from the coin box. This court, in a four-to-three decision, held that under Oregon’s burglary statute a burglary is committed where, at the time of entry, an intent had been formed to commit a crime once inside. The majority reasoned that an owner’s consent to enter was limited to consent to enter for lawful, intended purposes, and to enter for other purposes was beyond the scope of consent and therefore unlawful.

While the Keys majority interpreted entering unlawfully to mean entering with an unlawful intent, the dissent by Goodwin, J., with whom McAllister, C. J., and Sloan, J., joined, would interpret unlawful entry to mean entering by unlawful means. Under the dissent’s analysis the intent to commit a crime after entry would be a separate and distinct element of the offense.

The reasoning which led to decisions like Keys has been critically discussed by a number of commentators on criminal law in recent years. See e.g., LaFave and Scott, Criminal Law, § 96 at 715-717 (1972); Crime of Burglary, 4 Will L J 285 (1966); Reformation of Burglary, 11 Wm and Mary L Rev 211, 213, 222-225 (1969); Right to Enter as Defense to Charge of Burglary, 24 Wash and Lee L Rev 333 (1967). Two of these discussions, Crime of Burglary and Right to Enter as Defense to Charge of Burglary, are critical of Keys by name and use Keys as an example of the lengths to which the law of burglary has been stretched from its common law origins.¹¹

Oregon’s current burglary statute, ORS 164.215, was enacted in 1971, five years after the Keys decision. The statute is identical to Section 136 of the Proposed Oregon Criminal Code, Final Draft and Report of the Criminal Law Revision Commission, July, 1970. As we pointed out in note 10 supra, the drafters intended that burglary under the revised statutory scheme was to consist of a form of criminal trespass with two aggravating factors: (1) that the premises invaded be a building, and (2) that the trespasser entered or remained with the intent to commit a crime in the building. The requisite primary element, i.e., criminal trespass, is required to be established. The criminal trespass is then transformed into a burglary only if the aggravating factors are present.

ORS 164.245 defines a criminal trespass as follows:

"A person commits the crime of criminal trespass in the second degree if he enters or remains unlawfully in or upon premises.”

To enter or remain unlawfully is defined in ORS 164.205(3):¹²

"(a) To enter or remain in or upon premises when the premises, at the time of such entry or remaining, are not open to the public or when the entrant is not otherwise licensed or privileged to do so; or

"(b) To fail to leave premises that are open to the public after being lawfully directed to do so by the person in charge.”

The situation with which this court was concerned in Keys was that of entry into premises which were open to the public. We believe that Keys is not controlling in this case, and if the issue presented in Keys is again before the court, it must then be decided whether the new statutory definition of unlawful entry requires a different result.

In this case defendant is alleged to have unlawfully entered and remained in the shoe store with intent to commit arson therein. According to Losh, defendant gained entry by use of a key given to him by the store manager for the purpose of entering the store to bum records and inventory of the owner of the retail business.

To prove a burglary, the state must establish a criminal trespass and the aggravating factors which raise the trespass to a burglary. There is no viable contention that the state’s evidence was insufficient to prove the aggravating factors. The sole question is whether the evidence satisfies the need to prove an unlawful entry for the purpose of establishing the element of criminal trespass. As noted, the premises were not open to the public, and this defendant’s entry was unlawful, therefore, if his entry was not otherwise licensed or privileged.

Where one is permitted or invited to enter premises, not open to the public, the state must prove two elements in order to establish that his entry is "not otherwise licensed or privileged.” The state must prove that the person extending the permission or invitation was without actual authority to do so and that the entrant knew or believed there was no such actual authority.

This case must be retried by reason of our holding with respect to the grand jury tape. In order to establish an unlawful entry by the defendant, it will be necessary to prove that the manager had no actual authority to permit defendant’s entry for the purpose of burning property of Neil I. Moger, the person named as owner thereof in the indictment, and that defendant knew or believed that the manager had no such authority. That would establish the criminal trespass. If the aggravating factors are also proven, the defendant may be found guilty of burglary.

Reversed and remanded for a new trial.

1 The two counts of arson resulted from the burning of the owner’s property, arson in the second degree, and recklessly endangering nearby protected property of another by that fire, arson in the first degree.

2 There is no change in substance from Deady’s § 58 to the present ORS 132.220.

3 In State of Oregon v. Moran, 15 Or 262, 14 P 419 (1887), the court relied upon a portion of this quoted material.

4 We need not reach the constitutionality of the statute if it were so interpreted. See, however, State ex rel Johnson v. Roth, 276 Or 883, 887 n. 5, 557 P2d 230 (1976).

5 In Gowin v. Heider, 237 Or 266, 286-287, 386 P2d 1, 391 P2d 630 (1964), we approved a quotation from State v. Mageske, 119 Or 312, 317, 227 P 1065, 249 P 364 (1926):

"The principle gleaned from the books, that when the demand for promoting justice either in a civil or criminal case, outweighs the necessities for keeping the testimony before a grand jury secret, or when the reasons for keeping the testimony private have passed away, the court in its discretion should release the chain of secrecy and admit such evidence in order to prevent the claims of public justice from being unsatisfied: 1 Bishop on Crim. Proced. § 859; Wharton, Crim. Ev., § 510, and note 5, collating the authorities.”

In United States v. Procter & Gamble, 356 US 677, 683, 78 S Ct 983, 2 L Ed 2d 1077 (1958), is to be found dictum which recognizes that circumstances may furnish a compelling necessity for modification of the general rule that protects the secrecy of grand jury proceedings:

"We do not reach in this case problems concerning the use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility and the like. Those are cases of particularized need where the secrecy of the proceedings is lifted discretely and limitedly. We only hold that no compelling necessity has been shown for the wholesale discovery and production of a grand jury transcript * *

6 The dissent also relies upon ORS 135.845(2). We find the function of that statute is to require one to produce discoverable material when one finds it even if its existence was not known at the time of request for discovery.

7 In State ex rel Johnson v. Roth, supra note 4, we stated that it was significant that ORS 132.220 provided for disclosure only by calling a grand juror to testify. We now question that statement. We note that discovery by inspection of the tape and proof of the making of prior, inconsistent statements by the witness before the grand jury, although related, are not the same subjects.

8 As noted, ORS 132.220 is derived from Heady’s Criminal Code, § 58. See note 2, supra, and accompanying text. There were no tape records at that time. Discovering what might have occurred before the grand jury could only be accomplished by questioning someone who was present.

9 We do not here reach the question as to exactly how, if they are found, inconsistencies may be proven. If inconsistencies are found, counsel and trial courts may find ways to present that to the jury other than by calling a grand juror as a witness.

10 ORS 164.215(1) contains the basic definition of burglary. The statute is taken from Section 136 of the Proposed Oregon Criminal Code, Final Draft and Report of the Criminal Law Revision Commission (1970). The commentary to Section 136 states:

"The basic definition of burglary and the lowest degree of the crime is dealt with by this section. It amounts to nothing more than a form of criminal trespass with two aggravating factors: (1) the premises invaded constitute a 'building’; and (2) the intruder enters or remains with intent to commit a crime therein.”

11 Goodwin, J., in his dissent in State v. Keys, 244 Or 606, 419 P2d 943 (1966), used the example of a person entering a courthouse under subpoena, intending to commit perjury. Whether he commits perjury or recants his intent and tells the truth, he has committed burglary the moment he steps through the courthouse door under the Keys test. For other situations in which our statute with a Keys interpretation brings about unintended results see LaFave and Scott, Criminal Law, § 96 at 716; Crime of Burglary, 4 Will L J 285, 289-290 (1966).

It has been argued that under ORS 164.215 as interpreted by State v. Keys, supra, one could commit burglary on one’s own property. Crime of Burglary, supra at 289, suggesting that one entering his own home with intent to contribute to the delinquency of his 15-year-old babysitter would be guilty of burglary. The hypothetical situation alluded to in Crime of Burglary considers the effect of Keys in consort with the statutory elimination of the common law element that a burglary must be in the dwelling of another.

12 The definitions of ORS 164.205(3) and 164.245 are somewhat tautological inasmuch as the definitions are couched in the same words, "enter or remain,” as the terms they attempt to define.