State v. Morrison , 33 Or. App. 9 ( 1978 )

JOSEPH, J.,

dissenting.

Previous cases in this court have nibbled away at the statutory discovery rights created by ORS 135.805 to 135.873, and in particular ORS 135.815(1), by the somewhat doubtful process of distinguishing "notes” or "rough drafts” from "statements” and calling the former merely "steps in the preparation of a statement.” See State v. Bray, 31 Or App 47, 569 P2d 688 (1977), and State v. Jackson, 31 Or App 645, 571 P2d 523 (1977), rev den, 281 Or 323 (1978). Today the majority has taken a great big bite, which I find bitter tasting and indigestible. In doing so it has consumed its own progeny, namely this language in Bray:

"* * * [W]e construe the statute to require production of any 'statement’ which is intended by its maker as an account of an event or a declaration of fact.” 31 Or App at 51.

Furthermore, the majority goes far beyond "the little leeway” given by interpretation of the federal Jencks Act (18 USC § 3500) by cases such as United States v. Terrell, 474 F2d 872 (2d Cir 1973), which it quotes and relies upon. Those cases require a showing of good faith, depend upon there being a reliable method of reconstruction of the original and, usually, recite other protective factors utterly missing here. I hope there is still a difference between a little leeway and an open invitation to chicanery after today’s decision. Sed quaere!

The original writing was a complete statement, not merely "fragmentary notes.” The question of whether the writing was "decipherable” by anyone else should not have been decided unilaterally by Phillips. Although the letter purportedly bears a close similarity to the original writing, in no fair sense could the original writing be considered a "stage in the preparation” of the letter.

The relationship between the undercover agent and the police was clear. By the very nature of his employment in making drug cases, he knew that he would be called upon to testify concerning his activities. He prepared the original writing in question for the purpose of aiding him in doing that. For the purpose of determining the state’s discovery obligations there is no distinction between Phillips and the police officers who participated in the case. Given that, the rule in State v. Johnson, 26 Or App 651, 554 P2d 624, rev den (1976), required the state to produce the original writing.

The majority says that that original "was more akin to notes or a rough draft” and that "the ultimate proof” of that characterization is "that he never submitted it to his supervisors as such, but instead redrafted it.” I read the record quite differently. Phillips felt that it was to his advantage to get out of town — fast—after making the case for the police. He then prepared his report as a full and accurate statement of what he and others had done. Had he been timely asked for it, he probably would have turned it over.

What undoubtedly bothers the majority — and it certainly bothers me — is that the only remedy for failure to produce the original written statement in this instance would be the suppression of the testimony of a key witness. See State v. King, 30 Or App 223, 228, 566 P2d 1204 (1977), rev den, 281 Or 323 (1978). However, that is the only meaningful remedy.¹ Unless we are willing to undermine significantly the criminal discovery statutes and the right to effective cross-examination which they are designed, in part, to protect, State v. Bray, supra, 31 Or App at 51, we should have no choice but to reverse defendant’s conviction and order a new trial.

I believe this is an appropriate case to indicate to law enforcement personnel and to prosecutors that the primary guiding rule should be that everthing that can be preserved reasonably should be preserved. I fear that the teaching of the majority may lead to the opposite rule of conduct.

Therefore, I respectfully dissent.

1 The six-week delay on the part of the prosecution in securing the writing from Phillips is unexplained. The duty to furnish discovery implies a correlative duty to collect and protect evidence the prosecution reasonably ought to know will be part of its case. The document was part and parcel of the performance for which the state contracted with Phillips, and it is not unreasonable to impose a severe penalty for failing to take adequate steps to preserve it.