State v. Pilon

                                       460

       Argued and submitted February 17, 2021, reversed and remanded
                             August 31, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
              MARK TANGUAY RAYMOND PILON,
                     Defendant-Appellant.
                Clackamas County Circuit Court
                     18CR28900; A171010
                                   

     On the morning this criminal trial was set to begin, the state provided defendant with two previously undisclosed police reports, in violation of the discovery
statutes. Defendant requested a continuance in order to review the reports and
investigate the new information. The trial court denied the request for a continuance. Defendant challenges the trial court’s ruling. Held: Because defendant was
prejudiced by the state’s violation of the discovery statutes, the trial court abused
its discretion when it failed to impose any remedy for the discovery violation. The
trial court had discretion to determine the appropriate remedy, but imposing no
remedy was not within the range of options.
    Reversed and remanded.



    Richard Baldwin, Senior Judge.
   Stephen A. Houze argued the cause and filed the briefs
for appellant.
   Dashiell L. Farewell, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
    JAMES, P. J.
    Reversed and remanded.
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           JAMES, P. J.
         In Oregon, reciprocal criminal discovery is prescribed by statute. ORS 135.845 provides that “[t]he obligations to disclose shall be performed as soon as practicable following the filing of an indictment or information in
the circuit court or the filing of a complaint or information
charging a misdemeanor or violation of a city ordinance.”
For discovery that could “exculpate the defendant,” or could
“[n]egate or mitigate the defendant’s guilt or punishment,”
or could “[i]mpeach a person the district attorney intends to
call as a witness at the trial,” the timeliness of disclosure
is emphasized to be “without delay.” ORS 135.815(2).1 The
legislature has provided a continuum of remedies for failing
to comply with criminal discovery, ranging from the rather
benign continuance, up to and including “refus[ing] to permit the witness to testify, or refus[ing] to receive in evidence
the material not disclosed[.]” ORS 135.865.
         In this case, the morning that trial was set to begin,
February 12, 2019—285 days after arraignment on May 3,
2018—the prosecution provided defense counsel two police
reports that had previously been undisclosed. After reviewing those reports, defense counsel indicated that he would
need to conduct further investigation and asked for a continuance; the court declined. Defendant now appeals, arguing
that the trial court abused its discretion in denying his continuance request. We agree and reverse and remand.2
                            BACKGROUND
          Although the issue on appeal is procedural, the
import of the police reports disclosed on the morning of trial
requires contextualization by reference to what was at issue
at trial. For that reason, we state the facts of the encounter
that gave rise to the charges.
         Defendant and his wife K had been arguing throughout the afternoon and evening of April 28, 2018, and defendant
    1
      In 2021, the Oregon legislature made some changes to the reciprocal discovery statutes not pertinent here. See Senate Bill (SB) 751 (2021) (effective
Jan 1, 2022).
    2
      In his supplemental brief, defendant also assigns error to the trial court
instructing the jury on nonunanimous verdicts. Because this case is being
reversed and remanded for a new trial, it is unnecessary to address that issue.
462                                            State v. Pilon

had also been drinking. After going out to eat and drink
more, defendant returned home around 1:00 a.m. on April 29,
2018. Defendant used his pocketknife to destroy some of
K’s belongings and craft projects. When K tried to stop
him, there was a physical altercation, with accounts varying between the two parties as to the extent of the physical involvement. K then left the home and called 9-1-1 while
hiding in the neighbor’s yard. The audio of her 9-1-1 call was
played at trial and included her statements that defendant
had assaulted her, that the children were still in the home,
and that defendant had access to firearms.
         Officers arrived on the scene and staged away from
the house. They testified that they did not approach with
lights and sirens due to the nature of the incident and their
desire not to escalate the situation. One officer spoke to
defendant via K’s phone, instructing him to exit the home
to speak to the officers. Defendant testified that he did not
at that point think the police were actually present, and
that he did not know who the man using his wife’s phone
was. Defendant exited the home a couple of times and looked
around, at one point getting a firearm from his truck. He
subsequently exited the home with the firearm and briefly
pointed it in the direction of the police, before surrendering
and being taken into custody.
         At the trial, K and multiple law enforcement officers
testified to their observations of the evening, giving varying
accounts of the facts and how far they were from defendant
and what they were able to see during the confrontation.
The defense strategy relied largely on discrediting K, challenging the police officers’ differing accounts of the incident, pointing out differences in their claimed distance from
defendant, and questioning whether they could actually
see what they claimed to see. Additionally, defense counsel
sought to establish that defendant was acting in self-defense
and did not point his weapon at the officers—a strategy that
was dependent on the various officers’ accounts of their locations and distances.
         On the morning the trial was set to begin, the prosecutor provided the defense with two police reports from
officers who had responded on the night in question, Deputy
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Belmont and Sergeant Zaitz. The parties had a conversation
with the court in chambers, off the record, regarding the
reports. On the record, defense counsel made a motion for a
continuance, arguing that the reports impacted the defense
strategy relating to the credibility of the officers and the
victim and warranted further investigation of the scene. We
quote the discussion at length, as the arguments presented
and the court’s rationale factor into our analysis.
      “[DEFENSE COUNSEL]: So Judge, as I was saying,
  when I arrived this morning about 9:00 a.m., I received
  a report from the State from an Officer Belmont. Shortly
  thereafter, maybe 10, 15 minutes later, I received a second
  report from an Officer Zaitz. Both of these, Judge, I was
  surprised to get these at the very last minute. I had actually sent an email to the State asking hey, is there any body
  cam? Is there any dash cam, anything like that and the
  State advised no, I told you back on June 20th. I said okay.
  I don’t think that the State had any idea that these reports
  existed at all. This is rather common.
      “Judge, I wouldn’t normally ask for a continuance if
  these reports simply stated I received a call, I went to the
  scene, and this is kind of procedurally what I did. However,
  Judge, both of these police reports substantively affect the
  charges, particularly Officer Belmont’s report addresses
  some victim statements. It also affects the menacing
  charge, which we prepared for based on the previous police
  reports which didn’t really support a menacing charge,
  which now that’s [changed]. Then in regards to the assault
  4, it changes the assault 4. Then also Belmont’s report
  affects the unauthorized use of a weapon—or unlawful use
  of a weapon.
     “In regards to Zaitz’s report, Zaitz’s report also affects
  the unlawful use of a weapon, which is the count that
  involves law enforcement here. These are significant
  charges.
      “I’ve spoken with my investigator, who is also my use
  of force expert witness if I—if we decide to call him and
  he’s advised that based [on] these reports, he would want
  to go back out to the area. He would want to get some
  measurements.
     “…
464                                                 State v. Pilon

     “… [W]e have law enforcement at stages around the
  house, at very far distances, varying distances, and continued varying distances based on the new reports that we
  received today.
     “There’s some questions that were raised by our investigator in regards to potential measurements. …
      “…
     “… There’s some question in regards to lighting in
  regards to what some of the officers say.
      “So Judge, if this were a simple DUI case, if these
  reports that were simply procedural, I responded to a call,
  this is what I saw, that would be one thing. However, these
  are substantial charges. … I think that the Court requiring the Defendant to go forward with the introduction of
  these new reports prejudices his ability to put together a
  defense to analyze these to do what is necessary in regard
  to putting together a proper defense.
      “…
      “… [I]n regard to what the State has read out of page
  20 of the initial discovery that we received in a timely fashion, that is contradicted—well, I believe it’s contradicted, I
  would need to spend some time to really break it down, but
  in the reports from Officer Belmont, … [h]e states in page
  2, beginning at the second full paragraph: ‘While Sergeant
  Edwards was speaking to Mrs. Pilon,’ Mrs. Pilon is the
  victim in this case, the alleged victim, ‘[defendant] called
  her cellphone. Sergeant Edwards spoke to [defendant] and
  Mrs. Pilon’s cellphone. See Sergeant Edwards’ report for
  further details.’
      “Then it goes on to say,
          “ ‘We walked back to the corner of Renee Way and
      Blanchet Drive with some other units on the scene.
      Sergeant Edwards spoke to [defendant] again on the
      cellphone. Sergeant Edwards asked me to get permission from Mrs. Pilon to look through her text messages.
      I went back to Mrs. Pilon and she told me her cellphone
      passcode. Mrs. Pilon showed me the text conversation.’
     “So then it goes on that Deputy Belmont takes a phone
  call from [defendant]. Now, that is reflected in this original
  report, but you can’t tell where the two officers are vis-a-vis
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  in regard to the position that they state that [defendant] is
  at.
      “So Judge, I just, I believe that that in and of itself
  requires additional analysis of these reports and it’s not
  something that we can just go across the street and spend
  an hour on. I want to compare this, and contrast this, to the
  other police reports written by the other officers, and then
  compare it to—we do have a map and a diagram and track
  all that.
     “So I mean, I understand the State’s position, but I
  believe that not having that ability, getting that drop on
  you the morning of trial, is something that a few hours or
  even the course of a day is not enough to cure. I believe that
  a continuance, and Judge, we—I mean, we want to try this
  case as well. A short continuance would be just fine, but a
  continuance nonetheless is what is required here to remove
  any potential prejudice to [defendant].
      “Additionally, Judge, and I know the Court is always
  concerned about that, and that is the inconvenience of the
  witnesses. The only civilian witness that I’m aware of is
  the—is Mrs. Pilon. Mrs. Pilon lives here locally. It’s—she—
  my understanding is that she may run a daycare, but based
  on some of the information and beliefs that I have, I don’t
  think that this is—I mean, obviously, coming to court is an
  issue, but I don’t think that this is going to have any kind
  of economic disadvantage for her.
     “So again, Judge, I would ask for a continuance based
  on those points.
     “[THE STATE]: And Your Honor, I’ll just note for the
  record that [defense counsel] did move to continue this case
  and it was denied by the presiding previously.
      “THE COURT: Okay. Based on the record, the Court
  does not find good cause for a continuance. I do think that
  the Defense can respond to these differences in the report
  effectively during trial without significant prejudice to the
  Defendant. As we discussed this in chambers, I think that
  some of these changes in the report are actually more favorable to the Defendant and based on the age of the case.
     “My understanding also is that the State has eight witnesses involved; is that right?
     “[THE STATE]:      Yes, sir.
466                                              State v. Pilon

      “THE COURT: Okay. And so based on those factors
   and the record, the Court denies the motion.”
The trial proceeded over the following four days, and defendant was convicted on five of the charged counts.
         We review a trial court’s denial of a motion for a
continuance for an abuse of discretion. State v. Sassarini,

, 

 (2019). “Discretion” refers
to the authority of a trial court to choose among several
legally correct outcomes. State v. Rogers, 

,

 (2000) (“If the trial court’s decision was within
the range of legally correct discretionary choices and produced a permissible, legally correct outcome, then the trial
court did not abuse its discretion.”). Accordingly, a first step
in analyzing the exercise of discretion is to determine the
boundaries that define the range of permissible discretion.
A continuance motion made in the general course of trial
scheduling is afforded wide discretion. State v. Kindler,

, 

 (2016). A continuance
requested as a remedy for a discovery violation, however,
operates within the boundaries of the discretion afforded by
the discovery statutes. Accordingly, we first address whether
the continuance motion here was made generally, or under
the ambit of the discovery statutes.
         The two reports from Belmont and Zaitz, both of
whom testified in the trial, are clearly discoverable under
ORS 135.815(1)(a). They should have been disclosed to
defendant “as soon as practicable.” ORS 135.845. The record
contains little discussion as to the circumstances surrounding the last-minute disclosure. Defense counsel stated his
belief that the prosecutor herself did not physically have the
reports earlier, and we agree. However, it is well-established
that material in the control of the police tasked with responding to, or investigating, an incident is considered to be in
the control of the prosecution for purposes of the discovery
statutes. State ex rel Wilson v. Thomas, 

,

, rev den, 

 (1985) (“[T]he police are
an arm of the prosecution for the purposes of the discovery
statute.”); State v. Warren, 

, 433 n 5, 

 (1987) (“We agree with the Court of Appeals that, with
regard to investigation of crime, ‘[t]he police are an arm of
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the prosecution for the purposes of the discovery statute.
…’ ”); State v. Daniels, 

, 

,
rev den, 

 (2014) (“Warren stands for the proposition that, if an entity is required to disclose records to the
district attorney or to police, the prosecution has control
over the records and, accordingly, must disclose to a defendant any of those records that fall within ORS 135.815.”);
cf. State ex rel Glode v. Branford, 

,

 (1997), rev den, 

 (1998) (holding
that the Lincoln County District Attorney did not have
control of records held by police agencies in other counties
and therefore could not be compelled to provide discovery
of those records); State v. Wixom, 

, 

 (2015), rev den, 

 (2016) (prosecutor did
not have control over records concerning DHS’s involvement
with the victim and her placement in foster care as a result
of child dependency proceedings).
         While it is unknown when precisely the reports were
created or available to the prosecutor, testimony during the
trial indicates Zaitz’s report included a step-by-step narrative of what he observed, and Belmont testified that he
completed and turned over his report no later than the day
after the incident. Based on this testimony, the record here
establishes that these reports were not created the night
before trial, thereby rendering the morning of trial disclosure “as soon as practicable.” Instead, the record shows
that the reports were created contemporaneously with, or
shortly after, the incident. Whether those records were created by the police and not turned over to the prosecutor, or
were turned over and misplaced, doesn’t matter. Once those
reports were created, the state had them in its possession,
and they were subject to discovery.3

    3
      Without copies of the reports, we cannot conclusively find that they would
qualify as exculpatory or that they would necessarily impeach one or more of the
state’s witnesses, despite the trial court’s statement that “some of these changes in
the report are actually more favorable to the Defendant.” We therefore do not find
that they were subject to disclosure under ORS 135.815(1)(g). However, the designation would not make a difference in our current analysis. In the interests of
completion, however, we note that discovery of evidence under ORS 135.815(1)(g)
is not limited solely to information reduced to writing. SB 751 (2021) clarified
that discovery “[s]hall occur regardless of whether the material or information is
recorded or in writing.” ORS 135.815(2)(a)(A) (2022).
468                                                State v. Pilon

         A point bears emphasis—we perceive no bad faith
on this record, either by police or the prosecutor’s office. The
discovery statutes, and accompanying remedies, are not
dependent on blame or bad faith. Oregon’s criminal reciprocal discovery statutes operate in the very hectic world of
criminal trial practice. Prosecutor and defense offices are
busy places, with many moving parts and personnel, and
sometimes things get overlooked, entirely inadvertently.
This is compounded by the hectic realities involved in law
enforcement. Good people, doing their best in a stressful
system, can fail to disclose information that should have
been disclosed. It is entirely understandable, but no less a
discovery violation.
          Here, the request for a continuance came after a
chambers conference, which itself was prompted by morning
of trial discovery. On appeal, the state does not argue in its
briefing that there was no discovery violation, but the state
also did not explicitly admit at oral argument that a violation had occurred. Looking to the trial however, all parties
appeared to operate under the presumption that a discovery
violation had occurred. On this record, especially given the
testimony of the officers concerning when the reports were
authored, we conclude that defendant’s request for continuance was not made generally but was made in the context
of the discovery statutes, as a requested remedy for a perceived discovery violation.
         Having determined that the continuance request
was made as a requested discovery remedy, we evaluate
the trial court’s exercise of discretion within that statutory
framework. ORS 135.865 states:
      “Upon being apprised of any breach of the duty imposed
   by [the discovery statutes], 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.”

This statute clearly establishes a wide range of discretion on
the part of a trial court in deciding how to address discovery
violations. But in exercising its discretion, the trial court
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must impose a remedy that is in furtherance of the purpose
of the discovery rules.
         Oregon’s reciprocal criminal discovery statutes were
enacted in 1973 in the wake of Brady v. Maryland, 

, 

, 

 (1963). They were modeled off the American Bar Association Standards Relating
to Discovery and Procedure Before Trial, (1970) (ABA
Standards), Standard 4.7, and are designed to support constitutional rights:
       “As stated, the fundamental right that the compulsory
   process clause aims to protect is ‘the right to present a
   defense, the right to present the defendant’s version of the
   facts as well as the prosecution’s to the jury so it may decide
   where the truth lies.’ … The ultimate aim of the reciprocal discovery statutes is largely congruent with that goal
   in the sense that such statutes insure that both sides have
   access to all the facts so that the jury can best determine
   where the truth lies.”
State v. Mai, 

, 

 (1982) (quoting
Washington v. Texas, 

, 

, 

 (1967)); see also State v. King, 

,

 (1977), rev den, 

 (1978) (discussing
history of discovery); State v. Dyson, 

, 

 (1981) (same). Chief among the purposes of the rules is
“to assure to both the state and the defendant the opportunity, in advance of trial, to be provided with the information required by these statutes so as to enable each party
to prepare adequately for trial and to prevent ‘surprise’ at
the time of trial.” Dyson, 

. The Supreme Court
has also noted the importance of “efficient judicial administration, i.e., to avoid unnecessary trials, to expedite trials
and to prevent the expense and delay of continuances when
either party claims to be unprepared to go to trial because
of failure by the other party to comply with these discovery
statutes.” 

.
         The first in the range of remedies provided by ORS
135.865—an order “to permit inspection of the material”—
is intended for pretrial discovery disputes. It applies to situations where one party has a document that they are refusing to disclose, that the other side believes is discoverable.
470                                                  State v. Pilon

Obviously, an order to disclose does nothing to further the
purposes of the discovery rules when the item has already
been disclosed. In such instances, the arguments turn to the
harm of surprise and delay that may have already occurred
at that point. State v. Harshman, 

, 

 (1983) (“The effective administration of justice
requires that discoverable evidence be provided much sooner
than ‘moments’ before trial.”). Accordingly, for morning of
trial disclosures, ORS 135.865 contemplates other remedies,
ranging from continuance, refusing to permit the witness
to testify, or evidence exclusion, or “such other order” as the
court “considers appropriate.” Choosing among those remedies requires an inquiry into prejudice.
         In State v. Wolfe, 

, 

 (1975),
the state objected to the defendant calling two witnesses
whose names had not been disclosed to the state in discovery. 

. The trial court excluded the witnesses,
and this court upheld that decision. 

. On appeal
to the Supreme Court, the defendant argued that the trial
court erred in imposing the extreme sanction of excluding
one of the witnesses because the state had made no showing
that it would have been prejudiced by the trial court permitting the defendant to call her. 

. The Supreme
Court affirmed the Court of Appeals ruling, holding:
      “The presence or absence of prejudice is a most important factor to be considered by the trial court in exercising the discretion conferred upon it by ORS 135.865 in the
   choice of sanctions, particularly in imposing the extreme
   sanction of refusing to receive in evidence the material not
   disclosed. The terms of the statute, however, do not appear
   to make the presence or absence of prejudice a necessary
   factor in the exercise of the discretion conferred by the statute in the choice of any of the sanctions to be imposed by its
   terms.”

.
         Two years later, we addressed prejudice and remedies in King. In that case, the state had failed to disclose two
witnesses it intended to call. King, 

. The
trial court allowed the state to call the witnesses, over defendant’s objection, and defendant appealed. 

 We reviewed
the extensive history of Oregon appellate courts wrestling
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with what remedy to impose for breaches of discovery rules,
noting that “[i]n some cases involving breach of the discovery statutes, we have affirmed suppression and exclusion
of nondisclosed evidence. In other cases involving similar
breaches of the discovery statutes, we have affirmed trial
courts’ failure to impose any sanction.” Id. at 227 (citations
omitted). We conducted a thorough review of the legislative
history relating to the discovery statutes and concluded:
   “[T]he 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.”

Id. at 228. We then analyzed the issue of prejudice, and
concluded:
       “We hold that 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. We hold that the selection of a sanction to be imposed
   upon the offending party is limited by the guidelines noted
   above. And conversely, we hold that no sanction for violation of the discovery statutes is warranted when the violation causes no prejudice in the preparation of the case for
   trial.”

Id. at 230.
         In King, we recognized that our interpretation could
potentially be foreclosed by the holding in Wolfe that the
terms of ORS 135.862 “ ‘do not appear to make the presence
or absence of prejudice a necessary factor in the exercise of
the discretion conferred by the statute in the choice of any
of the sanctions to be imposed by its terms.’ ” Id. at 230-31
(quoting Wolfe, 

). However, we acknowledged
that the Supreme Court was aware of the same legislative
history when it issued Wolfe, and we concluded:
472                                                State v. Pilon

   “[W]e cannot believe the Supreme Court intended to hold
   that the trial court’s discretion was so broad as to allow
   imposition of no sanction for a highly prejudicial violation
   of the discovery statutes or so broad as to allow imposition
   of an extreme sanction for a technical, nonprejudicial violation of the discovery statutes.”
King, 

.
          This interpretation remained the leading statement
on prejudice and remedies for several years, with prejudice
being a prerequisite for the imposition of extreme remedies.
See, e.g., State v. Mead, 

, 

(1980) (“If the court finds that the state did not comply [with
the discovery statutes], it will then determine if the defendant was prejudiced by the violation. If it is found that defendant was, in fact, prejudiced, then it will become necessary
to determine the degree of prejudice and an appropriate
remedy.”); State v. Campbell, 

, 

,
rev den, 

 (1980) (“[E]xclusion of evidence is appropriate only where the violation substantially prejudices the
other party in preparing its case for trial and no less severe
sanction will obviate the prejudice.”).
         Eventually the issue was once again taken up by the
Supreme Court in Dyson, where the court sought to resolve
the apparently contrary holdings between Wolfe and our
holdings in King and the cases that applied it. Dyson, 

. In Dyson, the state had failed to provide the defendant with witness names and written statements until four
days prior to the trial. The trial court excluded all of the witnesses. 

. We reversed, holding that under King
and Campbell, exclusion was only appropriate where the discovery violations substantially prejudiced the other party in
preparing its case, and no less severe sanction would obviate
the prejudice. 

 at 28 (citing State v. Dyson, 

, 

 (1981)). The Supreme Court reviewed its
prior holding in Wolfe, recounted our holding in King and
its subsequent application, and re-examined the legislative
history of the discovery statutes. Dyson, 

.
   “From this examination, we find no indication of a legislative intent to limit the imposition of the sanctions of ORS
   135.865 to cases in which noncompliance with discovery
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   requirements is shown to cause prejudice or, more specifically, to require a showing that such a violation has caused
   ‘substantial prejudice’ to the other party before a court may
   exclude undisclosed evidence.”

Id. at 34. The court reaffirmed its holding in Wolfe and
found that we had misconstrued that holding in King and
Campbell when we found that a showing of prejudice was
required before exclusion could be utilized as a remedy for
discovery violations. Id. at 35.
         While the Supreme Court’s analysis in Dyson
rejected the holding in King that no remedy is warranted in
the absence of prejudice, it did not disturb King’s holding that
a party prejudiced by a violation of the discovery statutes “is
entitled to some remedy.” King, 

 (emphasis added). Dyson established that the most serious remedy
of exclusion may be imposed in any situation, regardless of
whether a party was prejudiced or not. But in the presence
of a prejudicial discovery violation, the permissible range of
discretion does not include imposing no remedy. Such a holding would remove all meaning and strength from the discovery statutes. As we have discussed in past considerations
of the history and purpose of the discovery rules, the commentary to the American Bar Association Standards, from
which ORS 135.865 was derived, states “ ‘[R]ights and duties
are ephemeral indeed without remedies. Thus, by this standard, the Committee intends to emphasize that discovery
rules must be enforced.’ ” King, 

 (quoting
ABA Standards at 107).
         In assessing the proper remedy for a discovery violation then, prejudice becomes the threshold issue. Wolfe,

. The presence, or absence, of prejudice will
determine whether no remedy is a permissible option in the
range of discretion. The existence of prejudice, while dependent on predicate facts to which we will defer, is a question
of law, reviewed for errors of law. Ashley v. Hoyt, 

, 395 n 8, 

 (1996).
         In King, we noted that the prejudice inquiry must
focus on the extent of surprise and the impact of the violation on trial preparation:
474                                                               State v. Pilon

    “Every time there is a failure to disclose evidence subject to
    pretrial discovery, there will be some surprise—and thus
    arguably some prejudice—at trial. However, the general
    purpose of the Oregon criminal discovery statutes is to
    ‘minimize surprise.’ … The operative word is ‘minimize,’
    not ‘eliminate.’ Thus, the prejudice inquiry must first focus
    on the extent of surprise.”
King, 

. We then examined the second
aspect of the prejudice inquiry, namely: “What would the
party to whom disclosure should have been made reasonably have done differently to prepare for trial had disclosure
occurred?” 

. In that case, we looked to the record
and found no claim of actual surprise and that the record
contained no answer to the question of what the defendant would have done differently to prepare for trial had
the disclosure been made; thus, the defendant had failed to
claim or show any prejudice. 

. That approach
to assessing the presence of prejudice has routinely been
applied. Harshman, 

 (“Other crimes evidence carries with it the hazard of unfair prejudice to the
defendant. The failure to timely disclose the discoverable
evidence thwarts the purpose of discovery. Surprise looms
large, and defense counsel is denied the opportunity to meet
the evidence. The denial of a continuance to prepare for such
grave evidence was actual prejudice.”); City of Portland v.
Peterson, 

, 

 (1982) (noting that an officer’s statements that were the subject of late
disclosure did not impact the defendant’s trial strategy and
the officer’s participation in the incident was insignificant);
State v. Sarratt, 

, 448 & n 2, 

(1981) (noting the King two-pronged test and its application
in other cases).
          In this case, the trial court made no explicit credibility findings, and nothing indicates that the court found
counsel not to be credible.4 Additionally, although the
    4
      We note that the prosecutor reminded the court that defense counsel had
sought, and was denied, a continuance about a week earlier. Additionally, the
prosecutor, quite correctly, pointed out to the court that defense counsel had submitted a witness list just the night before trial—itself a violation of the reciprocal
rules of discovery, specifically ORS 135.835(1). We understand the prosecutor to
have made that observation as a way of indicating that defense counsel would not
have altered their trial strategy had they had the reports earlier, because their
Cite as 

 (2022)                                                475

prosecution tacitly acknowledged that the reports could
be a basis for a different line of cross-examination of the
victim or officers than was originally available prior to the
disclosure, the prosecutor argued that many aspects of the
newly disclosed report were cumulative. Again, however, the
trial court made no findings to that effect. Instead, the trial
court found that the material was nonprejudicial because it
believed that “the Defense can respond to these differences
in the report effectively during trial ….” Further, the court
said, “I think that some of these changes in the report are
actually more favorable to the Defendant ….”
         An assessment of prejudice, however, is not an exercise in substituting a court’s trial strategy or tactics for
counsel’s. In our adversarial system, judges are not in the
best position to make judgments regarding trial strategy,
particularly when it comes to the import of new evidence.
See Rosenberg v. United States, 

, 

, 

 (1959) (“An appellate court should not
confidently guess what defendant’s attorney might have
found useful for impeachment purposes in withheld documents to which the defense is entitled.”); see Dennis v. United
States, 

, 

, 

 (1966)
(“The determination of what may be useful to the defense
can properly and effectively be made only by an advocate.”);
Alderman v. United States, 

, 

, 

 (1969) (noting that seemingly innocent remarks
and other facts “may have special significance to one who
knows the more intimate facts of an accused’s life,” and concluding that the task is too complex to rely “wholly on the in
camera judgment of the trial court to identify those records
which many have contributed to the [party’s] case”); United
States v. Jonas, 540 F2d 566, 569 n 4 (7th Cir 1976) (noting that “[t]he assumption that a court can judge what is or
what is not useful to a defense attorney” is unsupported);
Little v. Turner, 402 F2d 495, 499 (10th Cir 1968) (citing
Dennis with approval); Jones v. State of Maryland, 297 Md 7,
15-16, 

 (App Ct Md 1983) (citing Dennis
with approval); Thorne v. State of Indiana, 

,

defense expert was apparently retained within the last day, based off the timing
of the disclosure of the witness list. Neither of those rationales were taken up by
the trial court in the form of fact or credibility findings, however.
476                                                           State v. Pilon

646 (Ind 1981) (citing Dennis with approval); State of New
Mexico v. Orona, 

, 452, 

 (1979)
(citing Dennis in finding a trial court’s order may have made
a potential avenue of defense unavailable to the defendant);
State of Wisconsin v. Perry, 

, 300 n 1, 

, 610 n 1 (Ct App 1985) (citing Dennis for the proposition that the United States Supreme Court had refuted
“the assumption that a court can judge what is or what is
not useful to a defense attorney”).
         Here, unlike in King, the factual record shows that
defense counsel was surprised by the reports and indicated
the reports substantively affected the charges. Counsel
reported to the court that he needed additional time to
review the reports and compare and contrast them to the
other reports already in discovery, in addition to going back
to the scene to take measurements. He specifically noted
that one of the reports “affects the menacing charge, which
we prepared for based on the previous police reports which
didn’t really support a menacing charge.” (Emphasis added.)
He further indicated that it appeared one of the new reports
contradicted other information provided, but that he would
need to spend some time to break it down and analyze the
new information. With no factual findings to the contrary,
we have no reason to doubt defense counsel’s detailed assertions that the reports required more investigation and could
potentially change his trial strategy.5 See Dennis, 

 (“Nor is it realistic to assume that the … court’s
judgment as to the utility of material for impeachment or
other legitimate purposes, however conscientiously made,
would exhaust the possibilities. In our adversary system,
it is enough for judges to judge. The determination of what
may be useful to the defense can properly and effectively be
made only by an advocate.”). As such, the record here establishes prejudice.
         On this record, having found defendant was prejudiced by the state’s discovery violation, we conclude that
the trial court abused its discretion in failing to impose any

    5
      To some extent we are limited in our review of the facts, as the reports in
question do not appear in the record before us and it appears that much of the
discussion of the contents of the reports occurred off the record in chambers.
Cite as 

 (2022)                             477

remedy. By denying defendant’s request for the bare minimum of a continuance to be adequately prepared, or any
other remedy in furtherance of the purposes of fairness,
adequate preparation, and efficient judicial administration,
the trial court effectively endorsed the state’s discovery violation. Accordingly, we reverse and remand for a new trial.
          Our holding today does not reduce a trial court’s
discretion to determine the appropriate remedy, other than
to clarify that imposing no remedy is not within the range
of options when a party has been prejudiced by a violation
of the discovery statutes. Cf. State v. Pyle, 

, 

 (2022) (“How best to enforce the subpoena
to ensure the presentation of evidence is committed to the
sound discretion of the trial court, but it cannot do nothing.”
(Emphasis in original.)). The amount of prejudice created by
a violation, the reasons disclosure was not made, the feasibility of rectifying the prejudice, and other relevant circumstances will all factor into the court’s exercise of discretion
as to the type of remedy selected, or, in the case of a continuance, the amount of additional time granted.
        Reversed and remanded.