Opinion

State v. Koennecke

  • 274 Or. 169
  • 545 P.2d 127
  • 1976 Ore. LEXIS 861
Court
Oregon Supreme Court
Filed
Jan 29, 1976
Status
Published
Author
Holman
On the bench
Holman, Tongue, O'Connell
Cited by
71 cases

holding that the state invited the error of which it complained on appeal after it suggested to the trial court that it enter an order suppressing evidence to which the defendant had made no pretrial objection and then appealed from that order

How later courts described this case

  • holding that the state invited the error of which it complained on appeal after it suggested to the trial court that it enter an order suppressing evidence to which the defendant had made no pretrial objection and then appealed from that order
  • holding that statute authorizing appeals from “order [s] made prior to trial suppressing evidence” also applies to pretrial orders excluding evidence
  • holding that the state could seek inter- locutory review of a trial court order excluding evidence on nonconstitutional grounds
  • state was not entitled to appeal from an order suppressing evidence, even though it was appealable under ORS 138.060(3), because of the posture in which the appeal arose

Written by the judges who cited it.

The opinion

HOLMAN, J.,

specially concurring.

It is my opinion that that part of the statute permitting appeals by the state, ORS 138.060(3), was not intended by the legislature to be used for the purpose of deciding questions relative to discovery. As the second part of the majority opinion discloses, the only issue involved was whether the trial court was in error in deciding that the officers’ revolvers were subject to discovery. Suppression of the testimony of the police officers was used only as a sanction to enforce discovery. There were no questions concerning the propriety of the use of the officers’ testimony.

Such use of the appellate statute lends itself to the promotion of contrived interlocutory appeals by the trial court to test questions which relate to matters other than the suppression of evidence. Almost any pretrial question involved in a criminal case can be *184 tested by the trial judge through an interlocutory appeal by the state as long as a sanction can be devised which includes the suppression of evidence. I do not believe this was the legislative purpose which caused the enactment of the statute.

O’CONNELL, C. J., joins in this opinion.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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