State v. Eder
State v. Eder
Opinion of the Court
Defendant was sentenced to a term of six years imprisonment for first degree sodomy and attempted first degree rape. The issue on appeal is whether the sentencing court erred in quashing defendant’s subpoena of the raw test data which was used in formulating the psychological evaluation of defendant contained in the presentence report.
Defendant was given access to the presentence report. The court also granted defendant’s motion for appointment of a psychologist to assist in preparation for the sentencing hearing. That psychologist interviewed defendant and administered the same battery of tests that was used in preparation of the presentence report. At the sentencing hearing, defendant’s psychologist testified as to the results of those tests and expressed disagreement with many of the conclusions contained in the presentence report.
Disclosure of presentence reports is governed by ORS 137.079 which provides:
"(1) A copy of the presentence report shall be made available to the district attorney, the defendant or his counsel a reasonable time before the sentencing of the defendant.
"(2) The court may except from disclosure parts of the presentence report which are not relevant to a proper sentence, diagnostic opinions which might seriously disrupt a program of rehabilitation if known by the defendant, or sources of information which were obtainable only on a promise of confidentiality.
"(3) If parts of the presentence report are not disclosed under subsection (2) of this section, the court shall inform the parties that information has not been disclosed and shall state for the record the reasons for the court’s action. The action of the court in excepting information shall be reviewable on appeal.”
Although defendant’s constitutional claims have some authoritative support,
Affirmed.
Defendant’s contention that the trial court erred in denying defendant’s motion for judgment of acquittal does not warrant discussion in light of State v. McJunkin, 27 Or App 401, 556 P2d 164 (1976), rev den (1977), and State v. Lammers, 29 Or App 207, 562 P2d 1223 (1977).
Access to the test data might be deemed necessary to assure the effective assistance of counsel, see Kent v. United States, 383 US 541, 86 S Ct 1045, 16 L Ed 2d 84 (1966); Townsend v. Burke, 334 US 736, 68 S Ct 1252, 92 L Ed 1690 (1948), or necessary to protect defendant’s due process right to be sentenced on the basis of accurate information, see Collins v. Buchkoe, 493 F2d 343 (6th Cir 1974); United States v. Picard, 464 F2d 215, 219-220 (1st Cir 1972); United States v. Weston, 448 F2d 626, 632 (9th Cir 1971), cert den 404 US 1061 (1972); United States u. Malcolm, 432 F2d 809, 816 (2nd Cir 1970). It has been suggested that these rights together with defendant’s traditional right of allocution, give rise to a due process right to rebut adverse information in the presentence report. Note, Due Process in Sentencing: A Right to Rebut the Presentence Report?, 2 Hastings Con Law Q, 1065 (1975); see generally, Note, Disclosure of Presentence Reports in Federal Court: Due Process and Judicial Discretion, 26 Hastings L J 1527 (1975).
Reference
- Full Case Name
- STATE OF OREGON v. JAMES JOSEPH EDER
- Cited By
- 1 case
- Status
- Published