State v. Burgess

483 P.2d 101, 5 Or. App. 164, 1971 Ore. App. LEXIS 801

Opinions

SCHWAB, C.J.

Upon trial to the court sitting without a jury defendant was convicted of illegal sale of heroin in violation of ORS 474.020. On appeal he makes two assignments of error, (1) the failure of the state to prove that the quantity of heroin involved was of such quantity and quality as to be susceptible of use as a narcotic drug, and (2) the viewing of a Federal Bureau of Investigation record of previous convictions of the defendant by the trial judge prior to the finding of guilt.

In support of his first assignment of error defendant cites cases from other jurisdictions holding that in order to convict a person of illegal possession of narcotics it must be shown that he possessed a useable quantity. Even assuming for the sake of argument that this court would hold in a proper case that the “useable quantity” standard applies in prosecutions for possession of narcotics in this state, and, even assuming for the sake of argument that the same rationale would apply to illegal sale,

① we do not consider the question here. At the trial below, defendant did not question the fact that the quantity of heroin he sold was sufficient to support a conviction for unlawful sale of narcotics. Questions not raised and preserved in the trial court normally will not be considered on appeal. See, e.g., State v. Daniels, 5 Or App 86, 482 P2d 756 (1971); State v. Paola, 3 Or App 258, 473 P2d 690 (1970). The present case does not warrant an exception to this rule.

The defendant had previously pleaded guilty to the same offense involved in this appeal. After entering a plea of guilty and being sentenced to 10 years in the penitentiary he appealed on grounds that are not relevant here. This court reversed and remanded —hence, the trial which gave rise to this appeal.

Apparently the record of previous convictions had been obtained in connection with sentencing on the plea of guilty. As the defendant states in his brief, it was inadvertently left in the trial court file which went to the judge who tried the case at hand. It had attached to it a note made by a probation officer in connection with a bail reduction request addressed to a judge who handled pre-trial matters which said in pertinent part:

“Attached is long record of def. * * #.

“* * * It was alleged that def was making sales of Heroin to Juveniles.”

The defendant took the stand in his own behalf and denied selling heroin. To impeach this testimony the prosecutor asked defendant if he had ever been convicted of a crime. Defendant responded that he had been in jail, but that he had not been convicted of any big crime. Thereupon, the following colloquy took place:

“MR. PRICE: That is all the questions I have, your Honor.

“THE COURT: Did I understand the defendant to say he hadn’t been convicted of a crime?

“MR. PRICE: He said a big one. I have 1, 2, 3, 4, 5, 6 flier sheets from the Federal Burean of Investigation. I don’t think there is any necessity of going through them.

“MR. DIBBLE: I think you will find they are mostly misdemeanors. No previous narcotic convictions whatsoever.

“THE COURT: Let me ask him a couple of questions. Have you ever served any time in a penitentiary?

“MR. BURGESS: No sir.

ÍÍ# # *

“THE COURT: How about a county jail?

“MR. BURGESS: Yes sir, a lot of that.

“THE COURT: Never went to a big penitentiary?

“MR. BURGESS: No.

“THE COURT: Does your record dispute that statement, Mr. Price?

“MR. PRICE: No, it does not, your Honor.

“THE COURT: I see in the file here an FBI run-down of this defendant and I take it, from looldng at it cursorily, that the defendant has a rather extensive criminal record involving, well, misdemeanors.

“MR. PRICE: That is correct, your Honor.”

There is no indication that the trial judge even noticed the statement of the probation officer which was attached to the F.B.I. record which had been inadvertently placed in the trial court file.

Defendant argues that the result here must be the same as in State v. Shirley, 1 Or App 635, 465 P2d 743 (1970), in which we held it prejudicial error for a trial judge, during the course of hearing a case without a jury, to seek out on his own initiative a presentenee investigation and read it, in camera and without the knowledge or consent of the defendant. We also held that a somewhat similar occurrence was prejudicial error in Hurt v. Cupp, 5 Or App 89, 482 P2d 759 (1971). A significant distinction between the case at bar and those cases is that here the trial judge did not seek out the F.B.I. record — rather, it was inadvertently thrust upon him.② In such an instance, as we pointed out in Shirley and in Hurt, we presume that the judge, in the course of performing his official duty, will not consider such evidence when making his decision. This presumption controls unless it is overcome by evidence to the contrary. There was no such evidence or even such contention in this case.

Affirmed.

Defendant cites no case in which the “useable quantity” standard invoked in some “possession” cases has been applied to a prosecution for unlawful sale.

We note that the F.B.I. record was a part oí the count record and as such, available to the parties at all times.