Hartman v. Oregon State Penitentiary

623 P.2d 681 (1981)

50 Or.App. 419

William HARTMAN, Petitioner, v. OREGON STATE PENITENTIARY, Corrections Division, Respondent.

No. 06-80-324; CA 18538.

Court of Appeals of Oregon.

Argued and Submitted December 12, 1980.

Decided February 17, 1981.

Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for petitioner.

J. Scott McAlister, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before JOSEPH, P.J., and WARDEN and WARREN, JJ.

JOSEPH, Presiding Judge.

This matter is before us on a petition for judicial review of an order by which petitioner was adjudged guilty of assault after a disciplinary hearing. He assigns two errors, only one of which requires discussion.[1]

Petitioner contends that the committee failed adequately to substantiate the credibility of confidential informants pursuant to OAR 291-105-041(e).[2] The rule provides that the identity of the informant or the informant's statement be revealed to the hearings officer and that the hearings officer must have a basis for determining that the informant is reliable.

Although it is unclear whether the hearings officer knew the identity of the informants, the statements of the informants were disclosed and appear in the record. The reliability of the information was established by the fact that the informants *682 were eyewitnesses, each description of the events was consistent with each of the other informants' descriptions, and the statements were accurate with respect to events which were not in dispute. Therefore, the informants' statements satisfied the rule.[3]

Petitioner relies on Allen v. OSP, 33 Or. App. 427, 576 P.2d 831 (1978), which interpreted an earlier rule which required the record to show that the informant was both credible and reliable. The new rule, under which this proceeding was held, is different.[4] Under it the information supplied by the informants was properly considered. See Grisel v. OSP, 47 Or. App. 673, 614 P.2d 1231, rev. allowed (1980).

Affirmed.

[1] The other claims that the disciplinary committee erred in failing to conduct an investigation pursuant to OAR 291-105-058(5)(a), which provides in part that "[a]n investigation shall be conducted upon the inmate's request * * *." Petitioner made no request, artfully or inartfully (Geddes v. OSP, 26 Or. App. 303, 552 P.2d 568 (1976)), for an investigation.

[2] When unidentified informant testimony is presented to the Hearings Officer, the identity of the informant or the statement of the informant, or both, shall be revealed to the Hearings Officer.

"(2) Information must be submitted to the Hearings Officer upon which the Hearings Officer can find that the informant is reliable in the case at issue."

[3] Petitioner does not challenge the validity of the rule.

[4] See Bartholomew v. Reed, 477 F. Supp. 223 (D.Or. 1979).