State v. Dupree

• Decision Date: 15 December 1999
• Citation: 992 P.2d 472,164 Or. App. 413
• Parties: STATE of Oregon, Respondent, v. Marcalena Diane DUPREE, Appellant.
• Court: Oregon Court of Appeals

992 P.2d 472

164 Or. App. 413

STATE of Oregon, Respondent, v. Marcalena Diane DUPREE, Appellant.

(97-06-34722; CA A102715)

Court of Appeals of Oregon.

Argued and Submitted October 5, 1999.

Decided December 15, 1999.

Samuel C. Kauffman argued the cause for appellant. With him on the brief was Janet Lee Hoffman, Portland.

Ann Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before HASELTON, Presiding Judge, and WOLLHEIM and BREWER, Judges.

BREWER, J.

Defendant was convicted, after a jury trial, of 12 counts of promoting prostitution and conspiracy to promote prostitution. ORS 167.012; ORS 161.450. She makes several assignments of error, including that the trial court erred when it denied her motion to dismiss all charges against her based on outrageous misconduct by the police. We affirm.

Defendant owned and operated escort services in Portland. In 1995, the Portland police vice unit began to investigate defendant's business activities. Portland police officers are subject to rules prohibiting them from disrobing or engaging in any sexual contact in the course of an investigation. Because of that restriction, the police vice unit used paid informants to pose as clients of defendant's businesses. On four separate occasions between 1995 and 1997, informants called defendant's businesses, requesting that an escort be sent to a hotel room to perform a massage. When the escorts arrived, the informants negotiated sexual favors for an additional fee. Unbeknownst to the escorts, police officers videotaped the ensuing sexual encounters.

Based on the evidence uncovered by the investigation, the police obtained search warrants for defendant's home (from which she ran her businesses), bank accounts, and safe deposit boxes. On June 3, 1997, police executed the warrant on defendant's home. The next day, while executing the warrant on one of defendant's bank accounts, the officers encountered defendant, who apparently was attempting to withdraw funds from her account before they arrived. Defendant's car broke down at the bank, and Officer Brumfield gave defendant a ride home. During that trip, defendant offered to supply police with information about other escort services in exchange for leniency. Brumfield told defendant that, because she had previously invoked her right to counsel, he could not discuss the case with her.

Defendant was eventually charged with 12 counts of promoting prostitution and conspiracy to promote prostitution. The indictment alleged that defendant knew that her escorts were engaged in prostitution, and that the escort services were a front for the prostitution operation. Defendant made a pretrial motion to dismiss the indictment in its entirety, in which she argued that the police use of paid informants to engage in criminal activity amounted to outrageous conduct justifying dismissal of the charges against her. The trial court denied the motion.

At trial, the prosecutor asked Brumfield if defendant had made any statements to him as he was driving her home from the bank. In response, Brumfield related defendant's offer to become a police informant against other escort services in exchange for favorable treatment. In further response to the same question, Brumfield also testified that he explained to defendant that he could not discuss her case because she had previously invoked her right to counsel. Defendant's attorney then moved for a mistrial, based on Brumfield's testimony about defendant's previous invocation. The trial court denied that motion but ruled that no further mention of defendant's invocation could be made.

Defendant later testified on her own behalf. On direct examination, defendant testified that she did not know that her employees were engaged in prostitution, that she attempted to run her businesses lawfully, and that she did not intend to promote prostitution. On cross-examination, the prosecutor asked defendant whether she had told police in 1994 that it was possible that her codefendant, Tara Nute, was working as a prostitute. The basis for the question was a police report filed following an incident in which Nute, while working for defendant, had gone to a hotel room to dance for a client. Defendant had claimed that the client attempted to rape Nute. When the police arrived at the scene, an officer asked defendant whether "it was possible Nute was in the process of exchanging sexual favors for money when things went bad." Defendant said it was "possible," but unlikely. The prosecutor sought only to introduce evidence of defendant's statement, rather than of the entire incident as described in the report. The prosecutor argued that the statement tended to show that defendant did have notice that her escorts might be committing acts of prostitution. Defendant countered that the state had committed a discovery violation by waiting until trial to reveal the report and asked for a continuance to consider it. The trial court found that the prosecutor was candid when he claimed to have had no knowledge of the report prior to trial. The court denied defendant's motion, instead granted a 20-minute recess. After the recess, defendant objected to the state's use of the statement and requested a further continuance. The court overruled the objection and admitted defendant's statement into evidence. The court also denied the request for a further continuance. At the conclusion of trial, defendant was convicted of 10 counts of promoting prostitution and two counts of conspiring to promote prostitution.

On appeal, defendant makes five assignments of error. She first argues that the trial court erred when it denied her motion for a mistrial following Brumfield's testimony that referred to her previous invocation of the right to counsel. Among other responses, the state counters that the trial court acted properly, because the testimony was not prejudicial.

We review the trial court's decision to deny a motion for mistrial for abuse of discretion. State v. Pratt, 316 Or. 561, 574, 853 P.2d 827, cert. den. sub. nom. Pratt v. Oregon, 510 U.S. 969, 114 S.Ct. 452, 126 L.Ed.2d 384 (1993). We agree that it is improper to admit evidence that a defendant invoked his or her constitutional rights. State v. Larson, 325 Or. 15, 23, 933 P.2d 958 (1997). However, such an impropriety rises to the level of reversible error only if the context in which the evidence is offered makes it likely that the jury will draw a prejudicial inference. Id. at 24, 933 P.2d 958. "It is our duty to inquire whether it was likely" that the jury would draw such an inference. Id. at 23, 933 P.2d 958; State v. Smallwood, 277 Or. 503, 506, 561 P.2d 600, cert. den. sub. nom. Smallwood v. Oregon, 434 U.S. 849, 98 S.Ct. 160, 54 L.Ed.2d 118 (1977). If the impermissible inference is unlikely, the error is harmless. State v. Williams, 49 Or.App. 893, 896-97, 621 P.2d 621 (1980) (state's reference to defendant's invocation of constitutional rights was harmless in the course of relating conversation between defendant and police officer, in which officer said, "[Y]ou said that you wanted to talk to your attorney first and I don't want to talk to you about the incident.") (emphasis omitted).

Under the circumstances presented here, we conclude that a prejudicial inference was highly unlikely and that any error was harmless. The information was disclosed incidentally to Brumfield's testimony about defendant's offer to incriminate other escort services and explained why he did not pursue her offer to cooperate at that time. There was a single reference that was not responsive to the question asked. The state did not deliberately engineer a situation in which the jury was told that defendant invoked her rights after being asked a question about the crime. See State v. White, 303 Or. 333, 736 P.2d 552 (1987) (mistrial required where state deliberately drew attention to defendant's refusal to testify at codefendant's trial). At worst, the jury might have inferred that defendant was unwise to volunteer incriminating information to Brumfield despite her previous invocation. We agree with the state that the context of the reference made it highly unlikely that the testimony created any adverse inference about defendant's invocation in the jury's deliberations. See Smallwood, 277 Or. at 505-06,561 P.2d 600 (a contemporary jury is sufficiently aware of the value of legal counsel not to draw tenuous adverse inferences from a reference to invocation). After full consideration of the record, we conclude that the trial court acted within its discretion when it denied defendant's motion for mistrial.

Defendant next argues that the trial court erred when it denied her motion for a continuance in order to prepare for the prior act evidence contained in the 1994 police report—namely, her statement to the police officer that it was "possible" Nute was engaged in prostitution, but she "didn't think so." The state responds that the trial court acted within its discretion when it denied the continuance.

We are bound by the trial court's factual findings in support of its discovery ruling, provided that they are supported by evidence in the record. State v. Lindquist, 141 Or.App. 84, 87, 917 P.2d 510 (1996). Whether those facts add up to a violation of the state's discovery obligation is a question of law. Id. at 88, 917 P.2d 510. The relevant statutes require the prosecutor to disclose "[a]ny written or recorded statements or memoranda of any oral statements made by the defendant" and that he or she do so "as soon as practicable." ORS 135.815(2); ORS 135.845(1). If the state learns of new evidence during trial, it must "promptly" notify defendant. ORS 135.845(2).¹

Here, the prosecutor received the report and turned it over to defendant in the middle of trial. Defendant argues that the prosecutor "presumably" knew the...