State v. Baker/Jay

• Decision Date: 18 November 2009
• Docket Number: 0112-38476.,0112-38477.,A131574 (Control),A131575.
• Parties: STATE of Oregon, Plaintiff-Appellant, v. Dion Leaquone BAKER, Defendant-Respondent. State of Oregon, Plaintiff-Appellant, v. Derrick Jermaine Jay, Defendant-Respondent.
• Court: Oregon Court of Appeals

221 P.3d 749

232 Or. App. 112

STATE of Oregon, Plaintiff-Appellant, v. Dion Leaquone BAKER, Defendant-Respondent.

State of Oregon, Plaintiff-Appellant, v. Derrick Jermaine Jay, Defendant-Respondent.

0112-38477.

A131574 (Control)

0112-38476.

A131575.

Court of Appeals of Oregon.

Argued and submitted on November 25, 2008.

Decided November 18, 2009.

Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

David Ferry, Deputy Public Defender, argued the cause for respondent Dion Leaquone Baker. With him on the brief was Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Rankin Johnson IV, Portland, argued the cause and filed the brief for respondent Derrick Jermaine Jay.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and CARSON, Senior Judge.

ORTEGA, J.

In this consolidated case involving two codefendants, Baker and Jay, the state appeals four pretrial orders suppressing the testimony of a police officer and other evidence. ORS 138.060. In two cross-assignments of error, defendant Jay challenges the trial court's denial of his motion to suppress evidence discovered during a traffic stop and evidence of jail visitation logs created after his arrest. We vacate two of the orders in their entirety, reverse two others in part, and remand for further proceedings.

I. FACTS

On June 16, 2001, the driver of a blue car shouted derogatory and racist remarks at a mixed-race couple as the couple stood in front of their Portland apartment. When one of the victims told the driver that he "shouldn't say that," the driver pulled over, got a gun from the car's trunk, pointed it at the couple, and instructed them to leave the neighborhood. The couple left the area, then returned. They later discovered that the tires of their own car had been slashed.

One of the couple's neighbors witnessed both the confrontation and the tire-slashing incident and called the police after the second incident. The neighbor told police that the perpetrators of the initial threat had been involved in slashing the couple's tires. She identified the car as a "Chev[rolet] Celebrity, four-door, slate blue in color" and provided a partial license plate number.

The couple decided to move out of their apartment. They did so several days later, with a police officer present to ensure their safety. While the officer was outside the couple's apartment, the couple's neighbor told the officer that the car driven by the perpetrators was parked nearby. After one of the victims confirmed that the car was the one involved in the menacing incident, the officer researched the car's full license plate number in the police data system and discovered that one of the defendants, Baker, was associated with the car.¹

On June 21, five days after the original incident, two masked and armed suspects broke into a North Portland home. They hit one of the occupants with a gun, stole cash, and stole a rental car parked in the home's driveway. The victims gave descriptions of the robbers to the police. The stolen car was recovered the next day at a location near both the scene of the robbery and the duplex where defendants were staying at the time.

In the meantime, officers Santos and Stradley had begun investigating the menacing incident and conducted surveillance at the residence where the blue Celebrity had been seen. Information gathered during that surveillance led to three traffic stops on June 22, 2001—one stop of the Celebrity with which Baker was associated and two traffic stops of a gray Chevrolet Caprice.

The first stop of the Caprice occurred shortly after noon. After Santos observed the car near the residence that was under surveillance, he directed another officer, Staul, to stop the car on the ground that the windows were excessively tinted. Staul conducted the stop and made contact with defendants, but they were neither cited nor detained at that time.

Approximately one hour later, Santos asked Staul to stop the Celebrity that police suspected was involved in the menacing incident; the basis for the stop was that the car's driver had failed to stop for a red light. Staul conducted the traffic stop and, several minutes later, was joined by Santos, who obtained the consent of the driver, Foster, to search the car for weapons. The officers did not find any weapons in the car but found three citations in the glove box, including one dated 12 days earlier showing that defendant Baker had been operating the car. The final encounter, in which officers again stopped the Caprice, occurred later that afternoon and resulted in defendants' arrest.

After defendants' arrest, police eventually obtained 10 search warrants relating to their investigation of defendants. The initial warrants authorized searches of the Caprice in which defendants had been arrested and the residence in which they had been seen shortly before their arrest. The discovery during those searches of a mask, gloves, and clothing, as well as information gathered from defendants after their arrest, led to additional warrant searches, including a warrant search of the home of defendant Jay's girlfriend, Thompson, which resulted in the discovery of two firearms. Analysis of those firearms and of the evidence discovered in the Caprice connected defendants with the unsolved June 21 robbery. Defendants were charged with various drug and firearms-related offenses in federal court, as well as several robbery and firearms-related offenses in state court.

Based on the federal charges against them, defendants originally were held in federal custody. On at least two occasions, the state obtained a writ of habeas corpus ad prosequendum from the state circuit court, ordering federal officials to transport Baker from a federal facility to Multnomah County Circuit Court.² The state proceedings against defendants were held in abeyance pending the outcome of the federal litigation. After defendants were convicted in federal court, the state court scheduled a hearing for December 12, 2005, on defendants' motions to suppress evidence.

Several days before the hearing, federal officials transported defendant Baker from Oregon to a federal facility in Oklahoma. Despite being aware of the scheduled hearing, the state failed to obtain a writ specifically ordering Baker's transport from that facility. Federal officials indicated that they were unable to return Baker to Oregon until early January.

At the December 12 hearing, the prosecutor acknowledged that the state had been responsible for ensuring defendant Baker's attendance and that it had failed to do so. Counsel for defendant Baker declined to proceed in Baker's absence. Defendants instead moved to dismiss the indictments based on the state's failure to ensure Baker's attendance. In addition to defendant Baker's absence, Stradley was on vacation and therefore also failed to comply with defendants' subpoenas to attend the December 12 hearing.

The trial court denied defendants' motion to dismiss the indictments and, acting on its own motion, set over the suppression hearing until January. Defendants then sought to exclude Stradley's testimony at the January hearing, arguing that, but for the state's failure to arrange for defendant Baker's transport, the December 12 hearing would have gone forward without Stradley's testimony; defendants argued that the state should not benefit from its neglect in regard to defendant Baker by having the benefit of that testimony at the January hearing. The trial court delayed ruling on that motion until the hearing resumed.

When the hearing resumed over a 13-day period in January, defendants renewed their motion to exclude Stradley's testimony. Stradley was present and testified about his earlier failure to comply with defendants' subpoenas. He explained that, at the time of the initial hearing, he had been on vacation in Arizona. He acknowledged that, before making his vacation request, he had checked his calendar and noticed that he had been subpoenaed in this case, but explained that the Portland Police Bureau's calendar system did not identify which party had subpoenaed him. Stradley explained that he had spoken with the district attorney regarding the "time frame" in this case, and it was his understanding that "everything had been set over until the 30th of January [2006]." Based on his understanding that there were no proceedings in the case until January 30, in late November, Stradley requested vacation time and, until he was contacted on the morning of the suppression hearing, he was not aware that a hearing had been scheduled for December 12.

The trial court determined that the state had the responsibility for arranging Baker's transportation to the suppression hearing, that it had successfully done so in the past, and that its failure to do so in regard to the December 12 hearing, although not malicious and not rising to the level of prosecutorial misconduct, was "more than negligent." The trial court further determined that Stradley had been validly subpoenaed and that, despite his knowledge of the subpoena, he "willfully" chose not to appear.³ The court noted that, had the hearing occurred on December 12, the court would not have permitted Stradley to testify telephonically and would not have granted a continuance to allow him to return to offer testimony. The court therefore excluded Stradley's testimony and the testimony of the other officers to the extent that it was based on information acquired from him:

"My ruling is this: Where we have someone who is subpoenaed by a criminal defendant to be here to testify and they don't show up at the start of the hearing, the ruling is they don't testify in the hearing. Period. They don't testify in the hearing. That's not a sanction to the State[,] that is the Court's ruling as what happens when a...