State v. Cooper
| Decision Date | 19 May 1993 |
| Citation | 852 P.2d 948,120 Or.App. 490 |
| Parties | STATE of Oregon, Respondent, v. Mark K. COOPER, Appellant. 91-2249-C; CA A72530. . * |
| Court | Oregon Court of Appeals |
James N. Varner, Deputy Public Defender, Salem, argued the cause, for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
A jury convicted defendant of assault in the fourth degree and criminal mischief in the second degree. ORS 163.160; 164.354. The issue is whether the state can prevent the court from excluding a witness, who is a city police officer, by designating the officer as the state's representative under OEC 615(2). We reverse and remand.
This is a simple assault and criminal mischief case. The pivotal issue in the trial was whether defendant or "the victim" was the aggressor. Both testified, and they gave notably different accounts of their altercation.
Davis testified that he is a process server. After two or three unsuccessful attempts to serve documents on defendant, he went to defendant's home and found the front door partially open. He knocked, and defendant came to the door. Davis told defendant that he had some papers for him. Defendant kicked the door closed, but the latch did not engage, and the door bounced open. Davis dropped the documents and turned to leave. As he was leaving, defendant came out and kicked him. Davis turned around and said, "I don't want this to go any farther." Defendant lunged at Davis and a scuffle ensued.
Defendant testified that he was awakened by a loud bang. He went to the door and saw a person (Davis) whom he did not know. Davis kicked in the door, grabbed defendant and dragged him outside. Eventually, the men separated, and Davis left.
Davis went to a nearby park to call the police. Defendant went to the police station. Both men wanted to press charges. Officer Brooks took a statement from defendant, who then went to a hospital for medical treatment. Davis arrived at the station, and Brooks took a statement from him also. After taking the witnesses' statements, Brooks decided to cite defendant for assault.
At trial, defendant moved to exclude witnesses from the courtroom while they were not testifying. For reasons known only to the state, the prosecutor designated Brooks as the state's representative and requested that she be allowed to sit at the counsel table. The court granted the state's request.
In his first assignment of error, defendant contends that the court erred by refusing to exclude Brooks from the courtroom. The dissenting opinions contend that defendant did not preserve the purported error for appellate review. 1 In State v. Hitz, 307 Or. 183, 188, 766 P.2d 373 (1988), the court articulated a framework for determining whether an error has been adequately preserved:
(Emphasis in original; citation omitted.)
At trial, defendant argued:
Defendant clearly objected to Brooks' presence in the courtroom, as well as her placement at the counsel table. He identified OEC 615 as the source of law that supported his contention that she should be excluded from the courtroom.
Defendant argued:
That argument addressed defendant's contention that Brooks did not fit within any of the exceptions to the general rule of OEC 615, including the exception for a witness who is "an officer or employee of a party which is not a natural person." Defendant satisfied every requirement for preserving the purported error. State v. Hitz, supra.
The caption of defendant's first assignment of error refers to his contention that the court erred by allowing Brooks to sit at the counsel table. An unnecessarily rigid application of ORAP 5.45 might lead to the conclusion that he has not properly presented his contention that the court erred by refusing to exclude Brooks from the courtroom. However, in the first paragraph of his argument he states, "Defendant appeals from the trial court's failure to exclude this police officer witness." The remainder of his argument focuses on whether the officer should have been excluded from the courtroom. He has adequately assigned the error for our review. ORAP 5.45(2), (4).
Accordingly, we turn to the merits of defendant's first assignment of error. OEC 615 provides:
In general, a decision whether to exclude witnesses is within the court's discretion, because OEC 615 provides that "the court may order witnesses excluded." (Emphasis supplied.) By using the term "may" in the rule, the legislature intended courts to have discretion in deciding whether to exclude witnesses. State v. Harding, 116 Or.App. 29, 32 n. 4, 840 P.2d 113 (1992); see State v. Ede, 167 Or. 640, 642-43, 117 P.2d 235 (1941). 2 However, OEC 615 "does not authorize exclusion" of witnesses who fall into one of four categories of exceptions. It does not give the court discretion to exclude them. 3 Whether a party can designate a witness as its "representative" under OEC 615(2) is a question of law.
OEC 615(2) provides that "an officer or employee of a party which is not a natural person" may be designated as a representative. Brooks was an employee of the City of Ashland. See ORS 237.610. The City of Ashland is not a party in this case--the State of Oregon is. Brooks was neither an officer nor an employee of the state.
The state apparently believes that it can designate any witness it desires as its "representative" and the court is without authority to exclude that witness from the courtroom. The legislature could not have intended to permit a litigant to abrogate a statute at will. A party that is not a natural person may designate a witness as its representative only if it establishes that the witness is actually an officer or an employee of the party. The state did not make that showing, nor could it.
Brooks was not one of the four types of witnesses who are exempt from exclusion under OEC 615. The court was therefore required to exercise its discretion in deciding whether to exclude her from the courtroom. However, the court did not exercise its discretion, because it mistakenly concluded that it had no authority to exclude her. The court's failure to exercise its discretion constituted an error. Because of the difficulty of showing that the testimony of one witness has been influenced by the testimony of another, we presume that defendant was prejudiced by Brooks' presence in the courtroom, "unless the record affirmatively reflects the contrary." State v. Cetto, 66 Or.App. 337, 340, 674 P.2d 66, rev. den. 296 Or. 712, 678 P.2d 740 (1984). Nothing in this record negates that presumption.
To the contrary, the record reflects that the prejudice was compounded. Brooks testified after sitting through the testimony of the state's other witnesses, and she testified again on rebuttal after hearing defendant's entire case. See State v. Vosika, 83 Or.App. 298, 302, 731 P.2d 449, clarified 85 Or.App. 148, 735 P.2d 1273 (1987); State v. Ott, 61 Or.App. 576, 583, 659 P.2d 388 (1983), rev'd on other grounds 297 Or. 375, 686 P.2d 1001 (1984).
Defendant also contends that the court erred by not granting a mistrial. Because we conclude that defendant is entitled to a new trial, we need not address that assignment of error.
Reversed and remanded for a new trial.
The majority holds that OEC 615 " 'does not authorize exclusion' of witnesses who fall into one of [its] four categories of exceptions." 120 Or.App. at 494-95, 852 P.2d at 950-51. Then, at footnote 3, it says "[w]e express no opinion whether any other rule of law authorizes a court to exclude a witness who falls within one of the exceptions listed in OEC 615." It concludes that, because the state's designated representative was a city police officer, not an officer or employee of the state, the trial court was not bound by OEC 615 to permit the witness to sit at counsel table as the state's representative.
Although I agree with the majority that the trial court mistakenly believed it had no discretion to exclude the city police officer as a representative of the state, I do so for a different reason. OEC 615 does not mandate that a trial court allow the state to preempt the court's obligation to ensure that a fair trial occurs. It is not uncommon in criminal trial proceedings that cross-examination of the state's witnesses is crucial to a fair presentation of a defendant's case. Often, for cross-examination of a prosecution witness to be effective,...
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State v. Cooper
...officer was not an "officer" of the state for purposes of OEC 615(2) and reversed and remanded for a new trial. State v. Cooper, 120 Or.App. 490, 852 P.2d 948 (1993). We disagree, holding that the officer was, in the circumstances of this case, the functional equivalent of a state police of......
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