State v. Doern
| Jurisdiction | Oregon |
| Parties | STATE of Oregon, Respondent, v. William Robert DOERN, Appellant. 9505-33253; CA A93818. . * |
| Citation | 967 P.2d 1230,156 Or.App. 566 |
| Court | Oregon Court of Appeals |
| Decision Date | 28 October 1998 |
Peter Gartlan, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.
Katharine M. Hoskinson, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Defendant appeals his convictions and the resulting sentence on two counts of assault in the second degree. ORS 163.175. He contends that the trial court erred by limiting his time for closing argument to the jury to 20 minutes. 1 We agree and reverse and remand.
Defendant was charged with first-degree assault, ORS 163.185, and with the two second-degree assault counts as alternative theories of culpability for the same crime. 2 Defendant shot and injured Marc Difrancisco in an encounter in a nightclub parking lot. There was evidence that defendant drove to the location to confront Difrancisco who, defendant thought, had raped defendant's girlfriend. Defendant asserted a self-defense defense, ORS 161.209, and also presented evidence and argument that the most serious crime of which he could be guilty was third-degree assault. ORS 163.165.
Defendant was apparently in his pickup truck at all times during the encounter. Difrancisco's whereabouts at the various stages of the incident are less clear. He was on foot at the beginning. According to defendant, Difrancisco pointed a handgun and fired a shot at defendant while Difrancisco was still outside of his car. Hence, defendant argued, he reached for and fired his own weapon only in response to Difrancisco's attack. The state disputed that Difrancisco had a gun or fired one. The door of Difrancisco's vehicle was damaged by defendant's shot. There was evidence that was consistent with a number of possible spatial relationships between Difrancisco and the car door and with various possible temporal relationships between the initiation of the encounter and the firing of defendant's gun. A companion of Difrancisco's moved him away from the area of the door and the driver's seat and drove him to the hospital, so his exact location in or near the car at the time of the shooting was never certainly determined.
During the course of the trial, defendant and his counsel disagreed about trial tactics, which led to defendant electing and the trial court allowing him to proceed pro se. Among the matters about which defendant and his attorney did not see eye to eye was whether to present the testimony of defendant's girlfriend that she had been an eyewitness to the events and that Difrancisco had indeed fired at defendant. Defendant presented her testimony, and she was forcefully impeached.
The trial lasted five days. Before recessing for the evening on the day that the parties concluded their evidentiary presentations, the court stated to defendant and to the prosecuting attorney:
"I'd like to suggest to both of you, and I don't know how long you anticipate, but I think especially with what I hope is the clarification of the elements that we can hold closing argument down to 15 or 20 minutes a-piece."
The next day, the court reiterated its ruling in the following exchange:
Insofar as we can determine from the record, defendant's argument lasted for roughly the 20 minutes he was allotted. A significant portion of the argument was devoted to his self-defense theory. Approximately three-fourths of the way through defendant's argument, the prosecuting attorney objected and stated that it was his understanding that the jury was not to be instructed on self defense. The court responded that, although no self-defense instruction had been among the ones that it and the parties had gone over the previous day, it was the court's understanding "that self defense was part of the case," that defendant had requested an instruction on self-defense and that "I do intend to instruct on that issue." The prosecutor responded,
Nevertheless, without any explanation that appears in the record at our disposal, no such instruction was given. The only issue that was submitted to the jury concerning Difrancisco's alleged hostile activities arose from the state's allegation, as a potential sentencing factor relevant only to the first-degree assault charge, that Difrancisco "did not substantially contribute to the commission of the * * * offense by precipitating the attack." In addition to their immediately intended purpose, defendant's arguments directed at his self-defense theory were also germane to that issue. Further, they were relevant inferentially to the state of mind with which he acted and, concomitantly, the degree of assault that he might have committed. The jury acquitted defendant of first-degree assault and found him guilty on the two second-degree assault charges. He appeals from the resulting conviction and sentence.
In his brief, defendant contends principally that the limitation on his closing argument violated his rights under the state and federal constitutional jury trial and counsel provisions. He relies on State v. Rogoway, 45 Or. 601, 78 P. 987, 81 P. 234 (1904), where the Supreme Court held--without apparent differentiation between the state and federal provisions--that the defendant's jury trial rights were abrogated by the one-hour limit that the trial court had placed on his time for closing argument to the jury in a criminal trial. Defendant mentions ORCP 58 B only in passing in his brief but, at oral argument and in a memorandum of additional authorities, that rule became a focal theory for defendant's assertion of error.
ORCP 58 B(5) is made applicable to criminal trials by ORS 136.330(1), and provides:
"Not more than two counsel shall address the jury in behalf of the plaintiff or defendant; the whole time occupied in behalf of either shall not be limited to less than two hours."
Because defendant's ORCP 58 B argument provides a potential nonconstitutional basis for our decision, we will reach the argument. See, e.g., Leo v. Keisling, 327 Or. 556, 964 P.2d 1023 (1998); Zockert v. Fanning, 310 Or. 514, 800 P.2d 773 (1990).
There is no question that the trial court's limitation of defendant's closing argument to 20 minutes violated ORCP 58 B and was error. The only issue is whether the error is reversible. Although most of the state's arguments for a negative answer were presented in its brief, and were accordingly responsive only to the constitutional issues that defendant raised in his brief, we will assume that the state intends those arguments to be considered in connection with the ORCP 58 B issue as well. 3
The state contends first that the trial court did not actually impose a limit on defendant's argument time but, rather, merely suggested to the parties that they confine themselves to 20 minutes. We disagree. The fact that the court communicated its ruling through words that might seem precatory in an everyday setting does not change the very different import that those words carried when repeated twice by a judge from the bench in a trial over which he was presiding. We agree with defendant that the 20-minute limitation on his argument time constituted a ruling by the court.
The state next argues that defendant did not adequately preserve the error, because his objection simply challenged "that limiting," and it specified no ground. As indicated above, the state's argument was made in response to defendant's brief, in which his theories were constitutional. Without deciding whether defendant's objection in the trial court was adequate to preserve the constitutional arguments he advances on appeal, we hold that there is no preservation problem with respect to his ORCP 58 B argument. ORCP 58 B(5) deals solely and exclusively with closing jury arguments and with the time constraints that trial judges may place on them. It disallows precisely what the trial court did in limiting defendant's argument to less than two hours. Defendant objected to the limitation itself. Under the preservation principles enunciated in State v. Hitz, 307 Or. 183, 766 P.2d 373 (1988), he thereby raised the relevant issue, and it was not necessary for him to have also identified ORCP 58 B(5) to the trial court as the source for his position in order to preserve the argument that he now makes on appeal.
This case is a particularly appropriate one for the application of the Hitz principle, under which the raising of issues at trial "is essential" to preservation, but identifying the "source for a claimed position" is "less so." Id. at 188, 766 P.2d 373. The issue raised by defendant's objection was that the trial court erred in its sua sponte limitation of defendant's closing argument time to one-sixth of the minimum time that ORCP 58 B(5), the unmentioned "source," specifies. Although defendant made no reference to ORCP 58 B(5), it would seem to be a fair enough assumption that the judge presiding at defendant's trial was or could readily become familiar with the rules of procedure that govern and limit the exercise of his authority over the conduct of the trial. Under the...
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