State v. Ferguson
| Decision Date | 08 April 1987 |
| Citation | 735 P.2d 3,84 Or.App. 565 |
| Parties | STATE of Oregon, Respondent, v. Jeffrey Wayne FERGUSON, Appellant. DA 314363-8602; CA A40337. |
| Court | Oregon Court of Appeals |
David B. Gray, Portland, argued the cause and filed the brief for appellant.
Jens Schmidt, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ. RICHARDSON, Presiding Judge.
Defendant was convicted of assault in the fourth degree and contends on appeal that the trial court erred by requiring him to attend his trial. He also asserts that the court erred by admitting a statement that should have been excluded under OEC 404(3). We affirm.
Defendant attended a party at Riviera Gardens apartments. The apartment manager received complaints about the party and a disturbance in the parking lot. He went to the parking lot carrying a nightstick and encountered defendant and two other individuals in a car. An argument occurred and a fight followed, resulting in the manager being beaten until he was unconscious. The manager could not identify defendant as one of his assailants, because he was attacked from behind.
Defendant's pretrial motion to waive his personal appearance under ORS 135.030 and 136.040 was denied. He also made a pretrial motion to exclude the statement overheard during the fight, "Jeff, don't kick the woman." That motion was granted. However, after defendant testified that he had not participated in the assault, the state asked the court to reconsider the admissibility of the statement. The court, after testimony outside the presence of the jury from four witnesses, concluded that the statement's reliability was established and admitted it as an excited utterance.
Defendant first assigns as error the trial court's denial of his pretrial motion to waive appearance at trial. ORS 136.040 provides:
"If the charge is for a misdemeanor, the trial may be had in the absence of the defendant if the defendant appears by counsel; but if it is for a felony, the defendant shall appear in person."
He contends that that statute gives an individual charged with a misdemeanor the right to be absent from trial and that the trial court did not have the authority to require him to appear. 1
The statute does not expressly address whether an accused, rather than the court, may decide whether the trial will be conducted in his absence. Neither does defendant provide any authority to support his theory. Decisions from jurisdictions that have interpreted similar statutes are instructive in our construction of ORS 136.040. They hold that such statutes grant discretion to the court to allow a defendant's absence. Souther v. Reid, 101 F.Supp. 806, 807 (E.D.Va.1951); State v. Brandt, 253 N.W.2d 253, 260 (Iowa 1977). The statutes do not give a defendant an absolute right to be absent at his option, as defendant here suggests. State v. Super, 281 Minn. 451, 458, 161 N.W.2d 832 (1968). Additionally, the prosecution has the right to require a defendant's presence so that he can be identified by witnesses. State v. Brandt, supra, 253 N.W.2d at 260; State v. Super, supra, 281 Minn. at 458, 161 N.W.2d 832.
We conclude that ORS 136.040 does not support defendant's argument. A logical interpretation of the statute indicates that the court may determine, in some circumstances, that a fair trial may be conducted in a defendant's absence, if his counsel is present. This interpretation is consistent with the statute's purpose, which is to protect a defendant from unfair proceedings in his absence. State v. Beeson, 248 Or. 411, 434 P.2d 460 (1967). Accordingly, ORS 136.040 does not prohibit the court, in the exercise of its discretion, from ordering a defendant to be present at trial. The court's ability to require a defendant's presence is especially important, in situations such as this, for identification. Without in-court identification, the state would have had difficulty presenting its case. The trial court did not abuse its discretion by requiring defendant to be present.
Defendant also assigns as error the trial court's admission of the statement by a hearsay declarant. Defendant, whose nickname is "Jeff," concedes that the statement, "Jeff, don't kick the woman," is relevant to and probative of whether he was present and is admissible as an excited utterance under OEC 803, but he argues that it should have been excluded under OEC 404(3), because it implies that he assaulted somebody else during the same incident and that such "uncharged misconduct" must be excluded, unless it fits one of the listed exceptions. OEC 404(3) provides:
OEC 404(3) prevents admission of prior bad act evidence when offered solely to prove the character of the person and that the person acted in conformity therewith. State v. Johns, 301 Or. 535, 725 P.2d 312 (1986); see also State v. Harvey, 82 Or.App. 595, 728 P.2d 940 (1...
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Rees v. State
...he had actual authority to order plaintiff's arrest and to compel her attendance after she failed to appear. See State v. Ferguson, 84 Or.App. 565, 735 P.2d 3 (1987). Plaintiff concedes as much. She states in her brief that "position is not that Judge Wilson was without the jurisdiction to ......