State v. Hale, 070331144

• Decision Date: 06 September 2012
• Docket Number: A139382.,070331144
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Deprince Romey HALE, aka Deprince Hale, Defendant–Appellant.
• Court: Oregon Court of Appeals

252 Or.App. 187

288 P.3d 1

STATE of Oregon, Plaintiff–Respondent,

v.Deprince Romey HALE, aka Deprince Hale, Defendant–Appellant.

070331144; A139382.

Court of Appeals of Oregon.

Argued and submitted Dec. 21, 2011.

Decided Sept. 6, 2012.

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. Deprince Romey Hale filed the supplemental brief pro se.

Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

WOLLHEIM, J.

Defendant and his codefendant, Klein, were charged with murdering Asia Bell and attempting to murder Tyrone James and Robert Milhouse in a gang-related shooting at the Bell residence (“the Bell shooting”). The Bell shooting occurred in 2002, 5 but the criminal investigation went cold until Klein's former girlfriend, Hutchens, contacted the prosecutor's office in 2006. Based on information that Hutchens supplied, police obtained orders allowing them to intercept communications between defendant and Hutchens by way of a body wire worn by Hutchens. And, based on evidence obtained via the body wire and further investigation, the police obtained a wiretapping order that yielded additional evidence regarding the shooting. Both Klein and defendant sought to suppress evidence obtained by way of those intercept orders, on the ground that the orders—particularly, the second body-wire order—were obtained illegally. The trial court denied the motions, and Klein and defendant were convicted of murder, conspiracy to commit murder, and attempted aggravated murder.

Klein's appeal reached this court first. He argued, as he did below, that the body-wire and wiretapping evidence should have been suppressed because the underlying communications were unlawfully intercepted. SeeORS 133.735(1) ( “[a]ny aggrieved person in any trial, hearing or proceeding in or before any court * * * may move to suppress the contents of any wire, electronic or oral communication intercepted under ORS 133.724, or evidence derived therefrom” on the ground that the “communication was unlawfully intercepted”); ORS 133.736(1) (similarly providing that any “aggrieved person” may move to suppress unlawfully intercepted body-wire evidence). We affirmed without reaching the merits of Klein's suppression argument, however, because the intercept order that he challenged—the second body—wire order-was directed at communications between Hutchens and defendant, not Klein. Thus, Klein was not a party to the intercepted communication and was not otherwise an “aggrieved person” for purposes of challenging the second body-wire order. State v. Klein, 243 Or.App. 1, 10, 258 P.3d 528 (2011). The Supreme Court affirmed that decision. 352 Or. 302, 283 P.3d 350 (2012).

We now have defendant's appeal before us, in which he raises the same suppression issue that his codefendant raised in Klein: whether the second body-wire order was unlawful because it was signed by a judge who, years before, had been the district attorney assigned to the then-unsolved case of the Bell shooting. Defendant, unlike Klein, was the subject of the second body-wire order and can challenge that order as an “aggrieved person.” SeeORS 133.721(1) (“ ‘Aggrieved person’ means a person who was a party to any wire, electronic or oral communication intercepted under ORS 133.724 or 133.726 or a person against whom the interception was directed and who alleges that the interception was unlawful.”). Now reaching the merits of the issue, we conclude that the trial court correctly denied the motion to suppress. We also reject defendant's remaining contentions, some of which were also rejected by this court and the Supreme Court in Klein, and thus affirm defendant's convictions.¹

I. BACKGROUND

In 2002, Asia Bell, Tyrone James, and Robert Milhouse were shot on the front porch of the Bell residence. The facts surrounding the shooting are described in the Supreme Court's opinion in Klein, which we repeat here for purposes of background:

“[Klein] drove [defendant] to and from the scene of the crime. [Klein's] girlfriend at the time, Sonja Hutchens, served as a lookout during the shooting. [Klein] and [defendant] are gang members; the victims were associated with, although not members of, a rival gang.

“The police developed few leads in their investigation until 2006, when Hutchens, who then was serving a 10–month jail sentence for an unrelated crime, contacted the prosecutor to offer information about the murder in exchange for an early release. Hutchens identified [defendant] as the shooter; she did not identify [Klein] as the driver, nor did she acknowledge her role as lookout at that time. Based on the information that Hutchens supplied, the police obtained an order under ORS 133.726, the body-wire statute, to intercept oral communications between Hutchens and [defendant] by means of a body-wire worn by Hutchens.

“Before that order expired, the police applied for a second body-wire order, which is the subject of [Klein and defendant's challenges]. The application for the order described conversations between [defendant] and Hutchens that the police had intercepted previously. The application also stated that Hutchens had failed a lie detector test and had admitted to the police that she had misled them about several important facts regarding the murder. As relevant here, the application noted that Hutchens had stated that [Klein] had driven [defendant] and several other gang members to the house where the shooting occurred. The application also stated that Hutchens had admitted that she had followed [defendant] and [Klein] in a separate vehicle to serve as a lookout.

“Although the application for the order mentioned [Klein] and several other gang members who were present in the vehicle [during the shooting], the order did not name [Klein] or the other gang members. Rather, the order provided:

“ ‘The persons whose oral communications are to be recorded are SONJA ELAINE HUTCHENS and DEPRINCE ROMEY HALE [defendant] and other unknown subjects who may be present during contacts by SONJA ELAINE HUTCHENS with DEPRINCE ROMEY HALE. This order authorizes only the interception of oral communications to which SONJA ELAINE HUTCHENS is a party, which means oral communications that are made in the immediate presence of DEPRINCE ROMEY HALE and are audible to DEPRINCE ROMEY HALE.’

“Judge Eric Bergstrom signed the order.

“Based on the order, the police placed a body-wire on Hutchens and recorded conversations between [defendant] and Hutchens. Those conversations implicated [Klein] in the murder. Based in part on those conversations, the police obtained a wiretap order under ORS 133.724, which authorized the interception of communications made by [Klein] on his mobile phone. [Klein] made incriminating statements to Hutchens over his phone, which the police intercepted.

“Before trial, [Klein and defendant ²] filed separate motions to suppress evidence gained from the body-wire order and the wiretap order. As to the body-wire order, [the codefendants] alleged that the order was invalid because Judge Bergstrom was not a neutral and detached magistrate. [The codefendants] asserted that, in 2002, at the time of the murder, Judge Bergstrom had been a deputy district attorney for Multnomah County, and that he had been called to the scene of the murder and had attended the autopsy. Because there were no suspects in the murder investigation until Hutchens came forward in 2006, however, the district attorney's office did not open a file on the case until after Judge Bergstrom had left his position as a prosecutor in 2005. The trial court denied [their] motion. As to the wiretap order, [the codefendants] alleged that evidence gained under that order should be suppressed because the application for the order had relied on evidence gained from the invalid body-wire to establish probable cause. Thus, [their] argument that the wiretap evidence should be suppressed depended on the court's agreement with [their] argument that the body-wire evidence was unlawfully obtained and should be suppressed. The trial court denied [their] second motion as well.

“At trial, Hutchens was a witness for the state. [The codefendants] sought to raise questions about Hutchens's credibility through the testimony of Aisha Banks, who had been incarcerated with Hutchens. Banks was prepared to testify that Hutchens told her that she had ‘made up’ information about the shooting in order to get out of jail. The trial court excluded the evidence as cumulative under OEC 613(2) on the ground that Hutchens had already admitted making those statements: Hutchens testified on the stand that she had lied repeatedly to the police and others regarding the events in question, and she admitted telling Banks that she made up ‘this whole thing’ in order to get out of jail.”

352 Or. at 303–06, 283 P.3d 350.

Ultimately, Klein and defendant were both convicted for their roles in the crimes. Defendant was convicted of murder, attempted aggravated murder, and conspiracy to commit murder (which merged with the murder conviction). He was sentenced to life in prison with a mandatory minimum of 300 months in prison for the murder and, consecutively to that sentence, to two concurrent sentences of 121 months' imprisonment on the attempted aggravated murder convictions. He now appeals.

II. ANALYSIS

A. Motion to Suppress

In his first assignment of error, defendant contends that the trial court erred in denying his motion to suppress evidence derived from the use of a body wire. Specifically, defendant contends that the second body-wire order was not signed by a “neutral and detached magistrate” and was therefore unlawful. For the reasons that follow, we...