State v. Hendon

• Decision Date: 03 September 2008
• Docket Number: A131591.,051036355.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Lawrence David HENDON, Defendant-Appellant.
• Court: Oregon Court of Appeals

194 P.3d 149

222 Or. App. 97

STATE of Oregon, Plaintiff-Respondent, v. Lawrence David HENDON, Defendant-Appellant.

051036355.

A131591.

Court of Appeals of Oregon.

Submitted on February 27, 2008.

Decided September 3, 2008.

Ingrid Swenson, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and David Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Doug M. Petrina, Assistant Attorney General, filed the brief for respondent.

Before BREWER, Chief Judge, and SCHUMAN, Judge, and DEITS, Judge pro tempore.

BREWER, C.J.

Defendant appeals a judgment of conviction for possession of a controlled substance, former ORS 475.992 (2005), renumbered as ORS 475.840 (2007), raising two assignments of error. First, defendant contends that the trial court erred by admitting evidence, namely a plastic bag containing a "clear crystal," obtained after an unlawfully extended stop. Second, defendant contends that the trial court erred in admitting a laboratory report identifying the substance in the plastic bag as methamphetamine without requiring the state either to call the criminalist who prepared the report or to demonstrate that the criminalist was unavailable. We reverse on the second assignment of error but also address the first because the issue it raises is likely to arise again on remand.

The following facts are supported by evidence in the record. See, e.g., State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993); State v. Silva, 170 Or.App. 440, 442, 13 P.3d 143 (2000) (factual findings consistent with trial court's ultimate conclusion are binding on appellate court if there is constitutionally sufficient evidence in the record to support them). Officer Filbert was in his patrol car when he observed defendant get out of a vehicle and cross two barriers (a fence and a chain) and then train tracks at a MAX station in north Portland in violation of posted signs. Filbert called and motioned to defendant to stop, which defendant did. At that time, Filbert believed that he had observed defendant commit the crime of trespass.

Defendant stopped on the sidewalk and waited while Filbert walked to join him. Filbert asked defendant his name and if he had any "dope." Defendant provided his name and stated that he had no warrants. As to the question about drugs, defendant responded, "No, you can check if you want." Filbert ran a radio records check on defendant, which came back clear.¹ Filbert then asked defendant if he could search him, and defendant said, "Okay." In defendant's front pocket, Filbert found a plastic bag containing a clear crystal. Filbert asked defendant if that was his "meth," and defendant responded, "[O]h damn, I forgot about that." Filbert cited defendant for possession of a controlled substance, but not for trespass.

Because it is dispositive, we first address defendant's second assignment of error, in which he contends that the trial court erred in admitting the lab report identifying the substance seized from him as methamphetamine. Before trial, defendant notified the state that he requested the presence of the criminalist who prepared the report. The state did not procure the attendance of the criminalist, and defendant moved in limine to exclude the report. Defendant raised a number of arguments in support of his motion, including that admitting the report without the presence or unavailability of the criminalist violated his right to confrontation under the Sixth Amendment to the United States Constitution. The trial court denied defendant's motion and convicted him after a trial on stipulated facts.

On appeal, defendant argues that the trial court erred in admitting the report without requiring the state to call the criminalist or establish that the criminalist was unavailable. He contends, relying primarily on Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), that the report is testimonial evidence and, accordingly, the Sixth Amendment guarantees him the opportunity to cross-examine its author unless the state establishes that the author is unavailable. He further argues that Article I, section 11, of the Oregon Constitution should be interpreted to provide the same guarantee.

The state responds by conceding error, albeit in a somewhat limited way. The state contends that the trial court did not err under State v. Birchfield, 342 Or. 624, 631-32, 157 P.3d 216 (2007), which was decided after defendant submitted his brief in this case and in which the Supreme Court held that Article I, section 11, is violated where a lab report identifying drugs is admitted after a defendant notifies the state that it should produce the criminalist, but the state does not subpoena the criminalist or establish that the criminalist is unavailable. Instead, the state contends that the trial court erred under State v. Hancock, 317 Or. 5, 854 P.2d 926 (1993), in which, according to the state, the Supreme Court construed ORS 475.235 "as a notice requirement and which defendant adequately complied with here."

We initially address preservation. Although the state does not argue directly that defendant did not preserve below a similar challenge under Article I, section 11, preservation concerns may underlie the limited nature of the state's concession of error. And, in any event, we must examine preservation even if it is not raised. State v. Wyatt, 331 Or. 335, 345-47, 15 P.3d 22 (2000). The confrontation arguments before the trial court focused almost exclusively on the Sixth Amendment; however, there was one reference by the state to Hancock in response to defendant's objection to admission of a similar report under both the state and federal constitutions.

Assuming without deciding that the state's single reference to Hancock was not sufficient to preserve defendant's claim that the trial court erred in failing to suppress the report under Article I, section 11, we nevertheless will address and correct the error under the state constitution. As we explained in similar circumstances in State v. Marroquin, 215 Or.App. 330, 335-38, 168 P.3d 1246 (2007), the error under Article I, section 11, is plain in light of Birchfield and, for the reasons expressed in Marroquin, we exercise our discretion to correct it. Because the report was the sole evidence that the substance in defendant's pocket was methamphetamine, admitting the report was not harmless and, accordingly, we reverse. See OEC 103(1) (evidentiary error not presumptively prejudicial); cf. State v. Willis, 219 Or.App. 268, 275, 182 P.3d 891 (2008) (error under Article I, section 11, in admitting lab report was harmless where experienced police officer identified exhibit as marijuana).

As noted, however, we also address defendant's other assignment of error because the issue it raises is likely to arise on remand. In that assignment of error, defendant challenges the denial of his motion to suppress the plastic bag found in his pocket, made on the ground that his consent to search was the product of an unlawful extended stop. See State v. Shirley, 221 Or.App. 12, 14, 188 P.3d 410 (2008) (similarly addressing issue that was likely to arise on remand). Defendant does not contend that his consent to search was involuntary. Moreover, defendant concedes that he was initially lawfully stopped for trespass. Nevertheless, relying on both the state and federal constitutions, defendant argues that Filbert unlawfully expanded the subject matter of the stop and prolonged its duration and, further, that Filbert exploited that illegality to obtain defendant's consent to search. The state argues that Filbert did not unlawfully expand or prolong the stop. Even if he did, the state alternatively contends, Filbert did not exploit that illegality to obtain defendant's consent to search.

The state has the burden of establishing the validity of a warrantless search or seizure. State v. Tucker, 330 Or. 85, 89, 997 P.2d 182 (2000); State v. Rudder, 219 Or. App. 430, 435, 183 P.3d 212 (2008). Although voluntary consent is generally a valid exception to the warrant requirement, if police obtain consent to search by exploiting a prior violation of a defendant's Article I, section 9, rights, evidence revealed as a result of that search will be suppressed. State v. Hall, 339 Or. 7, 21, 115 P.3d 908 (2005).

We first address defendant's argument that Filbert unlawfully expanded the scope of the stop by asking defendant about drugs. As discussed, defendant concedes that he was initially lawfully stopped for trespass. As we held in State v. Amaya, 176 Or.App. 35, 44, 29 P.3d 1177 (2001), aff'd, 336 Or. 616, 89 P.3d 1163 (2004), questioning during a lawful stop on a matter unrelated to the basis for that stop does not require independent reasonable suspicion concerning the unrelated matter. See also State v. Duffy, 176 Or.App. 49, 53, 29 P.3d 1222 (2001), rev. den., 337 Or. 669, 104 P.3d 601 (2004) (following Amaya); State v. Williams, 206 Or.App. 432, 434-35 n. 2, 136 P.3d 1201 (2006) (declining to revisit Amaya). Defendant suggests that Amaya's holding is limited to traffic stops. We reject that suggestion. Nothing in Amaya indicates that the type of stop is important, as long as the stop was lawful. Defendant also argues that we should revisit the holding in Amaya; in his view, the fact that the Supreme Court affirmed in that case on another ground undermines the continuing validity of the ground that we relied on. The implication that defendant draws is unjustified. Because the Supreme Court did not address our reasoning in Amaya, our holding remains good law, and we decline defendant's invitation to reconsider it.

Defendant alternatively contends that Filbert unlawfully prolonged the duration of the stop. Defendant argues that this case resembles State v. Ehret, 184 Or.App. 1, 10, 55 P.3d 512 (2002), in which we...