State v. Jackson
| Decision Date | 21 April 2022 |
| Docket Number | CC 18CR24467(SC S068428) |
| Citation | 369 Or. 510,508 P.3d 457 |
| Parties | STATE of Oregon, Respondent on Review, v. Michael David JACKSON, Petitioner on Review. |
| Court | Oregon Supreme Court |
Mark Kimbrell, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.
Robert M. Wilsey, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, and DeHoog, Justices.**
ORS 19.420(3), the lost record statute, provides that, when "an appeal cannot be prosecuted" by reason of the loss or destruction of an exhibit or "other matter necessary to the prosecution of the appeal" a reviewing court has discretion to order reversal and remand for a new trial "as justice may require." In this case, defendant was charged with and convicted of offenses that occurred during an encounter with police officers in an enclosed ATM vestibule. A surveillance video recorded the encounter and was admitted at trial as Exhibit 15. After the trial court entered the judgment of conviction, Exhibit 15 was lost or destroyed, and, in conjunction with his appeal to the Court of Appeals, defendant filed a motion seeking reversal and remand under ORS 19.420(3). The Appellate Commissioner denied defendant's motion, concluding, as a matter of law, that the lost exhibit was not "necessary to the prosecution of the appeal." The Court of Appeals denied reconsideration, and, because this court allowed defendant's petition for review, is holding defendant's appeal in abeyance. For the reasons that follow, we conclude that the Court of Appeals erred in summarily denying defendant's motion before more fully analyzing the issues defendant raised on appeal and considering whether Exhibit 15 was necessary to resolve those issues. We remand this case to the Court of Appeals to undertake that analysis.
Because the underlying appellate challenge is to a renewed motion to suppress, we recite the undisputed evidence that was available at the time of the motion's renewal. Shortly after midnight on Tuesday, April 3, 2018, Bend Police Officer Charles was uniformed and on patrol in his squad car. As he was driving, he noticed two men, defendant and another man, Michael, standing inside the lighted ATM vestibule of the Wells Fargo bank. The vestibule is six to eight feet square and its double doors are made of clear glass, making patrons in the vestibule readily visible from the street. During business hours, the vestibule's doors are unlocked, and a customer may walk from the street through its doors and then, to access banking services further inside the building, through a second set of doors. At night, when the bank is closed and locked, the vestibule also is locked, but a customer can enter it by unlocking its doors with an ATM card.
When Charles saw the two men in the vestibule, defendant was near the ATM, Michael was facing away from the door, and belongings were strewn on a countertop. Charles had not received a call raising concerns about the men or the vestibule, but he thought that the men's presence, late at night and mid-week with strewn belongings, was suspicious and that one of the men might be robbing the other. Charles parked his squad car, got out, and, undetected by the men, listened to their conversation from outside the vestibule for two to five minutes. The men were playing music and "just kind of carrying on with each other." Charles's concern that a robbery could be in progress was allayed, but he then suspected that the men were committing a "trespassing offense" because they were not "conducting any business" in the vestibule and it was midnight.
Charles approached the glass doors and found them locked, raising a concern that the men may have locked the vestibule doors behind them, preventing others from entering.1 Charles knocked, identified himself as a police officer, explained his concerns, and asked to see the men's identifications. Michael opened the door and presented an Oregon ID.
Throughout the conversation, Charles stood in the doorway to the vestibule. His chest faced the men, and his foot and arm were on one of the doors, holding it open. The wall was to his right and the second door was closed. Defendant did not initially respond to Charles's request for identification. Charles said, Defendant initially refused the request, telling Charles that Charles "was harassing him." Eventually, defendant displayed a debit card and then, while covering some of the relevant information such that Charles could not read it, what appeared to be a Washington ID.
Charles told defendant that it was "odd, that it's about midnight on a Tuesday" and defendant was "inside of a foyer at the bank with another male apparently not conducting any business from [Charles's] perspective." Defendant then dialed 9-1-1 on his cellphone. At some point, Charles allowed Michael to leave the vestibule, but Charles could not recall whether that was before or after defendant called 9-1-1.
Defendant told the 9-1-1 dispatcher that there was a "police emergency," that he was being harassed by the Bend City Police Department, and that he needed a state trooper. Defendant never identified himself to the dispatcher. The dispatcher asked about the officer who was holding the door open and defendant replied:
Defendant then set the phone down but did not end the call. Charles contacted dispatch, confirmed that defendant had called 9-1-1, and called for back-up.
Charles now believed that he had witnessed defendant commit a crime, "[m]isuse of 9-1-1," because defendant had
A second police officer, Officer Goller, arrived at the bank. Goller saw Charles outside the door, holding the right door open, and "contacting" defendant. Michael had already been told he was free to go. Goller asked defendant for identification, and defendant refused, setting his wallet and ID down on the countertop.
The officers told defendant that he was under arrest for misuse of 9-1-1 and to put his hands behind his back. Defendant refused. Goller grabbed defendant's right arm and Charles grabbed his left, attempting to force them behind his back. Defendant tensed and pulled his arms away. The officers ordered defendant to stop tensing, and defendant said "I'm not" while continuing to tense his muscles. Considering both "the confined space" and the safety of defendant and the officers, Charles pressed defendant's head against the ATM to handcuff him. Defendant did not allow himself to be handcuffed, and the officers forced him to the ground, determining that, given the confined space, it was safer to bring him to the ground than to have him standing. The officers noted that they had no "avenue of escape" if they lost their grip on defendant, and they did not know whether he was armed. Eventually, the officers handcuffed defendant and arrested him.
The state charged defendant with resisting arrest ( ORS 162.315 ) and improper use of emergency communications system ( ORS 165.570 ). The parties learned that a surveillance camera had captured the encounter, but Wells Fargo refused to produce the resulting video before trial, and the trial court denied defendant's pretrial request for a continuance to give defense counsel more time to review the video ahead of trial.
On the day of trial, but before voir dire , defendant made two pretrial motions, one renewing a motion to continue so counsel could view the video before trial and the other to suppress all evidence arising from defendant's "unlawful arrest." Defendant argued that he had been "unlawfully seized at the time that this incident occurred[, and] [a]ll interactions from the point after the unlawful seizure would be fruit of the poisonous tree and * * * therefore, should be properly suppressed." The state objected to the motion to suppress, arguing that it was untimely and did not provide the state with sufficient notice to respond. The trial court denied both motions.
At trial, the state offered, as part of its case in chief, Exhibit 15, the surveillance video of the ATM vestibule. Defendant did not object, and the trial court admitted the exhibit. According to the trial transcript, the silent footage on the video is about 29 minutes long, and the first 14 minutes depict defendant and Michael in the vestibule before Charles arrived. The remaining minutes show the interaction between the police officers and the two men in the vestibule, including defendant's arrest. The state showed the video to the jury during Charles's testimony, and he provided commentary. Charles testified that when defendant dialed 9-1-1, Charles stood "outside the doorway, holding the door open." He testified that there were some aspects of the encounter that the video did not capture and that it sometimes skipped a few seconds ahead, but overall it "represent[ed] a fair and accurate depiction of the interactions with [defendant] that night."
After the state rested its case, defendant renewed his motion to suppress. Defendant argued:
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