State v. Jenkins

• Decision Date: 13 November 2003
• Citation: 79 P.3d 347,190 Or. App. 542
• Parties: STATE of Oregon, Respondent, v. Daniel L. JENKINS, Jr., aka Daniel J. Jenkins, aka Daniel Loren Jenkins, Jr., Appellant.
• Court: Oregon Court of Appeals

79 P.3d 347

190 Or. App. 542

STATE of Oregon, Respondent, v. Daniel L. JENKINS, Jr., aka Daniel J. Jenkins, aka Daniel Loren Jenkins, Jr., Appellant.

9901--34654; A112291 (Control), A112292.

Court of Appeals of Oregon.

Argued and Submitted July 24, 2003.

Decided November 13, 2003.

Jesse Wm. Barton, Chief Deputy Appellate Defender, argued the cause for appellant. With him on the brief was David E. Groom, Appellate Defender.

Daniel J. Casey, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

BREWER, J.

Defendant appeals from a judgment of conviction for solicitation to commit aggravated murder.¹ ORS 161.435; ORS 163.095(1)(a). Defendant makes four assignments of error, three of which we reject without discussion. In the fourth, defendant argues that the trial court erred in denying his motion to quash a subpoena issued by the state to a psychologist retained by his trial attorney and, as a result, admitting into evidence at trial statements that he made to the psychologist. The state contends that the court correctly ruled that the statements fell within the future crimes exception to the attorney-client privilege and the child abuse exception to the psychotherapist-patient privilege. We review for errors of law. Frease v. Glazer, 330 Or. 364, 369, 4 P.3d 56 (2000); State v. Langley, 314 Or. 247, 263, 839 P.2d 692 (1992), adh'd to on recons., 318 Or. 28, 861 P.2d 1012 (1993). We need not address the psychotherapist-patient privilege because we conclude that defendant's statements were protected by the attorney-client privilege and were not subject to the future crimes exception to that privilege. Accordingly, we reverse and remand for a new trial.

From 1996 to 1998, defendant had a trading account at Bidwell and Company (the company), a discount stock brokerage firm. During 1998, defendant's investments through the company lost nearly $300,000 in value. Upset about his losses, defendant complained to the company that it should have advised him against making certain investments. Company president H. Gerald Bidwell (Bidwell) wrote to defendant, explaining that he had reviewed the transactions and concluded that the company had acted appropriately. Defendant then began to focus his anger on Bidwell. On September 8, 1998, defendant called Warren, the ex-husband of Bidwell's current wife. He identified himself as "John" and asked Warren if he would be interested in participating in a scheme to "whack" Bidwell. Warren inferred that defendant was asking him to assist defendant in a murder-for-hire. Warren declined and later told Bidwell and the police about the call. An investigation ensued and, among other things, the police learned that defendant had made numerous prank calls to Bidwell's home, sent Bidwell three e-mails with ominous messages predicting Bidwell's death, and stolen court records pertaining to the dissolution of Bidwell's marriage to his former wife. Defendant was arrested on January 9, 1999, and charged with solicitation to commit murder, theft, forgery, tampering with public records, and menacing. The indictment identified Bidwell as the victim for the purpose of the solicitation and menacing charges. The state produced evidence that, while in jail awaiting trial, defendant told at least two people that he planned to commit several murders in the future. First, in May 1999, he told another inmate, Rohrscheib, that he intended to kill Warren and his children after he was released from jail because Warren had gone to the police. Later, defendant told Rohrscheib that he no longer wanted to hurt Warren's children but that he still wanted to kill Warren; in that conversation, he also stated that he wanted to kill Bidwell. Thereafter, on June 8, 1999, a psychologist, Dr. Colby, interviewed defendant. Defendant's attorney had retained Colby to evaluate defendant for the purpose of exploring possible defenses. During the interview, defendant said that he wanted his statements to Colby to be privileged, and defendant told Colby not to make a written report of their conversation. Defendant then told Colby that he intended to kill Bidwell, his wife, and their children.

Colby told defendant's attorney about the threats. She, in turn, reported them to the trial court in the presence of the prosecutor. The state then dismissed the charge against defendant for solicitation to commit murder and, two days later, in a second indictment, charged him with solicitation to commit aggravated murder. The second indictment identified Bidwell as defendant's intended victim. The remaining charges in the first indictment were consolidated for trial with the solicitation to commit aggravated murder charge in the second indictment. The state subpoenaed Colby as a witness at trial. Defendant moved to quash the subpoena, arguing that Colby was his attorney's representative and that both OEC 503(2)(a), the attorney-client privilege rule, and OEC 504, the psychotherapist-patient privilege rule, barred admission of defendant's statements to Colby.² The state responded that defendant's threats fell within OEC 503(4)(a), the future crimes exception to the attorney-client privilege, as well as ORS 419B.040, the child abuse exception to the psychotherapist-patient privilege. The court ruled that both exceptions applied and denied defendant's motion to quash.

At trial, the state called Rohrscheib and Colby as witnesses. As described above, Rohrschreib testified regarding defendant's statements about his intention to kill Warren, Warren's children, and Bidwell. Rohrscheib also testified that, in return for his cooperation, he had received a five-day reduction in the six-month sentence that he had been serving. Colby testified that, during his interview with defendant, defendant told him that he intended to kill Bidwell and his wife. According to Colby, defendant first stated that he was unsure about taking the lives of Bidwell's children but later stated, "Yes, I think I will kill the Bidwell children in a way that will make Mr. Bidwell suffer for what he has done." The state also adduced other evidence of defendant's preoccupation with Bidwell, including the prank calls, the e-mails, and the stolen court records. In his defense, defendant conceded that he intended to harass Bidwell, but he contended that he was never serious about killing him. The jury found defendant guilty of solicitation to commit aggravated murder.³

On appeal, the parties renew their arguments concerning the attorney-client and psychotherapist-patient privileges. The state further argues that, if the trial court erred in admitting Colby's testimony, the error was harmless. The state also asserts that, even if the admission of Colby's testimony was not harmless, that testimony would be admissible in a new trial under OEC 504-5, which creates a new limitation on evidentiary privileges. See Or. Laws 2001, ch. 640, § 3. Therefore, the state argues, a remand would serve no useful purpose.

We begin with defendant's argument that his statements to Colby were protected by the attorney-client privilege. OEC 503 provides, in part:

"(2) A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client:

"(a) Between the client or the client's representative and the client's lawyer or a representative of the lawyer[.]"

The state implicitly concedes that, by its terms, OEC 503(2)(a) applies to the statements that defendant made to Colby. The record supports that concession. The communication was (1) made confidentially (2) for the purpose of facilitating the rendition of legal services to defendant and (3) between defendant and a representative of defendant's lawyer. See State v. Jancsek, 302 Or. 270, 275, 730 P.2d 14 (1986) (stating that, to successfully invoke the attorney-client privilege, the person seeking to exclude the evidence must show that (1) the communication is confidential within the meaning of OEC 503(1)(b), (2) the communication was made for the purpose of facilitating the rendition of professional legal services to the client, and (3) the communication was between persons described in OEC 503(2)(a) through (e)).

The state nonetheless urges that defendant's statements to Colby do not fall within the scope of the attorney-client privilege because, even if they satisfy the plain language of OEC 503(2)(a), threats of violence were not protected communications at common law. That argument is unpersuasive. In State ex rel N. Pacific Lbr. v. Unis, 282 Or. 457, 579 P.2d 1291 (1978), the Supreme Court construed the predecessor to OEC 503, ORS 44.040(1)(b) (1975), repealed by Or. Laws 1981, ch. 892, § 98. That statute did not explicitly provide for any exceptions to the attorney-client privilege. The court acknowledged that, "when the Oregon privilege statute was enacted [in 1862,] there was a recognized exception to the common-law privilege covering attorney-client communications when the communication was made in furtherance of an intended crime." Unis, 282 at 462, 579 P.2d 1291 (emphasis added). The court then stated:

"Consistent with the recognition * * * that [ORS 44.040(1)(b)] is merely declaratory of the common law attorney-client privilege, and with our practice of construing the statute in light of the underlying policies which it is intended to serve, we hold, as an exception to the attorney-client privilege, that an attorney may, under appropriate circumstances, be required to testify about a client's communications which relate to future wrongdoing."

Unis, 282 Or. at 462-63, 579 P.2d 1291 (emphasis added). In construing the scope of the common-law exception, the court also stated that Uniform Rules of Evidence Rule 502(...