State v. Lipka
| Decision Date | 01 September 2021 |
| Docket Number | A167990 |
| Citation | 498 P.3d 811,314 Or.App. 154 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Joshua Scott LIPKA, aka John Scott Lipka, Sr., Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Peenesh Shah, Assistant Attorney General, argued the cause for respondent. Also on the brief was Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
In this criminal appeal, defendant challenges his convictions for felon in possession of a firearm, menacing constituting domestic violence, and harassment. Defendant raises four assignments of error, asserting that the trial court erred by (1) denying his motion to suppress evidence of a gun and related statements obtained as a result of a warrantless search; (2) denying his post-verdict motion for a mistrial; (3) instructing the jury that it could return nonunanimous verdicts, and (4) accepting a nonunanimous verdict as to the harassment charge (Count 5). For the reasons that follow, we conclude that the trial court erred in denying defendant's motion to suppress, in instructing the jury regarding nonunanimous verdicts, and in accepting the jury's nonunanimous verdict on Count 5. Collectively, those errors were harmful as to each of defendant's convictions. Because our disposition as to those assignments of error entitle defendant to a new trial on all counts, we need not address whether the court abused its discretion in denying defendant's motion for a mistrial. We reverse and remand.1
We review the denial of a motion to suppress for legal error, deferring to the trial court's express and implicit findings of fact if there is constitutionally sufficient evidence in the record to support them. State v. Brownlee , 302 Or. App. 594, 596, 461 P.3d 1015 (2020). If the trial court did not make findings on a disputed issue of fact, and there is evidence in the record to support divergent findings, we will presume the trial court decided the facts consistently with its ultimate conclusion. Id. Further, we review the denial of a motion to suppress in light of the record before the trial court at the time of its ruling, not the record as it later developed at trial. State v. Pitt , 352 Or. 566, 574-75, 293 P.3d 1002 (2012).
In December 2017, emergency dispatch received an open-line 9-1-1 call associated with a house in Southeast Portland.2 Portland Police Bureau patrol officers Ballew and Adrian were dispatched to that location. Adrian arrived first and stopped about a block and a half from the house to wait for Ballew. Using the computer in his patrol car, Adrian confirmed that the phone number matched the address of the house. The 9-1-1 dispatcher, who had remained on the open line, informed Ballew and Adrian that a male and female could be heard arguing on the call. Adrian's computer inquiry disclosed that the alleged victim in this case, D, had reported several prior incidents involving her adult son (later identified as defendant), who also lived at the house and had multiple arrests on his record. Adrian was not able to access defendant's conviction record at that time, and he could not tell whether the arrests were for misdemeanors or felonies.
Upon Ballew's arrival, the officers approached the home on foot. Ballew heard both male and female voices from inside. Although the female voice was "pretty darn calm," the male voice was much more agitated and confrontational. Adrian characterized the voices he heard as a male yelling and a female trying to calm him down.
During a lull in the argument, the officers knocked on the front door. Ballew heard the female tell the male to open the door. Adrian told the male, whom Adrian believed to be defendant, someone he had met before, to come to the door. The female voice said, "Joshua, just let them in." According to Ballew, the male voice remained very agitated and said something like, "I'm telling you, if they lay hands on me, I'm going to lay hands on them." From what Adrian could hear from outside, his impression was that Based on those impressions, Adrian requested "more officers immediately" before entering the house.
D ultimately told the officers the door was open and invited them inside. Upon entering the living room area of the house, the officers observed "overturned everything, everywhere," including a water dispenser that had been knocked over. D was cleaning up puddles of water from the toppled water dispenser.
As the officers entered, defendant was standing in the kitchen adjacent to the living room. Defendant then walked towards the door between the kitchen and the attached garage, ignoring Adrian's command to stop. Adrian noted that defendant was carrying a tan bag.
Ballew spoke with D. As they began to speak, D said very quietly to Ballew, Adrian similarly heard D say "he's got a gun in that bag he is carrying."
By then, defendant had walked about 10 feet into the garage, where he paced and shouted at Adrian from a distance of 10 to 12 feet. Adrian observed that defendant had placed the tan bag on a chair but remained within a half step of the bag as the officers sought to control him with verbal commands. In addition to the bag, Adrian noted numerous other items in the garage—an axe, a baseball bat, a weight set, and (sometime later) a makeshift spear—that he believed might serve as weapons. Adrian gave defendant several specific commands, telling him, Adrian told defendant that he believed a gun was involved somehow and asked him whether he was armed. Defendant responded, "I'm always armed." At that time, defendant remained "very animated, agitated," and he repeatedly put his hands in his pockets despite being told not to do so by Adrian.
Defendant ultimately complied with the officers’ requests by taking two or three steps away from the chair and towards the officers, who were then able to place him in handcuffs. The officers patted defendant down for weapons, and Ballew read him the Miranda warnings. The process of removing defendant from the garage and seating him in a chair in the kitchen took the officers about 30 seconds.
After defendant had been secured in the kitchen, Ballew again spoke with D, who told Ballew, Ballew noted a bruise on D's arm. Ballew understood D to be saying that both the jabbing and pinching had occurred that day. Although D had speculated that defendant had jabbed her with some keys, Ballew believed that defendant might have done so with the gun that D had mentioned. Ballew acknowledged, however, that "[a]t no point did [D] say [defendant] used the gun today to threaten her."
While Ballew spoke with D, Adrian searched the bag that defendant had left on the chair in the garage, In the bag, Adrian found a loaded, .22 caliber, semi-automatic pistol. Adrian asked defendant about the gun. Defendant acknowledged that he was a convicted felon and that he was aware that he could not legally possess a gun, but said that he carried the pistol for personal protection and had a holster for it in the waistband of the pants he was wearing.
The officers gave somewhat differing explanations for why they had handcuffed defendant. Ballew believed that defendant had been handcuffed for officer-safety purposes. Ballew later developed subjective probable cause to arrest defendant for assault based on D's statements and the injury to her arm.3 She acknowledged, however, that she did not develop probable cause to arrest defendant until after she had spoken with D a second time, which she did after defendant was handcuffed and seated in the kitchen. Later still, clearly after Adrian had searched the bag, Ballew developed subjective probable cause to arrest defendant for felon in possession of a firearm.
Adrian, on the other hand, testified that, at the time defendant was first put in handcuffs, "we had definitely a probable cause to believe that he had committed the crime of at least harassment, if not menacing with a gun." Adrian based that assessment on the statements that D had made about the gun, Adrian's perception that D had described defendant's behavior towards her as "assaultive," and defendant's lack of compliance. Adrian also made an "educated guess" that defendant "[was] probably going to have a felony on his record."
Ballew's and Adrian's recollections as to the timing of events also differed. Ballew estimated that defendant had been handcuffed and seated in the kitchen close to 10 minutes before Adrian searched the tan bag for a gun. And Ballew's estimate as to when she developed probable cause to arrest defendant for felon in possession of a firearm was closer to 20 minutes after he had been handcuffed, by which time he had been removed from the kitchen. Adrian's timeline was far more condensed. He testified that he had searched the bag "within a minute" of first handcuffing defendant and that defendant had been escorted to a patrol car "perhaps one minute" after being moved from the garage to the kitchen. Similarly to Ballew, however, Adrian acknowledged that he did not have probable cause to arrest defendant for felon in possession of a firearm until after he had interviewed him, which Adrian did not do until after he had...
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