State v. Longjaw
| Decision Date | 23 March 2022 |
| Docket Number | A168390 |
| Citation | 318 Or.App. 487,508 P.3d 27 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Charles Anthony LONGJAW, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.
Defendant was convicted of murder for stabbing a person outside a Portland hotel. The hotel's security cameras recorded the stabbing, and defendant was arrested the following day. While in police custody, defendant made a statement to the effect, "Too bad it rained too hard that night and washed away all the DNA evidence." That was not entirely true. Police obtained a warrant for defendant's DNA standard, and it linked defendant to the jacket in which the murder weapon was found.
On appeal, defendant raises two assignments of error. First, he argues that the court erred in admitting his statement about DNA evidence being washed away, because it was the product of unlawful interrogation. We are not persuaded by that contention. Having reviewed the record, we agree with the trial court's conclusion that defendant's statement was unprompted and not the product of any action on the part of police that was reasonably likely to have elicited an incriminating response. See Rhode Island v. Innis , 446 U.S. 291, 303, 100 S. Ct. 1682, 64 L. Ed. 2d 297 (1980) (); State v. Vondehn , 348 Or. 462, 489 n. 3, 236 P.3d 691 (2010) .
Defendant's second assignment of error presents the more troubling issue and requires more discussion. During the trial, the court allowed the jury to craft questions for the witnesses, which jurors then passed to the court to be read. One of the questions, which a juror wanted to ask a detective, was whether defendant had been willing to incriminate himself by providing DNA evidence: "Did [defendant] give his DNA standard willingly?" The court asked that question, and the officer answered, "No." On appeal, defendant argues that the trial court plainly erred in asking that patently unconstitutional question on behalf of the juror and admitting the detective's response.
As explained below, we agree with defendant that the court committed plain error, and one that is a textbook example of the risks that a court runs in allowing the jury to act as an examining body rather than a listening and deliberative body. See Morrison v. State , 845 S.W.2d 882, 886-87 (Tex Crim App 1992) ( ). In almost any other circumstance, the court's error would result in reversal of defendant's conviction. It is only because of the unusual circumstances of this case—in which defendant was literally caught on camera committing the murder, and eyewitness testimony and DNA evidence confirmed what was obvious from that video footage—that we decline to exercise our discretion to correct the court's egregious mistake in allowing the officer to comment on defendant's invocation of his constitutional right not to incriminate himself.
To frame our discussion, we begin with a brief over-view of the factual and procedural history of the case. On November 20, 2016, a Portland police officer responded to a call regarding a stabbing, and the officer found Mark Whelan lying on the sidewalk at the corner of SW 3rd Avenue and SW Oak Street. Whelan had suffered multiple stab wounds on his abdomen, chest, and arm, and he was having difficulty breathing. The officer called for medical assistance, and Whelan was transported to the hospital.
Other officers arrived on the scene, and police followed a trail of blood to the intersection of SW 4th Avenue and SW Pine Street, where the Embassy Suites hotel is located. Police spoke with witnesses at the Embassy Suites, including Julian Chavez, a hotel security guard who saw the attack, and they obtained surveillance video from the hotel's security cameras that captured the stabbing.
That hotel surveillance video shows defendant, Whelan, and Enrique Diaz entering the Embassy Suites on the night of the murder. Defendant was wearing a grey shirt with a Nike swoosh on the front, a dark-colored hooded sweatshirt, jeans, white shoes, a dark jacket that is unzipped, and a green beanie. Whelan was wearing a black coat with a light-colored zipper, carrying a plastic sack with one hand and holding a pair of tennis shoes in the other. And Diaz was wearing a dark-colored, zipped-up coat and a green and blue beanie with a pompom on the top; he was carrying a black messenger bag slung over one shoulder.
Footage from the hotel shows them together in the lobby, and it shows defendant approach the front desk. Another camera positioned near the exit doors captured them leaving the hotel about two minutes later, first Diaz, still carrying his bag, and then defendant and Whelan about 15 seconds later.
Surveillance footage from 4th Street then shows defendant walk past Chavez, the hotel security guard, and duck into an alcove. A few seconds later, Whelan appears, holding a pair of shoes in his hands, and defendant emerges from the alcove. Diaz then walks into view, still carrying the black bag, and then walks past Whelan and defendant, who are talking. Defendant gestures for Diaz to come back toward them and the three stand together for a few moments before defendant stabs Whelan multiple times; Diaz is standing near them, still with his black messenger bag over his shoulder. Whelan runs off, and defendant and Diaz walk away. Defendant and Diaz can then be seen walking together on SW Ash Street moments after the stabbing.
Diaz was arrested that night under the Burnside Bridge. Police recovered a black jacket that was protruding from his messenger bag, and they found a folding knife, which had blood on it, inside a pocket of the jacket. DNA testing would later link Whelan to the blood mixture on the knife; link Diaz to the knife handle but be inconclusive as to whether defendant was also a contributor to the DNA mixture; and would identify defendant—and exclude Diaz—as the major contributor to DNA mixtures on both cuffs of the jacket and a blood stain inside the pocket where the knife was found.
Defendant was arrested the following day. Whelan died from his injuries six days after the stabbing, and defendant was charged with and tried for murder.
During its case-in-chief, the state introduced the video footage showing the stabbing, presented DNA evidence through a forensic scientist, and called Chavez, who testified that he saw defendant attacking Whelan. The state also called other fact witnesses and various police involved in the investigation, including Detective Clifton, who had been involved in collecting evidence to assist the forensic scientists with DNA analysis. Clifton was the state's final witness.
During his direct examination, Clifton explained that he was present when a DNA standard was collected from defendant through an oral DNA swab. Defense counsel did not ask any questions of Clifton on cross-examination. However, the court had previously explained that "this trial does allow jurors to ask questions of witnesses." Rather than release Clifton after defense counsel declined to ask questions, the court said: "Hold on, though, we do have a juror question, so I will review that with the attorneys, and then I may have a question when we come back."
The transcript reflects a two-minute sidebar after the jury passed its question to the court. The court then delivered the following question, without any objection from defendant: "And that [jury question] is: Did [defendant] give his DNA standard willingly?"
Clifton answered "No," and the prosecutor then asked a follow-up question: "Did you obtain a warrant?" Clifton responded, "Yes, we did."
Defense counsel initially said that he had no follow-up questions but a few moments later said, "Actually, Judge, I do have a question." He then proceeded to ask Clifton about whether it is typical to go through a represented defendant's lawyer, who will "just tell[ ] you to get a warrant." On redirect, the prosecutor then waded further into the process of obtaining DNA samples from a defendant who has invoked the constitutional right to counsel:
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...assaultive and that the weapons that he used were readily capable of causing serious physical injury); see also State v. Longjaw , 318 Or. App. 487, 497, 508 P.3d 27 (2022) (declining to exercise discretion to correct plain error when there was "no plausible way that the jury's guilty verdi......