State v. Longoria

• Decision Date: 01 April 1974
• Citation: 520 P.2d 912,17 Or.App. 1
• Parties: STATE of Oregon, Respondent, v. Danny LONGORIA, Appellant.
• Court: Oregon Court of Appeals

Page 912

520 P.2d 912

17 Or.App. 1

STATE of Oregon, Respondent, v. Danny LONGORIA, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Jan. 25, 1974.

Decided April 1, 1974.

Frank J. Susak, Portland, argued the cause for appellant. With him on the brief were Susak & Lawrence, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FORT and TANZER, JJ.

TANZER, Judge.

The defendant was convicted after a jury trial of four counts of robbery in the first degree. ORS 164.415. He appeals, assigning several rulings as error.

First, he assigns the failure of the presiding judge to grant his motion for a continuance and of the trial judge to grant his renewed motion for a continuance.

The motion before the presiding judge was oral and conclusory. ORS 136.070 ¹ requires that a motion for continuance by the defendant be accompanied by an affidavit showing 'sufficient cause' which shall be 'first filed with the clerk.' Since the ruling upon a motion for continuance is discretionary, there is nothing for an appellate court to review in the absence of such a showing. State v. Brauhn, 247 Or. 430, 430 P.2d 1012 (1967); State v. Losey, 3 Or.App. 612, 613--614, 475 P.2d 430, rev. den. (1970); State v. Young, 1 Or.App. 562, 569, 463 P.2d 374, rev. den. (1970). A belated motion and affidavit, also in conclusory terms, was filed 20 days after the four-day trial commenced in an apparent effort to make a record where none had before existed.

Compliance with ORS 136.070 by making a showing in writing is more than a formality to satisfy appellate courts. It is designed to provide a basis upon which a trial judge can make a discretionary ruling in an intelligent and informed manner. A motion and affidavit are to be made for purposes of obtaining a continuance, not for the perfection of an appeal. Therefore, compliance with ORS 136.070 must be prior to trial, and non-timely compliance must be regarded as no compliance at all.

We note in passing that there is no egregious error. The affidavit and the oral showing rest upon the absence of a hospitalized witness and of another witness who was in Hawaii. The hospitalized witness was one of the investigating detectives who was expected to remain hospitalized for seven or eight months. There is no indication of how a situation which would be expected to weaken the state's case would also be to the defendant's disadvantage at trial. There is no showing as to what the witness in Hawaii would have added to the defendant's case. Defense counsel asserts outside the record that she would have been an alibi witness, but the defense produced at least six alibi witnesses other than the absent witness. We cannot say that the failure to delay the trial to accommodate an additional alibi witness was an abuse of discretion.

The motion for continuance before the trial judge was based additionally upon the unexpected availability of John Costello as a witness, about which there is additional discussion below. The court made adequate provisions for defendant's problems in this regard. We are satisfied that the trial court exercised its discretion properly.

The next assignment of error also deals with a belated attempt to make a record which was not made in a timely and accurate fashion. Defendant assigns the denial of a portion of his motion for new trial which asserts:

'There was an irregularity in the proceedings of the Court in that the defense was allowed only six pre-emptory (sic) challenges when picking the jury, after having been told by the Court that there would be twelve challenges allowed in this case. * * *' The motion is supported by counsel's affidavit which alleges:

'On April 4, 1973, this trial began and during the selection of the jury, a mistrial was granted by the Honorable Richard Burke. Prior to picking that jury, Judge Burke indicated, in chambers, that the defense would have twelve challenges in this case, since it was such a serious case.

'On April 5, 1973, a new jury was selected, and after six challenges Judge Burke ordered the jury sworn. At that time I made it known to Judge Burke that I was under the impression that the defense had twelve challenges and that I was not satisfied with the jury at that point. Judge Burke indicated that the Oregon Revised Statutes provide for six challenges in this type of criminal proceeding and that he had so indicated this prior to picking the second jury. I did not hear him so indicate.'

There was no transcript made of the proceedings which the affidavit alleges were held in chambers. As far as we can tell, no reporter was present. This court has before indicated its express disapproval of the conduct of any portion of a criminal proceeding off the record. See, e.g., State v. Pflieger, Or.App., 97 Adv.Sh. 2339, 2340, n. 1, 515 P.2d 1348 (1973). A report should be available for transcription in the event that any portion of a criminal proceeding serves as the basis of an assignment of error. The lack of a transcript, however, does not require reversal.

The effect of a deficiency in the record upon an appeal must be determined in light of the statutory requirement that we presume official regularity in the circuit court proceedings. ORS 41.360(15) ²; State v. Spicer, 3 Or.App. 120, 125, 473 P.2d 147 (1970); State v. Ellison, 209 Or. 672, 678--679, 307 P.2d 1050 (1957); Cf. State v. Rohde, 245 Or. 593, 421 P.2d 690, cert. den. 387 U.S. 924, 87 S.Ct. 2043, 18 L.Ed.2d 981 (1967).

An appellate court does not rule upon abstract claims of error, but only upon specific rulings of the trial court. State v. Baker, 242 Or. 207, 408 P.2d 928 (1965). It is the responsibility of the aggrieved party to see that his claim of error is properly presented to the trial court for immediate resolution or cure. If dissatisfied, it is appellant's responsibility to see to it that the ruling has been properly preserved, designated as part of the record, and presented to the appellate court. If the appellant has failed to properly preserve the ruling which he claims as error, then the ruling is not subject to review. State v. Lemon, 251 Or. 606, 447 P.2d 394 (1968); State v. Gill, 3 Or.App. 488, 495--496, 474 P.2d 23 (1970); State v. Skrelunas, 1 Or.App. 182, 185, 460 P.2d 869 (1969).

A motion for new trial cannot be used as a substitute for a timely presentation of the claim of error to the trial court. After verdict, it is too late for the trial court to remedy whatever error may have occurred. Therefore, the denial of a motion for new trial based upon irregularities at trial does not of itself preserve an issue for appellate review. State v. Thomson, 203 Or. 1, 278 P.2d 142 (1954).

In this case the claim of error was initially brought to the trial court's attention at about the time that the jury was sworn. The error, if any, could have been promply remedied. Cf. State v. Sands, 2 Or.App. 575, 586, 469 P.2d 795, rev. den. (1970), where voir dire was reopened. We cannot known here what ruling, if any, the trial court was asked to make or what curative action the court offered to take. We cannot determine whether error was committed and we will not presume it. If counsel feels the error to have been important at the time, rather than upon hindsight after an unsatisfactory verdict, it is not too great an obligation for him to assure that any protest to the court and the ruling thereon are properly preserved by seeing that the reporter is present and functioning. That was not done in this case.

Instead, counsel raised the issue approximately one month later at the hearing on the motion for new trial. The hearing gave opportunity for counsel and the trial court to express their memories of what had occurred, but does not substitute for an accurate record. Their representations do not necessarily imply that the trial court erred. Rather, it appears that the court acted properly during the second jury selection but that defense counsel suffered a momentary lapse of understanding, such as those to which lawyers are occasionally subject in the course of litigation, ³ or, as his affidavit alleges, he simply did not hear. ⁴ The recollections of the court and counsel demonstrate regularity at least as well as they suggest irregularity. Such a record is insufficient to overcome the presumption of official regularity and the well-established allocation of responsibility to the appellant to present and preserve his claim of error. This assignment of error gives no cause to disturb the judgment.

Defendant next complains that the prosecutor was allowed to ask a defense witness the names of the crimes of which she had been convicted and the time and place of conviction. Allowance of such questions and answers was proper. State v. Gardner, Or.App., 98 Adv.Sh. 1218, 1223--1226, 518 P.2d 1341 (1974).

The next two assignments of error deal with problems presented by the testimony for the state of John Costello, a codefendant, who was at the time of trial confined under treatment at the Oregon State Hospital for mental illness.

The trial court handled a delicate and complex trial problem with a careful regard for all appropriate legal considerations. While its explanations were not always crystalline models of extemporaneous articulation, it is clear that discretion was exercised with the good sense of a trial judge who was close to the action and that we, as an appellate court, should not second-guess from the distance except for compelling considerations.

Appellant assigns two rulings as error: (1) the trial court's determination of the competency of John Costello to testify as a witness, and (2) the trial court's disallowance of a cross-examination question offered purportedly to demonstrate Costello's mental condition.

As to the first issue, it is well established that the competency of a...