State v. Lundahl

• Decision Date: 05 October 1994
• Citation: 130 Or.App. 385,882 P.2d 644
• Parties: STATE of Oregon, Respondent, v. Robert O. LUNDAHL, Appellant. C85-02-30466; CA A76253.
• Court: Oregon Court of Appeals

Page 644

882 P.2d 644

130 Or.App. 385

STATE of Oregon, Respondent, v. Robert O. LUNDAHL, Appellant.

C85-02-30466; CA A76253.

Court of Appeals of Oregon.

Argued and Submitted Nov. 15, 1993.

Decided Oct. 5, 1994.

James A. Glover, Portland, argued the cause and filed the brief for appellant.

Janie M. Burcart, Asst. Atty. Gen., argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before DEITS, P.J., RICHARDSON, C.J., and HASELTON, ^* J.

DEITS, Presiding Judge.

Defendant appeals his convictions of sexual abuse in the first degree, ORS 163.425, sodomy in the second degree, ORS 163.395, and sexual abuse in the second degree, ORS 163.415. He argues that the court erred by denying his motions for a mistrial. We dismiss the appeal. ¹

In February, 1985, defendant was indicted on the above charges for repeatedly sexually molesting an eleven-year-old girl who babysat his infant daughter. Defendant was tried in May, 1985, and the jury failed to return a verdict. He was tried again in August, 1985, and the jury convicted him on all three counts of the indictment. The court sentenced defendant to one year in jail on the misdemeanor, sexual abuse in the second degree, but required that defendant be evaluated at Oregon State Hospital before being sentenced on the two felonies. Over the state's objection, the court granted defense counsel's request that defendant be given a week's time to put his affairs in order before beginning his jail term. Although defendant was ordered to appear in court on October 22, 1985, he never appeared, and the state issued a warrant for his arrest. Apparently, defendant fled to Costa Rica with his third wife.

In April, 1992, after seven years in Costa Rica, defendant re-entered the United States and was captured in Miami on a fugitive warrant. In June, 1992, the judge who presided over the second trial sentenced defendant, who finally admitted his offenses, to ten years in prison on the sodomy conviction, with a five-year minimum, and to a consecutive five-year sentence on the first degree sexual abuse conviction. The court also confirmed the one-year jail sentence on the misdemeanor, imposed in 1985, and ordered that it be served concurrently with the prison sentences.

On appeal, defendant argues that he is entitled to a new trial on the ground that the court found one of the jurors to be "incompetent," thus denying him his right to a jury of twelve competent jurors. Although the state disagrees with the substance of defendant's argument, it contends that, by escaping before sentencing and eluding capture for seven years, defendant has forfeited his right to appeal his convictions. The state asserts that the appeal, and the concomitant request for a third trial, should be dismissed.

We have previously exercised our discretion to dismiss the appeal of a defendant who was a "fugitive from justice." State v. Sterner, 124 Or.App. 439, 862 P.2d 1321 (1993), rev. den. 318 Or. 583, 873 P.2d 322 (1994). In Sterner, we concluded that despite a defendant's statutory right to a criminal appeal, ² "[a] criminal defendant should not be able to enjoy the benefits of the law while unlawfully avoiding its rigor." 124 OrApp at 443, 862 P.2d 1321. ³ Our conclusion was based on Oregon Supreme Court cases, State v. Smith, 312 Or. 561, 822 P.2d 1193 (1992); State v. Broom, 121 Or. 202, 253 P. 1042, 253 P. 1044 (1927); City of Portland v. Parchen, 113 Or. 209, 231 P. 980 (1925), and is consistent with the fugitive dismissal rule adopted by the United States Supreme Court, Ortega-Rodriguez v. United States, 507 U.S. ----, ---- - ----, 113 S.Ct. 1199, 1204-05, 122 L.Ed.2d 581, 593 (1993), ⁴ and many state courts. See, e.g., State v. Gurican, 576 So.2d 709 (Fla.1991); People v. Partee, 125 Ill.2d 24, 125 Ill.Dec. 302, 530 N.E.2d 460 (1988); State v. Wright, 763 S.W.2d 167 (Mo.App.1988); State v. Johnson, 105 Wash.2d 92, 711 P.2d 1017 (1986); State v. Rogers, 189 W.Va. 730, 434 S.E.2d 402 (1993); State v. Bono, 103 Wis.2d 654, 309 N.W.2d 400 (Wis.App.1981).

The fugitive dismissal rule, however, does not resolve the issue before us, which is whether we may dismiss the appeal of a former fugitive. Although this is a case of first impression for Oregon courts, the United States Supreme Court has addressed the issue, and we believe its analysis provides helpful guidance. In Ortega-Rodriguez v. United States, supra, the Court examined the justification for the federal fugitive dismissal rule to determine whether the same rationale would support a rule mandating dismissal of appeals by defendants whose flight and recapture occur before they invoke the appellate process. A majority of the Court concluded that the interests served by the fugitive dismissal rule do not support a rule of automatic dismissal for appeals filed by former fugitives. ⁵ 507 U.S. at ----, 113 S.Ct. at 1208, 122 L.Ed.2d at 597.

However, the Court went on to hold that although an appellate court should not automatically dismiss appeals of former fugitives, it is not wholly without authority to dismiss such appeals. The Court explained that dismissal may be an appropriate sanction where the defendant's former fugitive status significantly interferes with the operation of the appellate process. As the Court stated:

"We do not ignore the possibility that some actions by a defendant, though they occur while his case is before the district court, might have an impact on the appellate process sufficient to warrant an appellate sanction. For that reason, we do not hold that a court of appeals is entirely without authority to dismiss an appeal because of fugitive status predating the appeal. For example, the Eleventh Circuit * * * expressed concern that a long escape, even if ended before sentencing and appeal, may so delay the onset of appellate proceedings that the Government would be prejudiced in locating witnesses and presenting evidence at retrial after a successful appeal." 507 U.S. at ----, 113 S.Ct. at 1208, 122 L.Ed.2d at 597 (citing United States v. Holmes, 680 F.2d 1372, 1374 (11th Cir.1982), cert. den. 460 U.S. 1015, 103 S.Ct. 1259, 75 L.Ed.2d 486 (1983)).

The circumstances here are of the type identified by the Supreme Court as justifying the dismissal of a former fugitive's appeal. If we were to resolve the merits of this appeal in defendant's favor, he would be entitled to a new trial. Because of his lengthy escape, ten years will have passed between the time that he committed the charged offenses and the time of his re-prosecution. The victim is now a 22-year-old woman who has spent several years in counseling trying to deal with the trauma that defendant now admits he inflicted upon her when she was a child. Further, as the state notes, a jury may respond very differently to the testimony of an adult woman than it would to the same events as recounted by an 11-year-old girl. The state would also be prejudiced by having to locate witnesses who testified in 1975, including a staff member of the state Children's Services Division and the young boy, now age 19, to whom the victim first reported that she had been molested. Even assuming that those witnesses could be located, their memories of the event have likely diminished.

For all of the above reasons, we conclude that defendant's lengthy escape from justice, though it occurred while his case was pending before the...