State v. Martinez
| Decision Date | 09 December 2015 |
| Docket Number | 12024356C2,A152946. |
| Citation | 364 P.3d 743,275 Or.App. 451 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Martin Rios MARTINEZ, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
275 Or.App. 451
364 P.3d 743
STATE of Oregon, Plaintiff–Respondent,
v.
Martin Rios MARTINEZ, Defendant–Appellant.
12024356C2
A152946.
Court of Appeals of Oregon.
Submitted Oct. 28, 2014.
Decided Dec. 9, 2015.
Peter Gartlan, Chief Defender, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.
GARRETT, J.
Defendant was convicted of unlawful manufacture of methamphetamine, ORS 475.886 ; unlawful possession of methamphetamine, ORS 475.894 ; two counts of unlawful delivery of methamphetamine, ORS 475.890 ; three counts of being a felon in possession of a firearm, ORS 166.270 ; and two counts of endangering the welfare of a minor, ORS 163.575. On appeal, in six assignments of error, defendant argues that the trial court erred in admitting into evidence two cell phones and numerous text messages, which the state offered to show defendant's drug activity.1 We affirm.
Sergeant Speelman arranged for two confidential informants to make several controlled purchases of methamphetamine. At the direction of the police, one of the informants contacted Emerson, an acquaintance who had previously bought methamphetamine for the informants, to arrange a purchase from defendant. On January 12, 2012, the informant drove with Emerson to defendant's home, gave Emerson money, and waited in the car while Emerson went inside to complete the transaction. Emerson returned with a small baggie of methamphetamine. One month later, on February 13, Emerson and both informants returned to defendant's home to make a second purchase. The informants provided Emerson with cash and remained in the car while Emerson again purchased methamphetamine at defendant's home.
Based on those transactions, police obtained a search warrant for defendant's property. A search revealed, among
other things, stolen goods, brass knuckles, a surveillance system, packaging materials, scales, several firearms, ammunition, written transaction records, marijuana, and a large quantity of methamphetamine. Police also seized two cell phones—one belonging to defendant and another belonging to his girlfriend, Ibarra. A subsequent search of the two cell phones revealed hundreds of text messages and emails, some of which, the state contended, linked defendant to drug transactions.
Defendant waived his right to a jury trial. During its opening statement, the state referred to the text messages found on defendant's cell phone, arguing that they would "tie it all together to show that [defendant] was really the king maker, the controller, the person who controlled the [drug] deals." Defendant promptly objected:
"[A]s far as any of the text messages from anybody I will make it now, and I certainly don't want to interrupt the court or the witness at every go, but if the Judge would let me to just say I'd put it on the record now that any and all text messages from other persons on any and all cell phones they violate—they are hearsay for one and should be inadmissible. And they violate the confrontation clause, the Sixth and Fourteenth Amendments of the United States Constitution and then Article 1, section 11, of the Oregon Constitution.
"These are out of court statements made by other persons. If they're not here to testify Judge, you know, it violates confrontation, and they're certainly hearsay, and therefore they should not be admissible."
The state responded that the received messages that defendant stored on his phone were admissible as "adoptive admissions" under OEC 801(4)(b)(B) (exempting from the hearsay rule a statement that is offered against a party and is "[a] statement of which the party has manifested the party's adoption or belief in its truth"). The trial court noted defendant's objection and announced that it would make evidentiary rulings on the text messages as they were offered.
The state questioned Emerson about the January 12 purchase of methamphetamine at defendant's home. Emerson
testified that, although she could not remember who specifically sold her methamphetamine that day, she likely would have "texted [defendant] to get it." Defendant preemptively objected to the introduction of any text message evidence on that subject:
"[DEFENSE COUNSEL]: Judge, objection on the text message as a hearsay statement and it's not admissible.
"THE COURT: It's her statement so it's not hearsay. She's the one that made the text.
"[DEFENSE COUNSEL]: Well, Your Honor, on hearsay statements, her prior statement, if it's going to be offered in the state's case, it has to be offered by—if the party opponent admission it would be offered by me. Her out of court statement is hearsay and is not admissible.
"THE COURT: Well, but she—she's saying she can't remember, it's a written record of the date. I'm going to allow it."
The prosecutor also questioned Emerson regarding the February 13 purchase. Emerson testified that defendant was not home that day and that another person at defendant's residence conducted the transaction. Emerson could not remember whether she had mistakenly told the informants that she had bought the methamphetamine directly from defendant on that date. To aid Emerson's memory, the prosecutor directed her attention to three specific text messages that she had sent to defendant on February 14 and 16. Those messages read as follows:
"[Feb. 14] U thank u could get ur homeboy to do me right like the first the sec. Was fucked up i got a lot of taxs. but bunk blah blah blah. So ?
"[Feb. 14] Hey i got a electric stove oven works great n a refrigator both a couple years old if u still need i will let it go 4 50
"[Feb. 16] Can i stop by 4 50[.]"
Defendant objected to Emerson's text messages and offered a "continuing objection" to "any and all text messages." After the court noted the objection, the state offered Emerson's text messages into evidence as Exhibit 41. Defendant objected
once more, arguing that Emerson's text messages did not fall under any exception to the hearsay rule:
"[DEFENSE COUNSEL]: And just continued objection, Judge. They're hearsay and they're not being offered by a party opponent.
"THE COURT: Okay.
"[DEFENSE COUNSEL]: So they're inadmissible.
"THE COURT: All right.
"[DEFENSE COUNSEL]: And she testified there was no response from my client.
"THE COURT: Well, and that—they are what they are then. She also testified she couldn't remember, and these are written records that she's consulted so I'll allow them for that purpose."
Thus, the trial court allowed the state to introduce copies of the three text messages sent by Emerson as Exhibit 41. In doing so, the trial court appeared indirectly to refer to OEC 612 (allowing the use of a writing to refresh a witness's memory) and OEC 803(5) (allowing the use of a recorded past recollection).
Speelman testified regarding the evidence found during the search of defendant's property. When the state inquired about the text messages discovered on the two cell phones, including an exchange between defendant and Ibarra, defendant objected once again that "any and all text messages coming to [defendant]" were inadmissible hearsay. In response, the state renewed its argument that incoming text messages on defendant's cell phone—and, particularly the messages sent to defendant by Ibarra in the context of that specific conversation—were admissible as "adoptive admissions" under OEC 801(4)(b)(B). The trial court, declining to take a categorical approach, explained:
"Okay, well, I think that I have to look at what they are, because anybody could send anybody a text message that they immediately delete, and it doesn't mean that they're adopting that. On the other hand when they have a conversation back and forth with somebody then I think they clearly have, so those are the two extremes. And there may
be things in the middle where for example somebody is in the contacts, they're having regular contact with them and you know, so that, again that may be in the middle.
"So I guess what we're going to have to do, I'll give you a standing objection to any text messages, and then I guess we'll have to look at them one by one."
As to the particular text message conversation between defendant and Ibarra, the court concluded that it "clearly [fell] within the rule" on adoptive admissions. The court noted that defendant was "responding to [the text messages sent by Ibarra], * * * not
disavowing them in any way," and participating "very actively" in the...
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...clarity to permit it to consider and correct the error immediately, if correction is warranted."); see also State v. Martinez , 275 Or. App. 451, 459, 364 P.3d 743 (2015), rev. den. , 358 Or. 611, 369 P.3d 386 (2016) ("Ultimately, the focus of our preservation inquiry is on whether a party ......
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...further discussion about the instruction, we conclude that defendant's assignment of error was preserved. Cf. State v. Martinez , 275 Or. App. 451, 459-60, 364 P.3d 743 (2015), rev. den. , 358 Or. 611, 369 P.3d 386 (2016) (concluding that the preservation rules did not require the party to ......
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State v. Hill
..."Kenneth."5 The out-of-state case the State cites in a statement of additional authorities is distinguishable. In State v. Martinez, 275 Or. App. 451, 452, 364 P.3d 743 (2015), the State charged the defendant with unlawful manufacture, possession, and delivery of methamphetamine. The court ......
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Eklof v. Persson
...the denial of leave to add the other claims, or at least she has not developed any such argument. See State v. Martinez , 275 Or. App. 451, 452 n. 1, 364 P.3d 743 (2015) (we do not consider undeveloped arguments for reversal).2 Petitioner did not move to strike the superintendent's exhibits......
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Admissions
...made with consideration of the contemporaneous circumstances surrounding the statement and the silent response to it. State v. Martinez , 364 P.3d 743 (Ore. App. 2015). Defendant was convicted of the unlawful manufacture, possession and distribution of methamphetamine. He argued on appeal t......
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Hearsay
...made with consideration of the contemporaneous circumstances surrounding the statement and the silent response to it. State v. Martinez, 364 P.3d 743 (Ore. App. 2015). Defendant was convicted of the unlawful manufacture, possession and distribution of meth-amphetamine. He argued on appeal t......
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Hearsay
...made with consideration of the contemporaneous circumstances surrounding the statement and the silent response to it. State v. Martinez , 364 P.3d 743 (Ore. App. 2015). Defendant was convicted of the unlawful manufacture, possession and distribution of methamphetamine. He argued on appeal t......
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Hearsay
...made with consideration of the contemporaneous circumstances surrounding the statement and the silent response to it. State v. Martinez , 364 P.3d 743 (Ore. App. 2015). Defendant was convicted of the unlawful manufacture, possession and distribution of methamphetamine. He argued on appeal t......