State v. McGee

• Decision Date: 27 February 2013
• Docket Number: 080343630,A146296.
• Citation: 255 Or.App. 460,297 P.3d 531
• Parties: STATE of Oregon, Plaintiff–Appellant, v. Charles Bo McGEE, Defendant–Respondent.
• Court: Oregon Court of Appeals

255 Or.App. 460

297 P.3d 531

STATE of Oregon, Plaintiff–Appellant,

v.Charles Bo McGEE, Defendant–Respondent.

080343630; A146296.

Court of Appeals of Oregon.

Argued and Submitted Dec. 8, 2011.

Decided Feb. 27, 2013.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for appellant. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

John Henry Hingson, Oregon City, III argued the cause and filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

DUNCAN, J.

In this criminal prosecution for driving under the influence of intoxicants (DUII), ORS 813.010(1), the state appeals a pretrial order of dismissal entered after the trial court granted defendant's motion to dismiss for lack of a speedy trial. ORS 135.747. We review for errors of law, State v. Johnson, 339 Or. 69, 82–87, 116 P.3d 879 (2005), and reverse and remand.

I. OVERVIEW

On March 28, 2008, a Gresham police officer stopped defendant for a traffic violation. While processing the violation, the officer became suspicious that defendant was intoxicated and called a second officer, Harley, to conduct a DUII investigation. Harley came to the scene, observed defendant, and conducted field sobriety tests. Based on his observations and defendant's performance on the tests, Harley arrested defendant.

After the state charged defendant with DUII, defendant moved to suppress evidence that Harley obtained during his investigation. Defendant served a subpoena duces tecum on Harley requiring him to attend the hearing on the motion to suppress and to bring certain documents with him. Harley attended the hearing but failed to bring most of the subpoenaed documents. The hearing was continued for a month and, by that time, Harley had provided defendant all the requested documents. Nevertheless, defendant asked the trial court to initiate a proceeding to hold Harley in contempt for his failure to bring all of the subpoenaed documents to the motion to suppress hearing and for certain comments Harley had made at the hearing in response to questioning by defendant. Defendant believed that Harley's actions constituted contempt of court and reflected the existence of an antidefense bias. Defendant sought to have Harley found in contempt so that, in the DUII trial, he could use the finding as evidence of Harley's bias. The trial court denied defendant's request that it initiate a contempt proceeding against Harley, and defendant sought mandamus relief from the Supreme Court. The Supreme Court vacated the trial court's order and remanded for reconsideration. On reconsideration, the trial court again denied defendant's request that it initiate contempt proceeding against Harley.

Because of delay resulting from the contempt proceeding, the related mandamus action, stays in the trial court sought by defendant,and other causes, defendant had still not been brought to trial over two years after he had been charged with DUII. Defendant moved to dismiss, arguing that he had not been brought to trial within a reasonable time as required by ORS 135.747. The trial court granted defendant's motion, and the state appeals.

ORS 135.747 provides:

“If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed.”

Review of a trial court's decision on a motion to dismiss brought under ORS 135.747 entails a two-step analysis. First, we determine the total amount of delay and subtract from that total any periods of delay that occurred “upon the application * * * or by the consent of the defendant.” Second, we determine whether the remaining period of delay is reasonable. State v. Glushko/Little, 351 Or. 297, 305, 266 P.3d 50 (2011). In this case, the parties' arguments implicate both of those analytical steps, namely, first, whether certain periods of delay were “upon the application * * * or by the consent of the defendant” within the meaning of ORS 135.747; and second, whether the remaining period was reasonable under the circumstances of this case.

II. ANALYSIS

A. Total period of delay

We first calculate the total period of delay, which begins when a defendant is charged and ends on the final date set for trial. Johnson, 339 Or. at 93, 116 P.3d 879;State v. Garcia/Jackson, 207 Or.App. 438, 444 n. 3, 142 P.3d 501 (2006). In this case, the total period of delay begins on March 31, 2008, when the state filed an information charging defendant with one count of misdemeanor DUII and ends on the final trial date, July 14, 2010. Thus, the total period of delay in this case was 835 days, or approximately 27.5 months.

B. Procedural history; identification of subsidiary periods of delay

In order to determine which, if any, periods of delay defendant applied for or consented to, we set out the procedural history in detail, focusing on the various subsidiary periods of delay.

1. Defendant's first motion for trial setover

Defendant was charged with DUII on March 31, 2008, and his trial was initially set for May 28, 2008. Defendant moved for a setover, and the trial date was continued to June 3, 2008.¹2. Defendant's motion to suppress; defendant's subpoena duces tecum

On June 3, 2008, the parties appeared for trial before Judge You.² The court first took up pretrial motions, including defendant's motion to suppress. In connection with the motion to suppress, the state called Harley. Defendant had served Harley with a subpoena duces tecum requiring him to bring documents, including his investigation report, all subpoenas issued to him to attend implied consent hearings and his record of compliance with those subpoenas for the previous 12 months, and all manuals upon which he had been trained to administer field sobriety tests. Harley brought his investigation report to the suppression hearing, but he did not bring any of the other subpoenaed documents. In connection with the training manuals that he had been asked to bring, Harley noted that one of the manuals was for training he had received in Maui and that the “subpoena didn't include a ticket back to Maui to pick up that manual.” Harley explained that he had received the subpoena on the Friday before the Tuesday hearing, that he had not worked on the intervening days, and that he had showed the subpoena to his supervisor who had told him to send it to the Gresham City Attorney's office. Harley further explained that his office's court coordinator had not seen the second page of the subpoena, which requested the training manuals and materials related to implied consent subpoenas.

After defendant examined Harley about his failure to comply with the subpoena, he moved for a continuance. Judge You questioned the parties about when the subpoena was served and the relevance of the requested documents.³Defendant then restated his motion for a setover so that he could prepare a motion for an order to show cause why Harley should not be held in contempt for failing to comply with the subpoena duces tecum. Judge You granted defendant's motion and set the case over to July 1 for a continued hearing on the subpoena and any contempt motion or other motions to be filed by defendant.

At some time before July 1, 2008, defendant served subpoenas duces tecum on additional officers and staff of the Gresham Police Department in connection with his motion to suppress and his exploration of a possible contempt proceeding against Harley. On June 25, the City of Gresham moved to quash those subpoenas. At the July 1 hearing before Judge You, defendant, his attorney, a deputy district attorney,⁴ Harley, his attorney, and an assistant city attorney for the City of Gresham were present. Judge You considered arguments regarding whether Harley had failed to comply with the subpoena duces tecum and whether the other subpoenas duces tecumshould be quashed. At the time of the hearing, Harley had provided defendant with materials requested in his subpoena duces tecum to Harley, and defendant's attorney indicated that no additional documents needed to be provided in order to comply with the subpoena. Nonetheless, defendant's attorney wanted to question Harley and other police department witnesses about Harley's compliance with the subpoena and to determine whether there was a basis for pursuing contempt against Harley. For that reason, defendant asked that the motion to suppress hearing be continued to a later date and that consideration of the motions to quash his subpoenas to other police officers and staff be continued to that hearing.

Judge You ruled that Harley had complied with the subpoena duces tecum. Judge You declined defendant's request to continue the hearing on the motions to quash; she concluded that, because no contempt motion had been filed, the evidence sought by those subpoenas would not be relevant, and so she quashed them. Judge You then set the continued hearing on the motion to suppress for July 24.

3. Defendant's contempt motion

On July 15, 2008, defendant filed a motion asking the trial court to order Harley to appear at a hearing to show cause why he should not be held in contempt of court. Defendant asserted that Harley's failure to bring his training manuals with him to the June 3 hearing in compliance with the subpoena duces tecum constituted contempt of court as defined by ORS 33.015(2)(b). SeeORS 33.015–33.145 (setting out contempt process). Relying on State v. Burleson, 342 Or. 697, 160 P.3d 624 (2007), the City of Gresham responded that Harley could not be found in contempt because the trial court had not ordered Harley to comply with the subpoena. The city further argued that Harley had not acted “willfully,” as required for a finding of contempt under ORS 33.015(2). In reply, defendant argued that the city's reliance on Burleso...