State v. Palacios-Romero, A174421

• Court: Court of Appeals of Oregon
• Writing for the Court: AOYAGI, J.
• Citation: 320 Or.App. 563,514 P.3d 137
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Cruz PALACIOS-ROMERO, aka Cruz Palacios, Defendant-Appellant.
• Docket Number: A174421
• Decision Date: 29 June 2022

320 Or.App. 563
514 P.3d 137

STATE of Oregon, Plaintiff-Respondent,
v.
Cruz PALACIOS-ROMERO, aka Cruz Palacios, Defendant-Appellant.

A174421

Court of Appeals of Oregon.

Submitted April 29, 2022.
June 29, 2022

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Salem, Attorney General, Benjamin Gutman, Solicitor General, and Joanna Hershey, Portland, Assistant Attorney General, filed the brief for respondent.

Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge.

AOYAGI, J.

320 Or.App. 565

Defendant was convicted of 39 counts of first-degree rape, ORS 163.375, and two counts of third-degree sexual abuse, ORS 163.415, for crimes committed against his daughter over a period of several years. On appeal, defendant contends that the trial court erred by (1) denying his request for the less-satisfactory-evidence instruction; (2) discussing jury instructions with counsel on the morning of the fifth day of trial without defendant present and without a valid waiver; (3) instructing the jury that it could return nonunanimous guilty verdicts; and (4)

514 P.3d 139

entering an amended judgment without notice to defendant. For the following reasons, we affirm.

The underlying historical facts are not relevant to the issues on appeal. Instead, each claim of error turns on particular procedural facts, which are best discussed in connection with the individual assignments of error. We therefore proceed directly to our analysis.

DENIAL OF LESS-SATISFACTORY-EVIDENCE INSTRUCTION

In his first assignment of error, defendant contends that the trial court erred by denying his request for the less-satisfactory-evidence instruction, which is one of the so-called "statutory instructions" that trial courts must give "on all proper occasions." ORS 10.095 ; see also State v. Payne , 366 Or. 588, 595-98, 468 P.3d 445 (2020) (recent discussion of the statutory instructions). Under ORS 10.095, the jury is "to be instructed by the court on all proper occasions" as follows:

"(7) That evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict; and, therefore

"(8) That if weaker and less satisfactory evidence is offered when it appears that stronger and more satisfactory evidence was within the power of the party, the evidence offered should be viewed with distrust."

The basis for defendant's request for the less-satisfactory-evidence instruction was as follows. During the

320 Or.App. 566

police investigation of defendant's crimes, a detective interviewed defendant with the assistance of a Spanish interpreter—Martinez—and defendant made incriminating statements in Spanish. At trial, the state called Martinez to testify regarding the content of the interview, including defendant's statements.¹ The state next called the detective, who also testified regarding the interview (although less about its content), including noting that it had been audio-recorded. On cross-examination, defense counsel asked a leading question about the detective not having the audio recording with him at trial, to which the detective responded, "I do, actually." Asked to clarify, the detective reiterated that he had the recording with him and that it was "available." No further questions were asked.

Near the end of trial, in discussing jury instructions, defendant requested the less-satisfactory-evidence instruction, based on Martinez's testimony being weaker and less satisfactory evidence than the audio recording. The state opposed the request, explaining that it had not admitted the audio recording because it was in Spanish, was two hours long, and would have required tedious redactions as it contained significant inadmissible portions, including potentially prejudicial comments on issues such as defendant's immigration status. The state argued that there was no basis to infer that it was trying to hide anything. The state noted that defendant "had ample opportunity to cross-examine," as well as that defendant "had [a] summary of the interview, plus the recording of the interview himself as well, and could flush out anything if he felt the State was hiding anything."

The court denied defendant's request for the instruction, stating that it did not believe that it was appropriate to give in these circumstances.

The court did not err. The less-satisfactory-evidence instruction is to be given when (1) " ‘other evidence was reasonably available on a fact in issue,’ " and (2) " ‘there is

320 Or.App. 567

a basis for the jury to conclude that the other evidence is stronger and more satisfactory than the evidence offered.’ " State v. West , 289 Or.App. 415, 418, 410 P.3d 382 (2017) (quoting State v. McDonnell , 313 Or. 478, 500, 837 P.2d 941 (1992) ). Importantly, the instruction "does not penalize a party for failing to produce all available evidence," but rather, as relevant here, "draws the jury's attention to a party's failure to produce evidence when that failure could give rise to an inference that the evidence would be adverse to the party —that is, when it appears that

514 P.3d 140

the party may be trying to hide something." State v. McNassar , 77 Or.App. 215, 218, 712 P.2d 170, rev den , 300 Or. 704, 716 P.2d 758 (1986) (emphases in original); see also McDonnell , 313 Or. at 503, 837 P.2d 941 (stating, with reference to McNassar , that the instruction "may be appropriate" if "the state's failure to produce evidence could give rise to an inference that the evidence would be adverse to the state—that is, when it appears that the state may be trying to hide something").

Here, the state's decision to have Martinez testify regarding what defendant said during the interview—rather than heavily redacting the two-hour audio recording (risking redaction errors that could be prejudicial to defendant) and then playing the redacted audio with live Spanish translation—does not reasonably give rise to an inference that the audio recording would have been adverse to the state. That is particularly so because defendant participated in the interview (giving him personal knowledge of what was said), he had received a copy of the audio recording as well as a summary of the interview (as represented by the prosecutor without contradiction), and the detective actually brought the recording with him to trial and made clear that it was "available" if anyone wanted it.

Indeed, it is unclear when, if ever, it would be appropriate to give the less-satisfactory-evidence instruction when both parties have equal access to the purportedly stronger evidence. The first part of the statutory instruction states "[t]hat evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which it is in the power of one side to produce and of the other to contradict." ORS 10.095(7) (emphasis added). That at least

320 Or.App. 568

suggests a possibility that the legislature did not intend the instruction to be given when both parties have equal access to the purportedly stronger evidence. The Supreme Court has come close to saying as much:

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