State v. Pilon

• Decision Date: 31 August 2022
• Docket Number: A171010
• Citation: 321 Or.App. 460,516 P.3d 1181
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Mark Tanguay Raymond PILON, Defendant-Appellant.
• Court: Oregon Court of Appeals

321 Or.App. 460

516 P.3d 1181

STATE of Oregon, Plaintiff-Respondent,

v.Mark Tanguay Raymond PILON, Defendant-Appellant.

A171010

Court of Appeals of Oregon.

Argued and submitted February 17, 2021.

August 31, 2022

Stephen A. Houze, Portland, argued the cause and filed the briefs for appellant.

Dashiell L. Farewell, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.

JAMES, P. J.

In Oregon, reciprocal criminal discovery is prescribed by statute. ORS 135.845 provides that "[t]he obligations to disclose shall be performed as soon as practicable following the filing of an indictment or information in the circuit court or the filing of a complaint or information charging a misdemeanor or violation of a city ordinance." For discovery that could "exculpate the defendant," or could "[n]egate or mitigate the defendant's guilt or punishment," or could "[i]mpeach a person the district attorney intends to call as a witness at the trial," the timeliness of disclosure is emphasized to be "without delay." ORS 135.815(2).¹ The legislature has provided a continuum of remedies for failing to comply with criminal discovery, ranging from the rather benign continuance, up to and including "refus[ing] to permit the witness to testify, or refus[ing] to receive in evidence the material not disclosed[.]" ORS 135.865.

In this case, the morning that trial was set to begin, February 12, 2019—285 days after arraignment on May 3, 2018—the prosecution provided defense counsel two police reports that had previously been undisclosed. After reviewing those reports, defense counsel indicated that he would need to conduct further investigation and asked for a continuance; the court declined. Defendant now appeals, arguing that the trial court abused its discretion in denying his continuance request. We agree and reverse and remand.²

BACKGROUND

Although the issue on appeal is procedural, the import of the police reports disclosed on the morning of trial requires contextualization by reference to what was at issue at trial. For that reason, we state the facts of the encounter that gave rise to the charges.

Defendant and his wife K had been arguing throughout the afternoon and evening of April 28, 2018, and defendant had also been drinking. After going out to eat and drink more, defendant returned home around 1:00 a.m. on April 29, 2018. Defendant used his pocketknife to destroy some of K's belongings and craft projects. When K tried to stop him, there was a physical altercation, with accounts varying between the two parties as to the extent of the physical involvement. K then left the home and called 911 while hiding in the neighbor's yard. The audio of her 911 call was played at trial and included her statements that defendant had assaulted her, that the children were still in the home, and that defendant had access to firearms.

Officers arrived on the scene and staged away from the house. They testified that they did not approach with lights and sirens due to the nature of the incident and their desire not to escalate the situation. One officer spoke to defendant via K's phone, instructing him to exit the home to speak to the officers. Defendant testified that he did not at that point think the police were actually present, and that he did not know who the man using his wife's phone was. Defendant exited the home a couple of times and looked around, at one point getting a firearm from his truck. He subsequently exited the home with the firearm and briefly pointed it in the direction of the police, before surrendering and being taken into custody.

At the trial, K and multiple law enforcement officers testified to their observations of the evening, giving varying accounts of the facts and how far they were from defendant and what they were able to see during the confrontation. The defense strategy relied largely on discrediting K, challenging the police officers’ differing accounts of the incident, pointing out differences in their claimed distance from defendant, and questioning whether they could actually see what they claimed to see. Additionally, defense counsel sought to establish that defendant was acting in self-defense and did not point his weapon at the officers—a strategy that was dependent on the various officers’ accounts of their locations and distances.

On the morning the trial was set to begin, the prosecutor provided the defense with two police reports from officers who had responded on the night in question, Deputy Belmont and Sergeant Zaitz. The parties had a conversation with the court in chambers, off the record, regarding the reports. On the record, defense counsel made a motion for a continuance, arguing that the reports impacted the defense strategy relating to the credibility of the officers and the victim and warranted further investigation of the scene. We quote the discussion at length, as the arguments presented and the court's rationale factor into our analysis.

"[DEFENSE COUNSEL]: So Judge, as I was saying, when I arrived this morning about 9:00 a.m., I received a report from the State from an Officer Belmont. Shortly thereafter, maybe 10, 15 minutes later, I received a second report from an Officer Zaitz. Both of these, Judge, I was surprised to get these at the very last minute. I had actually sent an email to the State asking hey, is there any body cam? Is there any dash cam, anything like that and the State advised no, I told you back on June 20th. I said okay. I don't think that the State had any idea that these reports existed at all. This is rather common.

"Judge, I wouldn't normally ask for a continuance if these reports simply stated I received a call, I went to the scene, and this is kind of procedurally what I did. However, Judge, both of these police reports substantively affect the charges, particularly Officer Belmont's report addresses some victim statements. It also affects the menacing charge, which we prepared for based on the previous police reports which didn't really support a menacing charge, which now that's [changed]. Then in regards to the assault 4, it changes the assault 4. Then also Belmont's report affects the unauthorized use of a weapon—or unlawful use of a weapon.

"In regards to Zaitz's report, Zaitz's report also affects the unlawful use of a weapon, which is the count that involves law enforcement here. These are significant charges.

"I've spoken with my investigator, who is also my use of force expert witness if I—if we decide to call him and he's advised that based [on] these reports, he would want to go back out to the area. He would want to get some measurements.

"***** "*** [W]e have law enforcement at stages around the house, at very far distances, varying distances, and continued varying distances based on the new reports that we received today.

"There's some questions that were raised by our investigator in regards to potential measurements. ***

"*****

"*** There's some question in regards to lighting in regards to what some of the officers say.

"So Judge, if this were a simple DUI case, if these reports that were simply procedural, I responded to a call, this is what I saw, that would be one thing. However, these are substantial charges. *** I think that the Court requiring the Defendant to go forward with the introduction of these new reports prejudices his ability to put together a defense to analyze these to do what is necessary in regard to putting together a proper defense.

"*****

"*** [I]n regard to what the State has read out of page 20 of the initial discovery that we received in a timely fashion, that is contradicted—well, I believe it's contradicted, I would need to spend some time to really break it down, but in the reports from Officer Belmont, *** [h]e states in page 2, beginning at the second full paragraph: ‘While Sergeant Edwards was speaking to Mrs. Pilon,’ Mrs. Pilon is the victim in this case, the alleged victim, ‘[defendant] called her cellphone. Sergeant Edwards spoke to [defendant] and Mrs. Pilon's cellphone. See Sergeant Edwards’ report for further details.’

"Then it goes on to say,

" ‘We walked back to the corner of Renee Way and Blanchet Drive with some other units on the scene. Sergeant Edwards spoke to [defendant] again on the cellphone. Sergeant Edwards asked me to get permission from Mrs. Pilon to look through her text messages. I went back to Mrs. Pilon and she told me her cellphone passcode. Mrs. Pilon showed me the text conversation.’

"So then it goes on that Deputy Belmont takes a phone call from [defendant]. Now, that is reflected in this original report, but you can't tell where the two officers are vis-a-vie in regard to the position that they state that [defendant] is at.

"So Judge, I just, I believe that that in and of itself requires additional analysis of these reports and it's not something that we can just go across the street and spend an hour on. I want to compare this, and contrast this, to the other police reports written by the other officers, and then compare it to—we do have a map and a diagram and track all that.

"So I mean, I understand the State's position, but I believe that not having that ability, getting that drop on you the morning of trial, is something that a few hours or even the course of a day is not enough to cure. I believe that a continuance, and Judge, we—I mean, we want to try this case as well. A short continuance would be just fine, but a continuance nonetheless is what is required here to remove any potential prejudice to [defendant].

"Additionally, Judge, and I know the Court is always concerned about that, and that is the inconvenience of the witnesses. The only civilian witness that I'm aware of is the—is Mrs. Pilon. Mrs. Pilon lives here locally. It's—she—my understanding is that she may run a daycare, but based on some of the information and

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