State v. Poitra

• Decision Date: 31 May 2006
• Docket Number: C010926CR; A115576.
• Citation: 206 Or. App. 207,136 P.3d 87
• Parties: STATE of Oregon, Respondent, v. Richard Lee POITRA, Appellant.
• Court: Oregon Court of Appeals

136 P.3d 87

206 Or. App. 207

STATE of Oregon, Respondent, v. Richard Lee POITRA, Appellant.

C010926CR; A115576.

Court of Appeals of Oregon.

Argued and submitted April 18, 2005.

Decided May 31, 2006.

Jason E. Thompson, Salem, argued the cause for appellant, and, with Ferder Casebeer & French LLP, filed the second supplemental brief. Andrew S. Chilton and Chilton & Ebbett, LLC filed the opening brief. Richard Lee Poitra filed the pro se supplemental brief. Patrick M. Ebbett and Chilton, Ebbett & Rohr, LLC filed the supplemental brief.

Erika Hadlock, Assistant Attorney General, argued the cause for respondent. On the briefs were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Julie A. Smith, Assistant Attorney General.

Before HASELTON, Presiding Judge, and ORTEGA, Judge, and DEITS, Judge pro tempore.

ORTEGA, J.

Defendant appeals his convictions for robbery and theft, raising seven assignments of error. We address two, rejecting the others without discussion:¹ (1) whether the trial court erred in denying defendant's motion to suppress certain evidence found in defendant's house because it was outside the scope of the warrant; and (2) whether the trial court's admission of the tape-recorded confession of an accomplice violated defendant's constitutionally protected confrontation rights under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). We affirm.

Because our disposition of both assignments of error requires us to evaluate the quantity and quality of the evidence against defendant, we recite the facts in some detail, viewing them in the light most favorable to the state. State v. Cunningham, 179 Or.App. 359, 361, 40 P.3d 1065, adh'd to on recons., 184 Or.App. 292, 57 P.3d 149 (2002), rev'd and rem'd on other grounds, 337 Or. 528, 99 P.3d 271 (2004).

Three men robbed a convenience store on the evening of December 14, 2000. The robbery was recorded on the store's video surveillance system. One of the robbers wore a Santa Claus hat-and-beard combination, another wore a hooded sweatshirt, and the third wore a ski mask.

Police received their first lead in the case from the store owner, who was present during the robbery. The owner, who was familiar with defendant and defendant's girlfriend, Chapman, told police that he suspected they were involved. He said that, shortly before the robbery, Chapman came into the store twice asking for a ride,² and that a friend had told him that defendant was seen wearing a "Santa Claus mask" on the night of the robbery. He also reported that the perpetrator who was wearing the Santa Claus hat and beard had altered his voice during the robbery, leading the store owner to suspect that he was trying to avoid being recognized.

On further investigation, police determined that about two-and-a-half hours before the robbery, defendant had picked up Chapman from a house located near the store. A resident of the house told police that defendant had entered wearing a "Santa Claus ensemble," a hat-and-beard combination.³ After police showed the resident surveillance photos and video of the robbery, she told them that the person dressed as Santa in the photos and video appeared as defendant did when he visited her house. At trial, she testified that she was "[r]eal sure" that they were the same person.

Police then interviewed defendant. At first, defendant reported that he had spent the entire day in question at his mother's house (where he was then living), except for leaving to attend a meeting at a rehabilitation center at 9 p.m. and returning home afterwards. When confronted with the fact that witnesses had seen him pick up Chapman earlier that evening, defendant modified his story accordingly, but still claimed to have attended the 9 p.m. meeting. Police later contacted defendant's rehabilitation counselor, who told them that there was no record of defendant attending any meetings at the center on the night in question (or indeed for more than a week before that night) and that no meetings had taken place at the center after about 8:30 p.m. that evening.

Also during the interview, defendant denied having a "Santa Claus mask," even when confronted with evidence that a witness had described him as wearing one when he picked up Chapman. Defendant explained that he did own a "Santa Claus hat," and admitted that he wore the hat into the residence when he picked up Chapman.⁴ Defendant informed police that his Santa hat should be at his house.

Police obtained a search warrant authorizing them to search defendant's home and to seize, among other things, a "Santa Claus[] mask." In an attic that could be accessed through defendant's bedroom, police found several garbage bags. One contained a Santa Claus hat, along with photo identification of defendant. Another contained a ski mask matching that worn by one of the suspects in the surveillance video, and a heavy jacket, black pants, brown boots, and socks that also matched clothing reportedly worn by the suspects. Some time after executing the search warrant, police returned to defendant's home and seized "white, fuzzy material" that looked like the beard worn by the perpetrator who had been disguised as Santa Claus.

Defendant's roommate, Gleason, was arrested and confessed that he and two other people had robbed the store and that he "believed" there was a fourth person in the car. However, he refused to name his accomplices. Gleason said the robbery had been discussed at the house he shared with defendant. He also indicated that he was not with defendant when he went to pick up Chapman on the evening of the robbery. Gleason, through his attorney, invoked his Fifth Amendment right not to testify at defendant's trial; instead, his taped confession was played for the jury.

Before trial, defendant moved to suppress several items of evidence. One was the Santa Claus hat; he contended that the hat "is not specifically authorized to be seized under the terms of [the] search warrant," which authorized seizure of a "Santa Claus[] mask." The trial court denied the motion, concluding that "a Santa Claus mask and a Santa Claus hat are reasonably consistent." A jury convicted defendant of several counts of robbery and theft, and defendant filed this appeal.

We begin with defendant's challenge to admission of the Santa Claus hat, which is one of several assignments of error asserted pro se. We understand defendant to be contending, as he did in the trial court, that the hat should have been suppressed because seizure of the hat was outside the scope of the warrant authorizing seizure of a mask.⁵ Defendant's argument does not make clear whether it is based on Article I, section 9, of the Oregon Constitution or the Fourth Amendment to the United States Constitution. In any event, however, we need not decide whether the trial court erred in admitting the disputed evidence because the error, if any, was harmless under both the state and federal constitutions.

Under Article VII (Amended), section 3, of the Oregon Constitution, an error is harmless if there is little likelihood that it affected the verdict. State v. Gibson, 338 Or. 560, 576, 113 P.3d 423 (2005). The correct focus of the inquiry is on the possible influence of the error on the verdict rendered. State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003). If the disputed testimony is merely cumulative of other evidence that already established the same fact, then the error is harmless. Id. at 34, 77 P.3d 1111. Under the federal constitution, error is harmless if "the reviewing court may confidently say, on the whole record, that the constitutional error was harmless beyond a reasonable doubt." Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). Whether an evidentiary error is harmless in a particular case depends on a number of factors including the importance of the evidence, whether the evidence was cumulative, the presence or absence of evidence corroborating or contradicting the evidence, and the overall strength of the prosecution's case. Id. at 684, 106 S.Ct. 1431. We address the state constitutional question first. State v Bates, 203 Or.App. 245, 251, 125 P.3d 42 (2005).

The goal of the state, of course, was to connect defendant to the crime and implicate him as the perpetrator disguised as Santa. The state sought to accomplish that by, among other things, proving that defendant owned a Santa hat and had been seen wearing it on the evening of the robbery and that defendant's Santa hat matched the one worn by one of the perpetrators. The hat found at defendant's home was admitted to bolster the establishment of those facts.

However, the hat was not the only evidence implicating defendant as the perpetrator disguised as Santa. First, defendant admitted, and his mother confirmed, that he owned a Santa hat. Second, defendant admitted that he was wearing the hat on the evening of the robbery when he went to pick up Chapman. That was confirmed by both Chapman and the resident of the house through their statements that defendant entered the house that night "look[ing] like Santa" in some sort of "Santa Claus ensemble." Third, the resident's testimony established the similarity between defendant's hat and the hat worn by the perpetrator; she stated that there was no difference between the way defendant appeared when he entered her house and the appearance of the perpetrator on the surveillance video. Lastly, it is worth noting that the fact that the hat was found at defendant's house when the warrant was executed adds very little, because defendant told police they would find it there.

All told, there was ample other evidence establishing that defendant owned a Santa hat, that he wore it on the night of the robbery, and that his hat resembled that of the perpetrator. The actual admission of the hat was cumulative to that evidence. In sum, there is little likelihood that the admission of the hat had any...