State v. Pyle
| Decision Date | 03 August 2022 |
| Docket Number | A169792 |
| Citation | 321 Or.App. 149,516 P.3d 273 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Waylon K. PYLE, aka Waylon Karl Pyle, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Timothy A. Sylwester, Assistant Attorney General, Salem, 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.
Defendant appeals from a judgment of conviction for attempted fourth-degree assault, ORS 163.160, and harassment, ORS 166.065, raising six assignments of error. We reject the first and the sixth without discussion. Defendant's second through fifth assignments of error all relate to the trial court's ruling that it would not enforce defendant's subpoena of a witness who had been excused the previous day, and the trial court's denial of defendant's motion for a mistrial after the witness did not appear. We conclude the trial court abused its discretion when it failed to take any steps to enforce defendant's lawful subpoena, and reverse and remand for a new trial.
We begin with a brief recitation of the evidence presented at trial and the proceedings below. Defendant lived with his stepson C and C's mother. Testimony presented at trial indicated that on July 31, 2018, C's mother and defendant had been arguing and there were ultimately two physical altercations between defendant and C. C and his mother left the house and called 9-1-1, and the police responded. Officer Ladd spoke to C and his mother, and a different officer interviewed defendant.
On the first day of the trial, C testified for the state, describing the altercations between himself and defendant, and was cross-examined by defense counsel. In the interest of allowing C to attend school the next day, the trial court extended the day's proceedings until 5:30 p.m. and encouraged counsel to conclude their questioning of C that day. The parties were told to limit their questioning to 30 minutes, with the court acknowledging that it was possible C's testimony would need to continue the following day. After cross-examination and redirect, the court excused C, with defense counsel stating they were "happy to excuse [him] at this time."
On the second day of the trial, the state called Ladd to testify. During cross-examination, defendant sought to introduce C's statement to Ladd on the night of the incident that he had initiated the physical contact in his altercations with defendant, as an excited utterance exception to the prohibition on hearsay. After an offer of proof and arguments from both sides, the trial court indicated that it was inclined to deny defendant's request to admit the hearsay evidence. However, the court afforded counsel the opportunity to further research the issue over the lunch hour and to make additional arguments at that time. Following the break, the court ruled that the hearsay would not be admitted.
Subsequently, defendant sought to recall C to question him about his statements to Ladd. In anticipation of the need for his testimony, over the lunch break defense counsel had instructed an investigator to serve a subpoena on C at school. The prosecutor and the trial court expressed displeasure that defense counsel had failed to notify the court before serving the subpoena, and at the timing and manner of serving a high school student at school when he was the victim in the case. The prosecutor did not explicitly move to quash the subpoena, but stated his position that C did not need to come in. The court acknowledged that the defense could have reasons for wanting to recall C and concluded that it would allow C to testify if he appeared in court voluntarily by 3:30 that afternoon, but stated that it would not penalize him for not appearing and would not carry the case over to the next day for additional testimony.1 C did not appear by the appointed time. Defendant moved for a mistrial on the grounds that his right to compulsory process had been denied, which the trial court denied.
Defendant now argues that his right to compulsory process was violated by the trial court's refusal to take any steps to enforce a lawful subpoena and to obtain C's presence and testimony, asserting that the trial court effectively quashed the subpoena. The state asserts that all of defendant's arguments are premised on the incorrect assertion that he was legally entitled to compel C's last-minute reappearance at trial.
As an initial matter, we address the state's assertion that defendant did not have a right to recall C under the circumstances. The state agreed at oral argument that if C had not previously testified for the state, or if defense counsel had not agreed that the witness could be released, then the court would have been required to enforce the subpoena. The state at trial and in briefing largely focused on the facts that defendant had already had a sufficient opportunity to question C, had not objected to his being released, had no legitimate reason to recall him, and had unreasonably unilaterally served C at the last minute, demanding his presence within two hours.
Article I, section 11, of the Oregon Constitution provides that "[i]n all criminal prosecutions, the accused shall have the right to *** have compulsory process for obtaining witnesses in his favor ***."2 A defendant's right to issue subpoenas for witness testimony is further provided by ORS 136.567.3
Apart from general assertions regarding procedural and timing facts, the state points to no law in support of its position that defendant should not have been allowed to recall C for his case-in-chief. Recalling a witness for purposes of rebuttal, or impeachment, is a well-established litigation strategy. In any event, those arguments obscure the essential point—the witness here was lawfully served. The subpoena power is not limited to witnesses who have not already been examined. Here, there is no dispute, and in fact the state conceded at oral argument, that the subpoena was lawful.
We thus turn to the trial court's decision not to enforce defendant's lawful subpoena. Whether a defendant's right to compulsory process has been violated is a question of law. State v. Cartwright , 336 Or. 408, 419-20, 85 P.3d 305 (2004) ; State v. David , 317 Or App 794, 796, 505 P.3d 1057 (2022). We review the trial court's ruling whether to quash a subpoena for abuse of discretion. Benchmark Properties v. Hipolito , 161 Or App 598, 603, 984 P.2d 927 (1999). A court's ruling whether to initiate contempt proceedings or to grant a continuance is reviewed for an abuse of discretion. State v. Baker , 232 Or App 112, 120-21, 125 n. 7, 221 P.3d 749 (2009).
A person who has been subpoenaed has an obligation to appear as a witness and give evidence. State v. Jackson , 223 Or App 429, 433, 196 P.3d 559 (2008). In some limited circumstances a court may quash a subpoena, such as when compliance would work a hardship on the witness or would otherwise be oppressive. Hipolito , 161 Or App at 603, 984 P.2d 927 .4 There are also limitations on a witness's duty to accommodate a criminal defendant's broad right to compel testimony or evidence, including relevance and privilege. State v. Bray , 281 Or App 584, 612, 383 P.3d 883 (2016) (citing Cartwright , 336 Or. at 417, 85 P.3d 305 ); State v. Beeler , 166 Or App 275, 283, 999 P.2d 497 (2000) (). However, in the context of a criminal case, the trial court's exercise of its inherent authority to determine when witnesses may be relieved of their duty to appear must be attentive to the constitutional demands of compulsory process. See, e.g. , State ex rel Gladden v. Lonergan , 201 Or. 163, 189, 269 P.2d 491 (1954) ( ).
Unless an otherwise lawful subpoena is quashed or modified by the trial court, it must be given effect. The court has a range of actions with which it can compel compliance with a lawfully issued subpoena. ORCP 55 G addresses subpoena enforcement:
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