State v. Reyes-Camarena

• Decision Date: 28 July 2000
• Citation: 7 P.3d 522,330 Or. 431
• Parties: STATE of Oregon, Respondent, v. Horacio Alberto REYES-CAMARENA, Appellant.
• Court: Oregon Supreme Court

7 P.3d 522

330 Or. 431

STATE of Oregon, Respondent, v. Horacio Alberto REYES-CAMARENA, Appellant.

(CC 95CR2419FE; SC S44042)

Supreme Court of Oregon, En Banc.

Argued and Submitted May 16, 2000.

Decided July 28, 2000.

David E. Groom, Public Defender, Salem, argued the cause for appellant. With him on the brief was Stephen J. Williams, Deputy Public Defender.

Robert B. Rocklin, Assistant Attorney General, Salem, argued the cause for respondent. With him on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

DURHAM, J.

This criminal case is before the court on automatic and direct review of defendant's conviction for aggravated murder and sentence of death. Former ORS 163.150(1)(g), repealed by Or Laws 1999, ch 1055, § 1.¹ For the reasons that follow, we affirm the judgment of conviction and the sentence of death.

Defendant was employed as a foreman at a farm where the victim worked. Defendant agreed to drive the victim and her sister to a farm in Washington to find work. After defendant, the two women, and a male companion left the farm, defendant robbed and repeatedly stabbed the women, and left them beside rural roads in Douglas County. The victim died as a result.

In October 1996, a jury found defendant guilty of aggravated felony murder, first-degree robbery, and two counts of aggravated murder. In January 1997, after a penalty phase proceeding in which the jury answered affirmatively the four death-penalty questions set out in ORS 163.150(1)(b), the trial court sentenced defendant to death. Defendant asks this court to reverse his conviction or, alternatively, to vacate the sentence and remand the case to the trial court for further proceedings.

I. VIENNA CONVENTION ON CONSULAR RELATIONS

After defendant's arrest, police officers advised defendant of his Miranda rights in both English and Spanish, and he signed waivers in both languages. The police then interviewed defendant. The trial court admitted evidence of some statements that defendant made to the police.

In his first assignment of error, defendant argues that he is a Mexican citizen and that the court should have suppressed his statements to the police, because the state obtained them in violation of the Vienna Convention on Consular Relations, opened for signature April 24, 1963, 21 UST 77, TIAS No 6820 ("VCCR"). Defendant reasons as follows. The VCCR is a treaty entered into by the federal government. See U.S. Const. Art II, § 2 (President shall have power, subject to concurrence of two-thirds of the Senate, to make treaties). As such, under the Supremacy Clause of the United States Constitution, the VCCR is binding on state courts. US Const, Art VI. Article 36 of the VCCR requires designated authorities in signatory countries (1) to inform foreign consulates when police arrest or detain one of the citizens of the foreign country, (2) to allow communication between foreign consulates and their arrested or detained citizens, (3) to allow consulates to assist their citizens, and (4) to advise arrested or detained foreign citizens of their rights under the VCCR. The police in this case did not comply with the VCCR. In particular, the police did not inform the Mexican Consulate that defendant was in custody or inform defendant of his rights under the VCCR. Defendant argues that the trial court should have suppressed statements that he made to police as a remedy for those violations of the VCCR.

The state asserts a number of arguments in response to that assignment of error. First, the state contends that this court should not review the assignment, because the claim of error was not preserved. The state observes that defendant raised no issue regarding the VCCR in the trial court. Defendant did not move to suppress his statements, and neither he nor anyone else mentioned the VCCR at trial. The state further argues that the assignment is not subject to review under the plain error doctrine, because the legal point at issue is not obvious and the error does not appear on the face of the record. See ORAP 5.45(2) (unpreserved error of law may be considered on appeal if error is apparent on face of record). Next, the state contends that the record in this case is insufficient to establish that the VCCR applies. Third, the state argues that, if this court reaches the merits, then it should conclude, as have several federal courts, that the VCCR confers no rights that individuals may enforce. Fourth, the state contends that, to the extent that the VCCR confers individual rights, an individual must establish prejudice to be entitled to relief, and defendant has not done so. Finally, the state argues that, even if defendant is entitled to relief under the VCCR, suppression of his statements to the police is not an appropriate remedy.

Defendant concedes that the claim of error was not preserved. Ordinarily, this court will not consider any matter assigned as error unless it was preserved in the lower court. ORAP 5.45(2); see also State v. Stevens, 328 Or. 116, 123-24, 970 P.2d 215 (1998)

(defendant sought to exclude evidence as inadmissible profile evidence; court declined to consider whether evidence was inadmissible scientific evidence, because defendant did not preserve that issue); State v. Montez, 324 Or. 343, 356, 927 P.2d 64 (1996) (because defendant did not object to testimony on grounds asserted on appeal, claim of error not preserved). In this case, defendant raised no issue about the admissibility of his statements to police, let alone whether evidence of those statements was inadmissible because of asserted violations of the VCCR.

Even if a party fails to preserve a claim of error, appellate courts nonetheless possess discretion to consider it if it is plain error, also known as error "apparent on the face of the record." ORAP 5.45(2); State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990); Ailes v. Portland Meadows, Inc., 312 Or. 376, 381, 823 P.2d 956 (1991). An appellate court may review unpreserved error as plain error if (1) it is an error of law, (2) the error is "obvious, not reasonably in dispute," and (3) it appears "`on the face of the record,' i.e., the reviewing court * * * need [not] go outside the record to identify the error or choose between competing inferences," and the facts constituting the error are irrefutable. Ailes, 312 Or. at 381-82, 823 P.2d 956. Even if an appellate court concludes that an error is plain, it must exercise its discretion, explaining its reasons for doing so, to consider the claim of error. Id. at 382, 382 n. 6, 823 P.2d 956 (stating nonexhaustive list of factors appellate court weighs when deciding whether to exercise discretion to consider plain error).

The state argues that any error here is not obvious, because courts that have considered similar issues have reached different conclusions. The state further argues that, even if the asserted error is plain, this court should exercise its discretion against considering it, because the Ailes factors counsel against considering the error as plain error. Defendant does not attempt to counter the state's argument against plain error.

The asserted error here is not plain, because the legal point on which defendant relies is not obvious and reasonably is in dispute. No Oregon appellate court has considered the issue, let alone held that defendant's position is correct. Furthermore, the United States Supreme Court has not decided the issue. See Van De Hey v. U.S. National Bank, 313 Or. 86, 95, 95 n. 9, 829 P.2d 695 (1992)

(only decisions of United States Supreme Court are binding on this court in interpretation of federal law). The only pertinent Supreme Court case is Breard v. Greene, 523 U.S. 371, 118 S.Ct. 1352, 140 L.Ed.2d 529 (1998). Breard is a habeas corpus case in which the petitioner argued that the Court should overturn his conviction and sentence because of alleged violations of the VCCR. The Court held that, because the petitioner had not raised the claim in state court, he had lost any claim under the VCCR. 523 U.S. at 375,

118 S.Ct. 1352. Accordingly, the only Supreme Court holding that addresses a claim under the VCCR does not establish that defendant here was entitled to suppression of his statements to police because of an alleged VCCR violation.

Other discussion of the VCCR in Breard is equivocal and does not help defendant satisfy the plain error rule. For example, as the state observes, to prevail on his VCCR claim, defendant must establish that the VCCR creates individual rights. The Breard Court referred to that issue in passing, noting: "The Vienna Convention—which arguably confers on an individual the right to consular assistance following arrest—has continuously been in effect since 1969." Id. at 376, 118 S.Ct. 1352 (emphasis added). Even if that statement were necessary to the holding in Breard, it is insufficient to permit this court to conclude that the claimed individual right plainly exists.² Defendant argues that, even if he failed to preserve any claim of error and the error is not plain, this court nevertheless should consider his VCCR argument. He presents three reasons:

"[T]his issue is largely unexplored throughout the United States. * * * Relationships with foreign countries depend on the court rulings on this issue. In addition to that, this defendant's life depends on Oregon's treatment of this issue."

For the following reasons, we disagree.

Defendant's first reason—the lack of precedent on the meaning and effect of the VCCR—actually militates against considering the unpreserved VCCR issue as plain error. Significant disputes regarding the VCCR persist because no pertinent legal authority has resolved them. See Ailes, 312 Or. at 381,

823 P.2d 956 (unpreserved error not considered "plain" if legal point disputed). Second, defendant has not persuaded us that the diplomatic issues to which he alludes are sufficiently real or significant to overcome the important...