State v. Rivers
| Decision Date | 19 April 2023 |
| Docket Number | A175183 |
| Citation | 325 Or.App. 446 |
| Parties | STATE OF OREGON, Plaintiff-Respondent, v. HENRY ARNOLD RIVERS, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Argued and submitted September 27, 2022
Linn County Circuit Court 19CR77151; David E. Delsman, Judge.
Kyle Krohn, 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.
Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot Judge. [*]
Defendant was convicted after a jury trial on five counts of first-degree sexual abuse (Counts 1, 2, 9, 13, and 14), seven counts of first-degree sodomy (Counts 4, 5, 7, 8, 10, 11, and 15), three counts of first-degree rape (Counts 6, 16, and 17), one count of first-degree unlawful sexual penetration (Count 3), and one count of second-degree unlawful sexual penetration (Count 12). In an amended judgment, the court imposed various consecutive and concurrent sentences for a total of 400 months' imprisonment, as well as post-prison supervision of 20 years for certain convictions, minus the time served. On appeal, in six assignments of error defendant argues that the trial court erred in having him wear a mask during his testimony (first assignment), erred in admitting certain evidence and excluding other evidence (second through fourth assignments), and erred in entering an amended judgment that contained sentencing terms that were not announced in open court (fifth and sixth assignments). The state responds that defendant failed to preserve his argument concerning the court's COVID-related mask requirement and, regardless, that there was no plain error on that issue, and that the court correctly ruled on the evidentiary questions. It concedes, however, that the court erred in entering an amended judgment with provisions that were not announced at sentencing. As explained below, we conclude that defendant failed to preserve any of his arguments about the COVID-related mask measures taken during trial, that the court did not plainly err on that issue, that the court properly ruled on the evidentiary issues, and that the case must be remanded for resentencing.
The trial occurred in late October 2020, fairly early in the COVID pandemic and before vaccines or effective treatments were available, at a time when courts were tasked with conducting trials and other proceedings in circumstances where there was a significant danger of spreading the virus. After an initial postponement due to COVID, the case went to trial in late October 2020, shortly after a surge of COVID in the community. Because of COVID-related concerns, before trial, the parties and the court discussed remote testimony by certain witnesses, and the parties stipulated to jury selection occurring at the county fairgrounds rather than the courthouse as it was more suitable than the courtroom for maintaining social distancing.
Prior to trial, the court instructed the jurors to raise their hands if they were having difficulty hearing a witness. When the first witness was called, the prosecutor asked the court "what the position is on witnesses wearing the masks," and the court indicated that it wanted the witness to remain masked "since we're not able to socially distance." Later that day, the victim took the stand and, after she began to testify, the court told her, "they can't hear you in the back," and said, "If you need to remove the mask to be heard go ahead." The remainder of the victim's testimony was given while she was not wearing a mask, and no further discussion of masks occurred until defendant was about to testify on the following day. When defense counsel asked if defendant could remove his mask, the court replied, [1] Defense counsel replied that he understood but noted that the victim had removed her mask. The court explained that that was because there were difficulties in hearing her and that if the same issue arose with defendant, it would consider having him remove his mask. Defense counsel responded: Thereafter, defendant testified while wearing the mask. As noted, the jury returned a verdict of guilty on all counts.
Defendant asserts on appeal that the court lacked authority to require him to wear a mask during his testimony, arguing variously that (1) the Chief Justice Order No. (CJO) 20-016 (May 15, 2020)-which, as explained above, was in effect at the time of the hearing, 325 Or.App. at 448 n 1-did not provide for masking of trial witnesses; (2) various constitutional principles disallowed requirements such as the masking requirement as unconstitutional restrictions on a defendant's right to testify and due process right to a trial by an impartial jury; and (3) Article I, section 11, of the Oregon Constitution did not permit requiring a defendant to be masked because it provides a defendant the right to meet witnesses "face to face," and also requires that a defendant not be forced to appear at trial in "physical restraints" without sufficient justification. He argues that he sufficiently preserved those arguments when counsel noted that it was easier for people to see facial expressions and judge things without a mask. He argues alternatively that the error in requiring him to wear a mask constitutes plain error under ORAP 5.45(1), and that this court should exercise discretion to correct it.
We conclude that defendant's arguments were not preserved and that the trial court did not commit plain error in requiring witnesses to wear masks unless the jury had difficulty hearing them. In order to be considered on appeal, an issue generally must first be presented to the trial court. The reasons for this are prudential in nature. Peeples v. Lampert, 345 Or. 209, 219, 191 P.3d 637 (2008). First, preservation gives the trial court a chance to consider and rule on an issue, thus possibly avoiding an error or taking steps to correct one already made. Id. Second, the preservation rule ensures fairness, giving the opposing party a chance to present its position on the legal issue. Id. And third, preservation "fosters full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it." Id. at 219-20.
As has often been noted, for purposes of preservation, it is considered essential that a party "raise the relevant issue at trial, but less important to make a specific argument or identify a specific legal source with respect to the issue raised." State v. Stevens, 328 Or. 116, 122, 970 P.2d 215 (1998). Here, the issue defendant raises is whether the court lacked authority to require him to wear a mask under the circumstances. Nothing that was said in the trial court would have alerted the court that defendant meant to assert that the court lacked such authority. Indeed, both before and during trial, the parties implicitly acknowledged that the court had authority to take steps to protect everyone involved in the proceeding from the risks of COVID. As noted, defendant did not object when the court declared its intention that witnesses should remain masked, nor did he object when the court allowed a witness to remove her mask in order to be heard. And when the court explained why it did not want defendant to remove his mask unless there were problems hearing his testimony, defense counsel said he "understood," and "Okay." While counsel did express an opinion that it would be "easier for people to see his facial expressions and judge things without" a mask, he did not suggest that the court lacked authority or sufficient reason to make the decision it did. This is not a matter of defendant simply failing to identify a source of his position, but a matter of defendant not informing the court at all of the position he now asserts. A party must "provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted." State v. Wyatt, 331 Or. 335, 343, 15 P.3d 22 (2000). Defendant did not do so here.
Nor was the trial court's decision to require defendant to wear a mask under these circumstances plainly erroneous. As the conduct of the parties and the trial court in this case demonstrates, there is a well-recognized, albeit implicit understanding that trial courts have inherent authority-and indeed a responsibility-to ensure the safety and security of those in the courtroom. See generally State v. Agee, 358 Or. 325, 333, 364 P.3d 971 (2015), adh'd to as modified on recons, 358 Or. 749, 370 P.3d 476 (2016) (trial courts have inherent authority to control and regulate courtroom proceedings and the conduct of persons connected with such...
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