State v. Rodriguez

• Decision Date: 16 September 1992
• Docket Number: C-21424
• Citation: 840 P.2d 711,115 Or.App. 281
• Parties: STATE of Oregon, Respondent, v. Jaime RODRIGUEZ, Appellant. 90; CA A68804.
• Court: Oregon Court of Appeals

Page 711

840 P.2d 711

115 Or.App. 281

STATE of Oregon, Respondent, v. Jaime RODRIGUEZ, Appellant.

90C-21424; CA A68804.

Court of Appeals of Oregon,

In Banc.

Argued and Submitted Jan. 15, 1992.

Decided Sept. 16, 1992.

David B. Kuhns, Salem, argued the cause for appellant. With him on the brief was Todd & Kuhns, Salem.

Diane S. Lefkow, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

DE MUNIZ, Judge.

Defendant appeals judgments of convictions on two counts of delivering a controlled substance. ORS 475.992(1). He claims that the trial court erred by denying his motion to suppress tape recorded conversations between himself and an undercover agent. He also contends that the court erroneously limited his cross-examination of the state's witnesses. We reverse and remand.

Officer Coggins, of the Woodburn Police Department, testified that, in October, 1990, he hired Kopp to perform "undercover services." On October 12, Coggins, Kopp and Officer Weaver planned a "controlled buy" in downtown Woodburn. Before the buy, Weaver searched Kopp to make sure that he was not carrying any contraband and then gave him $40 with which to make the purchase. Coggins hid inside a building and watched Kopp as he walked up to a group of people and contacted defendant. Coggins saw "an exchange of items" between defendant and Kopp, and he photographed the event. After the exchange, Kopp gave Weaver a bindle containing cocaine. Weaver testified that Kopp had been outfitted with a body wire to record the conversation between Kopp and defendant during the transaction. On October 13, Coggins and Kopp planned another controlled buy from defendant. Officer Collins searched Kopp and gave him $40. Again, Kopp wore a body wire. Kopp testified that he made another cocaine purchase from defendant.

On the day of trial, defense counsel orally made a motion in limine to exclude the body wire tapes and any evidence that was derived from them. The court denied the motion on the ground that a written motion to suppress was the only proper method for challenging the body wire evidence. Defendant contends that the tapes should have been suppressed, because the police did not obtain an ex parte order authorizing the use of the body wire, and the failure to obtain an order was not excused by exigent circumstances or probable cause to believe that defendant was about to commit a drug felony. ¹ The issue is whether defendant can challenge, by an oral motion in limine, the lawfulness of the body wire evidence.

ORS 133.736 establishes the procedure for challenging the introduction of conversations obtained under ORS 165.540(5)(a). It provides, in part:

"(1) Any aggrieved person * * * may move to suppress under ORS 41.910 recordings of any conversation obtained under ORS 165.540(5)(a), or the testimony of any individual not a party thereto regarding any conversation obtained under ORS 165.540(5)(a).

"(2) Such motion shall be made before the trial, * * *. If the motion is granted, the judge, upon the filing of such motion, by the aggrieved person, may in the judge's discretion make available to the aggrieved person or the person's counsel for inspection such portions of the intercepted communications or evidence derived therefrom as the judge determines to be in the interest of justice." (Emphasis supplied.)

ORS 41.910(2) provides:

"Evidence made inadmissible * * * due to noncompliance by a law enforcement officer with the conditions of ORS 165.540(5)(a) shall only be inadmissible under this section pursuant to a motion to suppress under ORS 133.736."

ORS 133.726 and ORS 41.910(2) establish that a motion to suppress is the sole method for challenging the admissibility of an conversation intercepted under ORS 165.540(5)(a). A motion that must be filed, ORS 133.736(2), is by necessity, a written motion. A formal, written motion to suppress serves two functions. It gives the state notice of the contentions that it must be prepared to address at the hearing, and it defines the issues to be decided by the court. State v. Johnson/Imel, 16 Or.App. 560, 566, 519 P.2d 1053, rev. den. (1974). Defendant's motion, made just before jury selection on the day of trial, did not serve either of those functions, and the trial court correctly denied it.

In her opening statement, the prosecutor said, "Mr. Kopp was introduced to Detective Coggins through Mr. Kopp's roommate." Defendant argues that the court erred by limiting testimony about the roommate's identity and his involvement with undercover agents. He contends that that line of questioning was relevant to the issue of Kopp's bias. ² That contention is purely speculative, because he did not make any record that would support that proposition. ³ Moreover, those questions were not designed to reveal that "the witness [i.e., Kopp] engaged in conduct or made statements showing bias or interest." OEC 609-1(1). (Emphasis supplied.) The court did not err in prohibiting Kopp from identifying his roommate.

Defendant testified at trial. He admitted that he was at the place where he allegedly sold drugs to Kopp on October 12 and 13, and he identified himself with Kopp in photographs that the state entered in evidence. However, he denied that he had ever sold drugs to Kopp. He testified that Kopp asked him for change to use the phone and that he gave Kopp a quarter. He also said that he may have given Kopp some cigarettes. He testified that he had listened to the body wire tapes, and he identified a voice on one of them as belonging to Jacob Corago. He denied that his voice was on either of the tapes.

His defense was that Kopp, Collins and Coggins were involved in multiple controlled buys on the 12th and 13th, and that somehow, they had confused him with another suspect. He attempted to show that Kopp, a paid undercover agent, was a biased and unreliable witness who could not accurately identify him as one of the people from whom he had purchased drugs. Defendant also tried to show that, because the officers were involved in other contemporaneous transactions, they became confused about the multiple suspects and misidentified defendant as one of the people who had sold drugs to Kopp. Defendant contends that several of the court's evidentiary rulings prevented him from adequately developing his defense.

In a pre-trial ruling, the court granted the state's motion to preclude defendant from asking Kopp whether he had ever been arrested. On direct examination, the prosecutor asked Kopp, "[W]ere you given any leniency in criminal matters or had parking tickets dismissed or anything of that nature?" That question opened the door to cross-examination about Kopp's arrest record.

Evidence about his prior arrests (if there were any), when they occurred, whether he had been charged and the disposition of charges are all matters that are potentially relevant to the issue of bias. The answers to those inquiries could have allowed the jury to infer that he was biased and giving testimony favorable to the state in exchange for a deal. Defendant could not be expected to question him meaningfully about "favorable treatment" without asking the quintessential question about whether he had ever been arrested.

Defendant attempted to make an offer of proof, but the court interceded:

"No. I just absolutely will not allow any questions regarding any prior arrests of this person. As to convictions--and I'm not even going to permit an offer of proof on this."

If defendant had a basis for asserting that Kopp had made a deal, then exclusion of Kopp's arrest record was an error that defendant could preserve only by making an offer of proof. State v. Affeld, 307 Or. 125, 129, 764 P.2d 220 (1988). He had an absolute right to make an offer of proof. See People v. Stewart, 229 Ill.App.3d 886, 171 Ill.Dec. 577, 594 N.E.2d 429 (1992); Tatum v. State, 798 S.W.2d 569 (Tex.Cr.App.1990), aff'd 821 S.W.2d 238 (Tex.Ct.App.1991). The court's refusal to allow him to make an offer was, by itself, erroneous.

On cross-examination, defense counsel asked Kopp, "Did [all of your drug buys] involve Spanish men?" The court sustained the state's objection to that question. Defendant contends that the court erred by limiting questions about the ethnic origin of other suspects. Kopp testified that he was involved in 10 controlled buys during the six weeks that he worked for the Woodburn police department. He testified that all of them occurred at the same location, that each time he started out with two $20 bills, that he wore a body wire and that he attempted to buy approximately a quarter gram of cocaine. When defense counsel asked if there were other people around on October 12 "who indicated a willingness to sell cocaine to you," Kopp answered,

"That's really hard to say because there are so many people down there. They all are willing to sell to you one way or another. It's just a matter of who is present."

He testified that there were several voices on the tape that was made on the 13th and that more than one of those people had indicated that they were willing to sell him cocaine.

Kopp testified, "I've got a good memory." Nonetheless, he said that it was necessary to refresh his recollection of the events of October 12 and 13 by reviewing the police reports and that, without examining them, he would have no independent recollection of the details of what happened on each of those days.

Kopp had difficulty recalling how many people he had actually bought drugs from. During cross-examination, this colloquy occurred:

"Q: Of the ten buys that you indicated that you were involved with, how many of them involved the same person more than once?

"A: I believe three. Three different people twice.

"Q: Okay. It would be a total of seven people that you bought drugs from?

"A: Six--well, now, people I bought from. That would be--yea, seven, okay.

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