State v. Schneider

• Decision Date: 21 September 2005
• Docket Number: C002925CR; A118922.
• Citation: 120 P.3d 16,201 Or. App. 546
• Parties: STATE of Oregon, Respondent, v. Cory Lynn SCHNEIDER, Appellant.
• Court: Oregon Supreme Court

120 P.3d 16

201 Or. App. 546

STATE of Oregon, Respondent, v. Cory Lynn SCHNEIDER, Appellant.

C002925CR; A118922.

Court of Appeals of Oregon, En Banc.

Argued and Submitted October 5, 2004.

Resubmitted En Banc May 16, 2005.

Decided September 21, 2005.

COPYRIGHT MATERIAL OMITTED

John Henry Hingson III, Oregon City, argued the cause and filed the brief for appellant.

Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, SCHUMAN, ORTEGA, and ROSENBLUM, Judges.

LANDAU, J.

Defendant appeals a judgment of conviction for assault in the fourth degree, ORS 163.160, two counts of recklessly endangering another person, ORS 163.195, criminal mischief in the second degree, ORS 164.354, reckless driving, ORS 811.140, and driving under the influence of intoxicants (DUII), ORS 813.010. He advances a number of assignments of error ranging from the denial of a motion to dismiss on speedy trial grounds to the denial of his motion to suppress evidence and the failure of the trial court to deliver his requested instructions. We conclude that none of the assignments has merit and affirm.

We begin with a brief recitation of the factual background and then refer to additional facts pertinent to individual assignments of error as necessary. On March 9, 2000, defendant rear-ended a car that was stopped for a red light. That car was pushed into another car in front of it. A police officer responding to the accident smelled alcohol on defendant's breath and observed that defendant swayed from side to side and leaned on the tailgate of his pickup truck for balance. The officer asked defendant to perform field sobriety tests, which defendant agreed to do. Based on the results of those tests, the officer concluded that defendant had been consuming alcohol and was impaired. He arrested defendant for DUII and took defendant to the police station to administer a breath test. Defendant's blood alcohol content was .19 percent.

Defendant was indicted by a grand jury on October 26, 2000, on two counts of assault in the fourth degree, two counts of recklessly endangering another person, two counts of criminal mischief in the second degree, reckless driving, and driving under the influence of intoxicants. Trial took place on June 4, 2002. A jury found defendant guilty of six of those counts.

On appeal, defendant assigns error to eight different rulings by the court. We consider each in turn.

A. Motion to dismiss on speedy trial grounds

1. Relevant facts

Defendant was originally cited on March 9, 2000. The following month, the prosecutor dismissed the citation and swore out a complaint against defendant that included eight misdemeanor counts. The prosecutor later dismissed the complaint as well and, on October 26, 2000, obtained a grand jury indictment on the same eight counts.

At defendant's arraignment on October 27, 2000, the trial court initially set a pretrial conference hearing date for December 18, 2000. Defendant's counsel asked if he could have another pretrial conference date because he was scheduled that day for a trial in a different matter. The court said, "You can have December 26th," to which defense counsel replied, "That works."

At the pretrial conference held on December 26, 2000, defendant rejected the state's plea offer, and thereafter, the following colloquy took place:

"THE COURT: Okay. We have a trial date then. Is that July 10th, the trial, and then call July 6th?

"[Defense Counsel]: Yes.

"THE COURT: Okay. Nine a.m. in the morning. All right. Thank you.

"[Defense Counsel]: Thank you very much."

Two weeks before trial, on June 27, 2001, the state moved for a continuance. In support of the motion, the prosecutor submitted an affidavit that, among other things, stated that defendant's counsel "does not object to this reset." The trial court reset the trial date for December 11, 2001, with a call date of December 7.

On December 7, 2001, defendant appeared at call, but there were not enough judges available for trial on the scheduled trial date. Trial was set over until June 4, 2002.

On May 6, 2002, defendant moved to dismiss on statutory speedy trial grounds. The trial court denied the motion. The court calculated the period of delay by starting with the date of indictment, October 26, 2000, which produced a total delay of 19 months and nine days. The court then deducted any periods of delay that defendant either caused or acquiesced in. According to the trial court, defendant had acquiesced in the delay from July 10, 2001 to December 11, 2001, a period of five months and one day. The court then concluded that the remaining delay of 14 months and eight days was not unreasonable, particularly given the principal reason for it, namely, the lack of judicial resources to try the case.

2. Analysis

ORS 135.747 provides:

"If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."

Whether a period of time before trial is unreasonably long within the meaning of that statute, is a question of law. State v. Johnson, 339 Or. 69, 86-87, 116 P.3d 879 (2005); State v. Rohlfing, 155 Or.App. 127, 129, 963 P.2d 87 (1998). In this case, defendant argues that the trial court's denial of his motion to dismiss on speedy trial grounds was incorrect as a matter of law in two respects. First, he argues that the trial court used the wrong starting date in calculating the period of delay. Second, he argues that, in any event, the court erred in concluding that the delay was not unreasonable.

a. Starting date

In his brief on appeal, defendant conceded that the trial court "correctly calculated the length of time from the date of the filing of the indictment to the date of trial * * *." At oral argument, however, defendant suggested that the trial court actually erred in using the date of indictment as the starting date. According to defendant, the appropriate starting date for statutory speedy trial purposes should be the date of original citation, that is, March 9, 2000.

We are not inclined to entertain a new argument-indeed, one that is directly contrary to a concession made in the opening brief-raised at the podium during oral argument. See, e.g., State v. Jones, 184 Or.App. 57, 60 n. 2, 55 P.3d 495 (2002) ("At oral argument, defendant contended for the first time on appeal that the charges were not of the same or similar character. Because defendant did not raise that issue in his opening brief, we decline to reach it here."); Summer Oaks Limited Partnership v. McGinley, 183 Or.App. 645, 656 n. 6, 55 P.3d 1100, rev. den., 335 Or. 255, 66 P.3d 1025 (2002) ("At oral argument, defendants, for the first time, argued that we should uphold the award of attorney fees regardless of our disposition of plaintiffs' appeal. We decline to address the merits of that unpreserved argument."); Hayes Oyster Co. v. Dulcich, 170 Or.App. 219, 237 n. 20, 12 P.3d 507 (2000) (rejecting issue raised for the first time in the reply brief).

Even assuming that the argument has been properly raised, however, it is not well taken. Our decision in State v. Hampton, 152 Or.App. 742, 954 P.2d 1267 (1998), is directly on point as to how the appropriate starting date is determined. In that case, the defendant received a citation for DUII, and a trial was scheduled. After several setovers, the state dismissed the citation and issued another. The trial was reset. The defendant moved to dismiss on statutory speedy trial grounds. The initial issue was how to calculate the starting date for statutory speedy trial purposes. We concluded that "the date the charge was reissued following the first dismissal is the starting point for calculating the period of time it took the state to bring defendant to trial." Id. at 745, 954 P.2d 1267 (emphasis added).

Defendant insists that, more recently, the Supreme Court determined in State v. Vasquez, 336 Or. 598, 605, 88 P.3d 271 (2004), that any "official action commencing a prosecution" triggers the speedy trial clock and that, in this case, that means that the clock started running in March 2000, the date of the original citation. Vasquez, however, involved the construction of the speedy trial provision of Article I, section 10, of the Oregon Constitution, as that provision would have been understood by the framers in 1857. Id. at 604-11, 88 P.3d 271. The court, in fact, took some pains to explain that its constitutional decision involved different interpretive and analytical issues than are involved in statutory speedy trial cases. Id. at 612, 88 P.3d 271. Nothing in Vasquez suggests that our holding in Hampton is no longer tenable. We therefore conclude that, consistently with Hampton, the starting date for statutory speedy trial purposes in this case is the date of indictment, October 26, 2000.

b. Reasonableness of delay

We turn to the question whether the delay of 19 months and nine days between defendant's indictment on October 26, 2000, and his trial on June 4, 2002, violated defendant's right to a speedy trial under ORS 135.747. Determining the reasonableness of that delay involves two questions. First, to which portions of that period of delay, if any, did defendant consent? Second, was the remaining time reasonable? State v. Bigelow, 197 Or.App. 441, 446, 106 P.3d 162, rev. pending (2005).

We begin by identifying any portions of the total period of delay to which defendant consented. "Consent" in that respect does not include a mere failure to object. State v. Adams, 339 Or. 104, 109, 116 P.3d 898 (2005). In this case, the total period of delay may be divided into four portions.

The first...