State v. Schroeder

• Decision Date: 13 May 1983
• Docket Number: No. 124003,124003
• Citation: 62 Or.App. 331,661 P.2d 111
• Parties: STATE of Oregon, Respondent, v. John Paul SCHROEDER, Appellant. ; CA A22555.
• Court: Oregon Court of Appeals

Page 111

661 P.2d 111

62 Or.App. 331

STATE of Oregon, Respondent, v. John Paul SCHROEDER, Appellant.

No. 124003; CA A22555.

Court of Appeals of Oregon.

Argued and Submitted Nov. 24, 1982.

Decided March 23, 1983.

Reconsideration Denied May 13, 1983.

Paul J. DeMuniz, Salem, argued the cause for appellant. With him on the briefs was Garrett, Seideman, Hemann, Robertson & DeMuniz, P.C., Salem.

Robert E. Barton, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and William F. Gary, Sol. Gen., Salem.

Before RICHARDSON, P.J., JOSEPH, C.J., and VAN HOOMISSEN, J.

RICHARDSON, Presiding Judge.

Defendant appeals convictions for robbery in the first degree, two counts of sodomy in the first degree and two counts of rape in the first degree. He assigns as error the trial court's (1) denial of this motion to suppress evidence seized during a search of his residence; (2) denial of his motions for removal of leg shackles during trial and for mistrial based on the same ground; (3) denial of his motion for continuance made during trial; (4) exclusion of expert testimony on the reliability of eyewitness identification; (5) denial of his motion for mistrial based on the prosecutor's failure to disclose certain information; and (6) failure to require disclosure of all grand jury testimony. We affirm.

In his first assignment defendant contends that the court erred in denying his motion to suppress evidence seized from his residence pursuant to a search warrant. On February 16, 1980, during a search of defendant's van for evidence of an unrelated crime, ¹ detectives of the Eugene Police Department discovered evidence that they believed connected defendant to numerous sex crimes that had been committed in the University of Oregon area over a two-year period. A search warrant was obtained to search defendant's van, his residence and his person for evidence of crimes of rape, sodomy, sexual abuse, burglary, assault and robbery. Defendant contends that the affidavit supporting the search warrant establishes only that the crimes were committed by a "masked rapist" but does not establish probable cause to believe that they were committed by defendant or that evidence of those crimes would be found at his residence. ²

The extensive search warrant affidavit, parts of which we summarize, began with a recitation that affiant

" * * * [is] a Detective with the Eugene Police Department and has been so employed for the past eight years. I am currently assigned to the investigation of sex crimes. I have investigated hundreds of incidents of sexual assault. In my employment, I have investigated a number of cases involving a perpetrator of burglaries and sexual assaults in the Eugene-Springfield area who wears a ski mask or hood-type ornament. These cases began over two years ago and involve a similar method of operation. The following case summaries are based upon my direct interviews with participants and/or witnesses, my conversations with other investigating law enforcement personnel and my review of police reports specifically identifying witnesses and victims."

The affidavit then described 25 criminal incidents occurring during a period approximately two years immediately before defendant's arrest. The incidents involved similar offenses of burglary, rape, sodomy, assault and robbery. The method used by the perpetrator in each instance was similar, as was the victim's physical description of the assailant. The affidavit recited defendant's physical characteristics, which closely matched those described in some of the reports of the other crimes.

One incident related in the affidavit involved an attempted burglary of Rick Tanner's residence. Tanner surprised the burglar and was able to describe him, his clothing and the vehicle he fled in. A vehicle fitting that description was located and determined to be registered to defendant. Defendant was arrested a short time later. A search of the vehicle pursuant to a separate search warrant and a search of defendant incident to his arrest, disclosed several items of clothing, including a homemade mask that were consistent with clothing and a mask described by several victims of the criminal episodes described in the affidavit.

The affidavit included a composite drawing of the perpetrator of the described criminal offenses and a photograph of defendant. A comparison of the photograph and the drawing shows many similarities. The affiant stated that defendant told the police that he had type A positive blood and that an analysis of seminal fluid obtained in the investigation on one of the rapes concluded that the perpetrator of that rape had type A positive blood.

Although the search warrant issued on the basis of the affidavit gave authority to search defendant's person, his car and residence, defendant objected only to certain items of evidence seized from his residence.

In analyzing the probable cause basis of a search warrant, we are guided by the principle according a preference to searches under a warrant. "[I]n a doubtful or marginal case a search under a warrant" will be sustained "where without one it would fall." United States v. Ventresca, 380 U.S. 102, 106, 85 S.Ct. 741, 744, 13 L.Ed.2d 684 (1965). Additionally, in evaluating the sufficiency of the affidavit, probable cause "does not mean more likely than not, it means only a well-warranted suspicion." State v. Willis, 24 Or.App. 409, 412, 545 P.2d 1392, rev. den. (1976). Thus, affidavits are to be read in a commonsense, nontechnical manner, looking at both the facts recited and the reasonable inferences that can be drawn from those facts. State v. Mellinger, 52 Or.App. 21, 25, 627 P.2d 897 (1981); State v. Harp, 48 Or.App. 185, 190, 616 P.2d 564, rev. den. 290 Or. 171 (1980); State v. Age, 38 Or.App. 501, 503, 590 P.2d 759 (1979).

The affidavit at issue here establishes that defendant's physical description matched that given by witnesses in the case summaries; that three shirts matching the witnesses' description of clothing worn by the rapist were found in defendant's van; that defendant's photograph matched a composite drawing based on witnesses' descriptions; that a homemade mask similar to one described by some victims was found in the pocket of a sweatshirt discovered in defendant's van; that defendant's blood type matched that of the assailant in an earlier offense; that a feeler gauge found in defendant's possession at the time of his arrest was consistent with the description of the weapon carried by a man who attempted to assault a woman earlier that morning; and that defendant was identified by Tanner as the man who had attempted to burglarize his apartment earlier that same morning.

Although these facts do not plainly identify defendant as the "masked rapist," exactness is not required in a search warrant. The affidavit sets forth in a detailed fashion the underlying circumstances which support a well-warranted suspicion that defendant was connected to certain criminal activity. Similarly, although neither the affiant nor an informant directly observed fruits or evidence of the crimes in defendant's residence, the affidavit nonetheless sets forth sufficient facts and circumstances that tend to show that certain identifiable objects (clothing, weapons and stolen items) were likely to be found at defendant's residence. It is reasonable to infer that defendant's clothing (a plaid shirt) and weapons (a pocket knife) would be in his home where such objects are generally kept. See United States v. Steeves, 525 F.2d 33, 38 (8th Cir.1975); State v. Jones, 299 N.C. 298, 261 S.E.2d 860, 865 (1980).

Alternatively, defendant argues that assuming probable cause to believe the items sought had been at defendant's residence, there was no probable cause to believe that they were then on the premises. "Staleness" is judged in part by reference to the particular type of crime. If the alleged criminal activity is not a single incident but rather conduct repeated by the offender on several occasions, timeliness is less important. See United States v. Dorfman, 542 F.Supp. 345, 362 (N.D.Ill.) aff'd 690 F.2d 1217 (7th Cir.1982). Here the affidavit details numerous similar incidents of burglary, rape, assault and robbery occurring continuously over a two-year period. Thus, notwithstanding that certain objects of the search were sought as evidence of crimes occurring over a year ago, ³ the protracted course of defendant's alleged criminal conduct, the temporal proximity of the latest offense (the day before the search warrant issued) and the character of the items sought all supported the reasonable inference that objects of the search were on the premises at the time the warrant issued. See State v. Diaz, 29 Or.App. 523, 532, 564 P.2d 1066 (1977).

Defendant next assigns error to the trial court's denial of his motion to remove the leg shackles during trial and his subsequent motion for mistrial on that basis. The court denied defendant's motions on the basis of statements by a deputy sheriff, who stated that he considered defendant to be a security problem based

" * * * [o]n past history from Lane County, information from Lane County authorities to me and his past court performance in this officer's presence in another courtroom."

A criminal defendant has the right to appear free of physical restraint in a trial before a jury. State v. Smith, 11 Or. 205, 8 P. 343 (1883); State v. Kessler, 57 Or.App. 469, 472, 645 P.2d 1070 (1982). It is within the trial court's discretion, however, to order a defendant shackled "if there is evidence of an immediate or serious risk of dangerous or disruptive behavior." State v. Moore, 45 Or.App. 837, 840, 609 P.2d 866 (1980).

As we emphasized in Kessler, the court must first have relevant information in order to exercise judicial discretion and must make a record of that information in order to permit review of the court's...