State v. Summers
| Decision Date | 13 April 2016 |
| Docket Number | A152471.,CF110089 |
| Citation | 277 Or.App. 412,371 P.3d 1223 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Michael Thomas SUMMERS, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.
, P.J.
In this criminal appeal, defendant challenges his convictions and sentence for first-degree burglary, felon in possession of a firearm, first-degree theft, unlawful possession of methamphetamine, driving under the influence of intoxicants (DUII), pointing a firearm at another, and menacing. He raises seven assignments of error in which he challenges the court's entry of an amended judgment, raises four claims of evidentiary error, and contends that the trial court should have granted his motion for judgment of acquittal on the two counts of pointing a firearm at another. We reject without further discussion defendant's first assignment of error, challenging the entry of an amended judgment, and write to address the remainder of his assignments, rejecting all of them. Accordingly, we affirm.
We begin with some factual background, stating the facts in the light most favorable to the state, the prevailing party. State v. Munoz–Juarez, 271 Or.App. 261, 262, 350 P.3d 516 (2015)
. A witness observed defendant's truck weaving on the highway before flipping over several times. Trooper Sharp from the Oregon State Police and Deputy Dunlap from the Umatilla County Sheriff's Office responded to the incident, but defendant had fled the scene by the time the officers arrived. Sharp detected a strong alcohol odor coming from the truck and was informed by Dunlap that defendant had federal warrants for his arrest. The officers set out to search for defendant. They borrowed a snowmobile to follow defendant's tracks in the snow, which led them to a cabin. They noticed defendant crouching down, aiming a rifle in their direction.1 The officers drew their guns, told defendant to drop his weapon, and fired at him. Defendant slumped over and dropped the rifle.
Following defendant's arrest, police seized evidence from the scene, including the rifle and a glass pipe found inside defendant's jacket, which later revealed methamphetamine residue. Further investigation revealed that defendant had stolen the rifle, a muzzleloader,2 from the cabin. Police also learned that the rifle was missing a “nipple,” which prevented it from working.
. A jury acquitted defendant on the two counts of unlawful use of a weapon and found him guilty on all the remaining counts.
On appeal, defendant argues that the trial court erred by allowing the testimony of two previously undisclosed witnesses, by admitting evidence of the methamphetamine pipe and a report about it without establishing a proper chain of custody for the pipe, and by denying his motion for judgment of acquittal on the counts of pointing a firearm at another.
We first address defendant's second and third assignments of error, in which defendant asserts that the court erred by admitting the testimony of two evidence technicians. We begin by recounting additional procedural facts.
Prior to the start of trial, defendant's counsel noticed that the state's witness list included three witnesses whose names and statements were not previously disclosed to defendant: Laura Minthorn, Keith Kerr, and Michael Hurbes. Defendant objected to those witnesses, noting that they were not listed in the state's pretrial motion to allow for the subpoena of more than 10 witnesses, ORS 136.570
, nor were they listed in the court's order granting that motion. That is, defendant claimed that the state had failed to satisfy the procedural requirements of ORS 136.570.3 Defendant also argued that the state had violated the applicable discovery statutes because none of the technicians' names had been included on the witness lists previously disclosed by the state. Defendant argued that those violations prejudiced him because he did not have time to prepare for those witnesses. He insisted that the proper remedy should be to exclude the witnesses.
The state responded that exclusion was not warranted under either basis asserted by defendant. First, a failure to comply with ORS 136.570
does not require exclusion of witnesses; rather, according to the state, the statute's purpose is to facilitate issuance of subpoenas—to ease the process for the court and process servers—and not to facilitate discovery. Second, the state argued that, although it had not disclosed the witnesses during discovery, defendant had notice of them because two of them were “prominently” identified in police reports. The state withdrew the third witness, Hurbes, and argued that defendant would not be prejudiced if the remaining two were allowed to testify, given that their testimony would only serve to establish chain of custody and would not require a lot of preparation time by defendant's counsel.
The court denied defendant's request to exclude the witnesses, stating:
“I do think that [ORS 136.570
] does require the district attorney * * * if they're asking for more than ten witnesses, to justify the issuance of subpoenas for witnesses additionally over the number ten.
“I don't necessarily agree that it requires a complete listing of every witness who's going to be called, but only the ones who are over the number of ten.
When it came time for Kerr to testify at trial, defendant renewed his motion to exclude the witness after discovering that he had not received all of the reports related to that witness before trial. The court allowed Kerr to testify about anything that had been previously disclosed to defendant, but ordered that anything else had to wait until after defendant's counsel had had an opportunity to review the evidence and meet with the witness. Although the court adjourned early to allow for that meeting, defendant made a subsequent motion to strike Kerr's testimony, which the court denied. Minthorn testified and was cross-examined by defendant at trial without objection. However, after she first testified, defendant also moved to strike her testimony, but the motion was denied. Minthorn was later recalled to clarify her testimony as needed.
On appeal, defendant contends that the trial court erred in allowing Kerr and Minthorn to testify. As he did below, he argues that ORS 136.570
requires that witnesses be excluded whenever a party fails to follow the proper procedures, because the statute's purpose is to ensure a fair trial. He also argues that the state violated ORS 135.815, which requires the timely disclosures of witnesses' names, as well as any of their written or recorded statements. Defendant claims that the state's failure to disclose the names of Kerr and Minthorn amounted to a discovery violation, obligating the court to exercise its discretion to impose an appropriate sanction. He cites State v. Harshman, 61 Or.App. 711, 658 P.2d 1173 (1983), for the proposition that, even if the court declined to exclude the witnesses, it could have granted a continuance or chosen an alternative remedy.
The state likewise reprises its arguments, maintaining first that it did not violate ORS 136.570
and that, even if it did, violations of that statute do not entitle a defendant to exclusion of witnesses. We understand the state's position to be that defendant had no standing to be heard on the state's motion to subpoena additional witnesses and, as such, was not entitled to a remedy. The state notes that ORS 136.570
does not expressly provide for any remedy, much less an exclusionary one.
The state further argues that the trial court properly concluded that exclusion of the witnesses was unwarranted as a discovery sanction. Though the state concedes, as it did below, that it violated ORS 135.815
by failing to include Kerr and Minthorn on its pretrial witness list, it asserts that the trial court accepted that concession but allowed the witnesses to testify despite the discovery violation, properly addressing the resulting prejudice to defendant. The state further points out that defendant did not ask the court to consider any other, less onerous sanctions as alternatives to excluding the witnesses and, consequently, did not preserve that claim of error.
We begin with defendant's contention that the challenged witnesses should have been excluded due to the state's failure to comply with the requirements of ORS 136.570
. We review the trial court's interpretation of the statutory requirements for legal error. State v. Urie, 268 Or.App. 362, 363, 341 P.3d 855 (2014).
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