*1 30,1992; Argued 10, and submitted November resubmitted In Banc March reversed May September 8, petition and remanded for new trial reconsideration denied 24) (318 2,1993 review allowed November OF OREGON, STATE Respondent,
v. COOPER,
MARK K.
Appellant.
CA A72530)
(91-2249-C;
Thomas H. Salem, Assistant General, argued respondent. the cause for With him on the brief were Attorney Virginia Charles S. Crookham, General, and L. Linder, General, Solicitor Salem.
LEESON, J. concurring.
Edmonds, J., concurring part; dissenting part. Rossman, J., in dissenting. Muniz, J., De
LEESON, J. A convicted jury defendant of assault in the fourth degree and criminal mischief the second ORS degree. 163.160; 164.354. issue is whether state can prevent witness, officer, the court from is a excluding city who the officer as the designating state’s under 615(2). OEC We reverse and remand.
This is a simple assault and criminal mischief case. issue the trial was whether defendant or “the pivotal testified, victim” Both aggressor. they gave was and their notably different accounts of altercation. he is a After two
Davis testified that server. process three to serve defen- attempts unsuccessful documents on dant, he to defendant’s home and found the front door went came the door. open. knocked, He defendant partially had Defen- Davis told that he some him. papers defendant did not closed, dant kicked the door but latch engage, the door bounced Davis documents open. dropped As he came out and leaving, turned leave. was defendant *3 “I this said, kicked Davis turned around and don’t want him. at Davis and a scuffle lunged farther.” Defendant go ensued. a loud that he was awakened by
Defendant testified (Davis) he whom He to the door and saw a bang. person went door, in the defendant grabbed Davis kicked did not know. men and Eventually, dragged separated, and him outside. left. Davis Defen- call police. went to a nearby park
Davis to press men wanted went station. Both police dant defendant, from took a statement Officer Brooks charges. Davis treatment. to a medical hospital then went who from him station, Brooks took a statement at and arrived statements, decided Brooks After the witnesses’ taking also. for assault. to cite defendant from witnesses moved to exclude
At defendant trial, For reasons testifying. were not while they the courtroom as Brooks state, the prosecutor to the only known allowed that she be requested the state’s to sit at the counsel table. The court granted the state’s request.
In his first assignment
error,
defendant contends
that the court erred
to exclude
by refusing
Brooks from the
courtroom. The dissenting opinions contend that defendant
did not
preserve
error
purported
for appellate review.1 In
Hitz,
State v.
“We have previously drawn attention to the distinctions raising trial, between an issue at identifying a source for claimed position, making a particular argument. The ordinarily essential, first so, the second less the third omitted.) least.” in (Emphasis original; citation At trial, defendant argued: * *
“[The] officer has right no to sit at counsel table *. Appeals [The Court of has] held that rule requires exclusion of witnesses upon proper motion absent a showing good cause for not excluding them. And I don’t think the state has met that burden.”
Defendant clearly objected to Brooks’ the court- room, as well as her placement at the counsel table. He identified OEC 615 as the source of law that supported his contention that she should be excluded from the courtroom.
Defendant argued: just case, “[Brooks is] another witness this and [she is] not * * * party, necessarily. They’re not saying that it’s [sic] party, they’re saying a victim they’re officer’s saying that presentation essential to the [the state’s case].” provides, part: ORAP 5.45 “(2) assigned appeal No matter as error will be on considered unless it was
preserved assign brief; party’s opening the lower court and as error in the provided appellate may apparent that the court consider errors of law on the face of the record. “(4) assignment clearly concisely Each of error shall be stated under a separate appropriate heading, specific be must and must set our verbatim record, pertinent portions specific ruling being of the if it relates to a that is challenged.” 494 argument
That addressed defendant’s contention exceptions general did not fit within of the to the Brooks rule including exception 615, of OEC for a witness who employee party which “an officer or a is not a natural person.” every requirement preserv- Defendant satisfied ing purported supra. Hitz, error. State v. caption assignment first defendant’s error by allowing
refers his contention that the court erred unnecessarily rigid An Brooks to sit at counsel table. might application of ORAP 5.45 lead to the conclusion that he properly presented his has not erred contention that court by refusing to Brooks from the courtroom. exclude argument paragraph However, states, he in the first his appeals “Defendant from the trial court’s failure exclude argument witness.” The remainder of his on the officer should have been excluded focuses whether adequately assigned the error for from the courtroom. He 5.45(2), our review. ORAP
Accordingly, turn to the merits of defendant’s we assignment provides: OEC 615 first of error. may the court order witnesses party
“At the request argument, may it make time of final until the excluded motion. This rule does authorize order of its own (2) (1) party person, who is a natural or exclusion person which is not a natural of a officer or (3) attorney, by its as its essen- shown whose person who (4) cause, victim presentation party’s to the tial in a criminal case.” is within general, to exclude witnesses whether
In
a decision
provides
“the
discretion,
OEC 615
because
the court’s
supplied.)
(Emphasis
may
excluded.”
witnesses
order
legislature
using
“may”
intended
By
rule,
in the
term
deciding
to exclude
whether
to have discretion
courts
Harding,
4,
P2d
29, 32 n
116 Or
v.
witnesses. State
(1992);
642-43,
495 of witnesses who fall into one of four categories of exceptions. 3 It does not court give discretion to exclude them. a party designate Whether can a as witness its “representa 615(2) tive” under OEC is a law. of question 615(2) OEC that “an a provides officer employee of which is not a natural person” may a designated as Brooks was an of representative. employee City of Ash- land. See ORS 237.610. of is City Ashland not a in case —the of State is. Oregon Brooks was neither an nor an officer employee state.
The state believes that it can apparently designate witness it its any desires as and the “representative” without to exclude that witness from the court authority room. The could not legislature have intended to permit litigant abrogate a statute at A will. that is not person designate natural witness as representative if it establishes that the only witness is an actually an did party. not make that nor showing, could it.
Brooks was not one of the four types witnesses who are from exclusion exempt under OEC 615. The court was therefore required to exercise its discretion in deciding whether to exclude her from the However, courtroom. court did not its discretion, exercise because it mistakenly concluded it had no authority to exclude her. The court’s failure exercise its discretion constituted error. Because difficulty showing of one witness testimony another, been influenced by testimony we presume that defendant was in prejudiced by Brooks’ courtroom, the record affirmatively “unless reflects the con Cetto, State v. rev den 66, Or 674 trary.” App 337, 340, 66 P2d (1984). Or 712 Nothing negates 296 in this record that pre sumption. 1953, repealed § 4-702 which was
OCLA was codified at ORS 45.510 former 1981, 1981, 892, 56, legislature adopted §§ when the OEC Or ch 98. 615. Laws 3 any express opinion law authorizes a court We no whether other rule of exceptions falls one of the listed OEC 615. We also exclude witness who within opinion express rule law a trial court to “veto” the no whether authorizes employee ofapartythatisnota designation who is an of a officer or an person. App at 497. natural See 120 Or 496 the contrary,
To the record reflects that the prejudice sitting was Brooks testified after compounded. through witnesses, of the state’s other testimony she testified See again on rebuttal after defendant’s entire case. hearing Vosika, State v. 449, Or 298, 302, 731 P2d 85 App clarified Ott, State v. 148, 735 (1987); 576, P2d 61 Or App grounds rev’d on other 375, 659 P2d (1983), P2d 1001
Defendant also contends that the court erred a mistrial. Because we conclude that granting defendant trial, a new entitled to we need not address that assignment error. *6 and remanded for a new trial.
Reversed EDMONDS, J., concurring. “ holds that OEC 615 ‘does not author- majority into
ize exclusion’ of witnesses who fall one of four [its] Then, at 494-95. at categories exceptions.” ‘‘ it no whether other says express opinion [w] footnote e exclude a witness who falls rule of law authorizes a court to concludes exceptions wdthin one of the listed in OEC 615.” It was a city that, representative because the state’s state, of the the trial officer, not an officer police sit by OEC 615 to the witness to permit court was not bound representative. at counsel table as state’s that the trial majority I with Although agree it no to exclude believed had discretion mistakenly state, so for a of the I do officer as city representative police that a trial court OEC does not mandate different reason. court’s to ensure obligation to preempt allow in criminal trial It is uncommon a fair trial occurs. that is the state’s witnesses cross-examination of that proceedings Often, for a defendant’s case. to a fair presentation crucial effective, it to witness prosecution cross-examination hearing have the benefit of the witness not requires testimony. other that, the proposition
At the heart OEC ability must retain the truth, the trial judge the pursuit crucial the deter- credibility is witnesses whose exclude from courtroom the fact finder to be made mination when except testifying. importance ability magnified because the defendant’s interest is at stake. liberty The legislature intended OEC 615 as an aid to the trial court trial, to ensure a fair anas inhibition.1 Because we are required OEC 615 to interpret out carry the intent of legislature, 174.020, ORS we should construe the rule to mean that the trial court retains the discretion to veto the state’s designated representative. The result would be that the state could have a always present but defendant’s to a fair trial right would also be Otherwise, trial preserved. are judges deprived of their role as arbitrators of justice.
Richardson, J., J., C. and Riggs, join in this concur- ring opinion.
ROSSMAN, J., concurring part; dissenting part.
I disagree with the majority’s conclusion that defen- raised, dant preserved correctly as error the assigned issue of whether or not Officer Brooks was an “officer or employee” of the state. Even if with agreed on majority threshold matter, however, I cannot accept major- ity’s that, as a holding law, matter of a city cannot be designated as an “officer or state, because that holding completely ignores purpose reasons, rule. For these I must dissent.
The majority disposes of this case on the issue of whether a city police be an “officer or state, based on defendant’s argument that the officer should have been excluded. I that believe the relationship a state, between officer and the and city police its effect on the state’s of the officer designation as its “officer or employee,” issue, is a which had to specific be raised the defendant before we would be to reach it. The permitted majority believes that issue is in the included issue of whether larger have Brooks should been excluded under OEC 615. As a result of our disagreement matter, on this threshold we every at disagree step analysis. instance, request For the trial court can exclude on the witnesses of a or under
on its own motion OEC 615. Hitz,
In State v. (1988), 766 P2d issue, court between an a distinguished raising identifying source, that, an It making argument. held under certain circumstances, raised, when issue was omission of a argument source “cannot to a compel needless Or at constitutional decision.” 307 188. cites majority Hitz that the defendant raised the argues necessary issue I disagree. below. Hitz not
Although provide does us with a clear defini- “issue,” in the tion of the term the facts case shed some light In Hitz, on the of the term. the defendant was proper scope misapplication convicted of a unlawful of entrusted knowing trial, At she had argued: property.
“ proof T that the State has not met the burden of believe all, first Ms. Hitz or had showing, knowledge that was funds, it any misapplication that if has at all been shown ” misapplication, unlawfully.’ was that there was done Or at 187. case, moved for
At the close of the state’s the defendant had failed on the that state acquittal grounds judgment that the misap- to that she had acted with knowledge prove we had held that she appeal, was unlawful. On plication that there was no evidence “abandoned” argument affirmed her conviction. unlawful misapplication, reversed, noting: Court Supreme court that the state had argued “Defendant trial funds, knowledge ‘that any misapplication her proved was misapplication, shown that there was if it been ’ that the Appeals to the Court of unlawfully. argued She done required proved misapplication an element of had not state statute, is, regulation law outside violation of a by the that at itself.” 307 Or ORS 165.095 189. preserved sufficiently defendant had
The court held that
of unlawful misapplication.
was no evidence
issue that
there
state had
that
conviction on
grounds
It reversed the
knowledge.
the requisite
defendant had
prove
failed
‘‘
state was
trial,
been raised at
[t]he
issue had
Because the
meet defen-
or denied an opportunity
misled
ambushed or
to consider and to a chance to present arguments supporting positions. and evidence their To end, party sound, “[a] owes the trial court obligation aof
clear, motion, and articulate objection or exception, so as to permit the trial judge chance to consider the legal conten- tion or to correct an error already made. The reason for such a rule merely is not to promote form over substance but to promote an efficient justice administration of saving judicial time.” Shields v. Campbell, 71, 77-78, 277 Or (1977). (Citations P2d 1275 omitted; emphasis supplied.) Obviously, specifically perti- the defendant in Hitz raised the nent opportunity issue at trial. The state therefore had the present argument authority support position. of its Certainly judgment acquittal the motion for based on that gave opportunity issue the trial court the to address it. case,
In this opportunity. however, there was no such presented The trial court was with the issue of whether the witness should be excluded, not with the issue of whether a city police may as the “officer or employee” agree majority’s state. do not with the implicit reasoning that the former issue includes the latter. very questions
Each issue raises pro- different party cedures. When a moves to exclude witnesses, the trial seeking excludes them unless the to avoid the good using particular exclusion and arguments can show cause, authority, why particular witness should remain. How- ever, when moves to exclude a witness, and that exceptions witness falls under one ofthe OEC the trial good court does not have discretion exclude, and no cause analysis required. exempt Instead, the witness is from question exclusion unless a raises a factual about actually exception.1 whether the witness comes within the If question placed party seeking issue, has been then the exempt provide the witness from exclusion be asked to arguments authority supporting position. evidence, agree majority’s 1 I apparent do not with the conclusion that each witness falling exceptions affirmatively under one of the prove to OEC 615 must that status. infra, See at 503.
Here, defendant did not contend at trial Brooks could not be an “officer or state because she was not a did result, officer. As not have city police *9 the to its and opportunity present position, the did rule I have the to on that issue. would opportunity hold defendant did not raise issue.2 properly this I
Even if that defendant’s objections below agreed did not raise this on issue sufficient, appeal. were defendant In he error, challenges only his first the trial assignment court’s over defendant’s officer “allowing, objection, police the witness to sit at counsel table with the prosecutor during trial.” He to the trial court goes argue entire then on officer, the to exclude because failing abused discretion the had failed meet its burden of cause showing good to In the mention of the issue fact, only for the officer to remain. city be an “officer or police may of whether state’s brief, is in the in a of the state footnote employee” had if that, challenged which defendant officer’s says city have made the that a might argument he designation, or officer could not be an “officer state. *10 meeting
assist in trial surprises where the best-prepared Yet, counsel would difficulty. otherwise have it would not seem the Government could meet the burden under rule often 615 that showing agent’s the presence is essential. “This problem is solved it is clear that investigative if agents are within the group specified under second excep- rule, tion made in the ‘an employee or a party officer person designated which is by a natural as its representative attorney.’ It is understanding our that this was intention of the House committee. It certainly is this com- mittee’s 93-1277, construction of the S No. Rep rule.” 93rd (1974), 7051, 2nd Cong, Cong Sess. US Adm Code & News (1974). 7072-73 (Emphasis supplied.) It is obvious that drafters of the federal rule intended that investigative exempted an officer would be both from exclu- Many sion and allowed to sit at table. federal counsel courts 615(2). interpreted e.g., See, have so FRE United States v. (9th 1984); Parodi, Little, F2d 1420 Cir United v. 753 States (4th 1983); Jones, 703 F2d 768 Cir United v. 687 F2d States (8th 1982); 1265 Cir F2d 819 Shearer, United States v. 606 (8th 1979). interpreting Cir courts versions of State their own 615(2) See, FRE have also arrived at the same conclusion. (Colo 1984); e.g.,People Cheeks, Ralls, v. P2d v. 682 484 State 502 485, (1986);
111 Idaho
v. Chavez,
P2d
State
100 NM
730,
(1983),
city police officer State, county city unfathomable. This conclusion is state. It is peace.5 all with charged keeping officers are officer, law, that, peace as a matter of to hold nonsensical state, and who must the laws of the uphold who has sworn to laws, cannot be her life to enforce those risk his or sometimes states have Federal courts and several officer of the state. an 615(2), of FRE versions held, respective their under as “officer or officer may city police might investigative cause Any that the concerned jury informing advantage to ask for an instruction free an unfair *11 against prosecutor serve as “silent witness” the does not next to officer’s (1962). See, Wederski, 57, 61, e.g., P2d 393 368 State v. 230 the defendant. 4 position an majority’s as of the state’s disagree the characterization with I also designate to an manipulate was entitled attempt the court. The state to somehow the state nothing the briefs indicates that employee,” in the record or or “officer any witness for that designation. position it can choose taking the
5
161.015(4)
peace
as
officer
defines
ORS
Oregon
municipal police officer,
marshall,
sheriff, constable,
of
member
“a
Department Division of the
investigator
Justice
Criminal
State Police
(Emphasis
may
law.”
persons
other
as
and such
Justice
supplied.)
503
employee”
government
e.g.,
See,
or state.
v.
U.S.
(8th
1992),
den_US_,
Davila, 964 F2d 778
Cir
cert
(1992);
Jones,
L Ed
438, 121
S Ct
2d 358
United States v.
(8th
1982);
supra;
Ralls,
Carter,
F2d 1265
Cir
State v.
State v.
1989).
(Utah
Certainly,
city police
The State of is a criminal case brought police violations state law. ORS 131.025. State investigative every majority’s are not the The officers case. holding essentially consigns ability designate an state’s to investigative officer as its “officer or to those cases happened investigating in which a state to be the interpretation completely ignores purpose officer.That drastically ability rule, limits the state’s to have the investigating assistance officer.6 agree majority with the that OEC 615 does not provide trial courts with discretion to exclude a witness who exemptions.7 falls under one of the four However, I do not agree majority’s falling with the conclusion that each witness exemption affirmatively prove under an must his or her regardless opposing party ques- status, of whether the provides: tioned it. OEC 615
“At the request of a may order witnesses excluded until the argument, time of final and it make the order of its own motion. This rule does not authorize (1) (2) exclusion of a party who person, natural event, below, In presented because this issue was not did opportunity present have an evidence to show that Brooks was an “officer or employee” of the state. argues provides judges concurrence that OEC 615 trial with the discre designated representative. tion to “veto” the state’s language I do not see that in the Instead, provides rule. exclude, OEC 615 a trial court with the discretion to on its party, any own motion or on the motion of a witness who does not fall under one of exceptions. the four specifically enumerated it “does not The rule also states that * * * (2) authorize exclusion of an officer or of a which is not a natural person designated representative by attorney.” (Emphasis supplied.) as its completely ignores concurrence’s construction of language the rule and the purpose rule, investigative which is to allow provide officer to assistance prosecutor. Allowing judge pick a trial representative and choose the state’s exception get would render the being useless. The state would small comfort from judicially allowed to have a selected sit next to counsel while the sitting officer whose assistance is desired is in the hall. *12 officer or not party person which is a natural (3) representative by attorney, as its its
person shown presence by party whose to essential to (4) cause, presentation party’s the the the victim in a criminal (Emphasis supplied.) case.” only Clearly, places the rule an affirmative burden on the (3). seeking exemption party result, under subsection As a objecting party the to the the raise of witness must factually qualify the witness issue whether the exemption, does (3).8 an pointless unless it is under subsection It is a require time to the waste of and resources prove jump through hoops the court to the status of a challenged if no has witness one it. rule,
Under the a victim or stands the same position employee.” particularly as an “officer or It seems require already who was victimized to harsh to someone they prove, outset, the the defendant at were harmed in a as a has been case, criminal when their status victim questioned. point requiring addition, In I cannot see the they parties prove at their status before are allowed to sit objected. In has not table, when the other counsel holding proving the burden that an “officer or majority questioned, is also before it is status parties. placing victims and a new burden on majority officer should finds Because second excluded, it not address defendant’s have been does challenges assignment denial error, the trial court’s which argument, opening In her of his motion for mistrial. speak prosecutor to the failure to defendant’s mentioned presented After state had about incident. opening based on moved for a mistrial case, defendant gave a denied motion The trial court statement. cautionary instruction. objec be made when
A
for mistrial must
has occurred and
motion
before the incident
tionable conduct
App
pass by.”
268, 273,
Kolbe, 115
State v.
“allowed
(1993), citing
(1992),
v.
State
Deits, J.,
in this dissent.
dissenting.
MUNIZ, J.,
*13
De
agree
Judge
purported
with
Rossman that the
error
unpreserved
and that the trial court did not abuse its
by denying
untimely
discretion
defendant’s
motion for a
mistrial. The conviction should be affirmed.
notes
correctly
incongruity
The majority
his argument,
error and
assignment
between defendant’s
It
have
violated.
5.45
been
might
and
that ORAP
recognizes
rigid” application
an “unnecessarily
then
on to avoid
goes
I
5.45,
argument.
exclusion
reaches defendant’s
ORAP
already
our
of our role. Given
to this
agree
expansion
cannot
the timeli-
improve
to
resources and our efforts
constrained
construing
should be
we issue
we
opinions,
ness with which
ORAP 5.45 more strictly,
liberally.
not more
pre-
had both
that defendant
Assuming, arguendo,
majority’s
with the
issue,
disagree
served
raised
law,
city police
that, as a matter
conclusion
summary
its “officer
the state as
be designated
officer cannot
2
apparent on
face of
record
reach this issue as error
I also would not
(1991). InAZZes,
376,