State v. KleinState v. Klein
On appeal, the Court of Appeals affirmed. It held that defendant could not challenge the body-wire order because he was not an “aggrieved person” within the meaning of
We state the facts in the light most favorable to the state. State v. Johnson, 342 Or 596, 598, 157 P3d 198 (2007). In 2002, Deprince Hale shot and killed Asia Bell and wounded Bell‘s husband and a neighbor. Defendant drove Hale to and from the scene of the crime. Defendant‘s girlfriend at the time, Sonja Hutchens, served as a lookout during the shooting. Defendant and Hale are gang members;
The police developed few leads in their investigation until 2006, when Hutchens, who then was serving a 10-month jail sentence for an unrelated crime, contacted the prosecutor to offer information about the murder in exchange for an early release. Hutchens identified Hale as the shooter; she did not identify defendant as the driver, nor did she acknowledge her role as lookout at that time. Based on the information that Hutchens supplied, the police obtained an order under
Before that order expired, the police applied for a second body-wire order, which is the subject of defendant‘s challenge. The application for the order described conversations between Hale and Hutchens that the police had intercepted previously. The application also stated that Hutchens had failed a lie detector test and had admitted to the police that she had misled them about several important facts regarding the murder. As relevant here, the application noted that Hutchens had stated that defendant had driven Hale and several other gang members to the house where the shooting occurred. The application also stated that Hutchens had admitted that she had followed Hale and defendant in a separate vehicle to serve as a lookout.
Although the application for the order mentioned defendant and several other gang members who were present in the vehicle when Hale murdered Bell and shot the other victims, the order did not name defendant or the other gang members. Rather, the order provided:
“The persons whose oral communications are to be recorded are SONJA ELAINE HUTCHENS and DEPRINCE ROMEY HALE and other unknown subjects who may be present during contacts by SONJA ELAINE HUTCHENS with DEPRINCE ROMEY HALE. This order authorizes only the interception of oral communications to which SONJA ELAINE HUTCHENS is a party, which means oral communications that are made in the immediate
presence of DEPRINCE ROMEY HALE and are audible to DEPRINCE ROMEY HALE.”
Judge Eric Bergstrom signed the order.
Based on the order, the police placed a body-wire on Hutchens and recorded conversations between Hale and Hutchens. Those conversations implicated defendant in the murder. Based in part on those conversations, the police obtained a wiretap order under
Before trial, defendant filed separate motions to suppress evidence gained from the body-wire order and the wiretap order. As to the body-wire order, defendant alleged that the order was invalid because Judge Bergstrom was not a neutral and detached magistrate. Defendant asserted that, in 2002, at the time of the murder, Judge Bergstrom had been a deputy district attorney for Multnomah County, and that he had been called to the scene of the murder and had attended the autopsy. Because there were no suspects in the murder investigation until Hutchens came forward in 2006, however, the district attorney‘s office did not open a file on the case until after Judge Bergstrom had left his position as a prosecutor in 2005. The trial court denied defendant‘s motion. As to the wiretap order, defendant alleged that evidence gained under that order should be suppressed because the application for the order had relied on evidence gained from the invalid body-wire to establish probable cause. Thus, his argument that the wiretap evidence should be suppressed depended on the court‘s agreement with his argument that the body-wire evidence was unlawfully obtained and should be suppressed. The trial court denied his second motion as well.
At trial, Hutchens was a witness for the state. Defendant sought to raise questions about Hutchens‘s credibility through the testimony of Aisha Banks, who had been incarcerated with Hutchens. Banks was prepared to testify that Hutchens told her that she had “made up” information about the shooting in order to get out of jail.
As noted, the jury found defendant guilty of various crimes related to the murder of Asia Bell. Defendant appealed, arguing that the trial court erred in denying his motions to suppress and in excluding the proffered testimony of Banks. The Court of Appeals rejected defendant‘s argument regarding the body-wire order because defendant did not qualify as an “aggrieved person” under
Regarding the wiretap order, the court acknowledged that defendant was an “aggrieved person” with respect to that order. Id. at 7 n 2. However, the court stated, defendant‘s only argument was that evidence gathered pursuant to the wiretap order should be suppressed because it was derivative of the body-wire order. The court rejected that challenge. As to the exclusion of Banks‘s testimony, the Court of Appeals agreed with the defendant that the trial court was incorrect in excluding that testimony under
The legislature has provided a statutory suppression remedy for violations of the body-wire and wiretap statutes.
“(1) Any aggrieved person in any trial *** may move to suppress recordings of any oral communication intercepted in violation of
ORS 133.726 [the body-wire statute] or testimony or other evidence derived solely from the unlawful interception.”
(Emphasis added.) Similarly,
“(1) Any aggrieved person in any trial *** may move to suppress the contents of any wire, electronic or oral
communication intercepted under ORS 133.724 [the wiretap statute], or evidence derived therefrom, on the grounds that:“(a) The communication was unlawfully intercepted[.]”
(Emphasis added.) “Aggrieved person” is a defined term:
” ‘Aggrieved person’ means a person who was a party to any wire, electronic or oral communication intercepted under
ORS 133.724 or133.726 or a person against whom the interception was directed and who alleges that the interception was unlawful.”
Defendant argues that
Defendant and the state thus agree that defendant qualifies as an “aggrieved person” as to the wiretap order, because he was a party to the intercepted communications and also was named in the wiretap order as the person whose communications were to be intercepted. As to the
We determine the meaning of the phrase “a person against whom the interception was directed” by examining the text and context of the statute—including related statutes and case law—and then looking to legislative history as necessary. See State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (outlining methodology). Our goal is to discern the intent of the legislature, if possible. Id. at 165.
Because the legislature wrote the definition of “aggrieved person” in the passive voice—“a person against whom the interception was directed“—who or what does the “directing” is not explicitly stated in the statute. The key difference between the interpretations offered by defendant and the state involves who or what “directs” the interception. Under defendant‘s interpretation, the interception is “directed” by the intent of the police as expressed or implied in the application and the proposed order, or by the intent of judge issuing the order. Defendant argues that, if the police “contemplate” that a particular criminal suspect might be recorded under the order, or if the judge “anticipates” that a particular criminal suspect is likely to be recorded, those individuals have standing to challenge the order because they are persons “against whom the interception was directed,” even if they are not named in the order and are not among the persons whose conversations were intercepted. The state argues, in response, that the text of the order itself “directs” the interception by naming one or more specific persons in the order; an unnamed person, in
The text of
The legislative history of
We turn briefly to the meaning of the analogous federal definition of “aggrieved person.” When the Oregon legislature has modeled a statute on a federal statute, we treat pre-existing United States Supreme Court decisions interpreting the federal statute as indicative of the legislature‘s intent in adopting the state provision. Pamplin v. Victoria, 319 Or 429, 434-35, 877 P2d 1196 (1994). That is the circumstance here. In Alderman v. United States, 394 US 165, 175-76 n 9, 89 S Ct 961, 22 L Ed 2d 176 (1969), the United States Supreme Court construed the federal definition of “aggrieved person,” stating, “The [Omnibus Crime Control and Safe Streets] Act‘s legislative history indicates that ‘aggrieved person,’ [in
“The established principle is that suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing.”
394 US at 171-72. Alderman, of course, was decided before the legislature amended Oregon‘s statutes dealing with electronic surveillance to include the federal definition, and we therefore view that decision as expressing the interpretation of the statute that the legislature intended. Moreover, following Alderman, the federal courts have consistently interpreted “aggrieved person” as limiting those who can seek suppression of evidence to persons whom the order named as the target of the electronic eavesdropping, were parties to intercepted conversations, or whose premises were the site of the interception. See, e.g., United States v. Williams, 580 F2d 578, 583 (DC Cir 1978) (so stating).
Defendant notes that the Oregon legislative history does not discuss the meaning of “aggrieved person” nor does it discuss Fourth Amendment standing principles. That assertion is correct, as far as it goes, but does not detract from the more general proposition, articulated in the legislative history, that the legislature intended Oregon law to reflect federal law on the subject of who has standing to challenge
The application of our interpretation of “aggrieved person” to the facts here is straightforward. As noted, the body-wire order stated:
“The persons whose oral communications are to be recorded are SONJA ELAINE HUTCHENS and DEPRINCE ROMEY HALE and other unknown subjects who may be present during contacts by SONJA ELAINE HUTCHENS with DEPRINCE ROMEY HALE. This order authorizes only the interception of oral communications to which SONJA ELAINE HUTCHENS is a party, which means oral communications that are made in the immediate presence of DEPRINCE ROMEY HALE and are audible to DEPRINCE ROMEY HALE.”
For defendant to invoke the statutory suppression remedy, he must be an “aggrieved person,” either because he was a party to the intercepted communication or was “a person against whom the interception was directed.” Defendant acknowledges that he was not a party to any communication intercepted under the body-wire order. Thus, he may only challenge the order if he was a person “against whom the interception was directed.”
Defendant nevertheless asserts that he was a “person against whom the interception was directed”
Defendant is incorrect. As noted, “a person against whom the interception was directed” means a person identified in the order whose communications are to be intercepted. Here, the text of the order itself limits the interception to communications between Hutchens and Hale and communications involving “other unknown subjects who may be present” during communications between Hutchens and Hale. Defendant was not present at those conversations and thus he is not an “unknown subject” under the order.1 Therefore, the interception was not directed at defendant.
Defendant also asserts that he may challenge the lawfulness of the body-wire order because he is an “aggrieved person” as to the subsequent wiretap order. That is so, defendant argues, because the police relied upon evidence gained from the body wire to establish probable cause for the wiretap order. The state does not dispute that defendant is an “aggrieved person” with regard to the wiretap order, but argues that his status as to the wiretap order does not permit him to challenge the body-wire order.
Defendant‘s argument fails because it is inconsistent with the statutory requirement of
Turning to defendant‘s evidentiary challenge, defendant asserts that the Court of Appeals erred by concluding that the trial court‘s exclusion of Banks‘s testimony was not prejudicial. The Court of Appeals held that any error by the trial court was harmless because the excluded evidence “would have demonstrated exactly the same thing as the admitted evidence” and, therefore, “its exclusion was unlikely to have affected the verdict.” Klein, 243 Or App at 15. On review, defendant argues that the Court of Appeals incorrectly applied this court‘s harmless error standard.
An evidentiary error is harmless if there is little likelihood that the error affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Whether the erroneous exclusion of evidence is harmless will depend on the content and character of evidence, as well as the context in which it was offered. Erroneous exclusion of evidence that is “merely cumulative” of admitted evidence and not “qualitatively different” than admitted evidence generally is harmless. See id. at 34. Here, the Court of Appeals understated the difference between Banks‘s and Hutchens‘s testimony when it stated that Banks‘s testimony—that Hutchens fabricated information about the shooting to get out of jail—would have demonstrated “exactly the same thing” as Hutchens‘s testimony about those statements. Banks‘s testimony would have provided a different perspective and a different emphasis than Hutchens‘s testimony. Nevertheless, because the jury heard the same facts—the content of Hutchens‘s statements and that those statements were made in jail to a fellow inmate—when Hutchens admitted making those statements on the stand, any error in excluding the
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.