*1 281 Argued 15, 1992; January August 5, In submitted resubmitted Banc reversed 16, 1992 September and remanded for new trial
STATE OREGON, OF
Respondent, v. RODRIGUEZ,
JAIME Appellant. A68804)
(90C-21424; CA P2d 711 *2 Kuhns, Salem, B. the cause for appellant. David argued Kuhns, & Salem. him on brief was Todd With
282-a Attorney General, Salem, Lefkow, Diane S. Assistant argued respondent. With her on the the cause brief Frohnmayer, Attorney Virginia Linder, General, and L. Dave General, Salem. Solicitor MUNIZ,
De J. dissenting.
Rossman, J.,
282-b *4 MUNIZ,
De J. of appeals judgments convictions on two 475.992(1). counts of a controlled substance. ORS delivering trial court erred his motion to by denying He claims that the recorded conversations between himself and an suppress tape erro- undercover He also contends the court agent. of the limited his cross-examination state’s wit- neously reverse and nesses. We remand. Police Coggins, Depart-
Officer Woodburn ment, October, 1990, he that, testified hired Kopp 12, “undercover services.” On October perform Coggins, Kopp planned and Officer Weaver a “controlled buy” downtown Woodburn. Before the Weaver buy, searched Kopp he carrying any make sure that was not contraband and then him with which to make the gave purchase. Coggins $40 building Kopp hid inside a and watched as walked to a up and contacted saw “an group Coggins defendant. of items” between and and he exchange the event. the exchange, gave After photographed Kopp a bindle cocaine. Weaver testified that containing Weaver had been outfitted with a wire to record the Kopp body conversation between and defendant the trans- during Kopp 13, and another Kopp planned action. On October Coggins controlled from defendant. Officer Collins searched buy him Again, body wore a wire. gave $40. testified that he made another cocaine purchase defendant. trial, defense counsel made a day orally
On motion in limine to exclude the body tapes any them. The court denied the evidence that was derived from motion on the that a written motion ground suppress wire evi- only proper challenging body method have been tapes Defendant contends that should dence. parte ex order did obtain police because suppressed, wire, and the failure to obtain the use of the authorizing or proba- not excused circumstances by exigent an order was was about to commit ble cause to believe that defendant defendant can challenge, The issue is whether drug felony.1 133.726(1) part: provides, in ORS county obtaining any parte conversation “An ex order for the * * * 165.540(5)(a) may by any judge upon be issued this state under ORS *5 limine, motion in the lawfulness of the an oral by evidence. challeng- establishes the for procedure
ORS 133.736 under ORS introduction of conversations obtained the ing 165.540(5)(a). in part: It provides, * * *
“(1) may suppress move to Any aggrieved person any of conversation obtained recordings ORS 41.910 under 165.540(5)(a), any testimony or the individual under ORS any conversation obtained regarding a thereto party 165.540(5)(a). under ORS “ ** (2) trial, made before the *. If Such motion shall be the such granted, judge, upon filing is the the motion motion, in may judge’s the discre- by aggrieved person, aggrieved person person’s to the or the tion make available intercepted com- inspection portions for such counsel judge as the or evidence derived therefrom munications justice.” (Emphasis in interest of determines to be supplied.) 41.910(2) provides:
ORS * * * noncompliance due to
“Evidence made inadmissible officer with the conditions of ORS by a law enforcement attorney application upon district made oath or affirmation of the written any sought upon peace county oath or affirmation of in which the order is officer.” provides, part: ORS 165.540 (2) “(1) Except provided in as otherwise ORS 133.724 or subsection (7) section, person this no shall: mechanical, specifically means <<* “(c) [*] [*] [*] [*] informed that their conversation manual or Obtain or any device, attempt otherwise, contrivance, to obtain the whole or if all machine or participants is being apparatus, in the conversation are not obtained. part whether of conversation a electrical, apply: “(5)(a) (< # sf: [*] The [*] prohibitions paragraph (c) of subsection of this section do not
Itif * * * * “(B) a a law officer obtains conversation between When enforcement officer, officer, person supervision of the and a who under the direct or someone committed, engaged in is commit- probable to believe has the officer has cause felony punishable 475.992 or ting as a under ORS about to commit a crime or is obtained are of such time the conversation is or the circumstances at the 475.995 exigency ORS obtain the court order under would be unreasonable to that it 133.726, the conversation does not providing who obtains or records entirety.” intentionally preserve the conversation its fail to record 165.540(5)(a) only be inadmissible under this shall section to a motion to under ORS pursuant suppress 133.736.” 41.910(2) ORS 133.726 ORS establish that a motion to is the sole method for suppress challenging the of an conversation under admissibility intercepted ORS 165.540(5)(a). filed, 133.736.(2), A motion must be ORS formal, is motion. A necessity, written written motion to serves two functions. It the state notice of the suppress gives it contentions must be to address at the hear prepared it by the court. State ing, and defines the issues to be decided Johnson/Imel, v. rev den 560, 566, 16 Or App 1053, 519 P2d (1974). motion, Defendant’s *6 just jury made before selection trial, day functions, on the did not serve either of those and the trial court correctly denied it.
In her the statement, said, opening prosecutor “Mr. was Kopp introduced to Detective Mr. Coggins through Kopp’s roommate.” Defendant that the argues court erred about the limiting testimony roommate’s and identity his involvement with undercover He agents. contends that line of questioning was relevant to the issue of Kopp’s bias.2 That contention is purely speculative, because he did not make any record that would support that More proposition.3 over, those to reveal that “the were not designed witness [i.e., Kopp] in engaged conduct or made statements
2 609-1(1) provides: OEC credibility may “The of a witness be attacked evidence that the witness engaged showing However, in conduct or made statements bias or interest. done, can be before this the statements must be related to the witness and the described, times, places persons conduct present, with the circumstances of and and the witness shall be asked whether the witness made the statements engaged conduct, and, so, explain. in such if If allowed to the statements are in they writing, shall be shown to the witness.” proof colloquy: Defendant’s offer of consisted of this you Kopp, [COUNSEL]: “DEFENSE Mr. indicated that had been moti- get your police through vated to involved with the roommate, is that correct? “WITNESS: Correct. your [COUNSEL]:
“DEFENSE Who is roommate?” Kopp protect The court instructed not to answer that in order to the securily confidentiality. roommate’s and Defense counsel did not ask what the becoming Kopp agent. roommate had told about an undercover That information might bias, Kopp’s have been relevant to issue but we see no relevance in identity conveyed of the who that information. 609-1(1). sup- (Emphasis OEC or interest.” bias showing from identi- Kopp not err prohibiting court did The plied.) his roommate. fying He admitted that he at trial.
Defendant testified on drugs sold to October allegedly where he at the place with in photo- himself 13, and he identified 12 and he However, denied entered evidence. that the state graphs He testified that Kopp sold to drugs Kopp. he had ever he gave Kopp use the and phone him for change asked some that he have may given He also said a quarter. to the testified that he had listened He cigarettes. one of them as belonging a voice on identified tapes, of the that his voice was on either He denied Corago. Jacob tapes. Coggins Collins and
His defense was 13th, on 12th and controlled involved in multiple him with another had confused somehow, they and that undercover paid to show that Kopp, He suspect. attempted witness who could and unreliable was a biased agent, from whom he him as one of the people accurately identify that, tried to show Defendant also drugs. purchased contemporaneous were involved the officers because sus- multiple transactions, became confused who as one misidentified pects that several contends drugs Kopp. had sold ade- him from evidentiary rulings prevented court’s *7 his defense. developing quately state’s the court ruling, granted
In a pre-trial he whether asking Kopp motion to preclude examination, the prosecu- On direct had ever been arrested. “[Wjere in criminal any leniency you given tor asked Kopp, that or of anything tickets dismissed or had parking matters to the door cross-examin- question opened nature?” That record. about arrest Kopp’s ation (if there were any), arrests his prior Evidence about and the charged he had been occurred, whether when they potentially that are are all matters charges of disposition inquiries to those bias. The answers the issue of relevant to biased and infer he was to that jury allowed the could have deal. for a exchange the state favorable to testimony giving 287 question expected him mean- to not be could Defendant ingfully asking the without “favorable treatment” about quintessential he had ever been whether about arrested. proof, attempted an of but make offer to
Defendant interceded: the court regard- I will not allow just absolutely “No. — As to convictions arrests of this
ing any prior
person.
offer of
on this.”
going
proof
I’m
even
to
permit
asserting
Kopp had
a
If
had a basis
made
Kopp’s
an error that
deal, then exclusion of
arrest record was
only by making
proof.
preserve
an offer of
defendant could
(1988).
125, 129,
P2d 220
He had
307 Or
764
Affeld,
State v.
People
right
proof.
See
v.
an absolute
to make an offer
(1992);
App
886,
Tatum v.
Stewart, 229 Ill
State,
actually bought drugs occurred: colloquy indicated that
“Q: you you Of the ten with, them involved the same many how once? more than twice. people I three. Three different “A: believe people you be a total of seven “Q: Okay. It would drugs from? bought now, from. That would well, bought I people
“A: Six— seven, okay. yeah, be—
“Q: that? You sure of
“A: Yes. testified earlier—
“Q: you Now when bought I people it was four I believe I restate that? “A: Can people. And it was five from twice. five, it was while, can be sure long you
“Q: It’s been quite not six?
“A: Four. was, you maybe, people seven said it
“Q: Okay, first you’re now five and from, maybe six. And bought four? saying from twice. bought I people
“A: Four eight buys? “Q: That would be “A: Correct.” many not recall how could the fact that
Despite he could from, he testified bought drugs he had Whether suspects. the other defendant distinguish as origin same ethnic were of the suspects were similar whether into inquiry to an was relevant to the defense was relevant in turn which him in appearance, proof, offer of defendant’s During identity. of mistaken men, five woman and from one drugs had bought stated that erred by The court Hispanic. to be whom appeared all of evidence relevant place to allow refusing the jury. before *9 on the his written report
Collins testified He on October 13. made to that defendant sale alleged He after making buy. returned with that Kopp $8 testified amount as written down the had incorrectly that he admitted stated that inaccurately that his report He also admitted $10. attorney October 10. Defendant’s event occurred on but report name on appeared asked Jacob why Corago’s that he had inadvertently out.4 Collins said was scratched Corago Collins described report. that name on written gave The that Collins two descriptions defendant. identical. virtually men are asked if Collins was con
When defendant’s attorney the court sus ducting contemporaneous drug purchase, a As an offer of defendant objection. proof, tained the state’s docu appears packet discovery what to be a submitted case Those documents indicate against Corago. ments a in a transaction drug Corago participated on the afternoon of October 13 Coggins Collins and observed offer of indicated proof in downtown Woodburn. Defendant’s at did, fact, buy another controlled that Collins orchestrate the same time as one the alleged approximately whose That involved a buy suspect description defendant. on Collins’ appeared defendant’s and whose name matched the body identified voice on Corago’s Defendant later report. 12. The about contem question from October tape relevant to the issue highly transactions was drug poraneous was mis criminal another activity by suspect of whether by refusing to defendant. The court erred attributed takenly Collins, in front of the if he was jury, to ask to allow at same time as the involved in transaction drug involved defendant. one that allegedly actually Defense counsel asserted named Jacob Collazo. The documents by plea Corago person. packet a made The included offer Collazo and were the same delivery attorney, against Corago for a controlled the district the indictment alleged substance, reports Corago’s history on printout and Collins’ a criminal agent Corago suspect. drug and another transactions between undercover only would be packet what relevant information offered the to show packet by questioning that the itself the witness. He makes no contention revealed was admissible.
Defense counsel asked “Do recall testi Coggins, concerning allegedly involving Jury buy at the Grand fying objection The court sustained the state’s Corago?” Jacob it The on the was not relevant. question ground question was relevant for the same reason that the transactions contemporaneous drug to Collins about posed allowing The court erred was relevant.
ask it.
The seeds of doubt defendant’s regarding identity The were sown the evidence that was admitted. court directly forbade that were relevant erroneously inquiries effec rulings the issues of bias and misidentification. Those to establish that tively attempting defendant from precluded already doubt sown reasonable. Reversed and remanded for a new trial.
ROSSMAN, J., dissenting. *10 error,
If there a case harmless this involving ever was when defendant is it. Even if the trial court erred it prevented about arrest making proof Kopp’s prior from offer when it limited other con- questioning regarding record and in, were involved record trolled that the drug buys police to ask defendant was allowed ample opportunity shows that bias establish his theories of testimony and elicit questions Furthermore, any error was also identity. and mistaken of defendant’s in view of the evidence overwhelming harmless guilt. to ask Kopp defendant was not allowed
Although arrested, been he was allowed to ask whether he had ever he had ever “received favorable treatment any whether He was also allowed to ask questions from arrests.” any crimes, use, whether or not or drug “regarding [Kopp’s] past, that There- particular day.” under the influence on was defendant from fore, prohibited asking the court although record, allowed a plethora arrest it Kopp’s one about question that, depend- related matters closely of other about questions infer have allowed the answers, jury might on ing Kopp’s “in return for a testimony favorable offering that he was However, oppor- avail that did not deal.” himself of no cross-examination, he asked On tunity. unimpeachable motives, Kopp’s due perhaps Kopp’s
291 exam- on direct attorney’s questions district to the responses or using drugs involved yourself, you, “[A]re ination: the time you “[W]ere [at sort?” any substances controlled sub- controlled any influence under buy] substances?” ever used controlled you “[H]ave stances?” at time you marijuana?” “[W]ere use you “When did ** * work; were benefit for your [non-pecuniary] given any or in criminal matters all, leniency say, given any at let’s nature?” anything dismissed tickets parking that defendant sought information The supplied.) (Emphasis and, although examination on direct provided to elicit was matters about those questioned Kopp could have not be cross-examination, to. He should he chose on he was somehow preju- on allowed to complain appeal failure, jury given where the especially diced his own of the state’s credibility to assess ample opportunity 789, 800, P2d 1311 Hubbard, Or witness. State v. (1984). the trial erred in Defendant also court argues ’
‘ and the police to allow’ him to cross-examine ‘refusing drug buys about other controlled officers However, in when from defendant. they purchased the record shows that defendant was given after page page, and was allowed to latitude regard, considerable he was extensively. Although the state’s witnesses appear- asking Kopp physical to describe prevented sellers, inhibit the other that did not drug ance and names of there was confusion to show that attempts defendant’s and that of the various sellers identity regarding who matched mistaken him for another witnesses had his description. includ- questions, numerous asked
ing following: drug one trans- in more than you “Mr. were involved action on the 13th of October?” in?” many you
“How were involved place?” “Where did that take involved at that time?”
“Who were the officers Depart- Woodburn Police work for the long you “How did investigation?” drug ment on the you time you were involved at the many drug buys
“How Department?” Police for Woodburn worked vicinity?” buys general in the same drug “And were all indicated a around who there other individuals “[W]ere you?” cocaine to willingness to sell indicated that were involved you you buys “Of the ten than with, person them involved the same more many how once?” any from of the other you photographs looked at the
“[Have] drug buys compare people?” memory that your can’t tell us from own say you “Is it fair to 13th is, fact, you bought from on October this other time 12th or October 9th some opposed as to October Police making for the Woodburn purchases were you Department?” five people of the other [defendant]
“You can’t tell bought drugs you from?” the other five?”
“How is he different from transac- independent have an recollection which you “Do 13th, you say my the one place took on October tion other individual?” involved the you say client or the one o’clock and happened know which one at 3:00 you “So don’t o’clock, at is that correct?” happened which one 6:00 as to who you could be mistaken possible “And is it also your recollection of case based on particular it is on this voice?” substances that have earlier that the you testified “When similar, you, your can own really you
been shown to looked fact, are, in recollection, .they if items tell us independent as to one of these my opposed client received from individuals?” allowed to those answers
Kopp’s in the were taking place that other controlled establish many how difficulty recalling had location,, that Kopp same from, independent he had no drugs bought had people a number of sellers, that there of the various recollection took place the transactions him when around willingness indicated a of those people more than one him cocaine. sell *12 was Collins, defendant cross-examination
On name whose drug seller alleged another to ask allowed about out. was scratched but report police on defendant’s appeared show that both was able to Collins, By questioning male, 5 described as Hispanic, were suspect he and the other to Collins tried ask When defendant pounds. foot 10 and 150 the same been conducted at had drug purchase if another the buy the same time as and at location How- objection. the state’s defendant, the court sustained ask other ever, questions was allowed to time, that, and at the same Collins on the same date showed the a undercover for agent had met with and second in downtown controlled narcotics making purpose Woodburn. short, the does not defendant’s
In record support him the trial court “refused to allow” to question claim that buys. about other controlled Nei- drug the state’s witnesses on defendant’s ther does it show an limitation improper show confusion the regarding identity attempts when only various sellers. His were curtailed Moreover, irrelevant or have confused the jury. would at the same location drug purchases question been answered two other day already by and on the same Hubbard, was cumulative. State v. largely witnesses and at 800. 297 Or supra, if trial court erred in disallowing even
Finally, I and his offer of would hold proof, defendant’s and two officers testified the errors were harmful. Kopp two occasions and given had been searched on defendant, had a had made contact with money drug buy, with him and had returned with a bindle of items exchanged surveillance the offi- cocaine. was under constantly was cers, during a wire and wearing body photographed in the at depicted photographs; Defendant is drug buys. during that he wore trial he was the same coat wearing that, he is not testified buys. photographs, quarter is him a merely loaning but selling cocaine However, is refuted testimony call. telephone make recording. tape scrutinize instance carefully we must Although case a defendant a criminal a trial court prevents which minor offer of the error in this case was making proof, I harmless; Accordingly, not warrant reversal. it does dissent.
Buttler, JJ., in this Riggs, join Deits dissent.