December 18, 2013
STATE OF OREGON, Plaintiff-Respondent,
DARRELL KELLY MIDDLEKAUFF, Defendant-Appellant.
Submitted on September 30, 2013.
Deschutes County Circuit Court,
No. 06FE1899ST Stephen N. Tiktin, Judge.
Peter Gartlan, Chief Defender, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin C. Lagesen, Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
Defendant was convicted of one count of aggravated murder, seven counts of second-degree sexual abuse, and seven counts of delivery of methamphetamine to a minor. On appeal, defendant advances five assignments of error, but we write to address only his second assignment of error. Defendant contends that the trial court erred in admitting certain materials in an envelope marked "legal mail" because, according to defendant, those materials were protected under attorney-client privilege. See OEC 503(2) ("A client has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of facilitating the rendition of professional legal services to the client[.]").
After reviewing the record, we conclude that the trial court did not err in admitting the contents of the envelope into evidence. During the state's case-in-chief, the court overruled defendant's privilege-related objection to the evidence on the ground that, in the course of pretrial litigation, defendant had raised and then withdrawn the same privilege argument, and the case proceeded with the understanding that defendant was no longer objecting to the admission of the evidence on the basis of attorney-client privilege. The record is consistent with the trial court's understanding of the procedural history of the case; as such, the court did not err in denying defendant's subsequent attempt to relitigate his previously withdrawn privilege argument during the course of the trial.