Argued and Submitted April 26, 2013.
Josephine County Circuit Court. 04CR0925. Thomas M. Hull, Judge.
Susan Fair Drake, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.
[262 Or.App. 578] DE MUNIZ, S. J.
Defendant appeals his convictions for attempted aggravated murder with a firearm, ORS 163.095; ORS 161.610, attempted murder with a firearm, ORS 163.115; ORS 161.610, and assault in the second degree with a firearm, ORS 163.175. Defendant assigns error to the admission into evidence of defendant's testimony from his earlier trial on the same charges, which had resulted in a conviction that was set aside on appeal. According to defendant, his testimony at that trial had been tainted by the state's introduction of unconstitutionally-obtained pretrial statements and, therefore, should not have been admitted against him at his second trial. The question in this appeal is whether the rule established in State v. Moore/Coen, 349 Ore. 371, 245 P.3d 101 (2010), cert den,
__ U.S. __, 131 S.Ct. 2461, 179 L.Ed.2d 1225 (2011) (a defendant's trial testimony is assumed to be tainted by the erroneous admission of unconstitutionally-obtained statements), is applicable when defendant did not move to exclude his pretrial statements at the first trial. We hold that the rule applies in this case, and, for the reasons that follow, we vacate and remand for further proceedings.
After receiving several reports that defendant was acting in a concerning manner and threatening to commit suicide, a number of law enforcement officers arrived at defendant's residence. Defendant opened his front door and rapidly fired four or five shotgun rounds in the direction of the officers. As the officers retreated, one of them was wounded by the gunfire. After defendant was taken into custody, he admitted that he had fired the shotgun, which he had intended to use to commit suicide, that he had been drinking, and that he had fired in the direction of the vehicles to prevent the officers from rushing his house. Defendant told the officers that he had not intended to hit anyone and did not realize that he had wounded an officer.
Defendant was first tried in 2006, and, at that time, the prosecution introduced defendant's pretrial statements as described above. Defendant did not move to suppress the statements and testified on his own behalf at trial. A jury found defendant guilty of attempted aggravated murder, attempted felony murder, and assault in the second degree [262 Or.App. 579] with a firearm. Defendant appealed, and we concluded that the trial court had erred in failing to remove a juror for actual bias. State v. Dalessio, 228 Or.App. 531, 540, 208 P.3d 1021 (2009). Accordingly, we reversed defendant's convictions and remanded the case for a new trial.
Before his second trial, defendant filed a motion to suppress his pretrial statements and to exclude his testimony from the first trial. The state conceded that defendant's pretrial statements were unconstitutionally obtained and therefore not admissible at the second trial; nevertheless, the state contended that defendant's testimony from the first trial was admissible in the second trial. The trial court ordered defendant's pretrial statements suppressed, but concluded that defendant's testimony at the first trial was admissible at the second trial. At the second trial, the state introduced defendant's testimony from the first trial. Defendant did not testify in the second trial. A jury again convicted defendant of the crimes charged, and defendant appealed.
On appeal, defendant argues that the trial court erred by admitting defendant's testimony from the first trial, because that trial testimony was tainted as a result of the admitted, unconstitutionally-obtained pretrial statements and, under the rule established in Moore/Coen, should have been excluded from the second trial. The state responds that, because defendant failed to move to suppress the statements before his first trial, the pretrial statements were not " erroneously admitted" ; ...