Argued and Submitted: September 27, 2013.
Lane County Circuit Court 201027964. Lauren S. Holland, Judge.
Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Joseph Dominic Ferraro filed the supplemental brief Pro se.
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 Nakamoto, Judge, and Egan, Judge.
[264 Or.App. 273] NAKAMOTO, J.
Defendant, who was convicted of second-degree sexual abuse, ORS 163.425, and third-degree sodomy, ORS 163.385, argues that the trial court abused its discretion in denying his motion to postpone trial and erred in excluding evidence concerning conduct by his girlfriend, the victim's mother, as not relevant under OEC 401. He also asserts that nonunanimous jury verdicts are unconstitutional, an argument that has been rejected by this court in numerous cases and that we reject here without discussion. See, e.g., State v. Curnutte, 250 Or.App. 379, 381, 280 P.3d 398, rev den, 352 Or. 564, 291 P.3d 736 (2012). We conclude that the trial court abused its discretion in denying defendant's motion for postponement of trial to permit defense counsel to finish an investigation and to adequately prepare a defense for trial. Accordingly, we do not reach the evidentiary issue and reverse and remand.
The relevant facts are procedural. Defendant was charged in multiple counts with sexually abusing and sodomizing P, the daughter of defendant's girlfriend, York; P was 14 and 15 years old during the alleged incidents. Defendant, P, and York lived together in Eugene at the time. In December 2010, P told a friend that defendant was abusing her, and, ultimately, the police were called. A detective interviewed defendant at the apartment he shared with P and York, and defendant confessed to multiple acts of sexual contact with P. Defendant was arrested and indicted on a total of 21 felony counts, including 17 counts of second-degree sexual abuse, ORS 163.425, and four counts of third-degree sodomy, ORS 163.385.
The court denied defendant's request for court-appointed counsel because it appeared that defendant had financial means to obtain private counsel. In late January [264 Or.App. 274] 2011, at a 35-day call hearing, defendant appeared pro se and indicated to the court that he was trying to hire Wood, a private attorney, to represent him. He told the court that he was having trouble retaining Wood because his bank had secured his account due to someone trying to access it. The court agreed to set over the 35-day call to February 24 so that defendant could retain Wood; defendant waived his right under ORS 136.290 to have the case brought to trial within 60 days.
At the 35-day call hearing on February 24, defendant still had no attorney of record. The court asked defendant why he had not
retained Wood to represent him. Defendant told the court that approximately a week before, he had learned that someone had drained the money from his bank accounts and sold his assets using a forged power of attorney. Accordingly, he no longer had the money to hire a private attorney and requested that the court appoint him counsel. The court appointed defendant a public defender from Public Defender Services (PDS) and set 35-day call for March 7.
Defendant first saw his public defender, Tufts, on March 5 for approximately 15 minutes, but did not see Tufts again after that. On March 7, at the next call hearing, Tufts appeared and explained that he had just been appointed and did not yet have discovery. The court set the case over to March 23. At the March 23 hearing, the case was set over to April 6 for a 35-day call. On April 6, defendant was not transported, so the case was set over to April 11.
Apparently dissatisfied with Tufts's performance, defendant requested that another public defender be assigned his case; PDS assigned another lawyer, Kaiser, to defendant's case. On April 11, the case was set over again to April 18. Thereafter, PDS discovered that it had a conflict because it had previously represented York; Kaiser reported that fact to the court on April 18. The court expressed displeasure that it had taken PDS that long to discover the conflict and that it was concerned about defendant's speedy trial rights. The court ordered that Deal, a public defender with the Defense Consortium, be appointed to represent defendant. The court set a trial date for June 14, 2011.
[264 Or.App. 275] Meanwhile, defendant had been trying to raise money to hire a private attorney. Defendant had met with a private attorney, Jagger, on April 14 and thereafter tried to get money to retain his services. On April 20, just two days after Deal was appointed to represent defendant, Jagger sent Deal a letter and a substitution of attorney notice stating that defendant had retained Jagger to represent him in the case. On April 22, Jagger filed a notice of representation with the court, which made Jagger the attorney of record on the case. The next week, however, Jagger's office informed Deal that Jagger had not actually been retained by defendant and that the notice of representation had been filed by mistake. On May 9, at a 35-day call hearing, the court addressed the issue of who was representing defendant. Deal appeared and informed the court that Jagger had indicated that he was going to file a motion to withdraw as defendant's attorney. The court said that it could not do anything until Jagger had filed his motion to withdraw; accordingly, the court set the case over until May 11. The court warned Deal that the trial would occur in June: " I am not going to be postponing that trial date. I'd suggest you get to work." Thereafter, Jagger filed his motion to withdraw, which the court granted on May 11. On May 26, the court officially re-appointed Deal to the case, retroactive to May 11.
On June 1, defendant filed a motion to postpone the trial, with a supporting affidavit by Deal. In his affidavit, Deal explained the rocky history of defendant's legal representation in the case and stated that defendant had been " effectively without an attorney from December 17 to April 18, through little to no fault of his own," due to a number of problems both with obtaining funds for a private attorney, as well as issues with his court-appointed attorneys. As for his representation of defendant, Deal stated that, after he was appointed on April 18, he had " lost substantial preparation time because of Mr. Jagger's tentative hiring."
Deal also explained that defendant was subject to charges that " could bring him many years in prison if he is convicted" and that the allegations covered numerous events that occurred during a period from July 1, 2009 to December 17, 2010. He further stated that,
[264 Or.App. 276] " [w]hile investigation has begun, there is much more to be done in order to prepare sufficiently for trial. There are many potential witnesses to be contacted regarding the alleged events and the credibility of the alleged victim, her mother, and other State witnesses. There is no way to complete the investigation by the trial date of June 14.
" There may also be a need to hire expert witnesses regarding the case. For example, the State is seeking to introduce text messages between Defendant and the alleged victim. However, according to Defendant there exist a message or messages which the State is not including, and which will put a different light on the text messages the State is seeking to introduce. If the State does not have those messages, we may need to hire an expert to retrieve them.
" Because of events that have occurred since Defendant's arrest December 17, and the nature of the case, there is not enough time to prepare a fair trial for Defendant by June 14, and the trial should be postponed."
At the hearing on the motion, Deal also noted that there was some evidence that York was involved in the disappearance of defendant's money, and he indicated that he wanted to pursue " a lot of collateral evidence that affects the credibility of the witnesses, not only of the mother and perhaps the daughter, but also these other witnesses that we were talking about in the case." The state opposed the motion, arguing that it was a " double confession" case with " overwhelming" evidence of guilt; that both efficiency considerations, given that subpoenas had been issued, and concern for P militated against postponement; the court previously had told defendant that the trial date was firm; and York's involvement in defendant's financial troubles had been known for months. Deal countered that there were months during which, practically speaking, defendant had no lawyer to prepare his case. Deal also argued that the confession made the case more complicated to prepare and to defend and that the " strength of the case should not be a consideration" as to whether defendant was entitled to a fair trial. The court denied the continuance without elaboration.
On June 9, defendant filed a second motion to postpone, relying on Deal's earlier affidavit. At the hearing on that motion, Deal explained that,
[264 Or.App. 277] " as it has turned out, there is substantial investigation that still needs to be done. There is investigation that needs to be completed to see justice served and [the prosecutor] agrees that this is a case that should be postponed."
After the court reviewed the affidavit with Deal, Deal added further information:
" THE COURT: So, as I understand what you're telling me now it's that you want to investigate issues that really surround the credibility of the alleged victim's mother, is that fair to say?
" [DEFENSE COUNSEL]: That plus the alleged victim, herself, plus at least two other witnesses and then there are other potential witnesses who may have their credibility questioned and there are a number of witnesses who can talk about the credibility of these people. ...