Submitted July 31, 2013
Multnomah County Circuit Court. 100431632. Kelly Skye, Judge.
Peter Gartlan, Chief Defender, and Marc D. Brown, Deputy Public Defender, Office of Public Defense Services, filed the opening brief, supplemental brief, and reply brief for appellant.
Michael James Russum filed the supplemental brief Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the briefs for respondent.
Before Duncan, Presiding Judge, and DeVore, Judge, and Schuman, Senior Judge.
[265 Or.App. 105] In this case we consider whether defendant can be prosecuted after a jail official and a detective have opened mail to or from his attorney. Defendant appeals a judgment of conviction on four counts of first-degree sodomy, ORS 163.405, assigning error to the denial of his motion to dismiss the indictment with prejudice. Defendant moved to dismiss after learning that a detective had inadvertently read part of a letter that defendant had sent to his attorney and finding that other letters to or from his attorney had been opened. Defendant argued below that the interference with confidential communications violated his right to counsel under the state and federal constitutions. The court denied the motion on the grounds that the intrusions produced no tainted evidence and that the prosecution itself received no privileged information. As a precaution, the court limited the scope of the detective's testimony at trial. That testimonial limitation is not challenged.
We review a motion to dismiss for errors of law. See State v. Penrod, 133 Or.App. 454, 459-60, 892 P.2d 729 (1995) (applying that standard to an officer's intrusion into attorney-client communications); see also State v. Loza, 244 Or.App. 71, 76, 260 P.3d 555 (2011) (motion to dismiss). We defer to the trial court's findings that are supported by evidence in the record, and, if there are no express findings of fact with respect to disputed factual issues, we presume that the facts were decided in a manner consistent with the trial court's decision. State v. Potter, 236 Or.App. 74, 82, 234 P.3d 1073 (2010). We reject defendant's arguments that prejudice must be presumed or that prejudice was shown under these circumstances, and, to the extent that the state intruded into defendant's communications here, we conclude the trial court did not err in denying dismissal. We affirm.
The relevant facts are undisputed, even if not fully explained. The events began when defendant's eight-year-old step-daughter, K, disclosed on April 5, 2010, that defendant had engaged in sexual conduct with her. K's mother spoke with Gresham Police Detective Hickey. Defendant was arrested on April 20, and indicted on four counts of first-degree sodomy. Defendant was held in jail while he [265 Or.App. 106] awaited trial. The jail's Inmate
Manual sought to protect the confidentiality of certain mail by permitting the inmate to write the words " Legal Mail" on the envelopes of outgoing mail. Otherwise, all other mail " may be read, inspected, and copied." Incoming mail, which is " clearly marked" from an attorney or a law firm, may be opened and inspected for contraband in the inmate's presence. The manual lists forbidden contraband items, ranging from personal checks, stamps, or tape to drugs, escape plans, or communications " restrained" by the court.
Hickey suspected that defendant was sending letters through his grandfather to influence K's mother, a potential witness. Hickey filed a " Request for Inmate Mail Monitoring" with Multnomah County Corrections Deputy Watts, who coordinated the jail's mail-monitoring program. Per the request, jail staff began opening defendant's mail and scanning its contents into the jail's computer system. In early July, Hickey received the first response from Watts. It was an e-mail with 30 to 50 attachments, consisting of defendant's mail from June 1 to July 1. Each attachment was a scan of an envelope or a single page of a letter. In early August, Hickey received a second e-mail from Watts containing another batch of defendant's mail. He opened the attachments in no particular order. While reading one, Hickey became curious " who [defendant] was telling this particular piece of information to." Hickey opened the preceding page to determine the letter's recipient and discovered that the letter was intended for defendant's attorney Barnett. The letter's envelope had not been marked as " Legal Mail," and it did not address the recipient as an attorney.
Hickey immediately contacted the prosecutor, Deputy District Attorney Casalino, to explain the situation. The prosecutor instructed Hickey not to communicate any contents of the letter to him and to seal it and await further instructions. Hickey printed the letter, sealed it in an envelope, and mailed it to defense counsel's office. He deleted the [265 Or.App. 107] files from his computer and the e-mail that contained the attachments. The prosecutor e-mailed Barnett to explain the circumstances. Barnett told defendant about the situation but said that it was probably a mistake and not to worry about it. A third batch of defendant's letters was sent to Hickey without incident. The monitoring request expired on August 27, and the last piece of mail Hickey received was dated August 26.
Some time later, Barnett examined two or three envelopes he had received earlier from defendant and saw they had been opened and taped closed before he had received them. Defendant also discovered that a letter, postmarked July 27 and sent to him from his previous attorney, had been opened and resealed. The envelope had a law office as a return address. Another letter, which defendant had mailed to Barnett with a bad address and a postmark of September 15, was returned to defendant at the jail's mail call. It was marked " Return to Sender" and had been opened outside of defendant's presence. A jail deputy verified that the mail had been opened, and it was addressed on the outside as " Legal Mail."  Defendant
found that another letter, postmarked November 3, from Barnett to him, had been opened outside of his presence. On the outside of the envelope was written " Opened in Error K Parker." In sum, one unmarked letter, a portion of which Hickey inadvertently read, was opened, and five or six envelopes with the inscription " Legal Mail" were opened and resealed.
[265 Or.App. 108] Defendant filed a motion to dismiss the indictment with prejudice based on the intrusions into his correspondence with his attorneys. In his affidavit, he stated, " I am now afraid to correspond with my attorney because I believe that the attorney[-]client privilege has been intruded upon by the State, and that I am now at an obvious disadvantage in my defense." At a hearing on his motion on November 8, defendant testified that all of the letters contained trial strategy, lists of witnesses, and potential weaknesses with the state's investigation.
Hickey explained that the envelope for the letter, which he had begun to read, was not marked as " Legal Mail." He testified that he did not change his investigation or act on the information in the letter. By the time he saw the letter in August 2010, he had already completed the interviews in the case. He had interviewed defendant, the victim's mother, and three other witnesses. That investigation culminated in the arrest of defendant in April 2010, about four months before he saw the letter. Hickey reported that he did not share the letter's contents with the prosecutor or any other law enforcement officers. Hickey added that he had not seen any of the other attorney-client correspondence that had apparently been opened and resealed. Deputy Watts described the jail's mail-monitoring program and ...