Submitted January 21, 2014
Multnomah County Circuit Court 110732860. Christopher J. Marshall, Judge.
Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Nakamoto, Judge, and DeVore, Judge.
[265 Or.App. 249] NAKAMOTO, J.
Defendant appeals a judgment of conviction for second-degree assault, ORS 163.175. Preliminarily, we reject defendant's second assignment of error to the admission of a printout of defendant's photograph when he was booked that contained a header with information, including the following item: " Projected Booking Release Date: ****." Defendant's argument under OEC 401 and OEC 403 rests on the contention that the printout " had no probative value." We reject that argument because defendant's photograph was relevant to his contentions that the victim struck him and that defendant was engaged in self-defense. We also reject, without discussion, defendant's third through fifth assignments of error challenging nonunanimous jury verdicts as unconstitutional. See State v. Cobb, 224 Or.App. 594, 198 P.3d 978 (2008), rev den, 346 Or. 364, 213 P.3d 578 (2009). We do, however, address defendant's first assignment of error to the trial court's denial of his motion for a continuance of his trial when a key witness failed to appear at trial despite having received a subpoena. Defendant sought the continuance so that he could attempt to procure the witness's testimony. We conclude that the trial court did not abuse its discretion and affirm.
Before we proceed with the procedural history of defendant's motion for a continuance, we briefly describe the altercation that gave rise to the charge, which took place between defendant and another man with whom he was acquainted, Kelly. Defendant and Kelly argued one day in front of a Portland transitional housing hotel where Kelly lived; after others intervened, managers at the hotel told defendant not to return. The next day, Kelly and others were standing in front of the hotel when defendant and his girlfriend, Hayes, who also lived in the hotel, approached. Defendant and Kelly exchanged words, and then a physical altercation occurred, which Hayes and other bystanders witnessed. Defendant was charged with intentionally and knowingly causing physical injury to Kelly by means of a dangerous weapon under ORS 163.175 (second-degree assault). Defendant asserted self-defense.
Although Hayes had cooperated with defense counsel in preparing for the trial, defense counsel learned that [265 Or.App. 250] there was an unrelated outstanding warrant issued for Hayes's arrest, and so she served Hayes with a subpoena. Nevertheless, Hayes did not appear on the morning of trial.
Before trial began, defense counsel moved for a continuance to try to procure Hayes's presence. The parties had an unrecorded conversation with the court in chambers, and, on the record, defense counsel reiterated that Hayes was " an eyewitness to this incident" ; that Hayes had given a statement to the defense investigator that was " favorable" to defendant; and that Hayes " had a warrant out for her arrest * * * since about two weeks ago," which might be the reason that Hayes had not appeared for the trial. Defense counsel also told the court that the week before trial, her investigator had
served Hayes with a subpoena to appear and was prepared to support the motion with additional information about the terms of that service if the court wished to hear his testimony. Finally, defense counsel explained that she had considered obtaining a material witness warrant, but, " because [Hayes] already had a warrant out for her arrest," she had decided that " there really wasn't anything to add by getting a material witness warrant."
The state objected on the ground that the case was " old" and informed the court that the state was ready to proceed. The case had been pending over five months at that point, and defendant had been in custody. Defendant did not dispute that the case was " old." Leading up to the trial date, defendant had obtained at least three and ...