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State v. Wendt

Court of Appeals of Oregon

December 31, 2014

STATE OF OREGON, Plaintiff-Appellant,
LEON ERWIN WENDT, Defendant-Respondent

Argued and Submitted July 10, 2014.

Page 894

09122393. Linn County Circuit Court. James C. Egan, Judge.

Susan G. Howe, Senior Assistant Attorney General, argued the cause for appellant. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Andy Simrin argued the cause for respondent. With him on the brief were Andy Simrin PC, Brian D. Cox, and Cox & Associates LLC.

Before Sercombe, Presiding Judge, and Haselton, Chief Judge, and Duncan, Judge.


Page 895

[268 Or.App. 87] SERCOMBE, P. J.

In this criminal case, defendant moved to dismiss charges against him for first-degree manslaughter, third-degree assault, and driving under the influence of intoxicants (DUII), arguing that the state had violated his right to a speedy trial under former ORS 135.747 (2011), repealed by Or Laws 2013, ch 431, § 1,[1] and the state and federal constitutions. The trial court granted defendant's motion. With respect to the DUII charge, the trial court concluded that defendant was " not brought to trial within a reasonable period of time," in violation of former ORS 135.747. Because the statute of limitations on the DUII charge had run, the trial court dismissed that charge with prejudice.[2] As to the charges for first-degree manslaughter and third-degree assault, on which the statutes of limitations had not run, the trial court concluded that the state had not administered " justice *** without delay" as required by Article I, section 10, of the Oregon Constitution, and that defendant had been denied the speedy trial guaranteed to him by the Sixth Amendment to the United States Constitution.[3] Accordingly, the trial court dismissed those charges with prejudice. The state appeals, arguing that the trial court [268 Or.App. 88] erred in apportioning the delay attributable to the state and assessing the reasonableness of that delay under former ORS 135.747 and in determining that defendant had established the prejudice required to prevail on his constitutional speedy trial claims. As explained below, we agree with the state and, accordingly, reverse and remand.

We are bound by the trial court's findings of historical fact when evidence in the record supports them, and we review the trial court's legal conclusions for legal error. See State v. Johnson, 342 Or. 596, 608, 616,

Page 896

157 P.3d 198 (2007) (explaining, in case involving statutory and constitutional speedy trial claims, that the " trial court's findings of fact concerning the length and reasons for the delay, as well as the type, level, and cause of any anxiety that [the] defendant suffered, are binding if supported by evidence" ). We set forth the facts, which are largely procedural, in accordance with that standard.

The state filed an indictment on December 17, 2009, charging defendant with one count of first-degree manslaughter, two counts of third-degree assault, and one count of DUII. The charges stemmed from an incident in the early morning of October 31, 2009. While defendant was driving home after watching a band perform at a bar, the car he was driving collided with another car at an intersection in Lebanon, Oregon, killing a passenger in defendant's vehicle, Spinney, and injuring both passengers in the other vehicle. Defendant was arraigned on December 19, 2009. He posted bail and remained out of custody while his case was pending.

The trial court held a pretrial conference on February 8, 2010, when defendant appeared with counsel for the first time. The court set another pretrial conference for March 8, 2010. That conference, along with conferences set in April, May, and June, were continued at defendant's request.

On the day of the next scheduled pretrial conference, July 12, 2010, defendant filed nine separate pretrial motions.[4] The court scheduled an omnibus hearing for [268 Or.App. 89] September 8, 2010, but that hearing was continued at the state's request, to October 14, 2010. In the interim, defendant filed a tenth pretrial motion, seeking to exclude evidence of defendant's use of marijuana.

At the October 14, 2010, hearing, the court heard evidence on defendant's motions, including testimony from defendant. The hearing could not be completed that day, however, so the court set December 9, 2010, as a second hearing day. The hearing was later rescheduled to January 25, 2011.[5] Defendant then requested that that hearing be rescheduled to February 18, 2011, because defense counsel had a conflict.

On February 18, 2011, the trial court heard testimony from three witnesses: an Oregon State Police forensic scientist, a forensic consultant, and a sheriff's deputy. By the close of the hearing, the trial court had ruled on all of defendant's motions but three, which the court took under advisement.

On May 26, 2011, the court issued an 18-page letter opinion, denying defendant's motion to suppress evidence of the hospital's analysis of his blood and urine, denying the [268 Or.App. 90] motion to exclude evidence of the retrograde extrapolation of his blood alcohol content, and granting the motion to exclude evidence of his marijuana use. The parties appeared in court on June 6, 2011. Although

Page 897

court staff had identified several dates between October and December that were available for a week-long trial, the parties selected December 12, 2011, as the date that worked for their witnesses.

The trial did not go forward on that date, however, because of a discovery issue relating to one of the state's trial witnesses, Goad. Goad had seen defendant and Spinney at the bar on October 30, 2009, where they were all watching a band perform. A police officer interviewed Goad on or about November 14, 2009. Goad, who had been watching his wife sing in the band, recalled seeing defendant and Spinney in the bar and recounted what he remembered of defendant's conduct. He also mentioned that he was focused on videotaping the band, using a tripod-mounted camera pointed toward the stage. Goad had not watched the video when interviewed by police and told police that he would watch the video and contact law enforcement if it showed defendant. Goad never communicated with law enforcement about the video, and the prosecutor prepared the state's case without it.

A few days before the December 12 trial date, however, Goad contacted the prosecutor. He informed her that he had recently watched the video footage, which lasted well over three hours, and discovered that it captured a conversation between defendant and Spinney shortly before they left the bar. In that conversation, as the prosecutor described it to the trial court, defendant and Spinney discussed whether, given their ...

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