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State v. Mays

Court of Appeals of Oregon

March 18, 2015

STATE OF OREGON, Plaintiff-Respondent,
IVERY LEE MAYS, JR., Defendant-Appellant

Argued and Submitted September 30, 2013.

Page 536

Multnomah County Circuit Court 100431422. Stephen K. Bushong, Judge.

Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Timothy A. Sylwester, 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 Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.[*]


Page 537

[269 Or.App. 601] HASELTON, C. J.

Defendant appeals a judgment of conviction for delivery of marijuana for consideration, ORS 475.860 (2009) (Count 1), and possession of marijuana, ORS 475.864 (2009) (Count 2).[1] Of the nine assignments of error that he raises on appeal, we write to address only defendant's contentions that the trial court erred in denying his motion to dismiss on double jeopardy grounds under Article I, section 12, of the Oregon Constitution and the Fifth Amendment to the United States Constitution and on the ground that prosecutorial misconduct violated his constitutional right to compulsory process under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. We reject defendant's remaining contentions without written discussion.[2] As amplified below, we conclude that the trial court did not err in denying defendant's motion to dismiss. Accordingly, we affirm.


We review a trial court's ruling on a motion to dismiss for errors of law, State v. Garner, 234 Or.App. 486, 491, 228 P.3d 710,

Page 538

rev den, 348 Or. 621, 237 P.3d 221 (2010), and are bound by the trial court's findings of historical fact that are supported by evidence in the record, State v. Ehly, 317 Or. 66, 74-75, 854 P.2d 421 (1993). If the trial court did not make express findings, we resolve disputed facts consistently with the trial [269 Or.App. 602] court's ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).


Defendant's first trial for possession and delivery of marijuana ended in a mistrial. He was then retried and convicted of both offenses. The gravamen of defendant's post-mistrial motion to dismiss is his contention that prosecutorial misconduct deprived him of the favorable testimony of one of his witnesses, Oren Maney. For that reason, we begin with a detailed description of the prosecution's pretrial interactions with Maney before turning to a description of the prosecutor's conduct during defendant's first trial and the events that occurred following the mistrial.

On April 8, 2010, Portland police officers executed a warrant authorizing a search of defendant's residence. During that search, the officers found " [m]arijuana; drug packaging materials; a digital weighing scale; drug ledger; U.S. currency, money; and firearms." Some of that evidence, including the marijuana, was found in a locked room in defendant's basement. Defendant was indicted for possession and delivery of marijuana. ORS 475.864 (possession); ORS 475.860 (delivery).[3]

A. Pretrial Prosecutorial Conduct

Before defendant's first trial was scheduled to begin, Multnomah County Deputy District Attorney Allison [269 Or.App. 603] Williams, who had been assigned to prosecute defendant's case, provided defendant's witness list to Portland Police Officer Travis Law, the lead investigating officer who had executed the affidavit in support of the warrant to search defendant's residence. Law was also a member of the Metro Gang Task Force and, for that reason, was " cross-designated as [a] federal agent[.]"

Oren Maney's name appeared on that witness list. According to Law, Maney did not " appear to have any connection with * * * defendant." Law also learned that Maney had a " marijuana card" through the Oregon Medical Marijuana Program.

After consulting with Williams, Law met with Maney. Law showed his federal identification to Maney, and federal Special Agent Burke, with whom Law was conducting surveillance in an unrelated matter, accompanied Law to the meeting.

According to Law, Maney made the following statements: (1) Maney had met defendant through his mother, Kimberly Maney (Kimberly). (2) Maney had lived with defendant for a time and had a key to the locked room in defendant's basement. (3) The marijuana found in the locked room (as well as other items found during the search of defendant's residence) belonged to Maney and were left behind when he moved out. (4) Maney had a " medical marijuana card." [4]

Page 539

Because Maney's statement " seemed rehearsed," Law said, " Look, you know, I don't know how you became involved in this investigation, but, you know, you have to understand that if you intend on coming to court and perjuring yourself that you could potentially be arrested." (Internal quotation marks omitted.) In addition, Burke told Maney that it is a crime to lie to a federal agent. At that point, Maney became agitated, and Law asked him to leave.

After that meeting, defense investigator Frederick Gove met with Maney. Maney told Gove that Law and Burke had told him that he was lying and threatened [269 Or.App. 604] him by indicating that he would go to jail if he testified. Nevertheless, at that point, Gove believed that Maney would testify on defendant's behalf.

Also after Law's meeting with Maney, Williams contacted Maney's mother, Kimberly, a probation officer with the Multnomah County Juvenile Department. Kimberly told Williams that Maney was not involved in the case but planned on testifying.

Shortly thereafter, Williams and Gary Boek, an investigator with the district attorney's office, met with Kimberly at her office. During their conversation, Kimberly indicated that defendant--who was a juvenile counselor with the Clackamas County Juvenile Department--had contracted to work with her office as a group facilitator several years earlier but that she had not introduced defendant and Maney. She further indicated that Maney had been living with her before moving into his current residence. Finally, Kimberly stated that, before Williams had contacted her, she had had a conversation with Maney about his involvement in this case and that Maney had told her that he was not involved and that the marijuana was not his. According to Kimberly, " as a mother and also as a probation officer," she told Maney " not to get involved in something that he wasn't involved in." [5]

At some point, Williams discussed this case with her supervisor, Mark McDonnell, who, in turn, discussed it with others in the office, including the chief deputy. Williams testified that " the thing that was unusual about this case was that we had very strong evidence that we had a witness that was coming in that intended to perjure himself in trial." According to Williams, they " couldn't find a clear link between [Maney] and the defendant." She further noted that it had been observed that " the only link" that they could find between Maney and defendant was that defendant's current defense attorney, Barry Engle, had " represented both of them in a drug case."

[269 Or.App. 605] As a result of those discussions, Williams, accompanied by Boek (the investigator from the prosecutor's office), met with Maney at his residence. While standing outside the front door, Boek told Maney that they had met with his mother and " were there to hear what he had to say and understood that he may want * * * to change what he had initially said about whose marijuana it was." Maney indicated that he had already spoken with Law and Burke and that " they started intimidating him and threatening him and he didn't trust what the officers were telling him" but reiterated that he had lived with defendant for several months and that the marijuana was his. Williams told Maney that, if he came to court and lied, he could be arrested for a crime but that, if he told the truth, he could not be arrested.[6] When Boek asked Maney to explain why his fingerprints were not found on any of the items seized from the locked room and about inconsistencies between Maney's assertions and his mother's statements, Maney became " agitated" to the point that Williams described his behavior as " threatening" and " scary." Ultimately, Maney's girlfriend " put

Page 540

an arm" between Maney and Williams and Boek. As Boek and Williams were leaving, Boek told Maney that he " thought maybe [Maney's] marijuana was causing him to be a little delusional and he needed help[.]"

Defense investigator Gove contacted Maney again after his meeting with Williams and Boek. According to Gove, Maney indicated that he " was not going to participate in the case anymore" and had " been receiving threats from the district attorney" and felt that " there was a lot of harassment from the police and from the district attorney about him being a witness." Gove thought that Maney " was also quite concerned about his mother's job security at this point."

B. Prosecutorial Conduct During Defendant's First Trial

Against that historic backdrop and before his first trial began, defendant moved to dismiss the charges against [269 Or.App. 606] him based on the prosecution's interactions with Maney and his mother. Defendant contended that those interactions violated, inter alia, his constitutional rights to compulsory process and due process.[7] The trial court denied that pretrial motion, stating that, after hearing the evidence, it was " not convinced that the government conduct in this case is outrageous in violation of due process."

Following the trial court's denial of that motion and the court's resolution of a myriad of other pretrial motions, defendant's first trial began. Throughout trial, the court granted several defense motions and sustained a variety of defense objections and, on several occasions, ordered remedies in lieu of a mistrial. For purposes of our analysis, it is sufficient to describe three salient examples of Williams's conduct that precipitated a defense objection or motion.

First, Williams attempted to elicit testimony from Kimberly that Maney had intended to testify falsely:

" Is it your understanding that at one point your son planned to testify for the defense in this trial?
" MR. ENGLE: Objection. Just another form of hearsay.
" THE COURT: Overruled.
" [KIMBERLY]: Yes, it is my understanding.
" * * * *
" [MS. WILLIAMS]: Is it your understanding that this testimony would have been untrue?
" MR. ENGLE: Objection."

Following a colloquy outside the presence of the jury, the court sustained defendant's objection, stating that it would instruct the jury to disregard the question.

When the court asked counsel whether there was anything further that should be addressed outside the ...

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