May 13, 2015
F. C. L., Petitioner,
Artemio Castillo AGUSTIN, aka Artemio Castillo-Agustin, Respondent. STATE OF OREGON, Plaintiff-Respondent,
ARTEMIO CASTILLO AGUSTIN, aka Artemio Castillo-Agustin, Defendant-Appellant
Submitted March 16, 2015.
C130814RO. Washington County Circuit Court. Donald R. Letourneau, Judge.
Peter Gartlan, Chief Defender, and Elizabeth Daily, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.
[271 Or.App. 151] LAGESEN, J.
In this appeal from a judgment of punitive contempt for violation of a Family Abuse Prevention Act (FAPA) restraining order, we are asked to decide whether the trial court's remarks to defendant about the risks of testifying were so impermissibly coercive as to violate defendant's right to testify under Article I, section 11, of the Oregon Constitution and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. We conclude that the trial court's advice--which would have communicated to a reasonable person in defendant's position that the trial court would sentence defendant more harshly if defendant elected to testify--crossed the line from permissible warnings to [271 Or.App. 152] impermissible coercion, violating defendant's right under the Fourteenth Amendment. Accordingly, we reverse.
L, defendant's longtime domestic partner and the mother of his children, obtained a FAPA restraining order against defendant. The restraining order awarded temporary custody of the couple's four children to L, but provided defendant with parenting time three days a week, allowing defendant to go to the curb at L's residence on those days to pick up and return the children. Otherwise, the order prohibited defendant from, among other things, " intimidating, molesting, interfering with or menacing" L and the couple's children (or attempting to do so); being within 100 yards of L's residence or workplace; " knowingly be[ing] or stay[ing] within * * * 100 yards" of L; and " [c]ontacting, or attempting to contact, [L] by telephone, including cell phone or text messaging directly or through third parties." At the top of the
order, a box entitled " NOTICE TO RESPONDENT" explained that the recipient of the order " must obey all of the provisions of this Restraining Order, even if the Petitioner contacts you or gives you permission to contact him/her."
Washington County Sheriff's Corporal Clifford Lascink served the order on defendant. Although defendant's primary language is Spanish, and defendant cannot read English, the order was written in English. Lascink explained, in English, " certain parts" of the order to defendant, " including that he couldn't be within 100 yards of the victim" and the portions of the order discussing parenting time. Lascink also discussed " the work aspect of it, and the no contact by third parties and the cell phone * * * [a]nd also not being allowed by the residence." Lascink was aware that defendant could not read the restraining order and told defendant " that basically he could go to the courthouse." Lascink also told defendant that it was defendant's responsibility to know the contents of the order. Defendant told Lascink that he had friends who could translate it for him.
A few months after Lascink served the order on defendant, L was stopped for a traffic violation. L called defendant and " told him I got pulled over and if he could, you know, just swing by." Upon receiving L's phone call, [271 Or.App. 153] defendant drove to L's location to provide her with assistance, but was unable to assist her " [b]ecause as soon as he got out of the car, the officers asked him for his name, and that's how that went about."
Based on that set of events, the state filed a " Complaint for Imposition of Punitive Sanctions Contempt Violation of Restraining Order" against defendant. The complaint alleged two counts of punitive contempt under ORS 33.015 and ORS 33.065:
" Count 1
" The defendant, on or about June 7, 2013, in Washington County, Oregon, did unlawfully and willfully disobey an order of the Washington County Circuit Court, by entering or staying within 100 yards of [L].
" Count 2
" The defendant, on or about June 7, 2013, in Washington County, Oregon did unlawfully and willfully disobey an order of the Washington County Circuit Court, by contacting [L] by telephone."
The state sought the imposition of punitive sanctions in connection with the alleged violations, including a term of incarceration not to exceed six months, a fine, probation, and community service.
At trial, the parties stipulated that, on June 7, 2013, [L] " was stopped for a traffic violation, called the defendant, the defendant showed up and they had personal contact at that point." The prosecutor explained that the primary issue was " about the content of the restraining order and knowing what was in [it]" and " whether [defendant] understood that he was not allowed to have [the] contact" that occurred on that date. The state then called Lascink and L to testify in support of its case. Both Lascink and L acknowledged that defendant could not read English. Lascink testified that he " didn't remember having any problems understanding" defendant's spoken English, although L stated that she and defendant communicated primarily in Spanish, and that she spoke " Spanglish" to defendant. Lascink described the conversation that he had with defendant at the time Lascink served the order. L described calling defendant on the date [271 Or.App. 154] that she was stopped for a traffic violation and seeing defendant come to the scene. L further testified that, at the time that L made the call to defendant, defendant knew about the restraining order, that the two " were not supposed to be together," and that the two were not supposed to be talking to each other on the phone.
After the state rested, defendant's lawyer called defendant to the stand. Before defendant could take the stand, the following colloquy occurred:
" THE COURT: Let's see. Having proven several violations, his girlfriend, who's very credible, has no reason to lie, has said he understood the restraining order. The officer said he understood the restraining order. And he can get on the stand and lie, and we might have a different
result than if he doesn't get on the stand and lie.
" [DEFENSE COUNSEL]: I don't anticipate his lying, Your Honor.
" THE COURT: That's fine.
" [DEFENSE COUNSEL]: I'm just taking,--
" THE COURT: I should put it this way. If a middle class person with 35 years of legal experience thinks he's lying, you may have a different result than if he exercises his right to remain silent. And that's true in most cases in America, on most dates. Now he has an ICE hold, so I'm going to hold him."
Following that exchange, defendant's lawyer conferred with defendant and then informed the court that the defense would rest. When asked if she wished to make an argument, defendant's lawyer responded, " Your Honor, you heard the facts." The court immediately found defendant " in contempt with each count" and sanctioned defendant with one day of jail on the first count. The court suspended imposition of sanction on the second count and placed defendant on bench probation for one year.
On appeal, defendant argues that the colloquy delivered by the trial court violated defendant's rights under Article I, section 11, of the Oregon Constitution, and the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. In particular, defendant asserts that [271 Or.App. 155] the trial court's remarks regarding the likely outcome if defendant had testified effectively drove the defendant from the stand, depriving him of the right to testify. Defendant acknowledges that he did not object to the trial court's colloquy or otherwise preserve the assigned error, but asserts that we should review the error as " plain error" or, in the alternative, excuse defendant from the requirements of preservation in this case. In response, the state argues that any error by the trial court is not " plain" and that, even if it is, we should not exercise our discretion to correct it.
Even assuming that defendant was required to preserve the assigned error, we agree with him that the trial court's remarks amounted to plain legal error in the light of the Supreme Court's holding in Webb v. Texas, 409 U.S. 95, 98, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972), that the Fourteenth Amendment prohibits a trial court from administering overly coercive warnings regarding the risks of testifying falsely. State v. Brown, 310 Or. 347, 355-56, 800 P.2d 259 (1990) (setting out the requirements for error apparent on the record). The compulsory process clause of the Sixth Amendment secures to a criminal defendant the right to call himself or herself to the witness stand to testify in his or her own defense: " Logically included in the accused's right to call witnesses whose testimony is material and favorable to his defense * * * is a right to testify himself, should he decide [271 Or.App. 156] it is in his favor to do so." Rock v. Arkansas, 483 U.S. 44, 52, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (internal citation and quotation marks omitted). As the Court has
observed, " the most important witness for the defense in many criminal cases is the defendant himself." Id.
Since at least 1972, which is when the Supreme Court decided Webb, it has been clear that the Fourteenth Amendment's guarantee of due process precludes a trial court from infringing on a criminal defendant's Sixth Amendment right to present defense witnesses by delivering admonitions regarding the risks of testifying falsely in " unnecessarily strong terms." Webb, 409 U.S. at 98. Due [271 Or.App. 157] process bars a trial court from delivering such warnings because they risk " exert[ing] such duress on the witness'[s] mind so as to preclude him from making a free and voluntary choice whether or not to testify." Id. And, when threatening warnings have the effect of driving a material witness for the defense from the stand, and the defendant is convicted, reversal is required " to repair the infringement of the [defendant's] due process rights under the Fourteenth Amendment." Id.  Although Webb addressed admonitions to a defense witness who was not the defendant
himself, it appears to us that all courts to have considered the question have concluded that its reasoning plainly precludes a trial court intimidating a defendant himself or herself from [271 Or.App. 158] testifying, and the reasoning in Webb persuades us that that is the only possible conclusion to draw.
The line separating permissible cautionary advice about the dangers of perjury from impermissible coercion is not a clear one. Nonetheless, it is plain to us that the trial court's remarks here crossed that line. Although we appreciate that the trial court's remarks may have been motivated by a concern for defendant, and the desire to prevent defendant from making what the trial court perceived to be a mistake, the remarks went far beyond what was needed or appropriate to allow defendant to make an informed choice about whether to testify. Rather, the trial court's statement that it had already found the state's witnesses to be credible in their testimony about defendant's understanding of the restraining order would suggest to a person in defendant's position that the court had abandoned its role as a neutral factfinder and had already decided that if defendant testified, he would lie. See Webb, 409 U.S. at 97 (trial court's admonitions violated due process when they communicated to defense witness that " the [court] expected [the witness] to lie" ); see also Arthur v. United States, 986 A.2d 398, 411 (DC 2009) (in cautioning a defendant, court must be careful not to create appearance of departing from role as neutral magistrate).
The court's subsequent statements would suggest further to a person in defendant's position that it would be better for defendant not to testify, in the light of the fact that the court had already determined that the state's witnesses were credible. The fact that the court reiterated that point after defendant's lawyer affirmatively informed the court that she did not expect defendant to lie would only [271 Or.App. 159] serve to emphasize to defendant that the court had already made up its mind that defendant's testimony would not be truthful, and that defendant faced a significant risk of being penalized if he elected to testify. The court's reference to the immigration hold, and the court's statement that it would hold defendant, would also tend to indicate to someone in defendant's position that testifying would only make matters worse for defendant, regardless of whether defendant testified truthfully.
Finally, the trial court's remark about the risk to defendant of having " a middle class person with 35 years of legal experience think[ ] he's lying" would also have conveyed to someone in defendant's position the message that the particular trial judge presiding over his case had already determined that defendant would lie, especially if the judge appeared to be a " middle class person with 35 years of legal experience" --a message that would certainly drive someone in defendant's position from the stand. The court's reference to the class status of the decision
maker--something that is irrelevant both to the determination of whether or not a witness is lying and to the determination of the appropriate sanctions for lying--only enhanced the coercive tone of the remarks under the circumstances present here.
We further conclude that the trial court's erroneous admonitions were not harmless beyond a reasonable doubt, and that the error therefore amounts to reversible error under Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). State v. Cook, 340 Or. 530, 135 P.3d 260 (2006) ( Chapman standard governs determination whether federal constitutional error is harmless). It is clear from the record that the trial court's colloquy caused defendant to elect not to testify, even though defendant had planned to testify. It is also apparent from the transcript [271 Or.App. 160] that defendant's defense--which turned on his understanding of whether the conduct forming the basis of the two contempt counts violated the restraining order--is one in which defendant's own testimony would be highly probative. And we are not persuaded that there is no possibility that defendant could have testified truthfully about his understanding of the contents of the order in a way that would undercut the state's case. It was undisputed that defendant could not read the restraining order and had to rely on others to translate it for him; it is not implausible to think that defendant may have come to an understanding of the order--perhaps even a reasonable one under the circumstances--that would cause him to believe that he was permitted to receive phone calls from L or to have contact with her when police were present, as they would be at a traffic stop. But the trial court's admonitions " effectively drove [defendant] off the stand," precluding him from testifying to his own understanding of the contents of the restraining order and, consequently, precluding him from presenting a defense.
We have determined that the trial court's colloquy plainly violated the Fourteenth Amendment in view of Webb, and that that constitutional error was not harmless beyond a reasonable doubt under Chapman. Considering the gravity of the error, we exercise our discretion to correct it.
Reversed and remanded.