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State v. Riley

Court of Appeals of Oregon

October 18, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
XABIAN ROBERT RILEY, aka Xabien Robert Riley, Defendant-Appellant.

          Argued and submitted February 8, 2016

         Multnomah County Circuit Court 120532227; Cheryl A. Albrecht, Judge.

          Kenneth A. Kreuscher argued the cause and filed the briefs for appellant.

          Peenesh H. Shah, 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 Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for one count of murder, ORS 163.115. He assigns error to the trial court's denial of his motion to suppress, arguing that the police unlawfully seized him, in violation of Article I, section 9, of the Oregon Constitution, and then exploited that illegality to obtain evidence. He also assigns error to the trial court's denial of his request for a jury concurrence instruction with regard to principal or accomplice liability.

         Held:

         The trial court properly denied defendant's motion to suppress on the basis that the discovery of the challenged evidence was sufficiently attenuated from any police illegality. However, the trial court erred in denying the request for a jury concurrence instruction.

         Conviction for murder reversed and remanded; otherwise affirmed.

         [288 Or.App. 265] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction, entered after a combined trial with codefendants Allen and Lomax, for one count of murder, ORS 163.115.[1] See State v. Allen, 288 Or.App. 244, ___ P.3d ___ (2017); State v. Lomax. 288 Or.App. 253, ___ P.3d ___ (2017). In his first assignment of error, defendant challenges the trial court's denial of his motion to suppress evidence, arguing that the police unlawfully seized him, in violation of Article I, section 9, of the Oregon Constitution, and then exploited that illegality to obtain the evidence that defendant sought to suppress. In his fifth assignment of error, defendant argues that the trial court erred in denying his request for a jury concurrence instruction with regard to principal or accomplice liability. For the reasons explained below, we conclude that the trial court did not err in denying defendant's suppression motion because the discovery of the challenged evidence was sufficiently attenuated from any police illegality. However, we conclude that the trial court erred in not giving a jury concurrence instruction, in violation of Article I, section 11, of the Oregon Constitution. Accordingly, we reverse and remand defendant's conviction for murder.[2]

         We begin with defendant's challenge to the trial court's denial of his motion to suppress, which we review for legal error. State v. Maciel-Figueroa, 361 Or. 163, 165-66, 389 P.3d 1121 (2017). In doing so, we are bound by the trial court's findings of fact that are supported by evidence in the record; if the trial court did not make a finding on a particular fact and there is evidence from which differing findings about the fact could be made, we presume that the court found the fact in a manner consistent with its ultimate conclusion. Id. at 166. The following facts are taken [288 Or.App. 266] from the suppression hearing and the court's order denying defendant's motion to suppress.

         At 11:38 p.m. on May 9, 2012, police responded to a 9-1-1 call reporting a shooting in Northeast Portland. The victim, Henry, was shot and killed on the front step of his home. Detectives Merrill and Kammerer reported to the scene and observed spent bullets, blood spatter, holes in the sides of the house, spent casings in the grass, and one "pristine" slug. Henry's domestic partner, Nettles, reported that, before Henry was shot, a darker-skinned male in his early twenties, wearing a white or gray cap and red clothing, had come to the door and said his name was Jordan.

         Portland Police Officers Elias and Wullbrandt were training a police dog in a parking lot a few blocks from the shooting when they heard gunfire. Wullbrandt called dispatch to report the shots at 11:39 p.m. and, two minutes later, he saw a Buick Regal pull into the parking lot with its lights off. There were three or four black men inside the vehicle.

         As the officers approached the car, they saw three black men standing next to the car. They shone their flashlights on the men to illuminate the area and to get the men's attention, but the men walked away, looking back at the officers before rounding a corner. The officers used their police dog to track the men to a nearby apartment. Wullbrandt called dispatch, and the officers returned to the Buick Regal, where they saw from outside the car a piece of mail addressed to Fair and a red article of clothing stuffed under the seat.

         The officers developed a suspicion that the men were involved in the shooting that they had just heard. Other officers arrived and set up a perimeter around the apartment, which belonged to Fair and Watson. At 12:19 a.m., officers positioned at the rear of the apartment saw a black male leave the apartment and look to his left and right. Around ten minutes later, reports were called in that someone had looked out a window of the apartment and that someone was changing clothes in the apartment. At 12:31 a.m., officers saw Watson open the door and take a few steps outside the apartment. The officers announced themselves as police and [288 Or.App. 267] commanded Watson to come out of the apartment. Watson immediately turned around and returned to the apartment.

         At 2:02 a.m., a woman named Jarrell called the police to report that she was Fair's mother and that she was "extremely concerned for her daughter's safety and her well being and [for] her granddaughter." According to Jarrell, Fair had called her to complain about some men who were inside her apartment and had refused to leave. Fair stated that the men may have done something "really bad, " and she told Jarrell that she wanted to leave the apartment and needed a ride so she could go to a relative's house. Jarrell told the police that "her daughter was inside the apartment with a baby, a female relative, and a man who was hiding ...


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