and submitted February 8, 2016
County Circuit Court 120532227; Cheryl A. Albrecht, Judge.
Kenneth A. Kreuscher argued the cause and filed the briefs
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
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
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.
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.
for murder reversed and remanded; otherwise affirmed.
Or.App. 265] ARMSTRONG, P. J.
appeals a judgment of conviction, entered after a combined
trial with codefendants Allen and Lomax, for one count of
murder, ORS 163.115. 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.
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
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.
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.
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
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.
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 ...