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State v. Ball

Supreme Court of Oregon

May 2, 2018

STATE OF OREGON, Plaintiff,
v.
ZACHARY BALL, Defendant. D . P., Appellant,
v.
STATE OF OREGON and Zachary Ball, Respondents.

          Submitted April 11, 2018

         On interlocutory appeal pursuant to ORS 147.537, CC 17CR32482. [*]

          Yazmin Wadia, Oregon Crime Victims Law Center, Portland, fled the notice of appeal and memorandum of law for Appellant. Also on the notice of appeal and memorandum of law was Rosemary Brewer, Oregon Crime Victims Law C e nt er.

          Greg Rios, Assistant Attorney General, Salem, fled the response for Respondent State of Oregon. Also on the response were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Eric Johansen, Deputy Public Defender, Offce of Public Defense Services, Salem, fled the response for Respondent Zachary Ball. Also on the response was Ernest G. Lannet, Chief Defender.

          Before Balmer, Chief Justice, and Kistler, Walters, Nakamoto, Duncan, and Nelson Justices. [**]

         The order of the circuit court is reversed, defendant's sentence is vacated, and the case is remanded to the circuit court for resentencing.

         Case Summary: Appellant on direct appeal sought review of the trial court's order denying appellant's claim the trial court violated her right to be heard, under Article I, section 42(1)(a), of the Oregon Constitution, when it interrupted her victim impact statement and when it later terminated the statement without warning or explanation.

         Held: (1) The trial court's interruptions of appellant's statement, which were for the permissible purpose of having appellant focus on the charged crimes and her own experiences with the defendant, did not violate appellant's right to be heard; (2) the trial court's termination of appellant's statement, when appellant was discussing a relevant topic that was not outside the limits imposed by the trial court, did violate appellant's right to be heard.

         The order of the circuit court is reversed, defendant's sentence is vacated, and the case is remanded to the circuit court for resentencing.

          DUNCAN, J.

         The Oregon Constitution provides that the victim of a crime has the right "to be heard at * * * sentencing." Or Const, Art I, § 42(1)(a). Appellant, who is a crime victim, filed a claim in the trial court, pursuant to ORS 147.515, alleging that the trial court violated her right to be heard when it sentenced the defendant who had committed crimes against her. Specifically, appellant alleged that the trial court violated her right to be heard when it interrupted her victim impact statement and when it later terminated the statement without warning or explanation. The trial court denied the claim, and appellant brought this appeal, pursuant to ORS 147.535.

         This case requires us to determine the scope of a crime victim's constitutional right to be heard during a sentencing hearing. As explained below, we hold that a trial court has the authority and responsibility to conduct a sentencing hearing in an orderly and expeditious manner and may exclude certain statements by victims, including those that are irrelevant, unfairly prejudicial, or cumulative. In addition, a trial court may limit a victim impact statement if the victim disregards the trial court's appropriate instructions regarding the content or length of the statement. We further hold that, in this case, the trial court's interruptions of appellant's statement, which were for the permissible purpose of having appellant focus on the charged crimes and her own experiences with the defendant, did not violate appellant's right to be heard. However, the trial court's termination of appellant's statement, when appellant was discussing a relevant topic that was not outside the limits imposed by the trial court, did violate appellant's right to be heard. Therefore, we reverse the trial court's decision denying appellant's claim, vacate defendant's sentence, and remand the case to the trial court for a new sentencing hearing.

         BACKGROUND

         In April 2017, the defendant in the underlying criminal case (hereafter, defendant) was charged by indictment with six Class C felonies: two counts of assault in the fourth degree (ORS 136.160(3)), two counts of coercion (ORS 163.275), one court of strangulation (ORS 163.187(4)), and one count of attempted assault in the second degree (ORS 161.405(2)(c)). Each count alleged that the charged crime constituted domestic violence. ORS 135.230(4).

         In December 2017, the trial court facilitated settlement negotiations between the prosecutor and defendant, who was represented by counsel. Although appellant did not participate in those negotiations, she sat in the hallway outside the room where the negotiations occurred, and the prosecutor consulted with her before ultimately agreeing with defendant to terms of a plea and sentencing. That day, defendant pleaded guilty to one count of assault in the fourth degree, one count of coercion, and one count of attempted assault in the second degree, each of which constituted domestic violence. The trial court accepted that plea, dismissed the remaining counts, and scheduled the sentencing hearing for a later date.

         That sentencing hearing took place in January 2018. Appellant attended the hearing, and the trial court invited her to read her prepared victim impact statement. Appellant began by describing her own difficult family circumstances growing up. She then described how, as her relationship progressed with defendant, he became increasingly jealous and possessive. According to appellant, defendant attempted to isolate her from friends and physically intimidate her. Appellant also stated that defendant previously had raped her on two occasions.

         When appellant began describing the circumstances of one of those uncharged crimes the trial court interrupted, stating:

"THE COURT: Ma'am, please don't tell me the details of that.
"[APPELLANT]: Why?
"THE COURT: I don't want to hear this. Continue with your message.
"[APPELLANT]: This is a part of my message, so I will continue to read. It's not very long.
"THE COURT: I don't want to hear the details of your-
" [APPELLANT]: I'm not going to go into any details."

         Appellant continued reading her statement. She described other acts of sexual coercion and physical abuse and how, after those incidents, defendant would make her feel responsible for them. She also stated that defendant's misconduct stems not from his problems with alcohol but from his personal values and attraction to "alt-right racist ideas."

         Appellant then described responses she had received from third parties on social media after she posted photographs of the injuries defendant caused her. After appellant described six of the online comments, including comments alleging prior instances of misconduct by defendant, defense counsel objected, and the trial court instructed appellant not to repeat what she had heard from others:

"[DEFENSE COUNSEL]: Your Honor, I believe this has gone beyond [appellant's] right to make a statement. This is other people. We ...

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