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State v. Richen

Court of Appeals of Oregon

July 25, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
NICHOLAS WILLIAM RICHEN, Defendant-Appellant.

          Submitted January 23, 2018

          Multnomah County Circuit Court 15CR42434; A162065 Kathleen M. Dailey, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erin J. Snyder Severe, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for misdemeanor driving under the infuence of intoxicants and reckless driving, contending that the trial court abused its discretion by denying his motion for a continuance so that he could call two witnesses at trial and by ruling that he could not call those two witnesses at trial, even if they became available. Held: The Court of Appeals rejected without discussion defendant's contention that the trial court erred by denying the requested continuance. In regard to defendant's inability to call witnesses, the record created by defendant in the trial court is inadequate to demonstrate that the reason that those witnesses did not testify was the ostensible ruling by the trial court excluding them. Defendant did not demonstrate that the trial court's error, if any, is one that had a likelihood of affecting the jury's verdict, as required for reversal.

          [293 Or. 69] LAGESEN, P. J.

         Appealing a judgment of conviction for misdemeanor driving under the influence of intoxicants, ORS 813.010(4), and reckless driving, ORS 811.140, defendant contends that the trial court abused its discretion by denying his motion for a continuance so that he could call two witnesses at trial and also by ruling that defendant could not call those two witnesses at trial even if they became available. We reject without discussion defendant's contention that the trial court erred by denying the requested continuance. As for his claim regarding his inability to call witnesses, as we explain, the record created by defendant in the trial court is inadequate to demonstrate that the reason that those witnesses did not testify was the ostensible ruling by the trial court excluding them. Consequently, defendant has not demonstrated that the trial court's error, if any, is one that had a likelihood of affecting the jury's verdict, as required for reversal. State v. Davis, 336 Or. 19, 32, 77 P.3d 1111 (2003).

         To the extent that an error occurred in this case, it appears to be one of communication rather than law. The record reveals the following about the days leading up to and through defendant's criminal trial.

         Day 1 (Thursday): Defendant and the state reported to Multnomah County's Criminal Procedures Court (CPC) that they were ready for trial. CPC assigned them a trial date of the following Monday.

         Day 2 (Friday): Defendant requested a set over from CPC. Judge Bergstrom was the CPC judge at the time. Defense counsel told the court that, after reporting ready for trial the day before, his client alerted him to the identities of two witnesses who saw him the night before the incident leading to the charges[1] and "who could testify as to his demeanor and his level of sobriety." Counsel explained that his investigator had been trying to contact the witnesses to subpoena them for trial, but had been unable to do so. For that reason, defendant requested a set over, which the state did not oppose. Judge Bergstrom denied the motion, stating, "Well, he should have shared that with you five months ago. [293 Or. 70] So, it's going out to trial and you don't get to call them." Defense counsel responded, "Yes, your honor."

         Day 3 (Monday): The parties again reported to CPC to obtain a trial judge assignment. Judge Marshall, and not Judge Bergstrom, was the CPC judge that day. The deputy district attorney, who was not the same person who had been present for defendant's motion for a set over, told Judge Marshall that Judge Bergstrom had ordered defendant's witnesses "excluded." Defense counsel did not challenge the deputy district attorney's characterization of Judge Bergstrom's ruling. When Judge Marshall asked defense counsel how many witnesses he had, defense counsel responded, "Technically, it would have been two, though I only have one now." Judge Marshall assigned the trial to Judge Dailey.

         Once the parties reached Judge Dailey's courtroom, defense counsel asked Judge Dailey to rule that he could call his witnesses to testify if the state sought to preclude them from testifying that day:

"Your honor, it is my opinion that that issue was not before Judge Bergstrom at that time. Whether a witness gets excluded because of a discovery violation is something that is (a) put before the trial judge who's conducting the trial; and (b) has to be actually put before the judge. What was before Judge Bergstrom was simply a setover request. The state ...

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