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State v. Rodriguez

Court of Appeals of Oregon

December 18, 2019

STATE OF OREGON, Plaintiff-Respondent,
EDGAR RODRIGUEZ, Defendant-Appellant.

          Argued and submitted January 17, 2019

          Florence Municipal Court 1700033; Richard Brissenden, Judge.

          Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          E. Nani Apo, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Powers, Presiding Judge, and Egan, Chief Judge, and James, Judge.

         Case Summary:

         Defendant appeals from a conviction for contempt of court entered following his refusal to testify, following his invocation of his right against self-incrimination under Article I, section 12 of the Oregon Constitution, and the Fifth and Fourteenth Amendments to the United States Constitution, in a matter resulting from a traffic accident. Defendant argues that the trial court erred in concluding that he could be compelled to testify or be found in contempt for refusing to do so. In response, the state argues that defendant's blanket invocation was improper, amounting to a refusal to take the witness stand at all. Held: While a blanket invocation of self-incrimination is normally impermissible, here, because defendant's refusal to testify came after the trial court had ruled that defendant could not invoke his right against self-incrimination at all, the trial court-not defendant-short-circuited the question-by-question process that should have occurred. Accordingly, the trial court erred when it found defendant in contempt of court.

         [301 Or.App. 405] JAMES, J.

         Defendant appeals a conviction for contempt of court entered following his refusal to testify in the matter of City of Florence v. Jordan Howell, [1] despite an offer of immunity by the state. We conclude that the immunity offered in this case was insufficient to extinguish defendant's rights against compelled self-incrimination under Article I, section 12, of the Oregon Constitution. Accordingly, we reverse.

         The facts are undisputed by the parties. Following a traffic accident, the state charged defendant with refusing a breath test, ORS 813.095; operating an unsafe vehicle, ORS 815.020; driving under the influence of intoxicants, ORS 813.010; driving while suspended, ORS 811.182; failing to perform the duties of a driver, ORS 811.700; and initiating a false report, Florence City Code 6-1- 1-B. During the course of that prosecution, Jordan Howell, an associate of defendant's who was present during the accident, provided an affidavit in which he averred that he was the driver of the vehicle, not defendant, and that he had not observed defendant intoxicated.

         Defendant ultimately entered a plea of no contest to driving while suspended, initiating a false police report, and refusing a breath test. The remaining charges were dismissed pursuant to plea negotiations. Following defendant's conviction, the city charged Howell with false swearing and subpoenaed defendant to testify in Howell's prosecution- the Howell matter. On the morning of trial on January 17, 2017, defendant, now represented by counsel, indicated to the court that he anticipated the state's questioning would raise incrimination issues and that he would seek to invoke his constitutional rights against self-incrimination. It is apparent from the transcript that considerable discussions occurred between the parties and the trial court off the record. The transcript reflects the parties' efforts to put those matters "on the record" after the chambers conference.

         [301 Or.App. 406] Defendant, who at the time of the trial had pending charges both in the Florence municipal court and the Lane County Circuit Court, indicated that he believed his testimony could incriminate him in those pending matters. In addition, as defendant articulated, he believed his testimony was sought, in part, to build a conspiracy case for any role he might have played in Howell's false swearing charge:

"[DEFENSE COUNSEL]: As I stated in chambers, the entire reason we're here today is because the City doesn't believe the story that both Mr. Howell and [defendant] tell, and he's subjecting himself and-I understand that's not the only-you can't take a Fifth Amendment right only to protect yourself from perjury, but it's apparently clear that that is-he's being subjected to potentially conspiracy to commit perjury charge-a perjury charge and similar type of conspiracy charge here[.]"

         The court directly asked defendant to clarify whether the assertions of his counsel were accurate, that he would, in fact, invoke his rights against self-incrimination. Defendant responded that he planned to invoke. In response, the city indicated its intent in calling defendant:

"[PROSECUTOR]: Your Honor, this is a situation where the defendant-the defendant in this matter gave a false sworn statement. Our purpose of calling [defendant] is to basically have him testify as to what he told the officer in the case that involved him and the-setting the facts as to what had occurred on that day in question.
"Under the requirements, what we have the duty to do and also the ability to do is demonstrate through the testimony of the City witnesses, including [defendant], that he-he provided information to the officer which was not collaborated by the evidence that was gathered by the officer[.]
"[DEFENSE COUNSEL]: I'm under the impression that, based on our conversation in chambers, the City believes that they can question [defendant] about any of the events that happened that day, and I believe he has a right to invoke his Fifth Amendment right.
[301 Or.App. 407] "If he's simply going to question him about what he told the officer that day, I may want to have a conversation with my client before he takes the stand and we may want to stop. ***
"[PROSECUTOR]: Your Honor, that is not the intent of the City to limit itself to just what he said to the officer-
"[PROSECUTOR]: Well-and, Your Honor, the part of it-there's facts here. The fact[] is that this gentleman, [defendant], pled no contest to various charges that were faced out of this investigation that resulted in the affidavit coming from the current defendant, Mr. Howell. And the City, does, in fact, plan on asking questions regarding that because it does, in fact, show as a totality of the circumstances for the jury as a trier of the fact to determine whether or not they find the testimony credible if Mr. Howell takes the stand, and also on our proof as to the officer's observations, his documentation, and the corroborative evidence as required by the-by statute to come in. So we're not looking at just asking the question."

         In addition to stating its reasons for calling defendant as a witness in the Howell matter, the city objected to defendant's blanket invocation of his right against self-incrimination:

"[PROSECUTOR]: The blanket request-or the request for a blanket Fifth Amendment invocation is not appropriate in this court or any court. Upon any question that he believes is somehow going to prejudice him or incriminate him, then it would be on a case-by-case-question-by-question basis."

         Finally, the city indicated that it was extending an offer of immunity to defendant in exchange for his testimony:

"[PROSECUTOR]: *** Your Honor, just to put it on the record, and I apologize because we hadn't gotten there on this part, but I did say in chambers I did have a conversation with Mr. Erik Hasselman, and Mr. Hasselman is the deputy chief deputy for Lane County district attorney's office. He stated, I could represent to the Court, that his office would not bring any charges resulting out of the driving, meaning any driving offenses, and we went through [301 Or.App. 408] as to what it was including, the DUII, the hit-and-run, and the violation of operating an unsafe vehicle."

         Ultimately, the court concluded that either by virtue of the plea of no contest previously entered, or by virtue of the immunity offer, defendant was not entitled to assert his rights against self-incrimination at all, regardless of the specific questions:

"THE COURT: Well, I'll tell you what-the Court has familiarized itself with [defendant's] file, and I feel that I am pretty confident as far as what happened as far as the record, and that [defendant] pled to certain charges, two charges, and that it was clear on the record that the other charges, the DUII, the hit-and-run, the operating an unsafe vehicle, were being dismissed pursuant to plea negotiations.
"I understand there was a box that was not checked on the original judgment to that effect, but I'm confident that that's what happened and that was what was stated on the record, and it was clear to the defendant at that time. Okay.
"For that reason and based-so based on the inquiry as I understand it to be contemplated today for [defendant's testimony and the testimony here, I do not believe that that will compel the witness to incriminate himself.
"[DEFENSE COUNSEL]: Your Honor, absent full immunity, I don't think that that's a proper-excuse me, but I don't-absent full immunity, I don't think ...

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