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| October 23, 2003
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| Case decided October 23, 2003
The full text of these opinions can be found at http://www.publications.ojd.state.or.us
State of Oregon v. Jesse Stuart Fanus, (S46472)
On automatic and direct review of a judgment of conviction and sentence of death imposed by the Douglas County Circuit Court, Robert C. Millikan, Judge. The judgment of conviction and the sentence of death are affirmed. Opinion of the Court by Chief Justice Wallace P. Carson, Jr. Justice Susan M. Leeson resigned January 31, 2003, and did not participate in the decision of this case. Justice Rives Kistler did not participate in the consideration or decision of this case.
Today, in an unanimous decision authored by Chief Justice Wallace P. Carson, Jr., the Oregon Supreme Court affirmed the judgment of conviction and the sentence of death against Jesse Stuart Fanus. In June 1998, Fanus broke into the home of Major General Marion Carl, and his wife, Edna Carl, in Douglas County, Oregon. Defendant shot and killed Marion Carl, and shot and wounded Edna Carl. For those crimes, the state charged Fanus with two counts of aggravated murder involving a single victim and various other noncapital offenses. A Douglas County jury found Fanus guilty of all the charged crimes, and, after a separate penalty-phase proceeding on the two counts of aggravated murder, the trial court entered a sentence of death. On review, Fanus raised 19 assignments of error. The Court concluded that none of Fanus' assignments of error was well taken and, consequently, affirmed the judgment of conviction and the sentence of death.
The Court first addressed Fanus' contention that the trial court should have sustained his demurrer to the indictment because Oregon's death-penalty statutes violate the Eighth Amendment to the United States Constitution. Fanus had argued that the statutes do not limit sufficiently the aggravating evidence that the state may introduce or that the jury may consider in relation to the question set out in ORS 163.150(1)(b)(D), that is, "[w]hether the defendant should receive a death sentence." The Supreme Court disagreed and held that statutes did not violate the Eighth Amendment in the manner that Fanus had contended.
The Court next considered Fanus' argument that the trial court should have granted his pretrial motions for change of venue. The Court concluded that the trial court did not abuse its discretion by denying Fanus' motions because Fanus had failed to establish that there existed such a level of prejudice against him in Douglas County so as to preclude a fair and impartial trial.
The Court also rejected Fanus' arguments that the trial court erred by denying his challenge for cause against a juror, by failing to grant a mistrial sua sponte based upon statements that the prosecutor made during his closing argument, and by admitting certain evidence that related to Fanus' beliefs in white supremacy and Nazi ideology.
On October 21, 2003, the Supreme Court:
1. Allowed petitions for review in*:
State v. Cavan, S50230, A111776. Petitioner Gary Dylan Cavan (defendant below), seeks review of a Court of Appeals decision that affirmed a trial court decision overruling defendant’s objections to holding his trial in a courtroom inside a correctional institution, the Snake River Correctional Institution (SRCI).
Defendant, who was an inmate at SRCI, was charged with attacking a corrections officer. Defendant allegedly hit the officer repeatedly with a homemade sap (a lock in a sock), bit off a piece of the officer’s cheek, and tried to spit it into the officer’s mouth.
The state proposed holding defendant’s trial in a courtroom constructed in the visiting area of SRCI. The state claimed that defendant posed a serious safety risk, based on his extensive disciplinary record in the prison system, his involvement in an earlier violent escape attempt at another facility, and the unprovoked nature of the attack. The state also noted that all but one witness was either an inmate, a corrections officer, or a staff member of SRCI. The courtroom provided space for the judge, both parties, and the jury. The general public could not sit inside the courtroom, but there was a viewing area outside the courtroom with seating for approximately 50 people. The viewing area had several large windows opening onto the courtroom and speakers for the audio portion of the trial.
Defendant objected to holding his trial at SRCI. The trial court overruled those objections, finding that defendant posed “a clear and present danger.” After a trial at SRCI, a jury convicted defendant on all counts with which he was charged.
Defendant appealed, arguing that holding his trial at SRCI violated his right to a public trial, an impartial jury, and due process. The Court of Appeals affirmed. The court held that trying an inmate within a prison is an inherently prejudicial practice that “should be permitted ‘only where justified by an essential state interest specific to each trial.’” The court then determined that the trial court did not abuse its discretion in deciding to hold defendant’s trial at SRCI. The decision of the Court of Appeals is reported at 185 Or App 367, 59 P3d 553 (2002).
On review, the issue is whether holding a jury trial in a criminal case at a correctional institution violates:
(A) a defendant’s right to an impartial jury under Article I, section 11, of the Oregon Constitution;
(B) a defendant’s Fourteenth Amendment rights under the United States Constitution; or
(C) a defendant’s right to a public trial.
Yancy v. Shatzer, S50280, A114776. Terry Yancy (petitioner) seeks review of a per curiam Court of Appeals decision that vacated a circuit court judgment in a writ of review proceeding and remanded with instructions to dismiss the case as moot.
On June 9, 2000, petitioner was issued a notice under Portland City Code (PCC) 20.12.265, excluding him from two Portland parks for a period of 30 days. Petitioner timely requested an appeal hearing before a City of Portland Code Hearings Officer. The Code Hearings Officer issued an order dated June 21, 2000, that sustained the exclusion notice.
On August 18, 2000, petitioner filed a petition for a writ of review in Multnomah County Circuit Court. Ultimately, the circuit court issued an opinion and a judgment upholding petitioner’s park exclusion.
Petitioner appealed to the Court of Appeals, arguing that the park exclusion ordinance was unconstitutional on its face. The Court of Appeals, in a per curiam decision, noted that the exclusion order expired before the petition for a writ of review was filed. The court concluded that the case had become moot before the circuit court rendered its judgment, and consequently vacated the circuit court judgment, remanding with instructions to dismiss the case as moot. The decision of the Court of Appeals is reported at 185 Or App 704, 60 P3d 1156 (2003).
On review, the issue is whether Oregon courts can decide moot cases that are “capable of repetition, yet evading review,” or that raise an issue of public concern.
State v. Makuch/Riesterer, S50435, A110292/S50478, A110292. Petitioners Paul Arthur Makuch and Leigh Ann Riesterer (defendants below) seek review of a Court of Appeals decision reversing a trial court decision that granted defendants’ motions to suppress evidence uncovered as a result of a search of their business.
The facts are complex, but in pertinent part, defendants came to the attention of the police because of an investigation of an attorney in the State of Washington who was suspected of involvement in a marijuana operation. Upon a search of the attorney’s home, police discovered the attorney’s “personal organizer,” which was marked on the first page: “Attorney/ client confidentiality privilege claimed on all contents.” The organizer contained the names “Paul and Leigh Ann” and the address of their business, which, in conjunction with statements made by the attorney, focused police attention on defendants. Ultimately, a Washington court concluded that under the Washington Constitution, probable cause did not exist to search the attorney’s residence.
Oregon police went to defendants’ business in Milwaukie, and once inside, passed a sign that said, “Printing in Progress, Please Do Not Disturb,” and another sign that said “Authorized Personnel Only.” The officers questioned defendants and obtained consent to look around. Ultimately, an officer left to obtain a search warrant, leaving several other officers in the shop. An ensuing search revealed marijuana plants, and defendants were charged with manufacture, delivery, and possession of a controlled substance.
Defendants moved to suppress evidence seized from their business, arguing that the evidence was obtained through exploitation of the previous unlawful search of the attorney’s home. Defendants relied in part on ORS 9.695, which provides that the papers and effects of a lawyer relating to the provision of legal services is not subject to search and seizure by law enforcement, either with or without a warrant. The state argued in part that ORS 9.695(2) contains an exception if there is probable cause to believe the lawyer has committed, is committing, or is about to commit a crime. The trial court ultimately agreed with defendants and ordered suppression of the evidence.
The state appealed the pretrial order suppressing evidence, and defendants cross-assigned error to the legality of the initial police entry into their business and the validity of their consent to search. The Court of Appeals determined that defendants were not entitled to suppression because at the time the organizer was inspected, the police had probable cause to believe the attorney had committed a crime, and because defendants had no constitutionally cognizable privacy interest in the information found in the attorney’s organizer. The court rejected defendants’ cross-assignment of error without discussion. The decision of the Court of Appeals is reported at 185 Or App 298, 59 P3d 536 (2002).
Collectively, petitioners Makuch and Riesterer raise eight issues on review. Those issues may be summarized as:
(1) Whether ORS 9.695 requires suppression of a lawyer’s organizer when the organizer was seized and searched pursuant to an unlawful entry into the lawyer’s home; and
(2) Whether it is an unreasonable search and seizure under Article I, section 9, of the Oregon Constitution, or under the Fourth Amendment to the United States Constitution, if the police enter an area from which the public ordinarily is excluded, and remain in that area to secure the property before obtaining a warrant.
State v. Snyder, S50672, A111712. The State of Oregon (petitioner) seeks review of a Court of Appeals determination that the trial court erred in admitting evidence of a blood alcohol test that had not been shown to comply with the foundational requirements of ORS 813.160(1)(a).
Marshall Lovejoy Snyder (defendant) was involved in a car accident. A police officer observed defendant at the scene of the accident and at the emergency room. At the hospital, defendant’s blood was drawn for a chemical blood alcohol analysis. Subsequently, defendant was prosecuted for driving under the influence of intoxicants (DUII).
At trial, defendant moved to exclude evidence of the results of the chemical analysis. The trial court denied the motion, and the results of the analysis were admitted into evidence in the form of a certified copy of a hospital record – authenticated by the affidavit of the records custodian – and through the testimony of the officer. A jury convicted defendant.
Defendant appealed, arguing that the trial court erred in admitting evidence of the chemical analysis of his blood. He contended that the state failed to prove that the chemical analysis had been “performed by an individual shown to be qualified to perform such analyses and * * * performed according to the methods approved by the Department of Human Services.” ORS 813.160(1)(a).
The state contended that ORS 813.320(2)(a) created an exception to that requirement, allowing the introduction of “otherwise competent, relevant evidence” in a DUII prosecution if
“[t]he evidence results from a test of blood taken from the defendant while the defendant was hospitalized or otherwise receiving medical care, whether or not the defendant consented to the drawing of blood or to the test.”
The Court of Appeals concluded that, “for purposes of ORS 813.320(2), the state must demonstrate compliance with ORS 813.160(1)(a) in order for evidence of a chemical analysis to be ‘otherwise competent’ to prove a defendant’s blood alcohol content,” and that the trial court erred in admitting the challenged evidence. The court affirmed defendant’s conviction, however, on the basis that the error was harmless because defendant testified at trial that he was “drunk” (although he did not admit to driving). The decision of the Court of Appeals is reported at 187 Or App 648, 69 P3d 802 (2003).
On review, the issue is whether ORS 813.320(2)(a) permits evidence of a blood alcohol test in a DUII prosecution when the test is performed while a defendant is hospitalized or otherwise receiving medical care, even if the test is not shown to comply with the provisions of ORS 813.160(1)(a).
2. Denied petitions for review in:
Taylor v. Lampert, S50159, A115187
Way v. Hill, S50342, A115258
Duncan v. Kern, S50495, A115341
State v. Wilson, S50555, A117730
Robertson v. City of Turner, S50579, A113871
Bradbury v. Hill, S50580, A112809
State v. Manion, S50597, A115736
State v. Conrad, S50614, A112892
State v. Couzens, S50624, A113557
State v. Harrington, S50625, A115911
Copeland v. Lampert, S50635, A116205
Toney v. Czerniak, S50642, A119071
Baker v. Johnson, S50654, A117841
Melendez v. Czerniak, S50676, A118601
General Equipment Mechanical, LLC v. Hannah-Sherman International, Inc., S50680, A118359
Kopp v. Hoyt, S50704, A116494
State v. Roofner, S50713, A115310
State v. Estep, S50726, A114860
State of Oregon DCS v. Anderson, S50731, A114324
Buckner v. Home Depot USA, Inc., S50732, A114752
Burgess v. Lampert, S50737, A118863
State v. Walters, S50739, A117810
State v. Aust, S50741, A112806
Huddleston v. Baldwin, S50744, A111835
State v. Antone, S50745, A116250
State v. Englund, S50756, A118053
State v. Mann, S50757, A117825
3. Denied petitions for reconsideration in:
O’Neal v. E. Miller Trucking, S50529, A118233 (Order denying petition for review issued August 5, 2003)
State ex rel Kaino v. Oregon Commission on Judicial Fitness and Disability, S49792 (Opinion issued on August 14, 2003)
4. Denied a petition for writ of mandamus in:
Koenig v. Youngs, S50661
5. Denied a petition for writ of habeas corpus in:
Parker v. Coos County Circuit Court, S50683
6. Dismissed a petition for writ of mandamus in:
State ex rel Stewart v. State of Oregon, S50725
7. Accepted the resignation of Warrenton attorney Warren Gustave Moe from the practice of law during the pendency of disciplinary proceedings.
8. Reinstated the following persons to the active practice of law:
Craig Brockway Cordon
John Fogerty Winston
9. Admitted Yvonne Ana Tamayo as a teacher-member of the Oregon State Bar.
*These summaries of cases in which the Supreme Court has allowed review are prepared for the benefit of members of the media to assist them in reporting the court's activities to the public. Parties and practitioners should not rely on the summaries, or the statement of issues to be decided in the summaries, as indicating the questions that the Supreme Court will consider on review. Regarding the questions that the Supreme Court may consider on review, see Oregon Rule of Appellate Procedure 9.20.
END OF DOCUMENT
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