State v. Palacios-Romero ( 2022 )

563
Submitted April 29, affirmed June 29, petition for review denied November 23,
2022 (370 Or 472)
STATE OF OREGON,
Plaintiff-Respondent,
v.
CRUZ PALACIOS-ROMERO,
aka Cruz Palacios,
Defendant-Appellant.
Multnomah County Circuit Court
19CR17197; A174421
514 P3d 137
Defendant was convicted of 41 counts of rape and sexual abuse. On appeal,
he contends that the trial court erred by (1) denying his request for the “less
satisfactory evidence” instruction; (2) discussing jury instructions outside his
presence on the morning of the fourth day of trial; (3) instructing the jury that it
could return nonunanimous guilty verdicts; and (4) entering an amended judg-
ment without notice to defendant. Held: The trial court did not commit reversible
error. First, the court did not err in refusing to give the “less satisfactory evi-
dence” instruction, where the state chose to offer the testimony of the Spanish
translator who participated in defendant’s police interview, instead of playing a
heavily redacted audio recording of the interview, because the circumstances did
not reasonably give rise to an inference that the audio recording would have been
adverse to the state. Second, any error in discussing jury instructions outside
defendant’s presence on the fourth day of trial either was not plain or was harm-
less. Third, the court erred by instructing the jury that it could return nonunan-
imous guilty verdicts, but the error was harmless because the jury returned all
unanimous verdicts. Fourth, the court did not enter an amended judgment with-
out notice, where the record shows that defendant was notified and consented to
the amendment.
Affirmed.
Thomas M. Ryan, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Zachary Lovett Mazer, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
564 State v. Palacios-Romero
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
AOYAGI, J.
Affirmed.
Cite as 320 Or App 563 (2022) 565
AOYAGI, J.
Defendant was convicted of 39 counts of first-
degree rape, ORS 163.375, and two counts of third-degree
sexual abuse, ORS 163.415, for crimes committed against
his daughter over a period of several years. On appeal,
defendant contends that the trial court erred by (1) denying
his request for the less-satisfactory-evidence instruction;
(2) discussing jury instructions with counsel on the morn-
ing of the fifth day of trial without defendant present and
without a valid waiver; (3) instructing the jury that it could
return nonunanimous guilty verdicts; and (4) entering an
amended judgment without notice to defendant. For the fol-
lowing reasons, we affirm.
The underlying historical facts are not relevant to
the issues on appeal. Instead, each claim of error turns on
particular procedural facts, which are best discussed in con-
nection with the individual assignments of error. We there-
fore proceed directly to our analysis.
DENIAL OF LESS-SATISFACTORY-EVIDENCE
INSTRUCTION
In his first assignment of error, defendant contends
that the trial court erred by denying his request for the
less-satisfactory-evidence instruction, which is one of the
so-called “statutory instructions” that trial courts must give
“on all proper occasions.” ORS 10.095; see also State v. Payne,
366 Or 588, 595-98, 468 P3d 445 (2020) (recent discussion
of the statutory instructions). Under ORS 10.095, the jury
is “to be instructed by the court on all proper occasions” as
follows:
“(7) That evidence is to be estimated, not only by its
own intrinsic weight, but also according to the evidence
which it is in the power of one side to produce and of the
other to contradict; and, therefore
“(8) That if weaker and less satisfactory evidence is
offered when it appears that stronger and more satisfac-
tory evidence was within the power of the party, the evi-
dence offered should be viewed with distrust.”
The basis for defendant’s request for the less-
satisfactory-evidence instruction was as follows. During the
566 State v. Palacios-Romero
police investigation of defendant’s crimes, a detective
interviewed defendant with the assistance of a Spanish
interpreter—Martinez—and defendant made incriminating
statements in Spanish. At trial, the state called Martinez
to testify regarding the content of the interview, including
defendant’s statements.1 The state next called the detec-
tive, who also testified regarding the interview (although
less about its content), including noting that it had been
audio-recorded. On cross-examination, defense counsel asked
a leading question about the detective not having the
audio recording with him at trial, to which the detective
responded, “I do, actually.” Asked to clarify, the detective
reiterated that he had the recording with him and that it
was “available.” No further questions were asked.
Near the end of trial, in discussing jury instruc-
tions, defendant requested the less-satisfactory-evidence
instruction, based on Martinez’s testimony being weaker
and less satisfactory evidence than the audio recording. The
state opposed the request, explaining that it had not admit-
ted the audio recording because it was in Spanish, was two
hours long, and would have required tedious redactions as
it contained significant inadmissible portions, including
potentially prejudicial comments on issues such as defen-
dant’s immigration status. The state argued that there was
no basis to infer that it was trying to hide anything. The
state noted that defendant “had ample opportunity to cross-
examine,” as well as that defendant “had [a] summary of
the interview, plus the recording of the interview himself
as well, and could flush out anything if he felt the State was
hiding anything.”
The court denied defendant’s request for the instruc-
tion, stating that it did not believe that it was appropriate to
give in these circumstances.
The court did not err. The less-satisfactory-evidence
instruction is to be given when (1) “ ‘other evidence was
reasonably available on a fact in issue,’ ” and (2) “ ‘there is
1
Martinez testified that, before trial, she listened to the audio recording of
the interview to refresh her recollection. Also, early in her testimony, without
objection, she was given “a copy of the summary of the interview” to use to refresh
her recollection.
Cite as 320 Or App 563 (2022) 567
a basis for the jury to conclude that the other evidence is
stronger and more satisfactory than the evidence offered.’ ”
State v. West, 289 Or App 415, 418, 410 P3d 382 (2017) (quot-
ing State v. McDonnell, 313 Or 478, 500, 837 P2d 941 (1992)).
Importantly, the instruction “does not penalize a party for
failing to produce all available evidence,” but rather, as rel-
evant here, “draws the jury’s attention to a party’s failure
to produce evidence when that failure could give rise to an
inference that the evidence would be adverse to the party—
that is, when it appears that the party may be trying to
hide something.” State v. McNassar, 77 Or App 215, 218, 712
P2d 170, rev den, 300 Or 704 (1986) (emphases in original);
see also McDonnell, 313 Or at 503 (stating, with reference
to McNassar, that the instruction “may be appropriate” if
“the state’s failure to produce evidence could give rise to an
inference that the evidence would be adverse to the state—
that is, when it appears that the state may be trying to hide
something”).
Here, the state’s decision to have Martinez testify
regarding what defendant said during the interview—
rather than heavily redacting the two-hour audio recording
(risking redaction errors that could be prejudicial to defen-
dant) and then playing the redacted audio with live Spanish
translation—does not reasonably give rise to an inference
that the audio recording would have been adverse to the
state. That is particularly so because defendant participated
in the interview (giving him personal knowledge of what
was said), he had received a copy of the audio recording as
well as a summary of the interview (as represented by the
prosecutor without contradiction), and the detective actually
brought the recording with him to trial and made clear that
it was “available” if anyone wanted it.
Indeed, it is unclear when, if ever, it would be
appropriate to give the less-satisfactory-evidence instruc-
tion when both parties have equal access to the purportedly
stronger evidence. The first part of the statutory instruction
states “[t]hat evidence is to be estimated, not only by its own
intrinsic weight, but also according to the evidence which
it is in the power of one side to produce and of the other to
contradict.” ORS 10.095(7) (emphasis added). That at least
568 State v. Palacios-Romero
suggests a possibility that the legislature did not intend the
instruction to be given when both parties have equal access
to the purportedly stronger evidence. The Supreme Court
has come close to saying as much:
“[W]ith the advent of reciprocal discovery; the requirement
that, if the state has knowledge of evidence favorable to
the defense or exculpatory in nature, the state is under an
affirmative due process obligation to make it available to
the defense; and the availability of subpoena duces tecum,
the necessity for the instruction will be rare in a criminal
case. Generally, the defendant will have knowledge of and
access to the same evidence as the state. Evidence, there-
fore, normally is equally available to both parties.”
McDonnell, 313 Or at 500 (internal citations omitted).
In any event, in this case, the circumstances do not
allow for a reasonable inference that the state might have
been trying to hide something. Relatedly, it is not obvious
that a live Spanish translation of a heavily redacted audio
recording is necessarily stronger and more satisfactory evi-
dence than the original Spanish interpreter’s testimony.
Cf. West, 289 Or App at 419 (in theft prosecution, a video
recording of the defendant at the scene, which the state had
not produced, was not necessarily stronger evidence than
the documentary and testamentary evidence that the state
offered); State v. West, 145 Or App 322, 327-29, 930 P2d
858 (1996), rev den, 326 Or 43 (1997) (in DUII prosecution,
the testimony of an officer who witnessed the defendant’s
field sobriety testing was not necessarily weaker and less
satisfactory evidence than testimony from the officer who
administered the tests); State v. Hendershott, 131 Or App
531, 536, 887 P2d 351 (1994), rev den, 320 Or 587 (1995)
(in carjacking prosecution, the vehicle—which the state had
accidentally returned to its owner and could not locate—was
not necessarily stronger evidence “than the testimony from
several eyewitnesses”); McNassar, 77 Or App at 218 (in DUII
and reckless-driving prosecution, the arresting officer’s tes-
timony was strong enough evidence that any other evidence
that the state could have offered “would most likely be a
repetition of the officer’s testimony”).
Finally, defendant suggests that the instruction
should have been given so that he could “at least” argue to
Cite as 320 Or App 563 (2022) 569
the jury that the state might have been hiding something
by not playing the recording at trial. We disagree because,
when the less-satisfactory-evidence instruction is given,
the jury is instructed not that it may look upon the weaker
and less satisfactory evidence with distrust, but rather that
“the evidence offered should be viewed with distrust.” ORS
10.095(8) (emphasis added); see McDonnell, 313 Or at 500
(citing favorably to 2 McCormick on Evidence 184-89, § 264
(4th ed 1992) (“A number of factors support a conservative
approach [to instructing on an adverse inference].” (Brackets
in McCormick.))).
The trial court did not err in denying defendant’s
request for the less-satisfactory-evidence instruction in this
case.
JURY-INSTRUCTIONS DISCUSSION
WITHOUT DEFENDANT PRESENT (DAY FIVE)
In his second assignment of error, defendant con-
tends that the trial court erred by conducting a portion
of trial outside his presence and without a valid waiver of
his right to be present. A criminal defendant has a right
to be present during trial under ORS 136.040, the Oregon
Constitution, and the federal constitution. See State v.
Shutoff, 263 Or App 615, 616-17, 330 P3d 1237 (2014) (apply-
ing ORS 136.040); State v. Jacobson, 296 Or App 87, 90-91,
437 P3d 243 (2019) (applying Oregon Constitution); Illinois
v. Allen, 397 US 337, 338, 345-47, 90 S Ct 1057, 25 L Ed 2d
353 (1970) (applying federal constitution). Whether a defen-
dant validly waived that right is ultimately a ques-
tion of law. State v. Ward, 367 Or 188, 198, 475 P3d 420
(2020).
At the end of the fourth day of defendant’s trial,
after the jury was excused, the trial court asked defense
counsel if they could briefly discuss jury instructions and
whether defendant (who was in custody) wanted to be pres-
ent. Defendant conferred privately with defense counsel and
then told the court that he was going to leave. After he left,
the court spoke with the lawyers for four minutes, during
which time the court twice indicated that they would dis-
cuss the jury instructions more later, including saying at
one point that “we can talk about it tomorrow.”
570 State v. Palacios-Romero
On the morning of the fifth day of trial, as soon
as court was called to order and before the jury came in,
counsel conferred off the record, and then the court stated,
“We’re going to be talking about jury instructions and ver-
dict form mostly. And [defense counsel], you’re waiving your
client’s appearance for this discussion, right?” Defense coun-
sel responded, “I don’t think it would be of any interest to
him, Judge, so yes.” The court and the lawyers discussed
jury instructions for approximately 35 minutes, took a
25-minute recess (during which defendant was apparently
brought into the courtroom), and then called in the jury and
resumed witness testimony.
Defendant contends that the trial court erred in
discussing jury instructions outside his presence on the
morning of trial day five. He argues that his counsel’s “pur-
ported waiver was clearly invalid” because a waiver must
be knowing and voluntary, and his counsel’s statement
“indicates that he did not discuss the issue with defendant.”
Defendant cites State v. Keys, 302 Or App 514, 517, 460 P3d
1020 (2020), rev’d on other grounds, 368 Or 171, 489 P3d 83
(2021), in which the defendant’s lawyer purported to waive
the defendant’s right to a preliminary hearing, even though
it was clear that she had not advised him or consulted with
him on the issue—as they had just been introduced—and
we agreed with the parties that the waiver should be viewed
as invalid.
Defendant acknowledges that he did not raise this
claim of error in the trial court, but he argues that pres-
ervation is excused under the circumstances or, alter-
natively, that the court committed a “plain” error that
we should exercise our discretion to correct. See ORAP
5.45(1) (as an exception to the general appellate require-
ment of preservation, we have discretion to consider a
“plain” error); State v. Dilallo, 367 Or 340, 344, 478 P3d 509
(2020) (an error is “plain” if it is an error of law, is obvi-
ous and not reasonably in dispute, and is apparent from
the record without our needing to choose among compet-
ing inferences—at which point it is a matter of discretion
whether we will correct it). The state disagrees on both
points.
Cite as 320 Or App 563 (2022) 571
We need not resolve the thorny preservation issue
on which the parties disagree. To the extent that preserva-
tion was required—as the state contends—the claim of error
is unpreserved, and the trial court did not commit “plain”
error in accepting the waiver. In determining whether
defendant knowingly and voluntarily waived the right to be
present, the court could consider its own knowledge of what
had transpired in court, defense counsel’s statements, the
court’s own judicial experience in matters of this kind, and
“a certain measure of common sense.” State v. Harris, 291
Or 179, 185-86, 630 P2d 332 (1981). Here, the court knew
that, at the end of trial day four, defendant had specifically
conferred with defense counsel on the issue of being present
for the discussion of jury instructions. It is also apparent
from the record that the court and the parties expected to
continue discussing jury instructions the following day and
that, when court began the following morning, the parties
knew that the first order of business would be discussion of
jury instructions. Under the circumstances, the trial court
reasonably could have understood defense counsel’s confir-
mation of defendant’s waiver of his right to be present for
that discussion to be based on the prior day’s off-the-record
conference, along with any other discussions that counsel
had since had with defendant. We are unpersuaded that the
loose wording of counsel’s response to the court’s request for
confirmation of defendant’s waiver conclusively establishes
that the waiver was invalid and that the court plainly erred
in accepting it.
Conversely, to the extent that preservation was
excused—as defendant contends—any error was harmless,
as nothing in this record suggests that defendant suffered
any discernable prejudice. See State v. Wilson, 323 Or 498,
507-08, 918 P2d 826 (1996) (under both the state and federal
constitutions, a defendant’s right to be present at trial is
subject to harmless-error analysis).
We therefore reject the second assignment of error.
NONUNANIMOUS-VERDICT INSTRUCTION
In his third assignment of error, defendant con-
tends that the trial court erred by instructing the jury that
572 State v. Palacios-Romero
it could return nonunanimous guilty verdicts. Defendant is
correct that it was error to give that instruction. See Ramos
v. Louisiana, 590 US ___, 140 S Ct 1390, 1394, 1397, 206
L Ed 2d 583 (2020) (holding that, under the Sixth
Amendment, a criminal defendant may be convicted of
a serious offense only by unanimous verdict). However,
because the jury returned unanimous guilty verdicts on all
charges, the error was harmless. State v. Kincheloe, 367 Or
335, 339, 478 P3d 507 (2020), cert den, ___ US ___, 141 S Ct
2837 (2021). We reject the third assignment of error.
AMENDED JUDGMENT (LACK OF NOTICE)
Finally, defendant contends that the trial court
erred by entering an amended judgment without notice. The
assignment is not well taken.
At sentencing, the court orally announced defen-
dant’s sentences for each of his 41 convictions, with some
running consecutively and some running concurrently. The
court then entered a judgment that conformed to its oral
sentencing, with one exception. The prosecutor later brought
the anomaly to the court’s attention, after which the court
entered an amended judgment that conformed to its oral
sentencing.
In his opening brief, defendant asserts that there
is no record that the court gave notice to the parties before
entering the amended judgment. See ORS 137.172(1) (allow-
ing a trial court, after entry of judgment, “to modify the
judgment, including the sentence, to correct any arithme-
tic or clerical errors or to delete or modify any erroneous
term in the judgment,” but requiring “written notice to all
of the parties”). In its answering brief, the state points to a
series of emails between trial court staff and the parties,
which demonstrate both that notice was given and that
defense counsel expressly agreed to the amendment, stat-
ing, “That is fine with me.” Those emails are part of the
record on appeal.2 In his reply brief, defendant addresses
2
The emails were not part of the record on appeal at the time that defendant
filed his opening brief. However, upon recognizing the omission, the state moved
to supplement the record on appeal, and defendant did not object. That motion
was granted before the state filed its answering brief.
Cite as 320 Or App 563 (2022) 573
other matters but is silent as to this assignment of error. We
reject the fourth assignment without further discussion.
Affirmed.