78
Submitted March 13, reversed and remanded May 6, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSIE LEE JOHNSON,
aka Josie Johnson,
Defendant-Appellant.
Umatilla County Circuit Court
17CR17405; A167823
466 P3d 710
Defendant appeals from a judgment of conviction for unlawful possession of
methamphetamine, ORS 475.894. On appeal, defendant assigns error to the trial
court’s ruling, which set a trial date for the following morning. Defendant argues
that the trial court erred when it set the trial date because defendant was in custody and, as a result, she did not have physical access to her notes and paperwork
related to the case. Held: Under the particular circumstances of this case, the
trial court abused its discretion when setting the trial date instead of granting
defendant a continuance to allow her a reasonable amount of time before trial to
have someone retrieve her notes and paperwork related to the case for her.
Reversed and remanded.
Jon S. Lieuallen, Judge.
Frances J. Gray filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for re spondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
TOOKEY, J.
Reversed and remanded.
Cite as 304 Or App 78 (2020) 79
TOOKEY, J.
Defendant appeals a judgment of conviction for
unlawful possession of methamphetamine, which, at the
time defendant was charged, was a Class C felony. ORS
475.894 (2017), amended by Or Laws 2017, ch 706, § 15. On
appeal, defendant assigns error to the trial court’s April 18,
2018, ruling, setting a trial date of April 19, 2018. For the
reasons that follow, we conclude that, under the particular
circumstances of this case, the trial court abused its discretion when it set the trial date that it did, instead of granting
defendant a continuance. We reverse and remand.1
The facts relevant to our analysis of defendant’s
appeal are mostly procedural and undisputed. On March 14,
2017, after making an appearance in an unrelated criminal
matter at the Umatilla County Courthouse, defendant was
remanded into custody. Deputy Pereyda inventoried defendant’s property. Among that property were what Pereyda
described as “some kind of clear, hazy rocks in a little baggie,”
which Pereyda suspected to be methamphetamine. A field
test indicated that the substance was methamphetamine.
On March 17, 2017, defendant was arraigned on an
information for unlawful possession of methamphetamine.
At that arraignment, defendant declined the trial court’s
offer of court-appointed counsel.2 On April 12, 2017, defendant was arraigned on an indictment for unlawful possession of methamphetamine.
Over the course of the following year, defendant
missed multiple court appearances, and the trial court
issued warrants for her arrest. She was also held in contempt multiple times for her conduct in the courtroom.
1
In a second assignment of error, defendant challenges the trial court’s
denial of her motion to suppress. The trial court denied that motion on procedural grounds, including that it was untimely, and also purported to deny it on
the merits, even though there had been no hearing and the court did not explain
what it meant. Under the circumstances, we need not reach defendant’s second
assignment of error; defendant will receive a new trial, presumably with new
deadlines.
2
Defendant explained to the trial court that she did not “wish to waive [her]
right to a lawyer,” but also did not want the court to appoint one.
80 State v. Johnson
On April 11, 2018, defendant failed to appear for
a scheduled trial in this case, and the trial court issued
another warrant for her arrest. On the morning of April 18,
2018, defendant appeared in court, pro se, in two other pending criminal matters.3
At her appearance on the morning of April 18, 2018,
defendant asserted that she was unaware that a trial had
been scheduled for April 11, 2018, and unaware that a warrant had been issued for her arrest. The trial court stated
that it was not withdrawing the warrant that it had issued,
and defendant was taken into custody.
After a recess, in the afternoon on April 18, 2018,
defendant, who was then in custody, made an appearance
in this case. The trial court noted that this case had been
pending for over a year and stated that it would like to schedule trial for the following morning, the morning of April 19,
2018. After verifying that the state could be prepared to go
to trial the next day, the trial court asked defendant, “Is
there a reason you can’t be ready for trial tomorrow?”
Defendant initially responded that she was prepared to proceed to trial the next day, but, after thinking
about it, told the trial court that she was not prepared to
proceed to trial because, among other reasons, she did not
have her notes and paperwork related to the case with her.
She explained that she did not bring them with her because
she was not expecting to be taken into custody.
The trial court scheduled the trial for the morning
of April 19, 2018, notwithstanding defendant’s opposition
and her explanation as to why she could not be prepared
for trial on that day. Defendant remained in custody in the
meantime.
Defendant, who was still in custody, appeared for
trial on the morning of April 19, 2018, pro se. During the
trial, the state introduced evidence from which the jury
could find that the substance that had been found on defendant by Pereyda had been sent to a crime lab, that the
3
Defendant had an attorney “legal advisor” appointed by the trial court pursuant to ORS 135.045; the legal advisor moved to withdraw, and the trial court
denied the motion.
Cite as 304 Or App 78 (2020) 81
crime lab had tested it, and that it had tested positive for
methamphetamine.
Defendant’s theory of defense was that the state
had failed to establish a chain of custody proving that the
substance that was tested by the crime lab was the same
substance that Pereyda had found in defendant’s possession
because, among other things, there were discrepancies in
the dates on certain paperwork that the state relied on at
trial. Defendant acknowledged that she had been in possession of a substance of some kind when she was taken into
custody on March 14, 2017, but testified that she believed it
to be “fake drugs.” Defendant also indicated, to both the trial
court and the jury, that, because she did not have access to
her paperwork related to the case, she was not able to effectively litigate her case.
After the jury was sent out to deliberate, the trial
court explained to defendant the reason that it had scheduled
her trial for April 19, 2018, notwithstanding her opposition:
“I’m just—everything that you’re stating that the—
dates, I mean, most of the stuff you stated, in the Court’s
opinion, this is a pretty straightforward case, based on the
evidence I’ve heard. You, you know, complain about your
dates and your notes.
“I don’t think the dates is really any issue in this case.
You may disagree, but for the record, that’s the Court’s
position. Again, this case is one year old. There’s been several nonappearances in this case and other cases, and the
Court did not find any good cause to continue the matter,
and that’s why we had a quick trial set.”
During deliberations, the jury sent a note to the trial
court stating, “Is it okay to ask what the chain of custody is?
If yes, what is it? Is there a tracking document?” After consultation with the parties, the trial court responded, “You
have received all the evidence you will receive. There is no
additional jury instruction on the issue. Please review the
previously provided jury instruction, function of the court
and jury.”
After further deliberation, the jury sent a note to
the trial court stating, “The jury is hopelessly deadlocked at
82 State v. Johnson
a decision that is 8 to 4, and we are comfortable with that
final decision.” After consultation with the parties, the jury
was instructed to keep deliberating.
Finally, the jury sent a note asking, “Is the only
question to come to a conclusion (was she in possession of
the evidence given to us)? Is this the only question we need
to be concerned with?” In response, the trial court referred
the jury to the Uniform Criminal Jury Instruction regarding unlawful possession of methamphetamine.
After additional deliberation, the jury convicted
defendant of unlawful possession of methamphetamine.
As noted above, on appeal, defendant assigns error
to the trial court’s ruling scheduling trial for April 19, 2018.
Defendant argues, among other points, that the trial court
should have postponed the trial because she did “not have
her trial preparation notes and paperwork,” and the reason
she did not have them was that “she had not expected to be
taken into custody.” On appeal, defendant likens her opposition in the trial court to the trial court setting a trial date of
April 19, 2018, to a motion for a continuance.
The state, for its part, contends that the trial court
did not abuse its discretion in setting the trial date that it
did because “there had been an ongoing cycle of failures to
appear, followed by warrants, followed by arrests, followed
by releases from custody, followed by failures to appear” and
that, by “setting the trial for the following day with defendant in custody, the court could ensure defendant’s appearance for trial before she was released and again failed to
appear.” It also contends that, “to the extent defendant was
unprepared for trial, it was her own fault,” insofar as she
had “ample time” to prepare. The state also views defendant’s opposition in the trial court to the trial court setting
a trial date of April 19, 2018, as “essentially a motion to
continue the trial.”
Given the parties’ arguments, and the manner in
which the trial court analyzed defendant’s opposition to
the trial court setting a trial date of April 19, 2018—i.e.,
considering whether there was “good cause to continue the
matter”—we too analyze defendant’s opposition to the trial
Cite as 304 Or App 78 (2020) 83
court setting a trial date of April 19, 2018, as a motion for
a continuance. State v. Stull,
281 Or App 662, 664 n 1,
386
P3d 122 (2016), rev den,
360 Or 752 (2017) (“Defendant, acting pro se, did not explicitly ask for a continuance, but at a
trial readiness hearing and at trial the court understood
defendant to be asking for a continuance ….”).
“A motion for a continuance of a trial date is
addressed to the sound discretion of the trial court, and a
reviewing court will only reverse such a ruling in the event
that the court has exceeded the boundaries that define its
discretion.” State v. Gale, 240 Or App 305, 310,
246 P3d 50
(2010). “Mindful of the grinding, in the trenches demands of
managing trial dockets, we have historically been loath to
second-guess trial courts’ denials of motions for postponement or continuance.” State v. Kindler,
277 Or App 242, 250,
370 P3d 909 (2016) (internal quotation marks omitted). “Our
understanding and application of the range of legally correct choices in this context has been broad and pragmatic.”
Id. (internal quotation marks omitted). “Nevertheless, there
are limits to discretion.”
Id. “In reviewing the denial of a
motion for continuance, we determine the propriety of the
motion by examining the circumstances of the case and the
reasons presented to the court at the time that it denied
the request.” Stull,
281 Or App at 667. “Additionally, we will
not overturn a denial of a defendant’s motion for a continuance unless the defendant demonstrates prejudice.” State v.
Ferraro,
264 Or App 271, 281,
331 P3d 1086 (2014).
Here, State v. Hickey, 79 Or App 200,
717 P2d 1287
(1986), is instructive. In Hickey, on the day set for trial, the
defendant’s counsel moved for a continuance, explaining
that his briefcase, which contained the entire case file, had
been stolen the night before.
79 Or App at 202. The file contained witness statements, police reports, and work product
generated over the previous months, including notes and
research.
Id. The trial court denied the motion, stating that,
given the fact that the defendant had been arrested nearly
four months earlier, the attorney had had sufficient time to
prepare for the trial.
Id. at 202-03.
We concluded that the trial court had abused its discretion in denying the motion for a continuance because the
84 State v. Johnson
defendant was on trial for a Class B felony; the loss of the file
prevented defense counsel from completing his preparation
for trial; and defense counsel lacked the materials that he
had developed for trial, which he insisted were necessary
to adequately represent his client. Id. at 203. Additionally,
we noted that the defendant’s unreadiness resulted from
factors that were beyond either his or his counsel’s control.
Id. at 204. In sum, we stated, “Although the delay from a
continuance might have resulted in some disruption of the
judicial process and prejudice to the state, those factors were
outweighed by defendant’s right to the effective assistance
of counsel.”
Id.
As to prejudice, we rejected the state’s argument
that the defendant’s failure to point to “instances of inadequate performance” by his attorney precluded us from
reversing his conviction. Id. We explained:
“It is not possible for us to assess the precise impact of the
loss of his file on defense counsel’s judgment, strategy and
competence at trial, and we need not examine his actual
performance. We cannot say that the court’s refusal to
allow the continuance did not deny to defendant his attorney’s best efforts on his behalf, which includes adequate
preparation for trial.”
Id. (citation omitted).
Under the circumstances of this case, we conclude
that the trial court abused its discretion when, on April 18,
2018, it set a trial date for the morning of April 19, 2018,
instead of granting a continuance, after defendant told the
trial court that she would be unprepared for trial because
she did not have her notes and paperwork related to the
case, and that she did not have the notes and paperwork
with her because she was not expecting to be taken into custody when she arrived at court. Although the trial court,
understandably, wanted to expeditiously proceed with a
case that had been pending for over a year, “defendant ha[d]
the right to present a defense at trial,” including “the right
to present the defendant’s version of the facts to the jury to
oppose that of the prosecution, so that the jury may decide
where the truth lies.” Ferraro, 264 Or App at 282. We do
not believe that the trial court could rightly conclude that
Cite as
304 Or App 78 (2020) 85
the need for judicial efficiency was so great that it required
scheduling a trial for the next morning, when defendant
lacked her notes and paperwork related to the case, materials that she believed were necessary to present her defense
to the jury, particularly where defendant was facing felony
charges. See Decker v. Klapatch,
275 Or App 992, 998,
365
P3d 1169 (2015) (concluding the trial court abused its discretion in denying the petitioner’s motion for a continuance
where “a continuance … would have imposed a minimal
burden on the court system while also ensuring that petitioner had a fundamentally fair opportunity to present his
case”). Because defendant was in custody when the trial
court advised her that trial would be held the next morning,
she had no meaningful opportunity to obtain her notes and
paperwork related to the case.
As noted above, the state argues that, “to the extent
defendant was unprepared for trial, it was her own fault,”
insofar as she had “ample time” to prepare. We are not persuaded by that argument; it misapprehends the reason why
the trial court’s denial of a continuance was an abuse of discretion in this case. Like the attorney in Hickey, who was
forced to go to trial without the materials that he had developed to defend his client after his briefcase was unexpectedly stolen, in this case, defendant was forced to go to trial
without her notes and paperwork related to the case after
she was (from her perspective) unexpectedly taken into custody. The issue was not that defendant had not prepared—it
was that she did not have physical access to her notes and
paperwork related to the case. In the circumstances of this
case, scheduling a trial for the morning after defendant was
taken into custody was an abuse of discretion.
In so concluding, we are cognizant that defendant
played a role in the events that culminated in the trial
court scheduling trial for the morning of April 19, 2018—
defendant had, after all, failed to appear on April 11, 2018—
but, she was surprised to be taken into custody, and the
trial court should have given her a reasonable amount of
time before trial to have someone retrieve her notes and
paperwork related to the case for her while she was in custody. Even an additional day might have been sufficient.
86 State v. Johnson
With respect to prejudice, in this case, we cannot
say that the trial court setting trial for the morning after
defendant was taken into custody when defendant did not
have her notes and paperwork related to the case did not
deny defendant her right to present an adequate defense.
See Ferraro, 264 Or App at 288 (reversing and remanding
where “we cannot say that the court’s refusal to allow the
continuance did not deny defendant his right to present an
adequate defense”). That is because it is not possible for us
to assess the precise effect of defendant proceeding to trial
in this case without her notes and paperwork related to the
case on her “judgment, strategy and competence at trial.”
Hickey,
79 Or App at 204. We observe that, in this case,
the jury’s notes to the trial court during its deliberation—
inquiring about the “chain of custody” and informing the
trial court that they were “deadlocked”—suggest that defendant’s theory of defense may have had at least some persuasive force.4 As a result, we cannot say that there is little
likelihood that defendant was not prejudiced by the trial
court’s ruling setting trial for the morning of April 19, 2018,
instead of granting defendant at least a short continuance.
Ferraro,
264 Or App at 288 (reversing and remanding where
“[w]e cannot say that there is little likelihood that defendant
was not prejudiced by the denial of his motion to postpone”).
Reversed and remanded.
4
The trial court’s statements, noted above, after the jury was sent out to
deliberate, reflect that it also may have justified its decision to deny defendant’s
request that it “continue the matter” based on its evaluation of the merits of
defendant’s theory of defense. We observe, however, that whether “the court is
persuaded by a defendant’s nonfrivolous theory of the case is not a proper basis
by which to judge a defendant’s motion for a continuance.” Ferraro, 264 Or App
at 286. In that regard, we are not persuaded that defendant’s “chain of custody”
theory was frivolous. As noted, even after going to trial without her notes and
paperwork related to the case, during their deliberations, the jury sent a question
to the trial court regarding “chain of custody” and informed the trial court that
“[t]he jury is hopelessly deadlocked at a decision that is 8 to 4, and we are comfortable with that final decision.” It was only after additional deliberation and a
question about whether the jury could convict defendant simply for possessing
the evidence, that the jury was able to reach a verdict.
