State v. Davis

                                       794

 Argued and submitted September 2, 2021, affirmed February 24, petition for
                  review denied July 7, 2022 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                        DAVID KIF DAVIS,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       19CR01993; A172180
                                   

    Defendant appeals from a judgment of conviction for criminal trespass in
the second degree, ORS 164.245, and criminal mischief in the third degree, ORS
164.345. He assigns error to the trial court’s decision to quash his subpoena duces
tecum for the use-of-force policy for G4S, a private security company, and his subpoenas duces tecum for the mayor and other members of Portland City Council to
appear as witnesses and bring identified documents with them. Held: The trial
court erred when it quashed the subpoena for the G4S use-of-force policy because
that policy had a potential use for cross-examination to show the bias of G4S
witnesses and to generally undermine their credibility. However, that error was
harmless, because other evidence of the bias of G4S witnesses was presented to
the jury and video of all the events in question was submitted into evidence. With
regard to the subpoenas for the testimony of the mayor and city council members,
the trial court did not err, because defendant’s theory as to the relevance of their
testimony was too speculative.
    Affirmed.



   Andrew M. Lavin, Judge.
   Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
   KAMINS, J.
   Affirmed.
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 (2022)                            795

        KAMINS, J.
         Defendant appeals from a judgment of conviction
for criminal trespass in the second degree, ORS 164.245,
and criminal mischief in the third degree, ORS 164.345.
He assigns error to the trial court’s decision to quash his
subpoena duces tecum for the use-of-force policy for G4S, a
private security company, and his subpoenas duces tecum
for the mayor and other members of Portland City Council
to appear as witnesses and bring identified documents
with them. We conclude that the trial court erred when it
quashed the subpoena for the G4S use-of-force policy, but
that that error was harmless. Additionally, we conclude that
the trial court did not err when it quashed the subpoenas for
the mayor and the other members of city council. We therefore affirm.
         In 2019, defendant attended a Portland City Council
meeting and recorded the proceedings. There was a bright
light on his camera and a G4S security officer approached
defendant and asked him to turn his light off. Defendant
refused and walked away from the G4S security officer, who
followed. While this was happening, another member of the
public started yelling about the security officer interacting
with defendant. The mayor announced a recess, and G4S, in
consultation with city employee Dorothy Elmore, gave the
order to clear council chambers. Defendant refused to leave
and was eventually pulled out of the room by security officers. During that interaction defendant received a cut to his
hand, and he proceeded to smear his blood on the wall. He
was arrested and charged with criminal trespass in the second degree (ORS 164.245); criminal mischief in the second
degree (ORS 164.354); and criminal mischief in the third
degree (ORS 164.345).
         Defendant issued six subpoenas duces tecum for
his trial: one for G4S’s use-of-force policy, and five for the
mayor and the remaining members of city council to appear
as witnesses and bring identified documents. The defense
theory at trial was that defendant was engaged in protected
constitutional activity and thus the order to exclude him
was unlawful. Defendant argued that the policy could be
used to impeach the G4S officers’ testimony regarding what
796                                                             State v. Davis

happened and show that they were hostile to him personally.
In support of his subpoenas for the mayor and city council, defendant contended that their testimony could bolster
his theory that G4S and city council were biased against
him and that the G4S security officer approached him not
because of the light but because of the content of his speech.
G4S and the City of Portland moved to quash those subpoenas, and the trial court granted the motions to quash, stating that the proposed relevance of the policy and testimony
was too speculative. Defendant was found guilty of criminal
trespass in the second degree and criminal mischief in the
third degree. Defendant timely appealed, contending that
the trial court’s decision to quash his subpoenas duces tecum
violated his statutory and constitutional rights to compulsory process.
         We begin with the trial court’s decision to quash
defendant’s subpoena for the use-of-force policy and address
only the statutory right, as it is dispositive. We review
whether a defendant’s right to compulsory process has been
violated for legal error. State v. Cartwright, 

, 419-
20, 

 (2004) (applying that standard for statutory
arguments under ORS 136.567 and ORS 136.580).
        A defendant’s entitlement to issue subpoenas for
documents and testimony is provided by ORS 136.567 and
ORS 136.580.1 There is no statutory provision that authorizes a motion to quash a subpoena in a criminal case.
Cartwright, 

. Accordingly, the ability to rule on
motions to quash stems from a court’s inherent authority,
but that authority “cannot permit trial courts to violate a

   1
     ORS 136.567(1) provides:
        “A defendant in a criminal action is entitled, at the expense of the state or
   city, to have subpoenas issued for not to exceed 10 witnesses within the state.
   A defendant is entitled, at the expense of the defendant, to have subpoenas
   issued for any number of additional witnesses without an order of the court.
   The defendant is responsible for the costs of serving the subpoenas and for
   the costs, as provided in ORS 136.602, of witness per diem and mileage and
   for expenses allowed under ORS 136.603.”
   ORS 136.580(1) provides:
        “If books, papers or documents are required, a direction to the following effect shall be added to the form provided in ORS 136.575: ‘And you are
   required, also, to bring with you the following: (describing intelligibly the
   books, papers or documents required).’ ”
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criminal defendant’s broad right under the subpoena statutes to compel witnesses to attend his or her trial (and to
bring along any books, papers or documents that the defendant has identified in the subpoena).” 

 (internal quotation
marks omitted).
         In addition to witness privacy concerns, two conceptual limitations bear on a witness’s duty to accommodate a
defendant’s right to compel the production of evidence: relevance and privilege. State v. Bray, 

,

 (2016), aff’d, 

, 

 (2018).
“[W]hen a party subpoenas a witness to produce material
for cross-examination at trial, ORS 136.580 requires a court
to order the production of the material unless it is clear that
the material has no potential use for that purpose.” State v.
Bray, 

, 

 (2018) (internal quotation marks omitted; emphasis added).
          Defendant argues that the trial court erred because
the use-of-force policy had a potential use for impeachment
purposes. At the motion to quash hearing, defendant argued
that the policy itself was relevant to show bias if the security officers used force that was not consistent with the policy. The representative for G4S responded that the charges
of criminal trespass and criminal mischief had nothing to
do with the actions of G4S, and even if the policy was useful
to show bias, that bias would not be relevant to the elements
of those crimes.
         “To be relevant, evidence introduced to impeach a
witness for bias or interest need only have a mere tendency
to show the bias or interest of the witness.” State v. Hubbard,

, 

 (1984) (emphasis added).
A court should afford a party “wide discretion in cross-examination to demonstrate such bias.” State v. Rashad, 

, 

 (2021) (internal quotation
marks omitted). However, when evaluating the relevance of
evidence meant to show bias, there must be more than mere
speculation. See State v. Phillips, 

, 

 (2011), rev den, 

 (2012) (stating that “reasonable inferences are permissible but ‘speculation … is not’ ”
(quoting State v. Harberts, 

, 

 (2005), rev den, 

 (2006)) (ellipsis in Phillips).
798                                                          State v. Davis

          The use-of-force policy was relevant to show the
bias of G4S witnesses and generally undermine the credibility of their testimony at trial. See OEC 609-1 (“The credibility of a witness may be attacked by evidence that the witness engaged in conduct or made statements showing bias
or interest.”). It is undisputed that G4S used force to remove
defendant from council chambers, force that caused a minor
injury to his hand. Defendant intended to use the policy to
cross-examine the multiple G4S personnel on the state’s
witness list. Because the policy might show that G4S’s use
of force was inconsistent with the policy, that policy had
a “mere tendency” to demonstrate that G4S officers were
biased against defendant and thus undermine their credibility. Hubbard, 

.2 Given that the use-of-force
policy had a nonspeculative potential use for impeachment
during cross-examination of the witnesses from G4S, the
trial court erred in quashing the subpoena.
         The state argues that the trial court did not err
because defendant’s theory of relevance relied on a string
of inferences which was too tenuous to support the potential use of the policy. However, for purposes of impeachment
evidence, a trial court cannot “predict, with certainty, in
advance of that witness’s testimony, whether the subpoenaed material will in fact be relevant and admissible.” Bray,

. “When a party uses a subpoena duces tecum
to compel production of materials for cross-examination at
trial, the court has control over those materials and will
have an opportunity to make the more exacting determinations necessary to their admissibility.” 

        Having determined that the trial court erred when
it quashed the subpoena for the use-of-force policy, we must
determine whether that error was harmless; that is, whether
there was little likelihood that the particular error affected
the verdict. State v. Hightower, 

, 

 (2021). In making that determination, we look at all the
evidence in the record and “we consider the importance of
    2
      To the extent that defendant is arguing alternatively that the use-of-force
policy would be relevant because the G4S officers might testify in a manner that
was inconsistent with that policy, that is unduly speculative. Under that reasoning, any document delineating a policy would be relevant in the event that a
witness testified inconsistently with that policy.
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the erroneously admitted evidence to a party’s theory of the
case.” State v. Stewart, 

, 

,
rev den, 

 (2015); see State v. Mendoza-Sanchez,

, 

 (2018) (when making a
harmless error determination “we review all pertinent portions of the record”). For purposes of a general attack on witness credibility under OEC 609-1, an erroneous decision to
exclude evidence relevant to bias is reversible “if it denies the
jury an adequate opportunity to assess the credibility of a
witness whose credibility is important to the outcome of the
trial.” Hubbard, 

. Thus, “a trial court’s error is
harmless if either: ‘(1) despite the exclusion, the [factfinder]
nonetheless had an adequate opportunity to assess [the
witness’s] credibility; or (2) [the witness’s] credibility was
not important to the outcome of the trial.’ ” State v. Jones,

, 

 (2015) (quoting State v.
Titus, 

, 

 (1999) (brackets in
Jones)).
         The error in this case was harmless for both reasons: The evidence was cumulative of other evidence of bias
toward defendant personally,3 and credibility was not a core
issue in the case. First, the jury heard other evidence supporting defendant’s theory that the security officers were
biased against him. See State v. Jasperse, 

, 

, rev den, 

 (2021) (“The erroneous exclusion of evidence that is merely cumulative of admitted evidence and not qualitatively different from admitted
evidence is generally harmless.” (Internal quotation marks
omitted.)). Three G4S security personnel were crossexamined on their prior interactions with defendant and all
acknowledged that they had seen him before on more than
one occasion. The G4S employee who gave the order to clear
chambers acknowledged that she had previously ejected
defendant from City Hall. Defendant also called as a witness another member of the public who was present at city
     3
       On appeal defendant appears to raise the argument that evidence of
a possible policy violation would have tended to show that G4S had a motive
to lie in order to cover up that violation, citing State v. Crum, 

, 

 (2017). The state responds that that argument is unpreserved. After reviewing the record, we agree that this argument for relevance
was not raised before the trial court, and we decline to address it on appeal.
ORAP 5.45(1).
800                                                         State v. Davis

council that day, who testified that G4S officers were biased
against defendant based on what he had observed during
prior interactions.
         Moreover, undermining the credibility of the G4S
witnesses would have had little impact on the verdict given
that defendant’s interactions with G4S personnel before,
during, and after the meeting were on video and presented
to the jury. That video included G4S’s efforts to physically
remove defendant from council chambers and the jury could
see defendant’s actions for itself in determining whether
he committed the offenses. Cf. State v. Crum, 

, 

 (2017) (exclusion of evidence of officer’s bias was not harmless when the case hinged on the
outcome of a dispute over whether the defendant raised a
rifle during the confrontation). Additionally, the state called
as a witness Dorothy Elmore, who was not employed by G4S
and worked as a security manager for the City of Portland.
She testified to her personal observations of defendant’s
actions on the day and her role in the decision to clear city
council chambers. The use-of-force policy would have had
no effect on impeaching her testimony, which corroborated
the testimony given by the G4S officers. Cf. Hubbard, 

 (holding that exclusion of bias evidence is
not harmless where “the impeached witness [was] the sole
witness on a given issue and there [was] no corroborating
evidence”).4
         Because other evidence of the witnesses’ bias was
presented to the jury, the verdict did not depend on credibility, and defendant is not contending that the deprivation of
the policy denied him the opportunity to obtain additional
evidence that he could present at trial, the trial court’s error
in quashing the subpoena duces tecum for the G4S use-offorce policy was harmless. See Jasperse, 

(concluding that in order to reverse a conviction based on

    4
      Defendant clarifies in his reply brief that he does not now contend that
the bias of G4S undermines the validity of the order to clear chambers, rather
that it undermines their credibility as witnesses. See State v. White, 

, 

, adh’d to as clarified on recons, 

, 

, rev den, 

 (2007) (stating that the lawfulness of the order to
leave the premises is an essential element of criminal trespass in the second
degree).
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 (2022)                                             801

evidentiary error there needs to be “some likelihood that the
challenged evidence affected the verdict”).5
         Moving to defendant’s subpoenas duces tecum
for the members of city council, defendant argues that a
court’s authority to quash a subpoena cannot infringe on
a defendant’s statutory and constitutional rights to compel
witnesses to attend his trial. He argues that city council
recessed the meeting due to the content of his speech, and
therefore their testimony was essential to his defense, where
he challenged the lawfulness of the order given by G4S to
clear city council chambers. See State v. White, 

, 

, adh’d to as clarified on recons, 

, 

, rev den, 

 (2007) (stating
that the lawfulness of the order to leave the premises is an
essential element of criminal trespass in the second degree).
         A witness’s duty to accommodate a defendant’s
right to compel the production of evidence is constrained by
relevance. Bray, 

. Evidence is relevant so
long as the inference desired by the proponent is reasonable. Titus, 

. While a defendant has broad latitude to explore relevant avenues for cross-examination, a
nonspeculative showing of relevance is required to compel
a witness’s appearance at trial. See State v. Hedgpeth, 

, 

 (2019) (providing that “facts in
issue can ‘be established by reasonable inferences, but not
through speculation’ ”) (quoting State v. Jesse, 

, 

 (2016)).
          The trial court did not err when it quashed defendant’s subpoenas for city council members because the theory as to the relevance of their testimony—that their dislike for defendant is what motivated the order to recess
the meeting, which then caused G4S to order all participants to leave the chamber—was too speculative to lead
to admissible evidence. Because the crime of criminal trespass requires that the underlying order to leave be “lawful,” defendant argues that it was relevant to the offense to

    5
      As noted above, we focus on the violation of defendant’s statutory rights.
We need not reach defendant’s related constitutional issues because any error
would be harmless under state and federal constitutional standards for the same
reasons.
802                                           State v. Davis

establish whether defendant had a constitutional right to
remain. White, 

. Defendant’s argument
for calling city council as witnesses was too speculative to
further this theory. The mayor recessed the meeting and
then G4S gave the order to clear the chamber, which was
neutral on its face and resulted in everyone being removed
from council chambers, not just defendant. On these facts,
there is nothing beyond speculation that would create an
expectation that a member of city council would testify that
the actual reason G4S cleared the chamber was because of
some constitutional activity of defendant.
         Moreover, no member of city council gave the order
that was the source of the trespass charge. That order came
from G4S. See Phillips, 

 (holding that evidence of one person’s bias, without more, is too speculative
to be used to demonstrate the bias of a different person).
Without any evidence to elevate defendant’s theory that city
council was targeting his constitutionally protected activity
when it recessed the meeting from the realm of speculation,
the trial court did not err when it quashed the subpoenas for
the members of city council.
        Affirmed.