State v. Pyle

                                      149

      Argued and submitted September 9, 2020, reversed and remanded
                             August 3, 2022


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                       WAYLON K. PYLE,
                      aka Waylon Karl Pyle,
                       Defendant-Appellant.
                 Multnomah County Circuit Court
                      18CR51000; A169792
                                  

     Defendant appeals from a judgment of conviction for attempted fourth-degree
assault and harassment, raising six assignments of error. In four of his assignments, defendant contends that the trial court erred in ruling that it would not
enforce defendant’s subpoena of a witness who had been excused the previous day
if the witness did not appear voluntarily. When the witness did not appear, the
trial court denied defendant’s motion for a mistrial. Defendant contends that the
trial court’s actions denied him his right to compulsory process under Article I,
section 11 of the Oregon Constitution. Held: In the absence of affirmatively
quashing the subpoena, the trial court abused its discretion when it failed to
impose any remedy to enforce the lawful subpoena. The trial court had discretion
as to how best to enforce the subpoena and obtain the witness’s appearance and
testimony but doing nothing was not within the range of options.
    Reversed and remanded.



    Melvin Oden-Orr, Judge.
   Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Timothy A. Sylwester, 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.
    JAMES, P. J.
    Reversed and remanded.
150                                                State v. Pyle

         JAMES, P. J.
         Defendant appeals from a judgment of conviction for
attempted fourth-degree assault, ORS 163.160, and harassment, ORS 166.065, raising six assignments of error. We
reject the first and the sixth without discussion. Defendant’s
second through fifth assignments of error all relate to the
trial court’s ruling that it would not enforce defendant’s
subpoena of a witness who had been excused the previous
day, and the trial court’s denial of defendant’s motion for a
mistrial after the witness did not appear. We conclude the
trial court abused its discretion when it failed to take any
steps to enforce defendant’s lawful subpoena, and reverse
and remand for a new trial.
         We begin with a brief recitation of the evidence presented at trial and the proceedings below. Defendant lived
with his stepson C and C’s mother. Testimony presented at
trial indicated that on July 31, 2018, C’s mother and defendant had been arguing and there were ultimately two physical altercations between defendant and C. C and his mother
left the house and called 9-1-1, and the police responded.
Officer Ladd spoke to C and his mother, and a different officer interviewed defendant.
         On the first day of the trial, C testified for the state,
describing the altercations between himself and defendant,
and was cross-examined by defense counsel. In the interest
of allowing C to attend school the next day, the trial court
extended the day’s proceedings until 5:30 p.m. and encouraged counsel to conclude their questioning of C that day.
The parties were told to limit their questioning to 30 minutes, with the court acknowledging that it was possible C’s
testimony would need to continue the following day. After
cross-examination and redirect, the court excused C, with
defense counsel stating they were “happy to excuse [him] at
this time.”
         On the second day of the trial, the state called Ladd
to testify. During cross-examination, defendant sought to
introduce C’s statement to Ladd on the night of the incident
that he had initiated the physical contact in his altercations
with defendant, as an excited utterance exception to the prohibition on hearsay. After an offer of proof and arguments
Cite as 

 (2022)                                           151

from both sides, the trial court indicated that it was inclined
to deny defendant’s request to admit the hearsay evidence.
However, the court afforded counsel the opportunity to further research the issue over the lunch hour and to make
additional arguments at that time. Following the break, the
court ruled that the hearsay would not be admitted.
         Subsequently, defendant sought to recall C to question him about his statements to Ladd. In anticipation of the
need for his testimony, over the lunch break defense counsel had instructed an investigator to serve a subpoena on C
at school. The prosecutor and the trial court expressed displeasure that defense counsel had failed to notify the court
before serving the subpoena, and at the timing and manner
of serving a high school student at school when he was the
victim in the case. The prosecutor did not explicitly move to
quash the subpoena, but stated his position that C did not
need to come in. The court acknowledged that the defense
could have reasons for wanting to recall C and concluded
that it would allow C to testify if he appeared in court voluntarily by 3:30 that afternoon, but stated that it would
not penalize him for not appearing and would not carry the
case over to the next day for additional testimony.1 C did
not appear by the appointed time. Defendant moved for a
mistrial on the grounds that his right to compulsory process
had been denied, which the trial court denied.
        Defendant now argues that his right to compulsory
process was violated by the trial court’s refusal to take any
steps to enforce a lawful subpoena and to obtain C’s presence and testimony, asserting that the trial court effectively
quashed the subpoena. The state asserts that all of defendant’s arguments are premised on the incorrect assertion
that he was legally entitled to compel C’s last-minute reappearance at trial.
         As an initial matter, we address the state’s assertion that defendant did not have a right to recall C under
the circumstances. The state agreed at oral argument that
if C had not previously testified for the state, or if defense
    1
      Defense counsel later noted that C’s mother was present in the courtroom when the court indicated C would not be penalized for not appearing, and
expressed concern that she could have conveyed that information to C.
152                                                              State v. Pyle

counsel had not agreed that the witness could be released,
then the court would have been required to enforce the subpoena. The state at trial and in briefing largely focused on
the facts that defendant had already had a sufficient opportunity to question C, had not objected to his being released,
had no legitimate reason to recall him, and had unreasonably unilaterally served C at the last minute, demanding
his presence within two hours.
        Article I, section 11, of the Oregon Constitution provides that “[i]n all criminal prosecutions, the accused shall
have the right to … have compulsory process for obtaining witnesses in his favor ….”2 A defendant’s right to issue
subpoenas for witness testimony is further provided by ORS
136.567.3
         Apart from general assertions regarding procedural and timing facts, the state points to no law in support
of its position that defendant should not have been allowed
to recall C for his case-in-chief. Recalling a witness for

      2
        The Sixth Amendment to the United States Constitution, which applies
to the states through the Due Process Clause of the Fourteenth Amendment,
similarly provides that “[i]n all criminal prosecutions, the accused shall enjoy
the right … to have compulsory process for obtaining witnesses in his favor
….” Given the nearly identical wording of the two constitutional provisions,
Oregon case law has at times considered them simultaneously and has found
federal precedent persuasive. State v. Huffman, 

, 

 (1983). More recently, the Supreme Court has held that a compulsory process argument could be resolved under Article I, section 11, and thus did not
need to address whether the same conclusion would be reached under the Sixth
Amendment. State v. Weaver, 

, 21 n 5, 

 (2020). We limit the
discussion here to the Oregon Constitution.
      3
        ORS 136.567 states, as relevant here:
          “(1) 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.
          “(2) Any subpoena that a defendant in a criminal action is entitled to
      have issued shall be issued:
          “(a) Upon application of the defendant, by the clerk of the court in which
      the criminal action is pending for trial, and in blank, under the seal of the
      court and subscribed by the clerk; or
          “(b) By an attorney of record of the defendant, and subscribed by the
      attorney.”
Cite as 

 (2022)                                                153

purposes of rebuttal, or impeachment, is a well-established
litigation strategy. In any event, those arguments obscure
the essential point—the witness here was lawfully served.
The subpoena power is not limited to witnesses who have
not already been examined. Here, there is no dispute, and in
fact the state conceded at oral argument, that the subpoena
was lawful.
         We thus turn to the trial court’s decision not to
enforce defendant’s lawful subpoena. Whether a defendant’s
right to compulsory process has been violated is a question
of law. State v. Cartwright, 

, 

(2004); State v. David, 

, 

(2022). We review the trial court’s ruling whether to quash
a subpoena for abuse of discretion. Benchmark Properties v.
Hipolito, 

, 

 (1999). A court’s
ruling whether to initiate contempt proceedings or to grant
a continuance is reviewed for an abuse of discretion. State v.
Baker, 

, 125 n 7, 

 (2009).
         A person who has been subpoenaed has an obligation to appear as a witness and give evidence. State v.
Jackson, 

, 

 (2008). In some
limited circumstances a court may quash a subpoena, such
as when compliance would work a hardship on the witness or
would otherwise be oppressive. Hipolito, 

(“[A] witness who received two separate subpoenas requiring the witness to appear in two different courts that were
90 miles apart with only one hour between the times for
appearance was not subject to sanctions for contempt when
the witness appeared in one but not both courts.” (Citing
State v. O’Malley, 

, 

 (1970), overruling
and adopting dissent in State v. O’Malley, 

, 

 (1967).)).4 There are also limitations on a witness’s
    4
      There is no specific process for parties or a witness to challenge a subpoena
to provide testimony. Although former ORCP 55 B (2018), amended and renumbered as ORCP 55 A(7) (2020) does provide a process for challenging a subpoena
duces tecum, those procedures have not been extended to witnesses summoned
to testify. See Council on Court Procedures Amendments to the Oregon Rules of
Civil Procedure, Introduction, Dec 12, 2020, available at http://counciloncourtprocedures.org/Content/Promulgations/Amendments%20to%20the%20ORCP%20
Promulgated%2012-12-2020.pdf.). ORCP 55 D(1) requires service to be made
“so as to allow the witness a reasonable time for preparation and travel to the
place of attendance.” The court also has discretion to reasonably control the mode
154                                                           State v. Pyle

duty to accommodate a criminal defendant’s broad right to
compel testimony or evidence, including relevance and privilege. State v. Bray, 

, 

 (2016)
(citing Cartwright, 

); State v. Beeler, 

, 

 (2000) (“[C]ompulsory process does
not automatically trump other legitimate concerns and may,
for example, be subjected to a state’s established rules of
evidence and procedure.”). However, in the context of a criminal case, the trial court’s exercise of its inherent authority
to determine when witnesses may be relieved of their duty
to appear must be attentive to the constitutional demands
of compulsory process. See, e.g., State ex rel Gladden v.
Lonergan, 

, 

 (1954) (“The right to
compulsory process for necessary and material witnesses on
his behalf is a valuable right guaranteed to an accused. …
In the interests of justice, it is the duty of courts to enforce
the right.”).
         Unless an otherwise lawful subpoena is quashed or
modified by the trial court, it must be given effect. The court
has a range of actions with which it can compel compliance
with a lawfully issued subpoena. ORCP 55 G addresses subpoena enforcement:
   “Disobedience of subpoena; refusal to be sworn or to answer
   as a witness. Disobedience to a subpoena or a refusal to be
   sworn or to answer as a witness may be punished as contempt by a court before whom the action is pending or by
   the judge or justice issuing the subpoena. Upon hearing or
   trial, if the witness is a party and disobeys a subpoena or
   refuses to be sworn or to answer as a witness, that party’s
   complaint, answer, or reply may be stricken.”
ORCP 55 G (made applicable to criminal actions by ORS
136.600). The power of a court to impose sanctions for contempt is an inherent judicial power, and such sanctions

and order of the interrogation of witnesses and the presentation of evidence so
as to make the proceedings “effective for the ascertainment of the truth, avoid
needless consumption of time and protect witnesses from harassment or undue
embarrassment.” ORS 40.370(1). We presume that these provisions, along with
the trial court’s inherent discretion to manage the docket and pursue judicial
efficiency, would allow a court to quash a subpoena for testimony sua sponte.
     Effective January 1, 2020, former ORCP 55 (2018) was renumbered and
amended by the Council on Court Procedures Amendments. All references here
are to the rule in effect at the time of the trial.
Cite as 

 (2022)                                             155

can be punitive or remedial, ranging from fines to confinement. ORS 33.025(1); ORS 33.045; ORS 33.105. The available range of options indicates discretion on the part of the
court. It is also true that the use in ORCP 55 G of the word
“may” suggests that, when confronted with a witness who
has not complied with a subpoena, a court retains authority
to decline to institute contempt proceedings. Baker, 

. However,
      “when the circumstances of a case fall within the subject
      matter addressed by ORCP 55 G, although a trial court
      has discretion not to institute contempt proceedings, it is
      not free to employ procedures or remedies other than those
      provided by the legislature. Rather, the court’s action must
      be consistent with the goals of that statute: obtaining the
      witness’s appearance at the proceeding, punishing the witness’s noncompliance, or both. Excluding a nonparty witness’s testimony is not consistent with either of those goals.
      Rather, such a remedy in effect ratifies the witness’s noncompliance by permitting him to continue not to appear
      ….”

         Here, upon learning that he would not be able to
present evidence of C’s statements via Ladd’s testimony,
defense counsel determined C’s presence was necessary
to his case, and thus issued him a subpoena. The parties
did not dispute that the subpoena was lawfully served, and
the trial court found that C could testify if he voluntarily
appeared by 3:30 p.m. But the court also stated that it was
not inclined to continue the proceedings to the next day if C
did not appear, nor otherwise take any steps to enforce the
subpoena. When C did not appear by the appointed time, the
court denied defendant’s motion for a mistrial.
         There is nothing in this record that suggests the
trial court understood itself to be quashing the subpoena,
even if we assume that it had the authority to sua sponte do
so under these circumstances.5 As such, the trial court was
    5
      The court acknowledged the procedural difficulties in obtaining C’s presence within the short amount of time given the lack of advanced notice, including transportation and his mother’s current presence at the trial. The court did
not make specific findings that the subpoena was quashed based on hardship or
other oppression and recessed in order to see if C would indeed appear based on
156                                                            State v. Pyle

within its discretion to not impose contempt sanctions on
C; however, the denial of any remedy to enforce or modify
the subpoena and obtain the lawfully subpoenaed witness’s
appearance and testimony was an abuse of discretion.
         In a criminal proceeding, “the primary aim of the
law is to arrive at the truth of the matter in controversy, and
no obstacle should be sanctioned that would deny the presence of a competent witness who has knowledge of material facts.” State v. Weaver, 

, 

 (2020)
(internal citations omitted). A defendant’s right to compulsory process protects the right to a fair trial and the right to
present a defense. State v. Mai, 

, 

(1982) (“[T]he fundamental right that the compulsory process clause aims to protect is ‘the right to present a defense,
the right to present the defendant’s version of the facts as
well as the prosecution’s to the jury so it may decide where
the truth lies.’ ”) (quoting Washington v. Texas, 

, 

, 

 (1967)).
         How best to enforce the subpoena to ensure the presentation of evidence is committed to the sound discretion
of the trial court, but it cannot do nothing. Rather, the court
is free to craft the response that best secures the witness,
and thereby furthers the constitutional guarantees of a fair
trial that the subpoena power, for its part, helps to provide.
As the Supreme Court recently noted,
    “The right to compulsory process does not guarantee that
    a witness will obey a subpoena, come to court, waive privilege, or otherwise prove cooperative. But the compulsory
    process clause, adopted to ensure that defendants have
    tools to deal with witnesses who would not testify unless
    compelled, protects at least the right to try.”
Weaver, 

.
        For those reasons, we conclude that, in the circumstances presented here, the trial court abused its discretion
when it refused to exercise any option for enforcement of
defendant’s lawful subpoena.

the subpoena. The court also noted that had counsel informed the court earlier of
the decision to recall C, arrangements could have been made with counsel or C’s
mother to make it possible for C to appear voluntarily.
Cite as 

 (2022)                             157

         In addition, we conclude that the trial court’s error
was not harmless. To decide whether an error was harmless,
we assess the error in light of the record as a whole. “If the
evidence that was erroneously admitted or excluded relates
to a ‘central factual issue’ in the case, it is more likely to
have affected the jury’s determination than if it deals with
a tangential issue.” State v. Krieger, 

, 455-
56, 

 (2018) (quoting State v. Marrington, 

, 

 (2003)). Here, the erroneously excluded
evidence, C’s additional testimony and responses regarding
his prior statements to Ladd, would have addressed facts
that were integral to defendant’s account of the events that
transpired. We cannot say that the exclusion of C’s testimony regarding his statement to Ladd was harmless.
        Reversed and remanded.