State v. Knight

173 P.3d 1210, 343 Or. 469, 2007 Ore. LEXIS 1114
CourtOregon Supreme Court
DecidedDecember 6, 2007
DocketCC 03023540C; CA A122440; SC S54423
StatusPublished
Cited by15 cases

This text of 173 P.3d 1210 (State v. Knight) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Knight, 173 P.3d 1210, 343 Or. 469, 2007 Ore. LEXIS 1114 (Or. 2007).

Opinions

[471]*471GILLETTE, J.

In this criminal case, defendant challenges a trial court’s decision to allow the jury to hear a recording of defendant making disparaging comments about his attorney and threatening to “sign [his] kids over to the state” if his mother did not retain a different attorney for him. Defendant contends that his comments about his attorney were inadmissible under the evidence code and that allowing the jury to hear them violated his constitutional right to counsel. The Court of Appeals decision affirmed the trial court’s judgment. State v. Knight, 209 Or App 562, 149 P3d 164 (2006). We allowed defendant’s petition for review and now agree with his argument that admission of his recorded comments was error and grounds for reversal. Accordingly, we reverse the decision of the Court of Appeals and the judgment of the trial court.

Defendant was charged with sexual abuse in the first degree, ORS 163.427, and unlawful sexual penetration in the second degree, ORS 163.408. The alleged victim was the 13-year-old daughter of defendant’s girlfriend. At trial, the victim testified that defendant had taken her and defendant’s nine-year-old son camping; that he had arranged to sleep with her in the back of the car — a station wagon — while his son slept in the front seat; and that, during the night, defendant had put his hand down her pants and inserted his finger into her vagina. Defendant testified in his own defense. Generally, defendant presented himself as a caring person and a good father who always did his best to accommodate the demands of his children. He testified that (1) the victim and his son had begged him to take them camping and he had agreed to take them because he was a good father, kept his promises, and wanted to “do the right thing for [his] kids”; (2) both children had wanted to sleep in the back of the car with him and that, rather than allowing his natural biases in favor of his own child to dictate the result, he had tried to keep things pleasant and fair by having the children resolve the dispute with a game of “odd man out” (which the victim won); (3) he had never touched the victim and thought that she had fabricated the sexual abuse story in order to alienate her mother and defendant so that she could go live [472]*472with her grandmother; and (4) he was a “serious parent,” loved his children “very much,” wanted to fulfill the expectations of his own and his girlfriend’s children and wanted them to have good childhoods, and felt that “if you screw up your kids, you’re better off not living.”

After hearing defendant’s testimony, the prosecutor announced that she wished to impeach defendant’s various statements about his love and concern for his children by introducing a tape recording of a telephone conversation that defendant had with his mother while he was in jail awaiting trial. Because its admissibility was in question, the trial court first listened to the recording out of the presence of the jury.

In the recording, defendant was trying to persuade his mother to hire a private attorney for him, so that he would not have to go to trial with the attorney that the court had appointed. We quote from the recorded conversation at considerable length:

“Defendant: Yeah, but listen, that’s not going to save my ass. I’ve got papers here to sign my kids over to the state.
“Mother: Why’s that?
“Defendant: Because I’m preparing to go — I am preparing myself to go to prison because of this shit getting all fucked up.
“Mother: Yeah.
“Defendant: If you and J odie cannot get me a good lawyer, I’m going to go do my fucking time, I’m going to sign my kids over to the State of Oregon, and you guys will never fucking see me again.
“Mother: Yeah, but Roy, we have done everything that we can.
“Defendant: No. No. When I’ve got a different fucking lawyer, then you’ve done everything you can. If it was you, I would do anything.
[473]*473“Mother: You cannot — you cannot let them pay the dues for all of this, Roy.
“Defendant: Listen, I’m not taking it out on my kids. I’m not. That — I’m telling you what I’m going to do, and you can count on it. If I go to court with this fucking attorney, I’m fucked.
“Mother: I — I have done everything. And I told the investigator yesterday that we’ll all give testimony.
“Defendant: Okay. Listen. Listen. I don’t care what you can’t do. I don’t care what you’ve done — what you have done. I’m telling you if I go to trial with this fucking attorney, I’m signing my kids over to the state, and I’m going to go and do my time, and then I’m going to live in Mexico. I am not going to live in America with a fucking sex beef on me at 55 years old.
“Mother: Well Roy, we’re not going to go that road because that’s not going to happen.
“Defendant: Bullshit. That is some fucking bullshit. I’m going to go to jail with this motherfucker.
“Mother: Well, Roy, I can’t (INAUDIBLE) the system.
“Defendant: No. All I’m looking for is go find a lawyer. I don’t give a fuck if it’s goddamn Mr. Magoo and on his first case. I’ll pay for whatever it takes when I get out of here. I can’t do anything here. I cannot do anything here.”

Defendant went on to suggest that his mother should sign a promissory note or a lien, or even rob a bank, to get money to hire a different lawyer for him. He ended the conversation by warning his mother that “if I go down for this, I’m turning my kids over to the state.”

Upon hearing the recording, defendant’s lawyer objected that “this should not come in.” He insisted that the jury would conclude that defendant’s derogatory comments were directed at him and that it would be extremely difficult for him to advocate for defendant in front of jurors who knew that defendant had “called [him] every name in the book” and did not believe that he was competent. In addition to those concerns, defendant’s lawyer concluded by arguing that “it’s unfair prejudice because it directly impedes my ability as an [474]*474attorney under the Sixth Amendment to advocate on behalf of my client.”

The trial judge then offered his own view, which was that much of the recorded conversation was inadmissible and that the only part that was relevant was defendant’s comment “about signing his kids over to the state if she doesn’t get him another attorney.” The court indicated that it was inclined to allow the state to ask defendant if he had made that statement, but to allow the jury to hear the recording if, and only if, defendant denied making the statement.

Defendant’s lawyer was not satisfied with that solution.

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State v. Knight
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Cite This Page — Counsel Stack

Bluebook (online)
173 P.3d 1210, 343 Or. 469, 2007 Ore. LEXIS 1114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-knight-or-2007.