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State v. Schneider9/21/2005
En Banc
Argued and submitted October 5, 2004; resubmitted en banc May 16, 2005.
Before Brewer, Chief Judge, and Edmonds, Landau, Haselton, Armstrong, Linder, Wollheim, Schuman, Ortega, and Rosenblum, Judges.
Affirmed.
Defendant appeals a judgment of conviction for assault in the fourth degree, ORS 163.160, two counts of recklessly endangering another person, ORS 163.195, criminal mischief in the second degree, ORS 164.354, reckless driving, ORS 811.140, and driving under the influence of intoxicants (DUII), ORS 813.010. He advances a number of assignments of error ranging from the denial of a motion to dismiss on speedy trial grounds to the denial of his motion to suppress evidence and the failure of the trial court to deliver his requested instructions. We conclude that none of the assignments has merit and affirm.
We begin with a brief recitation of the factual background and then refer to additional facts pertinent to individual assignments of error as necessary. On March 9, 2000, defendant rear-ended a car that was stopped for a red light. That car was pushed into another car in front of it. A police officer responding to the accident smelled alcohol on defendant's breath and observed that defendant swayed from side to side and leaned on the tailgate of his pickup truck for balance. The officer asked defendant to perform field sobriety tests, which defendant agreed to do. Based on the results of those tests, the officer concluded that defendant had been consuming alcohol and was impaired. He arrested defendant for DUII and took defendant to the police station to administer a breath test. Defendant's blood alcohol content was .19 percent.
Defendant was indicted by a grand jury on October 26, 2000, on two counts of assault in the fourth degree, two counts of recklessly endangering another person, two counts of criminal mischief in the second degree, reckless driving, and driving under the influence of intoxicants. Trial took place on June 4, 2002. A jury found defendant guilty of six of those counts.
On appeal, defendant assigns error to eight different rulings by the court. We consider each in turn.
A. Motion to Dismiss on Speedy Trial Grounds
1. Relevant Facts
Defendant was originally cited on March 9, 2000. The following month, the prosecutor dismissed the citation and swore out a complaint against defendant that included eight misdemeanor counts. The prosecutor later dismissed the complaint as well and, on October 26, 2000, obtained a grand jury indictment on the same eight counts.
At defendant's arraignment on October 27, 2000, the trial court initially set a pretrial conference hearing date for December 18, 2000. Defendant's counsel asked if he could have another pretrial conference date because he was scheduled that day for a trial in a different matter. The court said, "You can have December 26th," to which defense counsel replied, "That works."
At the pretrial conference held on December 26, 2000, defendant rejected the state's plea offer, and thereafter, the following colloquy took place:
"THE COURT: Okay. We have a trial date then. Is that July 10th, the trial, and then call July 6th?
"[Defense Counsel]: Yes.
"THE COURT: Okay. Nine a.m. in the morning. All right. Thank you.
"[Defense Counsel]: Thank you very much."
Two weeks before trial, on June 27, 2001, the state moved for a continuance. In support of the motion, the prosecutor submitted an affidavit that, among other things, stated that defendant's counsel "does not object to this reset." The trial court reset
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