State v. Palacios-Romero

The less-satisfactory-evidence instruction is to be given when (1) “other evidence was reasonably available on a fact in issue” and (2) “there is a basis for the jury to conclude that the other evidence is a stronger and more satisfactory than the evidence offered,” and in determining whether a defendant knowingly and voluntarily waived the right to be present, the court can consider its own knowledge of what transpired during trial, defense counsel’s statements, the court’s own judicial experience in matters of this kind, and “a certain measure of common sense.” State v. West, 289 Or App 415, 418 (2017); State v. Harris, 291 Or 179, 185-86 (1981).

Defendant requested a less-than-satisfactory-evidence instruction after an audio recording corroborating witness testimony became available, and the discussion about that instruction was held without Defendant’s appearance following his counsel’s representation of a waiver. Defendant assigns error to the trial court’s denial of the instruction request and acceptance of his counsel’s representation of a waiver. He argues the testimony is weaker and less satisfactory evidence than the recording, and that the waiver was invalid because it was not knowingly and voluntarily made by Defendant himself. The less-satisfactory-evidence instruction is to be given when (1) “other evidence was reasonably available on a fact in issue” and (2) “there is a basis for the jury to conclude that the other evidence is a stronger and more satisfactory than the evidence offered,” and in determining whether Defendant knowingly and voluntarily waived the right to be present, the court can consider its own knowledge of what transpired during trial, defense counsel’s statements, the court’s own judicial experience in matters of this kind, and “a certain measure of common sense.” State v. West, 289 Or App 415, 418 (2017); State v. Harris, 291 Or 179, 185-86 (1981). Denying the less-satisfactory-evidence instruction request was appropriate because the circumstances did not support a reasonable inference that the State was trying to hide something. The circumstances also allowed the trial court to reasonably understand counsel’s statement as a valid confirmation of Defendant’s waiver of his right to be present. Affirmed.