State v. Dikeos

Evidence that possessed an exculpatory value that was apparent before the evidence was destroyed and was of such a nature that it might be expected to play a significant role in the suspect’s defense was material, exculpatory evidence and would thus implicate a defendant’s due process rights.

Appellant appealed from a judgment of conviction for second-degree murder and from a judgment of dismissal for tampering with a witness. Appellant assigned error to the trial court’s denial of his motions to dismiss, his motion for a new trial, and his motion for a mistrial.

Appellant first argued that the trial court erred in denying his pre-trial and post-trial motions to dismiss because the evidence was materially exculpatory, but the court found that the exculpatory nature of the evidence was not readily apparent at any point, and the fact that the evidence was rediscovered post-trial has no bearing on whether the evidence had an exculpatory value that would have been readily apparent. Evidence that possessed an exculpatory value that was apparent before the evidence was destroyed and was of such a nature that it might be expected to play a significant role in the suspect’s defense was material, exculpatory evidence and would thus implicate a defendant’s due process rights. 

Appellant then argued that the evidence that had been discarded constituted “newly discovered evidence” that was exculpatory and required a new trial under ORCP 64B The court disagreed, holding that the new evidence was not enough such that it would “probably change the result if a new trial was granted” under State v. Simon, 294 Or App 840.

Appellant then argued that the trial court should have granted his motion for a mistrial for a discovery violation because there was a “reasonable probability that the suppressed evidence would have resulted in a different outcome.” The court held that the discovery violation was not of such magnitude to undermine confidence in the outcome of the trial. 

Finally, appellant argued that the trial court should have acquitted, rather than dismissed, the charge of tampering with a witness when he moved for a judgment of acquittal. “In any criminal action the defendant may, after close of the state’s evidence or of all the evidence, move the court for a judgment of acquittal. The court shall grant the motion if the evidence introduced…is such as would not support a verdict against the defendant.” ORS 136.445. The court agreed. 

JUDGMENT OF DISMISSAL ON COUNT OF TAMPERING WITH A WITNESS REVERSED AND REMANDED, OTHERWISE AFFIRMED.