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FILED: September 6, 2012
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,

v.
DEPRINCE ROMEY HALE, aka Deprince Hale, Defendant-Appellant.
Multnomah County Circuit Court 070331144
A139382
Edward J. Jones, Judge.
Argued and submitted on December 21, 2011.
Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant.  With her

on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.  

Deprince Romey Hale filed the supplemental brief pro se.
Janet A. Klapstein, Senior Assistant Attorney General, argued the cause for respondent.  
With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams,
Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
WOLLHEIM, J.
Affirmed.

1  WOLLHEIM, J.  
2  Defendant and his codefendant, Klein, were charged with murdering Asia  
3  Bell and attempting to murder Tyrone James and Robert Milhouse in a gang-related  
4  shooting at the Bell residence ("the Bell shooting").  The Bell shooting occurred in 2002,  
5  but the criminal investigation went cold until Klein's former girlfriend, Hutchens,  
6  contacted the prosecutor's office in 2006.  Based on information that Hutchens supplied,  
7  police obtained orders allowing them to intercept communications between defendant and  
8  Hutchens by way of a body wire worn by Hutchens.  And, based on evidence obtained via  
9  the body wire and further investigation, the police obtained a wiretapping order that  
10  yielded additional evidence regarding the shooting.  Both Klein and defendant sought to  
11  suppress evidence obtained by way of those intercept orders, on the ground that the  
12  orders--particularly, the second body-wire order--were obtained illegally.  The trial court  
13  denied the motions, and Klein and defendant were convicted of murder, conspiracy to  
14  commit murder, and attempted aggravated murder.  
15  Klein's appeal reached this court first.  He argued, as he did below, that the  
16  body-wire and wiretapping evidence should have been suppressed because the underlying  
17  communications were unlawfully intercepted.  See ORS 133.735(1) ("[a]ny aggrieved  
18  person in any trial, hearing or proceeding in or before any court * * * may move to  
19  suppress the contents of any wire, electronic or oral communication intercepted under  
20  ORS 133.724, or evidence derived therefrom" on the ground that the "communication  
21  was unlawfully intercepted"); ORS 133.736(1) (similarly providing that any "aggrieved  

1  person" may move to suppress unlawfully intercepted body-wire evidence).  We affirmed  
2  without reaching the merits of Klein's suppression argument, however, because the  
3  intercept order that he challenged--the second body-wire order--was directed at  
4  communications between Hutchens and defendant, not Klein. Thus, Klein was not a  
5  party to the intercepted communication and was not otherwise an "aggrieved person" for  
6  purposes of challenging the second body-wire order.  State v. Klein, 243 Or App 1, 10,  
7  258 P3d 528 (2011). The Supreme Court affirmed that decision.  352 Or 302, ___ P3d  
8  ___ (2012).  
9  We now have defendant's appeal before us, in which he raises the same  
10  suppression issue that his codefendant raised in Klein: whether the second body-wire  
11  order was unlawful because it was signed by a judge who, years before, had been the  
12  district attorney assigned to the then-unsolved case of the Bell shooting.  Defendant,  
13  unlike Klein, was the subject of the second body-wire order and can challenge that order  
14  as an "aggrieved person." See ORS 133.721(1) ("'Aggrieved person' means a person who  
15  was a party to any wire, electronic or oral communication intercepted under ORS 133.724  
16  or 133.726 or a person against whom the interception was directed and who alleges that  
17  the interception was unlawful.").  Now reaching the merits of the issue, we conclude that  
18  the trial court correctly denied the motion to suppress.  We also reject defendant's  
19  remaining contentions, some of which were also rejected by this court and the Supreme  
20  Court in Klein, and thus affirm defendant's convictions.1  
1 In a pro se supplemental brief, defendant raises additional assignments of error in  

1  I. BACKGROUND  
2  In 2002, Asia Bell, Tyrone James, and Robert Milhouse were shot on the  
3  front porch of the Bell residence.  The facts surrounding the shooting are described in the  
4  Supreme Court's opinion in Klein, which we repeat here for purposes of background:  
"[Klein] drove [defendant] to and from the scene of the crime. [Klein's]  
6  girlfriend at the time, Sonja Hutchens, served as a lookout during the  
7  shooting. [Klein] and [defendant] are gang members; the victims were  
8  associated with, although not members of, a rival gang.  
9  "The police developed few leads in their investigation until 2006,  
when Hutchens, who then was serving a 10-month jail sentence for an  
11  unrelated crime, contacted the prosecutor to offer information about the  
12  murder in exchange for an early release. Hutchens identified [defendant] as  
13  the shooter; she did not identify [Klein] as the driver, nor did she  
14  acknowledge her role as lookout at that time. Based on the information that  
Hutchens supplied, the police obtained an order under ORS 133.726, the  
16  body-wire statute, to intercept oral communications between Hutchens and  
17  [defendant] by means of a body-wire worn by Hutchens.  
18  "Before that order expired, the police applied for a second body-wire  
19  order, which is the subject of [Klein and defendant's challenges]. The  
application for the order described conversations between [defendant] and  
21  Hutchens that the police had intercepted previously. The application also  
22  stated that Hutchens had failed a lie detector test and had admitted to the  
23  police that she had misled them about several important facts regarding the  
24  murder. As relevant here, the application noted that Hutchens had stated  
that [Klein] had driven [defendant] and several other gang members to the  
26  house where the shooting occurred. The application also stated that  
27  Hutchens had admitted that she had followed [defendant] and [Klein] in a  
28  separate vehicle to serve as a lookout.  
29  "Although the application for the order mentioned [Klein] and  
several other gang members who were present in the vehicle [during the  

which he contends that he should have been allowed to play complete audiotapes of certain recorded conversations.  We reject those arguments without discussion.
3
1  shooting], the order did not name [Klein] or the other gang members.  
2  Rather, the order provided:  
3  "'The persons whose oral communications are to be recorded are  
4  SONJA ELAINE HUTCHENS and DEPRINCE ROMEY HALE  
[defendant] and other unknown subjects who may be present during  
6  contacts by SONJA ELAINE HUTCHENS with DEPRINCE  
7  ROMEY HALE. This order authorizes only the interception of oral  
8  communications to which SONJA ELAINE HUTCHENS is a party,  
9  which means oral communications that are made in the immediate  
presence of DEPRINCE ROMEY HALE and are audible to  
11  DEPRINCE ROMEY HALE.'  
12  "Judge Eric Bergstrom signed the order.  
13  "Based on the order, the police placed a body-wire on Hutchens and  
14  recorded conversations between [defendant] and Hutchens. Those  
conversations implicated [Klein] in the murder. Based in part on those  
16  conversations, the police obtained a wiretap order under ORS 133.724,  
17  which authorized the interception of communications made by [Klein] on  
18  his mobile phone. [Klein] made incriminating statements to Hutchens over  
19  his phone, which the police intercepted.  
"Before trial, [Klein and defendant2] filed separate motions to  
21  suppress evidence gained from the body-wire order and the wiretap order.  
22  As to the body-wire order, [the codefendants] alleged that the order was  
23  invalid because Judge Bergstrom was not a neutral and detached magistrate.  
24  [The codefendants] asserted that, in 2002, at the time of the murder, Judge  
Bergstrom had been a deputy district attorney for Multnomah County, and  
26  that he had been called to the scene of the murder and had attended the  
27  autopsy. Because there were no suspects in the murder investigation until  
28  Hutchens came forward in 2006, however, the district attorney's office did  
29  not open a file on the case until after Judge Bergstrom had left his position  
as a prosecutor in 2005. The trial court denied [their] motion. As to the  
31  wiretap order, [the codefendants] alleged that evidence gained under that  
32  order should be suppressed because the application for the order had relied  
33  on evidence gained from the invalid body-wire to establish probable cause.  
2 The court's decision in Klein refers only to Klein's motions; Klein and defendant  
were tried as codefendants and made similar, if not identical, arguments on the relevant  
issues.  

1  Thus, [their] argument that the wiretap evidence should be suppressed  
2  depended on the court's agreement with [their] argument that the body-wire  
3  evidence was unlawfully obtained and should be suppressed. The trial court  
4  denied [their] second motion as well.  
5  "At trial, Hutchens was a witness for the state. [The codefendants]  
6  sought to raise questions about Hutchens's credibility through the testimony  
7  of Aisha Banks, who had been incarcerated with Hutchens. Banks was  
8  prepared to testify that Hutchens told her that she had 'made up' information  
9  about the shooting in order to get out of jail. The trial court excluded the  
10  evidence as cumulative under OEC 613(2) on the ground that Hutchens had  
11  already admitted making those statements: Hutchens testified on the stand  
12  that she had lied repeatedly to the police and others regarding the events in  
13  question, and she admitted telling Banks that she made up 'this whole thing'  
14  in order to get out of jail."  
15  352 Or at 303-06.  
16  Ultimately, Klein and defendant were both convicted for their roles in the  
17  crimes. Defendant was convicted of murder, attempted aggravated murder, and  
18  conspiracy to commit murder (which merged with the murder conviction). He was  
19  sentenced to life in prison with a mandatory minimum of 300 months in prison for the  
20  murder and, consecutively to that sentence, to two concurrent sentences of 121 months'  
21  imprisonment on the attempted aggravated murder convictions.  He now appeals.  
22  II. ANALYSIS  
23  A. Motion to Suppress  
24  In his first assignment of error, defendant contends that the trial court erred  
25  in denying his motion to suppress evidence derived from the use of a body wire.  
26  Specifically, defendant contends that the second body-wire order was not signed by a  
27  "neutral and detached magistrate" and was therefore unlawful.  For the reasons that  

1  follow, we are not persuaded that the court erred in denying defendant's motion to  
2  suppress. 3  
3  1. Issues Presented  
4  We review the trial court's ruling on the motion to suppress for errors of  
5  law, and we are bound by the trial court's factual findings that are supported by sufficient  
6  evidence in the record.  State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993).  The relevant  
7  facts, stated consistently with that standard, are as follows.  
8  In October 2006, Detective Paul Weatheroy, an investigator in the cold case  
9  homicide unit, prepared an application for a body-wire order and presented that  
10  application ex parte to Judge Bearden, who signed it.  See ORS 133.726(3) ("An ex parte  
11  order for intercepting an oral communication in any county of this state under this section  
12  may be issued by any judge as defined in ORS 133.525 upon written application made  
13  upon oath or affirmation of the district attorney or a deputy district attorney authorized by  
14  the district attorney for the county in which the order is sought or upon the oath or  
15  affirmation of any peace officer as defined in ORS 133.005.").  The order authorized  
16  police to obtain and record oral communications between Hutchens and defendant that,  
3 Defendant also contends that the second body-wire application did not demonstrate  
probable cause to believe that intercepting the communications would lead to evidence of  
a crime.  The trial court rejected that argument, and so do we, without discussion.  
Furthermore, defendant contends that the second body-wire order was fatally defective  
because ORS 133.726 does not authorize extensions of existing body-wire orders (as  
opposed to the initial issuance); rather, he contends, ORS 133.724 sets out the pertinent  
requirements for extensions, which the second body-wire order did not meet.  Defendant  
did not raise those contentions below in any form, nor do they amount to plain error.  

1  Weatheroy averred, were expected to yield evidence that defendant was responsible for  
2  the Bell shooting.  See ORS 133.726(5) (judge may enter an ex parte order authorizing  
3  body-wire interception if the facts submitted by the applicant demonstrate "(a) [t]here is  
4  probable cause to believe that a person is engaged in committing, has committed or is  
5  about to commit a particular felony" and "(b) [t]here is probable cause to believe that the  
6  oral communication to be obtained will contain evidence concerning that crime").  The  
7  order was set to expire on November 5, 2006.  See ORS 133.726(6)(e) (body-wire order  
8  must list "[a] period of time after which the order shall expire").  
9  During the month of October 2006, defendant and Hutchens did not have  
10  any recorded conversations, but Weatheroy believed that such a conversation might take  
11  place the following month.  On November 3, two days before the body-wire order was to  
12  expire, Weatheroy prepared a second application.4 He was under the impression that  
13  Judge Bearden was in his chambers on that day and went to the courthouse intending to  
14  present the application to him.  Weatheroy arrived at the courthouse between 4 and 5 p.m.  
15  that day--a Friday--and was walking to Judge Bearden's chambers when he encountered  
16  Judge Bergstrom in the hallway of the courthouse.  
17  Judge Bergstrom had been a deputy district attorney in Multnomah County  
4 The November 2006 application contained all the information from the first  
application, as well as additional information, including Hutchens's phone contact with  
defendant and his suspicion that she was working with police.  (Weatheroy later filed a  
third application in December 2006 that included information obtained from the second  
body wire, and the court issued that third body-wire order as well; the third order is not at  
issue on appeal.)  

1  before becoming a judge, and he and Weatheroy had a professional relationship dating  
2  back to those days.  In a brief exchange in the hallway, Judge Bergstrom asked what  
3  Weatheroy was doing at the courthouse, and the detective explained that he was  
4  attempting to get Judge Bearden's signature on an affidavit for a court order; Weatheroy  
5  did not tell Bergstrom the name of the case or disclose anything else about it at that time.  
6  Judge Bergstrom told Weatheroy that, if he had a difficult time finding a judge that  
7  afternoon, Bergstrom was going to be at a nearby restaurant and would be willing to  
8  review the affidavit.  
9  Weatheroy then headed to Judge Bearden's chambers but found the office  
10  dark. The detective walked the floor looking for another sitting judge, but he was unable  
11  to find one.  He later proceeded to the nearby restaurant in search of Judge Bergstrom.  
12  Weatheroy found Judge Bergstrom there, produced the body-wire application, and asked  
13  Judge Bergstrom whether he was still willing to review it.  The judge agreed and took the  
14  document to an empty table where he reviewed it for approximately 10 to 15 minutes  
15  before signing it.  
16  The issue in this case stems from the fact that Judge Bergstrom not only had  
17  been a deputy district attorney, but he had been the deputy district attorney assigned to the  
18  Bell investigation. At the time of the shooting in 2002, Bergstrom was a senior deputy  
19  district attorney supervising the investigation of gang-related crimes.  When police  
20  responded to reports of the Bell shooting, Bergstrom was called to the crime scene as  
21  well. His role was to act in an advisory capacity, assisting the investigating officers if  

1  they had questions about conducting a search, and otherwise acting as a resource for the  
2  officers.  Bergstrom saw Asia Bell's body at the crime scene and later attended her  
3  autopsy.  
4  In 2005, Bergstrom was appointed to the Multnomah County Circuit Court  
5  as a judge.  As of that time, no one had been charged in the Bell shooting; in fact, the case  
6  had been "cold" since March 2003. When Bergstrom left the district attorney's office, he  
7  left behind a file that included autopsy photographs and newspaper articles that he had  
8  clipped.  The file did not include copies of investigative reports, but Bergstrom was  
9  nonetheless familiar with the investigators' theory of the case:  that it was instigated by a  
10  dispute over a dog fight, which led to the murder of Bingo Gonzales, which, in turn, led  
11  to the Bell shooting.  
12  At the hearing on the motion to suppress, Judge Bergstrom testified that the  
13  body-wire order was the first time that he had seen Hutchens's or defendant's name in  
14  connection with the Bell shooting.  In fact, he did not have an independent memory of  
15  recognizing any names in the body-wire application, but he was "very confident [he]  
16  would have recognized Asia Bell's name," which appeared throughout the application.  
17  Bergstrom testified that he was not "biased in any fashion" when reviewing the material,  
18  and that "[i]t's very second nature to [him].  Either probable cause is there or it's not."  
19  When asked on cross-examination whether he should have disqualified himself under the  
20  canons of judicial conduct, Judge Bergstrom responded in the negative, submitting that "I  
21  never acted as a lawyer in a court proceeding.  There was never a case brought to the  

1 office for review.  There was never a case that I entered into our system.  There was never 2 a case I grand juried.  There was never a time I was prosecuting [defendant or Klein]." In 3 sum, Bergstrom viewed the matter like "hundreds of other warrants, where I'm just 4 reading to see whether probable cause exists * * *." 5 Defendant, of course, disputed whether the circumstances were just like any 6 other application for an order.  In his motion to suppress, he argued that Judge 7 Bergstrom's previous involvement in the Bell investigation "disqualified" him such that 8 he "cannot hear any motion, cannot preside as a judge, cannot sign any search warrant."  9 Specifically, defendant argued that, because the body-wire order "was not signed by a
10 neutral and detached magistrate, it's [suppressed].  There's no other remedy."  See ORS 11 133.736(1) (An "aggrieved person" may "move to suppress recordings of any oral 12 communication intercepted in violation of ORS 133.726 or testimony or other evidence 13 derived solely from the unlawful interception."). 5 14 The trial court agreed with defendant's predicate--that Judge Bergstrom was 15 not a "neutral and detached magistrate"--but disagreed that suppression was an 16 appropriate remedy under the circumstances:
5  Defendant's suppression arguments below regarding the "neutral and detached  
magistrate" were based primarily on constitutional grounds rather than a statutory  
suppression remedy, although he now advances, to a minimal extent, statutory arguments  
as well. See __ Or App at ___ (slip op at 12 n 7). Defendant did not identify in the trial  
court, nor do the parties cite on appeal, any statutory language bearing on the meaning of  
"neutral and detached" in this context.  

1  "THE COURT: * * *. I think he falls into the category that he's not  
2  neutral and detached. I don't think he's very far in that category.  I think  
3  he's in the first circle.  And I don't think that it was a very serious fall.  
4  "And I totally appreciate that if he hadn't been walking down the  
5  stairs at that exact moment, another judge would have been rounded up one  
6  way or another, and that other judge would have signed off.  
7  "* * * * *  
8  "I also find that the officer [Weatheroy] had no ulterior motive  
9  whatsoever in picking this judge. * * * It was happenstance. * * *.[6]  
10  "I also find that although the red flags were there, the judge had no  
11  conscious awareness of any problem whatsoever.  And so everybody, in my  
12  mind, was acting in good faith.  
13  "However, there was a violation.  I just find that because of the  
14  inevitable discovery and because the violation is so de minimus, that the  
15  constitution would never forbid the State from using the evidence that was  
16  garnered as a result of that.  * * *"  
17  On appeal, defendant lauds the trial court's initial reasoning that Judge  
18  Bergstrom was not "neutral and detached" but argues that, contrary to the trial court's  
19  ultimate ruling, (1) there is no "good faith" exception to the exclusionary rule under  
20  Oregon law, (2) the doctrine of inevitable discovery is inapposite in these circumstances,  
21  and (3) there is no such thing as a "de minimis" violation of the requirement of a "neutral  
22  and detached" magistrate.  The state, for its part, responds that Judge Bergstrom's  
23  previous involvement in the Bell investigation was too minimal to rise to the level of a  
6 Weatheroy, who had reviewed the file in the case prior to preparing the  
application, testified that he would have come across Bergstrom's name in the  
investigative file but that he was not specifically conscious of the connection at the time  
that he approached Judge Bergstrom in the restaurant; "it was nothing that I was mindful  
of on that particular date."  The court found that testimony to be credible.  

1 constitutional violation, considering that "[i]n 2002, there existed neither case nor suspect
2 on which to base a prosecution, and Bergstrom recalled almost nothing about the 2002
3 crimes when he signed the order in 2006."  For the reasons that follow, we agree with the
4 state that Judge Bergstrom was "neutral and detached" as that requirement is understood
5 in the context of the issuance of warrants and standards of due process, and we therefore
6 affirm the trial court's order denying suppression.7
7 2. "Neutral and Detached"
8 With respect to the issuance of warrants--and, for the sake of argument, we
9 assume that the issuance of a body-wire order invokes an analogous standard, __ Or App
10 at __ n 5, __ n 7 (slip op at __ n 5, __ n 7)--the requirement of a "neutral and detached"
11 magistrate is described in two lines of cases.  See United States v. Bowers, 828 F2d 1169,
7 Defendant's arguments derive from state and federal search and seizure case law and, indeed, the explicit premise of defendant's arguments--at least in his opening brief-

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