Argued and submitted on June 19, 2013.
Lane County Circuit Court 211105237 Ilisa Rooke-Ley, Judge.
Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Erin C. Lagesen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
In this criminal case, defendant was charged with two counts of assault in the fourth degree, ORS 163.160. Count 1 alleged that defendant assaulted his roommate, Saner. Count 2 alleged that defendant assaulted his neighbor, Allen. During trial, defendant sought to present evidence that he was not guilty of Count 1 because he hit Saner in self-defense. The trial court excluded some of that evidence. Also during trial, the police officer who investigated the charged assaults testified that defendant had refused to meet with her. In response to the officer's testimony, defendant moved for a mistrial on both counts, asserting that the testimony constituted an impermissible comment on his invocation of his right to remain silent. The trial court denied the motion. A jury found defendant guilty of both counts.
Defendant appeals the resulting judgment of conviction, raising four assignments of error. Defendant's first three assignments of error relate to the trial court's exclusion of evidence he sought to present to support his claim that he was not guilty of Count 1 because he hit Saner in self-defense. We conclude that the trial court erred in excluding the evidence that is the subject of defendant's first assignment of error, and we further conclude that the error was not harmless; accordingly, we reverse and remand for a new trial on Count 1. Because the record may develop differently on remand, we do not reach defendant's second and third assignments of error, which also relate to Count 1. Defendant's fourth assignment of error relates to the trial court's denial of his motion for a mistrial on both counts. We conclude that, even if the police officer's challenged testimony constituted a comment on defendant's invocation of his right to remain silent, the trial court did not abuse its discretion in denying defendant's motion for a mistrial; accordingly, we affirm on Count 2.
Given the nature of defendant's assignments of error, we begin by describing the evidence that defendant sought to present regarding his self-defense claim and the trial court's rulings on the admissibility of that evidence. We then describe the evidence relevant to the issues on appeal that the parties presented at trial.
Defendant sought to present evidence that, in the days before the March 9 incident that led to the charges in this case, Saner had been increasingly aggressive toward him. Specifically, defendant sought to present evidence about incidents on March 4 and March 7. Defendant wanted to testify about both incidents, and he also wanted to present the testimony of another roommate, Parks, who had witnessed both incidents.
Regarding the March 4 incident, defendant sought to present evidence that Saner had been verbally aggressive toward him during a dispute about a television. The trial court ruled that neither defendant nor Parks could testify about the incident at trial. In an offer of proof, defendant testified that he had brought a television home on March 4 and that he had been watching it with Parks and another roommate when Saner came home. Defendant testified that Saner did not say anything about the television at first, but later that night, after drinking alcohol, Saner "got right in [his] face" and was "ranting and raving" about the television. Also in an offer of proof, Parks testified that Saner, who was "drunk as a skunk, " told defendant that he should have told him about the television before bringing it into their shared apartment and "got in [defendant's] face * * * just yelling and screaming and calling him names."
The trial court excluded both defendant's and Park's testimony about the March 4 television incident on the ground that the incident was not a "violent interaction between the parties." The court explained that defendant had presented only evidence of "yelling and screaming, " which, in the court's view, was insufficient to establish that the incident was relevant to defendant's self-defense claim.
Regarding the March 7 incident, defendant sought to present evidence that Saner came into the bathroom when defendant was taking a bath, yelled at him, and pushed him down when he tried to get out of the bathtub. The trial court allowed defendant to testify about the incident at trial, and defendant testified that Saner barged into the bathroom, yelled at him, and pushed him down three times when he tried to get out of the tub. Defendant also testified that his toe was broken during the incident.
After defendant testified about the March 7 bathroom incident, the trial court ruled that Parks could not testify about the incident at trial. In an offer of proof, Parks testified that, in response to yelling, he went into the bathroom, where he saw defendant trying to get out of the bathtub and Saner pushing defendant back into the tub and under the bath water. Specifically, Parks testified as follows:
"[PARKS]: * * * There was a commotion in the bathroom. I go to the bathroom and I just noticed yelling, a lot of yelling. I noticed that [defendant] was in the bathtub and um--he was trying to get out of the bathtub, and I noticed that Mr. Saner was preventing that from happening, and--
"[DEFENSE COUNSEL]: How was he preventing it from happening?
"[PARKS]: It--he was preventing it from happening by him using his hands and pushing him into the tub. So [defendant] was trying to get out of the tub. He was pushing him back. And I seen him go underneath the water a few times.
"[DEFENSE COUNSEL]: When you sa[w] him go underneath the water, was it his head and--
"[DEFENSE COUNSEL]: Okay. So was--explain exactly what happened. * * * Mr. Saner did what? He pushed--
"[PARKS]: So Saner was just infuriated. You know, just yelling and screaming. [Defendant] was doing the same thing too. And [defendant] was trying to, you know, get out of the tub. He was, you know, forcefully pushing him into the tub. And you know--and this happened, you know ...