Submitted December 18, 2013.
Deschutes County Circuit Court. 10FE1356MA. A. Michael Adler, Judge.
Peter Gartlan, Chief Defender, and Daniel Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[267 Or.App. 456] HADLOCK, J.
Defendant's wife disappeared in late 2010. A few days after a police officer confronted defendant with physical evidence potentially linking him to that disappearance, officers discovered what appeared to be a suicide note written by defendant in which he confessed to having done something that could not be forgiven and indicated where his wife's body could be found. Defendant was arrested and charged with one count of murder constituting domestic violence, ORS 163.115. At trial, defendant admitted to killing his wife, but asserted that he had accidentally caused her death while defending himself from her attacks. Defendant was tried by a jury and found guilty. He appeals the resulting judgment of conviction.
In his first four assignments of error, defendant argues that the trial court improperly admitted evidence of the victim's out-of-court statements under various exceptions to the hearsay rule. In his fifth assignment of error, defendant challenges the trial court's imposition of no-contact provisions in its judgment. As explained below, we reject the evidentiary arguments that defendant makes in conjunction with his first four assignments of error and, therefore, affirm defendant's murder conviction. However, we reverse on his fifth assignment of error and remand for entry of a judgment that does not include the challenged no-contact provisions.
Because the jury found defendant guilty, we view the evidence in the light most favorable to the state. State v. Clegg, 332 Or. 432, 434, 31 P.3d 408 (2001). Defendant and the victim met through mutual friends and married a few months later in August 2009. The victim worked as a respiratory therapist at a hospital, where her colleagues described her as an excellent employee with high standards who remained calm during medical crises.
On October 27, 2010, defendant had planned to drive from his home in Bend to his ex-wife's home in Silverton, [267 Or.App. 457] which was approximately two hours away, for their daughter's birthday. Defendant called and told his ex-wife that he could not make it to Silverton that day because he and the victim had gotten into a fight. He did drive to his ex-wife's home three days later to attend his daughter's birthday party. He returned to her home the next day, October 31, to leave a
trailer containing motorcycles, guns, and other items for storage.
At around the same time, defendant told several friends that the victim had left home on October 27 after a fight and had not returned. After learning about the victim's disappearance, some friends became concerned and tried unsuccessfully to contact her by phone. The victim's colleagues reported her missing to the police on November 2, when she did not come to work and they were unable to reach her by phone. Bend Police Officer Craig responded to the report from the victim's colleagues, performed a welfare check at the victim's residence, and began calling her friends and colleagues. Although defendant had not informed the police that the victim was missing, he agreed to be interviewed on November 2 after police contacted him. In that initial police interview, defendant told a detective that the victim had been drunk on October 27 and had struck his face, leaving a small gash. He also told the detective that he and the victim had gotten into another fight the next night, after which the victim had left home and not returned. Defendant also consented to a search of his home. Police officers left several voicemail messages for defendant after the initial interview, but he did not return the calls for several days.
On November 3, 2010, Bend Detective Tabor drove to defendant's ex-wife's home in Silverton and, with defendant's consent, searched the trailer he had left there four days earlier. During his initial search of the trailer, Tabor noticed two stains on the trailer's floor that he thought could be blood. On November 6, 2010, Tabor interviewed defendant about possible sources for any blood in the trailer. Defendant first suggested it could have been " red antifreeze" and later suggested it could have been his blood. After Tabor told defendant that it was a " significant amount of [recent] blood" that was " consistent with [the victim's] blood," defendant [267 Or.App. 458] explained that the victim had cut her knee while pulling weeds a few days before she disappeared and must have bled inside the trailer while watching him work on his motorcycles. That same day, defendant participated in a search party that was organized by the victim's friends.
On November 9, 2010, police officers searched defendant's home for a second time, pursuant to a warrant. Officers noted that a shotgun that had been unloaded during their first search of defendant's home was now loaded and in a different location. Officers also found what appeared to be a suicide note in the master bedroom nightstand. In that note, which was labeled " My Log," defendant wrote:
" What I've done can't be forgiven. She pushed me [too] far last week, beating me down mentally and physically. I should have been man enough to walk away, but she just wouldn't stop. You will find her in the Santiam [River] 6 miles past Marion Forks, down from the big pull out turn around.
" * * * This is not something I planned, I just snapped."
In a section of the note addressed to his children, defendant wrote, " Please stay away from the alcohol, you've seen what it has done to mine and others lives." Defendant was taken into custody. During a search of his wallet at the police station, officers found receipts dated October 23 and 24, 2010, for the purchase of two shotguns.
On November 12, 2010, defendant took police officers to the location described in his note where he claimed he had thrown the victim's body into the Santiam River. Officers recovered some of the victim's clothing, but her body was never found.
A few weeks after his arrest, defendant sent a letter to his cousin Jane, purporting to describe the events on the night leading up to the victim's death. In that letter, defendant claimed that he went to sleep and that the victim, who was drunk, came into the bedroom, jumped on top of him, forcibly took his wedding ring off his finger, and left the room. Around two hours later, she came back into the room and jumped on top of him again, striking him repeatedly and attempting to suffocate him with a pillow. Then, [267 Or.App. 459] defendant explained, he reached up in self-defense and grabbed the victim's throat with one hand and strangled her to unconsciousness. The victim then regained consciousness
and jumped at him " growling like an animal," striking him repeatedly in the head, ribs, and genitals, until he was able to throw her off of him. According to defendant, the altercation ended when the victim " hit the corner of the bed, flipped over backward" and died after landing " upside down on her head and [ ]neck." Defendant related similar versions of events in telephone conversations that he had with Jane while he was in jail.
After defendant's letter to Jane was introduced at trial, the state medical examiner testified that she thought it was " unlikely that [defendant] could strangle [the victim into] unconsciousness while she [was] above him" because it would be difficult to obtain the necessary leverage or pressure. The medical examiner also testified that death from a broken neck would require " quite a bit" of force and that it " doesn't seem likely" from defendant's description of events. She explained that death from a broken neck is typically seen in car crashes or " when people have * * * jumped from buildings to commit suicide." She added that, although " anything is possible," from her experience, the events described in defendant's letter were " improbable."
The medical examiner also testified that photos taken of defendant's body on November 2, 2010--the day that police officers first interviewed him--did not reflect the injuries that defendant described in his letter as having occurred on October 27:
" Well, in reading the letter there was a description of multiple blows by fists and open hands to the face. And [defendant] states that [the victim] concentrated around his ears and the side of his head. So I would expect, given the description that he had of still having ringing in his ears from this event a month later, that there should be contusions or bruises on the side of his face or around his ears.
" I don't see any contusions or bruises. I see what appears to be an abrasion, sort of a scratch type abrasion on his left cheek. That wouldn't come from say a fist or an open hand. So I don't see any indication of bruising around his head."
[267 Or.App. 460] The jury also heard evidence about statements that the victim made to friends and colleagues during the several months leading up to her death, in which she described defendant's violence, her fear of him, her concern about his drinking, and her desire to obtain marital counseling. In closing arguments, the state asserted that defendant intentionally killed the victim, emphasizing the numerous times she had expressed fear about defendant before her death and defendant's behavior in the days following her disappearance. Defendant, on the other hand, maintained that he had acted in self-defense. He portrayed the victim as a heavy drinker who had been growing increasingly jealous in her relationship with defendant. He argued that the victim had been the aggressor on the night she died and that defendant had panicked in the aftermath when he threw her body in the river and lied to police. The jury found defendant guilty.
In his first four assignments of error on appeal, defendant argues that the trial court erred by admitting evidence about the statements the victim made before her death. According to defendant, those statements--which we describe in detail below--all were inadmissible hearsay to which no exception to the rule against hearsay applies.
" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." OEC 801(3). Generally, hearsay is inadmissible unless it qualifies under an exception or exclusion from that general rule. OEC 802. In reviewing a trial court's ruling " that a statement fits within an exception to the hearsay rule," we will " uphold the trial court's preliminary factual determinations if any evidence in the record supports them." State v. Cook, 340 Or. 530, 537, 135 P.3d 260 (2006). We review " the trial court's ultimate legal conclusion, as to whether the hearsay statement is admissible under an exception to the hearsay rule, to determine if the trial court made an error of law." Id.
We begin by addressing defendant's second assignment of error, in which he challenges the admission of a statement that the victim made to her colleague, Knight, [267 Or.App. 461] approximately one day before her death. Knight had worked with the victim for approximately 10 years, and the two worked together on October 26, 2010. At the end of her shift, the victim told Knight, " I hope he is not drunk when I get home," before she got in her car and drove away. Defendant objected to that part of Knight's testimony on the ground that the victim's statement to Knight was inadmissible hearsay. The state argued that Knight's testimony was admissible under the state-of-mind exception to the rule against hearsay, OEC 803(3), because it showed the " victim's state of mind on that date when she left work" and was relevant to defendant's " claim of self defense," as well as defendant's theory " that [the victim] was the one with the alcohol problem not Defendant." The trial court admitted Knight's testimony. Defendant reiterates his objection to that evidence on appeal.
OEC 803(3) provides:
" The following are not excluded by [OEC 802, the general rule against hearsay], even though the declarant is available as a witness:
" * * * *
" (3) A statement of the declarant's then existing state of mind, emotion, sensation or physical condition, such as intent, plan, motive, design, mental feeling, pain or bodily health, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of the declarant's will."
The " state-of-mind" exception to the rule against hearsay admits " statements of existing mental or emotional condition to prove the mental or emotional condition of the declarant at the time the statements were made." State v. Richardson, 253 Or.App. 75, 80, 288 P.3d 995 (2012), rev den, 353 Or. 714, 303 P.3d 943 (2013) (internal quotation marks, brackets, and emphasis omitted). " [E]ven if a statement merely reflects the declarant's state of mind or reasonably supports an inference as to the declarant's state of mind, it constitutes an assertion [267 Or.App. 462] of the declarant's state of mind for purposes of OEC 803(3)." Clegg, 332 Or. at ...