and submitted March 16, 2015.
County Circuit Court C100622CR; Rick Knapp, Judge.
C. Bennett, Deputy Public Defender, argued the cause for
appellant. With him on the brief was Peter Gartlan, Chief
Defender, Offce of Public Defense Services. Brian Daniel
Bement fled the supplemental brief pro se.
Peenesh H. Shah, Assistant Attorney General, argued the cause
for respondent. With him on the brief were Ellen F.
Rosenblum, Attorney General, and Anna M. Joyce, Solicitor
Duncan, Presiding Judge, and Lagesen, Judge, and Flynn,
Summary: Defendant appeals his conviction for aggravated
murder, assigning error, among other things, to the trial
court's exclusion of statements that G, the victim, made
in emails during the last five months before his death.
Defendant argues that the statements supported his theory of
self-defense because they indicated that G had a motive to
attempt to rob defendant. The trial court excluded the email
statements on the basis that they were irrelevant, either
because they described factual details that were not relevant
to G's state of mind or because the statements were too
old to be relevant. The trial court also excluded some
statements because they constituted inadmissible hearsay.
Held: The trial court erred in excluding the email
statements. The statements satisfied the minimal standard for
relevance, either as direct or circumstantial evidence that G
had a motive to act violently, or as context for statements
that are independently relevant. To the extent that any of
the statements are considered hearsay, they were admissible
because they were evidence of G's state of mind. The
error was not harmless, because the victim's motivation
to act violently was a central factual issue of
defendant's case, and the statements were not merely
cumulative, but provided evidence of that motivation, in
G's own words, in a way that was not matched by the
appeal arises from defendant's conviction for aggravated
murder. Defendant did not deny shooting the victim but
contended that he acted in self-defense after the victim
attempted to rob defendant at gunpoint. The jury rejected
defendant's claim of self-defense and found defendant
guilty of one count of aggravated murder, two counts of the
lesser included charge of murder, two counts of first-degree
robbery, and one count of felon in possession of a
firearm. On appeal, defendant raises 14 assignments
of error, including nine that challenge the trial court's
exclusion of statements from email messages written by the
victim, G. Defendant offered those statements to support his
theory that G grew progressively more paranoid about his
financial solvency in the months before the shooting,
culminating in a mental state that motivated him to demand
defendant's money at gunpoint. We conclude that the
statements are relevant and not subject to exclusion under
the hearsay rules and, thus, that the court erred in
excluding the statements. We also conclude that the error
requires reversal because the excluded statements are
qualitatively different from, and not "merely
cumulative" of, other admitted evidence regarding
G's mental state. Accordingly, we reverse and
our decision turns on the relevance of the excluded email
statements and on defendant's need for those statements,
we discuss the evidence presented at trial in significant
detail. This case began after a Washington County Sheriffs
deputy discovered a dead man slumped over in the driver's
seat of a car that was parked in a cemetery west of Portland.
The decedent, G, had suffered three gunshot wounds to the
head, and a gun was lying on the rear passenger-side floor.
The shots appeared to have been fired when the gun was very
close to the body, perhaps one to six inches away.
first glance, the scene had the appearance of a suicide,
given the location of the car, the position of the
decedent's body, and the fact that the gun was left
behind. However, the deputies quickly dismissed the
possibility of suicide, in part because they concluded that
the gun had been "wiped clean." In addition,
deputies found a fourth bullet casing and a hole in the back
seat upholstery. A state's expert testified that the
trajectory of the hole suggested that the fourth shot was
fired by someone sitting in the back seat.
for the murder quickly turned to defendant when a friend of
G's told detectives that G and a man that G introduced as
"Frankie" drove off together from G's home in
Portland on the day of the shooting. The friend provided a
phone number for "Frankie, " which the detectives
traced to defendant.
was a drug dealer who purchased heroin in bulk and then
repackaged it for street-level sales by "runners"
who worked for defendant. He sometimes went by
"Frankie." G was a naturopathic physician with his
own practice, but he was also an investor in defendant's
drug operation. He provided defendant with money to purchase
the drugs that defendant then resold. The state's theory
of the case was that defendant's relationship with G was
going sour; that G and defendant had gone to the cemetery
together with approximately $20, 000 in cash supplied by G,
for what defendant said would be a drug deal; but that
defendant had planned, instead, to rob and shoot G and make
the death look like a suicide.
testimony at trial, defendant admitted that he shot G, wiped
the gun clean, took the money, and fled. Defendant claimed,
however, that the money was his, that G had pulled the gun on
defendant and demanded the money, and that, in an ensuing
struggle for the gun, defendant shot G in self-defense.
The State's Case
indictment alleged that defendant killed G in the course of a
robbery. It charged him with two counts of robbery in the
first degree and three counts of aggravated murder-based on
separate theories of why defendant caused the death of G: (1)
in furtherance of the crime; (2) in an effort to conceal the
crime; and (3) in an effort to conceal the identity of the
perpetrator of the crime. The indictment also charged
defendant with one count of being a felon in possession of a
state presented evidence at trial that defendant owed money
to G and that G was pressuring defendant to repay it. G
expressed concern to Whitaker, an acquaintance in the drug
business and a close friend, that defendant was not paying G
money that he was owed. Whitaker believed that the debt that
G was discussing was "a large amount of money, "
possibly higher than $300, 000. In January 2010, G flew
Whittaker to Portland to help G confront defendant about the
money. Whitaker attended this meeting and thought that it
went well, but he was not sure if they reached an agreement
on when defendant would repay G.
Whitaker attended a second meeting between defendant and G a
few weeks later and thought that defendant seemed
"upset" about Whitaker's presence at the
meeting. Defendant agreed that he owed G money but, rather
than repay everything he owed to G, defendant thought that he
should use the money to invest in a new operation in Costa
Rica. Over the course of the next month, Whitaker had the
impression that the relationship between defendant and G was
state's case also included evidence that defendant
planned in advance to shoot G, to take the money, and to make
the shooting look like a suicide. Heikkila was the friend who
reported meeting "Frankie" at G's house on the
morning of the shooting. That morning, defendant, Heikkila,
and G spent time in G's bedroom where they shared a
methamphetamine pipe and used heroin. Heikkila heard G and
defendant discussing a planned drug deal. It was
Heikkila's impression that defendant was trying to talk G
into the drug deal and that G was reluctant to spend the
money. At one point, G retrieved his pistol from a gun case,
and Heikkila saw defendant place the gun in his waistband.
Heikkila saw defendant loading boxes into the trunk and back
seat of G's rental car. He saw G direct defendant to
remove a FedEx box from G's safe and saw defendant place
that box in the trunk of G's car. While defendant and
Heikkila were at the car, away from G, defendant told
Heikkila, "I'm really worried about [G] lately. You
know, things are falling apart and I think if this deal goes
wrong, he's probably going to commit suicide."
Eventually, defendant and G drove away in G's car, with
defendant at the wheel because G "was in no condition to
drive." Heikkila tried to find and follow the car,
because he was concerned about G's safety.
defendant and G headed west from Portland, they stopped to
eat at a fast-food establishment, where they were captured on
surveillance video. One of the videos showed defendant
touching his belt line near his hip. A detective testified
that "frequently, " when officers see that move
"on the street, " it indicates that the person is
concealing a weapon in his waistband.
neighbor saw the car at the cemetery at 4:00 p.m., Heikkila
and G had a five-minute phone conversation that ended at
approximately 4:23, and two witnesses heard gunshots at about
4:30. After the shooting, defendant got a ride from
O'Reilly, a woman with whom he had spent the prior
testified that she had called defendant "around [3:00
p.m.]" to discuss a plan to get together, and that
defendant had asked her to pick him up later in Hillsboro.
O'Reilly met defendant in a parking lot and observed that
he "was acting very strange" and was carrying a
pink and white blanket. As they drove toward Portland,
defendant told O'Reilly that "something had just
gone wrong" and that he had shot G three times in the
face at the cemetery. When she asked defendant if he was
worried about getting caught, defendant told O'Reilly
that he had been wearing gloves, "just in case, "
and that he had made the shooting look like a suicide.
Defendant asked O'Reilly to be his alibi-to make up a
story about having seen G drive away without defendant in the
car. O'Reilly thought that defendant was just making up a
story to impress her.
they stopped at a gas station, defendant stowed in the trunk
of O'Reilly's car the hoodie that he had been wearing
along with the blanket, which had something bundled inside of
it. O'Reilly then drove defendant to the home of Harper,
who worked for defendant in the drug distribution operation.
Defendant brought in "a large amount of cash"
covered with a blanket and Harper helped him count it.
anticipation of defendant's claim that G pointed the gun
first, the state also introduced evidence that G was a
peaceful person. Even when high on methamphetamine, he was
not aggressive or violent.
state also presented evidence that the $20, 000 that
defendant took away from the shooting belonged to G,
because-as the prosecutor told the jury-unless the jury found
that the money belonged to G, "the robbery charges go
away, the aggravated murder charges go away and the case is
over." First, Heikkila testified that, the day before
the shooting, he had accompanied G to two banks, and at each
bank G withdrew $5, 000, for a total of $10, 000. Heikkila
also testified that, while the men were in G's bedroom
together, he heard defendant and G discussing $10, 000 that
defendant said he had placed in an envelope in G's safe,
but that when G opened the envelope, there was "blank
paper or funny money" in it.
the state relied on a series of text messages that defendant
sent to G in the days leading up to the shooting. In those
messages, defendant repeatedly told G that he needed $20, 000
to buy a kilo of heroin that defendant would be able to
quickly resell for $30, 000.
Harper testified that, when defendant arrived with the money,
defendant said that he had stolen the money from G. Harper
didn't remember if defendant used the word "rob,
" but the "general gist of what" defendant
said was that "he had stolen it and taken it."
Defendant's Case for Self-Defense
testified in his own defense and offered more benign
explanations for his seemingly incriminating actions and
statements. He agreed that he owed G money but described it
as a small amount. One witness who overheard G discussing the
debt with defendant overheard conversations in which
defendant promised to repay the money that he owed to G. That
witness's impression was that the debt was in the range
of several thousand dollars.
testified that the $20, 000 he asked about in the text
messages referred to mixed bills that he had given G to
"launder" into larger bills that would be more
suitable for a drug deal. Their system was that defendant
would put money in a FedEx box that was kept in G's safe,
and then G would put the laundered money back in the safe, in
another FedEx box. Some of the text messages from defendant
to G refer to defendant placing cash in G's safe. For
example, on March 7, defendant sent G the following message:
"I want to start dropping off cash in your safe. Is
there a reason I can't come over tomorrow night,
please?" And on March 10, defendant sent G another
message: "I need to meet up, put cash in your safe * *
*. Why are you blowing me off?"
was convinced that G was ignoring his texts, so the morning
of March 13, defendant went to G's house and
"banged" on the door until G let him in. Defendant
testified that he had been planning on retrieving the money
from G's house and then ...