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State v. Bement

Court of Appeals of Oregon

March 8, 2017

STATE OF OREGON, Plaintiff-Respondent,
BRIAN DANIEL BEMENT, Defendant-Appellant.

          Argued and submitted March 16, 2015.

         Washington County Circuit Court C100622CR; Rick Knapp, Judge.

          Daniel 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 General.

          Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

         Case 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 admitted evidence.

         Reversed and remanded.

          FLYNN, J.

         This 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.[1] 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 remand.[2]

         I. BACKGROUND

         Because 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.

         At 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.

         Suspicion 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.

         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.

         In his 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.

         A. The State's Case

         The 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 firearm.

         The 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.

         However, 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 getting worse.

         The 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.

         Later, 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.

         As 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.

         A 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 evening.

         O'Reilly 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.

         When 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.

         In 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.

         The 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.

         Next, 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.

         Finally, 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."

         B. Defendant's Case for Self-Defense

         Defendant 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.

         Defendant 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?"

         Defendant 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 ...

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