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State v. Khoshnaw

Court of Appeals of Oregon

June 14, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
NIAZ MOHAMMED KHOSHNAW, Defendant-Appellant.

          Argued and submitted January 30, 2017

         Washington County Circuit Court C120654CR, C122876CR Suzanne Upton, Judge.

          Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Peenesh Shah, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for murder with a firearm, ORS 163.115, and tampering with a witness, ORS 162.285. On appeal defendant argues, among other things, that the trial court erred when it excluded part of his expert witness's testimony.

         Held:

         Defendant did not meet his burden under ORAP 5.45(4)(a)(iii) to sufficiently identify the evidence that he believes was erroneously excluded. Defendant's arguments on appeal and references to the testimony presented to the trial court do not sufficiently describe the substance of the testimony that defendant contends that the trial court erred in excluding. Therefore defendant has failed to persuade us that the trial court erred in excluding his expert's testimony.

         Affirmed.

         [286 Or.App. 247] SHORR, J.

         Defendant appeals a judgment of conviction for murder with a firearm, ORS 163.115, and tampering with a witness, ORS 162.285. Defendant raises eight assignments of error. We write to discuss only defendant's last assignment and reject the remainder without discussion. In that assignment, defendant contends that the trial court erred by excluding his expert witness, a reserve police officer with an extensive background in police tactics and use of force. As explained below, however, defendant fails to sufficiently identify the testimony that he argues was improperly excluded, and, as a result, we are unable to determine whether the trial court erred. Accordingly, we affirm.

         This case arises from defendant's fatal shooting of a rival gang member, a fact neither party disputes. At trial, the only question was whether defendant shot the victim in self-defense, as he claimed, or as an act of premeditated murder, as the state claimed. Defendant was arrested several months after the shooting and was charged with murder with a firearm, ORS 163.115. While in jail awaiting trial, defendant solicited the murder of two witnesses in the case and was subsequently charged with tampering with a witness, ORS 162.285. The two cases were consolidated for trial.

         Prior to trial, defendant provided the state with notice that he intended to call an expert witness, Bedard. Bedard, a reserve police officer, presented himself as an expert in the "use of force and defensive tactics." In a pretrial report, he concluded that, based on his review of the evidence and an interview he conducted with defendant, there was "a greater likelihood" that defendant killed the victim in self-defense. At the heart of Bedard's analysis was his assertion that certain physiological responses associated with the body's ...


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