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State v. Miller

Court of Appeals of Oregon

August 2, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
CHRISTOPHER E. MILLER, aka Christopher Eugene Miller, Defendant-Appellant.

          Argued and Submitted October 29, 2014

         Multnomah County Circuit Court 120733133; A153987 Kelly Skye, Judge.

          Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          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 Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge. [*]

          [287 Or.App. 136] Case Summary:

         Defendant appeals a judgment of conviction for attempted murder (Count 1); attempted assault in the first degree (Count 2); unlawful use of a weapon (Count 3); failure to perform the duties of a driver when property is damaged (Count 5); and unlawful possession of a firearm (Count 6). Defendant assigns error to the trial court's denial of his demurrer to the indictment based on the improper joinder of charges under ORS 132.560(1)(b), arguing that the indictment failed on its face to meet any of the three joinder requirements under that statute. He also assigns error to the trial court's admission as evidence of the recorded police interviews of two witnesses under OEC 803(5), the past recollection recorded exception to the hearsay rule. Held: The trial court erred by denying defendant's demurrer. Counts 5 and 6 were not properly joined with Counts 1 through 3 in the indictment because they were not of the same or similar character, based on the same act or transaction, nor part of a common plan or scheme. That error was not harmless with respect to Counts 5 and 6. The trial court also erred by admitting the recorded police interviews of two witnesses under OEC 803(5) because the recorded statements were not made or adopted by the witnesses, and that error was not harmless with respect to defendant's convictions on Counts 1 through 3.

         Convictions on Counts 1, 2, and 3 reversed and remanded; convictions on Counts 5 and 6 reversed; otherwise affirmed.

          [287 Or.App. 137]

          EGAN, J.

         Defendant appeals a judgment of conviction for attempted murder (Count 1), ORS 163.115; attempted assault in the first degree (Count 2), ORS 163.185; unlawful use of a weapon (Count 3), ORS 166.220; failure to perform the duties of a driver when property is damaged (Count 5), ORS 811.700; and unlawful possession of a firearm (Count 6), ORS 166.250.[1] Defendant assigns error to the trial court's denial of his demurrer to the indictment based on improper joinder of charges. We conclude that Counts 5 and 6 were not properly joined in the indictment with Counts 1 through 3 and, thus, the trial court erred in denying defendant's demurrer. However, that error was not harmless with respect only to Counts 5 and 6, and we therefore reverse only those counts. Defendant also contends that the trial court erred in admitting police recordings of two witnesses' statements as evidence under OEC 803(5), [2] the past recollection recorded exception to the hearsay rule (OEC 802). We conclude that, because the two witnesses did not "make or adopt" their recorded statements, the trial court erred in admitting the recordings under OEC 803(5) and that error was not harmless with respect to defendant's convictions on Counts 1, 2, and 3. We reject defendant's other assignment of error without discussion. Accordingly, we reverse and remand the convictions on Counts 1, 2, and 3, and we reverse the convictions on Counts 5 and 6. Otherwise, we affirm.

         We apply a two-part standard of review to a trial court evidentiary ruling that a statement fits within an [287 Or.App. 138] exception to the hearsay rule. State v. Cunningham. 337 Or. 528, 538-39, 99 P.3d 271 (2004). We will uphold the trial court's preliminary factual determinations if any evidence in the record supports them. Id. at 537. However, we review for legal error the trial court's ultimate legal conclusion on whether the hearsay statement is admissible under an exception to the hearsay rule. Id. at 538. Also, in the absence of express findings, we generally presume that the trial court decided disputed factual issues consistently with its ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968). We set out the facts in accordance with that standard.

         I. FACTS AND PROCEDURAL BACKGROUND

         A. Background Facts

         Defendant's girlfriend was at a family party when she showed her grandmother her new car. When the grandmother went outside to look at the car, defendant was standing nearby with two of his friends-Brown and Ritmiller. Defendant and the grandmother began to argue. Then the grandmother walked away toward the house while defendant "yell[ed] and cuss[ed]" at her. When the grandmother returned to the house, she told her grandson, Royal, what had happened, and Royal left the house to talk to defendant.

         The grandmother heard Royal and defendant yelling at each other angrily. Then she heard Royal say, "He got a gun. He's getting ready to shoot." One shot was fired. The grandmother saw Royal running toward the house and defendant "standing up like he had [a gun] in his hand, " but she could not determine whether defendant was shooting at Royal or firing a warning shot. Defendant and his two friends, Brown and Ritmiller, got in the car and defendant drove away.

         Officer Porath and his partner were patrolling the area near where the gunshot was fired. They followed a white sedan that was speeding and watched it hit a parked car before it came to a stop. When Porath came up to the stopped car, the driver's door was open and the driver, defendant, was running away. The two passengers, Brown and Ritmiller, remained inside or near the car. Porath found a [287 Or.App. 139] gun in the door panel of the car with one round in the chamber. On the street where the shooting had occurred, another officer found a shell casing that matched the caliber of the round found in the gun.

         That night, Brown and Ritmiller were interviewed by two detectives.

         B. Brown's Recorded Interview with Police

         During Brown's interview with the police, a detective told Brown that he was a "fair" person and, if people are being "honest" with him, he tries to do what he can, but that, if people lead him down another direction and waste his time, he would have to "start digging" and "stuff like that" and that would not be "cool." One of the detectives also asked Brown if he was "on paper, "[3] and Brown shook his head no. The detective then asked Brown if he was "looking to get on paper" and Brown again shook his head no.

         Before asking Brown who fired the gun, the detective told Brown repeatedly that Brown "needed to be honest with him" and that he needed to start making some "decisions." The detective also told Brown that defendant had made some bad decisions, "but that what [Brown] told the detectives could help him and it was not going to hurt defendant any more than he was already hurt." Brown did not identify who fired the gun.

         The detective then asked Brown, "[H]ow was the gun being held?" and reiterated that Brown needed to be "honest" with him. Brown told the detectives that defendant had said, "On my dead homies, whoever comes out of that house to me talking shit is going to get busted." Brown demonstrated how the shooter shot the gun by pointing straight ahead. The detective mimicked Brown, pointing straight ahead, and asked Brown again if the shooter pointed the gun like he had just demonstrated. Brown again showed the detectives how the shooter had held the gun and pointed his arm angled upward. Brown said that the shooter was not trying to aim "right" because he was very close, about 20 yards away, and he could have shot the guy. Brown [287 Or.App. 140] demonstrated how the shooter shot the gun one last time by pointing his fist in the air with his elbow bent upwards.

         C. Ritmiller's Recorded Interview with Police

         The police interviewed Ritmiller after Brown's interview ended. At the start of the interview, Ritmiller explained that he was getting his gang-affiliated tattoo removed, and that he was trying to get out of the gang, change his lifestyle, spend more time with his daughter, and stay out of the way. The detective responded that Ritmiller did not stay out of the way that night and that he was with "at least one knucklehead." Then the detective told Ritmiller that he was fair and that, if Ritmiller was honest, he would do the best he could for him.

         Ritmiller described an abbreviated version of what had happened and the detective applied pressure to Ritmiller, saying, "Here's your chance to prove to me, to your [probation officer], and to everybody else that you're trying to do the right thing. Okay? Because this could go a bunch of different ways. I don't know whether you helped [defendant] out on this deal that happened up there." The detective also said that Ritmiller needed to be thinking about himself right now and that whatever he said right now would have more of an influence on him than on defendant.

         Ritmiller then described what had happened that day in greater detail. Ritmiller said that defendant had repeatedly told his girlfriend, "Bitch, anybody come outside, I'm going to smoke them, " and had grabbed a gun out of his car. Ritmiller did not know how defendant was holding the gun-it happened quickly. He saw Royal drop to the ground. Ritmiller thought defendant had shot Royal. Ritmiller and Brown got in the car and defendant drove it away. Ritmiller reported that defendant had said, "I thought I popped him."

         Ritmiller asked the detective if the detective had talked to Ritmiller's probation officer. The detective responded, "Not yet, " but stated that he would tell the probation officer that Ritmiller "came around" and gave a statement about what had happened. Before the interview ended, the detective again stated that he would tell Ritmiller's probation officer that he "got along" with Ritmiller.

          [287 Or.App. 141] D. The Charges and Defendant's Demurrer

         Defendant was charged by indictment with attempted murder with a firearm (Count 1), ORS 163.115; attempted assault in the first degree with a firearm (Count 2), ORS 163.185; unlawful use of a weapon (Count 3), ORS 166.220; obliteration or change of identification number on firearms (Count 4), ORS 166.450; failure to perform the duties of a driver when property is damaged (Count 5), ORS 811.700; and unlawful possession of a firearm (Count 6), ORS 166.250. Each count specified that defendant committed the particular crime "on or about July 14, 2012, in the County of Multnomah, State of Oregon." Additionally, Counts 1 through 3 specified that Royal was the victim for those charges.

         Defendant waived a jury and tried his case to the court. Prior to trial, however, defendant demurred to the indictment, which the trial court denied. At trial, defendant did not dispute that he had fired a gun; instead, he claimed that he had intended to fire a warning shot that was not meant to hit anyone. The state called Brown and Ritmiller as witnesses to refute defendant's claim.

         E. Brown's Testimony at Trial

         Brown testified on behalf of the state. Brown stated that he recalled getting off a bus with Ritmiller on the day of the shooting because defendant was going to give them a ride. He also recalled that, after he heard one gunshot, he got into the car but he did not know who had shot the gun. Brown also said that, after the car stopped, he spoke to the police, but he could not remember everything he told them because he was under the influence of marijuana. He testified that he did remember telling the police that the gun was not his and describing what the gun looked like.

         The state then asked Brown if listening to his recorded interview would help him refresh his recollection, and the court agreed that Brown should listen to his recorded interview:

"[THE STATE]: Do you remember telling Officer Burley the next person out of the house, I'm going to bust on him.
[287 Or.App. 142] "[BROWN]: Why would I tell him that I didn't have a gun.
"[THE STATE]: Do you think it would help if you listened to your interview that was recorded?
******
"[BROWN]: I already told the investigator I didn't want to have anything to do with this.
"[THE STATE]: *** So, Your Honor, I think what we should do at this point is take a break for today. We'll take [Brown] to a conference room, we'll let him watch and listen to his video, and we'll bring him back tomorrow.
"[THE COURT]: Okay.
"[DEFENSE COUNSEL]: Is that for the purposes of refreshing his recollection?
"[THE STATE]: Yep.
"[DEFENSE COUNSEL]: Does the witness think that that will help refresh his recollection?
******
"[BROWN]: I don't want anything to do with this, so why are you guys forcing me to (indiscernible)?
"[THE COURT]: Well, I'll take this on, Mr. Brown."

         The court told Brown that he was there by court order, was required to answer questions, and could be held in contempt if he did not comply.

         Defense counsel asked that Brown listen to the recorded interview; the state responded that it would offer the recorded interview into evidence if it did not refresh Brown's recollection:

"[DEFENSE COUNSEL]: I would ask that [the state] have [Brown] listen to it. That's what [the state] wanted to do. But I don't want it on the record. It's offered for impeachment purposes. It can't ...

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