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State v. Crum

Court of Appeals of Oregon

August 30, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
CHARLES WAYNE CRUM, Defendant-Appellant.

          Submitted June 29, 2015

         Coos County Circuit Court 13CR0509 Martin E. Stone, Judge.

          Peter Gartlan, Chief Defender, and Lindsey Burrows, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Chief Judge, and Armstrong, Ortega, Egan, DeVore, Lagesen, Tookey, Garrett, DeHoog, Shorr, and James, Judges, and Sercombe, Senior Judge, and Duncan, Judge pro tempore.

         En Banc

         Case Summary:

         Defendant was charged with menacing four police officers. His defense was that the officers fabricated their allegations of menacing in order to justify their use of force against him. To show that the officers had a motive to accuse him of menacing, defendant sought to admit evidence of the officers' agencies' use-of-force policies. Defendant's theory was that the officers had a motive to testify that defendant menaced them, because if he had, their use of force would have been permissible under the policies. The trial court excluded the evidence, and a jury convicted defendant. Defendant appeals, assigning error to the exclusion of the evidence.

         Held:

         Defendant preserved his challenge to the trial court's [287 Or.App. 542] exclusion of the evidence, the trial court erred in excluding the evidence, and the error was not harmless.

         Reversed and remanded.

          DUNCAN, J. pro tempore

         In this criminal case, the state charged defendant with four counts of menacing, a misdemeanor, ORS 163.190.[1] The charges were based on an incident during which, according to the state's witnesses, defendant pointed an air rifle at a law enforcement officer, who was accompanied by three other officers. The four officers then shot at defendant, firing a total of more than 50 shots and wounding defendant's right arm. Defendant admitted carrying the air rifle, but contended that he had held it at his side and pointed down at all times. He asserted that the officers had overreacted when they saw the air rifle, shot at him, and, later, in order to justify the shooting, falsely stated that defendant had pointed the air rifle at them. To impeach the officers, defendant sought to admit evidence of their agencies' use-of-force policies, on the theory that the officers had a motive to state that they acted in conformance with those policies. The trial court excluded the evidence, and a jury convicted defendant of the four charged counts. Defendant appeals, assigning error to the trial court's exclusion of the motive evidence. For the reasons explained below, we conclude that defendant preserved his challenge to the trial court's exclusion of the evidence, the exclusion of the evidence was error, and the error was not harmless. Therefore, we reverse and remand.

         I. HISTORICAL AND PROCEDURAL FACTS

         A. Shooting Incident

         Around 6:00 p.m. on December 25, 2012, defendant called 9-1-1, seeking medical assistance. Defendant said that he needed an ambulance because his "health was deteriorating."

         A police officer responded to defendant's residence, which was one of several trailers in a clearing in a wooded area at the end of a narrow dirt road. The officer saw defendant standing near the trailer, holding a shiny, silver object. [287 Or.App. 543] The officer identified himself to defendant, stating his name and his police department. Defendant turned and walked away. The officer left the clearing and called for back-up.

         Meanwhile, defendant called 9-1-1 and asked why an ambulance had not been sent, telling the dispatcher:

"All the sudden the cops showed up.
''******
"I'm sorry they're not supposed to be here. I wanted an ambulance.
''******
"* * * If I die tonight, it's on you."

         An ambulance and three other officers met with the first officer at the beginning of the dirt road leading to the clearing. The officers learned that defendant had a bench warrant for failing to appear for court, a misdemeanor. They decided to attempt to contact defendant, to determine whether he needed medical assistance. They did not plan to take any action on the warrant at that time.

         The officers drove down the dirt road in two patrol cars with the headlights off. They stopped their cars at a wide spot in the road and walked the remaining distance to the clearing. Each officer carried a tactical rifle. Once in the clearing, two of the officers knocked on defendant's trailer door, but no one answered. A man, Smith, came out of another trailer and told the officers that defendant had walked away from the area. One of the officers, Mitchell, spoke with Smith and searched his trailer, but found nothing. The officers decided to leave, and as they were heading out, Mitchell heard a noise in defendant's trailer. Mitchell alerted the other officers and started walking toward the trailer. The trailer door opened, and the officers saw defendant, who was holding an air rifle.

         The parties dispute what happened next. Defendant contends that he was holding the air rifle at his side, pointed toward the ground. The state contends that defendant raised the air rifle, which the officers believed was an actual rifle, and pointed it at Mitchell.

         [287 Or.App. 544] The officers then shot at defendant, firing a total of more than 50 shots between the four of them. Defendant did not fire a single shot.

         After two bursts of shooting by the officers, Mitchell called out to defendant and asked if he had been hit. Defendant, who had been shot in the arm, told Mitchell that he had been hit. Mitchell told defendant to show him his hands, which defendant did. Two officers grabbed defendant, pulled him out of the trailer, and handfcuffed him. The officers arrested defendant and put him in the ambulance to be transported to a hospital. On the way to the hospital, defendant asked the officer who was traveling with him why the officers had shot him in the arm and told him that they "should have shot him right here, " while pointing to his forehead.

         The state charged defendant with four counts of menacing, one for each of the officers involved in the incident. Each count alleged that defendant "did unlawfully and intentionally attempt to place [the officer] in fear of imminent serious physical injury."

         B. Pretrial Motions

         Defendant filed a pretrial motion for an order allowing evidence of the use-of-force policies of the two law enforcement agencies whose officers were involved in the shooting. In his motion, defendant asserted that evidence of the policies was relevant to the jury's determination of "whether [he] in fact menaced the officers, or whether the charges were filed as a means to justify the use of deadly force by the officers." In other words, defendant asserted that the evidence was relevant to an assessment of whether the officers had fabricated their allegations that he menaced them in order to justify their use of deadly force.

         In addition to his pretrial motion regarding the use-of-force policies, defendant filed a separate motion for an order allowing evidence that defendant had "retained counsel for filing a civil lawsuit against the State, its various subdivisions and agencies, as well as the four individual officers, and that the counsel has filed a Tort Claim Notice under ORS 30.275 as a step in the pursuit of the lawsuit." In [287 Or.App. 545] the motion, defendant asserted that the tort-claim evidence was admissible to show that the officers had "an interest or bias in claiming that the defendant menaced them, since, if true, that would defeat the civil lawsuit."

         The trial court held a hearing on the motions, and the parties and the court addressed the motions separately, beginning with the motion concerning evidence of the use-of-force policies. Defense counsel explained that his theory of the case was that defendant did not menace the officers at all; instead, when the officers saw defendant with the air rifle pointed down, they overreacted and shot defendant and, thereafter, the officers claimed that defendant had pointed the gun at one of them, in order to justify their use of deadly force:

"[DEFENSE COUNSEL]: [Defendant will] say there was no menacing at whatsoever.
"THE COURT: Okay.
"So, I don't see how the use of force policies have any bearing on the case at all.
"Do you have any other argument?
"[DEFENSE COUNSEL]: I think it kind of ties in with our related argument regarding the civil suit that they did in fact violate the use of force policies in this situation and-
"THE COURT: (Interposing) But, we're not going to try the civil case here.
"[DEFENSE COUNSEL]: Correct.
"I am-well, I understand that. That-as-there's going to be a claim that [defendant] menaced them to justify the use of force. That's essentially the story.
"THE COURT: So, they made up a story, phonied up a call to 9-1-1 so they could go shoot him?
"[DEFENSE COUNSEL]: Negative. Or rather, it was more that they made up a claim that [defendant] was threatening them with a firearm when [he] was not, to justify their use of force in this case.
"THE COURT: But that's still a question this jury will never get to because if they agree with him that he didn't [287 Or.App. 546] menace anybody, they find him not guilty and we're done. So, use of force question has no bearing on it."

(Emphasis added.) Thus, defense counsel repeatedly told the court that he was offering the use-of-force-policy evidence to support his claim that the officers had fabricated their allegations against defendant in order to justify their use of force. That is, defense counsel took the position that the evidence was relevant to show that the officers had a motive to assert that defendant had menaced them, because, if defendant had menaced them, then their use of force would not have violated the policies. The trial court rejected defense counsel's assertions and denied defendant's motion regarding the use-of-force-policy evidence on the ground that the evidence was irrelevant.[2]

         The trial court then turned to defendant's separate motion regarding the tort-claim evidence. The state argued that that evidence was not admissible to show that the officers were biased or self-interested because the officers "would be indemnified *** from *** any sort of civil lawsuit." The trial court rejected that argument and ruled that the evidence was admissible. But the trial court remarked that the evidence "could be a double edged sword" if defendant testified, because the state could use it to show that defendant had a financial motive to testify to certain facts.

         C. Trial

         At trial, the state's theory was that, on the night of the incident, defendant was suicidal and had tried to [287 Or.App. 547] provoke the officers to shoot him. To support its theory, the state presented as witnesses the four officers who had been involved in the incident. Each of the officers testified that defendant had raised the air rifle and pointed it at Mitchell.

         The state also presented evidence regarding defendant's statements. That evidence included the statement that defendant made to the 9-1-1 dispatcher when he called to complain that an ambulance had not arrived ("If I die tonight, it's on you") and the statement he made to the officer who rode with him to the hospital (that the officers "should have shot him" in the forehead). It also included testimony from Smith, the man who had been in one of the trailers on the night of the incident. Smith testified that defendant had been in a lot of pain that night and had been trying to get help, but no one was responding. According to Smith, defendant was "hurting" and said that he "wanted to go ahead and die."

         In addition, the state presented evidence that defendant had photographs next to his bed. A detective testified that the photographs appeared to be of family or friends and that, in his experience, people often will have "photos of things that mean a lot to them laid out in the cases where they expect their death, whether it's natural or a suicide." The detective referred to the photographs as a "shrine, " and a deputy medical examiner testified that such "shrines" are occasionally found during investigations of suicides and attempted suicides.

         Another detective and the medical examiner also testified about a "reconstruction" they had done to determine the position of defendant's arms when he was shot. The medical examiner concluded that defendant's wounds were caused by a single bullet, which grazed defendant's forearm, entered and exited defendant's upper arm, and then re-entered his upper arm.[3] In the reconstruction, the detective stood in place of defendant, and the medical examiner marked the detective's arms to show the locations of [287 Or.App. 548] defendant's wounds. Using a dowel to simulate the trajectory of a bullet, they then attempted to determine what position defendant's arm would have had to have been in for a single bullet to cause all of the wounds. Based on their reconstruction, the detective believed that defendant had the air rifle raised and nearly leveled when he was shot.

         Defendant disputed the state's theory and evidence, asserting that he had not been suicidal and he had not pointed the air rifle at the officers; instead, the officers had overreacted when they saw the air rifle pointed down. Regarding whether he had been suicidal, defendant testified that, on the night of the incident, he was in pain and had called for an ambulance because he wanted medical assistance. Smith's girlfriend, who had visited with defendant shortly before the shooting, testified that defendant was in severe pain, with visible symptoms, but that he did not express any thoughts of suicide and was trying to get a ride to the hospital. Regarding the rifle, defendant testified that he held it "[f]acing the floor." When he attempted to close his trailer door, "[i]t might have been coming up just a little bit, " to "[a]bout a forty-five degree angle[.]"

         Defendant also challenged the accuracy of the reconstruction, which was premised on the theory that a single bullet caused all of defendant's wounds. Defendant testified that he was shot in the arm twice. Defendant also elicited testimony from the detective who conducted the reconstruction, including that the detective had not received "any formal training as far as wound reconstruction or trajectory training" and the reconstruction was not "a scientific experiment." The detective acknowledged that the reconstruction was not based on the actual height of defendant or his trailer door. The detective, who stood in for defendant in the reconstruction, is "several inches" taller than defendant, and the stool he stood on to simulate the height of the trailer door "just happen[ed] to be a stool that [they] keep in [their] office."

         The parties argued their competing theories to the jury. The state specifically challenged defendant's reliance on the tort-claim evidence to show the officers' bias, arguing both that the officers had not been aware that defendant [287 Or.App. 549] had filed the notice and that the notice was evidence of defendant's own bias. In his closing argument, the prosecutor asserted that, "The Defendant has bias and reason to change his testimony. The Defendant as you heard has filed a law suit against the officers and the employers involved in this case." Similarly, in his rebuttal argument, the prosecutor asserted, "The Defendant is also biased by that suit. The Defendant stands to gain financially should he win that suit. And, I'd ask you to keep that in mind and as you are allowed to do and instructed to do as part of your jury instructions [.]"

         In his closing, defense counsel argued that defendant had not pointed the air rifle at the officers and that the jury should hold the officers responsible for the injuries and property damage they caused. Defense counsel challenged the credibility of the officers, pointing out inconsistencies in their testimony and asserting that, because of the tort-claim notice, they "have their own motive and bias." Defense counsel also challenged the state's evidence that defendant had been suicidal and its reconstruction.

         The jury found defendant guilty of the four counts of menacing, and the trial court entered a judgment of a conviction and sentence, which defendant appeals.

         II. ANALYSIS

         On appeal, defendant raises a single assignment of error, asserting that the trial court erred by denying his pretrial motion regarding the evidence of the use-of-force policies, specifically, the Coos County Sheriff's policy.[4] In response, the state asserts that (1) defendant did not preserve his appellate argument, (2) the ...


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