Submitted June 29, 2015
County Circuit Court 13CR0509 Martin E. Stone, Judge.
Gartlan, Chief Defender, and Lindsey Burrows, Deputy Public
Defender, Offce of Public Defense Services, fled the brief
F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and Susan G. Howe, Assistant Attorney General, fled
the brief for respondent.
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.
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.
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.
DUNCAN, J. pro tempore
criminal case, the state charged defendant with four counts
of menacing, a misdemeanor, ORS 163.190. 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.
HISTORICAL AND PROCEDURAL FACTS
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."
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.
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."
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.
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.
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.
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.
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.
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
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.
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."
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
"[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.
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
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.
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."
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.
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. 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.
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[.]"
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]
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 [.]"
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.
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.
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. In response, the state asserts that (1)
defendant did not preserve his appellate argument, (2) the