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State v. Stull

Court of Appeals of Oregon

March 6, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
BARRY JOE STULL, aka Barry Joe Stully, Defendant-Appellant.

          Argued and submitted January 7, 2019

          Multnomah County Circuit Court 15CR53749 Leslie M. Roberts, Judge.

          Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Barry Joe Stull filed the supplemental brief pro se.

          Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary: Defendant appeals a judgment of conviction for attempted assault on a public safety officer, resisting arrest, and second-degree criminal mischief. Defendant raises nine related assignments of error that all allege that statements made by the prosecutor during closing argument, which commented on defendant's courtroom behavior, were improper. Moreover, defendant argues that the trial court abused its discretion by failing to strike the comments from the jury's consideration. The state contends that any error with respect to the prosecutor's closing argument was harmless. Held: Evidence for consideration by a factfinder at trial includes testimony, the demeanor of a testifying witness on the stand, and exhibits entered into evidence. The courtroom behavior of individuals while not testifying is not automatically evidence. Here, it was undisputed that the state did not offer, and the trial court did not accept, the behavior into the evidentiary record. Therefore, it was not within the trial court's permissible [296 Or.App. 436] range of discretion to allow the state to present a closing argument that relied upon facts not in evidence. Given the repeated invitation for the jury to render a decision based on a record that was not the evidentiary record before it, the trial court's failure to strike was not harmless.

         [296 Or.App. 437] JAMES, J.

         Defendant appeals a judgment of conviction for attempted assault on a public safety officer, resisting arrest, and second-degree criminal mischief, raising nine related assignments of error, all alleging that statements made by the prosecutor during closing argument that commented on defendant's courtroom behavior were improper. Defendant argues that the trial court abused its discretion by failing to strike the comments from the jury's consideration. We agree, and, concluding that the failure to strike was not harmless, accordingly reverse and remand.

         Defendant's prosecution arose from an incident that occurred at Portland City Hall during a public meeting of the Portland City Council. Defendant entered the chambers and spoke to the crowd while being filmed by an associate. After about 20 minutes, one of the commissioners attempted to calm defendant and the encounter escalated into shouting, which drew the response of the police.

         Portland Police Officer Engstrom arrived in the chambers, followed shortly by two other officers. Defendant approached the officers, yelling at them. The officers told defendant to back up and grabbed defendant's left hand. Soon thereafter, according to trial testimony, defendant pulled an officer's hand off his left arm and threw two right hooks at an officer, hitting his arm and shoulder area. One officer then grabbed defendant and wrestled him to the council desk. After handcuffing defendant, the officers wanted to walk him from the council chamber but defendant refused to walk, so an officer placed him on the table in front of the council desk.

         Ultimately, as the officers were escorting defendant out of the building, according to officer testimony, he kicked one of the officers in the shin repeatedly. After the officers placed defendant in a patrol car, defendant kicked and tore into the seatbelt assembly, breaking it in several places. As defendant testified, he "tore the hell out of that police car" and "did as much damage * * * as [he] possibly could."

         Defendant chose to testify in his own defense, as well as to represent himself throughout a nearly weeklong [296 Or.App. 438] trial-a trial that was obviously, and understandably, made more difficult by defendant's courtroom behavior. In closing argument, the prosecutor repeatedly encouraged the jury to consider defendant's behavior in the courtroom- when defendant was not on the witness stand-in assessing whether defendant committed the alleged crimes at city hall. Among other things, the prosecutor stated:

"Now, you'll see this video, and I've moved it up to about the 21-minute mark. You've already listened to its entirety once, because the first 20 minutes of that video is just [defendant] doing, on November 25th, what he did here today, create a scene.
"He stayed there and he continued to talk, to rant, to revel in that moment. And he got worked up then, just as you saw him get worked up in ...

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