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State v. Craigen

Court of Appeals of Oregon

March 27, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
GEORGE WEST CRAIGEN, Defendant-Appellant. 296 Or. App. 772

          Umatilla County Circuit Court CF140169; Russell B. West, Judge.

         On respondent's petition for reconsideration fled December 7, 2018. Opinion fled November 21, 2018. 295 Or.App. 17, 432 P 3 d 274 .

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, for petition.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and Garrett, Judge pro tempore.

         Case Summary: The state petitioned the Court of Appeals for reconsideration of its decision in State v. Craigen, 295 Or.App. 17, 432 P.3d 274 (2018), in which the court reversed defendant's conviction for murder and remanded for a new trial due to the violation of defendant's Article I, section 11, right to counsel under the Oregon Constitution. The state's petition seeks clarification of the court's disposition of three assignments of error in defendant's supplemental briefing, fled after the court's decision in State v. Zielinski, 287 Or.App. 770, 404 P.3d 972 (2017), challenging the trial court's exclusion of certain expert evidence regarding defendant's mental health. Defendant argues that, under Zielinski, the evidence should have been admitted as relevant to his affirmative defense of extreme emotional disturbance (EED) under ORS 163.135. The court allowed reconsideration. Held: Defendant failed to preserve, and arguably invited, the claimed error with respect to a portion of the excluded evidence. Regarding the balance of the evidence, under Zielinski, the trial court erred when it determined that evidence of defendant's depression and brain injury could not be considered in connection with defendant's EED defense, but the trial court correctly excluded evidence that the symptoms of those conditions were impulsivity, emotional liability, and impaired judgment.

         [296 Or. App.773] LAGESEN, P. J.

         The state has petitioned for reconsideration of our decision in State v. Craigen, 295 Or.App. 17, 432 P.3d 274 (2018). There, we reversed defendant's conviction for murder and remanded for a new trial on that charge because of our conclusion that certain out-of-court statements by defendant were obtained in violation of his right to counsel under Article I, section 11, of the Oregon Constitution and had been erroneously admitted against him at trial.[1] The state's petition seeks clarification of our disposition of three assignments of error that we did not address expressly in our opinion. Those assignments of error, which defendant raised in a supplemental brief after we decided State v. Zielinski, 287 Or.App. 770, 404 P.3d 972 (2017), challenge the trial court's exclusion of certain expert evidence regarding defendant's mental health; in defendant's view, Zielinski means that the evidence should have been admitted as relevant to his affirmative defense of extreme emotional disturbance (EED) under ORS 163.135, and that the trial court erroneously concluded otherwise.

         In urging us to allow reconsideration, the state notes that our initial opinion did not address the supplemental assignments of error explicitly, that the issues raised are likely to recur on the merits, and that a written resolution of them would be helpful on remand. We agree that the requested clarification is warranted and are appreciative that the state has pointed out the need. For the reasons that follow, we conclude that defendant failed to preserve, and arguably invited, the claimed error with respect to a portion of the evidence. Regarding the balance of the evidence, we conclude, under Zielinski, that the trial court erred when it determined that evidence of defendant's depression and brain injury could not be considered in connection with defendant's EED defense, but that the court correctly excluded evidence that the symptoms of those conditions were impulsivity, emotional lability, and impaired judgment. Our ruling is without prejudice to defendant's ability to present additional evidence on remand regarding [296 Or. App.774] the effects of those conditions on him, so long as such evidence is developed in a manner consistent with our holding in Zielinski.

         Defendant's conviction for murder was for shooting his neighbor. Defendant did not deny the shooting, but sought to defend himself by raising the defenses of guilty except for insanity (GEI) and EED. In support of those defenses, defendant sought to introduce expert testimony regarding his mental health conditions. In particular, to demonstrate, as required by ORS 163.135(1), [2] that there was a "reasonable explanation" for his claimed EED given his "situation under the circumstances [as he] reasonably believed them to be," defendant sought to introduce evidence that his "situation" included "that he was depressed and he suffered from organic brain dysfunction which caused cognitive impairment. Symptoms of those mental handicaps are suicidal ideation, and inability to process emotion and loss of judgment making ability." Defendant contended that those diagnoses and symptoms were among the "factors or stressors" that the jury permissibly could take into account as part of defendant's "situation" when determining whether there was a "reasonable explanation" for the claimed EED.

         The state moved in limine to exclude the evidence that defendant sought to present. The state argued that, under State v. Ott, 297 Or. 375, 686 P.2d 1001 (1984), evidence of a defendant's "personality traits" was not relevant to the EED defense and was not a factor that could be taken into account as part of defendant's "situation" in evaluating whether there was a reasonable explanation for defendant's EED. Observing that the expert's report indicated that the [296 Or. App.775] expert might testify about "defendant's suicidal and homicidal ideations, his possible depression, and an inability to process his emotions" in connection with defendant's EED defense, the state argued that those qualities constituted personality traits for purposes of Ott, such that evidence about them was not admissible for the purposes of the EED defense.

         At argument on the state's motion, defendant clarified what evidence he thought he should be permitted to introduce in support of the EED defense, and what evidence pertained solely to the GEI defense. Defendant explained that, for the EED defense, he sought to present evidence "that the brain damage just, generally speaking, has a large effect on cognitive functions, executive controls, issues such as judgment, impulsivity, [and] emotional lability." Defendant explained that such information is appropriately considered as part of a criminal defendant's "situation" in assessing whether the defendant was acting under an EED as defined by statute. Defendant also emphasized, as he already had done in his written response to the state's motion, that he did not think that evidence that he was suffering from delusions was relevant to the EED defense but, instead, pertained to the GEI defense only.

         Ultimately, the trial court ruled that evidence regarding defendant's mental health conditions, including his brain injury, his depression, and the identified symptoms of those conditions, was not relevant to his EED defense as defined by the legislature: "[T]he legislature did not intend that the defendant's mental disease or defect, including depression, frontal lobe damage, Othello syndrome, other psychotic disorder, delusional disorder with paranoid features should be considered as part of the defendant's situation in evaluating the EED defense, because I find that to do so would be to- would be to negate the objective measure that's found in the second element of the jury instruction." The court concluded further that the ostensible symptoms of defendant's diagnosed conditions, "including inability to process his emotions and his impulsivity and his lability," qualified as "personality traits" under EED defense case law and, for that reason, evidence of those symptoms also was not admissible with respect to the EED defense.

         [296 Or. App.776] After we held oral argument in this appeal, our court decided Zielinski. At issue in Zielinski was whether the trial court erred in excluding expert testimony that the defendant had been diagnosed with an Axis I anxiety disorder under the American Diagnostic and Statistical Manual of Mental Disorders (DSM-IV-TR). In that case, as in this case, the defendant sought to introduce evidence of that diagnosis, and of the effects of the disorder on him, for purposes of showing his "situation" in connection with his EED defense. Zielinski, 287 Or.App. at 771-75. Specifically, the defendant sought to introduce evidence that, at the time of the crime, he was suffering symptoms of an anxiety disorder, including nightmares, that placed him at heightened risk of emotional distress. Id. at 774. The trial court ruled that the evidence was not admissible as part of the defendant's "situation" for purposes of the EED defense. Id. at 776.

         We reversed. Examining ORS 163.135 and the case law construing it, we observed that, under that case law, a defendant's "personal characteristics" are appropriately considered as part of the defendant's "situation" for purposes of the EED defense, whereas a defendant's "personality characteristics" or "personality traits" are not permissibly considered as part of the defendant's "situation." Id. at 780 (citing Ott,297 Or. 375). "Personal characteristics," we explained, are things "such as gender, sexual orientation, pregnancy, or physical disability." Id. at 779. "Personality characteristics" are aspects of a person's personality "such as bad temperament." Id. We then determined that the defendant's Axis I anxiety disorder, as described by the evidence presented in that case, qualified as a "personal characteristic" rather than a "personality characteristic." We reasoned that some Axis I disorders, such as the defendant's anxiety disorder, are ones "that may be a focus of clinical attention," "can involve acute symptoms," and can be "susceptible to psychological and medical treatment." Id. at 781. For that reason, the defendant's disorder "b [ore] a closer resemblance to physical illness or disability than it [did] to nonclinical personality traits like ill temperament, dishonesty, or stubbornness." Id. at 781-82. Thus, the evidence was relevant and admissible evidence of the defendant's "situation" for purposes of his EED defense. Explaining the role that the evidence [296 Or. App.777] could play in the jury's assessment of the EED defense, we stated, "Just as a jury is ...


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