United States District Court, D. Oregon
J. Hester Assistant Federal Public Defender Attorney for
F. Rosenblum, Attorney General Nick M. Kallstrom, Assistant
Attorney General Department of Justice Attorneys for
FINDINGS AND RECOMMENDATION
PATRICIA SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
brings this habeas corpus case pursuant to 28 U.S.C. §
2254 challenging the legality of his state-court convictions
for Murder, Attempted Murder, Assault, and Unlawful Use of a
Weapon. For the reasons that follow, the Petition for Writ of
Habeas Corpus (#1) should be denied.
October 23, 2010, Petitioner fired two bullets that killed
one person and wounded three others at the Good Call Sports
Bar and Grill. Several eyewitnesses identified Petitioner
as the shooter, and the Good Call had a video surveillance
system in place that captured the shooting.
believed that the prosecutor had altered the Good Call's
surveillance tape in some way so as to incriminate him. As a
result, the defense filed a motion in limine to exclude the
video evidence at trial. The trial judge denied the motion as
Defendant contends subject surveillance video is not the
original nor proper chain of custody and copies may have been
tainted and/or altered and further prohibiting any and all
mention thereof with reference to that in the presence of the
This is Court's ruling: The Court has now reviewed the
written documentation, has reviewed the oral submissions and
arguments. The Court has carefully listened to witness
testimony on this subject and reviewed exhibits which have
been received into evidence for purposes of this motion.
So, in viewing the entire record, the court finds that the
motion to exclude surveillance video and all the subsidiary
parts of the motion, they are not well taken.
The motion is respectfully denied. So I will sign the order
to that effect. Thank you.
Trial Transcript, p. 718.
trial proceeded and when the State cross-examined Petitioner,
he testified in open court that the Good Call's video was
a computer animated fabrication, and that he was the victim
of a conspiracy involving the prosecutor. Id. at
1660, 1663. At the conclusion of Petitioner's testimony,
defense counsel requested an ex parte hearing, and
asked that the hearing be on the record. During the ex
parte hearing, defense counsel stated that he had, in
fact, retained a highly qualified expert to examine the video
footage. The expert, however, concluded that the evidence
contained no modifications. Id. at 1694-95. Defense
counsel further stated that he did not ask the expert to
generate a report because he did not want the results to be
discoverable. Id. at 1695. Counsel believed
Petitioner might be having a difficult time accepting the
expert's conclusions based upon his former employment
history with the Portland Police Bureau. Id.
conclusion of the trial, the jury convicted Petitioner of one
count of Murder, three counts of Attempted Murder, three
counts of Assault in the First Degree, and two counts of
Unlawful Use of a Weapon. As a result, the trial judge
imposed a ...