and submitted November 21, 2017
Multnomah County Circuit Court 080432001 Thomas M. Ryan,
O. Ferry, Deputy Public Defender, argued the cause for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
G. Howe, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
Or. 223] Case Summary:
Defendant appeals from a judgment of conviction for
aggravated murder with a firearm. At trial, defendant
admitted to killing the victim during the course of a
home-invasion robbery. Defendant, however, asserted that he
had discharged his firearm accidentally and that he did not
intend to kill the victim. On appeal, defendant, who is
African American, argues that the trial court erred in
excluding evidence that tended to show that a witness was
racially biased against African Americans because that bias
tended to show why the witness's recollection of events
differed from defendant's recollection. Defendant also
argues that the trial court erred in excluding, as
demonstrative evidence, videos of police officers
accidentally discharging handguns and evidence that the
victim had methamphetamine in his system at the time of his
Held: The trial court erred in excluding the
evidence of racial bias, because the evidence was relevant to
show the witness's bias and did not have the unfairly
prejudicial effect argued by the state. In addition, that
error was not harmless. The trial court also erred in
excluding the two videos showing police officers accidentally
discharging handguns. However, the trial court did not err in
excluding the evidence that the victim had methamphetamine in
his system, because that evidence was not relevant.
Or. 224] ORTEGA, P. J.
appeals from a judgment of conviction for aggravated murder
with a firearm. At trial, defendant admitted to killing the
victim during the course of a home-invasion robbery.
Defendant, however, asserted that he had discharged his
firearm accidentally and that he did not intend to kill the
victim. On appeal, he raises four assignments of error,
challenging evidentiary rulings of the trial court that
excluded evidence that defendant sought to introduce. In two
assignments of error, defendant, who is African-American,
argues that the trial court erred in excluding evidence that
tended to show that a witness was racially biased against
African-Americans because that bias tended to show why the
witness's recollection of events differed from
defendant's recollection. We conclude that the trial
court erred in excluding that potential bias evidence and
that the error was not harmless. We also address
defendant's remaining assignments of error because they
are likely to arise on remand and conclude that the trial
court erred in excluding two short videos of police officers
accidentally discharging firearms that defendant sought to
introduce as demonstrative evidence, but that the trial court
did not err in excluding evidence that the victim had
methamphetamine in his system at the time of his death.
Accordingly, we reverse and remand.
relevant background facts are undisputed, except as described
below. In 1998, defendant and five other individuals, after
using methamphetamine, drove to a house in Southeast Portland
to rob a methamphetamine dealer of drugs and cash. While two
people remained in the car, defendant and three other
men-Ronald James, Michael Jump, and Jason Turner-approached
the house wearing hats that said "DEA" and holding
two security badges. All of the men, except defendant, wore
bandanas over their faces; defendant and two of the other men
were armed with firearms and the fourth man was armed with a
front of the house, defendant unscrewed the front light and
knocked on the door, yelling "police." Jump then
kicked in the front door and all four of the men entered the
house, yelling "police." James headed upstairs to
bring [300 Or. 225] down an individual who was at the top of
the stairs, and Turner remained downstairs with an individual
who had been sitting on the living room couch. James, Turner,
and their two hostages met at the bottom of the staircase,
where they remained for the duration of the robbery.
and Jump, who were the first to enter the house, headed to
the bedroom on the ground floor where defendant had been
informed a safe was located that contained drugs and cash.
Inside the bedroom was the victim, Jerry Hartman, along with
his finance, Julie Beachell, and their infant son. It is
undisputed that, while in the bedroom, defendant asked
Hartman where the money and drugs were, that defendant shot
and killed Hartman with a close contact shot to the head, and
that defendant told Beachell to open the safe after shooting
Hartman. It is also undisputed that Beachell opened the safe
and that either defendant or Jump removed its contents-a
plastic bag containing about $335. All four men then left the
house. The entire sequence of events took only a few minutes.
precise sequence of events in the bedroom that led to
defendant shooting Hartman is disputed by the two testifying
witnesses to those events-defendant and Beachell. Because the
differing accounts are relevant to the evidentiary issues on
appeal, we set forth both accounts.
testified that, after he asked Hartman where the money and
drugs were and Hartman did not answer, "out of nowhere,
[Jump] just lunged past me and hit [Hartman.]" Jump had
also admitted in a statement to an investigator that he was
the one who hit Hartman. Hartman fell, and defendant yelled
"stay down" and "get your hand out from under
the bed." At the same time, defendant was confused and
turned to look at Jump, when he heard a "pop" and
Hartman fell forward. Defendant testified that he was in
shock and did not recall pulling the trigger, nor did he see
where the bullet hit Hartman. Defendant saw Jump turning his
attention to Beachell, so defendant told her that he would
not hurt her and asked her to open the safe. Jump took her to
the safe, she opened it, and Jump took its contents.
Defendant also shouted "let's go, let's go"
shortly after the shooting.
Or. 226] Beachell testified that Hartman took a Valium before
bed and was asleep when the four men entered the house.
Beachell woke Hartman up as two men busted through the
bedroom door. One man was African-American- defendant-and one
was white-Jump. Defendant was yelling for drugs and money and
called Hartman a "fucking punk" and hit him. Jump
was next to Beachell, who was holding her baby, and pointed
his gun at her, but looked surprised. When defendant hit
Hartman, he had his gun at Hartman's head, and Hartman
fell back against the bed. Defendant then, in a "[v]ery
threatening" tone, told everyone to get down on the
floor. Beachell, who was on the opposite side of the bed, got
down, at which point she could no longer see Hartman. She
then heard a gunshot. Defendant then told her to open the
safe. Beachell described defendant's demeanor during that
time as "yelling and * * * angry and terrifying."
Jump took Beachell by the arm to the safe, which she opened.
After defendant and Jump got the contents of the safe,
defendant yelled "let's go." Beachell testified
that defendant never told her not to worry or that he would
not hurt her; that no one tried to leave until after the safe
was opened; that the gun did not go off until after defendant
told everyone to get on the floor; and that defendant was the
one in charge, as he was the one who was yelling and
demanding that the safe be opened. Jump, on the other hand,
looked fearful, while defendant did not.
days after the robbery, defendant left for California and
began using a different last name. In 2008, he was arrested
in connection with the 1998 robbery and Hartman's death.
This appeal comes to us after a retrial of the case against
defendant, following a reversal and remand of the judgment of
conviction entered against defendant after the first trial.
State v. Naudain, 254 Or.App. 1, 292 P.3d 623
(2012), rev den, 353 Or. 788 (2013).
second trial, as in the first, defendant admitted that he
shot and killed Hartman. He maintained, however, that he
pulled the trigger by accident and that he did not have the
necessary mental state of intentionally causing the death of
another to be convicted of aggravated murder. The jury
rejected defendant's mental-state defense and found him
guilty of two counts of aggravated murder with a [300 Or.
227] firearm. The trial court entered a judgment of
conviction for one count, merging the two guilty verdicts.
appeal, in four assignments of error, defendant challenges
evidentiary rulings of the trial court that excluded three
pieces of evidence: Evidence of Hartman's racial bias as
tending to show that Beachell held the same racially biased
views; two demonstrative videos showing police officers
accidentally discharging their handguns; and evidence that
Hartman had methamphetamine in his system at the time of his
death. The trial court excluded all of that evidence on the
grounds that it was irrelevant under OEC 401, and that the
probative value of the evidence, if any, was outweighed by
the danger of unfair prejudice, under OEC 403.
review the trial court's relevancy determination under
OEC 401 for legal error, State v. Titus, 328 Or.
475, 481, 982 P.2d 1133 (1999), and we review the trial
court's determination under OEC 403 for an abuse of
discretion, State v. Minchue, 173 Or.App. 520, 523,
24 P.3d 386 (2001). As explained below, we conclude that the
trial court erred in excluding the evidence of racial bias
and the demonstrative videos but did not err in excluding the
evidence that Hartman had methamphetamine in his system.
OF RACIAL BIAS
assignments of error, defendant challenges the trial
court's exclusion of cross-examination of Beachell
regarding her awareness of Hartman's racial bias and
whether she shared that bias. Specifically, defendant sought
to cross-examine Beachell about her statements to police that
Hartman had a rule about not allowing African-Americans into
their house and that he did not like African-Americans, and
about whether Beachell shared those views. [300 Or. 228] The
two were engaged to be married and defendant argued that the
evidence was relevant to show Beachell's racial bias
because "you don't agree to marry someone who has
those strong of views about another race unless in some way
you're at least tolerant of those views or okay with
them." In addition, defendant argued that Beachell's
racial bias was relevant for impeachment purposes because it
reasonably could have affected her memory of the events in
that she consistently described defendant as aggressive and
threatening and the one who punched Hartman, and Jump, who is
white, as fearful and not wanting anyone to get hurt. Those
recollections were contrary to defendant's testimony.
state argued that there was no logical connection between
Hartman's racial bias and Beachell sharing that bias and,
thus, no relevance. The state argued that defendant could ask
Beachell if she held biased views, but that he could not
bring up Hartman's views because "what they're
doing is tarnishing the *** reputation of a witness who
isn't here anymore, that has no relevance to the case,
whether or not he was the most-racist person-in the
world." In addition, the state argued that the evidence
was inadmissible under OEC 403 because "[t]he probative
value, given what the issues are in this case, is so
infinitesimally small compared to ...