State v. Crum

403 P.3d 405, 287 Or. App. 541, 2017 Ore. App. LEXIS 1032
CourtCourt of Appeals of Oregon
DecidedAugust 30, 2017
Docket13CR0509; A155484
StatusPublished
Cited by6 cases

This text of 403 P.3d 405 (State v. Crum) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Crum, 403 P.3d 405, 287 Or. App. 541, 2017 Ore. App. LEXIS 1032 (Or. Ct. App. 2017).

Opinions

DUNCAN, J. pro tempore

In this criminal case, the state charged defendant with four counts of menacing, a misdemeanor, ORS 163.190.1 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.

I. HISTORICAL AND PROCEDURAL FACTS

A. Shooting Incident

Around 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.”

A 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. [544]*544The 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.

Meanwhile, defendant called 9-1-1 and asked why an ambulance had not been sent, telling the dispatcher:

“All the sudden the cops showed up.
«‡ $ ‡ ⅜ *
“I’m sorry they’re not supposed to be here. I wanted an ambulance.
«‡ ‡ ‡ ‡ ⅜
“* * * If I die tonight, it’s on you.”

An 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.

The 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.

The 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.

[545]*545The 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.

After 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.

The 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 physical injury.”

B. Pretrial Motions

Defendant 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.

In addition to his pretrial motion regarding the use-of-force policies, defendant filed á 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 [546]*546the 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.”

The 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 deadly force:

“[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?

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Cite This Page — Counsel Stack

Bluebook (online)
403 P.3d 405, 287 Or. App. 541, 2017 Ore. App. LEXIS 1032, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-crum-orctapp-2017.