State v. Harryman

371 P.3d 1213, 277 Or. App. 346, 2016 Ore. App. LEXIS 407
CourtCourt of Appeals of Oregon
DecidedApril 6, 2016
DocketCR1201361; A155632
StatusPublished
Cited by18 cases

This text of 371 P.3d 1213 (State v. Harryman) 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. Harryman, 371 P.3d 1213, 277 Or. App. 346, 2016 Ore. App. LEXIS 407 (Or. Ct. App. 2016).

Opinion

GARRETT, J.

Defendant and another man engaged in a fight while waiting in line at a grocery store. During the fight, defendant shot the victim in the leg, which ultimately led to defendant’s conviction for second-degree assault with a firearm, ORS 163.175; ORS 161.610. On appeal, defendant raises three assignments of error; we reject the third without discussion. In his other assignments of error, defendant argues, first, that the trial court erred by denying his motion to suppress statements that defendant made to police while defendant was being treated for his injuries. Second, defendant assigns error to the trial court’s failure to give his proposed jury instruction regarding his theory of self-defense. For the reasons that follow, we affirm.

The relevant facts are as follows. The victim and his wife were in the process of paying for their groceries; defendant was waiting directly behind the victim’s wife. When she had some difficulty completing the transaction, defendant moved closer to her and placed his arm on the checkout counter. The victim told defendant to “back up” or “back [his] ass up.” Following a verbal exchange between the two men, the victim ran through an adjacent checkout aisle to confront defendant. By some accounts, defendant pushed a shopping cart into the victim; by other accounts, the victim pushed a cart out of his way as he approached defendant. Several eyewitnesses testified that defendant warned the victim that he had a gun. A physical fight ensued, during which both defendant and the victim threw punches and wrestled. Witnesses described the men as approximately evenly matched in size and physical ability. Defendant then pulled out a handgun and fired it once; the bullet hit the victim in his leg. The two men continued to struggle until defendant was subdued with the help of other customers and store employees.

Before police arrived, defendant was restrained by the store’s loss-prevention personnel, who placed him in handcuffs. Defendant was transported by ambulance to a hospital to receive treatment for minor injuries that he sustained during the fight. Sergeant Krummenacker had responded to the scene and rode in the ambulance with [348]*348defendant for purposes of obtaining a recorded statement. Krummenacker later testified that, at the time of the ambulance ride, police had limited information about a “chaotic” situation at the store and knew only that defendant had been “involved” in a shooting incident.

Inside the ambulance, defendant remained handcuffed and was strapped to a spine-immobilization board with a cervical collar around his neck. Krummenacker began the recording by advising defendant that he was being recorded and reading defendant his Miranda rights. When asked whether he understood those rights, defendant responded, “I don’t know.” Krummenacker did not initially ask any follow-up questions and observed the paramedics treating defendant. For the most part, defendant remained conversational with the paramedics, inquiring about his medical status and answering questions about his medical history. At other times, however, defendant was either unresponsive or incoherent. When defendant complained about circulation in his right hand, Krummenacker loosened defendant’s handcuffs.1 At one point, however, defendant stated that he had “hurt somebody” and that he had been “attacked.” Krummenacker then asked defendant to describe what had happened inside the store. After defendant repeated that he had been attacked, Krummenacker asked several more questions about the incident, including whether defendant had shot anybody. Defendant replied that he had a gun and that he hoped that he had not shot anybody. Throughout the encounter, defendant continued to speak with the paramedics about his medical status. Defendant also made several statements that suggested that he was disoriented and confused about the events that had transpired at the store.2

Upon arrival at the hospital, Krummenacker concluded the first recording. Detective Copenhaver joined the [349]*349scene and initiated a second recording. Neither that recording nor a transcript of it is part of the record on appeal, but it is undisputed that the Miranda warnings were given to defendant two more times, and that, in response, defendant said, “I’ll do that” but also the word “lawyer.” Krummenacker continued questioning defendant. At one point, Krummenacker mistakenly told defendant that he had shot someone in the head. Defendant became emotional and denied having shot anybody in the head. Eventually, at the request of hospital personnel, Krummenacker removed defendant’s handcuffs. Krummenacker later testified that that was the first time that defendant appeared to show any awareness that he had been handcuffed; he asked if he was handcuffed and whether he was under arrest. After some additional questioning by the officers, defendant requested an attorney, at which point both the questioning and recording ceased. Several hours later, defendant was placed under arrest.

Defendant moved to suppress all of his statements to the police during the ambulance ride and at the hospital. After a hearing, the trial court denied the motion as to the first recording—the one made during the ambulance ride—on the ground that defendant was neither in custody nor under compelling circumstances at that time. As to the second recording, made at the hospital, the court initially ruled that any statements made by defendant after he first said the word “lawyer” were required to be suppressed because Krummenacker had failed to clarify whether defendant was invoking his right to counsel. However, after additional discussion and post-hearing briefing, the court, in a letter opinion, concluded that compelling circumstances arose only after defendant was questioned specifically about his involvement in the shooting. Thus, the trial court suppressed some, but not all, of the statements made by defendant on the second recording.

At trial, defendant’s theory of the case was that he acted in self-defense when he shot the victim in the leg. In support of that claim, defendant presented eyewitness testimony that the victim was the initial aggressor and continued his aggressive behavior despite defendant’s warnings that he was carrying a gun.

[350]*350At the close of the evidence, the trial court heard argument on the parties’ proposed jury instructions. The state requested that the court give Uniform Criminal Jury Instruction (UCrJI) 1107 (Defense—Physical Force— Defense of Person) and UCrJI 1108 (Limitations—Defense of Person—Deadly Physical Force).3 Defendant agreed to the giving of UCrJI 1107, but requested a modified version of UCrJI 1108 as follows:

“There are certain limitations on the use of deadly force. The defendant is not justified in using deadly force on another person unless he reasonably believed that the other person was:
“1. Committing or attempting to commit a felony involving the use or threatened imminent use of physical force against the person. (The possible applicable felonies will be enumerated later by the court.)
“or
“2. Using or about to use unlawful deadly physical force against defendant.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Cranston
344 Or. App. 535 (Court of Appeals of Oregon, 2025)
State v. Dowd
342 Or. App. 57 (Court of Appeals of Oregon, 2025)
State v. Cockrell
341 Or. App. 465 (Court of Appeals of Oregon, 2025)
State v. Tews
337 Or. App. 668 (Court of Appeals of Oregon, 2025)
State v. Christian
333 Or. App. 815 (Court of Appeals of Oregon, 2024)
State v. Butterfield
549 P.3d 545 (Court of Appeals of Oregon, 2024)
State v. Cox
540 P.3d 36 (Court of Appeals of Oregon, 2023)
State v. Quebrado
323 Or. App. 308 (Court of Appeals of Oregon, 2022)
State v. Leers
502 P.3d 1130 (Court of Appeals of Oregon, 2022)
State v. Allen
494 P.3d 939 (Court of Appeals of Oregon, 2021)
State v. Haws
444 P.3d 1125 (Court of Appeals of Oregon, 2019)
State v. Moles
433 P.3d 497 (Court of Appeals of Oregon, 2018)
State v. Roberts
427 P.3d 1130 (Court of Appeals of Oregon, 2018)
Harryman v. Fred Meyer, Inc.
412 P.3d 219 (Court of Appeals of Oregon, 2017)
State v. Kimbrell
383 P.3d 379 (Court of Appeals of Oregon, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
371 P.3d 1213, 277 Or. App. 346, 2016 Ore. App. LEXIS 407, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-harryman-orctapp-2016.