State v. Khoshnaw

399 P.3d 1083, 286 Or. App. 246, 2017 Ore. App. LEXIS 746
CourtCourt of Appeals of Oregon
DecidedJune 14, 2017
DocketC120654CR, C122876CR; A159107 (Control), A159108
StatusPublished
Cited by5 cases

This text of 399 P.3d 1083 (State v. Khoshnaw) 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. Khoshnaw, 399 P.3d 1083, 286 Or. App. 246, 2017 Ore. App. LEXIS 746 (Or. Ct. App. 2017).

Opinion

SHORR, J.

Defendant appeals a judgment of conviction for murder with a firearm, ORS 163.115, and tampering with a witness, ORS 162.285. Defendant raises eight assignments of error. We write to discuss only defendant’s last assignment and reject the remainder without discussion. In that assignment, defendant contends that the trial court erred by excluding his expert witness, a reserve police officer with an extensive background in police tactics and use of force. As explained below, however, defendant fails to sufficiently identify the testimony that he argues was improperly excluded, and, as a result, we are unable to determine whether the trial court erred. Accordingly, we affirm.

This case arises from defendant’s fatal shooting of a rival gang member, a fact neither party disputes. At trial, the only question was whether defendant shot the victim in self-defense, as he claimed, or as an act of premeditated murder, as the state claimed. Defendant was arrested several months after the shooting and was charged with murder with a firearm, ORS 163.115. While in jail awaiting trial, defendant solicited the murder of two witnesses in the case and was subsequently charged with tampering with a witness, ORS 162.285. The two cases were consolidated for trial.

Prior to trial, defendant provided the state with notice that he intended to call an expert witness, Bedard. Bedard, a reserve police officer, presented himself as an expert in the “use of force and defensive tactics.” In a pretrial report, he concluded that, based on his review of the evidence and an interview he conducted with defendant, there was “a greater likelihood” that defendant killed the victim in self-defense. At the heart of Bedard’s analysis was his assertion that certain physiological responses associated with the body’s fight-or-flight response could indicate whether a person had committed a killing in self-defense or in an act of premeditated murder.

The state moved to exclude Bedard as a witness, and the trial court held a hearing under OEC 1041 to determine the admissibility of his testimony. Bedard testified at [248]*248length at that hearing. Prior to that testimony, defendant told the court that he would be “making some offers of proof in sort of a multi-level fashion.” Specifically, defendant said that he would be splitting Bedard’s testimony into two separate offers of proof. In the first, defendant explained, Bedard would testify about his own training and experience and would describe the scientific principles underlying his analysis, as well as the research on which he relied. In his second offer of proof, Bedard would apply those principles to the facts of defendant’s case and testify to his own conclusions and opinions. Defendant also told the court that “[w]e will be arguing that * * * if the nature of his testimony is deemed scientific, it does meet the higher standard * * * set forth in State v. Brown and State v. O’Key. We will also separately be arguing that it should be considered as nonscientific expert opinion testimony [.] ”

Bedard’s testimony was laden with references to, and explicit reliance on, scientific principles and research. For example, in Bedard’s first offer of proof, he described the science underlying the human body’s physiological reactions to life-threatening situations. In doing so, he discussed brain chemistry and functioning and how those changed when a person experienced extreme fear, stress, and anxiety. He further described how those physiological factors produced symptoms that could be used to determine, after the fact, whether it was more likely that a person killed someone in self-defense or as an act of premeditated murder.

At various points, Bedard tied his understanding of human physiology and his analysis of whether a person accused of murder had acted in self-defense to scientific and sociological research. For example, defendant asked Bedard, “[A]s an expert, what makes you confident that what you’re doing here is reliable and valid?” Bedard replied, “Because I’m looking at the research.” When asked later whether his work had been validated, Bedard replied, “My validation is really based on the validation of the research that I look at. * * * We know that there are certain things that do occur under periods of high stress and high arousal. That [249]*249is—those are validated studies. They’re peer reviewed and they’re validated studies. I appeal to those.” He went on to explain that “this case is not a scientific study. It is relying on scientific studies to propose that something is more likely than not.”

At the conclusion of the first offer of proof, defendant asked Bedard if he could provide the same testimony, but without the references to science and research:

“Q. If I asked you to exclude the scientific terminology, the reference to research, and that sort of thing, and only talk about what you know and understand and have concluded based on your training and experience, would you be able to do that?
“A. Yes. I think so.
“Q. Okay. And would you be able to give the same background information, albeit without some of the supporting research?
“A. Yes.”

In the second offer of proof, Bedard applied the principles that he had outlined in the first offer of proof to the facts of defendant’s case and stated his opinion that defendant’s self-reported reactions were “more consistent with a self-defense [killing].” At the conclusion of that portion of testimony, defendant asked, “If I asked you again to strip away the scientific discussion, the discussion of research, and only testify based on your training and experience, would you be able to testify to the same opinions and conclusions?” Bedard responded, “Yes.”

At the conclusion of the OEC 104 hearing, defendant told the court to consider the preceding testimony as four separate offers of proof. In addition to the two offers he had just made, defendant told the court that, should the court determine that Bedard’s testimony was “scientific evidence,” and therefore subject to the heightened admissibility requirements for such evidence, defendant also offered the same testimony “stripped” of the references to science and research as separate, “non-scientific” offers of proof.

As relevant to this appeal, in defendant’s initial offer of substantive testimony regarding Bedard’s training [250]*250and expertise, defendant told the court that, “if that offer were deemed inadmissible because it doesn’t meet the scientific evidence admissibility standard,” he offered that same testimony, but “stripped of its references to research and science, and that sort of thing.” Defendant made the same dual offer as to Bedard’s second substantive component of testimony regarding the application of Bedard’s training and expertise to the facts:

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Related

State v. Boedigheimer
347 Or. App. 206 (Court of Appeals of Oregon, 2026)
State v. Veitenheimer
338 Or. App. 142 (Court of Appeals of Oregon, 2025)
Khoshnaw v. Washburn
335 Or. App. 163 (Court of Appeals of Oregon, 2024)
State v. Rochefort
328 Or. App. 832 (Court of Appeals of Oregon, 2023)
State v. Krieger
422 P.3d 300 (Court of Appeals of Oregon, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
399 P.3d 1083, 286 Or. App. 246, 2017 Ore. App. LEXIS 746, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-khoshnaw-orctapp-2017.