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_______________
v.
Defendant-Appellant.
_______________
10/18
TABLE OF CONTENTS
TABLE OF AUTHORITIES
Cases
Beall Transport Equipment Co. v. Southern Pacific,
186 Or App 696, 64 P3d 1193,
adhered to as clarified,
187 Or App 472 (2003) ............................................................................10
Cler v. Providence Health System,
349 Or 481, 245 P3d 642 (2010)....................................................... 2, 8, 9
Commonwealth v. Smith,
387 Mass 900, 444 NE 2d 374 (1983)........................................................9
OTECC v. Co-Gen,
168 Or App 466, 7 P3d 594 (2000),
rev den, 332 Or 137 (2001) ......................................................................11
i
State v. Davis,
336 Or 19, 77 P3d 1111 (2003)..................................................................5
State v. Lawson,
64 Ohio St 3d 336, 595 NE 2d 902,
cert den, 507 US 1007, 113 S Ct 1653, 123 L Ed 2d 273 (1993) ..............9
State v. Logston,
270 Or App 296, 347 P3d 352 (2015) ........................................................2
State v. Wherry,
402 So 2d 1130 (Ala Crim App 1981) .......................................................9
United States v. Schuler,
813 F2d 978 (9th Cir 1987) ..................................................................9, 10
Woodall v. Commonwealth,
63 SW 3d 104 (Ky 2001)............................................................................9
Other Authorities
John H. Wigmore,
Wigmore on Evidence (4th ed 1979) ...........................................................8
ORAP 5.45(4)(c).................................................................................................10
ii
RESPONDENT’S ANSWERING BRIEF
_______________
Summary of Argument
A jury convicted defendant of attempting to assault a police officer,
assignments of error that all address the same issue: whether the trial court
court behavior. That claim does not entitle defendant to relief. Any error with
respect to the prosecutor’s closing argument was harmless. In any event, it was
his testimony on the witness stand as well as his behavior off of it.
assign error to any trial court ruling or other otherwise present any coherent
argument that the trial court erred. It therefore provides this court with no basis
for reversal.
defendant did not object to the prosecutor’s later remarks about his in-court
demeanor after the court overruled his initial objection, it appears that
subsequent objections were not required as they likely would have been futile.
Cf. State v. Logston, 270 Or App 296, 302, 347 P3d 352 (2015).
however, his arguments are unpreserved, and this court should not consider
them.
COMBINED ARGUMENT
In closing arguments, the prosecutor made several remarks commenting
comments included:
x Defendant reveled in that same attention, the show, the spectacle, just
like he did in court over the past week.” (Tr 1260).
3
x Defendant “got worked up then, just as you saw him get worked up in
court a couple of times.” (Tr 1261).
x Defendant’s testimony was “just a second act in this play he has, this
misguided attempt to have his voice heard.” (Tr 1261)
Defendant contends that the trial erred in failing to strike those and other
behavior in the courtroom during trial. This court need not reach that issue in
this case, however, because any error was harmless. In any event, the trial court
did not abuse its discretion by ruling that the prosecutor’s remarks were proper
argument.
A. Factual Background
Defendant’s convictions all arose from an incident in Portland’s City
chambers and began a lengthy and meandering diatribe before the crowd while
his friend filmed him. (Tr 509, 526-27; Ex 1 at 00:14-20:00). After about 20
yelling to Fritz that she had left him drug sick and homeless, and told her he had
keep him at arm’s length. (Ex 763; Ex 1 at 22:45 Ex 3 at 1:06). Defendant then
turned his anger toward Office Engstrom. (Ex 1 at 22:55; Ex 3 at 1:17). When
down and assured him the ambulance was on its way. (Tr 618-19; Ex 1 at
23:00-23:10).
At that point, defendant pulled Engstrom’s hand off his left arm and
threw two right hooks at Engstrom, hitting his arm and shoulder area. (Tr 620;
defendant. (Tr 968). Engstrom grabbed defendant and wrestled him to the
resisted by tensing up and trying to pull away, the three officers eventually got
5
officer placed him on the table in front of the council desk. (Tr 626; Ex 2 0:55-
1:02).
back and “mule-kicked” Engstrom in the left shin. (Tr 628). Defendant was
wearing heavy boots so it caused a lot of pain. (Tr 628). A few moments later
After Officer Engstrom put defendant in the back of his patrol car,
defendant kicked and tore into the seatbelt assembly, breaking it in several
places. (Tr 635-39; Exs 10-12). As defendant testified, he “tore the hell out of
that police car,” and “did as much damage * * * as [he] possibly could.” (Tr
1237).
verdict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Here, even if the
police officer because he threw two punches at Officer Engstrom. The punches
convicted of resisting arrest because when the police attempted to arrest him for
restrain him. (Tr 621, 624, 764, 970-72). This, too, was captured on multiple
intentionally “tore the hell out of that police car.” (Tr 1237).
mischief charge. (Tr 1301-1302).1 But the there is little likelihood that the
to self-defense, the videos played to the jury show the officers calmly and
to evade them. After that, defendant mule kicked Engstrom in the shin, twice,
1
Defendant contends that he raised a self-defense defense on the
attempted assault on a peace officer charge as well (App Br 21), but the jury
was not read a self-defense instruction as to that charge. In any event, as noted,
the videos showed defendant approaching Officer Engstrom, resisting
Engstrom’s efforts to keep him at bay, and throwing two right hooks up and to
Engstrom’s shoulder and neck area. There is little likelihood the prosecutor’s
remarks about defendant’s in-court behavior would have affected the jury’s
assessment of a claim that defendant threw the punches in self-defense.
7
as he was being led out of the building. (Tr 628-29). In light of that evidence,
the prosecutor’s comments were unlikely to have affected the jury’s verdict on
that defense.
of defendant’s testimony that he had to damage the police car because he feared
that he would suffer heart failure from pent-up adrenaline. (Tr 1237-38).
Because “there was nobody to fight,” he had to do “as much damage in that
police car as I possibly could” to “vent that fight or flight.” (Tr 1237-38).
courtroom behavior (behavior that the jury also witnessed) would have caused
For all of those reasons, there was little likelihood that the prosecutor’s
remarks affected the verdict. Any error in allowing them was therefore
harmless.
C. The trial court did not err in failing to strike the prosecutor’s
comments about defendant’s courtroom demeanor.
Defendant contends that the prosecutor’s remarks in closing argument
that is unknown to the jury. Defendant is correct that party may not refer to
evidence the jury has never heard or seen. See Cler, 349 Or at 490 (error to
who could have supported the defense case). But here the prosecutor did not
refer to the jury to anything they had not already seen themselves.
For that reason, this court should hold that a prosecutor may comment on
defendant’s in-court behavior. A defendant may act out during trial for any
motion at his neck, or holding a finger “gun” to the side of his head), to play on
Because those actions are assertions that communicate information to the jury,
they are testimony in all but label. The state should be able to rebut them and
attempt to force a jury to become mentally blind to the behavior of the accused
Several courts outside Oregon have endorsed the view that state may
defendant’s behavior during trial were permissible because the prosecutor “did
not suggest that he had knowledge the jury did not share.” Commonwealth v.
9
Smith, 387 Mass 900, 907, 444 NE 2d 374 (1983). In other words, the court
demeanor which was there for the jury to see and assess. See also Woodall v.
Ohio St 3d 336, 347, 595 NE 2d 902, cert den, 507 US 1007, 113 S Ct 1653,
123 L Ed 2d 273 (1993) (defendant’s “face and body” are physical evidence
that state may comment upon); State v. Wherry, 402 So 2d 1130, 1133 (Ala
Crim App 1981) (“The conduct of the accused or the accused’s demeanor
Schuler, 813 F2d 978 (9th Cir 1987), the Ninth Circuit presumed that the
courtroom demeanor of the non-testifying defendant was not evidence, and thus
convicted based only on evidence adduced at trial. Id. at 980. But unlike
defendant here, the defendant in Schuler did not testify. Schuler distinguished
cases that allowed comments on the defendant’s demeanor on the basis of that
demeanor has been allowed as one factor to be taken into consideration.” Id. at
981 n 3.
moment he got off the witness stand would be, as Wigmore noted, to expect the
testimony and demeanor on the witness stand but also his behavior off of it
assign error to any ruling of the trial court, develop any legal argument, or
assertions that he, as a person with disability, was treated unfairly in the
that the trial court erred in any particular respect provides this court with no
basis for reversal. See ORAP 5.45(4)(c) (“[t]he court may decline to consider
any assignment of error that requires the court to search the record to find the
error”); Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696,
701 n 2, 64 P3d 1193, adhered to as clarified, 187 Or App 472 (2003) (this
court will not speculate as to what a party’s unamplified argument might be);
OTECC v. Co-Gen, 168 Or App 466, 488, 7 P3d 594 (2000), rev den, 332 Or
11
CONCLUSION
This court should affirm the trial court’s judgment.
Respectfully submitted,
ELLEN F. ROSENBLUM
Attorney General
BENJAMIN GUTMAN
Solicitor General
Ernest Lannet and Brett J. Allin, attorneys for appellant, by using the court's
I certify that (1) this brief complies with the word-count limitation in
ORAP 5.05(1)(b) and (2) the word-count of this brief (as described in ORAP
5.05(1)(a)) is 2,406 words. I further certify that the size of the type in this brief
is not smaller than 14 point for both the text of the brief and footnotes as
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IN THE COURT OF APPEALS OF THE STATE OF OREGON
v. CA A164154
Defendant-Appellant.
67135 01/18
i
TABLE OF CONTENTS
Jurisdiction .....................................................................................................1
Question Presented.........................................................................................2
The trial court erred in failing to strike the prosecutor’s argument that “it
is clear from * * * [defendant]’s behavior in court, that he didn’t lose
control on November 25th, 2015.” Tr 1260.
The trial court erred in failing to strike the prosecutor’s argument that
defendant “reveled in that same attention, the show, the spectacle, just
like he did in court over the past week.” Tr 1260.
The trial court erred in failing to strike the prosecutor’s argument that
during the incident, defendant was “doing * * * what he did here today,
create a scene. Getting himself worked up and reveled in it, in the
attention from the audience, and the fact that he got to be the center of
attention. Everyone had to pay attention to him, had to focus on him.”
Tr 1261.
The trial court erred in failing to strike the prosecutor’s argument that
“You saw as he advanced at Officer Engstrom, yelling at him, pointing at
him, walking towards him to the point where the Judge had to order him
back. He got worked up then just as he did in that City Hall.” Tr 1261.
The trial court erred in failing to strike the prosecutor’s argument that
defendant “testified, and I’ll be frank with you, I mean, his testimony, I
was surprised, you saw it. I didn’t expect that. It’s just a second act in
this play he has, this misguided attempt to have his voice heard.” Tr
1269.
The trial court erred in failing to strike the prosecutor’s argument that
defendant “got to be heard. He got his moment of notoriety he wanted.
He got to stand up before you in the same manner, make the same
disjointed argument * * *.” Tr 1289.
The trial court erred in failing to strike the prosecutor’s argument that
defendant “worked himself up this week.” Tr 1291.
The trial court erred in failing to strike the prosecutor’s argument that
“You saw [defendant] show signs of that aggression here in the
courtroom.” Tr 1291.
II. The error was not harmless and requires reversal. ............................19
CONCLUSION ...................................................................................................23
TABLE OF AUTHORITIES
Cases
Christensen v. Cober,
206 Or App 719, 138 P3d 918 (2006) .............................................................17
Huber v. Miller,
41 Or 103, 68 P 400 (1902) .............................................................................15
State v. Bates,
203 Or App 245, 125 P3d 42 (2005), rev den, 340 Or 483 (2006)..................19
State v. Baughman,
361 Or 386, 393 P3d 1132 (2017) ...................................................................18
State v. Davis,
336 Or 19, 77 P3d 1111 (2003).............................................................. 5, 6, 19
State v. Knight,
343 Or 469, 173 P3d 1210 (2007) ...................................................................22
Taylor v. Kentucky,
436 US 478, 98 S Ct 1930, 56 L Ed 2d 468 (1978) ........................................17
iv
ORS164.354 ..........................................................................................................1
Other Authorities
ORAP 1.25 ............................................................................................................2
attempted assault on a public safety officer (Count 1), ORS 163.208, resisting
arrest (Count 2), ORS 162.315, and second-degree criminal mischief (Count 3),
with those offenses as well as second-degree criminal trespass (Count 4), ORS
Jurisdiction
1
Although the legislature repealed those statutes, the repeal applies
only to judgments entered after January 1, 2018. Or Laws 2017, ch 529 § 28.
2
Notice of Appeal
November 21, 2016. On November 30, 2016, defendant timely filed a motion
for new trial, which the court denied on January 5, 2017. Defendant timely
that notice of appeal is to be filed within 30 days of the denial of new trial
motion); ORAP 1.25(1) (providing that if 30th day falls on a Saturday, the
period runs until the end of the next day that the court is open).
Question Presented
does the trial court abuse its discretion when it allows the prosecutor to argue in
closing that the jury can infer from defendant’s conduct and demeanor at trial
(both as a party and as his own counsel) that he was the aggressor in the
Summary of Argument
evidence submitted and urge the jury to draw legitimate inferences from that
evidence, that freedom does not permit counsel to make statements of fact
outside the range of evidence. Consequently, this court has held that a trial
3
Here, after an altercation with police at Portland City Hall, the state
arrest, and criminal mischief. At trial, defendant raised self-defense and choice
of evils to those charges. Defendant acted as his own counsel and testified to
facts supporting those defenses. In its closing argument, the prosecutor made
several remarks about defendant’s conduct and demeanor during the course of
encouraged the jury to infer that defendant was the aggressor during the City
arguments.
behavior or demeanor into evidence, and as such, the facts that the prosecutor
relied on were not evidence. The trial court erred in allowing the prosecutor to
purposes and tacitly allowed the jury to use those unadmitted facts as evidence.
The court did not place any limitations on the state’s use of defendant’s in-court
conduct, and although the court instructed the jury to rely on the “evidence,” the
4
jury would likely view the extra-record facts as evidence. Thus, the jury was
likely to use the extra-record facts to determine the central issue in the case—
Summary of Facts
State’s evidence
Portland City Hall. Tr 501. On the afternoon of November 24, 2015, Wood
was called into the Office of Neighborhood Involvement, located inside City
defendant was there and was visibly upset. Tr 503. Defendant complained
about not being served and refused to leave. Tr 504. Wood informed defendant
that he was excluded from City Hall for 24 hours.2 Tr 504. Defendant still
refused to leave, but after Wood’s supervisor arrived and spoke with defendant,
the Portland City Council at City Hall. Tr 505-06. Shortly before the meeting
began, Wood opened the door to the public. Tr 506. Defendant was among the
people who entered the city council chambers, and Wood told defendant that he
was excluded. Tr 506. Defendant replied, “I know I am but I’m not leaving,”
2
That trespass order was later deemed unlawful, and the state
moved to dismiss the trespass charge. Tr 337-38.
5
and said that he intended to testify. Tr 506-08. Wood contacted his supervisor
and informed the mayor’s office that it should delay the council meeting. Tr
509.
David Davis, was filming defendant.3 Tr 526-27, 760. Defendant was upset.
Tr 587. Cohen tried to calm him down and then left the chambers to call 9-1-1.
defendant told her that she had left him homeless, broke, and hungry. Tr 510.
Defendant yelled that he had killed Fritz’s husband, who had died in a traffic
Portland Police Officer Todd Engstrom arrived to City Hall and received
details from Cohen. Tr 591, 610. Engstrom could hear yelling coming from the
chambers. Tr 611. Engstrom looked into the chambers and saw defendant
standing in the middle of the room, yelling at the top of his lungs about various
3
The state admitted Davis’s video as Exhibit 1, which it played for
the jury. The entirety of the incident in the city council chambers was captured
on video.
6
backup; Sergeant Axthelm and Officer Singh arrived for support. Tr 611-12.
Cohen tried to get Davis to leave the chambers. Tr 594. Davis refused,
and Cohen issued an exclusion order to him. Tr 594. The officers decided to
arrest Davis for trespass, because defendant was speaking directly to Davis’s
camera. Tr 526-27, 760-61, 937. At that point, the police did not intend to
arrest defendant; rather, they wanted everyone else out of the chambers so they
could try to calm defendant down. Tr 756, 761-62. Axthelm told David he was
under arrest. Tr 615. The officer began to move in to arrest Davis. Tr 966-67.
Axthelm pushed defendant and told him to give him distance. Tr 763, 770.
Engstrom told defendant to back up, grabbed defendant’s arm, and told him that
an ambulance was coming. Tr 618. The police were not trying to arrest
defendant. Tr 618, 756. Defendant tried to pry Engstrom’s hand off of his arm,
and Engstrom grabbed defendant’s other hand to stop him from doing so. Tr
620. Defendant took a couple of swings at Engstrom, hitting him in the bicep.
Tr 620. Engstrom put defendant in a “quasi bear hug” and pushed him against a
defendant tensed up and tried to pull away. Tr 620, 624, 626, 764, 968, 972.
When the officers tried to remove defendant from the chambers, he went limp.
kicked” Engstrom three times in his shin, which caused “a lot of pain.” Tr 628-
29, 1023.
When they got outside, an ambulance was waiting for defendant. Tr 619.
Engstrom put defendant in the back of his patrol car. Tr 631-32. Defendant
kicked the restraint system in the back of the patrol car and broke it loose from
its anchors. Tr 632-39. Engstrom did not give defendant medical attention
because he did not think defendant needed it. Tr 640. Engstrom transported
defendant to jail, and the jail accepted him. Tr 641. The jail will not accept
Several days after the incident, Engstrom noted a bruise on his bicep
where defendant punched him. Tr 746. He took a picture of the bruise a week
Defense evidence
November 25, 2015, to speak at the city council meeting about laws regarding
street performers and to sing a song that he had written. Tr 1196, 1211, 1213.
8
He had signed up to speak at the meeting that day. Tr 1213. His plan “was to
go to City Hall, and if I didn’t get arrested there for trespass, I was going to go
up and get arrested at the Kafoury Court Apartment complex,” which was
vacant. Tr 1225.
When he got to City Hall, defendant became sick due to his pain
condition. Tr 1225. Defendant has had Central Pain Syndrome for many years,
which causes chronic disabling pain. Tr 1196-98. It can cause emotional stress
sicker.” Tr 1226.
Defendant noticed the police arrive, and in particular, he took note that
Engstrom was “big” and had a taser. Tr 1227, 1228. He thought Engstrom
“was going to hurt me bad.” Tr 1228, 1230. Engstrom put his hand on
Oregon: “[W]e don’t get to touch people. That’s the line. Say anything you
Defendant tried to slide Engstrom’s hand off of his and said, “Do you
want your thumb back?” Tr 1228. Defendant explained the events that
followed:
9
Engstrom hurt defendant “all the way to the police car.” Tr 1236.
police placed defendant in the police car, his pain condition was aggravated,
“* * * * *
Tr 1237. Defendant explained his use of force that day: “I can do self-defense.
I’ve done * * * citizen’s arrests. I can, you know, if appropriate, use force. But
I don’t hurt people more than I need to in custody, and I had that happen that
defendant for years through her work at the jail. Tr 1178. She opined that
defendant had “a little character for aggression,” but if police are willing to
engage in a conversation with him, defendant is able to focus and calm down.
Tr 1173, 1176. She has never seen defendant get physical, although he
sometimes yells and gets angry. Tr 1184. The corrections community knows to
The trial court erred in failing to strike the prosecutor’s argument that “it
The trial court erred in failing to strike the prosecutor’s argument that
defendant “reveled in that same attention, the show, the spectacle, just like he
The trial court erred in failing to strike the prosecutor’s argument that
during the incident, defendant was “doing * * * what he did here today, create a
scene. Getting himself worked up and reveled in it, in the attention from the
audience, and the fact that he got to be the center of attention. Everyone had to
The trial court erred in failing to strike the prosecutor’s argument that
defendant “got worked up then, just as you saw him get worked up in court a
The trial court erred in failing to strike the prosecutor’s argument that
walking towards him to the point where the Judge had to order him back. He
The trial court erred in failing to strike the prosecutor’s argument that
defendant “testified, and I’ll be frank with you, I mean, his testimony, I was
surprised, you saw it. I didn’t expect that. It’s just a second act in this play he
The trial court erred in failing to strike the prosecutor’s argument that
to stand up before you in the same manner, make the same disjointed argument
* * *.” Tr 1289.
12
The trial court erred in failing to strike the prosecutor’s argument that
The trial court erred in failing to strike the prosecutor’s argument that
“You saw [defendant] show signs of that aggression here in the courtroom.” Tr
1291.
Defendant acted as his own counsel at trial. In its closing argument, the
trial and suggested that the jury should conclude from defendant’s trial conduct
that he was the aggressor during the incident at City Hall. For example, the
state argued:
4
Defendant combines the preservation of error, standard of review,
and argument for his first through third assignments of error, because they
present essentially the same legal issue. ORAP 5.45(6).
13
Tr 1259-61.
jury should use defendant’s in-court conduct as evidence of his guilt of the
charged offenses:
Tr 1261. The state continued its closing argument and persisted in encouraging
x “[Defendant]’s fantasies are on display in this entire video. The fact that
he was certain he was going to be arrested. He testified, and I’ll be frank
5
The prosecutor was apparently referring to a brief exchange during
defendant’s cross examination of Engstrom:
with you, I mean, his testimony, I was surprised, you saw it. I didn’t
expect that. It’s just a second act in this play he has, this misguided
attempt to have his voice heard.” Tr 1269.
x “In [defendant]’s head, he’s the star of the show. He wants that spotlight.
He wants that attention and he wants that validation. And he worked
himself up – he worked himself up on a – remember, he worked himself
up this week.” Tr 1291.
x “You saw how aggressive he was in the video. You saw him show signs
of that aggression here in the courtroom.” Tr 1291.
Standard of Review
Argument
evidence submitted and urge the jury to draw any [and] all legitimate inferences
from that evidence,” that freedom does not permit counsel to “make ‘statements
of facts outside the range of evidence.’” Cler, 349 Or at 487-88 (quoting Huber
This court has held that a trial court abused its discretion by allowing a
party’s closing arguments referencing facts not in evidence. Cler dealt with the
plaintiff’s medical malpractice lawsuit arising from cancer treatment that she
counsel asserted that an expert oncology nurse had been prepared to testify on
the defendant’s behalf during trial but could not testify before leaving for
vacation because the plaintiff had called additional witnesses, and that the nurse
would have supported the defendant’s case. Id. at 485, 488. The trial court
overruled the plaintiff’s objection to those arguments. Id. at 485. At the end of
arguments, the trial court gave the jury the standard instruction that it must
decide the case based on the evidence presented at trial and that counsel’s
The Supreme Court reversed. It agreed with this court “that jury
argument may refer to matters that are within the scope of the issues and the
evidence, but that evidence outside the record may not be suggested by any
means.” Id. at 490; see also OEC 103(3) (“In jury cases, proceedings shall be
from being suggested to the jury by any means, such as making statements or
held that “the trial court abused its discretion by overruling plaintiffs’
17
490, 493.
his guilt or innocence determined solely on the basis of the evidence introduced
Cober, 206 Or App 719, 727, 138 P3d 918 (2006) (quotations omitted). But the
contemporaneously with its occurrence, for example, by asking the court to “let
the record reflect” what was happening in court. Thus, the trial court never
admitted the evidence. See Lazzari v. States Marine Corp. of Del., 220 Or 379,
381, 349 P2d 857 (1960) (“[D]emonstrative evidence * * * adds nothing but
it. On the record that does exist, the use of defendant’s in-court conduct to
prove that he was the initial aggressor in the City Hall incident raises concerns
about its admissibility. The facts that the prosecutor identified are “other acts”
objection, the court must ensure that it complies with the strictures of OEC 403:
State v. Baughman, 361 Or 386, 388, 393 P3d 1132 (2017) (footnotes omitted).
It is likely that OEC 403 balancing would have led to exclusion, because
the state did not identify a nonpropensity purpose for its admission, and it
explicitly used the extra-record facts for propensity purposes—i.e., to argue that
defendant had a character for aggression and that he acted in conformity with
evidence and asked the jury to infer defendant’s guilt based on those facts.
Consequently, the trial court abused its discretion in allowing those arguments.
judgment, despite any error committed at trial, if, after considering all the
matters submitted, the court is of the opinion that the judgment ‘was such as
should have been rendered in the case.’” State v. Davis, 336 Or 19, 28, 77 P3d
1111 (2003) (quoting Or Const Art VII (Amended), § 3). Ordinarily, whether
the court must affirm despite error depends upon “a single inquiry: Is there
little likelihood that the particular error affected the verdict?” Davis, 336 Or at
32. “Under the federal constitution, the state bears the burden to prove that the
error was harmless beyond a reasonable doubt.” State v. Bates, 203 Or App
245, 251, 125 P3d 42 (2005), rev den, 340 Or 483 (2006).
In Cler, the Supreme Court reversed the judgment, holding that the
instructive. First, the court noted the importance of closing arguments to the
jury and reasoned that “[t]he integrity of closing arguments can only be ensured
when the court requires the parties to limit their arguments to the facts in
evidence and permissible inferences from those facts.” Id. at 491. Second, it
into the case after the parties had rested,” and by overruling the plaintiff’s
objections in front of the jury, the trial court had given the jury its “imprimatur”
20
to rely on those facts. Id. Third, the court noted that the defense counsel had
Id. at 492. Fourth, the court determined that “[t]he trial court’s admonition to
the jury that the lawyers’ arguments ‘are not evidence’ does not overcome that
outside of the record could have been seen by the jury not as arguments, but as
evidence to be relied on. Id. at 492-93. Finally, the court noted that the extra-
record facts were “material to the central issue in the case[.]” Id. at 493.
For similar reasons, the trial court’s approval of the state’s reliance on
amounted to prejudicial “other acts” evidence into the jury’s deliberations. The
state then urged the jury to draw propensity inferences from it. As in Cler, the
trial court gave the jury its “imprimatur” to rely on those facts by overruling
Further, although the trial court instructed the jury to “[b]ase [its] verdict
on the evidence” and that the “parties’ statements and arguments are not
evidence,” as in Cler, those instructions did not cure the harm. Id. at 492-93.
The jury would likely see defendant’s conduct as “evidence.” Indeed, the trial
court suggested that those facts were not “stricken” when it overruled
21
instructed the jury that evidence should be disregarded only “[w]hen I’ve
1293.
Moreover, the court did not place any limitations on the state’s use of
defendant’s in-court conduct, and the state urged the jury to draw propensity
1261 (arguing that defendant “got worked up [at City Hall], just as you saw him
get worked up in court”). Thus, the jury was free to conclude that the defendant
acted in conformance with his trial conduct during the City Hall incident, and
therefore he was the aggressor and was not acting in self-defense or from a fear
of injury. That was the central issue in the trial, because defendant raised self-
testimony that supported those defenses, and there is a great risk that the jury
based its verdict on the extra-record facts rather than on the events at issue.
of the remarks to which defendant assigns error went beyond the extra-record
defendant’s decision to testify at trial as “just a second act in this play he has,
this misguided attempt to have his voice heard.” Tr 1269 (emphasis added).
22
attention, the show, the spectacle, just like he did in court over the past week.”).
comments on his constitutional rights, that aspect of the comments makes their
of his constitutional rights to acts of narcissism in the eyes of the jury and
party and as his own counsel. Cf. State v. Knight, 343 Or 469, 482-83, 173 P3d
1210 (2007) (holding that the defendant’s derogatory statements about defense
counsel were unfairly prejudicial because they “inevitably affected the jury’s
there is “little likelihood” that the error affected the verdict. Under the federal
harmless-error standard, the state has failed to carry its burden of proving the
CONCLUSION
For those reasons, defendant asks this court to reverse the judgment and
Respectfully submitted,
ERNEST G. LANNET
CHIEF DEFENDER
CRIMINAL APPELLATE SECTION
OFFICE OF PUBLIC DEFENSE SERVICES
ESigned
Signed
By Brett J Allin at 11:14 am, Jan 31, 2018
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REGISTER OF ACTIONS
CASE NO. 15CR53749
Related Cases
15CR52961 (Related - Same Defendant)
PARTY INFORMATION
Attorneys
Defendant Stull, Barry Joe Also Known Male White Pro SeBRYAN
As Stully, Barry Joe DOB: 1958 FRANCESCONI
6' 2", 260 lbs Court Appointed
503 225-9100(W)
10852 SE Stark Street #5
Portland, OR 97216
SID: OR07941656 KASIA E RUTLEDGE
Other Agency Numbers Retained
86112 Multnomah County Sheriff 503 225-9100(W)
Kevin Kelley
Court Appointed
503 648-0707(W)
Eamon P McMahon
503 988-3162(W)
MICHAEL BOTTHOF
503 988-3162(W)
SEAN M MAZOROL
503 988-3162(W)
TODD T JACKSON
503 988-3162(W)
CHARGE INFORMATION
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999.
DISPOSITIONS
11/27/2015 Disposition
999. Assaulting a Public Safety Officer
No Complaint
Created: 11/27/2015 1:31 PM
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Result: Held
Created: 03/04/2016 9:32 AM
03/04/2016 Order - Appear (Judicial Officer: Kantor, Henry )
Signed: 03/04/2016
Created: 03/04/2016 11:26 AM
03/04/2016 Order (Judicial Officer: Wittmayer, John A )
Signed: 03/04/2016
Created: 03/04/2016 11:59 AM
03/04/2016 Order (Judicial Officer: Wittmayer, John A )
Signed: 03/04/2016
Created: 03/04/2016 11:59 AM
04/13/2016 Call - Regular (8:30 AM) (Judicial Officer Marshall, Christopher J)
for motion to be set out for 4/14 Arrn: 12/03/15
Created: 03/04/2016 11:32 AM
04/14/2016 Hearing - Motion (9:00 AM) (Judicial Officer Bushong, Stephen K.)
Result: Held
Created: 04/13/2016 8:51 AM
04/14/2016 Order (Judicial Officer: Bushong, Stephen K. )
Court denies Defendant's motion to dismiss
Signed: 04/14/2016
Created: 04/15/2016 9:40 AM
04/21/2016 Motion - Evidentiary
Created: 04/21/2016 2:27 PM
04/25/2016 Order - Authorizing Payment Expenses (Judicial Officer: Jones, Edward J )
Signed: 04/25/2016
Created: 04/25/2016 10:50 AM
05/05/2016 Exhibit - List
Manila
Created: 05/05/2016 10:32 AM
06/08/2016 Motion - Quash
Created: 06/08/2016 2:55 PM
06/08/2016 Declaration
Created: 06/08/2016 2:55 PM
06/09/2016 Call - Regular (8:30 AM) (Judicial Officer Marshall, Christopher J)
Arrn: 11/27/15. date cert
04/25/2016 Reset by Court to 06/09/2016
Created: 03/04/2016 10:39 AM
06/09/2016 Hearing - Motion (10:30 AM) (Judicial Officer Roberts, Leslie M)
15CR53749
Result: Held
Created: 06/09/2016 9:19 AM
06/13/2016 Trial - Six Person Jury (9:00 AM) (Judicial Officer Immergut, Karin J)
06/13/2016, 06/14/2016
1.5 days KJI
Result: Held
Created: 06/09/2016 9:33 AM
06/21/2016 Motion - Attorney Withdrawal
Created: 06/21/2016 10:54 AM
06/24/2016 Order - Substituting Attorney (Judicial Officer: Marshall, Christopher J )
LEGAL ADVISOR
Signed: 06/24/2016
Created: 06/24/2016 3:56 PM
06/30/2016 Hearing - Further Proceedings (9:00 AM) (Judicial Officer Marshall, Christopher J)
To meet new atty
04/13/2016 Reset by Court to 05/26/2016
05/26/2016 Continued to 06/30/2016 - Stipulated by Parties - State of Oregon; Stull, Barry Joe
Created: 03/07/2016 2:00 PM
07/15/2016 Hearing - Trial Readiness (9:00 AM) (Judicial Officer Roberts, Leslie M)
Result: Held
Created: 06/30/2016 10:58 AM
07/15/2016 Order - Appear (Judicial Officer: Roberts, Leslie M )
Signed: 07/15/2016
Created: 07/15/2016 4:17 PM
09/01/2016 Motion - Consolidate Cases
Created: 09/01/2016 4:02 PM
09/06/2016 Hearing - Motion (8:30 AM) (Judicial Officer Skye, Kelly)
motion to join cases
Result: Held
Created: 09/02/2016 2:15 PM
09/06/2016 Order (Judicial Officer: Skye, Kelly )
Granting dismissal on count #4
Signed: 09/06/2016
Created: 09/07/2016 10:12 AM
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FINANCIAL INFORMATION
11/21/2016 Transaction
100.00
Assessment
11/21/2016 Transaction
48.68
Assessment
12/22/2016 Transaction
50.00
Assessment
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CERTIFICATE OF COMPLIANCE WITH ORAP 5.05
Brief length
I certify that this brief complies with the word-count limitation in ORAP 5.05, which
word-count is 5,378 words.
Type size
I certify that the size of the type in this brief is not smaller than 14 point for both the
text of the brief and footnotes.
I certify that I directed the original Appellant's Opening Brief to be filed with
the Appellate Court Administrator, Appellate Courts Records Section, 1163 State
Street, Salem, Oregon 97301, on January 31, 2018.
I further certify that, upon receipt of the confirmation email stating that the
document has been accepted by the eFiling system, this Appellant's Opening Brief
will be eServed pursuant to ORAP 16.45 (regarding electronic service on registered
eFilers) on Benjamin Gutman #160599, Solicitor General, attorney for Plaintiff-
Respondent.
Respectfully submitted,
ERNEST G. LANNET
CHIEF DEFENDER
CRIMINAL APPELLATE SECTION
OFFICE OF PUBLIC DEFENSE SERVICES
ESigned
Signed
By Brett J Allin at 11:14 am, Jan 31, 2018