State v. Bement
| Decision Date | 08 March 2017 |
| Docket Number | A152702 |
| Citation | 284 Or.App. 276,391 P.3d 838 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Brian Daniel BEMENT, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
284 Or.App. 276
391 P.3d 838
STATE of Oregon, Plaintiff-Respondent,
v.
Brian Daniel BEMENT, Defendant-Appellant.
A152702
Court of Appeals of Oregon.
Argued and submitted March 16, 2015.
March 8, 2017
Daniel C. Bennett, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Brian Daniel Bement filed the supplemental brief pro se.
Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.
FLYNN, J.
This appeal arises from defendant's conviction for aggravated murder. Defendant did not deny shooting the victim but contended that he acted in self-defense after the victim attempted to rob defendant at gunpoint. The jury rejected defendant's claim of self-defense and found defendant guilty of one count of aggravated murder, two counts of the lesser included charge of murder, two counts of first-degree robbery, and one count of felon in possession of a firearm.1 On appeal, defendant raises 14 assignments of error, including nine that challenge the trial court's exclusion of statements from email messages written by the victim, G. Defendant offered those statements to support his theory that G grew progressively more paranoid about his financial solvency in the months before the shooting, culminating in a mental state that motivated him to demand defendant's money at gunpoint. We conclude that the statements are relevant and not subject to exclusion under the hearsay rules and, thus, that the court erred in excluding the statements. We also conclude that the error requires reversal because the excluded statements are qualitatively different from, and not "merely cumulative" of, other admitted evidence regarding G's mental state. Accordingly, we reverse and remand.2
I. BACKGROUND
Because our decision turns on the relevance of the excluded email statements and on defendant's need for those statements, we discuss the evidence presented at trial in significant detail. This case began after a Washington County Sheriff's deputy discovered a dead man slumped over in the driver's seat of a car that was parked in a cemetery west of Portland. The decedent, G, had suffered three gunshot wounds to the head, and a gun was lying on the rear passenger-side floor. The shots appeared to have been fired when the gun was very close to the body, perhaps one to six inches away.
At first glance, the scene had the appearance of a suicide, given the location of the car, the position of the decedent's body, and the fact that the gun was left behind. However, the deputies quickly dismissed the possibility of suicide, in part because they concluded that the gun had been "wiped clean." In addition, deputies found a fourth bullet casing and a hole in the back seat upholstery. A state's expert testified that the trajectory of the hole suggested that the fourth shot was fired by someone sitting in the back seat.
Suspicion for the murder quickly turned to defendant when a friend of G's told detectives that G and a man that G introduced as "Frankie" drove off together from G's home in Portland on the day of the shooting. The friend provided a phone number for "Frankie," which the detectives traced to defendant.
Defendant was a drug dealer who purchased heroin in bulk and then repackaged it for street-level sales by "runners" who worked for defendant. He sometimes went by "Frankie." G was a naturopathic physician with his own practice, but he was also an investor in defendant's drug operation. He provided defendant with money to purchase the drugs that defendant then resold. The state's theory of the case was that defendant's relationship with G was going sour; that G and defendant had gone to the cemetery together with approximately $ 20,000 in cash supplied by G, for what defendant said would be a drug deal; but that defendant had planned, instead, to rob and shoot G and make the death look like a suicide.
In his testimony at trial, defendant admitted that he shot G, wiped the gun clean, took the money, and fled. Defendant claimed, however, that the money was his, that G had pulled the gun on defendant and demanded the money, and that, in an ensuing struggle for the gun, defendant shot G in self-defense.
A. The State's Case
The indictment alleged that defendant killed G in the course of a robbery. It charged him with two counts of robbery in the first degree and three counts of aggravated murder—based on separate theories of why defendant caused
the death of G: (1) in furtherance of the crime; (2) in an effort to conceal the crime; and (3) in an effort to conceal the identity of the perpetrator of the crime. The indictment also charged defendant with one count of being a felon in possession of a firearm.
The state presented evidence at trial that defendant owed money to G and that G was pressuring defendant to repay it. G expressed concern to Whitaker, an acquaintance in the drug business and a close friend, that defendant was not paying G money that he was owed. Whitaker believed that the debt that G was discussing was "a large amount of money," possibly higher than $ 300,000. In January 2010, G flew Whittaker to Portland to help G confront defendant about the money. Whitaker attended this meeting and thought that it went well, but he was not sure if they reached an agreement on when defendant would repay G.
However, Whitaker attended a second meeting between defendant and G a few weeks later and thought that defendant seemed "upset" about Whitaker's presence at the meeting. Defendant agreed that he owed G money but, rather than repay everything he owed to G, defendant thought that he should use the money to invest in a new operation in Costa Rica. Over the course of the next month, Whitaker had the impression that the relationship between defendant and G was getting worse.
The state's case also included evidence that defendant planned in advance to shoot G, to take the money, and to make the shooting look like a suicide. Heikkila was the friend who reported meeting "Frankie" at G's house on the morning of the shooting. That morning, defendant, Heikkila, and G spent time in G's bedroom where they shared a methamphetamine pipe and used heroin. Heikkila heard G and defendant discussing a planned drug deal. It was Heikkila's impression that defendant was trying to talk G into the drug deal and that G was reluctant to spend the money. At one point, G retrieved his pistol from a gun case, and Heikkila saw defendant place the gun in his waistband.
Later, Heikkila saw defendant loading boxes into the trunk and back seat of G's rental car. He saw G direct defendant to remove a FedEx box from G's safe and saw
defendant place that box in the trunk of G's car. While defendant and Heikkila were at the car, away from G, defendant told Heikkila, "I'm really worried about [G] lately. You know, things are falling apart and I think if this deal goes wrong, he's probably going to commit suicide." Eventually, defendant and G drove away in G's car, with defendant at the wheel because G "was in no condition to drive." Heikkila tried to find and follow the car, because he was concerned about G's safety.
As defendant and G headed west from Portland, they stopped to eat at a fast-food establishment, where they were captured on surveillance video. One of the videos showed defendant touching his belt line near his hip. A detective testified that "frequently," when officers see that move "on the street," it indicates that the person is concealing a weapon in his waistband.
A neighbor saw the car at the cemetery at 4:00 p.m., Heikkila and G had a five-minute phone conversation that ended at approximately 4:23, and two witnesses heard gunshots at about 4:30. After the shooting, defendant got a ride from O'Reilly, a woman with whom he had spent the prior evening.
O'Reilly testified that she had called defendant "around [3:00 p.m.]" to discuss a plan to get together, and that defendant had asked her to pick him up later in Hillsboro. O'Reilly met defendant in a parking lot and observed that he "was acting very strange" and was carrying a pink and white blanket. As they drove toward Portland, defendant told O'Reilly that "something had just gone wrong" and that he had shot G three times in the face at the cemetery. When she asked defendant if he was worried about getting caught, defendant told O'Reilly that he had been wearing gloves, "just in case," and that he had made the shooting look like a suicide. Defendant asked O'Reilly to be his alibi—to make up a story about having seen G drive away without defendant in the car. O'Reilly thought that defendant was just making up a story to impress her.
When they stopped at a gas station, defendant stowed in the trunk of O'Reilly's car the...
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