State v. Brown

• Decision Date: 16 October 2019
• Docket Number: A165931 (Control), A166092
• Citation: 452 P.3d 482,300 Or.App. 192
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Tony Lamar BROWN, Defendant-Appellant.
• Court: Oregon Court of Appeals

300 Or.App. 192

452 P.3d 482

STATE of Oregon, Plaintiff-Respondent,

v.Tony Lamar BROWN, Defendant-Appellant.

A165931 (Control), A166092

Court of Appeals of Oregon.

Submitted August 9, 2019.

October 16, 2019

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. On the supplemental brief were Ernest G. Lannet and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher Page, Assistant Attorney General, filed the briefs for respondent.

Before Lagesen, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.

KISTLER, S. J.

Defendant appeals from a judgment of conviction for first-degree robbery, first-degree burglary, unlawful use of a weapon, strangulation, second-degree kidnapping, and menacing. He raises four assignments of error in his opening brief and three additional assignments of error in a supplemental brief. We limit our discussion to the second and third assignments of error in his opening brief and affirm the trial court’s judgment.¹

The victim and defendant had been in a relationship for some time. In 2016, the victim sought to end the relationship, but defendant persisted. He repeatedly drove by the victim’s home, telephoned her, and sent her text messages. On three occasions during August and September, defendant took actions that resulted in the convictions he now challenges on appeal. We describe those actions briefly before turning to the trial court’s evidentiary rulings that are the subject of defendant’s second and third assignments of error.

On August 9, 2016, the victim was at home sleeping on a couch. She woke to find defendant putting a plastic bag over her head. After struggling with defendant, she was able to get the bag off her head. However, once she did so, defendant put a gun initially to her head and then in her mouth. He accused her of seeing other men and told her that he was going to kill her. He said that he was going to put her body in the plastic bag and bury her where no one would find her.

At first, the victim told defendant that she was not seeing anyone. Later, she "started agreeing to what he was saying, because[, as the victim put it,] the truth wasn’t working." When she began "admitting" his accusations, defendant calmed down. He left the living room briefly, which allowed the victim to text her adult daughter to call the police. Defendant became suspicious that the victim had contacted the police and fled from the house when officers knocked on the front door.

After that attack, the victim stayed in her mother’s house because she "was too scared to go back" to her own home. However, on August 22, the victim went back to her home with four members of her family. She wanted to gather some clothes and secure the house to keep defendant from getting inside. When they were inside the home, they "smell[ed] smoke. It just didn’t seem right. It felt like he * * * might have just been there." They looked for defendant but did not find him. Then, the victim’s daughter went over to a couch by the window. When she did so, the couch moved, defendant jumped out from behind the couch, brandished a gun, and threatened to kill the victim. When the victim’s uncle and her daughter confronted defendant, he ran out the back of the house.

After those two encounters, defendant continued to telephone the victim, and the victim continued to talk with him. During one of their calls, he offered to meet her in a public place to help her with her car. He told her that another person would be there to calm any fears she might have. Initially, the victim resisted. Later, she relented. On September 7, the victim drove her car to a public parking lot where she met defendant. The third person was not there. Defendant got in the backseat of the victim’s car and told her to drive to a city park. When the victim’s cell phone rang, defendant told her not to answer it, put a knife to her throat, and once more accused her of seeing other men.

When they got to the park, the victim began driving her car into parked cars, hoping that someone would call the police. During the ensuing confusion, the victim tried to escape. Defendant, however, managed to get into the front seat and grab the victim’s braids before she could get completely out of the car. He drove off, holding the victim by her braids and dragging her along the road for several feet until her braids broke.

That night, defendant abandoned the victim’s car, broke into her house, and barricaded himself inside. The next day, the police discovered him in the house, which led to a nine-hour standoff during which the police initially tried to get defendant to give himself up and later forcibly entered the house and placed defendant under arrest. The trial court’s rulings admitting evidence regarding the standoff are the subject of defendant’s second and third assignments of error, which raise related but separate issues.

I. DEFENDANT’S SECOND ASSIGNMENT OF ERROR

Before trial, defendant filed a motion in limine arguing that any evidence regarding the standoff should be limited under OEC 403. In addressing that motion, the trial court issued what it described as a preliminary ruling; it provided general guidelines for the parties to follow, and it expressly advised defendant that he should object at trial if the evidence of the standoff became either cumulative or unduly prejudicial. At trial, defendant renewed his motion in limine before any testimony regarding the standoff was offered, and the trial court reaffirmed its pretrial ruling. Three witnesses then testified about the standoff without further objection. Some time after the trial had moved on to other matters, defendant raised an OEC 403 objection to the standoff testimony that the three witnesses previously had offered. The trial court overruled that objection.

On appeal, defendant appears to assign error to each of those rulings.² In arguing that the trial court erred in making those rulings, defendant treats the three rulings as if they were synonymous. However, the record before the trial court when it made the rulings and the substance of those rulings differ. Beyond that, each ruling arose in a different procedural posture. For that reason, we discuss each ruling separately. See Strawn v. Farmers Ins. Co. , 350 Or. 336, 347-50, 258 P.3d 1199, adh’d to on recons. , 350 Or. 521, 256 P.3d 100 (2011), cert. den. , 565 U.S. 1177, 132 S.Ct. 1142, 181 L.Ed.2d 1017 (2012) (explaining the need to focus on the specific arguments raised and the precise evidentiary rulings); Hayes Oyster Co. v. Dulcich , 170 Or. App. 219, 224, 12 P.3d 507 (2000) (same).

A. Defendant’s Pretrial Motion in Limine

Before trial, defendant filed a motion in limine to exclude evidence regarding the standoff. In making that motion, defendant acknowledged that a limited amount of evidence regarding the standoff was admissible to prove his guilty knowledge. Specifically, defendant acknowledged that the state could "confirm that * * * [defendant] did not cooperate, that he refused to come out, [and that] they had to forcibly remove him." However, defendant argued that anything other than that brief, schematic description of the standoff would be unduly prejudicial and violate OEC 403. The state, for its part, recognized that not all the evidence regarding the standoff should be admitted, but it argued that more information than defendant would admit was relevant to prove defendant’s guilty knowledge.

As the parties’ discussion progressed, their positions shifted slightly. In part, that shift derived from the fact that defendant did not know the specific evidence that the state sought to admit. When he filed his pretrial motion in limine , he was aware only of the people on the state’s witness list whom it intended to call, and he could only speculate about the evidence the state would seek to admit. In part, the parties’ positions appear to have changed because each side saw some value in the other’s arguments and modified their positions accordingly. Defendant, for example, acknowledged that the officers could add that defendant had been found in the victim’s home. The state, for its part, offered to limit the number of witnesses to avoid focusing too much on the standoff.

Despite some movement on both sides, the parties were unable to agree on which of the events that occurred during the nine-hour standoff should be admitted, nor could they agree on the extent to which the witnesses could testify about those events. Faced with that division, the trial court announced what it described as a "preliminary ruling." It advised the parties that it had "concerns about the quantum and character of the evidence at some point crossing the line from being probative to being prejudicial." It recognized that the "evidence of flight and resisting apprehension clearly is relevant to guilty knowledge." It also recognized, however, that "[t]ypically cases involve fleeing police and being apprehended. They don’t include [a] nine hour standoff, CERT Team, C.N.T. Team, C.I.C. Team, tear gas, tasing, [and] robots." The court accordingly asked

"the State to make its way through this testimony quickly and without cumulative coverage of things, without hysteria, without officers testifying that there was a statement to the effect that ‘I’ve never seen somebody not respond to this much gas,’ or ‘I’ve never seen somebody go so long.’ That statement particularly, that’s a lot of facts not in evidence that doesn’t [sic ] have anything to do with this case, so if there was an officer who was going to testify something to that effect, I think that goes beyond what would be appropriate."

In providing that guidance, the court acknowledged that "this is a difficult [case] for the State to know where the Court’s at on this." The court then...