State v. Davis

• Decision Date: 02 October 2003
• Parties: STATE of Oregon, Respondent on Review, v. Cornelius Key DAVIS, Petitioner on Review.
• Court: Oregon Supreme Court

77 P.3d 1111

336 Or. 19

STATE of Oregon, Respondent on Review, v. Cornelius Key DAVIS, Petitioner on Review.

CC 96051015; CA A106019; SC S49523.

Supreme Court of Oregon.

Argued and Submitted March 11, 2003.

Decided October 2, 2003.

Andy Simrin, Salem, argued the cause and filed the brief for petitioner on review. On the petition for review were Ingrid A. MacFarlane, Deputy Public Defender, and David E. Groom, Acting Executive Director.

Kaye E. McDonald, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the briefs were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.¹

DURHAM, J.

In this criminal case, defendant challenges his conviction for murder, ORS 163.115. He contends that the trial court erred in excluding certain statements that the victim made more than two months before her death. According to defendant, the statements supported his factual theory that the victim had committed suicide.² The trial court determined that the statements were not relevant to the victim's state of mind at the time of the shooting and, therefore, were not admissible. The Court of Appeals affirmed that decision without an opinion. State v. Davis, 181 Or.App. 467, 46 P.3d 229 (2002). On review, we conclude that the trial court erred in excluding the statements and that that error was not harmless. Accordingly, we reverse the decision of the Court of Appeals and the judgment of the trial court, and remand the case to the trial court for further proceedings.

The record discloses the following facts. On January 14, 1999, a jury convicted defendant of the murder of the victim. The victim died on May 7, 1996, from a single gunshot wound to the center of her forehead. Defendant and the victim had had an "on again, off again" relationship from 1992 until the victim's death. During his relationship with the victim, defendant was married to Davis, with whom he also had had an "on again, off again" relationship. Defendant also had intimate relationships with other women during that time.

Defendant and the victim had three children together, including a son who died in April 1996 from sudden infant death syndrome. Shortly after the death of their son, defendant moved out of the apartment that he had shared with the victim and moved in with his friend Ward. At about the same time, defendant began an intimate relationship with Hoffman, who lived with him sporadically at Ward's townhouse.

On May 7, 1996, defendant and Ward invited several people to a party at Ward's townhouse. During the evening, the victim arrived and confronted defendant about their relationship. Defendant went upstairs. After retrieving a gun that defendant intended to trade for drugs that night, defendant entered an upstairs bathroom. The victim followed him. A short while later, witnesses in the house heard what sounded like a door slamming. The victim suffered the fatal gunshot wound to the forehead while in the bathroom. Defendant then proceeded downstairs and asked everyone to leave. The only witnesses to the shooting were defendant and the victim.

Defendant and his brother disposed of the victim's body in a remote location. Aided by Ward, they also cleaned Ward's townhouse in an attempt to cover up the victim's death. After the discovery of the victim's body, and an investigation, the state charged defendant with murder, ORS 163.115, and felon in possession of a firearm, ORS 166.270.

The disputed factual issue at defendant's trial was whether defendant shot the victim or whether the victim shot herself. Defendant testified that, while in the bathroom, he had told the victim that their relationship was over and that he had "replaced" her. He further testified that the victim then grabbed the gun, which was lying near the sink, and, after pointing it at him, turned the gun on herself and fired. The state presented evidence supporting its theory that defendant shot the victim.

Before the trial, the state had appealed an order of the trial court excluding evidence of defendant's prior acts of violence towards the victim and statements that defendant and the victim made during and regarding those incidents. The trial court had excluded the evidence under OEC 404(3)³ and OEC 802.⁴ The Court of Appeals affirmed in part and reversed in part. State v. Davis, 156 Or. App. 117, 967 P.2d 485 (1998) (Davis I). The court held that evidence of defendant's prior abuse of the victim was not relevant to whether he had shot her with a gun on May 7, 1996. Id. at 125, 967 P.2d 485. However, the court concluded that certain evidence concerning events in March 1996 and thereafter was admissible because it "could be relevant to prove that defendant had a motive to kill [the victim] in May 1996." Id. at 126, 967 P.2d 485. Neither party sought review of that decision of the Court of Appeals in this court.

On remand, the trial court admitted the evidence that the Court of Appeals had determined was relevant to show defendant's motive. The state then sought to exclude evidence that defendant claimed would support his factual theory that the victim had committed suicide. That evidence consisted of statements that the victim had made more than a month before her death. The state argued that the court should exclude those statements because they were "too remote to be relevant and would unduly prejudice a jury." Relying on the opinion of the Court of Appeals, the trial court granted the state's motion in part and excluded evidence of statements that the victim had made before March 1996. The trial court ruled:

"The court allows part 2 of the State's Motion to Exclude Evidence (Evidence of victim's state of mind) to the extent such evidence consists of events occurring prior to March 1996. * * * Evidence prior to March 1996 of the conduct of a witness to prove intent, plan or otherwise under OEC 404 is too remote in time for its probative value, if any, to outweigh its prejudicial effect."

During trial, defendant submitted ten separate offers of proof regarding evidence of statements that the victim had made before March 1996 to one or another of four witnesses. We summarize below the contested evidence that defendant offered according to the offer of proof number assigned at trial.⁵

Offer of Proof # 1: Heidt, a friend of defendant, would have testified that, in December 1992, following a miscarriage, the victim stated that "she didn't know if she could continue going without [defendant]" and that "she didn't know if she could go on."

Offer of Proof # 3: VanDehey, a woman with whom defendant had cohabited between the summer of 1992 and December 1993, would have testified that, during the time of her cohabitation with defendant, the victim had stated that she would kill herself because of defendant's other relationships and that, if she could not be with defendant, then she would kill herself and defendant "would be sorry for it."

Offer of Proof # 4: VanDehey would have testified that, between 1992 and 1993, the victim would claim every month that she was pregnant and had had a miscarriage, and that the victim had stated that she was taking medication for depression.

Offer of Proof # 5: VanDehey would have testified that the victim "was always threatening to kill herself if she couldn't have [defendant]."

Offer of Proof # 6: VanDehey would have testified as to the contents of a letter that she claimed that the victim wrote in November 1993. In the letter, the victim made several statements about not wanting to lose defendant and that she thought that she should just disappear.

Offer of Proof # 7: Cariati, a former girlfriend of defendant, would have testified that, between December 1992 and May 1993, the victim had stated that defendant was hers and Cariati could not have him, and that the victim threatened to kill herself.

Offer of Proof # 8: Davis, defendant's wife, would have testified that, between late 1993 and early 1994, she and the victim would get into physical altercations, during which the victim would state that defendant was hers and that it was "time to settle this."

Offer of Proof # 9: Davis would have testified that, in 1994, the victim left a note for defendant that stated that their son was in the hospital dying and that defendant should go to the hospital before the son died.

Offer of Proof # 10: Davis would have testified (1) that, in April 1995, the victim stated that defendant was hers and, although it was not true, that the victim and defendant were engaged and that she had asked her mother for money so that defendant could divorce Davis; (2) that, in 1995, the victim stated that if she could not have defendant, no one could; and (3) that the victim had stated that defendant could not take her son with Davis and that she would "kill him first."

The trial court excluded all the proffered evidence, ruling that

"* * * I think it is pretty clear that both—that based on the Court of Appeals' decision in State v. Davis, that none of this evidence would be admissible because of its age. It's all too old. It all occurred before March 1996. At least that ruling would be consistent with what the Court of Appeals ruled, even though the Court of Appeals didn't address all these statements, and so absent anything new or additional, that's the ruling of the Court."

As noted, the jury convicted defendant of murder and felon in possession of a firearm. Defendant appealed his murder conviction, arguing that the trial court erred in excluding the proffered evidence of the victim's statements. The Court of Appeals affirmed, and this court allowed defendant's petition for review.

On review, we first address whether the evidence that defendant sought to introduce was relevant under OEC 401. That rule provides:

"`Relevant evidence' means evidence having any tendency to make the existence of...