State v. Ennis

• Decision Date: 25 April 2007
• Docket Number: 99C41999; A111389.
• Citation: 212 Or. App. 240,158 P.3d 510
• Parties: STATE of Oregon, Respondent, v. Jamison Lee ENNIS, Appellant.
• Court: Oregon Court of Appeals

158 P.3d 510

212 Or. App. 240

STATE of Oregon, Respondent, v. Jamison Lee ENNIS, Appellant.

99C41999; A111389.

Court of Appeals of Oregon.

Submitted on Remand August 30, 2006.

Decided April 25, 2007.

Laura Graser filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kaye E. McDonald, Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.

LANDAU, P.J.

In 2000, a jury found defendant guilty of one count of felony murder. ORS 163.115(1)(b)(C). The trial court sentenced him under ORS 137.700 to 300 months in prison and lifetime post-prison supervision. Defendant appealed on the ground that the trial court, among other things, had erroneously admitted hearsay statements of a codefendant in violation of defendant's confrontation rights guaranteed by the Sixth Amendment to the federal constitution. This court affirmed his conviction without opinion. State v. Ennis, 186 Or.App. 742, 66 P.3d 1029 (2003).

In the meantime, the United States Supreme Court decided Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), concerning the extent to which the Sixth Amendment permits the admission of "testimonial" hearsay statements. Shortly after that, defendant petitioned for review in the Oregon Supreme Court. The Supreme Court held the petition in abeyance pending the resolution of another case involving the application of Crawford. Shortly after reaching a decision in that case, State v. Cook, 340 Or. 530, 135 P.3d 260 (2006), the court allowed defendant's petition for review, vacated our decision, and remanded for reconsideration in light of Crawford and Cook. State v. Ennis, 341 Or. 197, 140 P.3d 580 (2006). We allowed the parties' joint motion to file supplemental briefing concerning the impact of Crawford and Cook on the issues raised in defendant's appeal. On reconsideration, we now reverse and remand.

I. FACTS

In view of the nature of defendant's challenges to his conviction, we begin with a summary of the underlying facts, which are undisputed, and then turn to a more detailed examination of the evidence at defendant's trial.

A. Undisputed facts

Defendant sold drugs to the victim, Patrick Murphy, on approximately 10 occasions. Early in the morning of October 28, 1998, defendant and two other men, Michael Benson and Brian Hudson, drove defendant's car and a U-Haul truck to Murphy's residence in Salem. When the three arrived at the house, Murphy brought them into the garage where another man, Perrotte, was smoking methamphetamine.

Defendant asked Murphy about certain statements that Murphy reportedly had made to defendant's girlfriend. Benson interrupted the conversation, and the conversation between Benson and Murphy became heated. Benson and Murphy went into the house. Meanwhile, Hudson carried various items, including guns, ammunition, and tools, outside to the U-Haul truck. Eventually, two shots were heard. Perrotte drove away in Murphy's vehicle. Benson and Hudson left in the U-Haul. Defendant left in his car. No one reported the shooting to the police.

On December 14, 1998, Salem police went to Murphy's residence on a report of an abandoned house. They found Murphy's body in the kitchen. He had been killed by a single gunshot to the chest and had been dead for approximately six weeks. There was a small amount of methamphetamine in the house, along with needles, smoking paraphernalia, empty gun boxes, and ammunition. The house had been burgled on several occasions after Murphy's death; two bedrooms appeared to have been ransacked.

As part of the investigation into Murphy's death, Salem Police Detectives Stoelk, Quakenbush, and Rawlins separately interviewed Hudson. Detective Quakenbush also interviewed an inmate of the Marion County Jail, Jacobs, who had had conversations with Hudson in the jail in January 1999. Detective Graham interviewed two acquaintances of Hudson named Silsby and Morgan, who described statements Hudson had made to them.

Defendant, Benson, and Hudson eventually were indicted for two counts of felony murder committed in the course of committing the crimes of, respectively, burglary in the first degree and robbery in the first degree. ORS 163.115(1)(b)(C), (G). The state's theory was that defendant, Benson, and Hudson went to Murphy's residence to collect a drug debt or to confront Murphy about threats that he had made against defendant's girlfriend and that, while they were there, Murphy and Benson engaged in an altercation that ended with Benson shooting Murphy. Defendant asserted an affirmative defense under ORS 163.115(3).¹

Before trial, defendant moved to sever his trial from that of his codefendants. The trial court denied the motion. The state moved for admission of redacted versions of Hudson's various statements; the redactions purportedly would eliminate any references by Hudson to defendant or Benson and the statements would then be read into the record by the relevant witnesses. The trial court granted the motion.

B. Trial

The state's case-in-chief consisted primarily of the testimony of Murphy's friend Perrotte and the introduction through various witnesses of redacted versions of Hudson's statements. Perrotte testified that, on certain occasions in 1998, he was present with Murphy when defendant came to Murphy's house and, after defendant left, "there were drugs." He testified that, on the night of the murder, he arrived at Murphy's house around 11:00 p.m.; that he and Murphy snorted and smoked methamphetamine; that he, Perrotte, "might have been drinking a beer"; and that he "had a buzz."

Perrotte testified that, after defendant and his codefendants arrived, Murphy and Benson got into an argument that escalated into an altercation and that Benson tried to shoot Murphy with a crossbow, which did not fire, and then hit him with a phone. The "scuffle" then "moved into the house." Perrotte said that he could hear yelling and banging. At some point, he said, "guns came out."

Perrotte testified that defendant had a gun that looked like a large pistol or a small automatic with a large clip. Perrotte also testified that, after Murphy and Benson went into the house, defendant threw a roll of duct tape into the house and that, while Murphy and Benson were in the house, defendant was "keeping an eye on me" in the garage "[w]ith the gun." Perrotte testified that defendant was directing Hudson "a little bit" in "rounding up" Murphy's property and taking it out to the truck. He stated that he believed that two long guns that were taken from the house belonged to defendant. Perrotte testified that, at the time Murphy was shot, defendant was in the garage, as was the person gathering up property.

On cross-examination, Perrotte reiterated that, when defendant was "running around the garage, he had a gun in his hand." He acknowledged, however, that he had told Detective Graham that defendant was not brandishing his gun at him. Also on cross-examination, Perrotte admitted that he initially lied to officers who questioned him about Murphy's death, that he drove Murphy's vehicle after Murphy died, and that he possessed and used methamphetamine on the night Murphy died. He further testified, however, that he had never been charged with obstruction of justice, unauthorized use of a motor vehicle, or possession of a controlled substance. Perrotte also testified that he had not been promised anything in exchange for his testimony in defendant's trial.

Detective Stoelk testified that he interviewed Hudson in February 1999. He read into the record a redacted version of the statement Hudson had made to him. As pertinent here, the redacted statement stated:

"Brian Hudson said that he had been staying at * * * Salishan Street with his girlfriend Stephanie Silsby [and] with a Jonathan Morgan * * *. Hudson knows Michael Benson and Jamison Ennis [that is, defendant]. He attended high school with Ennis and considered him to be a friend for some time. He met Benson only recently. * * * [O]ne day between 3 and 5 a.m. Hudson was at the Salishan residence * * *. There was a knock on the door, and Stephanie answered the door. Hudson went outside. There was a Honda car and a U-Haul truck. * * * Hudson got into the Honda and went to Waremart and met the U-Haul.

"They went to a house. He did not know the person who lived at the house. At the house, the U-Haul was parked in the driveway * * *. Murphy [the victim] answered the door * * *. Murphy let him into the house. Hudson went into the garage. Someone else was there. Murphy and the other person were smoking methamphetamine. He did not know the other person's name. He watched what happened in the garage. Murphy went into the house. Hudson heard loud crashing noises and thudding noises that sounded like a body hitting the wall. After a while, Hudson saw Murphy fall backwards into the garage, landing on the floor. He saw Murphy get hit in the head with a handgun. There was a large gash in Murphy's head that was bleeding quite a bit. There was duct tape placed around the wound on Murphy's head. Hudson, following directions by one of the other persons present, began packing up Murphy's tools. * * * Hudson went inside the house to a back bedroom that appeared to serve as an office to get guns from that room. * * * As Hudson was in the office, he saw Murphy in the bedroom. It appeared that things were calmer. Murphy no longer had the duct tape on. When Hudson reentered the house after carrying the guns out, Hudson saw that Murphy was in the doorway leading into the office. Hudson thought Murphy had a gun. Hudson was handed a can of mace and told to go out in the garage and watch the guy in the garage. Hudson then loaded the welder and the two long rifles into the U-Haul truck. While outside, Hudson heard two loud pop noises from inside the house. The other person, who had been at the house when Hudson arrived,...