State v. Farmer, 010231271.
| Decision Date | 31 January 2007 |
| Docket Number | 010231271.,A118013. |
| Citation | 152 P.3d 904,210 Or. App. 625 |
| Parties | STATE of Oregon, Respondent, v. Dontae Remarcus FARMER, Appellant. |
| Court | Oregon Court of Appeals |
Andrew S. Chilton argued the cause for appellant. With him on the brief was Chilton, Ebbett & Rohr, LLC.
Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and David J. Amesbury, Assistant Attorney General.
Before LANDAU, Presiding Judge, and SCHUMAN and ORTEGA, Judges.
Defendant was convicted of murder with a firearm. ORS 163.115. He appeals after the trial court denied his motion for a new trial based on newly discovered evidence, namely, testimony of an eyewitness who called 9-1-1 at the time of the shooting. ORS 136.535; ORCP 64 B(4). We affirm.
We begin with a brief overview of the evidence, before turning to a more detailed review. As the victim, Monterroso, was walking down the street one evening in late January 2001, he was killed by a single gunshot to the chest. At trial, the evidence against defendant included the following testimony: a witness identified defendant as someone who had been looking for Monterroso shortly before the shooting; another witness identified defendant as the person who shot Monterroso; and defendant's ex-girlfriend and her parents testified that defendant confessed to the killing, although they did not initially believe his confession. No physical evidence tied defendant to the murder. Defendant sought to undermine the certainty of the identification testimony questioned the motives of his ex-girlfriend and her parents, and introduced evidence that the police had information that another person, who resembled defendant, was seen near the crime scene and was reputed to have been involved in the killing.
The newly discovered evidence at issue on appeal is a statement of an eyewitness, Thompson, who had called 9-1-1 at the time of the shooting but who could not be located in time for trial. In an affidavit, Thompson stated that defendant was not the shooter and that the shooter more closely resembled the person who defendant suggested was the killer. In response, the state submitted an affidavit from a police officer who subsequently interviewed Thompson and reported that Thompson expressed substantial uncertainty about her memory of events.
With that overview in mind, we turn to a more detailed examination of the evidence, beginning with the trial testimony of the two witnesses who identified defendant at trial: Monterroso's cousin, Feliu, and his friend, Muldrew. On the afternoon of January 24, 2001, Monterroso, who lived with Feliu's family, was hanging out on the porch of their home with Feliu, Muldrew, and another friend, McCauley, when Feliu and Muldrew noticed two men walk by on the other side of the street. Perhaps around 4:30 p.m., Monterroso, Muldrew, and McCauley left Feliu behind and walked to a nearby store, with the intention of going to another friend's house afterward.
After they left, two men came to Feliu's door and asked where Monterroso was. The time was earlier than 5:00 p.m. and may have been around 4:45 p.m. (Feliu acknowledged that she was "really bad with times" but based her estimates on how light it was and on the time that her mother typically returned home from work.) Feliu testified that, because of the way the men were dressed, she recognized them as the same men who had walked by earlier. She also recognized one of the men as defendant, with whom she had attended middle school about four years earlier and whom she had seen outside of school a couple of times around the neighborhood. Feliu testified that she "knew him the second [she saw] him" that second time.
Feliu told the men that Monterroso and his friends had gone to the store, and the two men walked off in that direction. Perhaps 10 to 25 minutes later, shortly before 5:30 p.m., the two men returned, told Feliu that Monterroso was not at the store, and sat down on the porch. When Feliu told them that they could not remain there, the men left, although Feliu did not see what direction they went.
Muldrew testified that when he, Monterroso, and McCauley left the store, he saw defendant and another person standing in front of the store. He was not sure that it was defendant who had earlier walked by Feliu's house, but he did recognize defendant's companion, by his coat, as one of the men who had walked by while Muldrew and the others were on Feliu's porch.
Muldrew and Monterroso walked down the street next to each other, while McCauley walked farther ahead. Someone came up behind Muldrew and Monterroso and said, "Give us your money." Muldrew testified that someone then grabbed Monterroso and turned him around; when Muldrew turned with Monterroso, he saw defendant shoot Monterroso in the chest from approximately three feet away with a .357 revolver. Muldrew ran to a payphone at the store and called 9-1-1, returned to where Monterroso was lying on the ground, determined that he was dead, and then ran to Feliu's house with McCauley. Records from the 9-1-1 call indicate that Muldrew called at 6:15 p.m.
Around the same time that Muldrew called 9-1-1, a woman — who at that time was identified only by her first name — also called 9-1-1. The 9-1-1 call went as follows:
[Some conversation taking place in the background; it is largely unintelligible.]
At this point, the telephone call ended.
On the night of the shooting, police did a "walk-through" of the crime scene, in which a number of detectives searched the area around the body for any evidence. They found no shell casings. An autopsy of Monterroso showed that the gun was probably fired from a distance of no more than 18 to 24 inches from his chest and that he was killed by the gunshot. Investigation of the fatal bullet could not conclusively establish the type of gun used as the murder weapon; the bullet could have been fired from a .357, a .38, a Rohm .38...
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Farmer v. Premo
...jury convicted petitioner of murdering the victim, Monterroso. Monterroso was killed by a single gunshot to the chest. State v. Farmer , 210 Or.App. 625, 627, 152 P.3d 904, rev. den. , 342 Or. 645, 158 P.3d 508 (2007). Police arrested petitioner after his then-girlfriend, Jennifer, and her ......
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Wah Chang v. Pacificorp
...of summary judgment. Because of our disposition of this case, we do not address that "cross-assignment." 2. Cf. State v. Farmer, 210 Or.App. 625, 640, 152 P.3d 904 (2007) (addressing application of "abuse of discretion" standard of review to allowance of new trial pursuant to ORCP 64 B(4), ......
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Farmer v. Premo
...a verdict of guilty for murder with a firearm.Petitioner pursued a direct appeal, and his conviction was affirmed. State v. Farmer , 210 Or. App. 625, 152 P.3d 904, rev. den. , 342 Or. 645, 158 P.3d 508 (2007). Petitioner then sought post-conviction relief. He raised numerous issues, but, b......
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