State v. Kennedy, 012121 ORCA, A167635

Docket Nº:A167635
Opinion Judge:MOONEY, J.
Party Name:STATE OF OREGON, Plaintiff-Respondent, v. JIMMIE WAYNE KENNEDY, aka Jimmie Kennedy, Defendant-Appellant.
Attorney:Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were El...
Judge Panel:Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
Case Date:January 21, 2021
Court:Court of Appeals of Oregon

308 Or.App. 651

STATE OF OREGON, Plaintiff-Respondent,

v.

JIMMIE WAYNE KENNEDY, aka Jimmie Kennedy, Defendant-Appellant.

A167635

Court of Appeals of Oregon

January 21, 2021

Argued and submitted December 10, 2019.

Jackson County Circuit Court 17CR30614; Timothy Barnack, Judge.

Brett J. Allin, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

[308 Or.App. 652] MOONEY, J.

Defendant was convicted of resisting arrest, ORS 162.315, following a jury trial in which the arresting officer was the sole witness. On appeal, defendant assigns error to the trial court's refusal to allow him to impeach that officer with evidence that the officer broke defendant's foot.1We agree that the court erred and, therefore, reverse and remand for a new trial.

On May 10, 2017, while on patrol, Deputy Tuff responded to defendant's 9-1-1 call for assistance regarding a domestic dispute. Before arriving, Tuff learned that there was a restraining order that protected defendant's wife from defendant. When he arrived, Tuff contacted defendant, who was sitting alone in his car, and Tuff spoke with him about what had happened. Based upon statements made by defendant during that conversation, Tuff believed that defendant was in violation of the restraining order, and he decided to arrest defendant for that violation. In the course of that arrest, Tuff performed a takedown maneuver known as a "leg sweep" that brought defendant to the ground. After the takedown, Tuff observed that defendant's head was injured, and he called for medical assistance. It is not clear whether Tuff observed any injury to defendant's foot at that time. He took photographs of the head injury, and defendant was transported to a hospital and treated there.

Defendant was charged with resisting arrest.2 At trial, Tuff testified on direct examination that he performed a takedown of defendant because he felt defendant push him and then pull away, as though defendant was trying to "break free." He described the takedown, stating that he put his right calf "against probably [defendant's] left shin." The body camera video of the arrest and two photographs that Tuff took of defendant's head injury were admitted into evidence through Tuff on direct examination. On cross-examination, defendant inquired about several matters: [308 Or.App. 653] "[DEFENSE COUNSEL]: Okay. And you just testified that you did the leg sweep, hitting his shin?

"[TUFF]: Correct.

"[DEFENSE COUNSEL]: Isn't it possible that you also hit his foot?

"[TUFF]: I recall my sh-my calf hitting his shin, not his foot.

"[DEFENSE COUNSEL]: Now, you do collect evidence in this case. You took a lot of pictures on the scene, right?

"[TUFF]: I did take photos. Correct.

"[DEFENSE COUNSEL]: You-how many-about how many pictures did you take at the scene?

"[TUFF]: I don't recall.

"[DEFENSE COUNSEL]: It was more than the two that were shown to the jury. Correct?

"[TUFF]: I took several photos. I remember taking several photos. The exact number, I'm not sure.

"[DEFENSE COUNSEL]: And you went to the hospital and you took photos there too?

"[TUFF]: Correct.

"[DEFENSE COUNSEL]: I'm going to show you what I'm going to mark as Defense [101] and [102]. Are these pictures you took as part of your duties as a law enforcement officer?

"[TUFF]: I believe so. I believe these are photos that I took.

"[DEFENSE COUNSEL]: Your Honor, I'm going to ask that these Defense [101] and [102] be moved into evidence.

"[DEFENSE COUNSEL]: Now while you're in the hospital, you also collected some additional evidence. Is that correct?

[308 Or.App. 654] "[TUFF]: Possible.

"[DEFENSE COUNSEL]: I'm going to show you what was provided to me by you, by the State, an x-ray.

"[THE STATE]: Your Honor, objection. This is lack of foundation3 and it's not relevant.

"COURT: Yeah. Why-what are you offering?

"[DEFENSE COUNSEL]: I do-I do think that it's very relevant, Your Honor."

Defendant argued that his cross-examination of Tuff concerning defendant's broken foot was relevant to show that Tuff had a motive "to say now that [defendant] was resisting, because [defendant's] injuries were significant." He thus argued that the evidence was probative of the officer's motive to falsify or exaggerate defendant's level of resistance. Alternatively, defendant argued that his broken foot was relevant for substantive purposes-namely, to suggest that the injury occurred before the incident, and that, rather than intentionally resist Tuff, defendant stumbled because of his broken foot. The trial court rejected both arguments, ruled that evidence of defendant's broken foot was not relevant, and sustained the objection.

The state rested at the conclusion of Tuffs testimony. Defendant rested without offering testimony or any other evidence and then moved for judgment of acquittal. In so doing, defendant...

To continue reading

FREE SIGN UP