State v. Naudain, 080432001

• Decision Date: 12 December 2012
• Docket Number: 080432001,A144918.
• Citation: 292 P.3d 623,254 Or.App. 1
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Damon James NAUDAIN, Defendant–Appellant.
• Court: Oregon Court of Appeals

254 Or.App. 1

292 P.3d 623

STATE of Oregon, Plaintiff–Respondent,

v.Damon James NAUDAIN, Defendant–Appellant.

080432001; A144918.

Court of Appeals of Oregon.

Submitted April 30, 2012.

Decided Dec. 12, 2012.

Peter Gartlan, Chief Defender, and Susan Fair Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and HASELTON, Chief Judge, and DUNCAN, Judge.

ARMSTRONG, P.J.

Defendant was convicted, following a jury trial, of two counts of aggravated murder, stemming from a home-invasion robbery. On appeal, defendant raises multiple assignments of error. We write to address only defendant's contention that the trial court erred when it instructed the jury on self-defense. Defendant argues that, because he had not raised a defense of self-defense, that instruction amounted to impermissible comments on the evidence by the trial judge. We agree. Our resolution of that contention obviates our need to address defendant's remaining assignments of error, except defendant's assignment on the denial of his suppression motion, which we reject without discussion. Accordingly, we reverse and remand.

Because defendant is challenging the trial court's jury instructions, and not the sufficiency of the evidence supporting his conviction, we review all pertinent parts of the record. See State v. Naylor, 291 Or. 191, 193–94, 629 P.2d 1308 (1981); State v. Cunningham, 179 Or.App. 359, 361 n. 2, 40 P.3d 1065,adh'd to on recons.,184 Or.App. 292, 57 P.3d 149 (2002), rev'd and rem'd on other grounds,337 Or. 528, 99 P.3d 271 (2004), cert. den.,544 U.S. 931, 125 S.Ct. 1670, 161 L.Ed.2d 495 (2005).

In 1998, defendant and five other individuals, while intoxicated on methamphetamine, drove to a home in southeast Portland to rob people of what they believed to be a significant amount of drugs and cash. While two people remained in the car, defendant and three other men approached the house, unscrewed the porch light, and gathered by the front door. The men were wearing baseball hats that said “DEA,” two had security badges, and all of them but defendant had bandanas over their faces. Three of the men—including defendant—were armed with handguns and the fourth with a machete.

One of the four intruders, Jump, kicked open the front door, and all four entered the house, yelling, “police.” Upon entry, the intruders split up. The man with the machete, James, ran upstairs, confronted one of the residents in a bedroom, and ordered him down the stairs. At the same time, a second intruder, Turner, confronted a woman who was asleep on a couch in the front room of the house. Turner grabbed the woman and told her, “If you say one thing, I will peel your cap, bitch.” He then dragged her up the stairs. James and Turner, with their respective hostages, met on the staircase—blocking each other's paths—where they remained for the duration of the robbery.

Meanwhile, defendant and Jump went to the bedroom where they had been told that drugs and cash would be found inside a safe. Once there, defendant and Jump encountered H, his girlfriend, and their infant son. Although there is conflicting evidence over the precise nature of the events that occurred inside the bedroom, it is undisputed that defendant shot H in the head, ordered H's girlfriend to open the safe, emptied the contents of the safe, and immediately left the house, along with his three associates. An autopsy revealed that H had died instantaneously from a gunshot wound to the temple and that the gun had been placed against H's head when it fired. A few days after the robbery, defendant moved to California with his girlfriend and began using a different last name.

In 2007, Detective McGetrick of the Portland Police Bureau Cold Case Homicide Unit began investigating H's death. By 2008, McGetrick had identified defendant as a suspect in the homicide and had learned that defendant was living in California. McGetrick eventually obtained an arrest warrant for defendant and forwarded it to the San Diego County Fugitive Task Force, which ultimately arrested defendant at his home. The day after defendant was arrested, McGetrick interviewed defendant in San Diego, and defendant confessed his involvement in the robbery and in H's death.

According to that confession, the robbery had begun to go wrong as soon as defendant entered the bedroom. Defendant explained that he had not expected there to be a woman and a child in the room, and so he was put off guard. At the same time, H was telling defendant that there were no drugs or money in the safe. As defendant was realizing that “the stuff that [he] was told was there was not there,” Jump reached around defendant and punched H in the face, knocking him down. Defendant then explained:

“[Defendant:] I was told that this individual did have a weapon, I asked him—I then pointed my weapon at him and I asked him not to move. As he was coming up from the bed on the floor, I—I basically felt that he had a weapon.

“[McGetrick:] And why did you feel that way? Was his hand someplace out of sight, or what?

“[Defendant:] Yes. His hand was out of sight, and I—all I can say is that I thought I saw a shine of some sort. I'm not quite sure what that shine was, but from what I was told, and because of the fact that I was also highly intoxicated with methamphetamines, that I jumped. And I've—and I—and I, between the drugs and being nervous and the information that was told to me, I panicked and I freaked out. And then the inevitable happened.”

Defendant was extradited to Oregon, where he was indicted and charged with two counts of aggravated murder. Defendant pleaded not guilty and proceeded to a jury trial. He did not dispute that he had participated in the robbery or that he had shot H. Instead, the only contested issue at trial was whether defendant had intended to fire the shot.

The state presented evidence that defendant had shot H as H was reaching under the bed. McGetrick testified regarding defendant's statements to him and noted that defendant told him that he had seen H “reach under the bed, believed there to be an object in [H's] hand[,]” and “panicked.” The state introduced an audio recording of McGetrick's interview with defendant in California to that effect, which contained the exchange set out above. The state also called James, who testified that, as he was making his way up the staircase with the machete, he walked by the bedroom door and saw defendant holding a gun and standing over H. James also testified that, while he was standing on the staircase with Turner and their hostages, he heard someone in the bedroom yell, “Get your hand out from under the bed,” followed by “a pop, like a gunshot.” Finally, the state called Guzman, who had stayed in the car during the robbery. Guzman testified that, at some point after the robbery, defendant had told her that H “went to reach under the bed to pull something out,” and that defendant had shot him—though she testified that defendant did not mean to fire.

Defendant, in turn, testified that he had accidentally shot H while he was frantically looking around the room. Defendant testified that he had not felt threatened by H and that he had not seen H reach for a gun—though defendant had told H to get his hand out from underneath the bed. Defendant repeatedly emphasized that he had been highly intoxicated at the time of the robbery and described a chaotic scene: Everyone in the house was “freaking out.” Defendant, H, Jump, and people outside the room were all yelling. Jump had punched H, causing him to fall to the floor. Defendant testified that he was pointing his gun at H as H was slowly getting up:

“And I'm looking back. I'm like—I'm panicking bad. I mean, I'm—I'm freaking out. And so everyone's freaking out, but I'm not—I'm not there, like, I'm not (indiscernible) or I'm not very clear, I'm not—can't focus and so I keep looking back thinking—just so much going on * * *.

“ * * * *

“So I—but I'm turning, looking back—and I—so I don't know what happened. I don't know. And I shot him. Now, I—I didn't mean to.”

According to defendant, he did not even remember pulling the trigger.

The state's theory of intent, set out during opening arguments, was that defendant shot H in response to a perceived threat— viz., defendant believed that H was reaching for a gun. Thus, the state argued that, during his initial confession, defendant had “effectively claimed self-defense.” According to the state, when defendant learned that he was not justified in employing self-defense, he shifted his story, instead claiming that the shot had been an accident. In its closing, the state reiterated that theory and highlighted the differences between defendant's initial statements to McGetrick in 2008 and his testimony at trial. The state explained that discrepancy in the context of self-defense:

“Now, there has been some discussion about self-defense. You need to understand that under Oregon law, [defendant] had absolutely no legal right to defend himself from what he may have perceived as a potential threat from [H].

“On the other hand, [H] had every right, every legal right to defend himself and his family. He didn't. He didn't have a chance. Because this one panicked and shot.

“He now knows, [defendant], that he has absolutely no right to defend himself. So his only hope is to offer it up to you that it was an accident. In four hours of interviewing, the word accident is uttered by [defendant], count it, one time.”

Defendant, for his part, emphasized that he had never raised the issue of self-defense, even during his initial interview with McGetrick. In his closing, he noted:

“And the state keeps bringing up this notion of self-defense. They mentioned it in their opening. Not one witness, nobody from the...