State v. Naudain

• Decision Date: 23 October 2019
• Docket Number: A160380
• Citation: 452 P.3d 970,300 Or.App. 222
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Damon James NAUDAIN, Defendant-Appellant.
• Court: Oregon Court of Appeals

300 Or.App. 222
452 P.3d 970

STATE of Oregon, Plaintiff-Respondent,
v.
Damon James NAUDAIN, Defendant-Appellant.

A160380

Court of Appeals of Oregon.

Argued and submitted November 21, 2017.
October 23, 2019

David O. Ferry, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Susan G. Howe, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

ORTEGA, P. J.

300 Or.App. 224

Defendant appeals from a judgment of conviction for aggravated murder with a firearm. At trial, defendant admitted to killing the victim during the course of a home-invasion robbery. Defendant, however, asserted

452 P.3d 974

that he had discharged his firearm accidentally and that he did not intend to kill the victim. On appeal, he raises four assignments of error, challenging evidentiary rulings of the trial court that excluded evidence that defendant sought to introduce. In two assignments of error, defendant, who is African-American, argues that the trial court erred in excluding evidence that tended to show that a witness was racially biased against African-Americans because that bias tended to show why the witness’s recollection of events differed from defendant’s recollection. We conclude that the trial court erred in excluding that potential bias evidence and that the error was not harmless. We also address defendant’s remaining assignments of error because they are likely to arise on remand and conclude that the trial court erred in excluding two short videos of police officers accidentally discharging firearms that defendant sought to introduce as demonstrative evidence, but that the trial court did not err in excluding evidence that the victim had methamphetamine in his system at the time of his death. Accordingly, we reverse and remand.

The relevant background facts are undisputed, except as described below. In 1998, defendant and five other individuals, after using methamphetamine, drove to a house in Southeast Portland to rob a methamphetamine dealer of drugs and cash. While two people remained in the car, defendant and three other men—Ronald James, Michael Jump, and Jason Turner—approached the house wearing hats that said "DEA" and holding two security badges. All of the men, except defendant, wore bandanas over their faces; defendant and two of the other men were armed with firearms and the fourth man was armed with a machete.

Once in front of the house, defendant unscrewed the front light and knocked on the door, yelling "police." Jump then kicked in the front door and all four of the men entered the house, yelling "police." James headed upstairs to bring

300 Or.App. 225

down an individual who was at the top of the stairs, and Turner remained downstairs with an individual who had been sitting on the living room couch. James, Turner, and their two hostages met at the bottom of the staircase, where they remained for the duration of the robbery.

Defendant and Jump, who were the first to enter the house, headed to the bedroom on the ground floor where defendant had been informed a safe was located that contained drugs and cash. Inside the bedroom was the victim, Jerry Hartman, along with his fiancé, Julie Beachell, and their infant son. It is undisputed that, while in the bedroom, defendant asked Hartman where the money and drugs were, that defendant shot and killed Hartman with a close contact shot to the head, and that defendant told Beachell to open the safe after shooting Hartman. It is also undisputed that Beachell opened the safe and that either defendant or Jump removed its contents—a plastic bag containing about $335. All four men then left the house. The entire sequence of events took only a few minutes.

The precise sequence of events in the bedroom that led to defendant shooting Hartman is disputed by the two testifying witnesses to those events—defendant and Beachell. Because the differing accounts are relevant to the evidentiary issues on appeal, we set forth both accounts.

Defendant testified that, after he asked Hartman where the money and drugs were and Hartman did not answer, "out of nowhere, [Jump] just lunged past me and hit [Hartman.]" Jump had also admitted in a statement to an investigator that he was the one who hit Hartman. Hartman fell, and defendant yelled "stay down" and "get your hand out from under the bed." At the same time, defendant was confused and turned to look at Jump, when he heard a "pop" and Hartman fell forward. Defendant testified that he was in shock and did not recall pulling the trigger, nor did he see where the bullet hit Hartman. Defendant saw Jump turning his attention to Beachell, so defendant told her that he would not hurt her and asked her to open the safe. Jump took her to the safe, she opened it, and Jump took its contents. Defendant also shouted "let’s go, let’s go" shortly after the shooting.

300 Or.App. 226

Beachell testified that Hartman took a Valium before bed and was asleep when the four men entered the house. Beachell woke

452 P.3d 975

Hartman up as two men busted through the bedroom door. One man was African-American—defendant—and one was white—Jump. Defendant was yelling for drugs and money and called Hartman a "fucking punk" and hit him. Jump was next to Beachell, who was holding her baby, and pointed his gun at her, but looked surprised. When defendant hit Hartman, he had his gun at Hartman’s head, and Hartman fell back against the bed. Defendant then, in a "[v]ery threatening" tone, told everyone to get down on the floor. Beachell, who was on the opposite side of the bed, got down, at which point she could no longer see Hartman. She then heard a gunshot. Defendant then told her to open the safe. Beachell described defendant’s demeanor during that time as "yelling and * * * angry and terrifying." Jump took Beachell by the arm to the safe, which she opened. After defendant and Jump got the contents of the safe, defendant yelled "let’s go." Beachell testified that defendant never told her not to worry or that he would not hurt her; that no one tried to leave until after the safe was opened; that the gun did not go off until after defendant told everyone to get on the floor; and that defendant was the one in charge, as he was the one who was yelling and demanding that the safe be opened. Jump, on the other hand, looked fearful, while defendant did not.

A few days after the robbery, defendant left for California and began using a different last name. In 2008, he was arrested in connection with the 1998 robbery and Hartman’s death. This appeal comes to us after a retrial of the case against defendant, following a reversal and remand of the judgment of conviction entered against defendant after the first trial. State v. Naudain , 254 Or. App. 1, 292 P.3d 623 (2012), rev. den. , 353 Or. 788, 304 P.3d 467 (2013).

In the second trial, as in the first, defendant admitted that he shot and killed Hartman. He maintained, however, that he pulled the trigger by accident and that he did not have the necessary mental state of intentionally causing the death of another to be convicted of aggravated murder. The jury rejected defendant’s mental-state defense and found him guilty of two counts of aggravated murder with a

300 Or.App. 227

firearm. The trial court entered a judgment of conviction for one count, merging the two guilty verdicts.

On appeal, in four assignments of error, defendant challenges evidentiary rulings of the trial court that excluded three pieces of evidence: Evidence of Hartman’s racial bias as tending to show that Beachell held the same racially biased views; two demonstrative videos showing police officers accidentally discharging their handguns; and evidence that Hartman had methamphetamine in his system at the time of his death. The trial court excluded all of that evidence on the grounds that it was irrelevant under OEC 401¹ , and that the probative value of the evidence, if any, was outweighed by the danger of unfair prejudice, under OEC 403.²

We review the trial court’s relevancy determination under OEC 401 for legal error, State v. Titus , 328 Or. 475, 481, 982 P.2d 1133 (1999), and we review the trial court’s determination under OEC 403 for an abuse of discretion, State v. Minchue , 173 Or. App. 520, 523, 24 P.3d 386 (2001). As explained below, we conclude that the trial court erred in excluding the evidence of racial bias and the demonstrative videos but did not err in excluding the evidence that Hartman had methamphetamine in his system.

EVIDENCE OF RACIAL BIAS

In two assignments of error, defendant challenges the trial court’s exclusion of cross-examination of Beachell regarding her awareness of Hartman’s racial bias and whether she shared that bias. Specifically, defendant sought to cross-examine Beachell

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