State v. Forshee

300 Or.App. 739

455 P.3d 1025

STATE of Oregon, Plaintiff-Respondent,

v.James Harold FORSHEE, III, aka James Harold Forshee, II, Defendant-Appellant.

A166497

Court of Appeals of Oregon.

Argued and submitted August 23, 2019.

November 27, 2019

Laura A. Frikert, 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.

Michael Casper, Assistant Attorney General, Salem, argued the cause for respondent. On the briefs were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

TOOKEY, J.

Defendant was charged with one count of murder and he asserted the affirmative defense of extreme emotional disturbance at trial. The jury was not persuaded by that defense, and it found defendant guilty of murder. Defendant appeals the judgment of conviction for murder, ORS 163.115,¹ assigning error to the trial court's denial of his motion to suppress his statement, "I shot the guy," which was made in response to an officer's question about defendant's involvement in the shooting before defendant was read his Miranda warnings.

For the reasons set forth below, we conclude that, even if the trial court erred in admitting that statement because it was obtained in violation of defendant's rights under Article I, section 12, of the Oregon Constitution, any such error was harmless. We also conclude that that statement was not obtained in violation of defendant's rights under the Fifth Amendment to the United States Constitution, because the officer's question fell within the public safety exception to the Miranda warning requirement, as articulated by the United States Supreme Court in New York v. Quarles , 467 U.S. 649, 104 S. Ct. 2626, 81 L. Ed. 2d 550 (1984). Accordingly, we affirm.²

I. BACKGROUND

Because we ultimately conclude that any error in admitting defendant's statement under Article I, section 12, was harmless, we review "all pertinent portions of the record to determine if there is little likelihood that any error affected the verdict." State v. Jones , 296 Or. App. 553, 556, 439 P.3d 485 (2019) (internal quotation marks and brackets omitted). With respect to defendant's Fifth Amendment claim, "[w]e review the denial of a motion to suppress for legal error, and we are bound by the trial court's implicit and explicit factual findings of historical fact as long as the record [of the suppression hearing] includes constitutionally sufficient evidence to support those findings." State v. Walker , 277 Or. App. 397, 398, 372 P.3d 540, rev. den. , 360 Or. 423, 383 P.3d 865 (2016). We state the facts in accordance with that standard.

A. Evidence Not Challenged on Appeal

"We begin by reviewing the pertinent evidence that was introduced at trial, not including the evidence that was the subject of defendant's suppression motion, which we describe later in the opinion." Jones , 296 Or. App. at 556, 439 P.3d 485. Because the trial spanned multiple days and the transcript is lengthy, our description of the historical facts necessarily summarizes certain evidence instead of setting it out in detail.

The victim had been defendant's immediate supervisor for about two years, and defendant felt that the victim had singled him out for discipline on multiple occasions. On April 10, 2014, the victim had "written up" defendant at work for a forklift violation, and defendant became concerned that he would be fired as a result. Defendant stated that he "snapped" when he got the write up and thought to himself, "I've got to stop this guy" by "shoot[ing] him." Although defendant was "very upset" about the write up, defendant was not "exhibiting signs of extreme distress," and he was able to "control himself," take time off of work, and go home.

Defendant also stated that, after the write up, defendant began to think about killing the victim "every second of the day," and he began planning out the shooting. Defendant had previously told several of his coworkers that he was "going to use prison as [his] retirement." Ultimately, defendant decided to kill the victim because defendant was "60 years old, had no family or kids, and [because the victim] *** had to be stopped."

That afternoon, defendant's coworker and union representative, Freitag, called defendant. Defendant was "very upset" and Freitag let defendant know that he did not think defendant would be fired for the forklift violation and that "the worst that he would get would be probation." Later that afternoon, Freitag called defendant again and Freitag thought that it sounded like defendant had "calmed down;" defendant had a conversation with Freitag about asparagus being on sale at the grocery store.

About one week before the murder, defendant also spoke with his brother. Defendant complained about work, but nothing that defendant said gave his brother any concern or made him believe that defendant "was having a mental issue" that would require any help. Defendant's brother described it as a "normal conversation" and stated that he "never * * * thought" that defendant would kill the victim.

On April 13, defendant reserved a taxi cab to take him to work on April 17, because he "intended to kill [the victim]" that day, and defendant repeatedly called the taxi company "every day [before the shooting] just to confirm that his reservation was still good and that a cab would be there to pick him up when he had requested." Defendant's truck was operational, but defendant explained that he reserved a cab because he did not "want to leave [his] pickup truck in the lot [at work] if *** [he] shot [the victim] and got arrested." Defendant also had two chihuahuas that "meant a lot to [him]," and he decided to get rid of the dogs a "couple days" before the shooting. Defendant stated that he got rid of his dogs "because there was no one going to be there to take care of them" after he shot the victim.

The day before the murder, defendant spoke with his neighbor, who had known defendant for two-and-one-half years. Defendant and his neighbor talked about defendant's boss giving him a hard time about the forklift violation and defendant being written up. Nothing made defendant's neighbor concerned that defendant was planning to do something as drastic as murdering the victim, because defendant did not seem like he was "having some kind of crisis" or otherwise needed any help.

On April 17, the morning of the murder, defendant selected a .45 caliber pistol from his gun collection because it was concealable, loaded it with a full magazine of bullets that are "meant to open and expand upon impact," chambered a round, loaded a second magazine, and concealed the pistol in his vest pocket.

Defendant also decided to put in earplugs before he left his home, because he did not want to ruin his hearing when he shot the victim. In the meantime, the taxi cab was having trouble finding defendant's home and had to call defendant for directions. Defendant was "pleasant" when the cab driver called, and defendant was able to give the cab driver accurate directions to defendant's home. When the taxi arrived, defendant was already outside, and defendant got inside of the taxi and gave the driver directions to defendant's work place. On the way to work, defendant realized that he had forgotten his lunch at home, but he decided that he did not need to return home to get it. Although defendant was "pretty quiet," defendant did not appear "disheveled," and the taxi driver described it as "a normal fare."

Defendant arrived at work in the taxi and entered the building where four of his coworkers and the victim were present. Defendant sat down next to one of his coworkers, Smith. Smith said good morning to defendant, and defendant "looked up *** [with] a half smile" and nodded at Smith. Another coworker, Dotson, asked defendant about his dogs, and defendant shook his head and pointed towards the victim's office. Dotson told defendant that the victim was in his office, and defendant walked over to the victim's doorway.

At that point, defendant stepped inside of the victim's office, pulled out his gun, and shot the victim three times in the upper right chest, four times in the head, once in the left shoulder, and once in the left hand.

After defendant fired the first two shots, Smith ran out of the building and called 9-1-1. Defendant then fired five more rounds, paused, stepped back, and said, "Fuck that motherfucker." Defendant then took the gun "back off safety" and shot the victim two more times. Dotson saw defendant pull an earplug out of his ear and put his gun away, and then Dotson ran out of the building and called 9-1-1.

The only coworker to remain in the building, Krass, called 9-1-1 while defendant sat down at a desk, folded up his jacket, and set the gun and the clip down on top of it. Krass said that defendant was "cool and calm" after the shooting, and, when Krass mistakenly told the 9-1-1 operator that the shooting occurred in building number two, defendant corrected Krass and informed him that the shooting occurred in building number four.

When the police started to arrive, defendant got up and said, "it's time to go meet the police." Defendant thought that the victim "deserved to die" and that "the killing that day seemed rational."

Officer Benson received a call from dispatch about a possible homicide and headed to the scene of the shooting. Dispatch informed Benson that the shooter and the gun were still at the scene. Benson was the first officer on the scene and, when Benson pulled up to building number four, he saw defendant standing in the parking lot with his hands up. Benson was unsure what defendant's involvement was in the shooting. Benson ordered defendant to turn around, walk backwards, and then lie down on the ground with his arms out and his feet crossed. Benson handcuffed def...