State v. James

279 Or.App. 612

379 P.3d 626

State of Oregon, Plaintiff–Respondent,

v.Jonell Henry James, aka Jonell M. James, Defendant–Appellant.

A153312

Court of Appeals of Oregon.

Submitted December 23, 2014.

July 27, 2016

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. Jonell James filed the supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Lysne, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge.

HADLOCK, C.J.

Defendant appeals a judgment of conviction for first-degree assault with a firearm (ORS 163.185 ), two counts of first-degree robbery with a firearm (ORS 164.415 ), unlawful use of a weapon with a firearm (UUW-firearm) (ORS 166.220 ), and felon in possession of a firearm with a firearm (FIP-firearm) (ORS 166.270 ). In six assignments of error, defendant challenges the trial court's denial of his objection to purported “vouching” evidence, its denial of a mistrial motion, its failure to merge the guilty verdicts for UUW-firearm and FIP-firearm, its imposition of upward-departure sentences on two convictions, and its denial of defendant's request for a “unanimous verdict” jury instruction. Defendant also raises two assignments of error in a pro se supplemental brief. We write only to address defendant's vouching and merger arguments; we reject the remainder of defendant's arguments without further discussion. With respect to vouching, we conclude that any error associated with the trial court's denial of defendant's objection was harmless. With respect to merger, we conclude that the trial court did not plainly err. Accordingly, we affirm.

I. BACKGROUND

For context, we begin with a brief overview of the facts, many of which are not meaningfully disputed. Later in the opinion, we describe the evidence in more detail as it pertains to the arguments that defendant raises on appeal. See State v. Eckert , 220 Or.App. 274, 276, 185 P.3d 564, rev. den. , 345 Or. 175, 190 P.3d 1237 (2008) (in assessing “whether the erroneous admission of disputed evidence was harmless, we describe and review all pertinent portions of the record”).

The charges against defendant relate to a shooting that occurred after a proposed marijuana sale resulted in an altercation between the prospective purchasers (defendant and his brother, Collins) and the prospective sellers (Hamm and Schnippel). On the evening in question, Collins called Hamm and arranged to buy marijuana from him. Hamm and his friend Schnippel arranged to meet Collins at a park to engage in that transaction. When Hamm and Schnippel arrived at the park, they discovered that Collins was accompanied by another man, defendant. Collins and defendant became angry, possibly because Hamm had not brought the amount of marijuana that they had hoped to purchase. An argument ensued, during which Hamm hit one or both of the other men with a stick that witnesses characterized as being like a “shish kebab skewer.” At some point, Hamm dropped or put his cell phone on the ground. Collins ran from the scene, taking Hamm's cell phone and some other items with him. Defendant subsequently shot Hamm, injuring him gravely. The parties disputed who had been the aggressor and whether defendant and Collins had set out to (and did) rob Hamm and Schnippel, or whether, instead, defendant had acted in self-defense after Hamm attacked defendant and Collins.

The state charged defendant with attempted aggravated murder, one count of first-degree assault (against Hamm), one count of second-degree assault (against Hamm), two counts of first-degree robbery (one count for each of the victims, Hamm and Schnippel), two counts of second-degree robbery (one count for each victim), UUW, and FIP, all alleged to have been committed with a firearm. The jury found defendant guilty of all counts except attempted aggravated murder. The trial court merged the guilty verdict for second-degree assault into the guilty verdict for first-degree assault and similarly merged the verdicts for second-degree robbery into the verdicts for first-degree robbery. After finding bases for upward-departure sentences on two of the convictions, the court sentenced defendant to a total of 338 months of incarceration.

II. ANALYSIS

A. “Vouching”

On appeal, defendant first challenges the trial court's denial of his motion to strike testimony regarding a cooperation agreement that Collins entered into with the state. Because the prosecutor's inquiry, Collins's testimony, and defendant's objections all are important to our analysis, we set out the pertinent parts of the transcript in some detail.

The state presented several witnesses, including Hamm and Schnippel, who testified to the events described above.¹ The state also called Collins, who testified pursuant to a cooperation agreement. Evidence about that agreement was introduced shortly after Collins began testifying and asserted that he had been assaulted during the incident at the park. At that point, the prosecutor asked Collins whether he had “entered into an agreement with the State of Oregon to provide truthful testimony in this case?” After a sidebar discussion with the court, the prosecutor continued to question Collins about that agreement:

“Q Isn't it true under the terms of the agreement that you had entered into with the testimony it calls for your truthful testimony as given to law enforcement ?

“A Yes, but I believe that I was also misleading to that testimony.

“Q Excuse me?

“A I believe I was also misled to that—into that other agreement by my attorney, somethin' I haven't spoke up before in the past and don't believe I was gettin' the right representation.

“Q I'm gonna hand you a document. * * * You look at that document and tell me if you recognize that document.

“A (Pause.) Yes.

“Q Is that your signature on that document?

“A Yes.

“Q And before you signed that document, do you recall having a conversation with your attorney present, that we were all in the room together to sit down and talk and to talk only and there was no deals on the table, no promises made to you whatsoever, and we were just simply there to talk and then we would discuss if there would be future negotiations?

“A Not exactly, but I remember hearin' a few things about my attorney not exactly tellin' me everything that I should have known from the beginnin'.

“Q Like what?

“A That I would be happy to take the—the witness stand.

“* * * * *

“Q So Mr. Collins, why don't you tell us what happened on that night?

“A Where I left off was that after I was assaulted, kinda started defending myself and (pause) Pretty much we (pause)—”

(Emphasis added.) Collins's attorney said that he had a matter for the court, and the court excused the jury.

Defense counsel then reiterated his objection to the line of questioning, asserting that he “had objected to the prosecutor characterizing the agreement as Mr. Collins testifying truthfully.” The court's response indicated that it understood defendant to have made a vouching objection, and it overruled that objection on the ground that the prosecutor had not vouched for Collins's credibility:

“THE COURT: I am quite confident that no one could have * * * interpreted that line of questioning as vouching for the testimony that * * * the witness was giving. I think—

“[DEFENSE COUNSEL]: I think that there is—“THE COURT: I think that he was engaged in an impeachment of that witness.

“[DEFENSE COUNSEL]: There's case law.

“THE COURT: There is no question that—that either party can't vouch, either attorney, any attorney can't vouch, but that just isn't my interpretation of what was happening by referring to an agreement which is in those terms.

“[DEFENSE COUNSEL]: Your Honor, I think there is case law that says admission of a document that includes that type of (indiscernable) which is grounds for a mistrial, * * * so at this point I am asking for a mistrial.

“THE COURT: If you have case law to show me, I'll certainly look at that case law when the appropriate time comes.”

After the jury returned to the courtroom, the prosecutor again questioned Collins about his cooperation agreement:

“Q Mr. Collins, let's—let's try this again. You entered into an agreement with the State for your testimony here today, is that correct?

“A Yes.”

Following additional inquiry about the nature of the agreement, the prosecutor returned to the events at the park and the investigation that followed:

“Q * * * What did you tell police that happened that night? Let's just start from the point where you said you were assaulted.

“A I told him—well, Detective Hollins was—he was actually saying a lot of stuff to me and a lot of—some stuff that I agreed to which wasn't exactly true. And as far as the assault, I was assaulted and I started to—to defend myself and also—was defendin' also [defendant].”

Collins continued to describe the altercation and asserted that defendant “wasn't fighting, but he was trying—trying to defend me, us” from Hamm and Schnippel. Collins stated that, as the argument continued, he picked up some cell phones that were on the ground, which he believed belonged to Hamm or Schnippel, and then took off running. Collins testified that he then heard a gunshot, but he did not see what had happened.

At that point, the prosecutor reminded Collins that, if he did not abide by the terms of the cooperation agreement, he would be sentenced to prison “for a very long time.” The prosecutor continued:

“Q And I'm gonna ask you right now, didn't you tell Detective Hollins in a recorded interview before you even had an attorney, before you even had a deal made on the table, that [defendant] pulled out a gun and pointed it at [Hamm] and [Schnippel] and ordered them to empty their pockets?”

Collins agreed that the detective who interviewed him (Hollins) had described events that way, but Collins asserted...