State v. Johnson

288 Or.App. 528

406 P.3d 1091

STATE of Oregon, Plaintiff-Respondent,

v.Jeffrey Brian JOHNSON, Defendant-Appellant.

A156737

Court of Appeals of Oregon.

Argued and submitted April 26, 2016.

November 1, 2017

Mary M. Reese, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

ARMSTRONG, P. J.

Defendant appeals a judgment of conviction for intentional murder with a firearm, ORS 163.115, ORS 161.610, raising two assignments of error.¹ First, defendant challenges the trial court's exclusion of expert testimony about defendant's personality traits, which defendant sought to introduce to support his defense of extreme emotional disturbance (EED), ORS 163.135. We reject defendant's first assignment of error because we conclude that he failed to preserve it. Second, defendant assigns error under OEC 403 to the trial court's decision to admit autopsy photographs in conjunction with testimony by a medical examiner about the autopsy. Defendant contends that the trial court erred by failing to create a record that reflected that the court had engaged in the balancing process required under OEC 403 and State v. Mayfield , 302 Or. 631, 733 P.2d 438 (1987), before deciding to admit the autopsy photographs as evidence. He further contends that the trial court abused its discretion under OEC 403 by admitting the autopsy photographs because their probative value was substantially outweighed by the danger of unfair prejudice to defendant. We conclude that the record demonstrates that the trial court engaged in the required OEC 403 balancing and that the trial court did not err by admitting the photographs. Accordingly, we affirm.

The relevant facts are undisputed. Defendant killed the victim, Johnson,² in the course of a custody dispute over R, who is the son of defendant's daughter, M, and Johnson. Before R was born, Johnson and M had lived with defendant. However, Johnson moved from defendant's home after R's birth and had relatively little involvement with R over the next two years.

In early 2011, when R was roughly two years old, Johnson initiated court proceedings to secure parenting time with R. That action led to an increasingly contentious relationship between Johnson and M. A few months after Johnson had initiated the court proceeding, he was convicted of telephonic harassment of M. Johnson obtained court-ordered parenting time with R in September 2011. In the beginning of October 2011, Johnson and M had a disagreement about R that escalated into Johnson pushing M, which defendant and R witnessed. A few days later, M obtained a court restraining order against Johnson under the Family Abuse Prevention Act (FAPA), ORS 107.700 to 107.735. When the court issued the restraining order, it also ordered that Johnson could continue to have parenting time with R but that defendant would arrange that time so that M would not have to have any contact with Johnson. As a result of having to coordinate Johnson's parenting time, defendant and Johnson exchanged email and text messages with each other.

Over the next couple of months, defendant became increasingly emotional and fearful about Johnson's involvement in R's life. Defendant told Johnson through texts that Johnson was harming R, and he offered Johnson money to abandon Johnson's parental rights. During that time, Johnson obtained dismissal of M's FAPA restraining order, which led defendant to believe that the court did not appreciate the seriousness of the situation, and that defendant had to intervene to protect his family. In November 2011, defendant bought a handgun. At the end of December 2011, Johnson and M had a disagreement during Johnson's scheduled time with R, which resulted in a shoving match between Johnson and M and a call to the police. However, no charges were filed from that incident. That event caused defendant even more concern because he believed that Johnson was a threat to his family and that the courts would not protect them from Johnson.

After that incident, defendant and Johnson continued to exchange text messages, and defendant continued to express his belief that Johnson was a bad influence on R and to offer Johnson money to walk away from parenting R. Johnson refused to withdraw from R's life and, eventually, told defendant to stop contacting him.

Defendant bought a new car on January 23, 2012. Three days later, Johnson and his step-brother drove from their home to a nearby grocery store. In his newly purchased, unlicensed car, defendant followed Johnson into the store's parking lot. As Johnson and his step-brother were walking to the store's entrance, defendant ran up behind Johnson and fired six bullets at Johnson, killing him.

At trial, defendant did not contest that he had killed Johnson. Rather, he sought to prove the affirmative defense of extreme emotional disturbance (EED), ORS 163.135.³ EED is an affirmative defense to intentional murder, ORS 163.115(1)(a), that, if proven, reduces a homicide from murder to first-degree manslaughter. See ORS 163.135(1). An EED defense has three components: "(1) Did the defendant commit the homicide under the influence of an extreme emotional disturbance? (2) Was the disturbance the result of the defendant's own intentional, knowing, reckless, or criminally negligent act? (3) Was there a reasonable explanation for the disturbance?" State v. Counts , 311 Or. 616, 623, 816 P.2d 1157 (1991) (footnote omitted). Under State v. Ott , 297 Or. 375, 686 P.2d 1001 (1984), and State v. Wille , 317 Or. 487, 858 P.2d 128 (1993), a defendant is limited in the evidence that the defendant can introduce to prove the EED defense. Those cases draw a distinction between evidence of personal characteristics—like "age, sex, race, nationality, physical stature, and mental and physical handicaps"—which is relevant to the defense—and evidence of personality characteristics or traits, which is not. Ott , 297 Or. at 396, 396 n. 20, 686 P.2d 1001 ; Wille , 317 Or. at 499, 858 P.2d 128.

In support of his EED defense, defendant sought to have his expert testify at trial about four of defendant's characteristics: "(1) That defendant has no history of violence and is a pacifist; (2) that defendant avoids conflict and values compromise; (3) that defendant's core values include protecting his family; and (4) that defendant does not share his feelings with others." Defendant recognized that Ott and Wille foreclosed introducing evidence of personality traits. In a motion in limine seeking admission of his expert's testimony, defendant conceded that "neither the defense expert nor the state expert on EED may testify about the defendant's 'personality traits,' " and that, under Ott and Wille , "expert testimony about defendant's personality traits is irrelevant to an EED claim and therefore inadmissible." Defendant contended, however, that the four characteristics that he sought to introduce were admissible personal characteristics and not inadmissible personality traits. Defendant noted that the Supreme Court in Ott had listed admissible personal characteristics, like age, sex, and race. Defendant then argued that the Ott list was not exhaustive and that the evidence that he sought to introduce was of the same type as that listed in Ott and, thus, relevant.

Defendant's expert testified at a pretrial hearing about the distinction between personal characteristics and personality traits. Defendant also argued that the proffered evidence about his character was necessary for a jury to understand what had happened with him—that is, the evidence was necessary to provide context for defendant's relationship with Johnson, M, and R, and the stress that defendant was under leading up to the homicide. He argued,

"We're simply asking the Court not to artificially constrain us so that [defendant's expert] cannot give any meaningful opinion because he wouldn't be able to describe the human being [whom] he's evaluated and how those factors, those characteristics play out in this equation of how [defendant] subjectively saw this situation and what it meant to the man who is the pacifist, the man who is the conciliator one—ten days after he gets this court hearing, for example, to go buy a gun for the first time in his life. Not to mention what happens later.

"We need to understand that history, those characteristics of the man to have a fair and honest picture for the fact-finders in this case.

" * * * * *

"But in this case, the issue is with respect to the nonviolence and the compromising, these qualities, these characteristics of this man are absolutely essential to this jury understanding how in the world you go from A to B in a short period of time. How does a person lose control? What is that emotional roller coaster that person is put on and why is it peculiar to this person that that can happen. That that person can snap. That person can break. How do you understand EED if you don't know the context in which the actions arise?"

Ultimately, the trial court refused to allow defendant's expert to testify about the four characteristics that defendant had identified, because it concluded that the list of personal characteristics in Ott was exhaustive and, hence, that the evidence that defendant sought to admit was not admissible under Ott . However, the trial court did permit defendant's expert to testify about the events leading up to the homicide, including the stress, fear, and emotions under which defendant was suffering.

On appeal, defendant assigns error to the trial court's exclusion of his expert's testimony about the four characteristics of defendant's personality that defendant sought...