State v. Shepherd

305 Or.App. 312

468 P.3d 487

STATE of Oregon, Plaintiff-Respondent,

v.John Ivan SHEPHERD, aka John Shephard, Defendant-Appellant.

A163736

Court of Appeals of Oregon.

Argued and submitted October 19, 2018

July 8, 2020

Matthew Blythe, 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.

E. Nani Apo, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.^*

DeHOOG, P. J.

Defendant appeals from a judgment convicting him of delivery of methamphetamine for consideration, ORS 475.890. Defendant raises two assignments of error, each related to the same issue. First, defendant argues that the trial court erred when it refused to admit impeachment evidence that would have demonstrated that the state's key witness, Lewis, was biased against him due to Lewis's sexual interest in defendant's wife, R. Second, defendant argues that the court erred in prohibiting him from cross-examining Lewis regarding that potential source of bias. In a combined argument, defendant contends that the court should have allowed him to cross-examine Lewis under OEC 609-1(1) regarding the facts that purportedly showed his bias against defendant and, if Lewis had denied those facts, admitted evidence of them under OEC 609-1(2). Defendant further asserts that the error was harmful. The state concedes that the trial court erred by prohibiting defendant from inquiring about Lewis's sexual interest in R during cross-examination. However, contending that the excluded evidence was of minimal relevance and emphasizing the strength of the prosecution's case, the state argues that the error was harmless. We accept the state's concession that the trial court erred, but we conclude that the error was not harmless. Accordingly, we reverse and remand.

"We review for legal error a trial court's decision to preclude a party from attempting to establish facts showing a witness's bias under OEC 609-1." State v. Nacoste , 272 Or. App. 460, 466, 356 P.3d 135 (2015). In assessing whether the erroneous exclusion of defendant's impeachment evidence was harmless, "we describe and review all pertinent portions of the record, not just those portions most favorable to the state." State v. Cook , 264 Or. App. 453, 454, 332 P.3d 365 (2014) (applying that standard to an appeal of a ruling admitting disputed evidence) (internal quotation marks omitted).

The charges against defendant arose from an undercover drug investigation. At the time, Lewis was acting as an informant for the Union County Drug Task Force to "work off" a drug possession charge of his own. In an effort to direct the task force to illegal drug activity, Lewis identified defendant as an individual from whom he could purchase methamphetamine, and, at the direction of the task force, he arranged by text message to purchase methamphetamine from defendant.

On the day of the planned controlled buy, Lewis met with two members of the task force, Harris and Gridley. To prepare for the buy, they searched Lewis and his car to ensure that he was not in possession of any money or methamphetamine. They also fitted Lewis with a body wire and gave him $50 to facilitate his anticipated purchase of methamphetamine from defendant. Lewis then drove to defendant's house, while Harris and Gridley kept his vehicle in constant sight. They watched Lewis as he entered defendant's home and listened to the interactions inside through the body wire. Much of the recorded conversation appears to have been unrelated to the investigation or is indiscernible. Nonetheless, the state both argued at trial and maintains on appeal that the following portion of the recorded encounter reflects an unlawful exchange of methamphetamine.

"[Defendant]: (Indiscernible) give you five bucks back (indiscernible) for the little bowl (indiscernible).

"[Lewis]: I can't do any right now, I've gotta take a UA before 5:30.

"[Defendant]: *** All right, then don't do that. (Indiscernible) give me my pipe back."

After hearing further unrelated conversation, Harris and Gridley watched Lewis leave defendant's home and drive to a predetermined location, where the three reconvened. Harris testified at trial that Lewis had then "turned the meth he'd bought from [defendant] over to Detective Gridley." There the detectives again searched Lewis's car and person to ensure that he had not kept any methamphetamine. Harris also testified that Lewis no longer had any of the $50 that he had been given before the controlled buy. Defendant was subsequently arrested and charged with possession and delivery of methamphetamine. Other than testifying that he still had the $5 that defendant had returned to him at the conclusion of the alleged drug transaction, Lewis testified in a manner generally consistent with the detectives’ accounts and the prosecution's theory of the case.

Defendant, however, gave a different account of those events at trial. According to defendant, Lewis had come to his house with methamphetamine, and he had unsuccessfully attempted to buy some of Lewis's methamphetamine from him after he removed it from a cigarette pack. R testified to the same facts at trial. Defendant's position at trial was that the audio recording was too unclear to definitively refute his account and that the state, therefore, could not establish beyond a reasonable doubt that he was guilty of the charged offenses. Although defendant conceded that, under his own account of events, he was guilty of attempted possession of methamphetamine, he maintained that he was not guilty of actual possession or of delivery.

To support that defense, defendant attempted to prove that, at both the time of the controlled buy and at trial, Lewis had a motive to lie about defendant's role in the alleged drug transaction. Through a motion in limine , defendant sought a ruling that he could present evidence of Lewis's purported bias against him. Defendant specifically offered evidence of messages exchanged between Lewis's and R's Facebook accounts approximately seven months after the controlled buy. In those messages, Lewis expressed a sexual interest in R and professed to have had such an interest in her " ‘for years.’ " The messages referenced a planned affair and the exchange of explicit photographs. What Lewis did not initially know, however, was that defendant had been impersonating R the entire time; after defendant disclosed that fact to Lewis, the exchange of Facebook messages stopped.

Although the exchange of Facebook messages took place well after the controlled buy, defendant contended that the messages showed that Lewis was biased against him and had a motive to lie at the time of the alleged drug transaction, which, he argued, was evidenced by Lewis's professed interest in R "for years." Defendant argued that the evidence showed "Lewis's motive for going to the police in the first place *** and suggesting the buy."

The trial court rejected defendant's argument and denied the admission of the messages into evidence, ruling that they were not relevant and that defendant was improperly seeking to impeach a witness on a collateral matter. The court also rejected defendant's argument that the content of the messages was an appropriate subject for cross-examination because "cross-examination allows broad questioning regarding motive, intent, [and] bias." In rejecting that argument, the court simply explained that the messages did not have "any place in this case."

In light of the court's pretrial ruling, neither the Facebook messages nor Lewis's professed interest in R came up at trial. The question of motive, however, did arise. Specifically, during the state's closing argument, the prosecution asserted that only its version of events was credible and that, in order to acquit defendant, the jury would have to believe that Lewis set out to frame defendant despite having had no motive to do so. The state argued:

"Now, the defendant has been trying to insinuate and say, in their opening statement and through their testimony, that he never sold methamphetamine to *** Lewis. That *** Lewis brought the methamphetamine there himself[;] he had it and attempted to sell it to him.

"In order for you guys to believe that[,] two things *** are necessary. One, that Mr. Lewis is just a bad guy out there trying to frame people for things that they did not do, that's a necessary conclusion to reach.

"Two, that two officers, not just one, are so incompetent at their job that they did not thoroughly search [Lewis and his vehicle], allowing [a] bad person to be able to frame someone for something they didn't do.

"That is lightning striking twice in the same location on the same day, right. That is not a reasonable explanation of what occurred. These officers are experienced officers. They know what they're doing and they know how to conduct a search. This ain't their first rodeo. Okay?

"The story put out by the defendant and his wife also makes no sense. Mr. *** Lewis just drove to this residence to sell methamphetamine, pull it out and try to sell them. Hey, I heard you guys party or whatever. So trying to—attempting to sell them methamphetamine. And then when they get a yes, not. Just leaving. That makes no sense. It's not consistent with what you hear in *** the audio recording at all."

(Emphases added.)

In his closing, defendant summarized the version of events to which he had testified, and he argued that the jury's decision "boil[ed] down to a case of credibility" between Lewis's testimony and his own. And, defendant contended, Lewis's testimony was "suspect" because he was seeking to have his own possession charge dropped in exchange for his involvement in the controlled buy and his testimony against defendant. In rebuttal, the prosecution...