State v. Zielinski

321 Or.App. 8

515 P.3d 397

STATE of Oregon, Plaintiff-Respondent,

v.Peter John ZIELINSKI, Defendant-Appellant.

A172304

Court of Appeals of Oregon.

Argued and submitted February 11, 2022.

July 20, 2022

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.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before James, Presiding Judge, and Egan, Judge, and Kamins, Judge.

KAMINS, J.

Defendant appeals from a judgment of conviction for murder with a firearm for killing his wife. ORS 163.115 ; ORS 161.610. At trial, he did not deny shooting his wife, but presented a defense of extreme emotional disturbance (EED). ORS 163.135.¹ In his first eight assignments of error, defendant challenges the trial court's decision to admit various pieces of evidence regarding his marital relationship that the state presented to rebut that defense. In his ninth assignment of error, he challenges the trial court's decision to allow the state's cross-examination of his expert witness on the details of crimes for which the expert had been retained in the past. In his tenth assignment of error, he argues that the trial court erred when it denied his motion for a mistrial relating to improper witness testimony. We conclude that the trial court erred in allowing that questioning of defendant's expert witness and that the error was not harmless. Our resolution of that issue obviates the need to decide the remaining assignments of error. We reverse and remand for further proceedings.

This is the second time this case has been before us. Originally, defendant submitted a conditional guilty plea, challenging on appeal the pretrial order excluding expert testimony that defendant had been diagnosed with an anxiety disorder as support for the EED defense. We reversed. State v. Zielinski , 287 Or.App. 770, 404 P.3d 972 (2017). After the remand, defendant proceeded to trial, where he raised the defense of EED, which can reduce a charge of intentional murder to manslaughter. Zielinski , 287 Or.App. at 777, 404 P.3d 972. Defendant pointed to his military experience, mental-health diagnoses from expert witnesses, and the disintegration of his marriage as sources of his extreme emotional disturbance. The state presented a contrary theory: that defendant was a controlling husband who ultimately delivered on his previous threat to kill his wife if she ever left him. The jury unanimously found defendant guilty of murder and unanimously rejected the EED defense.

We begin with the ninth assignment of error, as it is dispositive. At trial, defendant presented testimony from three expert witnesses, including Dr. Stanulis, in support of his EED defense.² In the course of cross-examination and in an attempt to demonstrate the expert's bias, the state embarked on a line of questioning regarding the prior cases for which Dr. Stanulis had provided expert testimony. The state's inquiry failed to focus on aspects of Dr. Stanulis's work in those cases, such as the mental health diagnoses. Instead, the state focused almost entirely on the details of the underlying crimes, including a defendant who shot his wife as the police arrived, a defendant who drugged and anally sodomized his estranged partner, and a defendant who sexually abused a six-year-old. The essence of the testimony elicited about those three cases was that the defendants were veterans, they had committed disturbing crimes, and Dr. Stanulis had diagnosed them with post-traumatic stress disorder (PTSD).

Defendant argues that the fact that defendant's expert had testified on behalf of veterans who committed heinous crimes is not relevant to show bias without some connection between the violent nature of the offenses and the accuracy of the diagnosis. The state does little to defend that line of questioning but maintains that any error was harmless given the timing of defendant's objections to those questions.

We review relevance determinations under OEC 401 for errors of law. State v. Martin , 315 Or.App. 689, 690, 501 P.3d 554 (2021). The standard for relevance presents a very low threshold for the admission of evidence. State v. Naudain , 368 Or. 140, 149, 487 P.3d 32 (2021). "To be relevant, evidence introduced to impeach a witness for bias or interest need only have a mere tendency to show the bias or interest of the witness." State v. Hubbard , 297 Or. 789, 796, 688 P.2d 1311 (1984). A court should afford a party "wide discretion in cross-examination to demonstrate such bias." State v. Rashad , 310 Or.App. 112, 113, 483 P.3d 1223 (2021) (internal quotation marks omitted). However, when evaluating the relevance of evidence meant to show bias, there must be more than mere speculation. See State v. Phillips , 245 Or.App. 38, 46, 261 P.3d 55 (2011), rev. den. , 351 Or. 545, 274 P.3d 184 (2012) (reasoning that to show the bias of a witness, reasonable inferences are permissible, but speculation is not).

The trial court erred when it allowed the state to continue this line of questioning. The state began this part of its cross-examination by asking Dr. Stanulis whether he was biased in favor of veterans. In order to be relevant for that purpose, the details of the crimes committed by Dr. Stanulis's prior clients would need to lead to a reasonable inference that he could not be impartial when evaluating veterans. Here, the state failed to lay a sufficient foundation to show that the proffered testimony was relevant as to the doctor's credibility. Even if the state was entitled to point out that Dr. Stanulis was frequently retained in cases involving veterans, and that he regularly testified in favor of the defendant in those cases, the graphic specifics of those crimes, without more, did nothing to undermine the accuracy of the diagnoses or to otherwise demonstrate bias. Without something indicating that the diagnoses of those defendants were somehow improper or that the details of the crimes were relevant to the accuracy of the diagnoses, eliciting testimony about the particulars of those crimes did not increase or decrease the probability that the expert was biased. See State v. Barone , 329 Or. 210, 238, 986 P.2d 5 (1999), cert. den. , 528 U.S. 1086, 120 S.Ct. 813, 145 L.Ed.2d 685 (2000) ("[E]vidence is relevant so long as it increases or decreases, even slightly, the probability of the existence of a fact that is of consequence to the determination of the action.").

Having determined that the trial court erred by admitting the evidence, we must next determine whether that error was harmless; that is, whether there was little likelihood that the particular error affected the verdict.

State v. Hightower , 368 Or. 378, 386, 491 P.3d 769 (2021) ; see also State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003) ("Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict? The correct focus of the inquiry regarding affirmance despite error is on the possible influence of the error on the verdict rendered, not whether this court, sitting as a fact-finder, would regard the evidence of guilt as substantial and compelling."). In making that determination, we look at all the evidence in the record and "we consider the importance of the erroneously admitted evidence to a party's theory of the case." State v. Stewart , 270 Or.App. 333, 341, 347 P.3d 1060, rev. den. , 357 Or. 743, 361 P.3d 608 (2015) ; see State v. Mendoza-Sanchez , 291 Or.App. 299, 313, 419 P.3d 765 (2018) (when making a harmless error determination "we review all pertinent portions of the record"). We do not weigh the evidence or act as factfinder, but instead look at the likely effect of the error on the verdict. State v. Marquez-Vela , 266 Or.App. 738, 746, 338 P.3d 813 (2014).

The state does not do much to defend this line of questioning, but rather argues that defendant did not object to many of the specific details that Dr. Stanulis ultimately confirmed, and thus the error was harmless. The state appears to be relying on our consideration, as part of a harmless error analysis, of "whether the evidence was cumulative of other evidence admitted without objection." State v. Simon , 294 Or.App. 840, 849, 433 P.3d 385 (2018), rev. den. , 365 Or. 502, 451 P.3d 987 (2019). However, as soon as the prosecutor began questioning Dr. Stanulis about the particulars of the offenses for which he had been hired as an expert, defendant objected and was overruled. Over the course of the testimony, defendant objected five different times to the facts from those cases being entered into evidence, and the trial court overruled each objection. That defendant did not object to every single answer is not dispositive for the purpose of our harmless-error analysis. Cf. State v. Barajas , 247 Or.App. 247, 251, 268 P.3d 732 (2011) (reasoning that for the purpose of preservation we do not require a party to keep making an argument that the trial court has already rejected).

Proceeding to the substance of our analysis, in assessing harmlessness, we consider how the case was tried and the extent to which the disputed evidence was or was not emphasized by the parties and central to their theories of the case. State v. Simon , 294 Or.App. at 849, 433 P.3d 385. In this case, defendant relied heavily on expert testimony to support his EED defense. Although there were two other defense experts, Dr. Stanulis was the only one to diagnose defendant with PTSD, and his testimony was unique in its discussion of PTSD's effects on individuals and how it can manifest in veterans in particular. See State v. Johnson , 225 Or.App. 545, 550, 202 P.3d 225 (2009) (reasoning that we assess the erroneously admitted or excluded evidence...