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State v. Lotches12/29/2000
and such evidence bolstered defendant's trial theory that defendant was not the initial aggressor and was justified in acting in self defense.
Under the Oregon Evidence Code (OEC), evidentiary error is not presumed to be prejudicial. OEC 103(1). A defendant in a criminal case assigning error to the exclusion or admission of evidence must establish that the error was not harmless. Article VII (Amended), of the Oregon Constitution, requires appellate courts to affirm a conviction, notwithstanding any evidentiary error, if there is substantial and convincing evidence of guilt and little likelihood that the error affected the verdict.State v. Van Hooser, 266 Or 19, 23-26, 511 P2d 359 (1973) (affirming convictions despite statutory error, holding that constitutional provision does not permit reversal if "there was substantial and convincing evidence of guilt the error committed was very unlikely to have changed the result at trial"). Under the United States Constitution, the court must determine whether the error is harmless beyond a reasonable doubt.Chapman v. California, 386 US 18, 24, 87 S Ct 824, 17 L Ed 2d 705, 710-11 (1967).
In this case, we need not consider the merits of defendant's argument concerning the admissibility of the audiotape under OEC 801(4) because, after carefully reviewing the record, we conclude that defendant has failed to show that any error in excluding the tape was likely to have affected the verdict. As noted, at the trial, Riley testified that defendant had pulled out his gunbeforethe first shot was fired and Gates testified that she had told the investigators after the incident that defendant had pulled his gun outafterthe first shot was fired. However, all of the witnesses to the exchange of gunfire at Fourth and Alder (including Gates) testified that the words, "He's got a gun," preceded the first shot. Moreover, all of those witnesses who knew decedent Hall testified that it was Hall who uttered those words.
The only reasonable inference to be drawn from the fact that, before any shot was fired, Hall exclaimed that defendant had a gun, was that Hall felt that either he or others nearby were in danger from defendant and his gun. Under those circumstances, it would not matter whether Hall or defendant fired the first shot. If Hall perceived that defendant was about to use his gun, Hall would have been justified in firing the first shot, which undercuts defendant's self-defense theory. Thus, even if the trial court erred in excluding the audiotape from evidence, there is little likelihood that the error affected the verdict. We conclude that any error was harmless beyond a reasonable doubt.
B. Exclusion of Testimony as to Victim's Character
Defendant also contends that the trial court erred in sustaining the prosecutor's objection to the admission of testimony of Hancock, who had been Hall's supervisor when Hall worked as a police officer for the City of Boardman. Defendant wished to elicit testimony about specific instances of Hall's past conduct which, he claimed, tended to show that Hall was reckless and dangerous, and acted outside of established rules and procedures for police work. Defendant claimed that evidence of that conduct was relevant to his self-defense theory, because it supported his contention that Hall had initiated the gunfight that resulted in his death. The prosecution objected that Hancock's testimony was not relevant. The trial court sustained the objection on the grounds that Hancock's testimony would be both irrelevant and unduly prejudicial, inasmuch as it tended to blacken Hall's character.
Defense counsel then called Hancock to the stand in an offer of proof. Hancock testified that he ha
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