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State v. Lotches12/29/2000
d trained Hall in 1987 (approximately five years before the shooting), when Hall was a probationary police officer for the Boardman Police Department. Hancock testified that he felt that Hall was performing inadequately as a police officer and recounted two instances in which Hall had been called to a situation that had called for an arrest, but either had failed to request backup or to make an arrest. He also testified that he had had no reason to believe that Hall was a violent or aggressive person.
At the conclusion of the offer of proof, the trial court adhered to its previous ruling. Among the reasons for its ruling, the court stated:
"You haven't got the evidence * * * to rise to the level of habitual conduct that this was his habitual response to overreact, which is kind of what you are arguing here.
"You have got two instances in Boardman some time between January of '87 and later in the fall of '87 and that doesn't rise to the level of habitual behavior on the part of Mr. Hall."
Under OEC 404(2)(b), evidence of a pertinent character trait of the victim of a crime, offered by an accused, is admissible for the purpose of proving that the victim acted in conformity therewith.The trial court concluded that Hancock's testimony about two instances, five years earlier, in which Hall had failed to follow police procedure, did not establish a character trait for acting in a reckless, erratic, or dangerous manner and, therefore, was not relevant. We agree with that assessment.The trial court correctly excluded Hancock's testimony.
C. Exclusion of Evidence Pertaining to Insanity Defense
Defendant contends that the trial court erred in limiting the testimony of defense witness Jurdem, a public defender who had represented defendant in various proceedings in Colorado, and in excluding two letters from Colorado physicians to Jurdem. In the guilt phase of the trial, defendant asserted an insanity defense, "based in part on prior Colorado court adjudications that he was legally insane." The state had introduced evidence from several Colorado State Hospital physicians that defendant had faked mental illness during his examinations in Colorado and that he was, in fact, sane. In response, defendant wished to call Jurdem, who would have testified to an alleged bias on the part of two of the doctors, Doyle and Hufaker, who had diagnosed defendant as a malingerer. Through Jurdem, defendant also wished to introduce letters to Jurdem from two other Colorado physicians in which those physicians alleged the existence of a pattern of institutional bias in the Colorado State Hospital that predisposed its doctors to misdiagnose its mentally ill patients as malingerers. Those letters did not address defendant's particular case.
The state objected on relevance grounds, arguing that it did not intend to call either Doyle or Hufaker and that none of the witnesses whom it did intend to call would rely on any of Doyle's or Hufaker's statements or reports. The trial court agreed with the prosecution that the evidence was not relevant; the court ruled that Jurdem could testify only about his opinion of the doctors who were called to testify. However, the court stated that it would reconsider the matter if the evidence became relevant at some future point in the trial.
Analyzing the matter on a statutory level, we agree with the state that defendant's proffered evidence of bias of a non witness was not relevant. Evidence is relevant if it has any tendency to prove a fact at issue in the dispute. OEC 401. Defendant has not shown how Jurdem's opinion concerning the credibility of the two Colorado doctors who had diagnosed defendant as malinger
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