651
Argued and submitted December 10, 2019, reversed and remanded
January 21, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JIMMIE WAYNE KENNEDY,
aka Jimmie Kennedy,
Defendant-Appellant.
Jackson County Circuit Court
17CR30614; A167635
480 P3d 986
Defendant was convicted of resisting arrest, ORS 162.315, following a jury
trial in which the arresting officer was the sole witness. At trial, defendant
sought to impeach the officer with evidence that the officer broke defendant’s foot
in the course of his arrest. The state objected to the introduction of that evidence,
and the trial court excluded it as not relevant. After the parties rested their
cases, the court invited defendant to reopen his case to put on the broken foot
evidence, but only for substantive purposes. Defendant declined to do so and was
subsequently found guilty. On appeal, defendant assigns error to the trial court’s
refusal to allow him to impeach the officer with the broken foot evidence. He
argues that the evidence was relevant to show the officer’s bias. The state argues
that whatever error that may have occurred was harmless because the court gave
defendant an opportunity to reopen his case. Held: The trial court erred when it
sustained the state’s objection, because the evidence was relevant to show the
officer’s bias and interest. That error was not rendered harmless when the court
invited defendant to reopen his case.
Reversed and remanded.
Timothy Barnack, Judge.
Brett J. Allin, 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.
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 DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
652 State v. Kennedy
MOONEY, J.
Reversed and remanded.
Cite as 308 Or App 651 (2021) 653
MOONEY, J.
Defendant was convicted of resisting arrest, ORS
162.315, following a jury trial in which the arresting officer
was the sole witness. On appeal, defendant assigns error to
the trial court’s refusal to allow him to impeach that officer with evidence that the officer broke defendant’s foot.1
We agree that the court erred and, therefore, reverse and
remand for a new trial.
On May 10, 2017, while on patrol, Deputy Tuff
responded to defendant’s 9-1-1 call for assistance regarding
a domestic dispute. Before arriving, Tuff learned that there
was a restraining order that protected defendant’s wife from
defendant. When he arrived, Tuff contacted defendant, who
was sitting alone in his car, and Tuff spoke with him about
what had happened. Based upon statements made by defendant during that conversation, Tuff believed that defendant
was in violation of the restraining order, and he decided
to arrest defendant for that violation. In the course of that
arrest, Tuff performed a takedown maneuver known as a
“leg sweep” that brought defendant to the ground. After the
takedown, Tuff observed that defendant’s head was injured,
and he called for medical assistance. It is not clear whether
Tuff observed any injury to defendant’s foot at that time.
He took photographs of the head injury, and defendant was
transported to a hospital and treated there.
Defendant was charged with resisting arrest.2 At
trial, Tuff testified on direct examination that he performed
a takedown of defendant because he felt defendant push
him and then pull away, as though defendant was trying
to “break free.” He described the takedown, stating that he
put his right calf “against probably [defendant’s] left shin.”
The body camera video of the arrest and two photographs
that Tuff took of defendant’s head injury were admitted
into evidence through Tuff on direct examination. On cross-examination, defendant inquired about several matters:
1
Defendant also assigns error to various comments made by the trial court
in the presence of the jury. Because our resolution of defendant’s first assignment
of error is dispositive, we do not address the remaining assignments.
2
A person commits the crime of resisting arrest “if the person intentionally
resists a person known by the person to be a peace officer … in making an
arrest.” ORS 162.315(1).
654 State v. Kennedy
“[DEFENSE COUNSEL]: Okay. And you just testified
that you did the leg sweep, hitting his shin?
“[TUFF]: Correct.
“[DEFENSE COUNSEL]: Isn’t it possible that you
also hit his foot?
“…
“[TUFF]: I recall my sh—my calf hitting his shin, not
his foot.
“[DEFENSE COUNSEL]: Now, you do collect evidence
in this case. You took a lot of pictures on the scene, right?
“[TUFF]: I did take photos. Correct.
“…
“[DEFENSE COUNSEL]: You—how many—about
how many pictures did you take at the scene?
“[TUFF]: I don’t recall.
“[DEFENSE COUNSEL]: It was more than the two
that were shown to the jury. Correct?
“[TUFF]: I took several photos. I remember taking
several photos. The exact number, I’m not sure.
“[DEFENSE COUNSEL]: And you went to the hospital and you took photos there too?
“[TUFF]: Correct.
“[DEFENSE COUNSEL]: I’m going to show you what
I’m going to mark as Defense [101] and [102]. Are these pictures you took as part of your duties as a law enforcement
officer?
“[TUFF]: I believe so. I believe these are photos that I
took.
“…
“[DEFENSE COUNSEL]: Your Honor, I’m going to ask
that these Defense [101] and [102] be moved into evidence.
“…
“[DEFENSE COUNSEL]: Now while you’re in the hospital, you also collected some additional evidence. Is that
correct?
Cite as 308 Or App 651 (2021) 655
“[TUFF]: Possible.
“[DEFENSE COUNSEL]: I’m going to show you what
was provided to me by you, by the State, an x-ray.
“[THE STATE]: Your Honor, objection. This is lack of
foundation[3] and it’s not relevant.
“COURT: Yeah. Why—what are you offering?
“[DEFENSE COUNSEL]: I do—I do think that it’s
very relevant, Your Honor.”
Defendant argued that his cross-examination of
Tuff concerning defendant’s broken foot was relevant to
show that Tuff had a motive “to say now that [defendant]
was resisting, because [defendant’s] injuries were significant.” He thus argued that the evidence was probative of
the officer’s motive to falsify or exaggerate defendant’s level
of resistance. Alternatively, defendant argued that his broken foot was relevant for substantive purposes—namely, to
suggest that the injury occurred before the incident, and
that, rather than intentionally resist Tuff, defendant stumbled because of his broken foot. The trial court rejected both
arguments, ruled that evidence of defendant’s broken foot
was not relevant, and sustained the objection.
The state rested at the conclusion of Tuff’s testimony. Defendant rested without offering testimony or any
other evidence and then moved for judgment of acquittal.
In so doing, defendant first reiterated his argument that
evidence about his broken foot was relevant for substantive
purposes:
“Your Honor, under the law, resisting arrest is an intentional crime. There has been testimony that [defendant]
was intoxicated. He was wobbly. I do—I do think that if
I had been able to present evidence about the x-ray and
showing that he has a broken foot, that would also be a
factor into whether he’s tensing up because he has a broken
foot, or whether he’s intending to resist the officer.”
The court responded, “If you want to put on a case like that,
put your client on the stand and ask him those questions.”
3
The state did not develop or pursue its foundation objection, and it did not
raise that as an issue on appeal.
656 State v. Kennedy
When defendant then attempted to reiterate his argument
that evidence of his broken foot was relevant for impeachment purposes by pointing out that he had not been allowed
to cross-examine Tuff on that topic, the court stated that
it knew what it “did and didn’t do,” and that they did not
“need to rehash that.” Before denying defendant’s motion,
the court gave defendant an opportunity to reopen his case
and present evidence of his broken foot as substantive evidence that he “was tensing up because he ha[d] a broken
foot.” Defendant declined to do so, and he was convicted.
On appeal, defendant argues that the trial court
erred when it sustained the state’s relevance objection to
his cross-examination questions about his broken foot.
Specifically, defendant argues that the evidence was relevant to show Tuff’s bias. The state does not seriously dispute that defendant’s questions are relevant to prove bias.
Instead, it contends that any error was harmless because
the court gave defendant an opportunity to reopen his case
to present substantive evidence of his broken foot and that
defendant declined to do so. Therefore, according to the
state, defendant cannot demonstrate that he was prejudiced
by any error.
We review the trial court’s relevance determination
for legal error. State v. Titus, 328 Or 475, 481,
982 P2d 1133
(1999). To lay the foundation for impeachment evidence, a
defendant need only show that the evidence is relevant. State
v. Valle,
255 Or App 805, 810,
298 P3d 1237 (2013) (citing
State v. Hubbard,
297 Or 789, 796,
688 P2d 1311 (1984)). The
threshold for establishing relevance is low. State v. Wright,
284 Or App 641, 646,
393 P3d 1192 (2017). It is “always permissible” to show bias “because such evidence goes to the
witness’s credibility.” State v. Crum,
287 Or App 541, 551-52,
403 P3d 405 (2017). Wide discretion in cross-examination to
demonstrate bias is particularly important for a defendant
in a criminal case who has the constitutional right to confront witnesses.
Id.
In this case, testimony from Tuff on cross-examination that he obtained information about defendant’s
broken foot while he was at the hospital but that he did not
mention on direct examination was relevant to show Tuff’s
Cite as 308 Or App 651 (2021) 657
bias. It supports a reasonable inference that Tuff decided
to seek a charge against defendant of resisting arrest only
after he learned that defendant’s foot was broken at the
time of the arrest. In other words, the evidence was relevant because it supplied a reason or motive for Tuff to provide false or incomplete testimony: to support the charge
of resisting arrest against defendant and to avoid potential legal consequences to himself for causing defendant’s
injuries. We conclude that the trial court erred when it sustained the state’s objection, because it excluded evidence of
Tuff’s potential bias and interest. See State v. Najibi,
150 Or
App 194, 203-04,
945 P2d 1093 (1997) (citing Hubbard,
297
Or at 800) (“It is error for the trial judge to exclude evidence
that establishes sufficient facts from which bias or interest
of a witness may be inferred.”); see also Crum,
287 Or App
at 553 (evidence of police department’s use-of-force policies
was relevant to whether officer involved in shooting had an
interest in presenting facts in a certain way).
We reject the state’s argument that any error was
harmless because the trial court allowed defendant to
reopen his case. In sustaining the initial objection, the court
curtailed defendant’s ability to cross-examine Tuff regarding his bias and interest. See Hubbard, 297 Or at 800-01 (a
defendant is entitled to cross-examine an adverse witness
to the extent necessary to make an initial showing of the
witness’s bias or interest). Offering defendant the opportunity to reopen his case to put on evidence of defendant’s broken foot for the limited purpose of establishing that he had
an injury before the arrest did not address or remedy the
court’s earlier ruling that such evidence was not relevant
to Tuff’s bias. In other words, the court’s offer did nothing
to render harmless its earlier decision to disallow impeachment evidence.
Evidentiary error is not presumed to be prejudicial.
OEC 103. “A defendant who seeks reversal based on a claim
of evidentiary error bears the burden to show a likelihood
that the admission or exclusion of the challenged evidence
affected the verdict.” State v. Smith, 307 Or App 144, 153,
476 P3d 521 (2020). The erroneous exclusion of impeachment evidence is prejudicial, and therefore likely affects
658 State v. Kennedy
the verdict, “if it denies the jury an adequate opportunity
to assess the credibility of a witness whose credibility is
important to the outcome of the trial.” Hubbard,
297 Or at
800.
Tuff was the only witness to testify at trial, and his
credibility was key to proving the state’s case and to discrediting defendant’s denial of the resisting arrest charge. It
was prejudicial to cut off defendant’s line of questioning into
Tuff’s knowledge of defendant’s broken foot and therefore
likely to have affected the verdict.
Reversed and remanded.
