271
Argued and submitted December 3, 2019, affirmed March 31, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
WILLIAM JACK PARKERSON,
Defendant-Appellant.
Klamath County Circuit Court
1401933CR; A163629
484 P3d 356
At defendant’s jury trial for attempted aggravated murder with a firearm and
first-degree assault with a firearm, Pascoe, who drove defendant away from the
scene of the crime, testified that defendant twice shot a police officer. Defendant
requested that the jury be instructed both that Pascoe was an accomplice witness
as a matter of law and that Pascoe’s testimony should be viewed with distrust by
the jury because of her accomplice status. The trial court denied the request. The
jury returned a verdict of guilty on both counts. On appeal, defendant assigns
error to, among other things, the court’s (1) failure to issue the accomplice
instructions, (2) failure to instruct the jury on the firearm element of each of
defendant’s offenses, and (3) instruction that a nonunanimous jury verdict could
support a conviction of the charged crimes. Held: Although the trial court erred
in each respect, none of the trial court’s errors required reversal. Pascoe’s indictment for the same crimes as defendant made Pascoe an accomplice as a matter of
law, entitling defendant to the requested accomplice jury instructions. However,
given the other evidence adduced at trial, those instructions would have had no
tendency to affect the jury’s finding of guilt. The court’s failure to instruct the
jury that it needed to find whether defendant used a firearm during his offenses
was harmless because the jury found that defendant used a weapon during the
commission of his offenses and the facts were such that the only weapon that
could have been used was a firearm. The court’s instruction that the jury could
return a nonunanimous verdict likewise did not require reversal, because the
jury returned unanimous verdicts on both counts.
Affirmed.
David G. Hoppe, Judge.
Stephanie J. Hortsch, Deputy Public Defender, argued the
cause for appellant. Also on the opening and a supplemental brief was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Office of Public Defense Services. William
Jack Parkerson filed a supplemental brief pro se.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the briefs were Ellen F.
272 State v. Parkerson
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Sercombe, Senior Judge.
LAGESEN, P. J.
Affirmed.
Cite as 310 Or App 271 (2021) 273
LAGESEN, P. J.
At defendant’s jury trial for attempted aggravated
murder with a firearm and first-degree assault with a firearm, Pascoe, who drove defendant away from the scene of
the crime, testified that defendant twice shot a police officer. Defendant requested that the jury be instructed both
that Pascoe was an accomplice witness as a matter of law—
because Pascoe had been indicted for the same crimes as
defendant—and that Pascoe’s testimony should be viewed
with distrust by the jury because of that accomplice status.
The trial court denied the request. The jury returned a verdict of guilty on both counts. On appeal, defendant assigns
error to, among other things, the court’s (1) failure to issue
the accomplice instructions, (2) failure to instruct the jury
on the firearm element of each of defendant’s offenses, and
(3) instruction that a nonunanimous jury verdict could support a conviction of the charged crimes. We affirm.
According to the evidence presented at trial, Officer
W was on patrol in Klamath County when he observed a
vehicle occupied by three people and missing a front license
plate. In the vehicle, Pascoe sat in the driver’s seat, defendant sat in the front passenger seat, and another passenger,
Holmgren, sat in back. W pulled Pascoe over for not having
a front license plate. Holmgren got out of the stopped vehicle
and walked past W; he seemed familiar to W, but W could
not place him. W turned back to face the vehicle and, in his
words, “I see this, there’s a black barrel, set of eyes, there’s a
bang. And my face is on fire.” Defendant shot W in the face
from a distance of eight to 12 feet. W’s gun was holstered,
so, instead of shooting back, he ran down a nearby alleyway.
Defendant shot him once more in the back, then got back
into the vehicle. Pascoe drove defendant away.
The police picked up Holmgren at a nearby Big Lots
shortly after the incident. The police apprehended defendant
and Pascoe the next day. Before they were arrested, they went
to the home of one of defendant’s acquaintances. Defendant
told the acquaintance’s brother, DeMartini, that he had
“blasted a cop in the face and that they needed a place to go.”
Defendant said that he had used a .45 Hi-Point in the shooting, which he had buried in the mud in the Klamath Marsh.
274 State v. Parkerson
Defendant was indicted by a grand jury for one
count of attempted aggravated murder with a firearm, ORS
163.095, and one count of assault in the first degree with a
firearm, ORS 163.185. Pascoe was indicted on the same day
by the same grand jury for the same crimes, as well as two
counts of criminal conspiracy, ORS 161.450; ORS 163.185:
one for each count that defendant was charged with. The
state later dismissed the charges against Pascoe without
prejudice for the stated reason that it was “in the best interest of the parties.”
Pascoe was one of the witnesses against defendant
at his trial. She remembered that, earlier on the day of the
shooting, she, defendant, and Holmgren were hanging out at
a friend’s house. Speaking to Holmgren, defendant said that
he would not stop for the police. When asked at trial what
Pascoe understood that statement to mean, she testified, “I
didn’t really understand it to mean anything to me because
I was the driver of my vehicle, and if I’m getting stopped,
I’m stopping.” However, Pascoe knew that defendant had a
handgun tucked in his waist. The three of them got into
Pascoe’s vehicle and left the house. Shortly thereafter, W
pulled Pascoe over. As soon as Pascoe stopped, Holmgren
got out of the car. A few moments after that, defendant got
out of the car. At that point, according to Pascoe,
“everything happened really fast. I heard a shot as I was
reaching into my glove box to get my insurance and registration because I knew that’s what they ask for, and as I
was reaching I heard this shot, and so of course I turned to
look and—excuse me. And when I looked back, I saw [defendant] standing and pointing like this and I heard another
shot, and I turned back around really fast because I didn’t
want him to know that I saw him, and—and I heard the
officer screaming. And when I turned to the other way like
this, I saw him holding his face and he had his other arm
out like this and he was just yelling, screaming like this
awful scream and was running away, like away, you know,
like to the other side of the street. And I slunk down in my
seat a little because at the time it looked like the officer like
maybe had a weapon pointed this way and I didn’t want to
get shot, you know, and so I slunk down in my seat, and at
the time, at that time [defendant] came back and got in my
car and he told me to drive.”
Cite as 310 Or App 271 (2021) 275
Pascoe testified that she had not been expecting defendant
to shoot anyone, and that she thought it was “a possibility,
absolutely” that defendant was going to kill her when he
got back in the car. When asked why she drove away, she
responded, “Who wouldn’t dri—I mean, I didn’t feel like I
had a choice. I mean, I’m going to do what he says, he has a
gun, he just shot someone.”
Defendant’s theory at trial was that the jury should
have reasonable doubt that he was the shooter, positing that
Holmgren was a possible alternative suspect. Defendant
requested that the trial court instruct the jury that Pascoe
was an accomplice as a matter of law and that accomplice
witness testimony should be viewed with distrust.1 Defendant
argued that the indictment against Pascoe for the same
crimes was enough to warrant a matter-of-law accomplice
instruction. The court declined to issue the instruction, concluding that the indictment alone was not enough and that
the other evidence at trial did not establish that Pascoe was
an accomplice as a matter of law. The jury unanimously
found defendant guilty on both counts and found that defendant was a dangerous offender under ORS 161.725.
Defendant appeals. In his combined first three
assignments of error, he contends that the trial court
erred in denying his request to deliver the accomplice jury
1
Defendant requested UCrJI 1056, UCrJI 1057, and UCrJI 1058(2). UCrJI
1056 provides:
“The testimony of an accomplice in and of itself is not sufficient to support a
conviction. There must be in addition some evidence other than the testimony
of an accomplice that tends to connect the defendant with the commission of
the crime.
“This other evidence, or corroboration, need not be sufficient by itself to support a conviction but it must tend to show something more than just that a
crime was committed. It must also connect or tend to connect the defendant
with the commission of the crime.”
UCrJI 1057 provides:
“If you determine that a witness was an accomplice, then you should view
that witness’s testimony with distrust.”
UCrJI 1058(2) provides:
“You are instructed as a matter of law that [accomplice witness] is an
accomplice in the commission of the crime of [crime with which defendant is
charged].”
(Second brackets and italics in original.)
276 State v. Parkerson
instructions, particularly the accomplice-as-a-matter-of-law
instruction, UCrJI 1058(2). As he did below, defendant
argues that the “fact that a grand jury had found probable
cause to indict Pascoe for the two offenses at issue necessarily proves that there was sufficient evidence to charge
Pascoe with the crimes with which defendant was charged.”
The state responds that evidence must be presented at trial
to support an accomplice-as-a-matter-of-law determination
and no such evidence that Pascoe was an accomplice was
presented.
The accomplice instructions at issue here are statutory instructions that must be delivered by a trial court
“on all proper occasions.” ORS 10.095. Specifically, ORS
10.095(4) requires that, “on all proper occasions,” the jury be
instructed that “the testimony of an accomplice ought to be
viewed with distrust.” We review for legal error “[w]hether
an occasion is a ‘proper’ one for the delivery of one of the
statutory instructions.” State v. Nelson, 309 Or App 1, 6,
481
P3d 314 (2021). Our task here is to determine whether the
trial court was required to conclude that, because Pascoe
was indicted for the same crimes as defendant, she was an
accomplice as a matter of law.
ORS 136.440(2) provides, in part, that “an ‘accomplice’ means a witness in a criminal action who, according
to the evidence adduced in the action, is criminally liable
for the conduct of the defendant under ORS 161.155 and
161.165.” A “criminal action” is “an action at law by means
of which a person is accused of the commission of a violation, misdemeanor or felony.” ORS 131.005(6). The Supreme
Court has explained under what circumstances a witness is
an accomplice and when it is appropriate for a trial court to
issue an accomplice-as-a-matter-of-law instruction:
“[A] person is an ‘accomplice’ for purposes of the corroboration requirement if ‘the evidence is legally sufficient to
justify an indictment of or information against a witness
as an accomplice to the offense charged against the defendant, not necessarily to convict the witness of it.’ ”
State v. Oatney, 335 Or 276, 284,
66 P3d 475 (2003), cert den,
540 US 1151 (2004) (quoting State v. Hull,
286 Or 511, 516,
595 P2d 1240 (1979)).
Cite as
310 Or App 271 (2021) 277
“If there is no dispute regarding whether a witness is an
accomplice witness—that is, sufficient evidence exists to
charge, but not necessarily to convict, the witness of the
crimes with which the defendant is charged—then the trial
court may determine, as a matter of law, that the witness
is an accomplice. If, however, the facts regarding whether
a witness is an accomplice are in dispute, then the jury
decides, and the defendant must prove that the witness is
an accomplice in order to require corroboration.”
Id. at 284-85 (citing Hull,
286 Or at 515-17 (emphasis in
original; internal citation and footnote omitted)). Thus, a
witness is an accomplice as a matter of law if “sufficient evidence exists to charge” the witness with the same crimes
that the defendant is charged with. Id. at 284.
In State v. Torres, 207 Or App 355,
142 P3d 99
(2006), we concluded that an indictment charging a witness
with the crimes for which the defendant is charged conclusively establishes a witness’s accomplice status. Similar to
the case here, the defendant in Torres assigned error to the
trial court’s failure to conclude that one of the witnesses at
trial, Haight, was an accomplice as a matter of law.
Id. at
359. In fact, Haight had been charged, tried, and acquitted for several of the same crimes as the defendant. The
state argued that the acquittal meant that Haight was not
an accomplice.
Id. We summarized the applicable rule, “[I]f
there is sufficient evidence to charge a witness of the crime
with which a defendant is charged, then the trial court ‘may
determine, as a matter of law, that the witness is an accomplice.’ ”
Id. at 359-60 (quoting Oatney,
335 Or at 284). Then,
we concluded that, because Haight was charged with some
of the same crimes as the defendant, he was an accomplice
as a matter of law as to those counts on which both were
charged:
“As pertinent here, the indictment demonstrates that
Haight was charged as a codefendant in Counts 9, 10, 15,
42, and 43. Accordingly, he was an accomplice as a matter
of law for the purpose of those counts ….”
Id. at 363.
On the issue of whether being charged for the same
crimes makes a witness an accomplice witness as a matter of
278 State v. Parkerson
law, Torres is not materially distinguishable from this case.
Like Haight, Pascoe was charged with the same crimes as
defendant. And, like Haight’s acquittal before defendant’s
trial, the dismissal of Pascoe’s charges by mutual agreement with the state does not change the fact that a grand
jury (the same one that indicted defendant) found probable
cause to indict Pascoe for defendant’s crimes.2 That defeats
the state’s contention that a defendant cannot rely on an
indictment to prove accomplice-witness status and, instead,
must prove at trial the underlying facts necessary to warrant an accomplice-as-a-matter-of-law instruction. The trial
court therefore erred in declining to issue the accomplice
instructions.
That leaves the question of whether the trial court’s
error was harmless. We must affirm despite trial court error
if there is little likelihood that the error affected the verdict.
State v. Payne, 366 Or 588, 609,
468 P3d 445 (2020). “To
make that determination, ‘the court considers the instructions as a whole and in the context of the evidence and
record at trial, including the parties’ theories of the case
with respect to the various charges and defenses at issue.’ ”
Id. (quoting State v. Ashkins,
357 Or 642, 660,
357 P3d 490
(2015)). We conclude here that there is little likelihood that
the error affected the verdict.
As an initial matter, under Oregon law, the
accomplice-witness instructions serve to highlight that an
accomplice might be shifting blame from themselves to the
defendant: “[T]he purpose of the instructions addressing
accomplice testimony, including the instruction[s] at issue
here, is to address the concern that ‘criminals may falsely
accuse others of their misdeeds in order to minimize their
own culpability.’ ” Nelson, 309 Or App at 7 (quoting State v.
Simson,
308 Or 102, 108-10,
775 P2d 837 (1989)). On these
particular facts, that blame-shifting dynamic, to the extent
present, was not a particularly strong one. The issue for the
2
We allow that, if the state had proved that the indictment was dismissed for
lack of probable cause or otherwise demonstrated that it lacked probable cause
for the indictment it sought and obtained against Pascoe, we might have reached
a different conclusion. But here, Pascoe and the state agreed to dismissal, and
the state did not demonstrate that the case it made to the grand jury was insufficient to support the indictment it obtained.
Cite as 310 Or App 271 (2021) 279
jury was the identity of the undisputedly male shooter, so
Pascoe’s testimony identifying defendant as the shooter did
not operate to shift blame from her to him, minimizing the
need for the instruction to address potential blame shifting.
Given the nature of the evidence and arguments in
this case, the instructions, even if given, would have had
no tendency to affect the jury’s finding that defendant was
the shooter. W testified that he was facing defendant when
defendant shot him from a distance of eight to 12 feet, and
he specifically identified defendant in court as the shooter.
Holmgren’s sworn video deposition, which was shown to the
jury, implicated defendant and was consistent with both
Pascoe’s and W’s testimonies on the major details of the
shooting. Although testimony about which door of Pascoe’s
car the shooter emerged from differed, multiple witnesses
confirmed that, after shooting W, the male shooter got
back into Pascoe’s vehicle rather than walking away. As
the state pointed out, undisputed evidence established that
Holmgren, not defendant, was the one who walked away and
was apprehended quickly at a nearby Big Lots. Finally, as
noted earlier, there was evidence of defendant’s own admissions to being the shooter. DeMartini testified that defendant told him that he had “blasted a cop in the face” using
a .45 Hi-Point that he had buried in the mud in the marsh.
On this record, there is no reason to think that there is any
likelihood that the jury would have reasonable doubt about
defendant’s identity as the shooter, had it been supplied the
accomplice-witness instructions with respect to Pascoe.
Defendant also assigns as plain error the trial
court’s failure to instruct the jury that it needed to find
whether defendant used or threatened the use of a firearm during the commission of each of defendant’s offenses.
Although that error is, indeed, a plain one, it does not provide grounds for reversal because it is harmless. As we have
explained, “One circumstance in which we will not and cannot exercise our discretion to correct a plain error is when
that error is harmless, that is, when there is little likelihood
that the error affected the jury’s verdict.” State v. Kerne,
289 Or App 345, 349,
410 P3d 369 (2017), rev den,
363 Or
119 (2018). Here, notwithstanding the lack of the instruction, with respect to each offense, the jury was instructed on
280 State v. Parkerson
the aggravating factor that defendant used a weapon in the
commission of the offenses, and the jury found that aggravating factor present. Because the only weapon that the jury
could have found defendant used was a gun—the record
would not allow for a finding of any other weapon—the jury
necessarily found that he committed the offenses with a
firearm. Thus, defendant was not harmed by the omission of
the instructions on these particular facts. See id. at 349-50
(although court’s instruction erroneously omitted element
of offense with respect to some counts, error was harmless
where, in view of how the case was tried, jury’s verdict on
other counts demonstrated that jury made the necessary
findings to convict).
A few more matters require resolution. Defendant
assigns error to the trial court’s instruction to the jury that
it could return a nonunanimous verdict. The jury’s verdicts
on Counts 1 and 2 were unanimous. That claim of error is
therefore foreclosed by State v. Flores Ramos, 367 Or 292,
294, 334,
478 P3d 515 (2020) (holding that error in instructing the jury that it could return nonunanimous guilty verdicts did not require reversal of convictions rendered by
unanimous guilty verdicts), and State v. Kincheloe,
367 Or
335, 339,
478 P3d 507 (2020) (same). Defendant also contends
that the court erred in admitting evidence that defendant’s
psychologist had diagnosed defendant with antisocial personality disorder, a contention we reject without written discussion. Additionally, in a pro se supplemental brief, defendant challenges (1) the denial of his motion for judgment
of acquittal; (2) the court’s refusal to suppress Holmgren’s
identification of defendant; and (3) the admission into evidence of Holmgren’s deposition. He additionally claims that
the prosecution failed to disclose favorable evidence to the
defense, in violation of due process. Having considered those
contentions, we conclude that defendant has not demonstrated that they provide grounds for reversal on appeal.
Affirmed.
