State v. Zielinski

                                        8

 Argued and submitted February 11, reversed and remanded July 20, petition
             for review denied December 29, 2022 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     PETER JOHN ZIELINSKI,
                        Defendant-Appellant.
                     Marion County Circuit Court
                         11C40365; A172304
                                   

     Defendant appeals from a judgment of conviction for murder with a firearm
for killing his wife. At trial, he did not deny shooting his wife, but presented a
defense of extreme emotional disturbance. 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, Dr. Stanulis, on the details
of the crimes for which the expert had been retained in the past. Held: The trial
court erred when it allowed the state to cross-examine Stanulis about the specifics of the crimes his prior clients had committed. In order to be relevant for the
purpose of establishing the expert’s bias, the details of the crimes committed
by Stanulis’s prior clients would need to lead to a reasonable inference that he
could not be impartial. Here, the state failed to lay a sufficient foundation to
show that the proffered testimony was relevant as to the witness’s credibility.
That error was not harmless because defendant relied heavily on Stanulis’s testimony, and the state emphasized the improper line of questioning in its rebuttal
argument to the jury. The Court of Appeals declined to address the evidentiary
issues raised in defendant’s first eight assignments of error, as a different, more
complete record could develop on remand.
    Reversed and remanded.




    Susan M. Tripp, Judge.
   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.
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  Before James, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
  KAMINS, J.
  Reversed and remanded.
10                                                         State v. Zielinski

         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, 

, 

 (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, 

. Defendant pointed to his military experience, mentalhealth diagnoses from expert witnesses, and the disintegration of his marriage as sources of his extreme emotional
disturbance. The state presented a contrary theory: that
     1
       ORS 163.135(1) provides, in relevant part:
         “It is an affirmative defense to murder in the second degree for purposes
     of ORS 163.115 (1)(a) that the homicide was committed under the influence
     of extreme emotional disturbance if the disturbance is not the result of the
     person’s own intentional, knowing, reckless or criminally negligent act and if
     there is a reasonable explanation for the disturbance. The reasonableness of
     the explanation for the disturbance must be determined from the standpoint
     of an ordinary person in the actor’s situation under the circumstances that
     the actor reasonably believed them to be.”
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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 Stanulis had provided expert testimony. The
state’s inquiry failed to focus on aspects of 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 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, 

,

 (2021). The standard for relevance presents a
very low threshold for the admission of evidence. State v.
Naudain, 

, 

 (2021). “To be relevant, evidence introduced to impeach a witness for bias or
    2
      Defendant assigns error to “questions involving gratuitous descriptions of
prior crimes for which defendant’s experts were hired by the defense” but his brief
focuses on the cross-examination of Stanulis. Accordingly, we also limit discussion to the testimony of Stanulis.
12                                           State v. Zielinski

interest need only have a mere tendency to show the bias or
interest of the witness.” State v. Hubbard, 

,

 (1984). A court should afford a party “wide
discretion in cross-examination to demonstrate such bias.”
State v. Rashad, 

, 

 (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,

, 

 (2011), rev den, 

(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 Stanulis whether he was
biased in favor of veterans. In order to be relevant for that
purpose, the details of the crimes committed by 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 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,

, 

 (1999), cert den, 

(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
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likelihood that the particular error affected the verdict.
State v. Hightower, 

, 

 (2021);
see also State v. Davis, 

, 

 (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, 

, 

, rev den, 

 (2015); see State v. Mendoza-Sanchez, 

, 

 (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, 

, 

(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 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,

, 

 (2018), rev den, 

(2019). However, as soon as the prosecutor began questioning 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 harmlesserror analysis. Cf. State v. Barajas, 

, 

 (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).
14                                               State v. Zielinski

         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. Simon, 

. In this case,
defendant relied heavily on expert testimony to support
his EED defense. Although there were two other defense
experts, 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, 

, 

 (2009) (reasoning that we assess
the erroneously admitted or excluded evidence in light
of other evidence in the record pertaining to that issue).
During direct examination, Stanulis outlined how the
behaviors that defendant exhibited in the months leading
up to the shooting were consistent with PTSD and military
culture.

        A key part of defendant’s defense was how his military history and psychological state impacted his ability to
react appropriately to the disintegration of his marriage.
Stanulis’s testimony was an important component of that
argument. And although the erroneous cross-examination
of Stanulis was brief, the state chose to amplify it to the
jury. See State v. Carrillo, 

, 

, rev den, 

 (2020) (how the parties used the
challenged evidence at trial is a consideration in determining whether the error was harmless). In its rebuttal argument, the state returned to the improper cross-examination
of Stanulis, saying
     “Ask yourselves whether you perceived bias from these
     expert witnesses. Dr. Brown, Dr. Stanulis, what do they do?
     They’re the dynamic duo. A veteran is charged with a violent
     crime, a sexual offense, they work together. That veteran’s
     got PTSD. That means they can’t control their behavior.
     It’s not credible because they go in with one mindset and
     one mindset only. They weren’t looking at all of the circumstances. They didn’t look at all of the evidence. They went
     in to find one conclusion. And that’s your job. Your job is
     to determine did what they say ring true to me? Did what
     they say make sense?”
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(Emphasis added.) One of the last things the jury heard was
the state’s reference to the inappropriate line of questioning
of defendant’s expert. See State v. Bevan, 

, 

 (2010) (prosecutor emphasizing erroneously admitted evidence in opening and closing argument
weighed against a finding of harmlessness). Given that and
the fact that the defense theory relied significantly upon the
testimony of Stanulis, we cannot conclude that the error in
this case was harmless.
         Moving to defendant’s first eight assignments of
error relating to evidentiary decisions, we can resolve issues
of law that are likely to arise on remand when we determine that it is appropriate to do so. State v. Benton, 

, 

 (2022). Before trial, the parties
sought rulings on the admissibility of a wide variety of evidence of defendant’s previous behavior and statements to the
victim over the course of their relationship. The trial court
ruled that most of the evidence was relevant and admissible under (1) the doctrine of chances and (2) the theory that
defendant’s reliance on the EED defense made evidence
“that Defendant suffered an enduring and pervasive set of
maladaptive behaviors, such as ill-temperament, jealousy,
suspicion, cruelty, unconstrained anger” and evidence that
“Defendant did not care for his spouse, that he had treated
her as having no worth, that he had acted in a cruel and
angry manner, and that he made direct or veiled threats of
harm,” at any time during their approximately seven years
of marriage, relevant and admissible.
         We observe that when presenting an EED defense
to the jury, the question is whether defendant was under
the influence of an emotional disturbance to the extent
that he lost the capacity to control himself and forego
the homicide. State v. Ott, 

, 

(1984). The disturbance cannot be a result of defendant’s
own intentional, knowing, reckless or criminally negligent
act. ORS 163.135(1). Lastly, the jury must determine what
defendant’s situation was in the circumstances which defendant reasonably believed to exist, and then the jury must
determine if an ordinary person in that situation and those
circumstances would have experienced EED. Ott, 297 Or
at 398. When EED is presented in the context of a marital
16                                           State v. Zielinski

relationship, evidence as to the nature and quality of the
relationship should be tailored to inform that inquiry.
         On appeal, in eight assignments of error, each challenging a different item of evidence, defendant argues that
all of the trial court’s reasons for admitting the evidence
were erroneous. The state concedes that, in light of State v.
Skillicorn, 

, 

 (2021), the court erred
in relying on the doctrine of chances, but it defends at least
the latter part of the trial court’s reasoning, namely, that
defendant’s reliance on the EED defense made all that evidence of marital strife relevant and admissible.
         “[O]ur review of a trial court’s ruling is limited to
the record as it had developed at the time of the ruling; we
do not evaluate a court’s pretrial decision with the benefit
of hindsight by, for example, taking into account what happened at trial.” State v. Sperou, 

, 

(2019). That principle convinces us that, in light of our disposition of the case on the ninth assignment of error, it is not
appropriate for us to resolve the legal issues raised in defendant’s first eight assignments of error. The decision whether
to admit any particular piece of evidence of a defendant’s
prior acts under OEC 404(3) and OEC 403 must be nuanced
and context specific. Here, the court’s pretrial decision to
admit almost all of this type of evidence—before the record
was developed and before the details of defendant’s theory
of the case had been established—makes it impossible for
us to adequately consider the probative value of each item
of evidence. On remand, the pretrial and trial record will
likely develop differently. Accordingly, we need not decide
defendant’s first through eighth assignments of error here.
As previously noted, we also need not address defendant’s
tenth assignment of error.
        Reversed and remanded.