State v. Kinstler ( 2020 )

517
Submitted on remand from the Oregon Supreme Court October 2, affirmed
November 18, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
TYLER SCOTT KINSTLER,
Defendant-Appellant.
Washington County Circuit Court
17CR45757; A167035
478 P3d 595
In State v. Kinstler, 299 Or App 402, 447 P3d 1221 (2019), this court rejected
defendant’s assignment of error to the trial court’s decision not to deliver the
statutory witness-false-in-part instruction, ORS 10.095(3), at defendant’s jury
trial. The Oregon Supreme Court vacated and remanded that decision for recon-
sideration in light of its decision in State v. Payne, 366 Or 588, 468 P3d 445
(2020), which held that the determination whether to give such an instruction is a
question of law rather than discretionary. On remand, defendant renews his con-
tention that the trial court should have issued the witness-false-in-part instruc-
tion because the victim’s testimony was inconsistent with statements that he had
made to the police. Held: The trial court did not err. The victim’s testimony, at
worst, presented an example of a witness’s selective choice of words to downplay
his potential role in triggering defendant’s actions. Under Payne, 366 Or at 607,
such minimizations, even if conscious, are not falsehoods that make the delivery
of the witness-false-in-part instruction proper.
Affirmed.
On remand from the Oregon Supreme Court, State v.
Kinstler, 366 Or 825, 470 P3d 370 (2020).
Beth L. Roberts, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kistler, Senior Judge.
518 State v. Kinstler
LAGESEN, P. J.
Affirmed.
Kistler, S. J., concurring.
Cite as 307 Or App 517 (2020) 519
LAGESEN, P. J.
This appeal, in which defendant challenges the
trial court’s decision not to deliver the statutory witness-
false-in-part instruction, ORS 10.095(3), is before us on
remand from the Supreme Court. State v. Kinstler, 366 Or
825, 470 P3d 370 (2020) (Kinstler II). Initially, we rejected
defendant’s claim of error in a per curiam decision relying
on our decision in State v. Payne, 298 Or App 438, 447 P3d
71 (2019), rev’d, 366 Or 588, 468 P3d 445 (2020). State v.
Kinstler, 299 Or App 402, 447 P3d 1221 (2019) (Kinstler I).
Then, the Supreme Court reversed our decision in Payne,
State v. Payne, 366 Or 588, 468 P3d 445 (2020), and vacated
and remanded our decision in Kinstler I for reconsideration
in light of its decision in Payne. Kinstler II, 366 Or 825. On
reconsideration under the standard announced in Payne, we
conclude that the trial court correctly declined to deliver the
witness-false-in-part instruction.
A jury convicted defendant of fourth-degree assault,
ORS 163.160, and menacing, ORS 163.190. The convictions
arose from defendant’s attack on M, a man cleaning the end
of his driveway with a leaf blower. According to M, he was
using the leaf blower, and defendant took offense to that
and then charged at him. M turned off the leaf blower when
he saw defendant “but there was dust in the air.” At that
point, M realized defendant was talking and heard defen-
dant threaten to shoot him. M apologized but defendant ran
at him. M used the leaf blower to keep the distance between
them, but defendant “just knocked it out of the way and
punched me in the side of the head and knocked me down,
broke my shoulder.”
According to the statements that defendant made
to police,1 he had been walking home from Target, where
he had bought a soda, when he passed by M’s house where
M was doing yardwork with his leaf blower. M “looked right
at him and then blew yard debris and dirt all over him.”
Defendant asked M “if he needed an attitude adjustment,”
M said something back and poked defendant in the stomach
1
Defendant did not testify, but the statements that he made to police about
the incident were admitted at trial.
520 State v. Kinstler
with the leaf blower in a way that caused him significant
pain (describing it as a “4 or a 5” on a “1 to 6 scale”), and
then defendant punched M, told him to never touch him
again, and walked off. Defendant told police that M “had
disrespected him,” and that “he was defending himself from
a man who hit him with a leaf blower.” Consistent with that
statement, at trial, defendant claimed self-defense, arguing
that his punching M was a justifiable response to M’s pok-
ing him with the leaf blower.
At trial, defendant requested that the trial court
deliver the witness-false-in-part instruction, Uniform Criminal
Jury Instruction (UCrJI) 1029. Defendant’s theory was that
M and his daughter, who also testified, had made prior
inconsistent statements to the police that would allow for the
inference that they were consciously lying. The court denied
the request, noting that “there was nothing that indicated
to me that the witnesses were perjuring themselves.”
On appeal, defendant argues that was error. Focus-
ing on what defendant views as discrepancies in (1) M’s
testimony on direct examination about when he turned
off the leaf blower; (2) M’s testimony on cross-examination
about when he turned off the leaf blower; (3) M’s statements
to police about when he turned off the leaf blower; and
(4) defendant’s statements to the police about M looking at
him and blowing debris at him, defendant argues that the
jury could infer from those discrepancies that M “willfully
testified falsely,” so as to require the delivery of the instruc-
tion. The state responds that the discrepancies identified by
defendant are not the sort that allow for the inference that
M testified falsely. The state also argues that any error in
failing to deliver the instruction was harmless. Considering
the record in light of the Supreme Court’s decision in Payne,
as the Supreme Court has directed us to do, we agree with
the state that the discrepancies in testimony identified by
defendant are not the sort that support the delivery of the
witness-false-in-part instruction.
ORS 10.095 supplies a number of jury instructions
that a trial court must deliver “on all proper occasions.” ORS
10.095. One of those instructions is “[t]hat a witness false in
one part of the testimony of the witness may be distrusted
Cite as 307 Or App 517 (2020) 521
in others,” ORS 10.095(3), an instruction captured by UCrJI
1029, the instruction requested by defendant.2
In Payne, the Supreme Court considered what is
a “proper occasion” within the meaning of ORS 10.095 for
delivering the witness-false-in-part instruction. Payne, 366
Or at 600. It held:
“[A] ‘proper occasion’ to give the statutory witness-false-
in-part instruction exists when, considering the testimony
and other evidence viewed in the light most favorable to the
party requesting the instruction, the trial court concludes
that sufficient evidence exists for the jury to decide that at
least one witness consciously testified falsely and that the
false testimony concerns a material issue.”
Id. at 607. The court held further that the determination
whether that standard is met presents a question of law,
subject to appellate review for legal error, overruling long-
standing precedent holding that the delivery of the instruc-
tion was a matter of discretion for the trial court, subject to
appellate review for abuse of discretion. Id. at 600-07.
In light of Payne, the inquiry for us is whether the
testimony and evidence, viewed in the light most favorable
to defendant, is legally sufficient to support a finding that
at least one witness testified falsely and, if so, whether that
false testimony concerned a material issue. Id. at 600, 607.
In conducting that inquiry, we focus on the testimony and
evidence identified by defendant as supporting the instruc-
tion. Id. at 600 (explaining that, in determining whether to
give the instruction, a court is to “consider[ ] the testimony
and other evidence a party has brought to the court’s atten-
tion in support of the requested instruction”).
2
UCrJI 1029 provides:
“Sometimes a witness may give incorrect or even inconsistent testimony.
This does not necessarily constitute lying on the part of the witness. The
witness’s testimony may be an honest mistake or confusion. The witness may
simply forget matters, or his or her memory of an event may contain honest
inconsistencies or contradictions. Also, different witnesses may observe or
recount the same event differently.
“However, if you find that a witness has intentionally lied in part of his
or her testimony, you may, but are not required to, distrust other portions of
that witness’s testimony.
“As jurors you have the sole responsibility to determine which testimony
or portions of testimony you will or will not rely on in reaching your verdict.”
522 State v. Kinstler
Here, the testimony and evidence identified by defen-
dant concerns the issue of when M turned off the leaf blower.
Defendant argues that M’s “initial statement to the police
and testimony on cross examination contradicted [M]’s tes-
timony on direct examination that he turned off the leaf
blower when he saw defendant.” That, according to defen-
dant, would allow a jury to conclude that M “willfully tes-
tified falsely” when he testified that he turned off the leaf
blower when he saw defendant.
Assuming that the issue of when M turned off the
leaf blower is a material one (although it was not the focus at
trial; the focus was M’s use of the leaf blower against defen-
dant when defendant came at him, and defendant’s response
to being “poked” by the leaf blower), the evidence identified
by defendant is legally insufficient to support a finding that
M consciously testified falsely about when he turned off
the leaf blower. Although there are some discrepancies in
the evidence on that point, none is the sort of conflict that
makes it inferable that M was lying about it. That evidence
is as follows:
• M’s testimony on direct examination that “the
defendant was coming this way, and I saw him,
and I turned the blower off, but there was dust in
the air, and he apparently took offense to that and
started dropping F-bombs on me.”
• The following line of inquiry on cross-examination:
“[Defense Counsel:] And I think, at that point, you told
the police that you surmised you must have blown dust at
[defendant], but it was unintentional?
“[M:] Yes. Soon as I saw him, I turned the blower off.
“[Defense Counsel:] Okay. So I think, on direct exam-
ination, you said you turned the blower off, you saw him
walk up, you had a conversation with him, and there must
have still been dust in the air.
“[M:] I didn’t have a conversation with him. He was
the one that was having the conversation.
“[Defense Counsel:] Okay. So the point I’m trying to
make is you did not turn off the blower prior to him commu-
nicating with you. You didn’t see him coming, turn off the
blower, and have dust still in the air, right?
Cite as 307 Or App 517 (2020) 523
“[M:] Right.
“[Defense Counsel:] You were blowing, and you heard
somebody yelling profanity at you?
“[M:] I didn’t hear him because the blower was on, but
I saw him, so I turned the blower off. And he was appar-
ently yelling stuff at me while the blower was on, but I
didn’t hear him until I turned it off.
“[Defense Counsel:] Okay. Well, I think you told the
police that you did not see [defendant] and suddenly heard
someone yelling the F word at you.
“[M:] Okay.
“[Defense Counsel:] So is that an accurate statement?
“[M:] Well, like I say, at the time, I was in shock, so
I’m not sure what I said six months later. What I’m saying
is that I look both directions when I’m blowing, and if I see
somebody coming, I turn the blower off. When I saw him, I
turned the blower off.”
• M’s statements to the police that “he must have
blown dust at [defendant] but it was unintentional.”
• Defendant’s statement to police that M had “looked
right at him and then blew yard debris and dirt all
over him.”
None of that evidence gives rise to a reasonable infer-
ence that M consciously lied about the start of his encounter
with defendant and when he turned off the leaf blower. The
discrepancies, even when viewed in the light most favorable
to defendant, are of the type that suggest lapses in memory,
differences in perspective, and, at worst, an example of a
witness’s selective choice of words to downplay his potential
role in triggering defendant’s actions. Although the evidence
does give rise to the inference that M did not turn off the
blower before he blew dust and debris on defendant, M never
claimed as much. That is, M did not deny that he had blown
dust and debris over defendant, or assert that he had been
able to turn the blower off on a dime when he noticed defen-
dant. It is true that M’s characterization of the incident on
direct examination and use of the passive voice to note the
“dust in the air” (“I turned the blower off, but there was
dust in the air”) may have minimized his role in triggering
524 State v. Kinstler
defendant’s response. But, as we understand the case law,
such minimizations, even if conscious, are not falsehoods
that make the delivery of the witness-false-in-part instruc-
tion proper.
Affirmed.
KISTLER, S. J., concurring.
I join the majority’s opinion and write separately
only to note that, in light of State v. Payne, 366 Or 588, 468
P3d 445 (2020), the uniform witness-false-in-part instruc-
tion may be incomplete and thus incorrect. Currently, the
witness-false-in-part instruction is phrased as a permissive
inference. See UCrJI 1029 (setting out the witness-false-
in-part instruction); Sandstrom v. Montana, 442 US 510,
514-17, 99 S Ct 2450, 61 L Ed 2d 39 (1979) (distinguishing
permissive inferences from conclusive and rebuttable pre-
sumptions).1 It tells the jury that, if it finds that a witness
“has intentionally lied in part of his or her testimony, you
may, but are not required to, distrust other portions of that
witness’s testimony.” UCrJI 1029. By its terms, the instruc-
tion requires only that the jury find a single predicate fact—
that a witness “intentionally lied” in part of his or her tes-
timony—before the jury may infer from that fact that other
parts of the witness’s testimony are not trustworthy.
In Payne, the court explained that, as a result of
longstanding caselaw, a jury must find two predicate facts
before drawing that permissive inference: The jury must
find “that at least one witness consciously testified falsely
and that the false testimony concerns a material issue.” 366
Or at 600, 607 (explaining that the instruction should be
given when a reasonable juror could find those two predi-
cate facts (emphasis added)). Given Payne, the uniform jury
instruction appears incomplete. It does not require that the
jury find that one part of a witness’s testimony was both
false and material before it may infer from those predicate
facts that other parts of the witness’s testimony should be
1
Until 2013, the statutory form of the instruction was phrased as an uncon-
stitutional conclusive presumption, at least as applied to a criminal defendant.
See Payne, 366 Or at 599-600 (describing statutory history); Sandstrom, 442 US
at 523-24 (explaining that conclusive and rebuttable presumptions, when applied
to criminal defendants, unconstitutionally lessen the state’s burden of proof).
Cite as 307 Or App 517 (2020) 525
distrusted. It requires only that the jury find that part of
the witness’s testimony was false.
I recognize that, in Payne, the court did not uphold
the trial court’s refusal to give the defendant’s requested
uniform jury instruction on the ground that the requested
instruction was not correct in all respects. The court reversed
the trial court’s judgment and remanded. However, the state
never raised this issue in either the Court of Appeals or the
Supreme Court in Payne, and the court may have declined
to address it for that reason. In any event, in my view, the
reasoning in Payne suggests that the uniform instruction,
as it is currently written, is incomplete and thus incorrect.
With that observation, I concur in the majority’s opinion.