255 P.3d 661
Or. Ct. App.2011Background
- Defendant Ellis Henderson was convicted by jury of murder under ORS 163.115 after steering a Navigator into the victim, his estranged wife, killing her and damaging the garage wall.
- Defendant contended the investigation was inadequate and his extreme emotional disturbance (EED) defense should mitigate the charge.
- Defense theory: he was enraged by seeing a red Corvette in the garage and intended to kill himself, not the victim.
- During trial, cross-examination of Detective Burdick probed unmeasured garage-wall damage and the lack of measurements of the damage.
- On redirect, the State asked Burdick whether anyone had measured the damage; Burdick testified no one did, prompting defense motion for mistrial which the trial court denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the redirect question amount to improper burden shifting? | Henderson | Henderson | No abuse of discretion; it was proper rebuttal. |
Key Cases Cited
- State v. Johnson, 342 Or. 596 (2007) (reaffirmed standard for reviewing mistrial decisions)
- State v. Worth, 231 Or.App. 69 (2009) (appellate treatment of trial evidentiary issues)
- State v. Lincoln, 250 Or. 426 (1968) (state may comment on defendant's failure to call witnesses available to him)
- State v. Galloway, 202 Or.App. 613 (2005) (jurisdictional voice in rebuttal)
- State v. Wright, 323 Or. 8 (1996) (trial court's discretion in correcting prosecutorial misconduct)
- State v. Larson, 325 Or. 15 (1997) (abuse of discretion standard for mistrial rulings)