Barry Joe Stull Archive: 67135 - Transcript

Transcript
Transcript Checklist No. 2 for 67135

User ID: bela.lemmon Attorney: Brett J. Allin
May 12, 2017
Barry Joe Stull
Multnomah 15CR53749
A164154
Case Type: JT
Pages: 1413
Transcript Filed: 5/12/2017
Record Settlement(s): 5/29/2017
Designation(s):
Appellant designates the record in its entirety, including the trial court file, all exhibits offered
and/or received into evidence, and the entire record of the oral proceedings.
Questionnaire returned? Yes No

Comments:
Designated dates transcribed? Yes No N/A

Comments/additional dates transcribed: Record designated in its entirety
Consecutive pagination? Yes No

Comments:
Plea transcribed? Yes No N/A

Comments:
Pretrial hearing(s)? Yes No N/A

Comments:
Audio/Video exhibit(s)? Yes No N/A

Comments:
Voir dire (if designated)? Yes No N/A

Comments:
Opening statements? Yes No N/A

Comments:
Closing arguments? Yes No N/A

Comments:
Jury instructions? Yes No N/A

Comments:
Verdict? Yes No N/A

Comments:
Sentencing? Yes No N/A

Comments:
Transcriber Statement Regarding Record
Dear Transcriber,
Please check one or more of the boxes below to indicate whether the transcript you have prepared is
complete or whether there were any designated proceedings, or portions thereof, that you were not able
to transcribe. Please return the completed form to the Office of Public Defense Services with the
transcript and Provider Fee Statement.
9 Complete Transcript
_________________________________________________________________________________
Missing Recordings
Audio recordings of some or all of the proceedings listed in the Designation of Record are
missing. Specifically, there are no recordings of the following proceedings:
_________________________________________________________________________________
9 Inaudible Portions
Portions of the audio recordings are inaudible for at least 15 seconds and could not be
transcribed. The inaudible portions are noted on the following transcript pages:
x 9/19/16: Jury selection from pages 446, line 5 through 485, line 9 -- difficult to hear
attorneys and jurors throughout the entirety of jury selection.
x 9:19:16: Opening statements by both attorneys were different to hear as they appeared to
not be standing by a microphone.
x Mr. McMahon, Plaintiff attorney, was oftentimes not appearing to stand by microphone,
so he was difficult to hear.
9 Audio or Video Recordings Played in Court

Audio and/or video recordings were played in court, as noted on the following transcript pages:
(Please indicate if you were unable to transcribe the records.)
x 9/21/16: State's Exhibit 1 played in open court pages 933, line 8 through page 934 line 14.
Small bits of video played, were transcribed, but difficult to understand.
x 9/21/16: State's Exhibit 1 played in open court sporadically through pages 1006, line 1
through page 1011, line 22. Small bits of video played, were transcribed, but difficult to
understand.
x 9/21/16: An exhibit played in open court sporadically through pages 964, line 22 through
page 972, line 2. Small bits of video played, were transcribed, but difficult to understand.
x 9/21/16: State's Exhibit 2 played in open court pages 969, line 20 to page 972, line 2, but
difficult to understand.
Other:
_________________________________________________________________________________
Date: May 11, 2017
Transcriber: Valori Weber

IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
STATE OF OREGON, )
) Multnomah County
Plaintiff-Respondent, ) Circuit Court
) No. 15CR53749
vs. )
) Appellate No. A164154
BARRY JOE STULL, )
aka Barry Joe Stully, ) Volume 1 of 29
) Pages 1 - 9
Defendant-Appellant. )
______________________________________________________________
TRANSCRIPT OF PROCEEDINGS ON APPEAL
BE IT REMEMBERED that the above-entitled matter

came on regularly for hearing before the Honorable ERIC J.
BLOCH, Judge of the Circuit Court, Monday, September 19, 2016
at the Multnomah County Courthouse, Portland, Oregon.
APPEARANCES
FOR THE PLAINTIFF-RESPONDENT:

Cliff Coulter, Esquire
Multnomah County District Attorney's Office
600 Multnomah County Courthouse
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162
FOR THE DEFENDANT-APPELLANT:
Thomas MacNair, OSB #961620

Metropolitan Public Defender Services, Inc.
630 SW 5th Avenue, Suite 500
Portland, OR 97204
(503) 225-0316
tmacnair@mpdlaw.com
Barry Joe Stull, out of custody
Weber Reporting Corporation

2755 Commercial Street South, #101-216
Salem, OR 97302
970.405.3643
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1 PORTLAND, OREGON; MONDAY, SEPTEMBER 19, 2016
2 -O0O-
3 (Call to Order of the Court at 2:23 p.m.)
4 UNIDENTIFIED SPEAKER: We're on page 28, line 1,
5 and it's an add-on. He's also an add-on. Barry Stull.
6 (Discussion being held between individuals that is
7 indiscernible.)
8 MR. COULTER: We're asking for Jane Fox on the
9 misdemeanor and Kasia Rutledge on the felony, Judge.
10 MR. STULL: My attorney on this case is Harry
11 Carson, (indiscernible), Michael E. Rose, and (indiscernible)
12 who is with the United States Department of Justice. And I
13 spoke with Noah -- I'm going to say Garrett, but I'm a little
14 confused. He's a supervisor of (indiscernible) at Schwabe
15 Williamson & Wyatt.
16 I'm a person with a disability. And this entire
17 thing is an ongoing civil rights violation. That's why I
18 can speak R. Jonas Geisert's (ph) name, and the --
19 especially the United States Department of Justice vs. City
20 of Portland, their settlement agreement, paragraph 130 on
21 page 45, specifically articulates retaliation. And
22 everything that's happened to me this week has since --
23 MR. COULTER: (Indiscernible).
24 MR. STULL: -- everything that's happened this
25 week since my conversation with Geisert on his voicemail.

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1 So the arrest at -- the arrest at Emanuel Hospital
2 emergency room.
3 THE COURT: Mr. Stull, can you just step back from
4 the microphone. You're very loud and it's actually -- it's
5 quite sensitive. Why don't you just stand normally.
6 MR. STULL: Oh, okay. I haven't been able to make
7 a phone call since I went into custody. It's been over 48
8 hours. So I said my attorney on this case is Harry Carson.
9 THE COURT: No, I heard you, sir.
10 MR. STULL: Okay. I couldn't tell if you were
11 hearing or if I was over-blasting the microphone. I'm sorry.
12 THE COURT: No, I can hear you. That's --
13 MR. STULL: Okay.
14 THE COURT: Okay.
15 MR. STULL: And I'm -- what's the (indiscernible)
16 again (indiscernible)?
17 THE COURT: Let me -- can I ask you a couple of
18 questions. Is Harry Carson, is that a continuing
19 representation? Is he --
20 MR. STULL: He represented me at Lewis -- when
21 Lewis & Clark college campus safety scarred my head on the
22 paving stones and we got an acquittal. He represented when
23 I was found not guilty of trespassing --
24 THE COURT: Okay, stand --
25 MR. STULL: -- at (indiscernible) Nurseries --

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1 THE COURT: Sir. Sir, you're --
2 MR. COULTER: It's too --
3 MR. STULL: -- and we got an acquittal.
4 MR. COULTER: Sir, it's too loud.
5 THE COURT: Shh, it's too loud.
6 MR. COULTER: You have to just stand up.
7 THE COURT: I can hear you if you --
8 MR. STULL: Okay, I can't tell. I'm in a roomful
9 of glass.
10 THE COURT: I'm trying to tell you.
11 MR. STULL: Harry Carson knows exactly who I am,
12 Your Honor.
13 THE COURT: Okay. Can we --
14 MR. STULL: He has a picture of my doctor's charts
15 notes in his office right now that he blew up as an
16 enlargement.
17 MR. COULTER: Sir, can you please let somebody
18 else talk for just a second?
19 THE COURT: Okay, hold on.
20 MR. STULL: I haven't been able to make a --
21 MR. COULTER: Sir --
22 MR. STULL: -- phone call from custody in --
24 MR. STULL: -- 48 hours. I know that's illegal,
25 right.

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1 MR. COULTER: Sir, could you please let somebody
2 else talk.
3 THE COURT: Mr. Stull.
4 MR. STULL: My name is Barry Joe Stull, Stull vs.
5 Hoke is my case. State vs. Gaines is Harry Carson case
6 which cites my case.
7 THE COURT: Shh.
8 MR. STULL: So what I'd like to do, all you folks,
9 is I'd like these gentlemen to let Mr. Carson know what room
10 I'm in. I believe it's the fourth floor, and these gentlemen
11 know which one it is because I've done it wrong every time
12 because I have a disability. Right now, you triggered, and
13 you say I'm getting loud, and what are you going to do? What
14 are you going to do, arrest me at --
15 MR. COULTER: Please let somebody else --
16 MR. STULL: -- city council like it happened on --
18 MR. STULL: -- Wednesday when I was on the agenda.
19 What are you going to do, all right?
20 MR. COULTER: Would you please let somebody else
21 talk.
22 THE COURT: Mr. Stull --
23 MR. STULL: I just want to -- I just want to go
24 back to my cell.

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1 THE COURT: What I was going to do, Mr. Stull, is
2 inquire as to whether we could appoint Mr. Carson to
3 represent you on this case. That's what I was going to do.
4 May I proceed with your --
5 MR. STULL: Sure. I can't get a word in edge-wise.
6 THE COURT: I know how you feel.
7 MR. STULL: I couldn't make a phone call for 48
8 hours, all right. This is my first contact since I went
9 into custody Wednesday, all right.
10 THE COURT: Sir, I --
11 MR. STULL: I have to get my message in a bottle
12 on the court record, okay.
13 THE COURT: I --
14 MR. STULL: And I think we're on the record, and I
15 think there's plenty of people here, and who's not here is
16 anybody that could support me in any capacity, including
17 Mr. Carson, because I haven't been able to make a phone call.
18 So we all know who I am. I don't know who this
19 gentleman is, but I know I'm a better attorney than he is
20 and I'm not a member of the Oregon State Bar. I do know
21 that I litigate. Stull vs. Hoke is my Supreme Court cases
22 with reversals of this Circuit Court --
23 THE COURT: Can we --
24 MR. STULL: -- 326 OR 72 --
25 THE COURT: Can we appoint Mr. Carson on this case?

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1 MR. STULL: And the punch line, April 1st, 1998.
2 THE COURT: No? Not available.
3 THE CLERK: It's because of the type of charges.
4 THE COURT: Oh, all right. He's -- so Mr. --
5 Mr. Stull, Mr. Carson, who is indeed a fine attorney, I'm
6 glad you feel like he did some good work for you, but he's
7 not available to represent you on this case because of the
8 nature of the charge, but we will appoint another good
9 attorney --
10 MR. STULL: I think I'm going to have Harry Carson.
11 THE COURT: Well --
12 MR. STULL: I can afford to hire him myself.
13 THE COURT: Well, I think he's a public defender,
14 he doesn't take private cases. Here's what --
15 MR. STULL: Okay. Michael E. Rose.
16 THE COURT: Here's what we'll --
17 MR. STULL: I can hire him myself.
18 THE COURT: Well, you can, sir.
19 MR. STULL: All right. So --
20 THE COURT: But let us appoint -- let's do this
21 just to make sure your rights are protected, and I know you
22 feel --
23 MR. STULL: (Laughing continuously.)
24 THE COURT: We're getting you an attorney.
25 MR. STULL: See you guys later.

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1 THE COURT: Thank you.
2 MR. STULL: (Continues laughing.)
3 UNIDENTIFIED SPEAKER: (Indiscernible) good cause
4 to set over the arraignment, Your Honor.
5 THE COURT: I'm a little bit --
6 UNIDENTIFIED SPEAKER: He's in (indiscernible) right
7 now.
8 THE COURT: No, I understand that. I'm just --
9 Mr. MacNair, we didn't get through the basics of the
10 arraignment, did we, or did we?
11 MR. COULTER: This -- no, we did not, Judge.
12 THE COURT: Oh, all right. Well, I just -- I guess
13 I just wanted to get the attorney appointed and that done.
14 But I guess we'll have to set it over to another date.
15 MR. COULTER: We would prefer that an attorney
16 would be appointed so that he can at least try to contact
17 him, come over and see what he can do.
18 MR. MACNARI: I have no objection to that.
19 MR. COULTER: Perhaps persuade him to come in and
20 be arraigned.
21 THE COURT: Let's go ahead and do that. That's --
22 if we have that option available, let's do it.
23 MR. COULTER: So it's Kasia Rutledge on the felony,
24 Jane Fox on the misdemeanor.
25 THE COURT: All right, that's good.

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1 MR. COULTER: Counsel, did I --
2 THE CLERK: Putting in to Monday, the 30th --
3 THE COURT: Okay.
4 THE CLERK: -- at 10:10 in the morning
5 (indiscernible).
6 MR. COULTER: (Indiscernible).
7 MR. MACNAIR: I thought I did, but --
8 MR. COULTER: Maybe you did. Is this it right here?
9 MR. MACNAIR: Oh, yes, this is all -- the packet
10 right here, sorry.
11 MR. COULTER: So -- let's get all this to the
12 lawyers and let them know that he refused to be arraigned.
13 Thank you.
14 MR. MACNAIR: Monday is the 30th.
15 (Proceedings adjourned at 2:31 p.m., recommencing
16 in Volume 2, November 30, 2015.)
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25 ///

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1 CERTIFICATE OF TRANSCRIBER
3 I, Valori Weber, court-approved transcriber,
4 certify that the foregoing is a full and correct transcript
5 from the official electronic sound recording of the
6 proceedings in the above-entitled matter.
10 Valori Weber, CET-711
11 Weber Reporting Corporation
12 2755 Commercial Street SE, #101-216
13 Salem, OR 97302
14 970.405.3643
15
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17 Date: April 1, 2017
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 10 - 11
______________________________________________________________

came on regularly for hearing before the Honorable MICHAEL A.
GREENLICK, Judge of the Circuit Court, Monday, November 30,
2015 at the Multnomah County Courthouse, Portland, Oregon.
APPEARANCES

Steven W. Flinn, OSB #151018
1021 SW 4th Avenue
Portland, OR 97204

Metro Public Defender, Inc.
Portland, OR 97204
(503) 225-9100
tmacnair@mpdlaw.com

Salem, OR 97302
970.405.3643
10
1 PORTLAND, OREGON; MONDAY, NOVEMBER 30, 2015
2 -O0O-
3 (Call to Order of the Court at 10:59 a.m.)
4 THE COURT: Please be seated, folks.
5 MR. FLINN: And, Your Honor, the jail is requesting
6 a set-over on Mr. Stull. He's page 18, lines 2 and 3.
7 They're saying that if he's brought to court, force is going
8 to have to be used.
9 THE COURT: Mr. MacNair.
10 MR. MacNAIR: That's the gentleman we spoke to the
11 Court about.
12 THE COURT: And does he have a lawyer? Is
13 Mr. Rutledge his lawyer?
14 MR. MacNAIR: Yes.
15 THE COURT: Is there any objection?
16 MR. MacNAIR: No, Judge.
17 THE COURT: All right. I'll make a good cause
18 finding to set over the arraignment to another date because
19 of Mr. Stull's behavior in this matter.
20 THE CLERK: We'll set it over to tomorrow,
21 December 1st at 10:10 (indiscernible) on both cases.
22 (Proceedings adjourned at 11:00 a.m., recommencing
23 in Volume 3, December 1, 2015.)
24
25 ///

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14 970.405.3643
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 12 - 15
______________________________________________________________

GREENLICK, Judge of the Circuit Court, Tuesday, December 1,
APPEARANCES

Rebecca Freeman, OSB #065591
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3222
rebecca.freeman@mcda.us
Joseph S. Hagedorn, OSB #020560

Hagedorn Law
735 SW 1st Avenue, Suite 200
Portland, OR 97204
(503) 660-8299
joe@hagedornlaw.com

Salem, OR 97302
970.405.3643
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1 PORTLAND, OREGON; TUESDAY, DECEMBER 1, 2015
2 -O0O-
4 MR. HAGEDORN: Okay. On the 10:10 docket, page
5 13, lines 2 and 3; Stull, Barry, as to hold.
6 THE COURT: All right. So we're getting
7 information that we're having to transport by Mr. Stull by
8 force. He's not willing to come to court again; is that
9 correct?
10 MR. HAGEDORN: Yes.
11 THE COURT: And this is the second time -- day
12 we've had this difficulty; is that right?
13 MS. FREEMAN: Yes.
14 THE COURT: And he appeared in court last Friday,
15 it's my understanding, and wouldn't stop screaming in the
16 courtroom?
17 MS. FREEMAN: Yes.
18 THE COURT: All right. So, Mr. Hagedorn, a
19 suggestion is, I think to -- for the Court to find good cause
20 and set the arraignment on this matter until a time he would
21 normally be arraigned on the indictment that we're
22 anticipating occurs next -- would it be at the end of this
23 week; is that correct?
24 MS. FREEMAN: So would it normally be done -- the
25 indictment would be --

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1 THE CLERK: I can make sure that he's
2 (indiscernible) tomorrow.
3 MS. FREEMAN: It wouldn't be on the docket the
4 next day?
5 THE CLERK: He'd probably be on the docket the
6 next day, so that's on the 3rd.
7 MS. FREEMAN: And would we normally be able to do
8 it that quickly, to get the indictment?
9 THE CLERK: To get the indictment (indiscernible)?
10 MS. FREEMAN: Well, just to do the paperwork and
11 all that.
12 THE CLERK: To go in the jail?
13 MS. FREEMAN: For everyone.
14 THE CLERK: Yes. Yes.
15 MS. FREEMAN: Yes? Okay.
16 THE CLERK: I can let Crystal know that --
17 MS. FREEMAN: It's a special case.
18 THE CLERK: -- he's (indiscernible) to make sure
19 send the paperwork like she usually does on the 9:30
20 docket.
21 MS. FREEMAN: Okay.
22 THE CLERK: You know how we get them the day
23 before the paperwork gets there before that.
25 THE CLERK: Before 5:00.

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1 MS. FREEMAN: So that would be the 3rd.
2 THE CLERK: And at that time, I can get my
3 supervisor ready if he's unwilling to do it, to be ready to
4 do the jail arraignment.
6 THE CLERK: (Indiscernible) two days.
7 MR. HAGEDORN: Assuming is good cause is found.
8 It seems like that makes sense to set it over two days. My
9 cautious self would just set it over a day. But it may
10 make sense if we want to get it timed right, that he is --
11 that we set it over two days.
12 THE COURT: Why don't we set it over two days, and
13 we'll make sure to do the arraignment one way or the other
14 in two days, whether we have to go into the jail to do it,
15 or he might be willing to come here without being dragged.
16 So we'll do it at that point and we'll arraign him on the
17 indictment at that time if an indictment's returned. If
18 one's not returned, the case will be dismissed, so that
19 will be that.
20 THE CLERK: Okay. December 3rd at 10:10
21 (indiscernible).
22 THE COURT: Okay. I'll make a good cause finding.
25 ///

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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 16 - 25
______________________________________________________________

GREENLICK, Judge of the Circuit Court, Thursday, December 3,
APPEARANCES

Unknown
Defendant is present in custody

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1 PORTLAND, OREGON; THURSDAY, DECEMBER 3, 2015
2 -O0O-
4 UNIDENTIFIED SPEAKER: Okay, page 12, lines 3 and
5 4; Stull -- Barry Stull.
6 THE COURT: Hello, Mr. Stull. You're here for
7 arraignment on -- or first appearance on charges of
8 criminal trespass in one case; and assaulting a peace
9 officer, resisting arrest, criminal mischief, criminal
10 trespass in another case.
11 I'm going to appoint a lawyer to help you in these
12 cases.
13 THE DEFENDANT: I already have four lawyers.
14 THE COURT: Okay. Okay. Let's --
15 THE DEFENDANT: I was here on Friday -- well, let
16 me tell you. I came on November 25th. And I came in here
17 the Friday -- the same week, the day after Thanksgiving, and
18 I couldn't get a word in edgewise.
19 THE COURT: Okay.
20 THE DEFENDANT: I announced that I have
21 representation by a number of fellows. They're all
22 (indiscernible) at this point.
23 THE COURT: Okay.
24 THE DEFENDANT: And the issue is, to let you know,
25 I don't even know who you are, Your Honor.

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1 THE COURT: I'm Judge Greenlick.
2 THE DEFENDANT: So you've never seen me before,
3 have you?
4 THE COURT: Nope.
5 THE DEFENDANT: Okay, I've never seen you either.
6 But on my way here, the Corrections Officer who's in the
7 back, Bagley, I -- I said, "How's your old man," because
8 his father gave me (indiscernible) in the courthouse jail
9 (indiscernible) had chapped lips and (indiscernible),
10 right.
11 THE COURT: That's nice.
12 THE DEFENDANT: That's how kind people were.
13 My problem is, I have central pain syndrome.
14 THE COURT: Okay.
15 THE DEFENDANT: That's what it's called: central
16 pain syndrome. I'm trying to center myself because I just
17 had a disciplinary hearing where I'm on lockdown till
18 January 24th --
19 THE COURT: Okay.
20 THE DEFENDANT: -- for events that I did in cell
21 4D03.
22 THE COURT: Okay, that's unfortunate.
23 THE DEFENDANT: I was never in cell 4 -- 4D03.
24 THE COURT: Okay.
25 THE DEFENDANT: So they didn't get the cell right.

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1 So what I want to do, Your Honor, is I want to
2 schedule what I could do to -- these cases are completely
3 bogus.
4 THE COURT: Okay.
5 THE DEFENDANT: Of course, I can't do anything to
6 defend myself if I'm locked down until January 24th or
7 something --
8 THE COURT: That --
9 THE DEFENDANT: -- I didn't do.
10 THE COURT: That does make it tough.
11 THE DEFENDANT: So what I would like for you to
12 do, Your Honor --
13 THE COURT: Yes.
14 THE DEFENDANT: -- is I have -- I've already done
15 the release of information -- a communications information
16 specialist --
17 THE COURT: Okay.
18 THE DEFENDANT: -- because my condition called
19 central pain syndrome, has a quality called dysesthesia --
20 THE COURT: Okay.
21 THE DEFENDANT: -- that inhibits my ability to
22 even vocalize.
23 THE COURT: All right.
24 THE DEFENDANT: When I have a situation where I
25 can't even vocalize, and I'm getting signs that says touch

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1 your nose, no, touch your ear, and like I'll hear two
2 different officers telling me two different things just
3 before I walk into this room.
4 THE COURT: Okay.
5 THE DEFENDANT: Okay. So what I'd like to do, is
6 I'd like you, or your staff, to contact Mr. Rubal (ph) at
7 his phone number -- and I'll repeat it, but I'll say it now
8 -- (503) 545-0923. And I have a check in my mailbox at my
9 HUD housing is a person with my disability, which is a
10 neurological condition called central pain syndrome.
11 THE COURT: Okay.
12 THE DEFENDANT: And I would like to have that
13 $4800 check at least used to barter to get $1100 bail so I
14 can get out of here --
15 THE COURT: Okay.
16 THE DEFENDANT: -- and then we'll come back and I
17 will probably be able to communicate because I won't be
18 sick (indiscernible) all this --
19 THE COURT: Okay.
20 THE DEFENDANT: -- and I will actually give the
21 District Attorney all the case law that shows that none of
22 these things can really be prosecuted.
23 THE COURT: Okay. So, Mr. Stull, let me just -- I
24 appreciate what you're saying. We can't do any of that
25 here this morning. The purpose of arraignments, from a

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1 constitutional perspective --
2 THE DEFENDANT: Yes.
3 THE COURT: -- is just so you have notice of
4 what's going on.
5 THE DEFENDANT: Right. But I have to be able to
6 make a telephone call, Your Honor.
7 THE COURT: Okay. No, I get it.
8 THE DEFENDANT: (Indiscernible) in custody on the
9 25th of November.
10 THE COURT: But the only point today -- the only
11 thing you can accomplish today is giving you notice by
12 giving you a copy of the charges. So that's what we're
13 going to do. Who's the lawyer in the case?
14 UNIDENTIFIED SPEAKER: Judge, we're asking Kasia
15 Rutledge be appointed on the case (indiscernible) --
16 THE DEFENDANT: Your Honor, I already have a
17 lawyer.
18 UNIDENTIFIED SPEAKER: And we're asking that Jane
19 Fox be appointed on the case ending in 961.
20 THE COURT: Okay. Well, we'll try to consolidate
21 that at some point, but --
22 UNIDENTIFIED SPEAKER: And just for Mr. Stull's
23 information, my staff has actually noted everything you just
24 said. We work with Ms. Rutledge and Ms. Fox, and we will be
25 sure to give all that information to them to call.

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1 THE DEFENDANT: But the problem is, Harry Carson
2 has represented me on everything we've done at the 100
3 percent equivalent. He knows chapter and verse --
4 UNIDENTIFIED SPEAKER: We work with him.
5 THE DEFENDANT: -- my disability.
6 UNIDENTIFIED SPEAKER: We work with him.
7 THE DEFENDANT: Okay. So --
8 UNIDENTIFIED SPEAKER: He's in our office.
9 THE DEFENDANT: Okay, good. So why don't you tell
10 Harry Carson that I'm Justice Center --
11 UNIDENTIFIED SPEAKER: I will.
12 THE DEFENDANT: -- and I'm in lockdown until
13 January 24th.
14 UNIDENTIFIED SPEAKER: I will let him know.
15 THE DEFENDANT: And I simply want bail out and a
16 $4800 check in my mailbox now. My bail is only 1100.
17 UNIDENTIFIED SPEAKER: (Indiscernible).
18 THE DEFENDANT: Let me bail out today.
19 THE COURT: All right. Mr. Stull, we got it. We
20 got it. Okay.
21 THE DEFENDANT: Thank you.
22 UNIDENTIFIED SPEAKER: So --
23 THE DEFENDANT: Do you have the phone number for
24 Mr. Rubal?
25 THE COURT: Yes, we've got all the numbers.

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1 UNIDENTIFIED SPEAKER: We got it. My staff just
2 took it down.
3 THE DEFENDANT: Okay.
4 UNIDENTIFIED SPEAKER: So is this your full name
5 right there?
6 THE DEFENDANT: Let me tell you what my name is.
7 You can read it. My name is Barry Joe Stull.
8 UNIDENTIFIED SPEAKER: B-a-r-r-y J-o-e.
9 THE DEFENDANT: I'll spell it --
10 UNIDENTIFIED SPEAKER: Okay.
11 THE DEFENDANT: -- because here's what I'm trying --
12 I'm trying to (indiscernible). Okay, so --
13 UNIDENTIFIED SPEAKER: Why don't you let me talk
14 and then --
15 THE DEFENDANT: No, why don't you let me talk. You
16 read that paper and I'll tell you what my problem is.
17 My name is Barry, B-a-r-r-y. My middle name is
18 Joe, J-o-e. I was (indiscernible) by my father before --
19 UNIDENTIFIED SPEAKER: Is your last name S-t-u-l-l.
20 THE DEFENDANT: I will tell you if you just shut
21 up, please.
22 THE COURT: All right. Mr. Stull. Mr. Stull. No,
23 we don't talk like that here.
24 Why don't you proceed with the arraignment?
25 UNIDENTIFIED SPEAKER: Okay, thank you. Judge,

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1 we're --
2 THE DEFENDANT: Can't get a word in edgewise.
3 THE COURT: No, you've been pretty much talking the
4 whole time.
5 UNIDENTIFIED SPEAKER: We're in receipt of two
6 charging documents. One is (indiscernible) District
7 Attorney's information, case number ending in 961. The
8 second is a four-count DA's information, case number ending
9 749.
10 Mr. Stull is truly named. I'm not sure if his name
11 is spelled correctly. I'm not sure what his date of birth is.
12 THE COURT: That's fine.
13 UNIDENTIFIED SPEAKER: We'll be proceeding as
14 indicated in the charging document waiting for the reading
15 of advice of rights, invoking all rights that were read into
16 the record this morning, entering a not guilty plea on all
17 counts and requesting (indiscernible).
18 THE COURT: All right. Not guilty plea.
19 And dates, please?
20 THE CLERK: December 9th at 9:00 a.m. in JC-1.
21 Preliminary hearing on the felony, December 11th at 9:30,
22 JC-3.
23 THE COURT: All right. Mr. Stull, take care.
24 Mr. Stull, we may have you back here tomorrow
25 because there might be an indictment on one of these, but --

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24
1 so don't get confused.
2 THE DEFENDANT: I'm sorry, Your Honor. They're
3 talking to me over here, so I can't talk to both of you --
4 THE COURT: That's okay. We may need you tomorrow
5 too.
6 UNIDENTIFIED SPEAKER: And, Judge, are you finding
7 that that was truly named or --
8 THE COURT: Yes. I'm finding it was truly named.
9 UNIDENTIFIED SPEAKER: And, Judge, actually -- we
10 didn't actually address (indiscernible).
11 THE COURT: We'll deal with it tomorrow.
12 UNIDENTIFIED SPEAKER: Tomorrow?
13 THE COURT: Yeah.
14 UNIDENTIFIED SPEAKER: Okay, okay. So we can just
15 make a record that I did make a motion for Mr. Stull's
16 release today and I'm --
17 THE COURT: Let's just get him the paperwork.
19 THE COURT: The thing is, you know, there's a
20 statutory and probably constitutional right to have the
21 arraignment. We've been putting that off. We gave him
22 notice. We entered a not guilty plea. As far as release,
23 that can be another day. So we'll do that another day.

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13 Salem, OR 97302
14 970.405.3643
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17 Date: April 11, 2017
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25

Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 26 - 36
______________________________________________________________

came on regularly for hearing before the Honorable EDWARD J.
JONES, Judge of the Circuit Court, Friday, December 11, 2015
APPEARANCES

Jennifer Myrik, Esquire
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Portland, OR 97204
(503) 225-9100
tmacnair@mpdlaw.com
Defendant is present in custody

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PORTLAND, OREGON; FRIDAY, DECEMBER 11, 2015

1 -O0O-
3 UNIDENTIFIED SPEAKER: Page 14, line 3, Barry
4 Stull.
5 THE COURT: All right. Barry Stull.
6 All right. Mr. Stull, good morning.
7 THE DEFENDANT: Good morning, Judge Jones. How
8 you doing today?
9 THE COURT: Life's good. Mr. MacNair's from the
10 Public Defender Office, so you need to chat with him to get
11 things going.
12 THE DEFENDANT: Oh, okay. I thought Michael E.
13 Rose was going to represent me on this case, Your Honor.
14 THE COURT: Well, I'm -- he's just standing in, so
15 I don't know where we're going after today.
16 THE DEFENDANT: Well, yesterday at 2:00 p.m., my
17 friend Moses Rosen (ph), who was successfully represented
18 by Michael E. Rose, told me that he had an appointment with
19 Mike Rose, and that's who I think is probably going to
20 represent on these charges.
21 THE COURT: Well, here's what. If he turns up and
22 wants to do your case, happy to have him do it.
23 THE DEFENDANT: Well, we were scheduled for 9:30,
24 so you see been it's a couple hours, or it's been at least

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1 an hour.
2 THE COURT: If he'd been here, we would have --
3 but here's the story. Let's get you set up, and if he
4 wants to jump into the case, happy to have him in the case,
5 but I don't want you running around without a lawyer in the
6 meantime.
8 THE COURT: Fair enough?
9 THE DEFENDANT: Yeah.
10 THE COURT: Good. Talk to Mr. MacNair.
11 MR. MACNAIR: Good morning again, Mr. Stull.
13 MR. MACNAIR: Is this the correct spelling of your
14 name?
15 THE DEFENDANT: My name is Barry Joe stull. My
16 name is spelled B-a-r-r-y. My middle name is spelled J-o-
17 e. My last name is S-t-u-l-l. My date of birth is
18 September 24, 1958. I have no aka's. I have no other
19 birthdates. However, when I was booked on November 25th,
20 the Portland Police entered a birthdate of August 13, 1962,
21 which I've never used, but appears on my paperwork. And
22 they're also in 2009, the Portland Police entered Stully.
23 That's my last name. So I have that aka.
24 THE COURT: Mr. Stull, if they ever misspell your
25 name, it's an aka for life, right?

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1 THE DEFENDANT: We're going to get that straightened
2 out. The Federal Court said that that can actually be taken
3 care of.
4 THE COURT: Good, all right.
5 THE DEFENDANT: So we're going to find out how
6 that works.
7 THE COURT: I'm with you.
8 MR. MACNAIR: My client's name and birthdate are
9 correct in the first line. And we would move that the
10 record -- that the aka be stricken per statute, Your Honor.
11 We're asking that Kasia Rutledge be appointed to the case.
12 We reserve all rights. We waive further reading and advice
13 of right, ask that not guilty plea be entered in this
14 matter (indiscernible).
15 THE CLERK: Call June 15th at 9:00 a.m.
16 THE DEFENDANT: Your Honor, if I -- Your Honor?
17 THE COURT: Yes.
18 THE DEFENDANT: You might recall that Portland
19 Community Reinvestment Initiatives -- and I appeared before
20 you on a case -- a landlord-tenant case.
21 THE COURT: Years ago, yeah.
22 THE DEFENDANT: And there's a check. I never
23 cashed what you said was the settlement of $4,475. So
24 currently, I have a check for over $4800 in my mailbox. My
25 bail on this is only about -- I think it's only $1,000.

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1 And I don't know why I can't arrange to bail myself out
2 with the money that I have, but I can't get access to.
3 I've had quite a little difficulty in custody. I had my
4 first shower yesterday. I came into custody November 25th.
5 THE COURT: You and the appointed lawyer, or
6 Mr. Rose, if he takes the case are going to figure that out.
7 THE DEFENDANT: Well, the problem is, Your Honor,
8 I've already been through this routine because Ms. Rutledge
9 -- did you get that stack of paperwork -- I already had --
10 Ms. Rutledge has been appointed on this, and apparently
11 over at Metropolitan Public Defenders, they -- they had two
12 attorneys. One was Ms. Fox and the other was Rutledge.
13 And they got confused as to whether either of them or
14 neither of them represented me. So I do have -- I do have
15 material I do want to hand out to the attorney.
16 THE COURT: Go ahead.
17 THE DEFENDANT: And we'll see if we can get me
18 bailed out, Your Honor. Other than that, I'm ready to go
19 home.
20 THE COURT: I can understand that. All right. So
21 we've got some dates and we're going to move forward.
22 THE DEFENDANT: Oh, keep all that for Mr. Rose.
23 UNIDENTIFIED SPEAKER: You (indiscernible).
24 UNIDENTIFIED SPEAKER: Here's -- I don't know yet.
25 THE DEFENDANT: Pardon me?

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1 UNIDENTIFIED SPEAKER: Mr. Stull.
3 UNIDENTIFIED SPEAKER: The only person I can give
4 this to is Ms. Rutledge.
5 THE DEFENDANT: Give that to my attorney, and I'll
6 get it when I get out this afternoon on bail.
7 UNIDENTIFIED SPEAKER: As long as we understand
8 it's not going directly to Mr. Rose. It's going directly
9 to Ms. Rutledge.
10 THE DEFENDANT: Okay. And I did get that notice
11 of exclusion from city -- I'm permanently excluded from
12 Portland City Hall, Your Honor, based on a document I
13 received yesterday that was dated December 1st. So there
14 is a little slack in the rope, I'll say.
15 THE COURT: Yeah, it will work out.
16 THE DEFENDANT: Well, it's not working out for me
17 because I have a neuropathic pain condition. I'm not
18 getting any medical treatment. They don't -- they don't
19 allow Dronabinol, which is actually a federally approved --
20 it's actually THC in a gelatin capsule you can get at
21 Walgreen's, like I've done before.
22 MR. MACNAIR: (Indiscernible).
23 THE DEFENDANT: And so I'm not getting treatment
24 for my -- my very difficult to manage neuropathic pain
25 condition.

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1 MR. MACNAIR: Mr. Stull, I would like to ask --
2 THE COURT: Talk to your lawyer.
3 MR. MACNAIR: -- the Judge to release you, if you
4 would give me a minute to do that.
5 THE DEFENDANT: Okay. If you could, yeah.
6 MR. MACNAIR: If you'll just give me a minute to
7 do that.
8 THE DEFENDANT: That's fine.
9 MR. MACNAIR: May I -- if anybody has any
10 information about Mr. Stull medical history or
11 (indiscernible).
12 THE COURT: I don't have a copy of a recog
13 interview here.
14 MR. MACNAIR: His felonies go back 24 years, so I
15 would ask the Court to drastically discount those in
16 weighing his criminal history.
17 THE DEFENDANT: And marijuana's level now and
18 that's what they were for.
19 THE COURT: Right. Things have changed.
20 So what's the State's position, by the way?
21 MS. MYRIK: (Indiscernible).
22 THE COURT: And I think that's where I am too,
23 Mr. MacNair. Partially because --
24 And frankly, Mr. Stull, when I get the recog
25 interview and it's all declined to answer, it kind of puts

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1 me in a touch situation.
2 THE DEFENDANT: I never had a recog interview,
3 Your Honor.
4 THE COURT: Well, I'm looking at one that was
5 done, let's see --
6 THE DEFENDANT: Not since I came in November 25,
7 2015.
8 THE COURT: This one was done 11/25/15.
9 THE DEFENDANT: No, Your Honor. I never had a
10 recog interview.
11 THE COURT: Well, actually, the recog guy kind of
12 agrees, because he says Defendant declined to answer
13 everything. But I'm asking --
14 THE DEFENDANT: Well, I never had any contact to
15 be in a position to decline to answer, Your Honor.
16 THE COURT: Well, there you go. I'm going to ask
17 them to take another run at you.
18 THE DEFENDANT: How long is that going to take?
19 THE COURT: It might take a week.
20 THE DEFENDANT: Well, how about if I just bail
21 out?
22 THE COURT: Can't stop you.
23 THE DEFENDANT: Okay. Can anybody out there raise
24 $1,000 so I can bail out, because I don't want a spend a
25 week in -- another week in, all right. I've a check for

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33
1 $4800 in my mailbox. It's kind of silly, you know what I
2 mean?
3 MS. MYRIK: And, Judge, I would request no entry
4 into to Portland City Hall if he is released.
5 THE COURT: I think --
6 MS. MYRIK: I believe --
7 THE COURT: -- he already has that restriction.
8 MS. MYRIK: He has been excluded, but just as a
9 release condition, also requesting --
10 THE DEFENDANT: Oh, it's permanent exclusion, Your
11 Honor.
12 MS. MYRIK: -- that if he does --
13 THE DEFENDANT: It's a lifetime for me.
14 THE COURT: Shh.
15 MS. MYRIK: -- he does bail out, he'd be required
16 to report to PRS. He has three failures to appears this
17 year.
18 THE COURT: Yeah, that's fine. All right.
19 Mr. Stull.
20 THE DEFENDANT: Yes, Your Honor.
21 THE COURT: Step one, I've asked the release
22 people to come and talk to you. That's -- like I say, it
23 won't happen today.
24 Step number two. If you bail out -- and your
25 lawyer may be able to help work that out -- if you do bail

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1 out, you need to report to PRS, the release people --
2 THE DEFENDANT: I know how to do all that stuff,
3 Your Honor.
4 THE COURT: Good.
5 THE DEFENDANT: I've been convicted before,
6 remember.
7 THE COURT: Well, I --
8 THE DEFENDANT: Marijuana, it's now legal. And I
9 was prison for a year and a half on that --
10 THE COURT: Sure, but that's all ancient history.
11 THE DEFENDANT: Yeah, but I know how the system
12 works, Your Honor.
13 THE COURT: Good. And finally, I'll add my stay
14 out of City Hall to their stay out of City Hall.
15 THE DEFENDANT: Yeah, well, that was kind of
16 bogus.
17 THE COURT: Yeah, well, what you can do?
18 THE DEFENDANT: Well, I can appeal, except I want
19 a note on the record that the paperwork was received
20 yesterday, and my deadline was, I think December 5th.
21 THE COURT: Yeah.
22 THE DEFENDANT: So I missed my deadline to appeal
23 on that, so it's kind of an uphill battle.
24 THE COURT: Well, or you can beat it if they
25 didn't give you timely notice.

Salem, OR 97302
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1 All right. We're done for now. You take care.
2 THE DEFENDANT: All right. Thank you, Your Honor.
4 in Volume 6, January 28, 2016.)
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13 Salem, OR 97302
14 970.405.3643
15
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17 Date: April 11, 2017
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 37 - 44
______________________________________________________________

JONES, Judge of the Circuit Court, Thursday, January 28, 2016
APPEARANCES

Jeffrey D. Auxier, OSB #062634
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-5445
jeffrey.auxier@mcda.us
Kasia E. Rutledge, OSB #084590

Portland, OR 97204
(503) 225-9100
krutledge@mpdlaw.com
Defendant present in custody

Salem, OR 97302
970.405.3643
37
1 PORTLAND, OREGON; THURSDAY, JANUARY 28, 2016
2 -O0O-
4 THE COURT: Have a seat, everybody. Good morning.
5 THE DEFENDANT: Good morning, Judge Jones. My
6 name's Barry Joe Stull, and I'm moving that I don't appear
7 before you. State Ex Rel Caforia vs. Jones (ph). I cannot
8 get a fair hearing in front of you, so we're going to have
9 to get this moved to a different judge.
10 THE COURT: Well, we can talk about that. Let's
11 get the case on the record to start.
12 MR. AUXIER: This is the time and date set for a
13 hearing in the matter of State vs. Stull. The case numbers
14 are 15CR53749 and 15CR52961. Jeff Auxier for the State,
15 062634. The State is ready to proceed.
16 MS. RUTLEDGE: And good morning, Your Honor.
17 Kasia Rutledge, R-u-t-l-e-d-g-e, Oregon State Bar 084590,
18 here on behalf of Mr. Stull.
19 And there are two cases. The one that I represent
20 him on is 15CR53749. This is the State -- excuse me --
21 Mr. Stull's motion for new counsel. This is a misdemeanor
22 case that's tracking along with the felony case.
23 Currently, Bryan Francesconi is the attorney on that case,
24 15CR52961.
25 THE COURT: And, you know, I'll say that technically

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1 I don't think there is any basis for -- you know, there isn't
2 a right to an affidavit on these facts. But Mr. Stull and I
3 do go back a ways. I had a long-running civil case in which
4 he out of custody litigated. And I've had other contacts
5 with him, brief, nothing substantial, other than that case.
6 But frankly, I don't have a problem with simply
7 recusing myself from Mr. Stull's cases. You know, it's not
8 clear to me that it's going to work out any differently,
9 but frankly, I just don't see the need to force myself on
10 Mr. Stull because I'm confident that it will work out
11 somewhere else.
12 Now, so I'm happy to simply go ahead and say, I'm
13 not going to have anything further to do with it if that's
14 where you guys are.
15 On the other hand, if we can -- I don't know what
16 the problem is with the lawyers and, you know, I'm happy to
17 talk about that too if you want to get into that, Mr. Stull.
18 THE DEFENDANT: Yes, Your Honor. I'll restate the
19 standard is State Ex Rel Caforia vs. Jones. I do not have
20 to appear in front of a judge that I will not have a fair
21 hearing in front of, and that is you.
22 And part of the problem, Your Honor, is when I
23 appeared in your court on December 11, 2000 --
24 THE COURT: Remember, you've already won this
25 motion.

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1 THE DEFENDANT: I'm stating the facts on the
2 record because that's important.
3 December 11, 2015, I appeared in front of you in
4 the Justice Center -- I believe it was JC-3 -- but on this
5 case. And I informed you at the time that I had a check
6 for $4800 in my mailbox, which was a product of my not
7 cashing the check for $4,475, which you awarded as damages
8 for the over $20,000 worth of damages that I --
9 THE COURT: That was in the civil case, the
10 landlord-tenant case.
11 THE DEFENDANT: The civil case, right.
12 THE COURT: Right.
13 THE DEFENDANT: And that was destroyed in 2006,
14 and the check was cut by Gales Creek Insurance in 2010. I
15 did not accept that because accepting that check would have
16 been satisfaction.
17 And I did not get my damages under the Landlord-
18 Tenant Act. You found that although they did and I was
19 without those funds, that that was not contempt of court.
20 And a contempt of court proceeding was issued by presiding
21 Judge Dale Koch. That's how I appeared before you on that
22 case.
23 And Ms. Rutledge informed me at the only phone call
24 where she actually called me on January 5th, she had a
25 conversation with you, and you said that the Oregon State

Salem, OR 97302
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1 Lands check that I talked to you specifically about being a
2 product of my not cashing that 2000 check -- I told you that
3 on December 11, 2015, I had this check -- you, according to
4 Ms. Rutledge, said that that check wasn't any good.
5 THE COURT: Well, what I said --
6 THE DEFENDANT: That's what she said --
8 THE DEFENDANT: -- and that's what you two can
9 work out because neither of you are working legally --
11 THE DEFENDANT: -- to protect my constitutional
12 rights. And that's why I have stated my points on the
13 record.
14 THE COURT: And I'm --
15 THE DEFENDANT: So if we can get this to another
16 judge, I would be happy to go back to my cell for another
17 two months, because I know I'm not guilty, and that's why
18 the plea offer on this case was two years bench probation.
19 That's why I rejected it, because I was not guilty, and I
20 have integrity.
21 THE COURT: And --
22 THE DEFENDANT: And that's why I didn't cash the
23 $4,775 check because that was a product of not only the
24 fraud on the court by PCRI, but your fraud in saying that
25 the parties allowed you to decide the damages, when both

Salem, OR 97302
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41
1 parties, in fact, demanded a jury trial.
2 So I have made my point. I am a person with a
3 disability. It's called central pain. You know about that.
4 THE COURT: I do.
5 THE DEFENDANT: And I need to be well. And
6 nothing about being arrested, nothing about being
7 mishandled, nothing about having Ms. Rutledge, and
8 apparently Mr. Francesconi, who's never contacted me in any
9 manner, and nothing about having you as a judge is
10 salubrious environment for me. It all actually sickens me.
11 So we might add that ORS 659A.142 makes the
12 entirety of these proceedings a violation of my rights
13 protected because the State is engaging in disability
14 discrimination that is the product of the City of Portland,
15 which arrested me illegally on the 25th of November, 2015.
16 And the Multnomah County Sheriff is giving me
17 nothing to treat my central pain condition, which is a
18 neurological condition, which is well document. So without
19 medicine, without my freedom, without counsel, and in front
20 of a judge that I know is absolutely, absolutely incompetent,
21 all due respect to the office, I need to have this proceeding
22 done in front of a competent judge.
23 THE COURT: Well, I can certainly get you another
24 judge. I won't make any assessment about the competence
25 issues, and happy to do that, as I said when I came out.

Salem, OR 97302
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1 And so no problem.
2 THE DEFENDANT: And just on a personal note, Your
3 Honor. It's no secret that for years and years and years,
4 I've been trying to have you prosecuted for official
5 misconduct.
6 THE COURT: So far not very successfully.
7 THE DEFENDANT: No, they've been arresting me
8 instead.
10 MS. RUTLEDGE: Your Honor, I have a procedural
11 question. Do you believe that Your Honor will be able to
12 get another judge this morning, or do we need to set this
13 for a different date in front of a different judge?
14 THE COURT: Well, if there's someone who could
15 hear it this morning, that would be best, I assume.
16 Would you check with CPC and see if Judge
17 Bergstrom can hear it, or if he can find someone else who
18 would hear it? That would be clearly, you know --
19 MS. RUTLEDGE: Yes.
20 THE COURT: -- just to save another trip across
21 the street for everybody. So if there's a possibility that
22 we can get that heard this morning, that would make a lot
23 of sense, and I'm happy to see what we can do about making
24 that happen.
25 MS. RUTLEDGE: Thank you, Your Honor.

Salem, OR 97302
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43
1 THE COURT: So I'm going to do a minute order
2 recusing myself from Mr. Stull's matters, and so then he
3 won't have to appear in front of me on any of these
4 matters. And we'll simply let Judge Bergstrom see if he
5 can find a home for this.
6 Pleasure talking to you.
7 THE DEFENDANT: See you in court.
9 in Volume 8, February 5, 2016.)
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Salem, OR 97302
970.405.3643
44
13 Salem, OR 97302
14 970.405.3643
15
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17 Date: April 21, 2017
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 45 - 52
______________________________________________________________

came on regularly for hearing before the Honorable JERRY B.
HODSON, Judge of the Circuit Court, Friday, February 5, 2016
APPEARANCES

Todd Jackson, OSB #114240
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162
todd.jackson@mcda.us

Portland, OR 97204
(503) 225-9100

Salem, OR 97302
970.405.3643
45
1 PORTLAND, OREGON; FRIDAY, FEBRUARY 5, 2016
2 -O0O-
4 THE CLERK: Circuit Court is now in session, the
5 Honorable Jerry B. Hodson presiding.
6 THE COURT: Good morning. You may go ahead and
7 call the case.
8 MR. JACKSON: Thank you, Your Honor. We're here in
9 the matter of State vs. Barry Stull, case number 15CR53749.
10 For the State, Todd Jackson, Bar Number 114240. The
11 Defendant's present in custody with counsel, Ms. Rutledge.
12 This is the time and place set for a substitution of
13 attorney hearing. Ready to proceed.
14 THE COURT: All right. Thank you, Mr. Jackson.
15 And good morning, Ms. Rutledge.
16 MS. RUTLEDGE: Good morning, Your Honor. Kasia
17 Rutledge, R-u-t-l-e-d-g-e, Oregon State Bar 084590, here on
18 behalf of Mr. Stull.
19 And there are two cases in front of Your Honor.
20 The first one that Mr. Jackson mentioned, and there's also
21 a tracking misdemeanor, 15CR52961. Mr. Bryan Francesconi
22 is the attorney of record on that case. He is out of
23 paternity leave, so he asked me to track that case with our
24 case.
25 And Mr. -- we're here on Mr. Stull's motion for

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1 new counsel.
2 THE COURT: Okay. And good morning, Mr. Stull.
3 THE DEFENDANT: Judge Hodson, I came into custody
4 November 25th, and at that time, I still had our case from
5 2012 under appeal in the Oregon Court of Appeals.
6 THE COURT: I'm sorry, what does that have to do
7 with your substitution of attorney?
8 THE DEFENDANT: I'm just curious if knowing that,
9 you could give me a fair hearing today.
10 THE COURT: So I feel like I can, but you tell me
11 whether or not you feel that way.
12 THE DEFENDANT: Well, the issue on that appeal,
13 Your Honor, was that the Portland Police refused to accept
14 my defense witness subpoenas, and you allowed that. You
15 wouldn't give me a continuance --
16 THE COURT: Okay.
17 THE DEFENDANT: -- knowing that they had violated
18 both the constitution and the statute.
19 THE COURT: Okay. So you've got to tell me what
20 your view is.
21 THE DEFENDANT: Well --
22 THE COURT: I don't mean about that case. Here's
23 the question.
25 THE COURT: You've raised what I'm interpreting as

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1 being whether or not I can be fair and impartial today.
2 THE DEFENDANT: Right.
3 THE COURT: I think I can. I felt like I was fair
4 to you the first time around back in whatever year that
5 was, and I'm willing --
6 THE DEFENDANT: Well, it was 2012.
7 THE COURT: -- and I'm willing to do so again.
8 There are always issues in a case that people can appeal,
9 and that's for the Court of Appeals to decide. And if they
10 decide that you're right about whatever it is that you've
11 raised on appeal, they'll make that decision. If they
12 don't, they won't. But that doesn't have anything to do
13 with what we're here about today. And it won't affect in
14 any way what I'm doing today. I didn't even remember that
15 you had appealed.
16 So anyway, fine. I mean, lots of people appeal my
17 decisions every day. It doesn't affect me.
18 So -- but the question I have is of you, whether
19 you think that I'm not going to be able to fair and
20 impartial, because if so, I may do something based on that.
21 So what's your view?
22 THE DEFENDANT: Well, here's my situation, Your
23 Honor. If I can kind of cover more than one issue so we
24 don't waste the Court's time.
25 THE COURT: Well, so this --

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1 THE DEFENDANT: I --
2 THE COURT: -- that was a yes or no question. In
3 other words, as a preliminary -- before we get into the
4 specifics of why you want a substitution of attorney, we
5 have to decide if I'm the judge that's going to decide
6 that.
8 THE COURT: So answer me yes or no whether or not
9 you think that I can be fair and impartial.
10 THE DEFENDANT: No, I don't think you can be fair.
11 THE COURT: Okay. So then we'll assign a
12 different judge.
13 THE DEFENDANT: Okay. Well, here's my issue on
14 that.
15 THE COURT: Yeah.
16 THE DEFENDANT: I already had Judge Jones on
17 January 28th.
18 THE COURT: That's because you did the same thing
19 you're doing today.
20 THE DEFENDANT: Right. And that's because --
21 THE COURT: So that's going to --
22 THE DEFENDANT: -- I can't get a fair hearing.
23 I'm a person with a disability, Your Honor.
24 THE COURT: It's because you don't think you can.

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1 THE COURT: Whether or not you can or not is
2 another question.
3 THE DEFENDANT: Well, and I think the
4 constitution, it says the police have to -- I'm allowed to
5 have defense witnesses. The statute says the police have
6 to accept my subpoenas. You specifically did not allow me
7 to have my defense witnesses. That's not fair. That's not
8 fair under the Oregon Constitution. But specifically, it's
9 a matter of statute. And as a person with a disability --
10 I have one, it's a neurological condition, and Ms. Rutledge
11 has no idea what it is because she has never had a
12 conversation with me.
13 And what I'm going to express to you, is I was
14 offered a two-year bench probation. That's no jail time.
15 And all I had to do, Your Honor, was plead guilty to
16 something that I know I'm going to prevail on in court.
17 But I'm not going to prevail on it in court if I never get
18 to court because I keep going in front of judges that I
19 feel are not fair, which is clearly enough for everybody to
20 understand.
21 So if you can recuse yourself, and we can schedule
22 another judge so I can get another attorney, I won't spend
23 the rest of my life waiting to go to a trial where I know
24 I'm going to win.
25 THE COURT: Mr. Jackson, with regard to the issue

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1 of recusal, anything that you want to say or weigh in about
2 in that regard?
3 MR. JACKSON: Um.
4 THE COURT: You don't have to. I just --
5 MR. JACKSON: Yeah, I --
6 THE COURT: -- I'm giving you the opportunity
7 before I make the decision.
8 MR. JACKSON: I don't really have anything to add,
9 Judge.
10 THE COURT: Okay. And, Ms. Rutledge, anything you
11 want to say?
12 MS. RUTLEDGE: Just that it sounds clear that my
13 client is asking for it, and so I would support it.
14 THE COURT: Yeah, and I'll grant that request.
15 Not because I don't think I can be fair and impartial. I
16 think I'll be as fair and impartial as any other judge in
17 this courthouse about this issue. So -- but that means
18 that we'll set it before another judge.
19 So I think the way this works, because the chief
20 criminal judge has recused himself at the Defendant's
21 request, is this will go back on the call docket --
22 MS. RUTLEDGE: That's correct, Your Honor.
23 THE COURT: -- on Monday morning to be sent out to
24 yet another judge on Tuesday.
25 MS. RUTLEDGE: And is it possible for Your Honor

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1 to set that on Monday because it's too late for us to set
2 something on Monday today? We would have to set it on
3 Tuesday. We're not allowed to set anything past 10:00 a.m.
4 THE COURT: Dan, do you know if I can do that?
5 I've been told many times I can do whatever I want. I don't
6 believe that.
7 THE CLERK: I can try to do it.
8 THE COURT: Okay.
9 THE CLERK: If not (indiscernible).
10 THE COURT: So we'll set that for Monday on call.
11 And if for some reason, for whatever reason, we can't,
12 we'll advise you. So plan on that.
13 MS. RUTLEDGE: Thank you, Your Honor.
14 THE COURT: So that will Monday for Tuesday on
15 morning call.
16 All right. We're in recess.
17 MS. RUTLEDGE: Thank you.
18 THE COURT: Yeah.
20 in Volume 9, February 9, 2016.)
21
22
23
24
25 ///

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13 Salem, OR 97302
14 970.405.3643
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16
17 Date: April 11, 2017
18
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25

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STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 53 - 91
______________________________________________________________

came on regularly for hearing before the Honorable
CHRISTOPHER J. MARSHALL, Judge of the Circuit Court, Tuesday,
February 9, 2016 at the Multnomah County Courthouse,
Portland, Oregon.
APPEARANCES

Todd Jackson, OSB #114240
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162
todd.jackson@mcda.us

Portland, OR 97204
(503) 225-9100

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1 PORTLAND, OREGON; TUESDAY, FEBRUARY 9, 2016
2 -O0O-
4 THE COURT: Please be seated.
5 MR. JACKSON: All right. We're here in the matter
6 of State vs. Barry Stull, case number 15CR53749 and
7 15CR52961. For the State, Todd Jackson, Bar Number 114240.
8 The Defendant's present in custody with counsel,
9 Ms. Rutledge. This is the time and place set for a
10 substitution of attorney hearing and we're ready to proceed.
11 THE COURT: Okay. Good morning.
12 MS. RUTLEDGE: Good morning, Your Honor. Kasia
13 Rutledge, R-u-t-l-e-d-g-e, Oregon State Bar 084590, here on
14 behalf of Mr. Stull.
15 And as I understand it, Your Honor, there are
16 three matters basically in front of Your Honor. And
17 procedurally, it might make sense to take them kind of out
18 of order.
19 THE COURT: Okay.
20 MS. RUTLEDGE: The three matters in front of Your
21 Honor are, first, the State, I believe, is moving to dismiss
22 the previous indictment on this case. And then arraign
23 Mr. Stull on a misdemeanor indictment. He has copies in
24 front of him. I believe Your Honor has copies as well.
25 THE COURT: Okay.

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1 MR. RUTLEDGE: The second matter is if when Your
2 Honor does that, dismisses the indictment and proceeds on
3 the information, if I am still Mr. Stull's attorney at that
4 point in time, we will be moving for his release on the
5 misdemeanor information.
6 And then the third matter, which is the original
7 matter we're here on, is Mr. Stull is requesting a new
8 attorney.
9 THE COURT: Okay.
10 MR. RUTLEDGE: That will be accomplished one way
11 or the other, because I won't be proceeding on the
12 misdemeanor case no matter what. The question then becomes
13 do his cases stay within my firm, or do they go outside to
14 a different firm.
15 THE COURT: Okay, all right.
16 And, Mr. Stull, you're doing okay today?
17 THE DEFENDANT: Your Honor, I have a disability.
18 It's two words, central pain; third word, dysesthesia.
19 THE COURT: Okay.
20 THE DEFENDANT: Today I'm experiencing some nausea.
21 And that's really a product of my learning yesterday that
22 when I appeared in front of Judge Waller, that she didn't
23 get my mail I sent out from Multnomah County Detention
24 Center.
25 THE COURT: Oh.

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1 THE DEFENDANT: That's a little stressful --
2 THE COURT: Yes.
3 THE DEFENDANT: -- to learn that.
4 THE COURT: Okay.
5 THE DEFENDANT: And --
6 THE COURT: But it sounds like we're going to make
7 some --
8 THE DEFENDANT: Yeah, so --
9 THE COURT: -- good progress for you today though.
10 THE DEFENDANT: And I've been in custody without
11 medical treatment since the day before Thanksgiving.
12 THE COURT: Well, it sounds like we might be able
13 to -- we might be able to fix that, right?
14 THE DEFENDANT: Well, and the other -- the other
15 matter, Your Honor, is I have my housing through a HUD grant.
16 THE COURT: Okay.
17 THE DEFENDANT: And I have a worker. And when I
18 did my, whatever they're calling the pretrial supervised
19 release --
21 THE DEFENDANT: -- I gave her as my contact.
22 THE COURT: Okay.
23 THE DEFENDANT: They did the pretrial supervised
24 release. I got my report form. I had to request from the
25 firm. They didn't send it in automatically. But I

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1 requested it and I got that. And he said in his report
2 that I had no verifiable contacts with the community.
3 And then I got a letter -- well, it was just -- it
4 was just -- I think it was January 27th, she wrote it and
5 she said she just learned that I was in custody, my worker
6 that I gave as one of my contacts in the community. So
7 basically, they never even contacted my contact --
8 THE COURT: Oh.
9 THE DEFENDANT: -- or my contact would have known.
10 So I'm just -- I'm just letting you know that none of these
11 things are healthy for me.
12 THE COURT: Right, right.
13 THE DEFENDANT: All right, because I have --
14 THE COURT: Well, let's do --
15 THE DEFENDANT: -- I have every intention in
16 prevailing at trial on these matters --
17 THE COURT: Yes. Well, let's try --
18 THE DEFENDANT: -- so --
19 THE COURT: -- to do some things that are healthy
20 for you, okay.
21 THE DEFENDANT: All right, thank you.
22 THE COURT: Because it sounds like we're -- the
23 State's moving to dismiss the felony count here, the
24 assault on a public safety officer. So we can sign off on
25 that dismissal of that charge.

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1 And then that -- what that does, is it moves it
2 forward to where we can talk about having you go out of
3 custody because all you've got pending then is the
4 misdemeanors, right? And so then --
5 THE DEFENDANT: Apparently, yes.
6 THE COURT: What?
7 THE DEFENDANT: I said apparently.
8 THE COURT: All right. And so then what happens
9 is, Ms. Rutledge here who's currently your lawyer, it would
10 be a different lawyer representing you, if you want a
11 lawyer. You'll have misdemeanors pending. And so if you
12 want a lawyer, then what would happen at her office -- at
13 the Public Defender's office, they would have a different
14 lawyer representing you because Ms. Rutledge does felonies.
15 And so now it would be a different lawyer and -- so do you
16 want to have a lawyer if it's now misdemeanors only that
17 would be pending?
19 THE COURT: Do you want a lawyer, or do you want
20 to represent yourself?
21 THE DEFENDANT: Thank you for -- thank you for --
22 bear with me for a moment, Your Honor.
23 THE COURT: Sure.
24 THE DEFENDANT: I'm ill. My problem is that I
25 don't break the law.

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1 THE COURT: Okay.
2 THE DEFENDANT: My Supreme Court case was Stull vs.
3 Hoke, 1997, right, so I know a little bit about the law.
4 THE COURT: Okay.
5 THE DEFENDANT: Okay. Then as I come into these
6 procedures, I'm treated as an ugly duckling when I'm
7 actually a beautiful swan.
8 THE COURT: Okay.
9 THE DEFENDANT: Okay. So I know more about the
10 facts of the case, which Ms. Rutledge doesn't even know that
11 I was a crime victim the day before I was arrested, because
12 we've never had an interview about the facts in my case --
13 THE COURT: Okay.
14 THE DEFENDANT: -- since the day before
15 Thanksgiving, November 25th. That's my problem with the
16 firm.
17 THE COURT: Uh-huh.
18 THE DEFENDANT: A couple of days before that on
19 Sunday, the 22nd of November, I was arrested exiting the
20 emergency room at Emanuel Hospital, which was the second
21 time within four days that I was treated for my central
22 pain syndrome.
23 THE COURT: Uh-huh, and that's why you have two
24 cases pending, right? One --
25 THE DEFENDANT: Right. Well --

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1 THE COURT: -- you got arrested at the hospital.
2 THE DEFENDANT: -- just to let -- let you know --
3 THE COURT: Yeah.
4 THE DEFENDANT: -- give you a little behind the --
5 behind the scenes going on here, that case, the Emanuel
6 Hospital case, was assigned to Multnomah Public -- or
7 Metropolitan Public Defender, Jane Fox.
8 THE COURT: Okay.
9 THE DEFENDANT: I called her on December 8th. She
10 said, "Boy, you're hard to get a hold of. You have court
11 tomorrow." And I said, "Yes, I do." And she says -- I
12 said, "And you're my attorney." And she says, "No, I'm
13 not, that's Ms. Rutledge's case."
14 THE COURT: Okay.
15 THE DEFENDANT: Well, in fact, the Court assigned
16 Ms. Fox that case.
17 THE COURT: Okay. So --
18 THE DEFENDANT: Then --
19 THE COURT: -- well, let me ask you a question.
20 THE DEFENDANT: -- since then -- wait, if --
21 THE COURT: So -- so let me ask -- it sounds like
22 maybe, do you not want a lawyer?
23 THE DEFENDANT: Well, let me cut to the chase here.
24 THE COURT: Okay.
25 THE DEFENDANT: I don't want to let you off in the

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1 -- without telling you my point.
2 So then I was scheduled to go to court on the 12th
3 of December. I was not transported to court from being in
4 custody.
5 THE COURT: Okay.
6 THE DEFENDANT: I then found out that months
7 later, literally, that the case was assigned to Bryan
8 Francesconi.
9 THE COURT: Yeah.
10 THE DEFENDANT: And he's with their firm also.
12 THE DEFENDANT: And I got my discovery on the
13 November 22nd case sent to me this calendar month, February.
14 THE COURT: Okay.
15 THE DEFENDANT: So as a person who knows that I
16 don't break the law and knows that I'm going to prevail at
17 court on these --
18 THE COURT: Yeah.
19 THE DEFENDANT: -- if I ever get a trial, the
20 thing that I don't need is an attorney who does not at all
21 take any interest in my wellbeing --
22 THE COURT: Okay.
23 THE DEFENDANT: -- my status, the facts of my case.
24 THE COURT: Okay.
25 THE DEFENDANT: And that's why I'm here on a

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1 motion to substitute my counsel because my counsel could
2 not even tell you what my disability is --
3 THE COURT: Okay.
4 THE DEFENDANT: -- when that's essential to my
5 defense.
6 THE COURT: Okay.
7 THE DEFENDANT: Okay. My counsel couldn't, on
8 either of these cases, tell you what the defenses are to my
9 cases, because part of my defenses would be incorporated in
10 State vs. Marbet, which says that you can't arrest somebody
11 for trespass in violation of civil rights that are protected
12 a person with a disability. So --
13 THE COURT: Well, so here's the beautiful thing for
14 you. You're here to substitute your lawyer, but your
15 lawyer's going to get substituted anyway --
16 THE DEFENDANT: Okay. So --
17 THE COURT: -- because the felony's gone.
19 THE COURT: So now the choice is, do you want to
20 represent yourself or do you want a different lawyer from
21 Ms. Rutledge's office? Those are -- you choose. Number one
22 or number two?
23 THE DEFENDANT: Well, what I would prefer would be
24 that I have somebody that can assist me with obtaining
25 discovery on my behalf --

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1 THE COURT: Okay.
2 THE DEFENDANT: -- which would be the 9-1-1 calls;
3 which would be my medical records; which would be getting my
4 expert witness, my neurologist; getting the Emanuel Hospital
5 emergency room doctor --
6 THE COURT: Okay.
7 THE DEFENDANT: -- if they want to pursue this.
8 And --
9 THE COURT: So you want some help with discovery.
10 So you want a lawyer for that part of it then, right?
11 THE DEFENDANT: And --
12 THE COURT: Is that right? Okay.
13 THE DEFENDANT: -- I also know, chapter and verse,
14 these people. I know these people that were --
15 THE COURT: What people? What people?
16 THE DEFENDANT: Oh, for example, on the -- on the
17 -- excuse me, I'm ill -- Officer Engstrom. Okay, he --
18 THE COURT: Oh, oh, I thought you meant the
19 lawyers. Okay.
20 THE DEFENDANT: No, no, no. Well -- and some of
21 them too.
22 THE COURT: Yeah.
23 THE DEFENDANT: For example, State vs. Gaines (ph),
24 which we talked about in the court all the time because
25 that's how you interpret a statute. That's Harry Carson's

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1 case. And Harry represented me on a couple of cases --
2 THE COURT: Okay.
3 THE DEFENDANT: -- where I was found not guilty.
4 He's with Metropolitan --
5 THE COURT: How'd that go? Was that okay? Did you
6 get along with him okay?
7 THE DEFENDANT: He can't take my case.
8 THE COURT: No, I know. I'm just asking -- I'm
9 just asking you in general.
10 THE DEFENDANT: To be honest --
11 THE COURT: How did that go? Did you get along
12 with him okay?
13 THE DEFENDANT: To be honest with you, I was
14 tugging Harry's pant leg saying State vs. Marbet, disability
15 and --
16 THE COURT: Got you.
17 THE DEFENDANT: Wait. Please.
18 THE COURT: Yeah.
19 THE DEFENDANT: And Judge Marcus --
20 THE COURT: Yeah.
21 THE DEFENDANT: -- said, as the jury went out,
22 "I've been waiting with baited breath" -- to Harry Carson --
23 "I've been waiting with baited breath for you to raise the
24 issue of disability." Because Harry Carson, great guy as he
25 is, personal friend of mine I would hope, did not raise the

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1 disability in the case --
2 THE COURT: Okay.
3 THE DEFENDANT: -- that he cited himself.
4 THE COURT: Okay.
5 THE DEFENDANT: State vs. Marbet.
6 So what happens, Your Honor, is when folks like
7 Ms. Rutledge have over 100 cases --
8 THE COURT: Yeah, it's hard.
9 THE DEFENDANT: -- they're overloaded. They can't
10 at all possibly give any of the dedication they need to a
11 complicated case, which I'm entitled to as a person with a
12 disability, because, you know, one of the things you do with
13 people with disabilities is you give them a little bit more
14 whatever.
15 THE COURT: Uh-huh. So that's why I'm asking you,
16 do you want to represent yourself, or you want one of the
17 misdemeanor lawyers to represent you? Which way do you want
18 it?
19 THE DEFENDANT: I would like to have an advisor --
20 THE COURT: An advisor, got it.
21 THE DEFENDANT: -- that could assist me with
22 getting the things that I got to -- I --
23 THE COURT: So let's have it this way. Let's line
24 it up this way. You'll be representing yourself, but you
25 have a legal advisor, okay.

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1 THE DEFENDANT: To assist. I have no income. I
2 have a HUD grant that pays for my housing.
3 THE COURT: Perfect, okay.
4 THE DEFENDANT: So I don't have the money to obtain
5 the police reports. I don't have the resources to obtain
6 the 9-1-1 telephone calls.
7 THE COURT: Okay. But if you go to trial, you want
8 to represent yourself like for the trial, right?
9 THE DEFENDANT: I've done that before --
10 THE COURT: Sure.
11 THE DEFENDANT: -- with success.
12 THE COURT: You've been -- you told me you had your
13 Supreme Court case, so it sounds like you're fully capable,
14 right, of representing yourself?
15 THE DEFENDANT: Within my disability.
16 THE COURT: Yeah. But you want a legal advisor;
17 that's fine. We can do that.
18 THE DEFENDANT: So the understanding is, Your
19 Honor, that I know which 9-1-1 calls I want to have --
20 THE COURT: Okay.
21 THE DEFENDANT: -- part of the record.
22 THE COURT: Okay.
23 THE DEFENDANT: I know which defense witnesses I
24 want to subpoena.
25 THE COURT: Okay.

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1 THE DEFENDANT: Now, part of the problem as we
2 speak, Your Honor, I came into custody in November, I
3 mentioned.
4 THE COURT: Yeah.
5 THE DEFENDANT: I have a case from November 2012
6 that's still on appeal in the Oregon Court of Appeals. The
7 issue in that case was the Portland Police refused to accept
8 my defense witness subpoenas. And two judges in this
9 circuit allowed that. So I didn't have a very good defense.
10 THE COURT: Okay.
11 THE DEFENDANT: Okay. So that's -- that's the --
12 that's what I want to overcome. I don't want to go into a
13 courtroom where a district attorney, well versed in the law,
14 says, Your Honor, I object to this evidence, and I don't
15 have evidence --
16 THE COURT: Oh, okay.
17 THE DEFENDANT: -- that I could ordinarily obtain
18 if I had, one, the financial resources, and, two, the skill
19 set.
20 THE COURT: Okay. Well, let's get a legal advisor
21 for you. So what we'll do, we've signed the judgment of
22 dismissal of the felony matter. We'll have you listed as
23 representing yourself, but with a legal advisor. And that
24 would stay with the Metropolitan Public Defender's Office.
25 They'll appoint one of their misdemeanor lawyers to be the

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1 legal advisor then. Okay? And we'll move the case forward
2 and you can have your day in court and -- so we need to set,
3 what's called a trial readiness date on the misdemeanor
4 docket.
5 And go ahead, Mr. Jackson.
6 MR. JACKSON: There has to be an arraignment on the
7 misdemeanor information.
8 THE COURT: Right.
9 MR. JACKSON: First.
10 THE COURT: Yes.
11 MR. JACKSON: And then we can proceed with setting
12 dates and everything, yeah.
13 THE COURT: Okay. So in order to arraign you on
14 the -- I haven't arraigned anybody on a misdemeanor for so
15 long, I don't remember what exactly do we need to accomplish
16 there.
17 You can probably tell me, Mr. Stull. What do we
18 need to -- what do we --
19 (Discussion held between Counsel and Defendant.)
20 THE DEFENDANT: Okay. Let's do this. Per statute,
21 you've got to strike the aka Barry Joe Stully and that
22 birthdate, because neither one of those were my creation.
23 THE COURT: You don't like that.
24 THE DEFENDANT: No, those were a creation of
25 Officer --

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2 THE DEFENDANT: -- Stigameyer (ph) back in 2009.
3 He put a --
4 THE COURT: All right. Otherwise, you're good with
5 the name Barry Joe Stull, right?
6 THE DEFENDANT: And my birthdate is September 24,
7 1958.
8 THE COURT: Oh --
9 THE DEFENDANT: I'm smart enough not to have an aka
10 that's my rare name, Barry Joe, with my rare name Stull with
11 a "Y" at the end. I would call myself Charles Manson --
12 THE COURT: All right. So you got --
13 THE DEFENDANT: -- before I would call myself --
14 THE COURT: -- Barry Joe Stull, 9/24/58. You and I
15 have almost the same birthday.
16 So then that's good. And then you've got the
17 charges there, right? And you're wanting to represent
18 yourself and have a legal advisor, right?
19 MR. RUTLEDGE: Yes, Your Honor.
20 THE COURT: Okay.
21 MR. RUTLEDGE: Just -- if I could have two seconds.
23 THE DEFENDANT: Oh, yes, I can do -- sure, that's
24 fine. We're going to preserve my rights.
25 THE COURT: Okay.

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1 MR. RUTLEDGE: So, Your Honor, Mr. Stull has given
2 me permission to reserve his rights --
3 THE COURT: Okay.
4 MR. RUTLEDGE: -- which are that Mr. Stull is in
5 receipt of this four count District Attorney's information.
6 He's truly and correctly named. His date of birth is
7 correct in that first caption. We reserve all the rights
8 read into the record this morning in JC-2 or 4, or wherever
9 it was read this morning, including the right to move
10 against this charging document at a later date. And he
11 would enter a not guilty plea as to all four counts.
12 THE COURT: Uh-huh, okay. And then based on what
13 you've told me already, I know you understand the right to
14 have a lawyer to represent you on the misdemeanor matters
15 now. And we kind of jumped over that just because you'd
16 already told me that you -- you want to represent yourself.
17 You've got a history in court where you've prevailed on a
18 case all the way to the Supreme Court where you represented
19 yourself.
20 THE DEFENDANT: Well, I got a reversal in the
21 Supreme Court and a reversal in the Court of Appeals on the
22 way back down.
23 THE COURT: And you --
24 THE DEFENDANT: So we'll just say that.
25 THE COURT: Yeah.

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1 THE DEFENDANT: That's true.
2 THE COURT: And you represented yourself.
4 THE COURT: And so you kind of -- you understand
5 how that all works. And then you are wanting someone
6 available to help you with the discovery. So it sounds like
7 I surely can make a finding that you're making a knowing,
8 voluntary, and intelligent waiver of your right to counsel.
9 That's the legal standard.
10 THE DEFENDANT: Sure.
11 THE COURT: Intelligent doesn't necessarily mean
12 smart, right?
13 THE DEFENDANT: Yeah, yeah, yeah.
14 THE COURT: It's not necessarily a smart choice --
16 THE COURT: -- but legally knowing, voluntary,
17 intelligent waiver of your right to a lawyer, okay.
19 THE COURT: And then we can proceed along with
20 that.
21 Did you find the --
22 MR. RUTLEDGE: Just one second, Your Honor, if I
23 can.
24 THE COURT: Yeah.
25 MR. JACKSON: I'll see if another courtroom's got

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1 it.
2 THE COURT: Yeah.
3 MR. JACKSON: Because there are some specific --
4 THE COURT: Right. They should have --
5 MR. JACKSON: -- things that he had to do.
6 THE COURT: -- one over in -- in Judge Bergstrom's.
7 UNIDENTIFIED SPEAKER: I'll go grab it.
8 THE COURT: Because they've got CPC now, so they
9 should have one over there. We probably have them here
10 somewhere too, but I don't know where.
12 THE DEFENDANT: Yeah, I'm perfectly okay with
13 representing myself.
14 MR. RUTLEDGE: Okay. Are you sure you don't want
15 to have a misdemeanor attorney represent you?
16 THE DEFENDANT: Yeah, I'm positive I don't want to
17 have a misdemeanor attorney represent me.
18 MR. RUTLEDGE: Okay.
19 THE DEFENDANT: I do need to have assistance with
20 getting discovery so I can have my witnesses and my evidence.
21 THE COURT: Right. And -- okay, and that's the
22 kind of situation where having a legal advisor then sounds
23 like the best way to go. Okay.
24 THE DEFENDANT: Your Honor, and just so we're clear
25 on that. My problem -- just briefly -- my problem was, I

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1 subpoenaed my medical records from the Multnomah County
2 Health Department, and the gal from the Multnomah County
3 Health Department brang [sic] them in, and those were
4 considered not -- not legal at trial --
5 THE COURT: Right.
6 THE DEFENDANT: -- because of the Evidence Code.
7 THE COURT: Yeah, so you want to be careful of
8 that.
9 THE DEFENDANT: So I need -- I need somebody -- and
10 another problem I had was my neurologist testified on my
11 behalf in 2014, chapter and verse, about my very difficult
12 to understand medical condition, and I wanted to have the
13 audio record of his testimony or the transcript from that,
14 and that was deemed as inadmissible.
15 THE COURT: Okay.
16 THE DEFENDANT: So without any evidence and without
17 my witnesses, I have a case that's now on appeal three years
18 later.
19 THE COURT: Okay.
20 THE DEFENDANT: So I would -- I would much rather
21 have this all simply be dismissed. But since the --
22 THE COURT: Well, I don't think they're going to --
23 THE DEFENDANT: -- District Attorney --
24 THE COURT: -- I don't think they're going to do
25 that.

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1 THE DEFENDANT: If they want to -- if they want to
2 push it, I have to rise to the occasion.
3 THE COURT: I think they want to push it, so you've
4 got to rise, okay.
5 THE DEFENDANT: Yeah. Hey, I've already done --
6 THE COURT: All right. So --
7 THE DEFENDANT: -- I've already done -- this is my
8 eleventh week in custody, all right.
9 THE COURT: All right. So that's why I'm going to
10 get you a legal advisor. But you've got to realize they're
11 on your side, they're going to try to help you with that
12 discovery. Okay?
13 THE DEFENDANT: Sure.
14 THE COURT: And -- so you've got the waiver form
15 there; is that right? So that's --
16 THE DEFENDANT: Waive of counsel.
17 THE COURT: Yeah. Have you signed one of those
18 before?
19 THE DEFENDANT: I've done that -- I've done that
20 before, Your Honor, yes.
21 MR. RUTLEDGE: And I think we actually need two
22 copies of it since we have two cases, or I could write --
23 THE DEFENDANT: So don't write on that one yet.
24 We'll just make another copy right here.
25 MR. JACKSON: Actually, I think you can put both

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1 case numbers.
2 MR. RUTLEDGE: Will they accept that?
3 THE CLERK: I think it doesn't scan.
5 THE CLERK: (Indiscernible).
6 MR. RUTLEDGE: My office. I've got a client
7 waiting there for me right now.
8 THE COURT: All right. So, Ms. Rutledge is going
9 to go over that with you, have you sign that waiver form.
10 And then the other thing we're going to do with
11 your two cases is get a trial readiness date on the
12 misdemeanor docket.
13 So, Mr. Rutledge, we've got a legal advisor from
14 your office, so we probably should go with a trial readiness
15 date about three weeks out, you think?
16 MR. RUTLEDGE: Yeah. I was trying to email to see
17 if I could give a name today, but I don't know if I can.
18 THE COURT: Okay. Can I get one? No, it's not my
19 job, but --
20 MR. RUTLEDGE: You could try.
21 THE COURT: So if we can set this for trial
22 readiness for --
24 THE COURT: Both of them. Set them together. So
25 like three Fridays from this Friday so that they've got

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1 enough time.
2 THE CLERK: 4th of March.
3 THE COURT: Okay. Yeah, so set them both there.
4 And it would be on the -- which letter docket, Ms. Rutledge,
5 are you folks --
6 MR. RUTLEDGE: I -- decades ago when I was there --
7 THE COURT: Yeah.
8 MR. RUTLEDGE: -- it was C.
9 MR. JACKSON: C. I think it's still C.
10 THE COURT: Okay. Okay. Yeah, it hasn't changed;
11 I just didn't know which one it was.
12 MR. RUTLEDGE: Okay, yeah.
13 THE COURT: You and I are both out of the
14 misdemeanor loop there, so --
15 MR. RUTLEDGE: Yeah.
16 THE COURT: Okay. So on the C docket then,
17 Christian, for March 4th. So if we just do a minute order
18 on both cases to capture all of this, what we've done is
19 allowed -- so Mr. Stull will be representing himself on both
20 cases with a legal advisor appointed from Metropolitan
21 Public Defender's Office. And then set for trial readiness
22 on March 4th on the C docket.
23 And you know how that works, Mr. Stull, right, for
24 trial readiness? You --

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1 THE COURT: -- come and -- so I can't give you a
2 courtroom number yet. They don't know until that week.
3 And then, as far as the custody issues, State have
4 anything further on the custody issue?
5 MR. JACKSON: Well, I mean, it sounds like Mr. Stull
6 may have contacts in the community that were not either
7 contacted or followed up on PRS. So it may make sense to
8 allow them the opportunity to do that and release him if they
9 see fit. So I would ask for PRS to accept it at this point.
10 MR. RUTLEDGE: And, Your Honor, as an advisor --
11 THE COURT: Yeah.
12 MR. RUTLEDGE: -- to Mr. Stull at this moment in
13 time from my office, he has been in custody for quite some
14 time on this case.
15 THE COURT: Yeah.
16 MR. RUTLEDGE: As is pretty evidenced, Your Honor,
17 he has every desire and interest to fight this case.
18 THE COURT: Yeah.
19 MR. RUTLEDGE: He is not a person who is not going
20 to show up. He is going to be present --
21 THE COURT: Yeah.
22 MR. RUTLEDGE: -- and ready at every proceeding.
23 And my belief is with an advisor, that he will probably be
24 raring to go at the first trial readiness. He wants this
25 case resolved.

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1 THE COURT: Okay.
2 MR. RUTLEDGE: I have personally had contact with
3 many people in the community who are in support of him who
4 are attempting to raise bail money. So I personally do know
5 that there are at least three people that I have talked to
6 in the community, and we have had contact with their
7 representative that he mentioned earlier.
8 THE COURT: Okay.
9 Mr. Stull, do you have a place to live when you go
10 out of custody?
12 THE COURT: You do. Is that here in Multnomah
13 County?
15 THE COURT: Okay. So tell me, do you do better --
16 you do fine showing up for court, right?
17 THE DEFENDANT: When not in jail.
18 THE COURT: Okay. But you don't --
19 THE DEFENDANT: If I'm not.
20 THE COURT: -- you don't forget court dates or
21 anything, right?
22 THE DEFENDANT: Your Honor, 2012, August to July
23 14, 17th, 17th -- twice on the 17th, twice on the 19th, and
24 I missed court on the 18th, and was arrested on the 19th for
25 missing court on the 18th --

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1 THE COURT: Okay.
2 THE DEFENDANT: -- because I had so many appearances
3 that I couldn't even track of them.
4 THE COURT: Yeah. So let me ask you --
5 THE DEFENDANT: So other than that, I show up.
6 THE COURT: Okay. So are you better -- have you
7 ever had a requirement to report into Pretrial Release
8 Services office or not?
9 THE DEFENDANT: Your Honor, I had a -- I have a
10 five-year sentence for marijuana, and I did 17 and a half
11 months in custody, and I did the rest on parole through 1997.
12 THE COURT: Okay.
13 THE DEFENDANT: So I know how to do that. And in
14 2004, I had a case where I was denied my defenses under the
15 Medical Marijuana Act, using obviously case law, but, you
16 know, that's the way it goes sometimes.
17 THE COURT: Yeah.
18 THE DEFENDANT: And so I had to do what we're
19 calling post-prison supervision and those kinds of things.
20 THE COURT: Okay. So let's do this.
21 THE DEFENDANT: So I've been supervised, if that's
22 what you're --
23 THE COURT: Yeah. So let's have you -- we'll
24 release you on both cases to report to the Pretrial Release
25 Services office, you know, and so we just don't have any

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1 missing court dates or anything like that, okay. I think
2 that's the best way to go.
3 THE DEFENDANT: I do have one issue on that, Your
4 Honor, but I can't --
5 THE COURT: What's that?
6 THE DEFENDANT: -- I can't fill out this paperwork
7 and do it at the same time.
8 THE COURT: Oh, you fill that. Okay. Fill that
9 out and then --
10 THE DEFENDANT: So let me do that and then --
11 THE COURT: Okay. One thing at a time.
13 THE COURT: So you don't know ahead. So you just
14 put it on the C docket. Why do you need to fill in a --
16 THE COURT: Choices. And there's no dockets that
17 say A docket, B docket, C docket?
18 MR. RUTLEDGE: They usually 1-0 -- in the past, it
19 said 106-C.
20 THE COURT: Yeah, is there an option to just
21 select --
23 THE COURT: I don't know what that means. I don't
24 know what that means. Yeah, ask Jimmy.
25 MR. JACKSON: And, Judge, in light of that

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1 decision, I'd like to be heard at the appropriate time just
2 briefly.
3 THE COURT: Okay.
5 THE DEFENDANT: Your Honor --
6 THE COURT: Yeah.
7 THE DEFENDANT: -- when I was taken into custody,
8 as they put me in the patrol car, they removed from me my
9 house keys and my (indiscernible) ID, and they had, prior to
10 that, taken my backpack with my state ID and my other
11 resources, which I assume are at the Portland Police
12 property warehouse.
13 THE COURT: Okay.
14 THE DEFENDANT: So to be honest with you, Your
15 Honor, if you let me out of custody right this minute, I
16 still wouldn't be able to get home, and I still wouldn't be
17 able to get into my house, because the Portland Police, kind
18 of illegally, took everything I need.
19 THE COURT: Okay.
20 THE DEFENDANT: So I just want you all to be aware
21 of that, because if I were to go down the street and get on
22 the MAX and head out to my house, I would get arrested by
23 the transit police, and I would be back in jail for not
24 having a fare.
25 THE COURT: Okay. So that's another reason that

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1 it's a good idea to have you released to Pretrial Release
2 Services because when you go over there, perhaps they can
3 assist you with that situation. Okay?
4 THE DEFENDANT: Well, I can -- I can take care of
5 myself, Your Honor.
6 THE COURT: Oh, I know you can.
7 THE DEFENDANT: I can't take care of myself if they
8 take my stuff and lock me up and take my stuff.
9 THE COURT: Right, I know. I know. I'm just
10 thinking that someone there might be able to make a phone
11 call that would get a different response than maybe if you
12 made the phone call. Do you see what I'm saying?
13 THE DEFENDANT: Yeah, I just wish that --
14 THE COURT: Sometimes it kind of works that way.
15 THE DEFENDANT: Yeah, I just wish that I wouldn't
16 need a translator because I --
17 THE COURT: I know.
18 THE DEFENDANT: -- I'm articulate.
19 THE COURT: It's real frustrating, but --
20 THE DEFENDANT: I'm articulate.
21 THE COURT: Yeah, I know.
22 MR. RUTLEDGE: And, Your Honor, I just want to make
23 it clear that he's -- that you are appointing an advisor.
24 He's not going completely pro se.
25 THE COURT: Right. Allow Mr. Stull to represent

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1 himself with a legal advisor from Metro Public Defender's
2 office. That's the way we worded that. Okay.
3 All right. And then on the waiver of counsel then,
4 you've gone over this form. Ms. Rutledge has been there as
5 a legal advisor to you as you went over it. And you
6 initialed each of the places here where you need to initial,
7 right, and you filled with your age and 17 and a half years
8 of school. And you -- you know, I've got to go over the
9 part about that you lack legal training and you might not
10 realize any defenses available to you that someone with
11 legal training might realize, right?
12 And you know that the rules for a trial will be the
13 same for you as if you had a lawyer, right?
15 THE COURT: And the State will be represented by a
16 lawyer. I don't know if it will be Mr. Jackson or somebody
17 else, right, and you know that, right?
19 THE COURT: And you're fine with that. And let's
20 see, looking at all of the other things to make sure we
21 don't forget to cover something.
22 You read all of this part about the benefits that
23 you're -- potential benefits that you're giving up because of
24 things that a lawyer might be able to help you with, right?

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1 THE COURT: Okay. And so for some of those things,
2 we're keeping a legal advisor there because you want the
3 assistance with discovery, right?
5 THE COURT: And you understand that the Judge,
6 either now or at the trial, can't give you legal any advice,
7 right? You might not want their legal advice anyway, but
8 can't you give your legal advice.
9 THE DEFENDANT: Your Honor, you're the third --
10 you're the third Judge on this -- in this substitution of
11 counsel hearing for a reason.
12 THE COURT: Oh, okay. And you're not under the
13 influence of any alcohol or controlled substances right?
15 THE COURT: And no one's made any threats or
16 promises to you to get you to waive your right to a lawyer,
17 right?
18 THE DEFENDANT: That's right.
19 THE COURT: Okay. And it sounds to me like you
20 fully understand exactly what's going on here and that that
21 is what you want. Okay. So -- then I make those findings
22 that you understand the information contained in the
23 document. And knowing, voluntary waiver of your right to
24 counsel.
25 And then I'm supposed to review with you the

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1 elements of the crimes that are charged and possible maximum
2 penalties. I think Ms. Rutledge did that with you, but --
3 THE DEFENDANT: No, she hasn't, but --
4 THE COURT: Oh, okay. So where did the charging
5 instrument go? So what do we have left -- we have left
6 pending Counts 2, 3, and 4, right?
7 MR. RUTLEDGE: No, Your Honor.
8 MR. JACKSON: No, no. It's new information.
9 THE COURT: Oh.
10 MR. RUTLEDGE: The old indictment was dismissed and
11 it's completely brand new information.
12 THE COURT: Okay. So we've got 1, 2, 3, and 4,
13 right?
14 MR. JACKSON: Correct, yeah.
15 THE COURT: So attempted assault of a public safety
16 officer, resisting arrest, criminal mischief in the second
17 degree, criminal trespass in the second degree.
18 So now you're going to make me do the bar exam and
19 do the elements of those, which I haven't done misdemeanors
20 for a while, so somebody help me out there.
21 MR. JACKSON: Well, on the charging instrument,
22 Judge, if you look at the language underneath each Count, it
23 lays out what they would be proving at trial.
24 THE COURT: Okay.
25 MR. JACKSON: So --

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1 THE COURT: So on the attempted assault of a public
2 safety officer, they're alleging you unlawfully,
3 intentionally intended to cause physical injury to Officer
4 Engstrom, a person you knew was a peace officer.
5 And then on the resisting arrest, that you
6 unlawfully, intentionally resisted Officer Engstrom, and that
7 you knew he was a peace officer; resisted in making that
8 arrest.
9 And then on the criminal mischief in the second
10 degree, that you unlawfully, intentionally damaged personal
11 property, which is the City of Portland's property, and you
12 had no right to do so and no reasonable ground to believe
13 that you had any such right.
14 And then on the -- same thing on Count 4, which is
15 a different count of the same elements there.
16 MR. JACKSON: No, Judge, that's a trespass.
17 THE COURT: Oh, criminal trespass. Okay, sorry.
18 That you unlawfully, intentionally, knowingly, and
19 recklessly entered and remained upon the premises located at
20 1221 Southwest 4th Avenue, which is City Hall. Okay.
21 So you understand all of those elements.
22 And so then the maximum penalty on those would be
23 what?
24 MR. JACKSON: Counts 1 and 2 are Class A
25 misdemeanors. That would be one year in jail.

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1 THE COURT: A year, yeah.
2 MR. JACKSON: I think the maximum fine is $6,250.
3 Criminal mischief. Oh, Count 3 is also a Class A
4 misdemeanor, so the same would apply.
5 Count 4 is a Class C misdemeanor, so it would be 30
6 days in jail and $1,000? Is that the maximum for a C
7 misdemeanor?
8 MR. RUTLEDGE: Isn't Count 3 and 4 the same?
9 MR. JACKSON: No, 3 is criminal mischief.
10 MR. RUTLEDGE: Oh, yeah, sorry, you're right.
11 THE COURT: You just did the same thing I did.
12 MR. RUTLEDGE: A "C" is $1,000?
13 THE COURT: I believe that's correct, and 30 days
14 in jail.
15 MR. JACKSON: And 30 days in jail.
16 THE COURT: Okay. All right. So now we've talked
17 all about that, the elements of the crimes and the maximum
18 penalties. And we already talked about the discovery that
19 you want to obtain and so you know about those rights.
20 MR. RUTLEDGE: And, Your Honor, on the other case,
21 Count 1 is also criminal trespass in the second degree.
22 THE COURT: Okay, which we went over the elements
23 of that already.
24 MR. RUTLEDGE: Yes.
25 THE COURT: Okay. So we signed off on that waiver

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1 form now. And I think we've covered everything.
2 Oh, so you need to do -- got to have both cases on
3 there.
4 THE CLERK: Yeah (indiscernible).
5 THE COURT: Okay.
6 MR. RUTLEDGE: And, Your Honor, just to be clear on
7 behalf of Mr. Stull, the case numbers on the old felony case
8 and the new felony -- and the new misdemeanor case were the
9 same. And if -- we would want to make sure that there are
10 -- he gets credit for all the time he's served on this case.
11 I think that's one of the reasons the State did it this way
12 is so that he doesn't lose the --
13 THE COURT: Yes.
14 MR. RUTLEDGE: -- time that he has been in custody.
15 THE COURT: Right. Yeah, you don't want to lose
16 that.
17 All right. So you'll go out of custody. You know
18 where to report to Pretrial Release Services, right?
19 THE DEFENDANT: I don't have that yet.
20 MR. RUTLEDGE: (Indiscernible) form.
21 THE COURT: It's at the Justice Center there.
22 Ms. Rutledge is going to grab that form for you.
23 THE DEFENDANT: Oh, Your Honor, there's a matter
24 that I think it's a little bit important. When I was in
25 custody, Sergeant Johnson, who works for Internal Affairs at

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1 the Sheriff's Office, who's known me for previous reports,
2 informed me that while I was in custody, Joe Walsh had a
3 victory in Federal Court regarding the unconstitutional
4 nature of the City Hall trespass exclusion.
5 THE COURT: Okay.
6 THE DEFENDANT: So where we have a problem with it
7 is that I know, according to State vs. Richard Kennig (ph),
8 that the trespass exclusion that they gave me at 1:00 the
9 day before I was scheduled to testify was, in fact, illegal.
10 And what we have going through the system is the fact that I
11 resisted what I know was an illegal trespass exclusion
12 notice.
13 THE COURT: Okay. So it sounds like you have an
14 interesting issue and that's why we have a trial readiness
15 date so you can move forward with --
16 THE DEFENDANT: But it influences those people that
17 are supervising me, because they say that I resisted a
18 trespass exclusion notice.
19 THE COURT: Okay.
20 THE DEFENDANT: But if it was --
21 MR. RUTLEDGE: I'm sorry. Do you have your old
22 copy of the paperwork you just handed (indiscernible)?
24 MR. RUTLEDGE: You have both of those?
25 THE DEFENDANT: So that's my concern, Your Honor.

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1 Garbage in, garbage out. If they say I did something
2 illegal that wasn't illegal, the people tend to believe that
3 I did something illegal.
4 THE COURT: Okay.
5 THE DEFENDANT: And that influences my custody
6 status.
8 THE DEFENDANT: That's why I was in custody, you
9 know --
10 THE COURT: Yes, but now you're going out of
11 custody, so that will no longer be the case.
12 THE DEFENDANT: All right.
13 THE COURT: Right?
14 THE DEFENDANT: I hope I can get to my keys.
15 THE COURT: Okay. Well, you don't need the keys to
16 get out of custody.
17 THE DEFENDANT: I need the keys to get into my
18 house.
19 THE COURT: I understand that.
20 THE DEFENDANT: I need the keys to get in my
21 mailbox, okay.
22 THE COURT: I understand that.
23 THE DEFENDANT: I would like to have my Honored
24 Citizen ID because if I get ill, I can actually show
25 somebody --

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1 THE COURT: That's why I want you --
2 THE DEFENDANT: -- that I have a disability.
3 THE COURT: -- to go to the Pretrial Services
4 Office because I think they can help you with that.
6 THE COURT: Okay?
7 THE DEFENDANT: Do you think that's going to be
8 today, Your Honor?
9 THE COURT: Yeah, it will be today. I don't think
10 anyone's going to hold you in custody any longer than they
11 need to, right?
12 MR. RUTLEDGE: Your Honor, just to be clear, you're
13 releasing on both cases?
14 THE COURT: Yep.
16 THE COURT: That order's got both numbers --
17 MR. RUTLEDGE: Thank you.
18 THE COURT: -- on there, right?
19 All right. Mr. Stull, nice to meet you. Have a
20 good day.
21 THE DEFENDANT: All right. Thank you, Your Honor.
24 in Volume 10, March 4, 2016.)
25 ///

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13 Salem, OR 97302
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17 Date: April 13, 2017
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 92 - 93
______________________________________________________________

came on regularly for hearing before the Honorable JEAN K.
MAURER, Judge of the Circuit Court, Friday, March 4, 2016 at
the Multnomah County Courthouse, Portland, Oregon.
APPEARANCES

Unknown
Unknown

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92
1 PORTLAND, OREGON; FRIDAY, MARCH 4, 2016
2 -O0O-
4 THE COURT: And then we're going to go to Barry
5 Stull.
6 UNIDENTIFIED SPEAKER: Your Honor, with that one,
7 it's actually a pro se case --
8 THE COURT: Yes.
9 UNIDENTIFIED SPEAKER: -- and it's unclear. He
10 has C docket advisory counsel. So before a bench warrant
11 is issued, I think it would be appropriate to check in with
12 C docket to make sure he hasn't shown up over there.
13 THE COURT: Oh, that's fine. And Mr. Stull and I
14 go back a ways, and so sometimes he wants me to be his
15 judge and sometimes he doesn't, so we'll see how that goes.
16 UNIDENTIFIED SPEAKER: I see.
17 THE COURT: Okay, thanks.
20
21
22
23
24
25 ///

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13 Salem, OR 97302
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17 Date: April 13, 2017
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 94 - 106
______________________________________________________________

came on regularly for hearing before the Honorable HENRY
KANTOR, Judge of the Circuit Court, Friday, March 4, 2016 at
APPEARANCES

Unknown
Unknown
Barry Joe Stull, Pro Se (out of custody)

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970.405.3643
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1 PORTLAND, OREGON; FRIDAY, MARCH 4, 2016
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4 THE COURT: I'll pause.
6 THE COURT: That's a problem when that happens.
7 UNIDENTIFIED SPEAKER: Barry Stull, Your Honor.
8 I'm advisory counsel on it. One of the two cases he has
9 15CR52961. I just double-checked eCourt. Trial readiness
10 is scheduled today, but it wasn't on this docket.
11 THE COURT: Which docket?
12 UNIDENTIFIED SPEAKER: Your Honor, it is on B
13 docket. I brought those files this morning. I did check
14 with a few of the Metro attorneys, and they -- none of them
15 were aware of advisory counsel, so I had to --
16 THE COURT: But now we know, so you'll need to
17 talk about dates.
18 THE DEFENDANT: No, Your Honor. I'm here pro se.
19 And if you'll let me approach here.
20 THE COURT: Sure.
22 THE COURT: We're here to schedule a trial date.
23 THE DEFENDANT: Right. Can I seat here and --
24 THE COURT: Yeah.
25 THE DEFENDANT: -- take over my case because it's

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1 basically --
2 THE COURT: Well, it's only -- it's going to be
3 very brief, because we're just -- but, yes, the answer's --
4 THE DEFENDANT: Right. Right, I'm --
5 THE COURT: -- you may have a seat.
6 THE DEFENDANT: -- trying to save time, Your
7 Honor.
8 THE COURT: You may have a seat.
9 THE DEFENDANT: All right, thank you.
10 THE COURT: So what's the State's proposed trial
11 date?
13 THE COURT: I'm first talk -- one moment.
14 THE DEFENDANT: We're not even there yet, Your
15 Honor.
16 THE COURT: Well, I'm asking a question. When I
17 get to you, I'll get to you.
19 THE COURT: Shh, have a seat.
20 THE DEFENDANT: We're not going to schedule a
21 trial today.
22 THE COURT: Have a seat. I want to know what the
23 requested trial date is.
24 THE DEFENDANT: Go right ahead, but they don't
25 even know the facts of the case yet.

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1 UNIDENTIFIED SPEAKER: I am aware of the facts of
2 the case, Your Honor. And the dates that we are requesting
3 are 4/25 for 4/26 with --
4 THE COURT: Okay. One moment.
5 Okay. So, sir, how's that date?
6 THE DEFENDANT: Your Honor, my name's Barry Joe
7 Stull. I'm first --
8 THE COURT: How do you spell your last name?
9 THE DEFENDANT: Thank you. My name is Barry Joe
10 Stull. My first name is Barry, B-a-r-r-y. My middle name
11 is Joe, J-o-e. My last name is S-t-u-l-l.
12 THE COURT: Stull, thank you.
13 THE DEFENDANT: I was given that name before I was
14 born. That's the name I go by.
15 However, I've had to address, and I still have to
16 address, the fact that this system has -- excuse me language
17 -- dumped on me an aka. The aka has an aka. And worse, the
18 aka has a birthdate.
19 If I can introduce myself. Good morning, Your
20 Honor. My name's Barry Joe Stull. I have a very severe
21 disability. It's a neurological condition. We call that
22 Central Pain, with two capital letters, capital C, capital
23 P, Central Pain. I was at the emergency room twice in
24 November, the week before this was developed, for Central
25 Pain Syndrome.

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1 So as a person with a disability, I was arrested.
2 I was taken into custody. My first contact with my --
3 THE COURT: Sir --
4 THE DEFENDANT: Excuse me.
5 THE COURT: No, this --
6 THE DEFENDANT: We're going quickly --
7 THE COURT: We're not going there today.
8 THE DEFENDANT: No, my first contact was when I
9 was given a plea offer.
11 THE DEFENDANT: I got that January 8th, my 45th
12 day in jail.
13 THE COURT: Are you going to ask for a different
14 date?
15 THE DEFENDANT: That was the two years bench
16 probation. I refused that, Your Honor, because I am not
17 guilty. The situation is.
18 THE COURT: Mr. Stull, if --
19 THE DEFENDANT: The facts that they have --
20 THE COURT: -- you don't listen to me, you're
21 going to leave the courtroom.
22 THE DEFENDANT: -- in their case are not --
23 THE COURT: Please call for a Deputy. I'm not
24 going to have this conversation.
25 THE DEFENDANT: The facts --

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1 THE COURT: Look at the room here.
2 THE DEFENDANT: Right. I'm a person --
3 THE COURT: You're not the only person here.
4 THE DEFENDANT: -- with a disability. The ADA
5 says we have to schedule my opportunity to present my case.
7 THE DEFENDANT: Do you want to reschedule it today?
8 THE COURT: All I'm asking you to do --
9 THE DEFENDANT: Shall we come back another day
10 because I'm not even prepared. They just got the facts. I
11 got her name yesterday. I sent her an email at 7:45 p.m.
12 yesterday with my medical records --
14 THE DEFENDANT: -- with the facts of the case. I do
15 not believe that the State can prosecute this case without
16 violating my civil rights as a person with a disability.
17 THE COURT: Then you can --
18 THE DEFENDANT: So I have to at least have the
19 opportunity to present myself, representing myself, which
20 I've already gone through the protocol, I'm appointed to
21 represent myself on this case.
22 THE COURT: Do you want a trial date or not?
23 THE DEFENDANT: And I'm saying this, we are not
24 doing a trial date. I am now putting into the record in
25 front of counsel, I am moving that this case be dismissed --

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2 THE DEFENDANT: -- pursuant to 659A.142 --
3 THE COURT: You may do that, sir, on another day.
4 THE DEFENDANT: -- because the City --
5 THE COURT: That's not what we do today.
6 THE DEFENDANT: Well, this is what we have to
7 schedule because here I am to schedule, Your Honor.
8 THE COURT: You may schedule that. That goes to
9 CPC court. You're in the wrong place.
10 THE DEFENDANT: I'm not in the wrong place, because
11 I called the District Attorney's office, I'm on the C docket.
12 She said today B docket, but here I am. We are on the
13 record. We did call my case.
14 THE COURT: Okay.
15 THE DEFENDANT: And what I'm saying is, Your
16 Honor --
17 THE COURT: You can say whatever you want; we're not
18 doing that.
19 THE DEFENDANT: I apparently can't say it here to
20 now -- now, so what do I need to do to have --
21 THE COURT: Deputy, we have someone who's very
22 concerned.
23 THE DEFENDANT: -- my hearing?
24 THE COURT: He has -- he wants to be heard. He's
25 simply in the wrong place to present his matter, and he's

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1 refusing to let me talk. So I am trying to help him.
2 THE DEFENDANT: I'm on the docket.
3 THE COURT: I just need you to be here for a moment
4 in case we have a problem.
5 THE DEFENDANT: We don't have a problem. We have a
6 problem that I'm on the docket. One, I'm a person with a
7 disability. This right now is triggering me. It's not
8 helping.
9 THE COURT: I can sense it is.
10 THE DEFENDANT: Okay. What is also not helping is
11 the fact that my court-appointed attorneys did two things.
12 One, they didn't communicate with me. And, two, allowed my
13 personal property --
14 THE COURT: Mr. Stull, I'm going to give you one
15 last chance.
16 THE DEFENDANT: -- moving the evidence to be
17 destroyed while I was in custody.
18 THE COURT: One last chance --
19 THE DEFENDANT: So the State --
20 THE COURT: -- to be quiet and listen. One last
21 chance --
22 THE DEFENDANT: I need to schedule --
23 THE COURT: -- or you're going to go into custody.
24 THE DEFENDANT: -- a hearing for a motion to
25 dismiss.

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1 THE COURT: Okay.
2 THE DEFENDANT: That's the next thing on my agenda.
3 THE COURT: You may go to the CPC court to schedule
4 that matter.
5 THE DEFENDANT: Okay. Let's --
6 THE COURT: I don't do that.
7 THE DEFENDANT: We're done here. Thank you.
8 THE COURT: But we're also to schedule a trial date
9 because I must. You can also --
10 THE DEFENDANT: We can't.
11 THE COURT: Okay. So if there's no other date, I'm
12 going to go ahead and give the State's date. You can then go
13 to the CPC court, get an earlier date for your dismissal.
14 THE DEFENDANT: No, we're going to get -- we're
15 going to get a hearing because --
16 THE COURT: You're going to ask them for a hearing.
17 THE DEFENDANT: -- we're working with a disability
18 and we're chasing our tails.
19 THE COURT: We're going to set this -- let's check
20 4/25 for 4/26. That's it then?
22 THE COURT: Oh, we need a case number.
23 THE CLERK: (Indiscernible) can you give us a case
24 number, please?
25 THE COURT: Or, actually, the DA will have it.

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1 UNIDENTIFIED SPEAKER: There's two of them.
2 UNIDENTIFIED SPEAKER: There's two. It's case
3 number 15CR53749 and 15CR52961.
4 THE CLERK: 52961?
5 UNIDENTIFIED SPEAKER: 52961, correct.
7 THE COURT: We're going to find out if this trial
8 date works, and we're going to schedule it, because that's
9 what I do today. Then you'll get a chance to go to the CPC
10 court, ask for a hearing on a motion to dismiss. They'll
11 schedule it as best they can, and they'll tell you when you
12 have to file your papers, things like that. If you're going
13 to represent yourself, sir, there's a lot of work to do.
14 THE DEFENDANT: I'm a person with a disability.
15 That's a lot of work.
16 THE COURT: I can imagine.
17 THE DEFENDANT: Okay. Tell me where I'm scheduled
18 to be. I'm told I'm not supposed to be here.
19 THE COURT: That's hard and it's unfortunate, but
20 I'm glad you made it here.
21 THE DEFENDANT: No, no, no, no. In fact, I deserve
22 an apology for having to endure that as a person with a
23 disability. Was I at the right place, Your Honor?
24 THE COURT: I have no idea. I just know --
25 THE DEFENDANT: Can you apologize for being on the

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1 bench conducting this hearing and answering my question, you
2 have no idea. If you have no idea, Your Honor, why did I
3 even set my alarm this morning to show up? I did that, Your
4 Honor, so I don't get a warrant for my arrest for failing to
5 appear at a place where even you yourself can't say whether
6 I'm at the right place at the right time.
7 THE COURT: I haven't looked.
8 THE DEFENDANT: Okay. So here's what I'm going to
9 do.
10 THE COURT: And I'm not going to look today.
11 THE DEFENDANT: I am going to go to where I'm
12 instructed to go and I'm going to schedule a hearing on a
13 motion to dismiss this case. We don't need to have a trial
14 when they don't even have a case.
15 THE COURT: If you are successful in getting your
16 motion granted, that will cancel the trial date. That's what
17 we'll see.
18 THE DEFENDANT: So then we don't need to schedule a
19 trial date yet, do we?
20 THE COURT: No, we always have to schedule --
21 THE DEFENDANT: That would be premature, wouldn't
22 it?
23 THE COURT: We always have to schedule a trial date.
24 THE DEFENDANT: Apparently you can't, if it
25 violates the law. That law would be the Americans With

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1 Disabilities Act.
2 Going to run these cases.
3 THE DEFENDANT: So shall I wait for my paperwork
4 here, or shall I wait in the back of the room because they do
5 have some --
6 THE COURT: Yes.
7 THE DEFENDANT: -- armed Deputies here that probably
8 have something important to take care of --
9 THE COURT: We're going to wait --
10 THE DEFENDANT: -- because they know who I am, Your
11 Honor. This is not going to stop as long as people like you
12 on the bench tell me --
13 THE COURT: All right. The date works.
14 THE DEFENDANT: -- when I ask a question --
15 UNIDENTIFIED SPEAKER: The State --
16 THE DEFENDANT: -- you have no idea.
17 UNIDENTIFIED SPEAKER: The State requests a further
18 proceeding day of 4/12.
19 THE COURT: That's allowed. And --
20 THE DEFENDANT: I'm going to wait over here till
21 they have an idea.
22 THE COURT: -- Mr. Bear (ph), you'll have the paper.
23 You'll give that to Mr. Stull, who can then go over there?
24 MR. BEAR: Yes.
25 THE COURT: Okay. We are going to move on to the

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1 next case. I'm sorry for the delay.
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STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 107 - 119
______________________________________________________________
BE IT REMEMBERED that the above-entitled matter came

on regularly for hearing before the Honorable CHRISTOPHER J.
MARSHALL, Judge of the Circuit Court, Wednesday, April 13,
APPEARANCES

Unknown

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1 PORTLAND, OREGON; WEDNESDAY, APRIL 13, 2016
2 -O0O-
4 THE COURT: And then Stull, first of Barry.
5 THE DEFENDANT: That's me, Your Honor.
6 THE COURT: Okay.
7 UNIDENTIFIED SPEAKER: Your Honor, this is on the
8 call docket to be sent for -- both cases are on the call
9 docket to be sent out for motions tomorrow. Defense is
10 going to file a motion to dismiss.
11 We were in CPC in front of Judge Wittmayer, who
12 told Mr. Stull that if nothing had been filed by April 11th,
13 the motion would not be heard and the trial dates would
14 remain. The State checked eCourt. There's been nothing
15 filed.
16 THE COURT: Okay. Good morning, sir.
17 THE DEFENDANT: I can speak to that, Your Honor.
18 Your Honor, do you mind if I sit down?
20 THE DEFENDANT: Thank you. Your Honor, I'm a
21 person with a severe disability. It's a neurological
22 condition. And you might recall that I appeared before you
23 on February 9th and agreed to represent myself.
25 THE DEFENDANT: I was released that day. And upon

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1 my release, I was given my Portland Police property warehouse
2 receipt that said my goods would be destroyed, which they
3 were, on February 4th, prior to my getting the notice.
4 This is really sickening for me, Your Honor.
5 There's nothing good about this case from start to finish.
6 I didn't get medical treatment for the whole time I was in
7 jail for 76 days. None of this has been easy for me.
8 The situation is, as a person with a disability, I
9 don't see nine court appearances and a dismissal as a win. I
10 see that as a violation of my civil rights. So yes, indeed,
11 I did not enter a motion to dismiss on the 11th, because
12 actually, part of the problem here, Your Honor, is when I
13 appeared last time in court -- which is some doing for me to
14 get here -- when I appeared last time in court, they actually
15 set a date, and then I got a letter which said, whoops, our
16 bad, and they rescheduled it so I could come here today, Your
17 Honor.
18 But what I got with that in March was a after
19 incident report that was prepared by the Portland Police,
20 which characterizes me as a transient, although I've been
21 living in my housing, which is as a person with a disability
22 for over two years, this whole thing is an utter fabrication
23 on the part of the District Attorney's office, on the part of
24 the City of Portland, doesn't help that the Multnomah County
25 Sheriff did not give me court-appointed attorney calls, nor

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1 it didn't help that my court-appointed attorney didn't do
2 anything but send me discovery before she took a vacation.
3 So I'm going to move for a speedy trial. I
4 haven't had my trial in 60 days. I go in front of different
5 judges every time. I have a different District -- Deputy
6 District Attorney. There's no institutional memory except
7 on my part where there is actually sickening for me.
8 THE COURT: Okay. So let me --
9 THE DEFENDANT: So what I will do --
10 THE COURT: -- let me ask you a question --
12 THE COURT: -- okay, I need to ask you a question.
13 So you have a date assigned for your trial right
14 now, right?
15 THE DEFENDANT: It's the 25th, I believe, of April.
16 THE COURT: Okay. But I want to have my hearing
17 for a motion to dismiss because --
18 THE COURT: Okay. So that was going to be my
19 question.
21 THE COURT: Okay.
22 UNIDENTIFIED SPEAKER: The call date is April 25th
23 for trial (indiscernible).
24 THE COURT: Okay. So right now, you've got two
25 cases. They're both set for trial for April 26th and --

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2 THE COURT: -- and you're wanting to make a motion
3 to dismiss the cases, right?
4 THE DEFENDANT: Absolutely.
5 THE COURT: Okay. And so you haven't filed
6 anything, but we can send you out with your oral motion.
7 Let's send you to Judge Bushong, and that will be for
8 tomorrow morning, okay, and then you can argue the merits of
9 it tomorrow morning with Judge Bushong, okay.
10 THE DEFENDANT: Right. And, Your Honor --
11 THE COURT: Do you know where he's located?
12 THE DEFENDANT: Yes, I do, Your Honor. And I --
13 THE COURT: How do you know that? You just do.
14 THE DEFENDANT: Your Honor, I have -- I think it's
15 -- don't -- don't hold me to this, I think it's four or five
16 cases --
17 THE COURT: Okay.
18 THE DEFENDANT: -- that were consolidated, that
19 had a trial in 2012 that, believe it or not 2016, are still
20 on appeal --
21 THE COURT: Okay.
22 THE DEFENDANT: -- and 11 months after the Court
23 of Appeals had the entire case under advisement, they still
24 have not rendered an opinion.
25 THE COURT: Okay.

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1 THE DEFENDANT: So I'm going to give Judge Bushong
2 a pass, unlike Judge Hodson and Judge Jones, who I had off
3 these cases, because of my history here. Just -- just to
4 let you know, Your Honor, this is not my --
5 THE COURT: When you say you're going to give him
6 a pass, what do you mean?
7 THE DEFENDANT: That means in 2012, the Portland
8 Police refused to accept my defense witness subpoenas --
9 THE COURT: Okay.
10 THE DEFENDANT: -- in violation of statute and the
11 constitution --
12 THE COURT: Okay. So let me --
13 THE DEFENDANT: -- and they kind of bounced that
14 around. And Judge Bushong could have ruled that I needed to
15 have a -- you know, a setover. And he let the matter go to
16 Judge Hodson, who ruled that I shouldn't have a setover. I
17 had my trial without the benefit of my defense witnesses.
18 THE COURT: Okay.
19 THE DEFENDANT: That's on appeal, and they're
20 having a hard time down there in Salem admitting once again
21 that the hippie is right. I wish they would just leave me
22 alone and then things would go better for all of us.
23 THE COURT: Okay.
24 THE DEFENDANT: So, Your Honor, in closing, I did
25 submit to the Deputy District Attorney on the case, the

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1 materials I sent to the United States Department of Justice
2 and --
3 THE COURT: Okay.
4 THE DEFENDANT: -- primarily, the Multnomah County
5 Sheriff's Office, although, all the agencies have got this --
6 THE COURT: Okay.
7 THE DEFENDANT: -- about this unending violation
8 of my civil rights.
9 THE COURT: Okay.
10 THE DEFENDANT: I should not even have had to get
11 up this morning to come down here. They should have had the
12 decency as a District Attorney's office to realize that they
13 have no case.
14 When I had talked to you, Your Honor, I had turned
15 down a month earlier -- no doubt, I had turned down a plea
16 offer of two years bench probation. I could have got out of
17 jail for free. Instead, I stuck to my integrity.
18 THE COURT: Okay.
19 THE DEFENDANT: I appeared before you, learned my
20 goods were destroyed, and they still haven't dismissed the
21 case.
22 THE COURT: Okay. So that's --
23 THE DEFENDANT: So I'll appear in front of Judge
24 Bushong.
25 THE COURT: Yes.

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1 THE DEFENDANT: I will, right now in front of you
2 and on the record, I'll present to the Deputy District
3 Attorney, a copy of the materials that I submitted, which I
4 would call the letter to -- to Sergeant Scott Johnson.
5 THE COURT: Okay.
6 THE DEFENDANT: And I'll give them a copy of that,
7 and they could see that these -- these things date back to
8 me, Your Honor, as I do this, to 1989. The Portland Police
9 Drug & Vice gave my ex-girlfriend drugs and money. I went
10 to prison. I filed a motion for return of things seized.
11 1993, I had a hearing and it's still open. I can't even get
12 an order denying my motion in this circuit.
13 THE COURT: Okay. Well, I --
14 THE DEFENDANT: So --
15 THE COURT: Listen.
16 THE DEFENDANT: -- there you have it. I'll see
17 you all tomorrow. Send me a time. I'll get up there.
18 THE COURT: Okay. Well, you won't see me, but
19 you'll see Judge Bushong.
20 THE DEFENDANT: I know you all is plural.
21 THE COURT: And you -- and you know where to go
22 tomorrow, right?
23 THE DEFENDANT: What time was that, Your Honor?
24 THE COURT: That's at 9:00.
25 THE DEFENDANT: Okay. How long do we have

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1 scheduled for that?
2 THE COURT: Well, you're the only one. I didn't
3 send a trial to Judge Bushong, so you would have to --
4 UNIDENTIFIED SPEAKER: And, Your Honor, at the
5 last hearing, he said he was going to have, at least, I
6 think 15 witnesses.
7 THE COURT: Okay.
8 THE DEFENDANT: I would have done a lot of things,
9 Your Honor.
10 THE COURT: Okay.
11 THE DEFENDANT: Instead, I turned this all over to
12 the United States Department of Justice, who sued the City
13 of Portland for the --
14 THE COURT: Okay.
15 THE DEFENDANT: -- Portland Police pattern of
16 practice of having excessive force --
17 THE COURT: So you asked me a question, but you
18 didn't let me answer, okay.
19 THE DEFENDANT: I have no questions. I'm telling
20 you I'm a person with a disability, and I am not going to be
21 able to do what I said I was going to do once I learned the
22 depth of the impact on me for the goods that I had.
23 THE COURT: Okay.
24 THE DEFENDANT: My 30 years of owning my wallet,
25 all the contacts I try to make, to call somebody's whose

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1 business card, I had that when I spoke to you in shackles.
2 THE COURT: Right.
3 UNIDENTIFIED SPEAKER: And, Your Honor --
4 THE DEFENDANT: In my mind. But when I spoke to
5 you in shackles, it had already been destroyed prior to me
6 even getting a notice that it would be destroyed, Your
7 Honor. This is sickening to even hear. How would you like
8 to be the person with a disability trying to endure it and
9 have them say, I didn't do what I said I was going to do,
10 how and when I said I was going to do it? That's why we
11 have, Your Honor, ORS 659A.142, young lady. 659A.142 means
12 this state must accommodate me as a disability -- person
13 with a disability.
14 THE COURT: Okay. And so I'm attempting to
15 accommodate you. I'm sending you out for a hearing for
16 tomorrow morning --
18 THE COURT: -- with Judge Bushong, okay.
20 THE COURT: 9:00. Okay?
21 UNIDENTIFIED SPEAKER: And, Your Honor, just for
22 the record, we are objecting for it to be sent out because
23 he didn't file anything in accordance with Judge Wittmayer's
24 order.
25 THE COURT: Right, okay. Thank you.

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1 THE DEFENDANT: And, Your Honor, I will say that
2 ORS 659A.142 gives me the reasonable accommodation that as a
3 person with a disability, I am not held to these impossible
4 standards.
5 THE COURT: Okay.
6 THE DEFENDANT: I will try to even read the police
7 reports that they sent me in, I would say, 8 font, by my
8 page magnifier was destroyed while I was in custody.
9 THE COURT: So, Mr. Stull, you already won. I
10 already sent you out.
11 THE DEFENDANT: I did that, Your Honor, but I'm
12 not going to allow them to continue to --
14 THE DEFENDANT: -- violate my --
16 THE DEFENDANT: -- civil rights. When I say I'm a
17 person with a disability, and I say I can't do things how
18 and when I said I was going to do it in light of the
19 prosecutorial misconduct, I don't want somebody to object.
20 THE COURT: Okay.
21 THE DEFENDANT: I want somebody to show up at 9:30
22 tomorrow morning --
23 THE COURT: No.
24 THE DEFENDANT: -- and lose --
25 THE COURT: No, no, no.

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1 THE DEFENDANT: -- with dignity.
3 THE DEFENDANT: Are you paying attention, young
4 lady?
6 UNIDENTIFIED SPEAKER: I am.
9 THE COURT: Mr. Stull, not 9:30, 9:00.
10 THE DEFENDANT: You're right, Your Honor.
11 THE COURT: All right. All right.
12 THE DEFENDANT: Thanks for correcting that.
13 THE COURT: All right. Thank you, sir.
14 THE DEFENDANT: I think this is rude.
15 THE COURT: Okay.
16 THE DEFENDANT: I think if we're before you, Your
17 Honor, our attention should be on you. And as a person
18 who's appearing in front of you in your court, I will not
19 have this abuse, because it's abusive to me, because I have
20 a disability, and I do not like people talking when --
21 THE COURT: Okay.
22 THE DEFENDANT: -- I'm trying -- if she has
23 something to say about my case, she can say it to me. She
24 can say it to you. I don't know who this person is that
25 she's even talking to. I don't have somebody sitting over

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1 here for me to talk to and disturb her train of thought.
2 Now I'm getting quite upset, and you can tell that
3 I'm a person with a disability, because I do not need to
4 point my finger at you, except to tell you that this civil
5 rights violation and this abuse must stop.
6 Thank you, Your Honor.
8 THE DEFENDANT: I'm leaving.
9 THE COURT: Okay. Thank you, sir.
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 120 - 208
______________________________________________________________

came on regularly for hearing before the Honorable STEPHEN K.
BUSHONG, Judge of the Circuit Court, Thursday, April 14, 2016
APPEARANCES

Sean Mazorol, OSB #116398
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162
sean.mazorol@mcda.us
Christopher Behre, OSB #130036

Portland, OR 97204
(503) 225-9100
cbehre@mpdlaw.com

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GENERAL INDEX
VOLUME 12 of 29
April 14, 2016 Proceedings Page No.
Argument on Motion to Dismiss by Defense.................. 121
Rebuttal Argument by the State............................ 192
Response by Defense....................................... 199
Judge’s Ruling on Motion.................................. 204
Reporter's Certificate.................................... 208

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WITNESS INDEX
FOR THE STATE: DIRECT CROSS REDIRECT RECROSS
(None.)
FOR THE DEFENSE:
(None.)
EXHIBIT INDEX
Offered Received
FOR THE STATE:
(None offered.)
FOR THE DEFENSE:
101 .............................. 190 ......... 191

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1 PORTLAND, OREGON; THURSDAY, APRIL 14, 2016
2 -O0O-
4 THE COURT: Good morning. Please be seated.
5 MR. MAZOROL: Good morning, Your Honor. Sean
6 Mazorol, the State, M-a-z-o-r-o-l, bar number 116398. It's
7 the matter of State v. Stull. I have two case numbers. The
8 first is case number 15CR52961 and case number 15CR53749.
9 Defendant is present and out of custody. His legal adviser
10 is also here, Mr. Behre.
11 MR. BEHRE: For the record, Behre is B-e-h-r-e, bar
12 number 130036. As was said, I am legal advisor. Hopefully
13 I'll fit that role.
14 THE COURT: Okay. Give me one second to get my
15 computer going, and we'll be ready to go.
16 MR. STULL: And for the record, Barry Joe Stull,
17 pro se, Your Honor.
19 MR. STULL: Thank you.
20 THE COURT: One second. Okay. And these two cases
21 were sent to me to hear what I understand is a motion to
22 dismiss that Mr. Stull would like heard.
23 MR. STULL: Yes, Your Honor.
24 THE COURT: And so it's your motion. You may
25 proceed.

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1 MR. STULL: Yes. Thank you, Your Honor. I should
2 first start, and probably the easiest way is to identify
3 myself for these proceedings as a person with a disability
4 and kind of capture as much of this at one time as we may
5 this morning.
6 I'm going to read the first paragraph of a letter I
7 sent to Multnomah County Sheriff Scott Johnson. The
8 district attorney's office has a copy of that. I also sent
9 it by email on April 6. And I sent that as a result of
10 having some conversation in custody with Sergeant Johnson,
11 and I sent that to the United States Department of Justice
12 as we'll get into a little bit later. But here is this.
13 "I should first state, in spite of any outward
14 appearance of a person with a severe disability, I have a
15 neurological condition, central pain, which is worsened by
16 emotional stress, and among other symptoms destroys sleep,
17 results in chronic pain and nausea, and can be triggered to
18 episodes which have qualities of their own including
19 potentially fatal ones. I'm doing what I can within my
20 abilities to address matters in a timely manner, although
21 what I have recently endured, including in-custody injuries,
22 has itself worsened my condition. Being forced to address
23 these sickening matters is far from how I choose to live my
24 life as a person with my disability."
25 And the footnote here, October 15, 2011, I received

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1 45 minutes of exclusive critical care at Emanuel Hospital
2 Emergency Department to prevent, quote, circulatory failure,
3 unquote. I could die from my neurological condition.
4 So the upshot is that I hoped to prepare for this
5 hearing, but really, I'm hoping that the State sees some
6 reason, and I'll save what I anticipated would be 15
7 witnesses for the trial if they want to proceed to that.
8 These charges relate to two incidents in November
9 of 2015, and if I get the dates correctly, I'll give you my
10 story. That's why I'm here.
11 November 17 I was up at City Hall --
12 THE COURT: So let me stop you just for a second.
13 MR. STULL: Yes, yeah.
14 THE COURT: So this isn't your trial. This is the
15 Motion to Dismiss --
16 MR. STULL: To dismiss, right, right.
17 THE COURT: -- and anything that you say about the
18 circumstances in your -- that led to your arrest and these
19 charges --
20 MR. STULL: Right, right.
21 THE COURT: -- they can use that against you.
22 MR. STULL: That's fine.
23 THE COURT: And they're making a recording of this,
24 so you don't have to say anything.
25 MR. STULL: No, no. Thank you, Your Honor for

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1 pointing that --
2 THE COURT: All right. I just wanted to make sure
3 you understood that.
4 MR. STULL: And part of the problem is I really
5 haven't had -- this is the first time actually an attorney
6 from Metropolitan Public Defender is even hearing these
7 facts.
8 THE COURT: Uh-huh, okay. All right. Go ahead. I
9 interrupted you.
10 MR. STULL: Okay. So November 17th, I was at
11 Portland City Hall, and my friend, Moses Rosen (ph), you may
12 recall his trial with the structure with Michael Rose (ph)
13 years ago. It was on the agenda. We sign up, and it's a
14 big we. You could do it yourself, Your Honor, for what's
15 called a communication. It's three minutes at 9:30
16 Wednesday morning, it's on the agenda, they publish it in
17 the agenda, and they put that in the Daily Journal of
18 Commerce. And on the 17 th , since Mr. Rose is a contractor,
19 he was going after the Home Depot which is very close to my
20 home. So he said, hey, throw your bike in the back of my
21 truck and we'll get out of here.
22 And on our way past Old 91 st and Stark, whatever it
23 is there, a fellow was sitting with his butt on the retainer
24 wall, pants pulled down a little bit, and he said call 911.
25 We look back around, he went on his way to go to the store,

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1 and I called 911. A police officer came out. And in making
2 that call, and this is important to show you my perspective
3 of things, the gal on the 911 call said, “is he
4 intoxicated,” and I said I really don't know because -- and
5 my experience was 20 years or so ago when I was at Portland
6 Community College, my friend came over and said there's a
7 man over there who's drunk and peed his pants. And he
8 actually was dying and did die of a heart attack. He was
9 just misdiagnosed. So the police officer came out and they
10 hauled the guy off. They knew who he was and put him in the
11 ambulance and no high pressure deal.
12 Later that day I went through what's renamed, but
13 it was the Coordinating Committee to End Homelessness, and a
14 fellow was new in town, and I took him up to the Hazelnut
15 Grove up at -- by the interstate and Greeley, it's the
16 mayor's sanctioned homeless encampment. And as I went to
17 leave, my one friend Michael said, no, come back. And then
18 I went to leave, and my other friend, Hiram (ph), says no,
19 we're serving pizza, and help me get it, and all that kind
20 of stuff. And ultimately I ran into somebody who didn't
21 want me there. And I ended up calling 911. And as I'm
22 talking on the 911 phone call I said, and there's somebody
23 going with my bicycle. And the police came out. And that
24 was on evening of the 17 th .
25 And that triggered my neurological condition to the

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1 extent that I took myself to Emanuel Hospital, what was then
2 Friday morning. I went in. They took my pulse. It was 80
3 beats per minute. It should be below 60. And they gave me
4 a quiet room. I talked myself down, and I left, and they
5 gave me the diagnosis central pain syndrome.
6 Sunday following that, I believe it was the 22 nd , I
7 phoned 911 to follow up on the police report from the
8 incident up at Hazelnut Grove because I know how bad guys
9 can take over good things and wreck them. And I had such
10 resistance from the Portland Police Bureau that it's taken
11 me to the point that I called 911, and I said I need a ride
12 to Emanuel Hospital. I don't know why they just simply --
13 and this is all evidenced by the telephone call, so like
14 this is being recorded, it was being recorded.
15 And the ambulance attendant arrived, and I came out
16 my door wearing my gym shorts and holding my exit papers
17 from the previous emergency room. I was wearing the wrist
18 bracelet from the previous, which was Friday. This was
19 Sunday. And I said I need a ride back to emergency at
20 Emanuel Hospital because that's where they actually treated
21 me for that incident back in 2011 which could have been
22 fatal.
23 And just to kind of show how my situation, how it
24 can escalate to quickly, on the ambulance ride, which I
25 already identified a triggering event, on the ride in to

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1 (inaudible) it was 175 beats a minute, crossing the Broadway
2 Bridge less than five minutes before I got into the Emanuel
3 Hospital Emergency Department, my pulse was 90. It had
4 escalated to the point where they had to give me an IV and
5 they tried (inaudible) massage, and it doesn't work because,
6 as my neurologist, Dr. Grimm, testified that owing to the
7 changes in my spinal nerves, my condition is a whole new
8 disease on a molecular basis.
9 And so the ambulance, the paramedic, the AMR
10 paramedic, said no, I'm calling the police. And then I end
11 up with very close to ten first responders: the two
12 paramedics, three or four Portland Fire Bureau, I think four
13 police officers.
14 THE COURT: So it --
15 MR. STULL: That was Sunday night.
16 THE COURT: So and this is before the ambulance --
17 the ambulance didn't take you to Emanuel or is this at
18 Emanuel?
19 MR. STULL: Yes, I got to Emanuel, but I'm telling
20 you how --
21 THE COURT: Oh, okay, okay.
22 MR. STULL: This is preceding that.
23 THE COURT: Okay.
24 MR. STULL: Okay. So the first time I went to
25 Emanuel, this episode, was Friday following the Wednesday

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1 event.
2 THE COURT: Okay. I got that.
3 MR. STULL: Okay. Then I called on Sunday and had
4 this problem with my interface with the Portland Police
5 trying to get access to records on the police report for my
6 records which is what the --
7 THE COURT: Right. Right. I got that.
8 MR. STULL: It just didn't go through, like what's
9 his GPS's key (ph) number, you know, like, Your Honor --
10 THE COURT: You were trying to figure out what
11 happened to your bike, and --
12 MR. STULL: No, no, no. I had my bike --
13 THE COURT: Oh, you had your bike.
14 MR. STULL: But just reporting on that incident.
15 THE COURT: Oh, I see.
16 MR. STULL: Right. And so what happened was, you
17 know, we have a policy, 17 years of hard work later, that
18 the police give you a business card. That fellow was out.
19 He handed me his partner's, wrote his name on it, and it was
20 raining, so it got kind of blurry, and I just wanted to get
21 the facts.
22 THE COURT: Okay.
23 MR. STULL: I was just on a fact finding thing.
24 THE COURT: All right. Got that.
25 MR. STULL: Okay. So Sunday night, not a high

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1 pressure deal from me, but it turned into a high pressure
2 deal when I simply couldn't get the information for whatever
3 reasons. I don't like the black cloud that follows me
4 around.
5 So anyhow, the upshot is, in that -- my situation
6 has deteriorated enough that I myself called 911. I knew
7 what was going on, and I don't know that I have the
8 healthcare, we have -- I know that I was treated there. I
9 don't know what's up with AMR, I don't know why the
10 paramedics there. I do know that the Fire Bureau responds
11 whenever there's a 911 call. And, excuse me, Fire Bureau --
12 Firefighter Sampson (ph) said I needed a knuckle sandwich?
13 I -- skipping along here because I want to get
14 through this, I talked to one of my neighbors, and I said
15 did you hear me saying to the police that I could die from
16 this, and he said yes. And I said, well, I really don't
17 want to talk to you much about this because this is a HUD
18 violation because my neighbor is here, persons like myself
19 with disabilities, and having that encounter where the
20 police and everybody are standing around where I'm screaming
21 my, quote, fool ahead off, unquote, saying central pain
22 syndrome, central pain syndrome.
23 Ultimately, and it was a while, one of the police
24 officers says, I'll give up a ride to the hospital. Puts
25 handcuffs on me. One of the ambulance attendants, not the

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1 one that initially showed up at the door of the two, shot
2 something into my one arm, shot something into the other
3 arm. I passed out. I woke up at Emanuel Hospital emergency
4 room in the treatment room next to the one I'd been in a few
5 days earlier. I walked out; there's Emanuel Hospital
6 security guards, two of them. They're escorting me out of
7 the building.
8 I didn't know what time it is because I don't know
9 how long I had been unconscious. I do know it was cold
10 outside. I do know I have my Honored Citizens Fare paid for
11 in my pocket, and I was going to go to the information desk
12 and ask when the next bus was so I didn't have to spend, on
13 a Sunday, an extraordinary amount of time outside. Didn't
14 make it. They arrested me. One of them says, oh, he had a
15 trespass exclusion a couple of years ago.
16 So the Portland Police came out, and I said, if you
17 physically abuse me I'm going to break your police car. If
18 you just let me get up and sit in the car, I'll ride this
19 one out. And I did. And I sat in the Justice Center Jail
20 watching the reader board for hours after it said ROR,
21 release on recognizance, because they have a system there
22 now, there's actually a reader board that shows your booking
23 photo, and shows whether you're going to get housing, which
24 means they might transport you to (inaudible). It doesn't
25 mean you're going to get housing like we're talking about

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1 your homeless crisis. No, it means you're going to get in
2 the jail.
3 So anyhow, I got let out of the jail at 3:00 in the
4 morning, still wearing my gym shorts and tee shirt. The
5 last bus to my house, at least down here at 4th and by the
6 gas station, by R2 D2 (ph), the China Gate, it goes through
7 there 1:55 in the morning. The first MAX don't start
8 running to my house until hours later. So I get out,
9 39-degree weather, wearing by shorts and gym shirt, and I
10 went in the ambulance to the hospital because I was sick.
11 That was early Monday morning.
12 I got home after daylight. Because what I first
13 did is I took myself to the 7-Eleven, I got a couple
14 burritos, and I know the trick when you get forced out into
15 the cold, you've got to endure it. So then the MAX started
16 running, I got one of those, and then finally got out to my
17 house.
18 I had to go to court Tuesday morning. Well, first
19 thing for me Tuesday morning was seeing the car outside my
20 neighbor's for the Multnomah County Health Department
21 Medical Transport is on the side of her car. And she's
22 picking up my neighbor. I since know that somebody has been
23 knocking on the door trying to get Gary to come out. That's
24 his name. His house is completely aluminum foiled up. You
25 can't see in or out. I don't know; I've never been in. You

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1 can't see in any of the windows. He's got it all blocked
2 off. And I've seen him maybe five times, four times, three
3 times, in over two years. I just never see the guy.
4 Having him being getting a medical transport ride,
5 I said to the driver, we had an incident out here the other
6 night that was pretty traumatic for me, and it got a lot of
7 attention, and I just want you to inform whoever you're
8 taking him to that that might have been a triggering event
9 for him. I don't know what his issues are. I just want you
10 to know that right here there was this big, you know, police
11 car and ambulance and all that kind of stuff.
12 So I then was going across the street, there's a
13 crosswalk at 109 th Avenue, and it's the Indianapolis 500 for
14 people out there on Stark Street. And before I got across
15 the street a couple things happened. I was writing down the
16 cell -- the number of the guy who was talking on his cell
17 phone as he was pushing his bumper against my legs, as I was
18 writing down his license plate number because he almost ran
19 me down. And the fellow on the other side of the street
20 said there's a homeless man, he's out in the street, and
21 there's no crosswalk.
22 Well, it turns out both of these fellows are from
23 Washington, where they don't have our yield-to-pedestrian or
24 crosswalk-marked-or-not law. And I've been living at this
25 same house for other two years. So I was hardly the

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1 homeless person. I was hardly not in a crosswalk. And the
2 fellow ran off telling me -- and they told me I was the
3 third person that called 911 on you. So I can't get on the
4 bus to go to court, which I have today for the Emanuel
5 Hospital arrest where I mentioned I got out 3:00 in the
6 morning the day earlier.
7 So I watch my bus go by; I watch another bus go by;
8 I watched another bus coming. I get on that bus because
9 nobody is responding. I can't leave because that means I
10 was the homeless guy out in traffic or somebody that fit the
11 description, and God knows why I'm running away. So I had
12 to go to court because if I didn't there would be a warrant
13 issued for my arrest.
14 So prior to getting off that exact same number 20
15 bus, down here when I got off at 5 th and Burnside, it was
16 after I talked to three transit police, because a woman who
17 got on the bus, the same stop as me, kicked me. She just
18 full on attacked me. Getting almost run over by a car,
19 getting, you know, kicked on the bus. These are not
20 stress-free events. Plus I'm late for court, and I don't
21 want a warrant issued for my arrest.
22 So one of the things that I had as a coping
23 mechanism for my disability was a white board. I mean it's
24 a cork board and a white board. And I had on that a card
25 that said my name is Barry Joe Stull, please call 911 for

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1 emergency transport to Emanuel Hospital because I cannot
2 vocalize. And I handed that fellow, a fellow, that card
3 outside what we call big pink, U.S. Bank tower there between
4 Burnside and Oak Street. It occupies a couple blocks. And
5 I said I have to go to court. There's already been this
6 incident on the bus, there's already been the 911 calls out
7 in, you know, 108 th and Stark, or 109 th and Stark, and I need
8 you to just, on my behalf, call 911. Let them know that I'm
9 going up 5 th Avenue to Madison and going in the Justice
10 Center. So everybody knows where I'm going, where I'm at.
11 So I did that, and when I get in the Justice
12 Center, as we do here, we take off our garments and we
13 prepare to go through the metal detector, and the fellow
14 wasn't running the belt. I said get started, I have to go
15 to court. I'll be finished with my stuff before you are. I
16 take off all my metal, put it in my wraps, sail right
17 through. He won't even start until I have everything done,
18 and it's a big pile of stuff, and then he starts going
19 through it. And I said the hell with it; you keep it.
20 I scurry up the steps, and then I have another
21 fellow coming up after me. He says your stuff. And it all
22 cleared the metal detector. I come down, I grab my stuff
23 off the end of the roller belt; the second guy who met me at
24 the top of the steps tries to push me out the door. I've
25 got to go to court or get a warrant for my arrest. I can't

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1 even get in the courthouse. I got kicked in the bus. I
2 almost got run over by a car from a guy talking on his cell
3 phone.
4 Skipping some chapters, when I got out of custody,
5 they gave me my trespass exclusion from the Justice Center
6 because I shut down the system there and actually was
7 sitting on the security guard's foot when I negotiated with
8 the -- I've got a name here. I want to say Fair (ph), a
9 corrections deputy. I talked to her, and I said you're just
10 going to let me walk out of here, and I'm going to go down
11 the street, and I'm going to go into the Federal Courthouse,
12 and that was that. That was the Tuesday I'm talking about,
13 relating to my (inaudible).
14 I went over to the Federal Courthouse because I
15 knew this whole thing with the police breached the
16 settlement agreement with the United States Department of
17 Justice about the use of force and all that kind of stuff.
18 I mean, for Christ's sake, getting handcuffed and shot with
19 drugs until I'm unconscious on the way to the hospital is
20 hardly a hands-free.
21 Anyhow, it turns out that the folks that did the
22 settlement -- I was part of that back here in 2014. I did
23 my public testimony, and February 2014 there was a pretty
24 massive public hearing. And it turns out that all those
25 folks are now in Washington, D.C., the U.S. Deputy Attorney,

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1 Adriana Brown, and so on. So it was basically there's
2 nobody home, you know, this is not the place.
3 And so at that point I knew how sickened I was.
4 And I walked across to the City Hall where there's an Office
5 of Neighborhood Involvement where they answer the telephone
6 "city/county information." And I walked in and I said I
7 need a Multnomah County Medical Department transport ride to
8 my home, just like my neighbor got this morning.
9 At the time I had G4S, I typo-ed it for days now as
10 Q4S, G4S Security, James Wood, was standing right next to
11 me, very close, I mean right next to me. And I told him
12 about the incident over here at the Justice Center Jail, on
13 my way into court rather, and I went upstairs as I was
14 waiting to see -- what happened was, the actual exchange was
15 important. I'll get back to that. But I went upstairs, and
16 on my out I stopped into Amanda Fritz's (ph) office, and I
17 got a lollipop to take this pressure I had from the security
18 at City Hall off.
19 And I got a lollipop from Jasmine Gamble (ph). And
20 she's known me for years, Your Honor. And I said, oh, and
21 by the way my father has a picture of a lollipop you gave
22 me, and me eating a lollipop, and thanks a lot. Well, I
23 know now, and that's important, and then I'll flush out the
24 details, that the City excluded me because I went into the
25 city Office of Neighborhood Involvement and demanded a city

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1 ride home when, in fact, it was specific, Multnomah County
2 Health Department medical transport. I really don't need an
3 ambulance and ten first responders. I need to have somebody
4 that I'm safe with, that I just get a ride, 15 minutes later
5 I'm in my house once they pick me up. No big deal for me,
6 as a client of the Multnomah County Health Department with
7 healthcare.
8 I have my healthcare. All these things were not
9 easy for me to get. My housing was not an easy thing to
10 get. My status as a person with my, I grant it was not
11 easy, and I have all these things. And so I now know that
12 the exclusion, in their mind, was a product of my demand of
13 a city service that doesn't exist. Instead, what I did was
14 I asked for a county service that does exist.
15 And just as to kind of bolster my -- I'm not
16 totally nuts, is next door at the Portland Building I saw a
17 vehicle, the city, it said 823 -- 503-823-4000 is the
18 number, and then driving by was one with the county,
19 503-823-4000. They answer the telephone there "city/county
20 information, can I help you?" And I just happened to be a
21 walk-in client. And the gal at the desk apparently didn't
22 know that the Multnomah County Health Department had a
23 medical transport or didn't know what was going on, and she
24 handed me the phone and says you're going to have to -- we
25 don't provide ride service here. You're going to have to

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1 make a private phone call. And she handed me the phone.
2 The comedy routine continued. I dialed 823-4000.
3 The phone rang across to counter, to her, and I said can I
4 have Marco Circosta please. He works with the office of
5 Deborah Kafoury. When I interface with her office, I see
6 Marco Circosta. I said Marco, Barry Joe Stull at Portland
7 City Hall, I'm sick, I need a Multnomah County Health
8 Department transport ride to my home. Got my lollipop and
9 got out of there.
10 But Mr. Wood, and then two other of the security,
11 told me that I had a 24-hour trespass exclusion from
12 Portland City Hall. And I said that's not legal. I'm on
13 the agenda for 9:30 in the morning. I had my agenda topic
14 of the Free Music Zone in the 1994 Partnership Agreement
15 with Street Musicians. That document is important to me, and
16 that date was important to me because in 1994, when they
17 adopted that 1994 agreement, we'll call it, it has that free
18 music zone section in the language, and it was endorsed by
19 Portland City Hall, including Charlie Hales who is now
20 mayor. So I was going to go in front of the fellow who
21 signed it with the promise that they were going to support
22 it.
23 That document is lost in the archives. I went to
24 city archives after the auditor said that they couldn't find
25 the 1994 partnership agreement. I got my copy of it in 2011

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1 from the City. I knew by then that in 2010 the Sidewalk
2 Management Ordnance has that as an express exception. If
3 I'm a performing as a street musician pursuant to the 1994
4 agreement, the Sidewalk Management Ordnance doesn't apply.
5 So had the City, on the sign out here a block or two away in
6 front of City Hall, Sidewalk Management Ordnance saying that
7 that 1994 agreement is an exception, but there's no 1994
8 agreement.
9 I had also spoken to Noise Control, Paul van Orden,
10 and he said he had a copy of it, and he said he was going to
11 post it on his website. And I don't know whether he's done
12 that or not. I'm just saying that when I was going in, I
13 was going in on a really, really politically charged
14 situation because the Sidewalk Management Ordnance was voted
15 in without a quorum back in 2010 because Commissioner Dan
16 Saltzman left the meeting and telephoned in his vote, and
17 they didn't make any of the things that were made an
18 electronic communication legal. So they just didn't legally
19 vote that in.
20 And so I knew that all the time, so -- and I also
21 had the situation where we had the housing emergency crisis
22 and the Hazelnut Grove where I had my -- where I had my
23 incident, I felt threatened enough I called 911 for crying
24 out loud.
25 And the entire five-plex, (inaudible) Court

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1 Apartment was vacant for, at that point, over four years,
2 and it's affordable housing. It's owned by my former
3 landlord, PCRI, and PCRI is funding with and funded by and
4 partnering with the City. So the apartment complex where I
5 fought bitterly a 30-day no cause ten years ago only to have
6 20 grand of my property destroyed. This is no secret. It's
7 all over the map.
8 They've been keeping the affordable housing vacant
9 and haven't collected some quarter of a million dollars in
10 affordable housing rent in the tightest rental market in the
11 country. And I said to city hall, with Chief of Police
12 O'Dea present in January of 2015 --
13 THE COURT: So can I ask you a question?
14 MR. STULL: Yeah, yeah.
15 THE COURT: Because you kind of lost me a little
16 bit.
17 MR. STULL: Yeah, I'm sorry.
18 THE COURT: Because I was following that they gave
19 you the 24 hour trespass exclusion from City Hall --
20 MR. STULL: Right, right, right.
21 THE COURT: -- and you were objecting to that
22 because you said, hey, I'm on the agenda --
23 MR. STULL: And saying the circumstances of why I
24 was on the agenda.
25 THE COURT: Got it, got it.

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1 MR. STULL: So, in my mind, you don't have to be
2 paranoid or just because you're paranoid doesn't mean
3 they're not out to get you.
4 In my mind, I had every reason to think that people
5 didn't want me to appear at city council and talk under
6 those circumstances. I -- there's a gal here in town, and
7 when I was searching for some of this stuff on the internet,
8 Mary Ang (ph), and she posts, and sometimes she'll be
9 sitting next to me on one occasion as I was giving my City
10 Hall testimony. And it was going out on cable access on the
11 internet. But Mary Ang called one of my presentations
12 "driving in coffin nails" because I'm really well skilled in
13 the law, I'm skilled in the facts, I was there historically,
14 and I don't give them any room to go, there's just nowhere
15 to go with this stuff.
16 So the decent fellow that I am, I told them the day
17 before, I'm coming in, I'm on the agenda, and on the way in
18 cell phones started ringing. You know, I'm giving them far
19 more credit than they deserve, especially in hindsight.
20 They didn't do the decent thing and find out I was right.
21 But in the interim Judge Simon ruled in Walsh v. ING (ph)
22 that the entire section of the City Trespass Code was
23 unconstitutional on its face.
24 So I knew that, and I knew Joe Walsh was taking
25 this case to federal court because I told Joe Walsh, take

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1 your case to federal court, go up to the seventh floor and
2 get the forms and fill them out. And then I shared the
3 State v. Koenig (ph) case law with Joe, which is how we
4 interpret the trespass from public buildings here in Oregon,
5 and I knew that. And I'd also used the Koenig case when I
6 was arrested in February of 2012 at Central Precinct lobby.
7 Your Honor, I went in to report as a protected
8 party with a restraining order because my situation is
9 something I don't suffer abuse. So I got a restraining
10 order, and a fellow was violating it, and I went in to
11 report it. And I was arrested in the Central Precinct
12 lobby, and I was found not guilty on my Motion of Judgment
13 of Acquittal in -- the arrest was in February, and the
14 judgment was in May of 2012.
15 And how I got arrested was Sergeant Holbrook posted
16 a booking photo with the orders that if I came into Central
17 Precinct, arrest me for trespassing. So I'm on the list
18 with the Portland Police. And every time, with the
19 exception of the time I mentioned at Emanuel Hospital, that
20 I'm taken into custody, I am physical abused.
21 Just referring to the documents the State provided
22 in discovery, Portland Police Bureau Officer Sing (ph)
23 reported at the arrest at City Hall that I said don't put
24 the handcuffs on me tight please because I have neuropathy.
25 I'm a musician, I play the piano and the mandolin, and other

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1 things, and as I touch my fingers here right now, Your
2 Honor, they tingle on the backs of my hands because I've had
3 handcuffs on my hands so many times.
4 I was arrested performing as a street musician in
5 August, 2011, not guilty. That's the booking photo that
6 Sergeant Holbrook put on display at Central Precinct. I was
7 arrested October, November -- August, October, November,
8 December, February, July 14 th , July 17 th , July 17 th again,
9 July 19 th , July 19 th again.
10 The second time on July 19 th , Sergeant Holbrook
11 showed up when I was about to get in the ambulance and said
12 we've got your ride here, Mr. Stull. He gave an “I refuse
13 medical attention” form that they filled out on my behalf,
14 they gave that to the Justice Center medical staff, I was
15 locked in cell door S-175 for I think sixteen hours or some
16 really (inaudible). No medical treatment. The jail door is
17 permanently bent in the frame, and it looks like it got run
18 over by a truck because I could die from this. When
19 adrenaline is triggered and it feeds back and it makes that
20 heart rate go, it must go somewhere, externally or
21 internally.
22 So I've got the practice now that when they arrest
23 me, and it's pretty outrageous when they do, Your Honor,
24 when they arrest me I break their police cars because I know
25 I don't get medical treatment in the Justice Center Jail,

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1 and I know from my neurologist telling me that if I vent it,
2 it's gone. Fight or flight. There's no fleeing, and
3 there's no fighting because I'm not going to hurt people.
4 So the lens I'm trying to draw down to today, Your
5 Honor, is under our Oregon disability laws, the State of
6 Oregon is prohibited from disability discrimination, just
7 like -- and it turns out with the Oregon administrative
8 rules, the State is under the same interpretation as public
9 accommodation.
10 And the arrest took place because I said I was on
11 the agenda, and I wasn't going to leave. And they insisted
12 on having people come in here. And I have read the police
13 reports. It's incredible the font size they send that in.
14 But I've read the police reports, and it says that the
15 police were called Tuesday, the day I got my lollipop; the
16 Portland Police were called that day. And then it says the
17 next morning, according to one of the versions, and there
18 are conflicting versions, and that's kind of what I'm trying
19 to address, the next morning that they just wanted me to
20 leave.
21 And then it says that when I was approached by
22 Sergeant Axfilm (ph), I believe he pronounces it, he shoved
23 me in the center of my chest because he felt that once he
24 placed himself within a certain proximity of me, that I made
25 a threatening move toward him which meant that he had to

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1 shove me in the center of my chest.
2 And in my massive file here, Your Honor, I have
3 what was the December, 2011, address or arrest. I got on
4 the MAX and transit -- Multnomah County Sheriff, I believe
5 deputy, but Mowery (ph), was assigned to transit duty, and
6 he got on the MAX, and he came up behind me and grabbed me
7 on the shoulder and said, “Are you Charley?” And I said no,
8 and that's offensive physical contact. I want your badge
9 number. You can have an encounter with me without touching
10 me. And I told that story to one guy, and he said that's a
11 good way to get punched, just come up behind somebody and
12 put your hand on them. I wouldn't even do it here to my
13 assigned counsel.
14 So anyhow, how I sent this document to Sergeant
15 Johnson was I had -- I report this stuff to internal
16 affairs. So I can recall when I was relating that incident
17 to the internal affairs, one of the two that were sitting
18 there said that he was having none of that. I want your
19 badge number. No, I'm busting you. I said -- he said you
20 have to get off the train. I said I'm getting off this
21 train because I don't want to ride with you. I wasn't
22 Charlie Bernbeck (ph) who he thought I was.
23 And so when I stood up, in December, 2011, it was
24 after this October 175 beats a minute thing, I got pushed in
25 the chest, both hands, boom. I had my trial. Prior to my

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1 trial I went by ambulance from the federal attorney's office
2 over here on the seventh floor because I was just absolutely
3 beside myself because I got charged with being on the train
4 illegally, which I was found not guilty. And I got charged
5 with, I think, harassment, an offense of where I touched
6 him, which I didn't do. And what I was found guilty of was
7 pulling the red handle on Pioneer Square on the stop MAX
8 because the same transit deputy pushed me off the train into
9 a boarding woman passenger.
10 Then I went to court, and I saw that I was charged
11 with being on the train illegally. I was charged with, you
12 know, harassment, when I hadn't done that and is why I
13 prevailed in court. But the shock of having those charges
14 brought against me meant that I have a pantheon of bills I
15 owe; I have a thousand-dollars-plus bill for an ambulance
16 ride from the Federal Courthouse to OHSU for my central
17 neuropathic pain being triggered.
18 When I walked into the Justice Center to go to
19 court and find out that I had charges that were totally
20 fabricated by a cop who -- a transit cop, Sheriff's Deputy
21 Mowery, who made up the encounter thinking I was somebody
22 else, physically abused me. I deserved to ride -- I rode
23 the bus or the MAX today, and I didn't have anybody punch me
24 or push me in the chest. It was great. I loved it, right?
25 So I don't like it when I'm at City Hall certainly,

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1 and frankly I do not even recall that shove in my chest. I
2 don't even know how that happened. But I do recall Officer
3 Todd Engstrom saying, and when you get out of jail, this was
4 important to me, when you get out of jail you're going to be
5 arrested for assaulting a police officer.
6 So whatever they're there taking me into jail for
7 is not going to be the last one. There's one more coming.
8 I've got one more coming after this.
9 So how -- none of this process should have
10 happened. It all should have been filtered out at the
11 moment, and close to this arrest on YouTube, and I only saw
12 two minutes of, believe it or not, on a Hindi Indian music
13 site. I just clicked through and there it was. But it was
14 about two minutes before the library kicked me off, and I
15 didn't need to go back because what it said was I need
16 emergency medical attention for my central pain syndrome. I
17 said I could die from this. Call 911.
18 That was minutes before the police came. When the
19 police came, the police told me, and it's in the police
20 report, they told me an ambulance was outside. And when I
21 was minding my own business up here at the central library
22 and some guy punched me so hard into my seat my groin hurt
23 from the muscles being stretched, I went to the Emanuel
24 Hospital, they took a -- you know, they ran me through the
25 expensive scanner to make sure I was all right.

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1 But the point is, when the ambulance responds, the
2 paramedics come into the building with a gurney and they
3 take you out. They don't wait outside at the curb. So I
4 knew the police were lying to me, and once again, just like
5 two days, whatever it was earlier, however you want to do
6 the math, certainly not much more than 48 hours earlier, the
7 police interfere with me getting medical attention, and then
8 they abuse me, they're hauling me out of the building, and
9 then they send me to the Justice Center Jail where I don't
10 get medical treatment, and I went through all that.
11 And the problem with me, Your Honor, is that I have
12 enough experience to not break the law. I also have enough
13 integrity to know, as I do now and I did then and as we all
14 know, that you can't just pick somebody you're going to
15 bird-dog in the building because he's got some controversial
16 stuff you're tired of hearing about years and years later.
17 You can't just say to me, less than 24 hours, you can't be
18 here tomorrow. There's just no way that that's legal, and I
19 said so at the time. And I came in the next morning.
20 Instead of having the integrity to say, Mr. Stull, you're
21 right or, Mr. Stull, you're wrong, but we're going to give
22 you a provisional exclusion so we don't knock you off the
23 agenda again. Because the only time, Your Honor, that I
24 ever missed a communication, and there were three of them,
25 was when I was in jail.

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1 On appeal right now I appeared before you in a case
2 those (inaudible) arrests in July of 2012, just to sum up
3 here. I was arrested August, October, November, December,
4 February, July 14 th , 17 th , 17 th , 19 th , 19 th , August 29 th . The
5 only thing I have a conviction for was December pulling the
6 red handle on the MAX and the July 17 th , 17 th , 19 th , 19 th , and
7 August 29 th are on appeal because the Portland Police refused
8 to accept my defense witness subpoenas and got away with it
9 in this courthouse.
10 And so May of 2015 I got my notice that that appeal
11 was under advisement. Here it is almost a year later; they
12 still haven't rendered the opinion. These things are
13 unresolved which means that at Emanuel Hospital they think
14 it's perfectly all right to when I'm waiting in the waiting
15 room to come out and call the police because, "He's here
16 again" they say, and there's never anything wrong with him.
17 It's a whole new disease on a molecular basis. And so my
18 issues here are the City of Portland, through its agent, the
19 security guard, violated my rights as a person with a
20 disability, as did the Office of Neighborhood Involvement
21 staff when they simply didn't inquire as to how I could or
22 couldn't obtain a Multnomah County Health Department medical
23 transport ride.
24 Also, the City's claim and their permanent
25 exclusion from City Hall, that I demanded a ride from

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1 Jasmine Gamble in Amanda Fritz' office when I actually got a
2 lollipop, that's easily disproved.
3 And how -- these are all triggering events for me,
4 Your Honor. And the Oregon Revised Statute Chapter 659A has
5 the definitions, and episodic is well recognized. And I'm
6 triggered into episodes. And even on this case, yesterday,
7 I came in and here we are. Not an easy event for me to
8 accomplish because they said they were going to object
9 because they didn't get any paperwork in. But I went to get
10 discovery because I had gotten an email from the district
11 attorney's office saying come to the sixth floor, bring your
12 ID. And I did that, and I did that, and they wouldn't give
13 it to me. They called security. That's when the guns show
14 up.
15 And lucky for me, these guys with guns have been
16 following me around this courthouse for years, and they all
17 know my story. I mean they know that I get upset, that I
18 yell, and I get upset, and I yell because I got the email;
19 if I could log onto the internet right now, and I could show
20 you it. And I shouldn't have to live my life that way.
21 Because they invite me here to the courthouse, I come, and
22 they make mistakes and it's all my fault.
23 So I'm trying to affect that as a person with a
24 disability, the State of Oregon cannot drag me through this
25 with nine court appearances and a dismissal as a person with

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1 a disability because I never should have been subject to the
2 arrest. And I want to do that before I kind of flush out
3 why I feel that I can show you here in five minutes why I
4 had ineffective counsel and how, ultimately, that led to the
5 destruction of my property.
6 I got out of jail on the 9 th of February once the
7 district attorney dismissed the felony charge I was in on,
8 felony assault of a police officer. And I learned and
9 confirmed the next day, and the day following, that my
10 property was destroyed on February 4 th . Everything that I
11 had in my possession when I was arrested at City Hall, 9:30,
12 November 25 th , was destroyed including my flash drive and my
13 house keys removed from my belt loop by Sergeant Axfilm
14 while I was in the police car. When I got out I had to ask
15 Deputy Marshall Kelly to call my landlord to see if I could
16 get keys to get into my house.
17 I joke now that the police have more keys to my
18 house than I do because my landlord doesn't have a key to my
19 back door, and I don't either. Just those were taken from
20 me. Now the interesting thing about that, Your Honor, is I
21 have my Honored Citizen ID, and I carry it on the exact same
22 type of lanyard, and I got that with my property on my
23 release. I also got with my property the Portland property
24 warehouse receipt prepared by Officer Engstrom which has on
25 the plastic buckets and the guitar and the -- my backpack

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1 with personal items. And I had years of important documents
2 that I'd saved by PDF, and it was on my flash drive because
3 my goods keep getting destroyed.
4 When I was appealing in the 2006 eviction I was
5 locked out in violation of the state -- 2005, in
6 November 2005 I was locked out in violation of a state
7 pending appeal. March 2006 the Court of Appeals ruled I
8 never should have been locked out. The landlord took a week
9 to throw out everything in the apartment. Fifteen year --
10 $15,000 worth of stuff I could add up, and the research for
11 the book they knew I was writing. I proved all that. They
12 did it again. October 2006, threw out $4,700 and $75 worth
13 of musical instruments and tools from that what I said is
14 now vacant, was as of Easter, five-plex.
15 Well, part of the situation here, Your Honor, is I
16 have -- I got a check for $4,775 from State Lands because I
17 never cashed the check for a quarter of what they destroyed
18 three and a half years later. I wasn't going to take what's
19 called satisfaction. We know what that means. It's a legal
20 term, but anyhow, I did have that check, and I knew that
21 when I went into custody.
22 So the discovery that I got, Your Honor, if I can
23 just get to that. I was appointed a Metropolitan Public
24 Defender at first appearance, and then on both of these
25 cases. And I had been -- I was represented by Metropolitan

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1 a couple times by Harry Carson. And Harry Carson and I both
2 went to Lewis and Clark College although I never went to law
3 school. Harry's supreme court case, State vs. Gaines, is
4 cited almost every day in this courthouse, and his supreme
5 court case cites my supreme court case, Stull vs. Hoke,
6 which I filed in 1994 originally when I was in prison on a
7 pot bust. It's a legal gray area, what's the filing date
8 for prisoners. And so we now know.
9 And the punch line for me, Your Honor, is that
10 30-day no cause piece I filed was against the statutory
11 prohibition because my rent was paid. ORS 105.120 still
12 says, although it's been renumbered, that the landlord may
13 not bring or file the 30-day no cause when the rent is paid.
14 So it wasn't even legal for the landlord to walk in the
15 courthouse with the paperwork to be in a situation to throw
16 out $20,000 worth of my stuff.
17 So I don't like coming into this courthouse because
18 it feels like it's an alley I get mugged every time I come
19 in here. I can't be a crime victim in this city. I was
20 victimized on the bus on my way to court that morning, but
21 nothing from the district attorney's office on that as me
22 being a crime victim. And then these completely fabricated
23 things that lead to me being in custody on a felony charge
24 that was in no way a felony and could not be proved a
25 felony, and they knew that as of the day that they filled

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1 out the police report.
2 So off the top of my head, Your Honor, the
3 discovery that I got, and while we're here in this format
4 today, Your Honor, is because the discovery that I didn't
5 get that I got subsequently, but it says the same thing and
6 more.
7 Owing to the United States Department of Justice
8 suing the City of Portland, there's a legal mandate that the
9 -- you know, according to the Department of Justice that the
10 Portland police do a use of force incident report, and in
11 filling that out, under injuries, would have injuries,
12 officer, none, subject none. Well, aside from my in-custody
13 injuries, Officer Engstrom said on that date he wasn't
14 injured, and they produced the DA information and subsequent
15 to that had a grand jury on December 10 th , 2015, where
16 Mr. Wood, the security guard when I was getting a lollipop,
17 was claiming I was asking for a ride. And Officer Engstrom
18 testified to the grand jury, and they produced the felony
19 indictment for my having intentionally injured Officer
20 Engstrom.
21 I got that material on January 8 th , which was some
22 -- getting pretty close to a month and a half after my
23 arrest. It was well over a month. It was a month and weeks
24 before I got discovery. And I read that, and I had
25 absolutely no communication with my court appointed

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1 attorney.
2 And when I had communication I would call -- there
3 were two cases. Initially the Emanuel hospital case was
4 assigned to Jane Fox. If I'm getting her name right, Fox.
5 And my first call, where she answered the phone, she said
6 you're hard to get ahold of. And I learned that the sheriff
7 was blocking my telephone calls from my attorney. And then
8 she said you have court tomorrow, and I said yes, I do. And
9 she said well that case is assigned to Kasia Rutledge and I
10 say no, the court documents say it's assigned to you.
11 I don't know what happened the next morning. I
12 didn't go to court. The following day, which was the --
13 that was Wednesday, the 9 th of December, the following day
14 was the 10 th , and they had the grand jury. For the 11 th I
15 went in front of Judge Ed Jones where I got the indictment
16 saying the felony.
17 And then I got a call from Ms. Rutledge on the 5 th
18 of January. And she said that the plea offer was that if I
19 pled guilty to attempting assault of a police officer, since
20 the district attorney assigned -- deputy district attorney
21 assigned to the case realized they couldn't get a felony
22 charge or conviction, if I pled guilty to attempted assault
23 on a police officer, I would get two years bench probation,
24 I would get assigned to Harry Carson, so I could come to the
25 courthouse and plead guilty, and it could be expunged. And

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1 she was going on vacation, see ya. And you have every right
2 to a jury trial -- a trial in 60 days, but she says, she's
3 asking for more time because of her schedule.
4 The -- so my history was I was in custody. The
5 very person that took me from the Portland Police Bureau
6 custody to the Justice Center, the handoff so to speak, the
7 handcuffs off so to speak, agreed to testify about the marks
8 on my hands from the handcuffs. And it's pretty simple,
9 Your Honor, to injure somebody that's in handcuffs by
10 putting the handcuffs on too tight, which is one technique,
11 or even putting the handcuffs on too loose and then pulling
12 the elbows out because then the handcuffs simply ride until
13 they get to a wide point, and once you're pulling the elbows
14 out, that's -- you're -- the backs of your hands turn to be
15 in a link of the chain. And that's what happened to me.
16 When the Portland Police came into the City Hall, I
17 got pushed in the -- I have a fellow telling me that as soon
18 as I get out I'm going to get arrested again. Nobody told
19 me I was under arrest. And when I finally realized that
20 these guys want to have a physical -- these guys want to
21 fight with me. These fellows have come to me, they put
22 their hands on me, they're not having a calm, quite
23 conversation about Mr. Stull. And it turns out, owing to
24 the discovery I got in March, that's because I'm a transient
25 and mentally ill according to the Portland Police.

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1 So why do I have four neurologists diagnose me with
2 central pain condition so a Portland Police officer can say
3 I'm a transient, although I'm housed for years, and I'm
4 mentally ill? Well, it's simple. I don't follow the rules,
5 they abuse me physically, and I don't tolerate that, and I
6 don't resist it.
7 The claim here, in their files, is that I kicked
8 Officer Engstrom. And if I kicked Officer Engstrom, Your
9 Honor, it would be like me saying that when I took my
10 bicycle out of my house this morning and I was carrying it
11 down the steps and I accidentally banged the pedal into my
12 shin, that the bicycle kicked me. He was doing a wrist lock
13 that still hurts on my right wrist, and they were dragging
14 me with the handcuffs pulling me apart and certainly not a
15 whole lot of help bearing my body weight as he's doing the
16 wrist lock. And they did that all the way to the police
17 car. And you know and I know that passive resistance is not
18 resisting arrest, and that's how they interpreted that, that
19 I was resisting arrest.
20 And so in the Department of Justice use of force
21 report, which is in the discovery, it says was there EMS on
22 the scene. Now at the time of my arrest there was a fellow
23 that was videotaping me with his camera, and he got
24 arrested. And the police reports state they checked his
25 wrists because he was complaining about his cuffs. The EMS,

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1 somehow he didn't -- he was probably a little outraged at
2 the time and might have been a little angry with any kind of
3 person with a uniform at that point, but anyhow, the EMS did
4 some kind of checking according to the police report, but
5 not of me. They put me in the police car that was parked in
6 front of the ambulance.
7 And when I got out of the police car we found out a
8 number of things. One, that I had been abused owing to the
9 handcuff damage. My birth date was given as one that was
10 created by the Portland Police in 2009 along with my aka,
11 Barry Joe Stully, same name with a "Y" no less. And to me
12 that just shows that the Portland Police have created, in
13 their own mind, the guy that they arrested, as the transient
14 who is mentally ill.
15 We're having some social progress, Your Honor, and
16 I sent this document, and I do have a copy here. I do know,
17 from being trained in public speaking, don't hand people
18 documents because then they just start looking at them and
19 reading them. So if there's anything that you need to know,
20 I've got the chapter and verse case numbers dating back to
21 1989.
22 The -- my being on the list is something that could
23 get me killed, if not by having the first responders,
24 including, as I mentioned, Firefighter Sampson, saying I
25 need a knuckle sandwich, including having those kind of

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1 incidents, if I go into custody and I can get out of jail
2 free, all I have to do is just say I attempted to hurt a
3 police officer, then I'm going to be the guy that shows up
4 with all these arrests if not convictions.
5 When the young man who was sent to go to the trial,
6 which I mentioned about being arrested at Central Precinct
7 lobby and found not guilty, he told me a month later that he
8 had never even known that I was found not guilty. I walked
9 into Central Precinct, was arrested, went to jail, went to
10 trial, was found not guilty, and the fellow that went to
11 that trial never knew that I was not guilty.
12 So I don't know what Sergeant Holbrook thinks of
13 me. Sergeant Holbrook and myself were both present when
14 Moses Rosen had his arrest up here (inaudible). We know who
15 we are.
16 In the meantime, there was a shooting, fatal to the
17 person who got shot at, and we don't know whether Sergeant
18 Holbrook or the officer with him actually killed the guy
19 because more shots fired than actually struck the person.
20 But as I'm interfacing with Sergeant Holbrook, in his life
21 he actually killed somebody, and I talked to a friend of
22 mine as this has been playing out over the years, and it's
23 like what can I do, like a medic alert bracelet that
24 identifies people that no, I have a neuropathic pain
25 condition, it's neurological condition. But I came out of

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1 my home, gym shorts and tee shirt with the exit papers,
2 wearing a hospital wrist bracelet, saying call them. But
3 none of that works.
4 And so when I got the after-incident report in
5 March, and I read that I'm labeled as a person with a mental
6 illness and that I'm labeled as a transient, and you know no
7 injuries once again, yet I'm in on the felony charge of
8 intentionally injuring somebody that wasn't injured.
9 When I got that document, part of it was like,
10 well, this is a long time to wait for discovery. But the
11 other part of it is, well, isn't anybody but me reading this
12 stuff? How can the district attorney -- I use a plural term
13 -- how could the district attorney reduce the felony charge
14 and come back with an information without realizing that the
15 felony charge was a product of false testimony by Officer
16 Engstrom in front of the grand jury? If there were
17 injuries, he could have checked the form. He didn't. He
18 didn't report to the Department of Justice, and similarly
19 the after-incident report also doesn't include that.
20 So I stated here, and I'll state it right now, I
21 feel that I was pressured into taking a plea bargain which
22 was tantamount to a death sentence in many of my colleagues'
23 eyes. I'm not that confident that they're out to kill me.
24 I know that I certainly could have been run down by that
25 fellow speeding and talking on the cell phone. That could

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1 have killed me. We know that people die in custody. That
2 could have killed me.
3 I'm not confident that all these mistakes are a
4 giant scheme. But I will say that in my assessment of
5 Ms. Rutledge as my court appointed attorney, she got off
6 easy. Plead guilty, expungable, get out of jail, it all
7 goes away. No trial, no police reports, no this, that, and
8 the other thing. But no, I'm not going to plead guilty to
9 attempting to assault a police officer when I have the
10 police in their police reports, and I have the police
11 telling my colleagues, that I threatened to kill a police
12 officer. That's in the discovery. Officer Engstrom, who
13 said no injuries, and then went to the grand jury, who
14 produced an intentionally injured felony indictment, no
15 injuries. He says in his police report that I threatened to
16 kill him.
17 So the trick is, get me in custody. Don't give me
18 medical treatment, don't give me access to my attorney,
19 subject me to all of the abuses that I won't even get into
20 that I endured in there. The whole time I have a check for
21 over $4,800, and my bail is 1100, and I can't access it. My
22 friends tell me they tried to put money on my book so I
23 could use the phone. The cards don't work on the computer.
24 I finally got Ladina Maddox (ph) a power of attorney. I
25 mailed it out January 25 th , and she -- her pressing schedule

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1 no doubt, kept the cashier's check for the $1,300; took it
2 to the Multnomah County Sheriff. They wouldn't bail me out.
3 They wouldn't accept my cashier's check for $1,300. Now for
4 me, who cares, because that was the 5 th of February, and my
5 goods were already destroyed on the 4 th of February.
6 But, Your Honor, I had that wallet in my backpack
7 for 30 years, all of my functioning things as a person with
8 a disability. If I wanted to show you the font on this
9 discovery, I could right now, and I could actually read it
10 right now because I could pull out my page magnifier because
11 I had a page magnifier.
12 These folks have been doing this institutionally
13 for years, and they've been doing it to persons like myself
14 with disabilities. So as much as it's obviously an
15 injustice to have me in on a felony charge until my goods
16 are destroyed and give me the notice on my way out, I got
17 that same property receipt as discovery, but it doesn't have
18 the notice on it. The only notice apparently is on my copy
19 which says, in fine print on the backside, this is your only
20 notice, which I received, as I mentioned, on my way out,
21 after my goods were destroyed.
22 So once I make a request as a person with a
23 disability for reasonable accommodation, everything that
24 doesn't do that is retaliation. That's the lens that we
25 view this through.

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1 And the enforcement history I had with Harry Carson
2 was that we win. As I sit here, my neck hurts from having
3 the campus safety scour my head on the paving stones in
4 2010, intentionally knowing I was an alum. The college was
5 upset because I testified against them in a land use
6 hearing. Harry Carson and I overcame that attempt to
7 convict me for my alum and his alum attacking me. And the
8 district attorney's office wouldn't prosecute those three
9 fellows that mugged me because they worked for Lewis and
10 Clark College. In spite of Judge Marcus' order for a new
11 trial, which the State said they weren't credible, how they
12 physically abused me.
13 So as I sit here I'm enduring the in-custody abuse
14 I had from 2010, right here my neck still hurts. And I can
15 stand on my head with a no-hand head stand. So it's not
16 about that. It's -- I cannot overcome these unending
17 assaults on my civil rights.
18 So when I walked into the Office of Neighborhood
19 Involvement that was "the" civil rights violation because
20 they announced to us that we have say Judge Jones federal
21 court on -- it was early. It was Smith vs. Safeway or
22 something early on the ADA, and it had to do with a truck
23 driver and alcoholic, but the point is, is that the
24 reasonable accommodation is an interactive process, and the
25 Oregon State Statute and particularly the Oregon

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1 Administrative Rule pretty much follow the ADA and some
2 other legislation, it's a little broader.
3 But the ADA -- a person with a disability, it
4 triggers the reasonable accommodation request when the
5 person knows that the person has the disability. And that
6 can be by me saying that I have a disability. It could be
7 by Mr. Behre saying, or it could be by your observation, so
8 -- or any of the other parties' observation.
9 So when I went in to the Office of Neighborhood
10 Involvement, there should have been more of a “what's going
11 on here.” Just like when I went into the district
12 attorney's office yesterday, with the court order from Judge
13 Marshall that appoints me pro se, they should have allowed
14 me to open up my brief here and to take out the file and
15 say, see, I am representing myself, and yet you can't give
16 me discovery? And he already sent me the email. That
17 doesn't happen. Instead they call security.
18 So then it's the following morning when they chose
19 to enforce their -- now everybody knows, but at the time I
20 knew, unconstitutional city hall exclusion policy. When
21 that happened I said call 911 because it was as much as a
22 sickening event as having the interference I experienced
23 when I called from my home when the police wouldn't give me
24 police report information over the telephone. I don't like
25 the resistance. I have a disability. It hampers me, it

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1 triggers me, and I feel like I'm set up.
2 I would not have gone to the district attorney's
3 office yesterday for discovery had I not received the email
4 saying my discovery was there, and actually I couldn't go
5 there today because I forgot my ID. I should have that with
6 me. I have my Honored Citizen ID, and everybody seems to
7 know me, so that's helpful. But my disability sent me out
8 the door without any money and without my ID and without my
9 SNAP benefits card, so I'm not going up here after we get
10 out of court today if I don't go to jail, which could happen
11 when I come in this building. I don't have my food stamp
12 card simply because I have this disability that I didn't
13 remember everything.
14 So, Your Honor, I've been talking for quite some
15 time. And the -- I'll just wrap up with the chronology.
16 I was arrested, wasn't given medical treatment,
17 wasn't given an attorney contact. I got my most important
18 attorney contact from Ms. Rutledge when she had a
19 conversation, when she called me, after telling me that when
20 I called her that they weren't allowing my calls in. But
21 she did call me on January 5 th , and the call from her was
22 right before she went on vacation. She said take the plea
23 offer. I said no, I'm not guilty.
24 She sent me in discovery, I read the discovery. It
25 was like, what do you mean, nobody noticed this? And it

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1 says here no injuries, it says here intentionally injured?
2 Nobody noticed this?
3 And I lost faith with the Metropolitan Public
4 Defenders. I just was not getting any -- I'd been in for a
5 really long time, so I requested a motion to substitute
6 attorney. Went in front of Judge Jones, Ed Jones he goes
7 by. And I told him I couldn't appear before him because he
8 was the one that sat in on -- the case was before him on the
9 destruction of my $20,000 worth of goods, and he was the one
10 that said it was okay for the landlord to not pay me for
11 three and a half years, and then cut me a check for a
12 quarter of what was destroyed, all while I had the landlord
13 on contempt of court charges.
14 And judge -- presiding judge then, presiding Judge
15 Koch issued the contempt of court charges, and I had a
16 hearing, brought in all the police and sheriffs, and I
17 remember the date, July 13, 2007. At that hearing the
18 landlord executive director's attorney said that he had
19 warned her to be prepared to be arrested for the destruction
20 of my goods. No, I'm the one that got arrested, and I'm
21 still getting arrested. And I'm trying to stop that. And
22 what happens with me is I feel that these so overworked,
23 they have a hundred cases each. They can't possibly -- they
24 try to call me, and the corrections deputy on duty, whoever
25 that might have been, says he can't take his call. They

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1 have a hundred other clients that will have their call, and
2 they're going to do that.
3 And so I just got bumped. And so the issues I'm
4 facing today as a person with a disability is I went to my
5 neurologist, and 15 months on the wait list, as urgent
6 status later. I got to see my neurologist in June of 2015.
7 And I feel, and it sickens me, that because of this approach
8 by the district attorney's office, where I'm on a one-way
9 street where I can't be a crime victim, but I can be
10 prosecuted for nothing, that I don't have my property that I
11 had. It took me 15 months to get on a waiting list, just
12 like the other person that had to wait for me, and I don't
13 want to have to bring in a doctor when it's simple to look
14 at the paperwork and see the police officer is lying.
15 I don't have to work with the police. I do work
16 with the police. I do stuff like Sunday Parkways, and they
17 compliment me because I'm excellent at crowd control.
18 So it's clear that the Portland Police lie. It's
19 clear to me that the Portland Police abused me in custody.
20 And it's clear to me that the Portland Police violated the
21 breach of -- they breached the settlement agreement with the
22 United States Department of Justice. They did that when I
23 was arrested, when the City had an unconstitutional trespass
24 policy, when I was on the agenda for the partnership
25 agreement that they're not doing with the street musician or

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1 street -- Sidewalk Management Ordnance which they're
2 enforcing, and they know is in violation of the City
3 charter.
4 And I can't make my career out of being the only
5 one that has the guts to say this stinks.
6 The five-plex is vacant. I saw people from the MAX
7 sleeping in the doorway. It's named after Gretchen Kafoury
8 who also signed the partnership agreement. I'm passionate
9 about this, Your Honor. We have an average of one person a
10 week die as a homeless person. I'm passionate about a
11 non-profit, affordable housing landlord being absolutely so
12 corrupt that I'm willing to go to City Hall, as I mentioned,
13 and say in front of the chief of police, this is organized
14 crime. And I don't know what this is.
15 But getting back to my chronology, I went in front
16 of Judge Ed Jones. I couldn't get a fair hearing in front
17 of him. I went in front of Judge Hodson. I couldn't get a
18 fair hearing out of him. He's on appeal since 2012. I went
19 in front of Judge Marshall. As of my letter of January 5 th ,
20 the State knew that they couldn't get a felony conviction.
21 February 9 th they dismissed that. I don't know why it took
22 them so long. And I got out to find out my property was
23 destroyed.
24 At the time I agreed to represent myself, Mr. Behre
25 was appointed to help me with discovery because I have here

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1 in my file, Your Honor, the medical records from Emanuel
2 Hospital, from when I had my 175 beats a minute. And in my
3 2012 case those were deemed as inadmissible as evidence
4 because I don't know how I could have possibly done that,
5 and that's why I have Mr. Behre in this process.
6 And so the way I see this, Your Honor, is I needed
7 to have a chance for the State to hear what the sequence of
8 events. We have the time points. We know the 911 calls on
9 the 17th. The fellow that got in the ambulance and later --
10 it might have been at Hazelnut Grove, we know the 911 call,
11 and prior to that the non-emergency calls to the Portland
12 Police to try and find out what happened on the 17 th . We
13 know that I went by ambulance to Emanuel Hospital. We know
14 the Portland Fire Bureau responded. We know the Portland
15 Police responded. We know that AMR responded. We know that
16 I got treated by the same doctor that treated me a couple
17 days earlier. I never saw him. I was unconscious.
18 And we know that a couple of Emanuel Hospital
19 security guards arrested me. We know a couple of Portland
20 Police officers came at Emanuel Hospital. We know that I
21 got out of jail at 3:00 in the morning. And we know that on
22 my way to court on Tuesday, which I had to do, I had the 911
23 calls about by incident in the street with the fellow with
24 the cell phone almost ran me down. We know I was a crime
25 victim on the bus. We know my entrance into the Justice

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1 Center Jail.
2 We probably know my visit to the Federal
3 Courthouse. We definitely know that I went to the Office of
4 Neighborhood Involvement. We know that I went to Jasmine
5 Campbell and got a lollipop at her office, and we know the
6 next morning when I came in, I was arrested, and we know
7 that Stully aka, birth date was given as mine by the
8 Portland Police when I went in. I had to have fingerprints
9 taken on November 25 th because my birth date provided by the
10 Portland Police didn't match my -- didn't match me.
11 I have a note, and I'm going to share it here, Your
12 Honor. He wants to know if I'm asking for this case to be
13 dismissed for the interest of justice. And --
14 THE COURT: The reason he's asking that is there
15 are some -- there are limited legal grounds on which the
16 Court can grant a dismissal pretrial. That is one of them.
17 MR. STULL: Yeah, yeah, right.
18 THE COURT: And that's why he's asking. That's why
19 he put that note in front of you, because --
20 MR. STULL: Right.
21 THE COURT: -- some of the stuff that you're
22 saying, very interesting --
23 MR. STULL: Yeah.
24 THE COURT: -- may not provide me a legal basis for
25 dismissal.

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1 MR. STULL: Right.
2 THE COURT: What he's put in front of you is the
3 legal grounds that would justify a dismissal under the law.
4 MR. STULL: Well --
5 THE COURT: So that's why he put that note in front
6 of you.
7 MR. STULL: Right. So --
8 THE COURT: Which is, I think, what I understand
9 that's what you're asking.
10 MR. STULL: It wouldn't be fair for me to say
11 that's not what I'm asking. What I'm trying to impress on
12 the Court is -- when we get back to the big bang theory of
13 this case --
14 THE COURT: Well, let me summarize what I got.
15 What I understand that you're trying to get me to understand
16 is there's a bigger problem here. And I got that.
17 MR. STULL: Yeah, yeah, yeah.
18 THE COURT: I got that. There's a bigger problem
19 here. Now whether I can do anything about it is a whole
20 another question. But I understand that what you're
21 describing for me is what you perceive to be a bigger
22 problem than just this case, these two cases.
23 MR. STULL: Yes.
24 THE COURT: And I got that.

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1 THE COURT: Okay.
2 MR. STULL: The big bang theory of why this case,
3 these cases, needs to be dismissed, in the interest of
4 justice for any reason, is that, and I can say this best by
5 the security guard responded yesterday and told me this in
6 one of our previous -- the phone rings and they respond.
7 (Inaudible). He said that when folks are calling like they
8 did yesterday at the discovery office, they're calling the
9 fellows with guns to respond because they want some help.
10 They're just asking for help. And then he caught himself
11 when he was telling me this, and he says and that's just
12 what you were doing.
13 When I went to the Office of Neighborhood
14 Involvement, I asked for a Multnomah County Health
15 Department ride home. I knew that my situation had been
16 triggered. And after years I still can't plumb the depths
17 of -- like I mentioned this morning, when the officer,
18 sergeant, pushed me, prior to, I guess, my first contact
19 with a police officer was a shove in the chest, I don't
20 recall that. And I could recite pi to 32 decimal places,
21 and I can, you know, remember case law and the kind of
22 things that I've done here this morning, remember the dates
23 and stuff like that. And so one of my -- you have a
24 speedometer, you have a needle on your gas tank or something
25 or other, you have a way on your electric meter that tells

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1 you stuff is going on. There's a way to -- we have the
2 clock. It's showing us that there's things going on. And
3 part of my feedback is to actually get feedback, you know,
4 to have some way of knowing whether I misspoke or how I
5 acted.
6 But my situation at City Hall that day was -- the
7 jail door that I was placed in on November 25 th ; I was there
8 overnight into Thanksgiving. And I can give you an example
9 of feedback. The corrections deputy who escorted me to my
10 cell, his name is Willoughby, W-i-l-l-o-u-g-h-b-y. I
11 couldn't read his name tag because my eyes were blurred as
12 part of my neurological condition. So that's one of the
13 things that tells me where I was.
14 Now one of the things that tells me where they were
15 is I was given Gatorade, and I was given Gatorade in the
16 isolation cell because I said I could die from this because
17 it depletes potassium because of over-firing of the nerves.
18 And so they gave me Gatorade. And that was on -- I don't
19 know if you qualify that as the first 24 hours I was in
20 custody. But then that was it for medical treatment.
21 I stood on my head. When I finally got to a place
22 where I could walk the stairs, I walked up the stairs and
23 down the stairs, and that was 14 steps counting the landing,
24 and I did 80 flights of stairs. And then I did 40 more
25 flights of stairs, two steps at a time. And I did that to

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1 vent this adrenaline that's a product of the fight or
2 flight. And once the pain relay has been rewired and it's
3 hit with adrenaline, it fires like it has epilepsy.
4 According to my neurologist's testimony, which I
5 sent to the State, it's from 2004, and Dr. Grimm became
6 famous with Jennings vs. Baxter Healthcare. It's an Oregon
7 Supreme Court case about the Oregon Evidence Code regarding
8 scientific expert witness testimony. And the place I point
9 to that is right here, I have it in my letter to Sergeant
10 Johnson. Dr. Grimm has advanced degrees in neurology and
11 neurophysiology. And neurology is kind of when I go to my
12 neurologist like I did in June. He's a doctor that does
13 that. But neurophysiology is actually what's going on.
14 Dr. Grimm -- I had my back issue. In 1980 a young
15 chiropractor, (inaudible) Cantor (ph), referred me to
16 Dr. Grimm, and Dr. Grimm did the analysis, the myelogram,
17 one of the painful examinations. And I had my back surgery.
18 Dr. Grimm isn't a surgeon, wasn't a surgeon, he's passed
19 away.
20 But Dr. Grimm diagnosed my condition as being this
21 central pain, which is a product of time. And with my
22 condition being progressive, Your Honor, that's one of the
23 things I'm going to say about what my metrics, the things I
24 have. With the passage of time my condition is worsening.
25 My best treatment option is cannabis. We live in a medical

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1 marijuana state. When I saw my neurologist in June, 2015,
2 he said you don't need any more expensive tests for a
3 condition you've had for 30 years. He said among your
4 treatment options, he told me medical marijuana is
5 reasonable.
6 I said can you sign for me under the medical
7 marijuana program. He says no because I'm not your
8 attending physician as the law requires. That's true,
9 actually. If I have another doctor that's my primary,
10 that's what the case says. And I made an appointment, and I
11 went and saw that doctor, and he says we don't do that in
12 this office.
13 And by the time I had that fellow that referred me
14 out to the neurologist who said that they won't prescribe
15 medical marijuana, it's not prescription, it's
16 authorization. But anyhow, recreational marijuana had
17 already turned legal, so when I went into custody I wasn't
18 coming in with a prescription for a drug, and they didn't
19 give me one. And they just didn't give me any treatment.
20 And ultimately, grievance later and grievance later, on
21 January 25 th I went and saw the doctor there. And they said
22 that we don't prescribe even the FDA approved THC which you
23 can buy at the Safeway up the street here.
24 And so I didn't get medical treatment while I was
25 in custody, and so not getting medical treatment kind of

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1 took some of the wind out of my sails for beating my head
2 against Metropolitan and having not gotten my attorney
3 contact.
4 As you see, Your Honor, we spent a considerable
5 amount of time. And there is no Multnomah County Health
6 Department doctor nor is there any Metropolitan Public
7 Defender attorney that would take the time to even listen to
8 this stuff, let alone look beyond it with any type of
9 analysis.
10 And so how I would like to present this ongoing
11 thing is I feel as the national crime victim's week folks, I
12 feel as the crime victim that I was on Tuesday, I should not
13 have been given the exclusion, that some inquiry should have
14 been made into the Multnomah County Health Department
15 medical transport. I can't find it looking it up on the
16 internet, Your Honor. I don't know where they're hiding it,
17 but I do know from my notes that I wrote down what was on
18 the side of the car that was talking to my neighbor.
19 So anyhow, the first thing that we need to address
20 as a society is the provisions that are utterly unenforced.
21 And ORS 659A, we have disability discrimination laws. They
22 apply in -- across the board in rental housing. They apply
23 in public accommodation. They apply in government agencies.
24 And one of the places of two that I have trespass exclusions
25 outside of this is Bureau of Labor and Industry Civil Rights

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1 Division, when I was found not guilty at trial in front of
2 Judge Immergut for trespass, and again, at Lewis and Clark
3 college.
4 And I feel (inaudible) maintains the trespass
5 exclusion, what am I supposed to do, go over there and get
6 arrested so I can have a trial and say, hey, according to
7 State vs. Koenig you can't even do this. We've already
8 decided the law. They're not following it.
9 And I'm remembering the Deputy District Attorney
10 Moraro (ph) from 2012 said that when I referred her out to
11 ORS Chapter 659A and ORS -- Oregon Administrative Rule
12 Chapter 839, she says that's employment discrimination law.
13 But if you go to Division 6, and you go to like 839-006-235
14 or somewhere in there off the top of my head, then you get
15 into the disability discrimination by state government that
16 is actually the interpretation and the enforcement of the
17 provisions and the statute 659A.
18 But we're supposed to have a policy that, and it's
19 stated in 659A in a couple places, I think it's 003 and 009.
20 But we have a stated public policy that we're not going to
21 let any of this stuff happen, and it all does, and it all
22 did to me.
23 So just to wrap up, I called yesterday to
24 Metropolitan. I put in my document that when I had my visit
25 to court as I'm having now with Mr. Behre, I said why did I

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1 not get discovery until January, why didn't somebody
2 discover it? She says we sent you that in November. And I
3 called yesterday, and I called Mr. Behre's assistant, Kate,
4 off the top of my head. She answered the phone Kate. Of
5 course, I've got her name written down. And I said do you
6 have mail records, and how does that happen at your firm.
7 And they said -- I'll just say it's global. So if anybody
8 sent me anything, it would be in my file as me.
9 And so the first mail that went out to me was
10 mailed on January 6. The Emanuel Hospital discovery, I got
11 that in February. The 60 days was up the 25 th of January
12 for, you know, when I think about it, in custody, a person
13 in custody, having a speedy trial. But of course I
14 mentioned that one of the provisions to get an extension is
15 the attorney's schedule. I just think that part of that
16 discussion should be have you discussed this case with your
17 client before you go on vacation, and when did you schedule
18 your vacation.
19 It seemed like a good time to get out of Dodge to
20 me. If you wanted to like -- I think they tried to pull a
21 fast one. They said look, we'll give Barry Joe a get out of
22 jail, no jail time, we don't have to have any of this stuff,
23 we don't have to bring Charley Hales into court as the mayor
24 to say that yes, this is his signature on the 1994
25 partnership agreement. We don't need to bring in Deputy

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1 Auditor Mia Rent (ph) to say that she couldn't find that.
2 We don't need to bring in the fellow from the archives to
3 say that they can't find that 1994 document that's, like I
4 said, referenced an exception in the Sidewalk Management
5 Ordnance. So if Mr. Behre wants to be a street performer
6 and be excepted from the Sidewalk Management Ordnance,
7 Mr. Behre can't find that 1994 agreement because the City
8 won't give it up. I have it. I got it from the City.
9 They're promulgating a 2006 document that
10 Commissioner Amanda Fritz signed that says click through
11 here for the original 1994 document, and no it's not. It's
12 the 2006 document that doesn't mention the free music zone.
13 So I'm not, you know, I see this stuff as the same
14 government, racist police corruption that I've been enduring
15 since I put that on my voter pamphlet page.
16 So the Motion to Dismiss was an oral motion to
17 dismiss because I'm too sick, and when I got this stuff in
18 March that says that the police are identifying me as a
19 transient, now I'm a hairy guy. I was in a movie up here
20 with Hayden Panettiere when she was still a kid. I don't
21 know, it was 2004 or something like that, and I was paid to
22 look like this as an extra.
23 So we have a homeless epidemic of homeless people,
24 and it's easy enough to go down the line and say you're one
25 and you're one and you're one and you're one and you're one,

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1 and I'm not. If I ever was, it was a product by -- from
2 this circuit accepting a case that wasn't legal to file in
3 the Court, the destruction of my goods, and the landlord
4 intentionally wants to keep perfectly viable housing vacant.
5 So I have some paperwork for my legal adviser here,
6 Your Honor. Can I just allow him to speak on my behalf?
7 THE COURT: Yeah.
8 Mr. Behre, if you want to, if there's anything you
9 want to say, go for it.
10 MR. BEHRE: And I don't know if this is timely,
11 Your Honor. I just wanted to share with my advisee. This
12 is a memorandum completed by Ms. Rutledge in January
13 regarding the constitutionality of the exclusion, the code
14 that they used to exclude Mr. Stull on the 24 th of November
15 and to the extent that that was the basis to exclude him on
16 the 25 th . This specifically, Portland City Code 3.15.020B,
17 was declared unconstitutional by the district court, the
18 federal district court, on December 31 st , 2015, in a case
19 called Walsh vs. Enge, E-n-g-e. You've got to --
20 MR. STULL: Oh, excuse me, Your Honor, and to
21 assist the deputy district attorney here. My pages here
22 include footnote 23. I didn't number the pages. The
23 footnotes fortunately, they are in chronological order, in
24 sequential order. So footnote 23 is the case cite of that.
25 It's got that.

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1 And part of me, the honest part of me wants to say
2 that, so, did they know that it was unconstitutional aside
3 from me telling them that? I don't know; it was. And I
4 read the -- I want to say Olson (ph) case. It's about the
5 appropriate use of force, dealing with excessive force. And
6 even if it's an illegal arrest, you're still not allowed to
7 resist it. So I'm aware of that.
8 And I don't want to parse that out, Your Honor,
9 because then I would defer to nobody told me I was arrested
10 that I recall. And people could have got hurt real bad,
11 Your Honor, in that room with those folks responding the way
12 they did. I did not have any conversation with my medical
13 or mental health folks. They said they called -- in the
14 police report they said something about calling Project
15 Respond or something to that effect. Well, that never
16 happened because I was -- had the scuffle, we'll call it.
17 And -- oh, Your Honor, I might show you how history
18 repeats itself. There was an action up in front of City
19 Hall, no secret there. And in July, I'm thinking it was
20 around the 11 th , there was a fellow and a gal, and a long
21 story short, a fellow stepped in on it and was chest bumping
22 on me. And I said, you know, don't do that, and he did it
23 again, and I just said you're under arrest for harassment.
24 And then I was mobbed, and there were maybe six or eight
25 people came and just kind of, you know. And in the process

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1 somebody bent my thumb. And the Portland Police and Fire
2 Bureau came out, and they monitored my pulse, and I think --
3 and this was after this 175 beat a minute episode. And I
4 think my pulse was something to the order of 125 beats a
5 minute. And then the paramedics stayed on the scene, iced
6 my thumb, and I talked myself down from the adrenaline
7 surge. And they left when it was 80 beats a minute.
8 And then similar to this experience, I went to
9 Central Precinct to follow up on that, and waited for an
10 officer to come out regarding the police report or whatever
11 the issue was, and after an hour I called, and they told me
12 that Sergeant Nea (ph) had canceled my dispatch. And I said
13 can I talk to the supervisor, and they said yes. And they
14 said yeah, we'll send somebody out. And then I saw Sergeant
15 Nea through the glass, and I said what's going on. And he
16 told me to the effect that he would never allow a police
17 report to be taken when I'm the victim.
18 And that sickened me enough that I went -- the
19 shock of that, it's absurd. I'm sitting out there for over
20 an hour waiting for something that he knows is canceled. I
21 mean, it's bad enough. So anyhow, that got me to Emanuel
22 Hospital where Dr. Cook, who knew about my condition, said,
23 Mr. Stull, I have some questions, I have to take care of
24 something else. Another doctor who also knew about my
25 condition but not to the depth of Mr. Cook, or Dr. Cook,

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1 said what happened to your thumb, it has to be X-rayed. I
2 was X-rayed. They're digital now; it's instant. And they
3 came back into the doctor and said you're clear to go. Your
4 thumb, your X-ray is clear, and you're cleared to go. And I
5 said the other doctor wasn't finished. And security says
6 well we already called the Portland Police. You've been
7 discharged. We've already called the police on you because
8 the trespass exclusion. It's that serious for me with them.
9 I don't know why.
10 Police Officer Davenport of the Portland Police
11 gave me a ride to OHSU where I had already been, as I
12 mentioned, because I got sickened by that shoving on the bus
13 and the charges -- or the shoving on the MAX and the
14 charges. So I had already been there, but the fellow on
15 emergency room duty said I don't know anything about
16 neurology, I don't see a thing wrong with you. And I said I
17 know what's wrong with me, and I need a second opinion which
18 was the security guards and the over-tight handcuffs and the
19 two-hour trip to get me to the Justice Center Jail where I
20 was left out without my shoes, without my ID, without my
21 prepaid transit, without my food stamp card, and without my
22 bag I have here.
23 They gave me a Portland Property Warehouse receipt.
24 So that was Saturday. Monday I went to get my stuff; it
25 wasn't there. The whole time it was in OHSU in the lost and

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1 found. But I didn't know that.
2 That Monday night I was sickened. My friend,
3 cofounder of Voodoo Donuts, Tres Shannon, called 911. They
4 took me to Emanuel Hospital. I got up there, the police
5 were called, and they took me out in handcuffs before I even
6 saw the doctor. That was my first arrest on the 17 th . I got
7 out of jail.
8 I went to Tualatin Valley Hospital because no
9 hospital here in the city was going to accept me. Got out
10 of there, came over to City Hall. Troy Thompson (ph) I had
11 the restraining order against was violating the restraining
12 order. I called 911. The cops came out, arrested me, and
13 let him go, and he had a warrant for his arrest. That was
14 my second arrest on the 17 th .
15 The first arrest on the 19 th was at the Health
16 Department where I got off the elevator on the eighth floor
17 instead of my appointment on the fifth floor, got arrested
18 by Officer Stigameyer (ph) who gave me the Stully aka and
19 the birth date, right? And that was my first arrest on the
20 19 th .
21 And as I mentioned, the second arrest on the 19 th
22 was Sergeant Holbrook, we've got your ride here, Mr. Stull.
23 The jail door is bent in the frame, Your Honor,
24 because on July 19 th , my second arrest that day, I was trying
25 to get into the ambulance, trying to get emergency medical

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1 treatment, and I got put in a little steel box with no
2 medical treatment, and pretty much of a hard time. And I
3 had my in-custody hearing on that, and they said I turned my
4 clothing into, quote, clubs of steel, Your Honor, unquote.
5 That was my jeans and one sock, my tee shirt and another
6 sock, the door is bent in the frame, and the inside of the
7 door looks like it got run over by a truck because my tee
8 shirt and my sock was a ball-peen hammer, and my jeans and
9 the other sock was a sledge hammer, and we laugh at that as
10 the miracle of the cotton because cotton absorbs the water
11 even from your toilet.
12 When you're me and you get arrested, the first
13 thing you do is clean your toilet because they're going to
14 shut the water off as soon as I flood the tier, and I will
15 flood the tier, and that means I just flush the toilet.
16 When I was in custody over here, I set a new record. I
17 flushed the toilet a thousand -- I mean a thousand gallons
18 of water over a hundred times because the gal next to me was
19 being denied food and water. And I got attention. They
20 turned her water on. I stuck my foot in the toilet, and I
21 just flushed that handle until somebody gave that gal next
22 to me water, and they did.
23 So I'm a holy terror. I'm not the guy you want to
24 trigger and place in these things. I break the police cars.
25 When I was on the agenda August 29, 2012, I came across a

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1 925, they came out with a trespass exclusion August 28 th , the
2 day before they issued that exclusion. And they arrested
3 me, drove me down around the building. I said can you
4 please turn down your car stereo, it's making me sick. He
5 got out and turned it up and started laughing at me with the
6 chief of police. By the time he got that police car from
7 the top of the ramp to the bottom of the ramp and got me out
8 of jail, the headliner was torn down, Your Honor, and I was
9 in handcuffs behind my back. I did that with my feet.
10 I don't know what's going to stop me trying to save
11 my life, and I don't know what's going to stop them trying
12 -- I don't want to say trying. I wish they were trying. If
13 they were trying, they could stop. They're not trying.
14 When the folks came out, and instead of just simply
15 letting me get in the ambulance and taking me to the
16 emergency room, they end up with the first responders. What
17 are they going to do, shoot me in the trailer court? That
18 doesn't stop bullets. I mean it's absurd to think that our
19 society has evolved to this.
20 But getting to where I can take this with you, Your
21 Honor, I didn't have any in-custody conversation with an
22 attorney that I could simply say according to discovery what
23 Officer Engstrom subsequently claimed to the grand jury was
24 not what he claimed on the day of the event, and we can
25 start the conversation with my court appointed attorney with

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1 that fact.
2 And I don't know where I could -- how I could go
3 any more with this. What I wanted to do today was to let
4 the State know that we're either having this hearing, and
5 we're going to stop this, or we're going to have a trial,
6 and we're going to start this. And if we're going to start
7 this, Your Honor, that means we have to get the emergency
8 room doctor who saves peoples' lives out of Emanuel Hospital
9 where he treated me on two occasions in November. And we're
10 going to have to bring him into this building. And he's
11 going to have to wait in line like I did around the corner
12 to get in here so he can say what we all know, the cops lie,
13 the cops hurt people, and the cops kill people. I'm willing
14 to say that. I've been saying that for decades. We're all
15 seeing it's kind of obvious.
16 I sent this out to the DOJ on the 6 th of December,
17 and I really don't know what the status is. My conversation
18 with the Department of Justice told me they get 400 civil
19 right complaints a week. I don't know how they possibly
20 keep up, and they don't.
21 And so I don't know how the State could proceed.
22 My evidence I had at the time was destroyed while I was in
23 custody. The district attorney works for the County. I'm
24 sure your staff here works for the State, Your Honor, but
25 the county is the district attorney and the jail who didn't

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1 give me my Portland Police Property Warehouse receipt.
2 The Portland Police themselves are bringing this
3 case. They're the ones who didn't give me my Portland
4 Police Property Warehouse receipt. And I'm supposed to
5 defend myself without the evidence that I had at the time I
6 had -- when I talked to Mr. van Orden at the -- in front of
7 City Hall, and I got his business card, I wrote on it when I
8 got it. But I had that in my file which we can see as part
9 of the arrest. And as part of the arrest I'm going through
10 my folder like this. And at one point, I don't know whether
11 it was the first two minutes, I said to the guy in front of
12 me, can you help me, I'm confused.
13 So unless my adviser has anything more to say, Your
14 Honor --
15 MR. BEHRE: No.
16 MR. STULL: -- all I can do is give you all a copy
17 of my document that I submitted to Internal Affairs Sergeant
18 Johnson which has case numbers --
19 THE COURT: No, if you've got --
20 MR. STULL: I want to put that into the --
21 THE COURT: If you've got papers that you want to
22 submit, then you can submit them.
23 MR. STULL: And the other -- the only thing, Your
24 Honor, I wish, and it's a pretty strong wish. I wish you
25 didn't have to do this. And the pressure, and I would say

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1 the only pressure, that as a person who did 76 days in jail
2 without medical treatment not so long ago, the only pressure
3 I have on this is the Portland Police and the Multnomah
4 County Sheriff's office don't really like my subpoenas very
5 much. They have a court coordinator as in the statute.
6 And the -- we go by, bizarrely enough, we go by the
7 Oregon Rules of Civil Procedure on the issuance of --
8 subpoenaing police officers, but the point is, is they have
9 I think a ten calendar day or ten business days in advance.
10 And in July of 2013, when I, as I mentioned, I had the
11 hearing on the contempt of court for the landlord's
12 destruction of my goods previous to that, I had to get a
13 lieutenant at the Multnomah County's Sheriff's office come
14 from the river because the court coordinator at 122 nd and
15 Gleason wouldn't accept my subpoenas.
16 And I don't know what river that lieutenant had to
17 come from -- the Lamb River (ph) is not very close to 122 nd
18 and Gleason, the Columbia River, the Sandy River, none of
19 those rivers are close. But I had to wait because when I
20 got there the court coordinator wouldn't accept the
21 subpoenas. And he did and they did, and that's actually the
22 way it's supposed to work, how you're supposed to do it.
23 In 2012 when I subpoenaed the Portland Police, same
24 story except the court coordinator came in early and left
25 early because it was a holiday weekend. So when I went in

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1 on time, my time wasn't within their time because they had
2 left, and they also didn't have a lieutenant to accept the
3 subpoenas and they should have.
4 So I have that document. The case numbers for
5 these cases are on the bottom. I also wanted to say that
6 this was my first and best attempt to get this before the
7 Court. And if these documents don't speak for themselves
8 and if -- I guess what I'm trying to say is, if the interest
9 of justice -- if this interest of justice statute -- can I
10 read this (inaudible)? ORS --
11 THE COURT: The statute?
12 MR. STULL: Yes, it's Oregon Revised Statute 135,
13 Chapter 135.755. Now, one of the things that's still
14 echoing through the system on my Stull vs. Hoke case is part
15 of the interpretation of the statute that kind of got
16 expanded on in Gaines, but it's your role, Your Honor, as
17 the Court, to correctly interpret the statute once it's
18 presented to the Court. And if what has been presented
19 today, including with my document, you haven't read yet, and
20 I supposed you will read it at some point, if I put it into
21 the record.
22 If that does it, that's fine with me. But I wasn't
23 coming in with that in mind as much as I knew that the
24 concept existed. I'm coming in here as a person with a
25 disability who is subject to an illegal exclusion and then

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1 as a response of that, arrest, and that, especially, that
2 triggering what happened with the Portland Police which
3 should have been affected with as I came out of the library
4 when I got socked in the head, I just ride to the hospital
5 and they check me out, and everything is okay. So I got an
6 arrest instead of medical treatment, and it was, in fact,
7 emergency medical treatment that we can see and as I
8 mentioned the first two minutes of whatever they posted
9 about the address, which I assume dovetails with what's on
10 the USB drive that the State has as evidence. Is that
11 right? Do we know that?
12 MR. BEHRE: I've only seen the video from the
13 actual City Hall. I can't (inaudible).
14 MR. STULL: I have -- I was there. I haven't
15 watched it. None of it's good for -- I don't need to see
16 any of that. I'd like to watch it like later, you know,
17 because there's nothing, you know, I would like to have, and
18 I should have, I would like to have that picture --
19 THE COURT: Let me make a suggestion just in the
20 interest of being efficient with our time?
22 THE COURT: You've got your document that you want
23 to submit, let’s mark it as Defense Exhibit 101, and we'll
24 receive it for purposes of this hearing.
25 ///

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1 (The document referred to as
2 Defense Exhibit 101 was marked
3 for identification and received
4 into evidence.)
5 MR. STULL: Okay.
6 THE COURT: We'll take a ten-minute recess while I
7 read it, and then we'll all come back, and if I have any
8 further questions, I'll ask.
9 MR. STULL: All right. Thank you.
10 THE COURT: Does that make sense?
11 MR. STULL: Thank you, Your Honor. I just wanted
12 to say that I'm not in a hurry. I know that we're using a
13 lot of time on this. I'm trying to save a lot of time and
14 expenses later --
15 THE COURT: I understand.
16 MR. STULL: -- ultimately. Okay. Thank you.
17 THE COURT: Okay. Get that copy, and if the DA's
18 office has a copy of that?
19 MR. MAZOROL: Yes, Your Honor.
20 THE COURT: Okay.
21 THE CLERK: Is it okay if I put a staple on it?
22 THE COURT: Yeah.
23 MR. STULL: Oh, yeah, please do, because the pages
24 aren't numbered.
25 THE COURT: That would help.

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1 MR. STULL: Oh, and there's one typo on the very
2 last page.
4 MR. STULL: It mentions me getting out in November,
5 and it was actually supposed to say February. Just the rest
6 aren't that (inaudible), Your Honor.
7 THE COURT: We'll take about a ten-minute recess.
8 (Court in recess at 10:59 a.m.)
9 THE COURT: You may be seated. We're back on the
10 record. And we'll hear from the State. Mr. Mazorol?
11 MR. MAZOROL: Thank you, Your Honor.
12 The State's position is not an appropriate case for
13 dismissal in the interest of justice. Just to back up, this
14 was -- Mr. Stull indicated he wanted to file a motion to
15 dismiss back in -- on March 4 th . Judge Wittmayer had told
16 Mr. Stull --
17 THE COURT: I think part of his point was to make
18 sure the district attorney's office had a full understanding
19 of the circumstances from his perspective, and to give you
20 the opportunity to assess whether this really was a wise use
21 of resources in pursuing this type of claim. I think that
22 was part of his point, in addition to asking the Court to
23 dismiss the case in the interest of justice and in part,
24 justice being the circumstances as laid out in Exhibit 101,
25 his letter and his oral presentation this morning, and the

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1 disability discrimination statutes that set forth the public
2 policy of the State of Oregon.
3 As I understand, that was all wrapped -- sort of
4 wrapped up in not only what's in the interest of justice but
5 for your office, to determine whether you want to proceed
6 with this -- these charges at this time. So I think that
7 was the point of his motion. So maybe you can address those
8 issues.
9 MR. MAZOROL: Yes, Your Honor. And I just think
10 the fact that Judge Wittmayer had told Mr. Stull that if he
11 wanted to file a motion, it would have to be written, and
12 that was never done. So the State did not have --
13 THE COURT: I think we're past that point now.
14 MR. MAZOROL: Yes, Your Honor. I do note that
15 everything that Mr. Stull said was not under oath, and so I
16 would submit that was just simply argument and it's not
17 evidence.
18 I do understand -- I understand we received Exhibit
19 101; the State did not object to that. Everything Mr. Stull
20 has said was not under oath. With regard to the dismissal
21 interest of justice, there are two cases, State v. Stowe
22 (ph), State v. Swet (ph). They talk about how dismissal
23 interest of justice is a very extreme or rare circumstance,
24 and it would have to be when there are substantive and
25 procedural deficiencies in the system. And I went to go

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1 print the case, but the printer is not working right now.
2 This case is not appropriate for that. He does
3 have some certain claims. Whether or not those are valid is
4 subject to civil remedies. He can file a (inaudible) claim,
5 no problem. If he feels like he's been discriminated
6 against because he has a disability, he certainly has a
7 civil right to go file that claim.
8 The only other procedural pickup that I heard him
9 say was while I was in jail, waiting on this (inaudible)
10 felony charge, and then they decided not to charge the
11 felony. That does not in itself rise to the level of some
12 of the procedural deficiency that would require dismissal in
13 the interest of justice.
14 THE COURT: And I think the other procedural
15 deficiencies that I heard him mention were claim ineffective
16 assistance of counsel with the court appointed counsel,
17 Ms. Rutledge, and also the discovery, the delay in
18 discovery, discovery violations that's impaired his ability
19 to proceed. That's what I understood.
21 THE COURT: Okay. So you need to address those as
22 well.
23 MR. MAZOROL: The ineffective assistance of
24 counsel, Your Honor, that's something that Mr. Stull has to
25 address with his own counsel. It's not something the State

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1 can effectively remedy. It's not something the State can
2 fix for Mr. Stull is ineffective assistance of counsel.
3 He does have now Mr. Behre as legal adviser, and he
4 has ways --
5 THE COURT: Well, the State certainly can fix that
6 post-trial if he were to be convicted and were to establish
7 that he did not receive adequate assistance of effective
8 counsel, there's post-conviction remedies available for
9 that. The question is that, having raised the issue
10 pre-trial, whether that's something that the State would
11 consider in addressing, whether to proceed and whether the
12 Court should consider in determining whether dismissal in
13 the interest of justice ought to be granted. That's what
14 he's getting at, I think.
15 MR. MAZOROL: Yes. And he has raised that, but he
16 has also decided to proceed forward without counsel. He has
17 made that choice a long time ago and --
18 THE COURT: Well, you can't hold that against him.
19 He has a right; he has a constitutional right to do that.
20 MR. MAZOROL: I understand, Your Honor, but if he
21 did want counsel and he did feel like that he had
22 ineffective assistance or counsel, then why did he waive
23 counsel thereafter? If he felt like he didn't have
24 appropriate counsel, then he should have requested another
25 attorney instead of waiving it.

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1 THE COURT: I guess I don't understand the logic.
2 If you're charged with a crime, and you think you're not
3 being adequately represented by the court appointed lawyer,
4 and then say okay, I'll choose to represent myself, I don't
5 see anything illogical about that choice.
6 MR. MAZOROL: Well, I would submit that he should
7 have asked for a different lawyer, and I don't know that it
8 was anything he said --
9 THE COURT: He had enough, and according to his
10 letter, he'd be happy to be represented by Harry Carson, but
11 they won't appoint Harry Carson because he only does
12 felonies.
13 MR. MAZOROL: All right. All right. Well, I don't
14 know why he couldn't have just received another attorney.
15 Putting that aside, Your Honor, the issue of being in jail
16 for a certain period of time, that does not of itself rise
17 to the level of dismissal interest of justice.
18 The discovery, my understanding is, Your Honor, I
19 just received this case as a special assignment last week.
20 My understanding of the discovery is it is proceeding
21 forward, and Mr. Stull had received a substantial amount of
22 the discovery, to the extent that there are some procedural
23 discovery that he needs to receive. We're happy to get that
24 done and happy to work with him and make sure that he has
25 that. It would be pre-trial. So I don't think that in and

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1 of itself rises to the level of dismissal interest of
2 justice either.
3 THE COURT: You've got a trial date coming up,
4 don't you?
5 MR. MAZOROL: Yes, Your Honor, on the 25th.
6 THE COURT: So pre-trial better be darn soon if you
7 want to be proceeding to trial at that point, if the case
8 stays alive.
9 MR. MAZOROL: Yes, Your Honor. And I have some
10 question as to whether or not that will. There has been
11 some subpoenas to the mayor in this case, and I believe that
12 they -- I don't want to represent what they may do, but he
13 may plan to move to quash. So it may be --
14 THE COURT: That will be up the Court to address so
15 I'm not going to pre-judge those.
16 MR. MAZOROL: No, I understand, Your Honor. So the
17 discovery stuff, happy to work with Mr. Stull. I'm happy to
18 work with Mr. Behre as the legal advisor to make sure that
19 he has everything he needed. I saw something else that he
20 needed to do, a witness statement. I provided that to him
21 immediately after I saw it. We are working with him. I
22 don't know about the issue yesterday that he wasn't provided
23 discovery, happy to look into that.
24 So when we look at, Your Honor, it's a rare
25 circumstance, it's a severe circumstance when procedural and

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1 substantive rights have been violated, that dismissal in the
2 interest of justice are warranted. It doesn't rise to the
3 level in this case.
4 Mr. Stull certainly has the right to go file civil
5 actions in the (inaudible) claims if he wants to. But that
6 doesn't mean that his criminal case is dismissed in the
7 interest of justice.
8 THE COURT: All right. So your position is, just
9 to summarize and make sure I understand your position is,
10 one, although the district attorney's office has the
11 authority to dismiss charges, exercise a prosecutorial
12 discretion, based on what you know so far, you're not
13 prepared to agree to dismissal of those charges?
14 MR. MAZOROL: No, Your Honor.
15 THE COURT: And then second, in terms of whether
16 the Court should dismiss, you're opposing that, and your
17 position is there's insufficient grounds for the Court to
18 dismiss in the interest of justice?
20 THE COURT: Okay. I understand your position.
21 I think, Mr. Stull, I think I understand your
22 position. I may not have captured every particular nuance,
23 but I read your letter, I heard your arguments. Is there
24 anything else that you think I've missed that you want to
25 make sure I understand?

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1 MR. STULL: No. I think it's important, Your
2 Honor, that -- and I think you've done that, just by your
3 demeanor today, is to understand that part of my having a
4 disability is I have a disability, and I can't do things the
5 way people that don't have my disability would do that.
6 And as I mentioned at the outset, in the first
7 paragraph of that lengthy document, I can't -- like now, I'm
8 having (inaudible) speech because it's part of my
9 disability. It interferes with my ability to vocalize.
10 I can't pursue this case as the person with a
11 disability the way I could with the property that I had on
12 me at the time. And not only was that inappropriately
13 removed and destroyed, but in having that have had happened
14 to me, on a daily basis, I'm having some salt ground into my
15 wounds, whether it's using this bag that I -- I don't know
16 how to use -- all this stuff is free box or maybe from the
17 Goodwill bins or something, but I didn't buy any of this
18 stuff. So I didn't select this particularly for my need.
19 And I'm still learning how my files fit in this
20 because I had to replace what I'd worked with for years that
21 was, you know, my backpack, which had a folder. And it's
22 all visible in the video.
23 So the things are that, one, I have my disability;
24 two, as a person with my disability, I'm hampered now from
25 the impact of the destruction of my property, which, three,

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1 was my coping mechanisms for my disability; and four, was
2 the evidence for me to present a case.
3 THE COURT: I gotcha. And I didn't state that, and
4 I understand that there's -- I mean, that's somewhat
5 separate from your disability discrimination claim. It's a
6 claim that a combination of your disability and the
7 destruction of your property prevents you, in your view,
8 from being able to adequately defend yourself against these
9 charges, which is another circumstance that the Court can
10 consider in determining whether dismissal in the interest of
11 justice ought to be granted.
12 That's what I understand you to -- that's how I --
13 MR. STULL: And I'll refer to, quickly, I'll refer
14 to specific examples. Now aside from, as I mentioned,
15 Metropolitan, I feel that their firm having so many cases is
16 in fact unconstitutional because what they're doing is
17 they're -- we are doing, is we are assigning persons like
18 myself to a firm that cannot handle the load.
19 THE COURT: Certainly unwise, and whether or not
20 it's unconstitutional or not would be for another day.
21 MR. STULL: So I'm raising that point. I'm not
22 alone in that observation, and I do think it's important to
23 say that.
24 I'm sorry, I -- I don't know where I was going with
25 that. But that's important, to me. And as I said, being in

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1 custody without medical treatment really, I didn't -- I
2 couldn't stand the disappointment. I tried. If I would
3 have -- even with sending out the slightly different --
4 well, when I sent out the power of attorney and got the
5 check to have me bail out, that didn't even work.
6 So I was in a situation where the more I tried, the
7 more I failed. And these things were themselves troubling,
8 and so now I'm in a situation where I've endured all that.
9 I don't have my possessions that were coping mechanisms to
10 help me endure all that.
11 And -- oh, I remember where I was going. 823-4000
12 is a phone number you need to know. 503-823-4000 is the
13 phone number you need to know if you want to know how to put
14 money on somebody's books in the jail or you want to talk to
15 Captain Raymond Adgers. I've got his business card, but if
16 I didn't want to I could call 823-4000, and I could get that
17 over the telephone, but I can't because I'm not allowed to
18 have any contact with my victim, which was the Office of
19 Neighborhood Involvement. So they've got me hampered on
20 every -- so I can't personally do the work.
21 I had three business cards from -- three City of
22 Portland Police business cards; one was the fellow from
23 Hillsboro. I think the other one was from Wes Limb (ph).
24 The third one was one of the Portland Police Bureau Officer
25 Heltriche. I think there's more than one of them. I had

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1 those business cards from the Emanuel Hospital trip to the
2 Court where I got kicked on the bus; I had those business
3 cards in my files at City Hall the following day. Those
4 were destroyed. Where I could simply say these were the
5 three fellows that I interacted with, who wrote the police
6 report, I can't do that.
7 So not only is the guy who was the crime victim,
8 but when I got the police reports when they did respond, I
9 don't have those cards. I don't have those cards because
10 they were destroyed.
11 So if I were to say, well, if I'm going to have a
12 jury come in this month and they're going to sit here and
13 they're going to listen to what happened to me that day, and
14 I want to bring out the issue that I was triggered because I
15 was a crime victim, and I just want to call off one of these
16 three officers, I can't because I don't have those cards.
17 Those were in the property that was destroyed.
18 So I just -- I want to express these things -- what
19 I do think, Your Honor, I do what I call staff benefits. I
20 try to do -- get more than one thing accomplished at same
21 time, or you know --
22 THE COURT: No, I understand what you're saying.
23 MR. STULL: Right? So I don't want to --
24 similarly, when I said the legal theories of the disability
25 discrimination and interest of justice and all those kind of

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1 things, they're -- they may overlap, or they may do so
2 perfectly, and they may only cover some edges. But I don't
3 want to --
4 THE COURT: And you don't want those to limit you.
5 I understand that.
6 MR. STULL: Right.
7 THE COURT: I understand that point.
8 MR. STULL: So the loss of my goods, specifically,
9 I'll just tell you what I lost. I lost the things I need to
10 maintain my health. I need my things -- if I wanted to go
11 somewhere and I needed my ID, I had to get my ID replaced at
12 Motor Vehicle Division. If you say to folks what would you
13 rather do, stand in line around the corner at the courthouse
14 or wait in DMV to get your driver's license replaced, people
15 would say they'd probably want to sit in the park or they
16 would probably want to do anything else. These are not on
17 the lists of things that people want to do. Some people are
18 weird and they like to do weird things, but what I'm saying
19 is when you want to tell somebody about a bureaucratic
20 nightmare, you say, oh, remember the time I went to the DMV
21 and I had to wait for this, that, and the other thing.
22 This experience has forced that on me. And it's
23 forced that on me simply so I can go into the restaurant and
24 have a meal because they can't let me in without ID because
25 they're a bar, and the OLCC has been really hard on them.

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1 And I experienced that when I got out. I went with my lady
2 friend when I went to go eat, and they said do you have your
3 ID, and I said no, the police threw it out. They said well,
4 you can't eat here because we're a bar, and so I couldn't
5 even eat.
6 I got my food stamp card replaced. I had to go to
7 the office and do that. And I had to go to the office
8 again. And this is what I'm doing to not even get to where
9 I was the person that was arrested (inaudible). Like I
10 said, I'm still -- the cops have more keys to my house than
11 I do. I don't have a key to my back door. These things
12 hamper me, one, that whole experience and revisiting it
13 sickens me as a person with my disability, two, and three,
14 in addition to that hampering and the sickening, I don't
15 have the evidence.
16 THE COURT: All right. I can understand your
17 position.
18 MR. STULL: Okay. So thank you, Your Honor. I
19 wanted to be broad with that and fair. I want to be fair
20 with that.
22 So here's what I'm going to do. The first issue on
23 whether or not the district attorney's office ought to
24 proceed with these charges is a question that only the
25 district attorney's office can answer. I can't decide that

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1 for them. So they can answer that. Today they're not
2 prepared to dismiss these charges. They can always
3 reconsider and revisit that decision up until the time of
4 trial if they want to do that. So that's an issue that's
5 not before me.
6 The issue that is before me is whether dismissal in
7 the interest of justice ought to be granted. I'm authorized
8 to do so under the statute ORS 135.755. Justice is a broad
9 concept, and it can include lots of things, and there are a
10 lot of -- Mr. Stull is charged with incidents occurring on
11 November 25 th and November -- I've got one in front of me, a
12 few days earlier. And those incidents didn't happen in
13 isolation. They happened in the context of a larger
14 narrative. And how much of that larger narrative will be
15 presented at trial will be something that a trial judge will
16 have to address.
17 But I can consider that larger narrative in
18 determining whether dismissal in the interest of justice at
19 this time is warranted. And so I have done my best to
20 consider that larger narrative and the underlying
21 circumstances that Mr. Stull has brought to my attention,
22 both orally and through his written presentation, Exhibit
23 101.
24 Considering all of that, there are parts of that
25 that may or may not be disputed. There are parts of that

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1 that are troubling if -- troubling or disturbing to the
2 extent they can be substantiated. And there are parts that
3 are concerning to me both as a citizen and as a judge.
4 But I'm not the fact finder in this case. This is
5 something that fact finders may have to address. Based on
6 what I've seen so far, I do understand the law that
7 establishes the parameters of dismissal in the interest of
8 justice.
9 And that is something that should be rarely granted
10 in extreme circumstances. This is a high standard to meet.
11 There are cases in which dismissal in the interest of
12 justice ought to be granted. I'm not convinced, based on
13 what I've heard so far and based on my understanding of
14 Mr. Stull's position, that even though while certain aspects
15 of this narrative are troubling and concerning, I'm not
16 convinced that they warrant dismissal of these charges
17 pre-trial.
18 And so the Motion -- there's other -- that's the
19 statutory basis that would give me authority to dismiss.
20 I've looked at other statutes that address dismissal
21 pre-trial of an accusatory instrument. I don't see any
22 authority for me to consider dismissal other than the ORS
23 135.755 which is broad and allows me to consider all sorts
24 of things in the interest of justice. I've done my best to
25 consider them, and I'm not convinced that dismissal under

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1 that statute is warranted at this time, and so the Motion
2 for Judgment of Dismissal is denied.
3 We've already got other dates, and if the State
4 decides it wants to proceed with this trial, we can address
5 those dates. If Mr. Stull is asking for additional time to
6 prepare for trial, that's not a request he can present to
7 me. He would have to present it to the CPC court for
8 scheduling matters. So that's back to Judge Marshall.
9 I'm going to give you a minute order with my ruling
10 so you have a written ruling. And that is applicable to
11 both cases, so there'll be two minute orders.
13 in Volume 13, June 9, 2016.)
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2 I, Cindy Weiper, court-approved transcriber,
8 _________________________
9 Cindy Weiper
12 Salem, OR 97302
13 970.405.3643
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 209 - 211
______________________________________________________________

CHRISTOPHER J. MARSHALL, Judge of the Circuit Court,
Thursday, June 9, 2016 at the Multnomah County Courthouse,
Portland, Oregon.
APPEARANCES

Unknown

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1 PORTLAND, OREGON; THURSDAY, JUNE 9, 2016
2 -O0O-
4 THE COURT: Last up, Stull.
5 UNIDENTIFIED SPEAKER: Mr. Stull.
6 THE DEFENDANT: Present, Your Honor.
7 THE COURT: Okay.
8 UNIDENTIFIED SPEAKER: State is reporting ready on
9 both cases, Your Honor. The first case reporting ready,
10 five witnesses, one and a half days. And the second case,
11 13 witnesses. This could spill into the third day. I know
12 there is (indiscernible) conference next week, so I want to
13 alert the Court to that concern.
14 THE COURT: Okay.
15 UNIDENTIFIED SPEAKER: Ms. Rosenbaum is also here.
16 She had a motion to quash on one of those cases and I think
17 she's hoping to be heard on that today.
18 MS. ROSENBAUM: Yes, Your Honor.
19 THE COURT: Okay, a motion to quash a subpoena?
20 MS. ROSENBAUM: A subpoena to Dr. Rosenbaum, who
21 has no recollection of having seen this patient.
22 THE COURT: Okay. So we'll send that out for
23 someone to hear this morning, okay?
24 MS. ROSENBAUM: Do we know --
25 THE COURT: In just a second, okay? We'll come

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1 back to it in just a second, okay.
2 All right. So that trial will go to Judge
3 Immergut.
4 UNIDENTIFIED SPEAKER: Thanks, Your Honor.
5 THE COURT: Okay. And then -- but stay here,
6 Mr. Stull, because we have to send out for that motion.
8 in Volume 15, June 9, 2016.)
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53479
vs. )
BARRY JOE STULL, )
) Pages 211 - 224
______________________________________________________________

came on regularly for hearing before the Honorable LESLIE
ROBERTS, Judge of the Circuit Court, Thursday, June 9, 2016
APPEARANCES

Mike Botthof, OSB #113337
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162
mike.botthof@mcda.us

Salem, OR 97302
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APPEARANCES (Continued)
Bryan Francesconi, OSB #063285

Portland, OR 97204
(503) 225-9100
bfrancesconi@mpdlaw.com
For Witness, Dr. Richard Rosenblum
Lois Rosenblum

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2 -O0O-
4 THE COURT: This is the time and place set for a
5 motion to quash subpoena in the case of 15 -- case number
6 15CR53749, State of Oregon vs. Stull.
7 Why don't we just identify everybody at counsel
8 table?
9 MS. ROSENBAUM: Yes, Your Honor. Lois Rosenbaum for
10 a witness -- a subpoenaed witness, Dr. Richard Rosenbaum.
11 THE COURT: Okay.
12 THE DEFENDANT: Barry Joe Stull, pro se.
13 THE COURT: Okay.
14 MR. FRANCESCONI: Good morning, Judge. Bryan
15 Francesconi, Metro, 063285. I have been appointed as the
16 legal advisor on this matter.
17 THE COURT: You've been?
18 MR. FRANCESCONI: Appointed as a legal advisor on
19 this matter.
20 THE COURT: Okay.
21 MR. FRANCESCONI: Very brief background with
22 Mr. Stull asked me to issue a subpoena in my role as a
23 legal advisor to a Dr. Rosenbaum. I did that, because it's
24 my position that Mr. Stull needs to make decisions on this
25 case regarding how he wants to proceed. It's my job to

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1 effectuate those requests, for the most part. And so I
2 issued a subpoena on this case.
3 However, that -- I consider that to be my role
4 with my client since he is the boss on this case,
5 determination as to why he's getting (indiscernible).
6 THE COURT: Okay. Very well. I just had a chance
7 to review the memorandum that you submitted, so do you want
8 to add anything to that?
9 MS. ROSENBLUM: I think it's all in the memorandum,
10 Your Honor, if you've read it. Just that Dr. Rosenblum
11 doesn't recall seeing the patient. He's happy to supply his
12 certified records. He's not going to be retained as an
13 expert witness and wouldn't offer any opinions if he came to
14 trial. And he does have full days scheduled. Patients
15 would be very inconvenienced if he had to cancel.
16 THE COURT: Okay.
17 Mr. Stull.
18 THE DEFENDANT: Good morning, Your Honor. First
19 of all, for the purpose of this hearing, I have to advise
20 you I'm quite ill. I have a neurological condition. It's
21 called Central Pain.
22 THE COURT: Is it difficult for you to stand?
23 THE DEFENDANT: Oh, no. It's --
24 THE COURT: Well, then, it's appropriate to stand
25 when you address the Court.

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1 THE DEFENDANT: Oh. Well, thank you, Your Honor.
2 I certainly will.
3 Is the recording picking me up?
4 THE COURT: Pardon?
5 THE CLERK: Yes.
6 THE DEFENDANT: Your Honor, as I mentioned, for
7 the purpose of this hearing, I'm telling you I'm quite ill.
8 I have a very severe disability. It's actually life-
9 threatening under certain circumstances. And I'm trying to
10 cover all the territory I can by first presenting that I do
11 have a disability.
12 And you might observe, as these other folks may
13 observe, this is what we term an invisible disability. I
14 don't have a service animal. I don't have pain. I'm not in
15 a wheelchair. And frankly, my bicycle's parked outside where
16 I left it this weekend. It's been there for about four or
17 five days. It's still out there. But I walk to the MAX.
18 So my problem is, Your Honor, is that I have a very
19 severe neurological condition. I'm facing charges where the
20 fact that I'm a person with a disability is an offense. The
21 case law in that State vs. Marbet. It's kind of quite
22 clear. It's on point on these issues.
23 My trouble is, Your Honor, on February 9th, I was
24 in custody, and that day, the District Attorney presented a
25 motion, which was accepted by me in the court, dismissing a

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1 felony charge. At that time, I was in front of Judge
2 Marshall. And the standards that we set were this. I was
3 going to represent myself. I'm quite capable of doing that.
4 And being in my position as a person with a disability in
5 this society, I'm well-read on these matters.
6 So Judge Marshall allowed me to represent myself.
7 And the very specific point that I raised on February 9th was
8 that I need to have assistance getting my medical records and
9 my witness subpoenaed. I have a case that's kind of a
10 humorous thing for to see, justice delayed is justice denied.
11 Your Honor, I have a case from 2012 in this circuit
12 that's still on appeal in the Oregon Court of Appeals. And
13 the briefs have been in front of the Court now for well over
14 a year. And that issue is the Portland Police refusing to
15 accept my defense witness subpoenas and that being allowed
16 to happen in this circuit court. So I'm still burned from
17 that issue, and here I'm facing this one.
18 The reason I subpoenaed this doctor, Your Honor, is
19 because it's essential to my defense that people's prejudices
20 and bias are filtered as much as possible, because I could
21 show you in my paperwork here, I was at Emanuel Hospital in
22 October 2011 where I required 45 minutes of exclusive
23 critical care to prevent circulatory failure because my pulse
24 was at an incredible 175 beats a minute. Right here,
25 probably a little excited. It's probably getting upwards to

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1 65 beats a minute because I'm excited.
2 So my pulse is extraordinarily low. My physical
3 condition is a product of my disability because I have to
4 address my chronic pain condition.
5 And what happened to me, Your Honor, is I went to
6 the library last night and I got an email which was from
7 several days ago from Mr. Francesconi saying that this issue
8 was coming. And then at 2:00, apparently, the motion was
9 emailed to me yesterday. So I'm not even on my first days'
10 notice of this event that I'm addressing here today.
11 The law's quite clear is that as a Defendant, I'm
12 allowed to have my defense witnesses. What it's not so
13 clear about is how I get those when I have a hostile
14 relationship with the Public Defender's firm, and that's
15 because they did absolutely no work on this case when I was
16 in custody, with the exception of trying to get me to take a
17 plea offer.
18 THE COURT: Just a second.
19 Were you going to appear on this case still?
20 MR. BOTTHOF: I think that's the plan, yes, Judge.
21 THE COURT: Okay. Well, we were under the
22 impression that nobody was going to come down, but why don't
23 you come have a seat and we'll --
24 MR. BOTTHOF: Okay, thank you. Sorry for the
25 confusion.

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1 THE COURT: -- place your appearances on the record.
2 And just --
3 THE DEFENDANT: So -- okay, Your Honor.
4 THE COURT: -- just a second. Let's take care of
5 this.
6 THE DEFENDANT: Go ahead, take care of the
7 housekeeping.
8 THE COURT: Yeah. We're just going to take care of
9 this.
10 Okay. Go ahead, place your appearance
11 (indiscernible).
12 MR. BOTTHOF: Thank you, Judge. I apologize for
13 being late.
14 THE COURT: I apologize for not -- for going ahead,
15 because we didn't believe that we were going to get a
16 representation.
17 MR. BOTTHOF: It's Mike Botthof for the State,
18 B-o-t-t-h-o-f, Bar Number 113337. Thank you, Judge.
19 THE COURT: Okay. We've just begun.
20 Okay. Please continue.
21 THE DEFENDANT: All right. And my problem, Your
22 Honor, is I'm operating from the position, as I have from
23 the outset, that this entire experience for me is one that
24 violates my rights as a person with a disability. I don't
25 see that 10 or 12 or 15 court appearances and a not guilty

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1 is a win. That's me getting up and getting here so I can
2 ultimately prevail, and then what do I get: nothing. I
3 just get to ruin my life coming in here and having all these
4 arguments with all these people that, frankly, I probably
5 wouldn't you give the time of day otherwise.
6 So this is a hostile environment for me because I'm
7 a person with a severe disability. It's neurological. My
8 neurologist that passed away here several years ago was
9 qualified by the Oregon Supreme Court as an expert witness.
10 And he characterized in his sworn trial testimony in 2004,
11 that my condition is a whole new disease on a molecular
12 basis.
13 I don't know how I'm supposed to overcome the fact
14 that I just learned here in this courtroom, Your Honor, that
15 the problem is that my court-appointed counsel didn't intend
16 to pay the good doctor for his appearance. And I'm smart
17 enough to read the statute that says that as a person that
18 can't afford an attorney, that expense comes right along
19 with everything else that it takes to defend.
20 So I don't know how to -- I don't know what to do
21 with all of you. All I can say is in this courthouse, on
22 February 9th, I said I need assistance in getting my medical
23 records and getting my witnesses. And I don't know what I
24 can say to reinforce that when I'm being passed around like
25 a hot potato at this Public Defense firm.

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1 This gentleman here was not at my two and a half
2 hour hearing in front of Judge Bushong on this case, Your
3 Honor, so he doesn't know that two and a half hours' worth of
4 information that I presented there, because when his
5 colleague handed me the card and said, come to the
6 appointment on April 20th, I went to the appointment and I
7 got a whole new guy, probably quite competent, but certainly
8 informed as I am, and as any attorney would have been who had
9 been assigned to my case at the outset, who treated my case
10 with respect, who treated me with respect, and prevented all
11 this.
12 Why am I as a person with a disability slated for
13 trial on Monday here on Friday learning that I have to fix
14 some problem with a subpoena because my witness isn't going
15 to be available? That's not my problem, Your Honor.
16 THE COURT: Actually, it is your problem, but --
17 THE DEFENDANT: No, no, no, Your Honor, because --
18 THE COURT: -- the only issue here is what we do
19 about what's happened. What Dr. Rosenblum's submission says
20 is that he doesn't have any recollection, but he's willing to
21 make the medical records available to you. But he himself
22 has nothing to say, so --
23 THE DEFENDANT: How could that possibly -- he
24 diagnosed me. How can he not look at his chart notes and
25 say --

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1 THE COURT: Well, then your chart notes themselves
2 are --
3 THE DEFENDANT: Do you know what Central Pain is?
4 Excuse me for interrupting.
5 THE COURT: I'm not argue with you about it. I'm
6 just telling you that that's the subject matter here. And
7 the question is, in -- what lawyers generally do is that they
8 contact people like that to determine their availability and
9 arrange with them.
10 THE DEFENDANT: On May 27th, Your Honor, this case
11 was generated --
12 THE COURT: I am not --
13 THE DEFENDANT: -- in November.
14 THE COURT: Please. If I'm talking, you don't
15 talk.
16 THE DEFENDANT: Okay, I'm leaving. I'm sick.
18 THE DEFENDANT: I'm a person with a disability.
19 THE COURT: I'll quash the subpoena.
20 MS. ROSENBAUM: Thank you, Your Honor.
21 THE COURT: I'll quash the subpoena.
22 MR. FRANCESCONI: Thank you, Judge.
23 THE DEFENDANT: I'm saying I'm leaving because I'm
24 ill.
25 THE COURT: Go.

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1 THE DEFENDANT: I'm ill. I have a severe
2 disability.
3 THE COURT: No, you're leaving because you're mad
4 at me.
5 THE DEFENDANT: No, Your Honor --
6 THE COURT: That's all right.
7 THE DEFENDANT: -- I'm not.
8 THE COURT: I --
9 THE DEFENDANT: And this is all on the record, I
10 hope. We're still on the record.
11 THE COURT: Yeah, we're on the record, and I'm
12 making a finding.
13 THE DEFENDANT: Okay. I'm invoking right now --
14 THE COURT: I'm making a finding --
15 THE DEFENDANT: -- my rights as a person with a
16 disability --
17 THE COURT: -- that you're being disruptive.
18 THE DEFENDANT: -- under ORS 659A.--
19 THE COURT: You're being disruptive.
20 THE DEFENDANT: -- 142 --
21 THE COURT: Do you know if you maintain in this
22 course during your trial, you will not be allowed to
23 represent yourself?
25 THE COURT: So you're going to have to --

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1 THE DEFENDANT: -- this is a hostile environment to
2 me.
3 THE COURT: -- contain yourself.
4 THE DEFENDANT: I'm going to take this up with the
5 presiding Court today at ex parte, and we're going to see
6 what we're going to do because --
8 THE DEFENDANT: -- because I cannot find out --
9 THE COURT: Do what you like.
10 THE DEFENDANT: -- what -- what is your rational,
11 aside from me being upset with this?
12 THE COURT: The witness has --
13 THE DEFENDANT: What is your rationale?
14 THE COURT: The witness has nothing to say in your
15 case. You --
16 THE DEFENDANT: According to the witness?
17 THE COURT: Yes.
18 THE DEFENDANT: According to that memorandum.
19 You're saying, according to the memorandum, the witness is
20 saying the witness has nothing to say, so they do not have
21 to respond to the subpoena. What force can a subpoena have
22 in Multnomah County Circuit Court if any witness can simply
23 say, I don't have anything to say? That's not why we
24 subpoena people.
25 THE COURT: I have ruled --

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1 THE DEFENDANT: We subpoena them to force them into
2 court.
3 THE COURT: -- and we are adjourned.
4 THE DEFENDANT: Thank you, Your Honor.
6 MS. ROSENBAUM: Thank you, Your Honor.
7 MR. FRANCESCONI: Thank you, Judge.
9 in Volume 16, June 13, 2016.)
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53479
vs. )
BARRY JOE STULL, )
) Pages 225 - 246
______________________________________________________________

came on regularly for hearing before the Honorable KARIN J.
IMMERGUT, Judge of the Circuit Court, Monday, June 13, 2016
APPEARANCES

Eamon P. McMahon, OSB #153879
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162
eamon.mcmahon@mcda.us

Bryan Francesconi, OSB #063285
Portland, OR 97204
(503) 225-9100
bfrancesconi@mpdlaw.com

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1 PORTLAND, OREGON; MONDAY, JUNE 13, 2016
2 -O0O-
5 MR. McMAHON: And good morning, Your Honor. Eamon
6 McMahon for the State, M-c-M-a-h-o-n, Bar Number 153879.
7 Calling two cases for Barry Stull, 15CR52961 and 15CR53749.
8 Today is the time and place for trial at 9:00 a.m. It is
9 now 9:25 and the Defendant has not shown.
11 MR. FRANCESCONI: Good morning, Judge. Bryan
12 Francesconi, Metro, 063285. Mr. Stull represents himself.
13 I'm sure he'd object to us having a hearing without him
14 being present. I'm sure he would object to the warrants.
15 I'm surprised he's not here. I know he --
16 UNIDENTIFIED SPEAKER: He was planning on being
17 here.
18 UNIDENTIFIED SPEAKER: Did you check CPC?
21 MR. FRANCESCONI: I could check CPC. As the Court's
22 aware, he did email the Court. He'd been at probably 20
23 court appearances on these cases, so I am surprised.
25 THE COURT: Well, what I'll do is I will -- I'll

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1 issue a bench warrant, $5,000. I will -- in both cases,
2 but I will hold the warrants to enter until noon. So he
3 won't necessarily be arrested, but what is likely then to
4 happen is he'll get continued because now we're not going
5 to find a place to put it. And if he shows up before noon,
6 then I'll at least continue the case.
7 MR. FRANCESCONI: Okay. I'll go run upstairs.
8 UNIDENTIFIED SPEAKER: He was completely on it
9 yesterday. And he lives quite a distance away on the bus.
10 THE COURT: Yeah.
11 MR. FRANCESCONI: I was on the bridge for an hour,
12 so --
13 THE COURT: Yeah. So I'll -- I mean, I'll hold
14 the warrant, so he's not going to arrested right now, but
15 I'll hold the warrant till noon.
16 MR. FRANCESCONI: Okay.
17 THE COURT: Okay. Any issues -- I mean, I
18 understand that you've noted his objections for the record.
19 Mr. Francesconi, will you be someplace in the
20 event that he shows up soon?
21 MR. McMAHON: If Mr. Francesconi wants to check if
22 he's -- I can have my witnesses hang out for another --
24 MR. McMAHON: -- five minutes. But if he's not in
25 CPC, I'm just going to ask that my witnesses be released --

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1 THE COURT: Yeah, because they're holding a lot of
2 witnesses.
3 MR. FRANCESCONI: Sounds good. And I'm going to
4 watch other attorneys in trial, so just same time if you
5 need me.
6 THE COURT: And let me tell you, Mr. Francesconi,
7 my plan because Mr. Stull has been set over I think in the
8 past, but he's not the priority case because he's out of
9 custody, I'm going to do this other case. I can get it
10 done pretty -- it's a jury trial, but I think I can get it
11 done by this afternoon, I hope, and then I will just take
12 Mr. Stull's case this afternoon starting as soon as I can.
14 THE COURT: Because Mr. McMahon's in the same case
15 and it's specially assigned to him.
16 MR. FRANCESCONI: So are we doing one case after
17 another? What's the plan with these cases?
18 THE COURT: Probably what would happen is at least
19 we get the first one done rather than -- I just felt bad
20 about continuing the whole thing again.
21 MR. FRANCESCONI: Yeah.
22 THE COURT: We'd do the shorter case this afternoon,
23 and the City Hall trespass would be continued.
24 MR. FRANCESCONI: Okay. So can I release at least
25 my City Hall witnesses, and I'll have my trespass witnesses

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1 hang out for a little bit longer see if he shows up. Is
2 that --
3 THE COURT: Right.
4 MR. FRANCESCONI: -- is that --
5 THE COURT: I think that's fine -- well, because
6 the other -- otherwise, I don't know how Mr. McMahon can do
7 it. If you did the City --
8 MR. FRANCESCONI: Why don't I just
9 (indiscernible).
10 MR. BOTTHOF: Okay, yeah.
11 UNIDENTIFIED SPEAKER: If Mr. McMahon would allow
12 my client to plead to the --
13 MR. McMAHON: No.
14 UNIDENTIFIED SPEAKER: -- indecent exposure, we
15 could clear it for Mr. Stull all the way.
16 MR. McMAHON: That's absolutely not going to
17 happen (indiscernible).
18 THE COURT: Is (indiscernible) his other charges?
19 MR. McMAHON: Public indecency.
20 THE COURT: Okay. And is that a higher level
21 misdemeanor?
22 MR. McMAHON: It's also (indiscernible) crime, so --
23 THE COURT: Okay, yeah, let's go check first.
24 MR. McMAHON: Okay. Thank you, Your Honor.
25 (Off the record from 9:28 a.m. to 9:30 a.m.)

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1 THE COURT: -- case. Mr. Francesconi has checked
2 Criminal Procedure Court to see if Mr. Stull was possibly
3 there and could have ended up at the wrong place.
4 And he -- Mr. Francesconi, you were unable to
5 locate him?
6 MR. FRANCESCONI: No. Again, Your Honor, I don't
7 have a phone number for him, so I can't call and check.
8 THE COURT: Okay. And I know one of his friends
9 or witnesses is in court. Were you able to reach him them?
10 MR. FRANCESCONI: Do you guys have a number for
11 him?
12 UNIDENTIFIED SPEAKER: I do.
13 MR. FRANCESCONI: You have a phone number for him?
14 UNIDENTIFIED SPEAKER: I do
15 MR. FRANCESCONI: Do you mind going out in the
16 hallway and calling him to see --
17 THE COURT: Did you try to call him before?
18 UNIDENTIFIED SPEAKER: I did.
19 THE COURT: And you didn't --
20 UNIDENTIFIED SPEAKER: I left him a message saying
21 we were here.
22 THE COURT: Okay. So he's -- and what's your name?
23 MS. CLIFFORD: Julie.
24 THE COURT: Julie?
25 MS. CLIFFORD: Clifford.

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1 THE COURT: What's your last name?
2 MS. CLIFFORD: Clifford.
3 THE COURT: Julie Clifford, who's a witness friend
4 is here.
5 MS. CLIFFORD: I don't know that -- I'm not a
6 witness.
7 THE COURT: Oh, not a witness, okay. So friend --
8 MS. CLIFFORD: Just a friend.
9 THE COURT: -- supporter is here, but tried to
10 reach him a few minutes ago. I mean, I'm happy if you want
11 to make one more effort, but --
12 MR. FRANCESCONI: That's okay.
13 THE COURT: Okay. So I'm going to issue a bench
14 warrant. Again, I'll hold it till noon, but it does mean
15 then the cases will be rescheduled.
17 THE COURT: So do -- we'll just let you know,
18 Mr. Francesconi, if he shows up and we'll just be at a later
19 date.
20 MR. FRANCESCONI: Great.
21 MR. BOTTHOF: Thank you, Your Honor.
22 MR. FRANCESCONI: Thank you, Your Honor.
24 THE COURT: Well, Mr. -- you're Mr. Stull, I
25 presume?

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2 THE COURT: So unfortunate -- well, let me say, I
3 did issue a bench warrant because you were not here for
4 your arrest. I'll rescind your bench warrant. But it did
5 mean the State has let all their witnesses go.
6 MR. STULL: I saw them as I was walking with my
7 bicycle. But I probably wouldn't be here yet. The MAX is
8 -- were all stopped. The Steel Bridge was up for an hour
9 because the Rose Festival is leaving. And I called at 8:36
10 when they were saying that the bridges were up for half
11 hour. And before I got off, I rode my bike from the Rose
12 Garden over there. They said the bridge had been up for an
13 hour at that point.
14 THE COURT: Okay.
15 MR. STULL: So this is going to be dribbling the
16 whole downtown Portland, so I'm just the first one to
17 announce that --
18 THE COURT: Okay.
19 MR. STULL: -- here we are. We were trapped over
20 there on the other side of the river.
21 THE COURT: All right. So unfortunately --
22 MR. STULL: Yes.
23 THE COURT: -- it does mean -- I had hoped I would
24 start your case right after this case this afternoon, but
25 now that's not going to be possible because all the

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1 witnesses have been released.
2 MR. STULL: Okay.
3 THE COURT: So we are going to have to set your
4 case over, which -- or your cases.
5 MR. STULL: Right.
6 THE COURT: Do we want to --
7 MR. STULL: Your Honor, if you don't mind, you
8 just came out. Obviously, you were prepared to take care
9 of some business with these folks. I just got here a full
10 hour after I intended to. So if you don't mind, you can go
11 ahead and take care of your business and I'll be here
12 because I'm not going anywhere with a bench warrant for my
13 arrest. That's not --
14 THE COURT: I'm going to --
15 MR. STULL: -- I understand. We'll let that all
16 clear.
17 THE COURT: Well, it's not even -- we didn't enter
18 it.
19 MR. STULL: Okay. All right, so --
20 THE COURT: I held -- I was going to hold it.
21 MR. STULL: But we haven't called the case here or
22 anything and --
23 THE COURT: So --
24 MR. STULL: -- so, like I said, you were surprised
25 when you came out here, and if you want to proceed with

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1 this matter.
2 THE COURT: Well, this is a whole trial. This is
3 going to take --
4 MR. STULL: Oh, okay. I'm giving you the option
5 first because it's your court.
6 THE COURT: Yes, thank you.
7 MR. STULL: I'm just -- I'm being fair with you
8 that I don't have to run out of here in a second.
9 THE COURT: Yes. No, no, I appreciate that.
10 MR. STULL: All right. But I will get out of your
11 business as soon as it's appropriate.
12 THE COURT: So what I'll do is actually -- let me
13 have -- well, let's move the mic. We'll just call the case
14 and then I'm not -- I think I can reset it here if you have
15 dates.
16 MR. FRANCESCONI: I don't. I have -- without any
17 witnesses --
18 THE COURT: Okay.
19 MR. FRANCESCONI: -- I don't have dates. I think
20 we'll set -- a date check about a week out, and I can work
21 and get my dates fixed and send Mr. Stull an email letting
22 him know what dates will work (indiscernible).
23 THE COURT: Okay. So let's just -- I'll have
24 Mr. McMahon call the case. We'll note on the record just
25 what time it is now and the --

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1 MR. BOTTHOF: And I'm sorry (indiscernible) case,
2 I took my case files back upstairs.
3 THE COURT: Sure. I can call the case.
4 Obviously, Mr. Stull, normally I would have you
5 here, but we have an in-custody defendant, so --
6 MR. STULL: Yeah, that's fine.
7 THE COURT: So this is the case of State vs. Barry
8 Stull. It's actually two case numbers: 15CR52961 and
9 15CR53749. Today was the time and place set for trial in
10 this matter. Mr. McMahon is here for the State. Mr. Stull
11 represents himself. And I did have Mr. Francesconi here
12 earlier, who has been appointed by the Court previously as
13 a legal advisor in this case.
14 This case was set for 9:00. It is now almost -- I
15 know Mr. Stull came in at 9:45, approximately. I had
16 earlier issued a bench warrant when he was -- I think it
17 was at 9:25, but I held it till noon just in the event that
18 you were going to come, and so it has not entered into the
19 system. I'm going to rescind -- recall the bench warrant.
20 So although you are, however, I did allow the
21 State to release its witnesses in both of the cases. So I
22 am going to set it back on Criminal Procedure Court a week
23 from now for the State to then verify the witness
24 schedules. And so you should do the same, Mr. Stull, if
25 you have various witnesses so you're ready to come in and

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1 pick new dates --
2 MR. STULL: Right.
3 THE COURT: -- next week.
4 MR. STULL: Your Honor, there's a matter that just
5 came to light with me going to my relationship with
6 Multnomah Public Defender and their transferring my case
7 among other attorneys over there.
8 UNIDENTIFIED SPEAKER: And Multnomah Defenders
9 (indiscernible).
10 THE COURT: Yeah, Francesconi is --
11 MR. STULL: What did I say? Oh, Metropolitan.
12 That's my mistake.
13 THE COURT: Okay.
14 MR. STULL: I'm still trying to deal with the
15 facts (indiscernible). Yeah, my misspeaking there.
16 The point is, that I learned as of -- I learned as
17 of Friday, that none of my defense witnesses had been
18 subpoenaed regarding the medical response paramedics and
19 the Portland Fire Bureau folks, because I went to Emanuel
20 Hospital by ambulance Sunday, the 22nd. That's one of
21 these cases --
22 THE COURT: Okay.
23 MR. STULL: -- back in November.
24 So I had a two and a half hour hearing on this --
25 these matters before Judge Bushong, and I was given a card

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1 to go to Metropolitan on April 28th when -- did I say that
2 -- when I went to their office, I was actually assigned to
3 Mr. Francesconi, who didn't have any of that knowledge from
4 that two and a half hour presentation, because that was
5 under Mr. Bear with the firm at the time.
6 Somewhere along the line, Mr. Francesconi didn't
7 get the memo that the reason that the firm was appointed as
8 my legal advisor was solely to affect my defense witnesses
9 and my medical records getting those subpoenas so that it
10 would be appropriately before the Court. And virtually
11 none of that's (indiscernible), Your Honor.
12 And so I learned of this on Thursday, the -- my
13 neurologist was -- had filed a -- they had filed the previous
14 day, at 2:00, they filed a motion to quash the subpoena. And
15 I have a neurological condition, and I was expecting they'd
16 have somebody be able to translate what my medical records
17 mean to the jury or the Court. If I elected to appear
18 before, you, trial before the Court, I would still need
19 somebody that could talk about my particular type of
20 disability, which is a neurological condition.
21 And I blew my stack in front of Judge Roberts on
22 Friday, because they quashed the subpoena. And
23 Mr. Francesconi told me that had I intended to call him as
24 an expert witness, I would have to pay him. And that's --
25 the whole paying of the witnesses is part of the same

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1 statute that allows me as a defendant to subpoena them,
2 particularly when I have a court-appointed attorney, if I'm
3 indigent, and those expenses would go -- it's right in the
4 statute, that they go right on to the State.
5 So I learned the day before the -- you know,
6 basically the last judicial day we had on these matters, we
7 don't have trials on Fridays, but when this was set for
8 trial on Monday, on Thursday, I learned that I didn't have
9 any of my police witnesses. And when I had that appearance
10 back in the middle of April, I specifically said that one
11 of the issues is on the subpoena rules on ORCP 55, the
12 police officers have to have ten days before they can be
13 subpoenaed.
14 THE COURT: All right. I don't mean to --
15 MR. STULL: So I'm just telling you that because --
16 THE COURT: No, I understand. So --
17 MR. STULL: -- if I'm going to subpoena the police
18 officers, I need to have that ten days that's required in
19 the --
20 THE COURT: So let me do this --
21 MR. STULL: Yeah.
22 THE COURT: -- because I don't want you to waste a
23 lot of energy with me since --
24 MR. STULL: No. Yeah.
25 THE COURT: -- you know, as you can see, you are

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1 likely to be in front of a totally different judge when you
2 come -- well, I know you will be when you come to Criminal
3 Procedure Court next week.
4 So what I want you to do though is be in touch with
5 Mr. Francesconi before the hearing next week, confer with
6 him about the subpoena issue so that you could be ready to
7 present next week.
8 And are you sure you don't want a lawyer? I mean,
9 really to --
10 MR. STULL: Your Honor, I --
11 THE COURT: I mean, I know somebody's already gone
12 over this with you. I just want to ask you again.
13 MR. STULL: Your Honor, incredible as it may
14 sound, I have on appeal currently a wrath of consolidated
15 cases from 2012.
16 THE COURT: Okay.
17 MR. STULL: And what's echoing in my burned ears is
18 the Deputy District Attorney saying to the jury, he could
19 have subpoenaed his doctors if he wanted to.
20 THE COURT: I don't want to -- okay.
21 MR. STULL: So I'm not going to do that again,
22 right.
23 THE COURT: No, no, I'm just saying --
24 MR. STULL: Right. So I'm really firm about that.
25 THE COURT: Right. So let's --

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1 MR. STULL: But I just lost one here on Thursday,
2 I learned, so I don't know how to rectify that, so --
3 THE COURT: So let me set it back -- well,
4 Mr. McMahon, do you want to address anything now?
5 MR. McMAHON: I think we just want to set it on CPM
6 for the 21st because there isn't a (indiscernible) docket a
7 week from today, so it would have to be on the 21st --
8 THE COURT: Okay.
9 MR. McMAHON: -- (indiscernible). And what I'll
10 do is I'll look through, see if I can get that date
11 together. I will email those to Mr. Stull.
12 THE COURT: Okay.
13 MR. McMAHON: And that way he can pick a couple of
14 days. I would recommend that we block two or three days.
15 So if the trial started on Monday or Tuesday --
16 MR. STULL: Sure.
17 MR. McMAHON: -- assuming that the --
18 THE COURT: Okay. So we're going -- so next
19 Thursday, 9:00 a.m. --
20 MR. STULL: Okay.
21 THE COURT: -- you're going to go back to, is it
22 still Judge Marshall?
23 MR. STULL: Probably Judge Marshall.
24 MR. McMAHON: It is Judge Marshall.
25 THE COURT: So it's Marshall for CPC. I'll let

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1 him know what happened here today as the issue, and also
2 pass along what you just said. But I would urge you to be
3 in touch with Mr. Francesconi. I know he's around the
4 building today because he was going to watch some trials
5 since your trial looked like it was not going to happen,
6 and talk to him about the subpoena issue, and so you have a
7 full understanding of what's going on.
8 MR. STULL: Right.
9 THE COURT: And then you'll pick trial dates next
10 Thursday in front of Judge Marshall.
11 MR. STULL: Okay. My only concern with this is
12 that -- I think it's ORCP 55 -- but the police officers
13 have to have that ten days' notice before that.
14 THE COURT: So you'll pick a trial date --
15 MR. STULL: So I'm just letting everybody know --
16 THE COURT: Yeah.
17 MR. STULL: -- that I learned on Friday that they
18 hadn't already been subpoenaed. I thought they were like
19 keeping a list and adding to it.
20 THE COURT: Okay.
21 MR. STULL: And I found out that, no, that wasn't
22 happening.
23 THE COURT: Okay.
24 MR. STULL: And, Your Honor, if I can -- if I can
25 close this matter with one important point.

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1 THE COURT: Sure.
2 MR. STULL: I appeared in front of Judge Marshall
3 February 9th, and that's when we finally decided that this
4 is how we're going to approach my defense of this case with
5 the law firm acting to affect my evidence and my witnesses.
6 And then subsequent of that, a couple things
7 happened. I learned that my property had been destroyed
8 while I was in custody, so I didn't have any of the
9 resources that I'd ordinarily expect and I had to spend a
10 lot of resources replacing them and recovering from the
11 shock of that loss.
12 But anyhow, the important point is that I have to
13 -- there's my disability coming in on me here -- that I
14 cannot, by order of my release status, because I have to
15 call Thursday. It's really minimal on my part, my status.
16 I don't have to --
17 THE COURT: Right, okay.
18 MR. STULL: -- any check-in really, except I call
19 once a week on the telephone. But I can't have contact with
20 the victims. And that's what I was fishing around in my mind
21 to decide what point I was trying to make. So I can't go
22 over to City Hall and give a subpoena to Jasmine Wadsworth
23 (ph), and my release folks over here at the Justice Center ,
24 I'll just refer to them over there as that --
25 THE COURT: Okay.

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1 MR. STULL: -- and we can get the paperwork out,
2 we won't need to.
3 THE COURT: Right. So the --
4 MR. STULL: But anyhow, we negotiated that it's no
5 contact with the victims --
6 THE COURT: Right.
7 MR. STULL: -- except through the attorney.
8 THE COURT: Right.
9 MR. STULL: So I can't subpoena them, and so that's
10 why I need the law firm to do that.
11 THE COURT: Right. That's why I'm sending you
12 back to Judge Marshall --
14 THE COURT: -- because he's familiar with your
15 case and your issues and --
16 MR. STULL: But unless some -- excuse me, Your
17 Honor. Unless something really -- the feet touch the ground
18 over there at the law firm, any of my requests and demands
19 and theories, they just don't go anywhere until they actually
20 do the work.
21 THE COURT: Right. So you have to ask Francesconi
22 about that, so --
23 MR. STULL: I mean --
24 THE COURT: -- and then --
25 MR. STULL: -- they suggested I move for

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1 replacement of counsel.
2 THE COURT: Well, he's a terrific lawyer, but he's
3 also just an advisor --
4 MR. STULL: It's -- it's --
5 THE COURT: -- so let me -- which is why generally
6 people are still better off having a lawyer than --
7 MR. STULL: Right.
8 THE COURT: -- simply an advisor.
9 MR. STULL: Right.
10 THE COURT: And I would urge you to rethink that,
11 but I don't want to take that up now.
12 MR. STULL: It's just I'm very versed in the
13 disability discrimination theories and whatnot that have
14 been my -- and my neurological condition, which is --
15 THE COURT: Right. I just --
16 MR. STULL: -- an invisible disability, so I --
17 THE COURT: -- I found --
18 MR. STULL: -- that's why I'm taking this approach.
19 THE COURT: Right. I just have found it always to
20 be a detriment to defendants to represent themselves. So
21 that's my -- I know you've heard that before, so I'm not
22 going to go over it again.
23 MR. STULL: Yeah.
24 THE COURT: But if you could have Francesconi as
25 your actual attorney, he's fantastic. I've had many cases

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1 with him. He gets very good results for his clients. And I
2 think -- I would urge you to reconsider proceeding on your
3 own, but that's my last word on it.
4 MR. STULL: All right.
5 THE COURT: I will set it for 9:00 a.m. And maybe
6 your friend who's nodding could convince you of that.
7 But Thursday --
8 (Crash)
9 MR. STULL: I don't know what that was, sorry.
10 THE COURT: That's okay. That's the -- so
11 Thursday, 9:00 a.m. next week, back in Criminal Procedure
12 Court, just to set the dates for your trials.
13 MR. STULL: Okay.
14 THE COURT: So I'm sorry about the bridges.
15 MR. STULL: No, no, that's fine. I did call, so
16 that's as good as I could do.
17 THE COURT: Where did you call?
18 MR. STULL: Actually, I called the help desk at the
19 District Attorney's office --
20 THE COURT: Oh.
21 MR. STULL: -- who then forwarded me to, what they
22 told me was voicemail at this -- with your clerk here.
23 THE COURT: Okay.
24 MR. STULL: And so I just checked my phone. It was
25 8:36.

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1 THE COURT: Okay. So maybe we just didn't get it.
2 MR. STULL: And that's when they announced the
3 train was -- that the bridge was up for a half hour. And by
4 the time I got off, they said it was a full hour, so --
5 THE COURT: All right. Well --
6 MR. STULL: Thank you, Your Honor. I'll see you
7 next --
8 UNIDENTIFIED SPEAKER: If you ran up to the office,
9 you would (indiscernible).
10 MR. STULL: No, I'll -- I'll see you next time
11 through.
12 THE COURT: Okay.
13 MR. STULL: We're (indiscernible) for right now.
14 THE COURT: Okay. Yeah, I'm not sure what
15 happened, but --
17 THE COURT: Okay. All right.
18 MR. BOTTHOF: Thank you.
20 in Volume 17, June 30, 2016.)
21
22
23
24
25 ///

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13 Salem, OR 97302
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17 Date: April 14, 2017
18
19
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21
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23
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25

Salem, OR 97302
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STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 247 - 251
______________________________________________________________

CHRISTOPHER J. MARSHALL, Judge of the Circuit Court,
Thursday, June 30, 2016 at the Multnomah County Courthouse,
Portland, Oregon.
APPEARANCES

Unknown
Kevin Kelley, OSB #033539

Hillsboro Law Group PC
5289 NE Elam Young Parkway, Suite 110
Hillsboro, OR 97124
(503) 648-0707
kevink@hillsborolawgroup.com

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2 -O0O-
4 MR. STULL: Your Honor, Barry Joe Stull. I'm not
5 a member of the bar, so I didn't come up and get in line,
6 but --
7 THE COURT: Okay.
8 MR. STULL: -- but it's my turn.
9 THE COURT: Okay. And how did you decide it was
10 your turn?
11 MR. STULL: I was waiting in line, but I didn't
12 come before the bar because I'm not a member of the bar.
13 THE COURT: Oh, you were keeping track --
14 MR. STULL: And I don't need to be reprimanded for
15 that again.
16 THE COURT: I'm not reprimanding, I'm just --
17 MR. STULL: You haven't, but I'm saying it's my
18 experience.
19 THE COURT: -- I'm just asking you what -- so --
20 MR. STULL: This gentleman knows that --
21 THE COURT: I see. So you reserved a -- I got you.
22 MR. STULL: I'm trying to be kind, Your Honor. I
23 have a case number.
24 THE COURT: Okay.
25 MR. STULL: 15CR53749.

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1 THE COURT: Yes.
2 MR. STULL: And I'm reading that from the back of
3 Mr. Kevin Kelley's business card. Apparently, he might be
4 assigned to be my legal advisor this morning.
5 THE COURT: Okay. And --
6 MR. KELLEY: Good morning, Your Honor.
7 THE COURT: Yes. And you actually have two cases.
8 MR. STULL: Right. I didn't read the other one.
9 The other one's tracking with this one.
10 THE COURT: Yes. 15CR52961, yeah. Okay. And so
11 we had this on the docket, what, last week, I think?
12 MR. STULL: Right, just two.
13 THE COURT: Yeah, and so we needed to appoint a
14 new legal advisor.
16 THE COURT: And so we've done that now. And
17 you've met --
18 MR. STULL: I just met Mr. Kelley. I thought you
19 were going to tell me who it was and -- but --
20 THE COURT: Well, you met him beforehand. You're
21 way ahead of me this morning.
22 MR. STULL: Maybe -- I don't know how -- I don't
23 know, you're as surprised as I was that he's been assigned
24 to this case, but --
25 THE COURT: Oh, I'm --

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1 MR. STULL: -- here we are.
2 THE COURT: -- I'm not surprised.
3 All right. So all is good. You have your court --
4 you have the next dates on the case.
5 MR. KELLEY: I think we need dates, and I spoke
6 with the State about that.
7 UNIDENTIFIED SPEAKER: That's correct. I don't
8 have the bad dates, but I know the bad dates do go through
9 August at this point, Your Honor, and suggesting a trial
10 readiness date on the B docket relatively soon.
11 THE COURT: Okay. So a trial readiness date. So
12 that's a Friday. So how about Friday, July 15th? Does
13 that work for you?
14 MR. KELLEY: Yes.
15 THE COURT: All right. So we'll have on trial
16 readiness for Friday, July 15th, 9:00. You know how that
17 works, right?
18 MR. STULL: What room?
19 THE CLERK: The B docket.
20 MR. STULL: Oh, the B docket, so we don't know yet.
21 THE COURT: We don't know yet, yeah.
22 MR. STULL: Okay, all right.
23 THE COURT: But you know which docket. All right.
24 You know how to find out where to be, right? All right.
25 MR. STULL: All right, thank you.

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1 MR. KELLEY: Thanks, Judge.
3 MR. STULL: Thank you, Your Honor.
5 in Volume 18, July 15, 2016.)
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13 Salem, OR 97302
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 252 - 254
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Friday, July 15, 2016 at
APPEARANCES

Unknown

Hillsboro, OR 97124
(503) 648-0707

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1 PORTLAND, OREGON; FRIDAY, JULY 15, 2016
2 -O0O-
4 THE COURT: State of Oregon vs. Barry Joe Stull.
5 MR. KELLEY: Good morning, Your Honor. Kevin
6 Kelley, legal advisor for Mr. Stull. He is present in the
7 courtroom. He's got two cases. On the older of those
8 ending in 52961, we would ask for a trial date of
9 September 6th with a call on the 1st of September and
10 further proceedings on the 17th of August.
11 And on the more recent case ending in 53749, we
12 would ask for a trial on the 19th of September with call on
13 the 16th, and further proceedings on the 6th of September
14 when we'll be in court on the other matter.
15 Those dates are primarily because the State is
16 reporting not ready until mid-September on at least one of
17 them.
20 UNIDENTIFIED SPEAKER: 9/1 for 9/16.
21 MR. KELLEY: The other case.
22 UNIDENTIFIED SPEAKER: So in the case ending in
23 961, it's call 9/1 for a trial 9/6 since that's --
24 MR. KELLEY: No, you have those backwards. The
25 older --

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1 UNIDENTIFIED SPEAKER: Right, right.
2 (Discussion between counsel.)
3 UNIDENTIFIED SPEAKER: So the one ending in 961 is
4 call 9/1 for a trial on 9/6.
9 THE CLERK: 9/16?
11 (Pause)
12 THE CLERK: The 6th if a Friday, so --
13 UNIDENTIFIED SPEAKER: Oh, so it would be the
14 15th, yeah.
15 MR. KELLEY: 15th for call then?
16 UNIDENTIFIED SPEAKER: My apologies.
19 MR. KELLEY: 15th for the 19th on that one, please.
20 UNIDENTIFIED SPEAKER: And the further proceeding
21 on 9/6 one would be 8/17. And the one ending in 749 would
22 be 9/6.
25 in Volume 19, August 17, 2016.)

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13 Salem, OR 97302
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 255 - 310
______________________________________________________________

came on regularly for hearing before the Honorable KELLY
SKYE, Judge of the Circuit Court, Tuesday, September 6, 2016
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707

Salem, OR 97302
970.405.3643
APPEARANCES (Continued)
FOR DEFENDANT DAVID K. DAVIS:
Christopher Marin, OSB #143804

Multnomah Defenders, Inc.
Portland, OR 97204
(503) 226-3083, x110
cmarin@multnomahdefenders.org

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1 PORTLAND, OREGON; TUESDAY, SEPTEMBER 6, 2016
2 -O0O-
4 THE COURT: Please be seated.
5 MR. McMAHON: And good morning. Eamon McMahon for
6 the State, M-c-M-a-h-o-n, Bar Number 153879. Here on a
7 joinder motion for two cases: 15CR53749 and 15CR53748.
8 Those are for Barry Joe stull and David Keith Davis. Motion
9 was filed with the Court, I believe on Thursday. I'm not
10 sure if Your Honor has a copy of that or not, but Mr. --
11 THE COURT: No. I have a Defendant's objection.
12 Did the State serve me with a copy of your motion?
13 MR. McMAHON: I don't know I served -- if I
14 e-Filed it. I have a copy here.
15 THE COURT: Okay. e-filing does not get it to the
16 Judge. You're required by the local rules to always serve
17 a printed copy to the trial judge.
18 MR. McMAHON: I apologize.
19 And Defendant Stull is present, as is counsel for
20 Mr. Davis, Chris Marin.
21 MR. KELLEY: Good morning, Your Honor. Kevin
22 Kelley, legal advisor for Mr. Stull.
23 THE COURT: Okay.
24 MR. STULL: Good morning, Your Honor. Barry Joe
25 Stull. I'm pro se --

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1 THE COURT: Okay.
2 MR. STULL: -- but Mr. Kelley's really doing the
3 work on this motion today.
4 THE COURT: Okay.
5 MR. STULL: And then I'll put in my two cents when
6 it's appropriate.
7 THE COURT: Okay.
9 MR. MARIN: Good morning, Judge. I'm Chris Marin,
10 M-a-r-i-n. My Bar Number's 143804, representing Mr. Davis.
11 Mr. Davis is aware of this hearing, but he's not present,
12 and I think we're okay going forward.
13 MR. McMAHON: Yeah, and we weren't requesting his
14 presence here. I think it was a waiver for his further
15 proceedings.
16 THE COURT: I'm sorry. So this is not set here
17 for trial; it's just here for this motion?
18 MR. KELLEY: The reason --
19 MR. McMAHON: Yeah -- sorry. There were two cases
20 with Mr. Stull. There's this joinder motion, and then
21 there's the trial. So this is a joinder motion that we --
22 I think we had talked about setting it this morning since
23 basically, you know, three-quarters of the people involved
24 would be here, just to address the joinder motion because
25 Mr. Stull's trial and the case to be joined is coming up

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1 relatively soon, and we wanted to address that as early as
2 possible and today was the day that we do.
3 MR. KELLEY: Mr. Stull is set for trial before
4 Your Honor today on a single count of criminal trespassing
5 in the second degree.
6 He is also charged in a separate case with
7 multiple crimes, including trespass in the second degree.
8 That case is set for trial this month. And the State has
9 moved to join that case with Mr. Davis' case.
10 THE COURT: Okay.
11 MR. KELLEY: So those are separate cases, but we
12 asked to put it on Your Honor's docket because most of the
13 parties were going to be here anyway regarding the joinder
14 motion.
15 THE COURT: All right. And what's the case number
16 for the trial today?
17 MR. McMAHON: That's 15CR52961.
18 MR. KELLEY: Yes.
19 MR. STULL: Your Honor, if I can correct your
20 language. It's not the trial today; it's the hearing on
21 the motion to join the cases.
22 MR. KELLEY: No, she wants to know the distinct
23 case numbers.
24 MR. STULL: Right. But -- but the trial today is
25 for not the case that this gentleman's talking to you about

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1 today.
2 THE COURT: Right. That's why I was asking for
3 the case number for that so I can look it up while we're
4 doing this.
5 MR. STULL: But your language, Your Honor, was
6 trial, and today isn't the trial on that.
7 THE COURT: Right, okay.
8 MR. STULL: My trial is scheduled for the 19th of
9 September.
10 THE COURT: Okay.
11 MR. STULL: So I'm just -- today we're having the
12 motion to join that --
14 MR. STULL: -- so it's a hearing today. So the
15 case number on that is, of course, what -- what he's giving
16 you. For the record.
17 THE COURT: Never mind. It doesn't matter.
18 Mr. McMahon, is the State's motion to join?
19 MR. McMAHON: Yes, Your Honor. And as it's laid
20 out, just briefly. I apologize for not forwarding the
21 Court; that's my oversight.
22 Essentially what happened is these two cases
23 occurred on the same day, November 25th. And what happened
24 was, it was -- this is laid out in the motion -- but it was
25 -- an incident occurred at City Hall. Mr. Stull and

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1 Mr. Davis were both present. Mr. Stull was there speaking.
2 He had been -- trespassed the previous day for 24 hours,
3 returned to the chambers, was speaking. Had become
4 disruptive to the point where City Hall security staff had
5 actually shut down the council meeting and had been asking
6 him to leave. Mr. Stull refused to leave.
7 Mr. David was also present. Mr. Davis was
8 actually walking around filming much of this encounter.
9 What happened then was Mr. Stull and Mr. Davis
10 were both ordered to leave and told that if they did not
11 leave, they would be both arrested for trespassing.
12 Neither of them left. They were both taken into
13 custody for criminal trespass in the second degree.
14 Mr. Stull then struck an officer as he was being
15 taken into custody, which resulted in the attempted
16 assaulted of a public safety officer, and resisted arrest.
17 After he was taken into custody, he was placed in the back
18 of the squad car and began to kick violently and actually
19 snapped off some of the, I, believe, seat belt mounts in
20 the back of the police cruiser, which is why there's a
21 charge for criminal mischief in the second degree.
22 So it's the State's position that the law joinder
23 in Oregon is -- it favors joinder, especially in cases
24 where they are part of the same act or incident. Here,
25 they are part of the same act or incident. They involve

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1 the same witnesses, the same video, the same exhibits, all
2 occurring at the same time in City Hall with the same
3 witnesses. They are part --
4 (Missing audio from 9:12:59 a.m. to 9:51:10 a.m.)
5 MR. KELLEY: -- to do so and to cross-examine
6 witnesses, make his opening statements, and handle his own
7 trial. That's what he's told me.
8 THE COURT: Okay. So, Mr. Stull --
9 MR. STULL: Yes, Your Honor, good morning.
10 THE COURT: -- we're here on 15CR52961.
12 THE COURT: You are representing yourself, pro so,
13 although you have your legal advisor here, Mr. Kelley. And
14 you are -- are you wanting a jury trial today?
15 MR. STULL: Yes, Your Honor. However, I think, if
16 you'll give me a brief moment. We're starting this new case.
17 When we -- as I mentioned regarding the City Hall
18 case that -- I'm approaching this as a person with a
19 disability. And the defenses fall most squarely under State
20 vs. Marbet regarding criminal trespass and that's enforced
21 or, you know, how we interpret that language of that statute.
22 But the point is -- and somewhat for the purposes
23 of this process, the hearing as a person with a disability,
24 even though I'm pro se, I still have that. In 2006 or so,
25 the Oregon State bar, the Oregon Judicial Department had

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1 the whole state process of addressing access to the court
2 with persons with disabilities, and I participated in that.
3 So what I'm trying --
4 THE COURT: Okay. So do you need an accommodation,
5 is that what you're saying?
6 MR. STULL: So -- yes and no. You'll learn about
7 my condition as we go. And so for the sake of judicial
8 efficiency, if I can inform you for the purposes of the
9 accommodations that I might need as you just inquired.
10 But more importantly, the defense and the trial,
11 and what I'm suggesting is, is once I make my position
12 statement, I'll say, when I get the facts of what's going on
13 here, my side of the story so to speak, once I get that in,
14 I think the State's going to dismiss, even this morning.
15 Because they don't understand -- and I'm sorry to have to be
16 the one to inform all you all about the language of our
17 disability statute, but I'm really unfortunately the
18 professional because I have to live and breathe these things
19 as a person with a disability, and as you might assume, an
20 invisible one where it's not apparent to outside observers.
21 So --
22 THE COURT: I have people with disabilities appear
23 in front of me all the time.
25 THE COURT: So I guess what you need to do is let

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1 me know what the disability is --
2 MR. STULL: Right.
3 THE COURT: -- so that if a request for
4 accommodation comes along, I can make those accommodations
5 if it's doable. But we are going to have a trial and --
6 MR. STULL: Sure. But perhaps once -- like I
7 said, once I inform folks what's going on, what the
8 defenses are to this case, for example, the charges, which
9 we haven't discussed at all, perhaps the State will want to
10 dismiss. They don't have to prosecute this.
11 THE COURT: Well, here's the situation though.
12 We're here for trial.
14 THE COURT: If you had wanted to try to convince
15 the State to dismiss, the time for that was before now.
16 And I have to -- I'm tasked with getting this trial done
17 today --
19 THE COURT: -- so we don't have a trial to the DA
20 and then have another jury trial, we just -- I'm ready to
21 call for a jury.
23 THE COURT: But I do need to know what
24 accommodations you think that you will need.
25 MR. STULL: That's where I'll just tell you --

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1 THE COURT: Okay.
2 MR. STULL: -- first of all, my condition is a
3 neurological condition. It's the result of, in my case, a
4 spinal cord injury. The history was I had a car accident
5 in 1976 and I had back surgery in 1980. And the condition
6 that I have is a function of the passage of time, making
7 those changes within that damaged nervous system from those
8 long-ago events.
9 And the essence is, Your Honor, that I have a
10 rewired pain relay that's recording right now to my brain
11 that I have pain. And I'm receiving the message that I
12 have pain, but the original designed-at-birth mechanism to
13 have that message reach my brain that it hurts, that's not
14 the source of the pain. The source of the pain is the
15 product of the physiological changes within my central
16 nervous system, my brain and my spinal cord, which gives me
17 my diagnosis as Central Pain Syndrome.
18 And as I shared with both counsel, the Federal
19 Government, the National Institute of Health, has this
20 Central Pain Syndrome under the National Institute of
21 Health's National Institute of Strokes and Neurological
22 Disorders. So it's kind of like off the beaten track, if
23 you want to really, you know, delve into the fact, that
24 one, it's a neurological condition, which is the wiring.
25 So people think, oh, a back injury, oh, nerve damage, that

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1 means you're paralyzed and you can't move. No, it's really
2 -- it's really more like the car alarm going off, having
3 nothing to do with whether it can drive or how much gas is
4 in the tank or what they're legislate -- there's a pain
5 message that's going on.
6 And so for the purposes of this, when -- my
7 condition is based on adrenalin it feeds back, and then I
8 can have, as I've had -- my heart was 175 beats a minute
9 back at the emergency room in 2011 because the feedback
10 mechanism of the adrenalin.
11 So I'm better off to be cool and so you know, just
12 with my personality, my volume goes up --
13 THE COURT: Okay.
14 MR. STULL: -- as a part of the adrenalin. And
15 that could happen without me really being aware.
16 THE COURT: Okay.
17 MR. STULL: And since I am a trained public
18 speaker and a trained musician, singer, street performer, I
19 do marches and events where I do crowd control, I can be
20 really loud, professionally, so --
21 THE COURT: Okay.
22 MR. STULL: -- so if I start to get loud as part of
23 your proceedings, you can give me the chance to dial that
24 down. I might not even know that's going on.
25 THE COURT: Okay.

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1 MR. STULL: It's just sneaking up on me because we
2 always get butterflies in the stomach and those kind of
3 things.
4 THE COURT: Right.
5 MR. STULL: So as I said, I'm a professional.
6 THE COURT: Okay.
7 MR. STULL: Okay. So that being said, the defense
8 to this -- as it's going to be presented at trial, really
9 falls under the access to a public accommodation, which
10 would be the hospital. And their response, when I had the
11 interaction with their staff, in this case, it's going to
12 be the security guards I assume that they have on their
13 witness list that affected the citizen's arrest on
14 November 22nd, or it was right about midnight. So I'm not
15 sure of the actual -- it was Sunday night. So it was
16 really close to midnight Sunday night back in November. So
17 I'm not sure, is -- was the date the 22nd at the hospital?
18 MR. KELLEY: On or about the 22nd (indiscernible).
19 MR. STULL: Okay. So we're talking about
20 November 22nd.
21 So my defense, to kind of get this so you know and
22 the DA knows, to this falls under ORS 659A.142, which is the
23 access to public accommodations -- public accommodations,
24 which through the way the statutes point to other statutes
25 rules and those kinds of things, would be Emanuel Hospital.

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1 Similarly, because of the design, the Americans With
2 Disabilities Act also has Emanuel Hospital as a hospital
3 being under its protection regarding persons with
4 disabilities and access to public accommodation.
5 And if I want to make things really complicated, or
6 make them really simple, I would say that based on my own
7 Supreme Court case, Stull vs. Hoke, and how this filtered
8 out through the appellate cited by other cases, for example,
9 this calendar year, the Oregon Supreme Court cited Stull vs.
10 Hoke on a tax case. Had nothing to do with me.
11 So anyhow, in that, as Stull, I'm going to tell
12 you that this is where -- this is where we can make this
13 really simple or make it really complicated.
14 The language of the public accommodation and the
15 access by a person with a disability and all that lot to
16 affect their public policy to be against discrimination of
17 all sorts that on the list, they're prohibited. They're
18 called -- technically, they're called unlawful practices.
19 So the unlawful practice includes what Bureau of
20 Labor and Industries authorized by statute has done to
21 enforce that. And it would be including, actually, my access
22 in this court, because that -- although it's a state
23 government thing, it would still be covered under Bureau of
24 Labor and Industries if there was a civil rights violation.
25 Not for me, Your Honor, particularly. I'm just saying as to

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1 the underarching, overarching, you know, our environment.
2 The state public policy is reflected in the statute in how
3 that all works out, right.
4 The key word that can't be excised from the
5 language in both the Americans With Disabilities Act and
6 the corresponding ORS 659A and its enforcement through the
7 executive branch, chapter 839 administratively, use and
8 enjoyment.
9 So a person with a disability not only has the
10 ability to use the public accommodation, which would be the
11 state -- or not necessarily the state facility, but the
12 county, you go to the county fair in whatever county in
13 Oregon, that's a public accommodation under the law the way
14 we write the law.
15 And a person with a disability anyway has not only
16 the right to use that public accommodation, but the
17 language includes enjoy.
18 So we have to incorporate, unfortunately for Your
19 Honor it's a bad day because -- because of Stull vs. Hoke.
20 Once I as a party have called into question the
21 interpretation of the statute 659A.142, the Court's
22 obligation is to correctly interpret that statute, regardless
23 of the arguments of the parties or regardless if the parties
24 make any arguments at all because the Court has to get it
25 right.

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1 And if we look to whatever that is, ORS 174 or
2 somewhere in the tens or something, the Court can't omit
3 and can't insert. When we look at statutory language as it
4 comes down through, State vs. Gaines would cite Stull vs.
5 Hoke, which follows PGE vs. Bureau of Labor and Industries.
6 But what I'm saying is, I don't believe the State through
7 presenting their case in bringing in these witnesses can
8 say that the fellow who got out of the emergency room on
9 the way to the bus stop really had the opportunity to both
10 use and enjoy the public accommodation of the property of
11 Emanuel Hospital.
12 And what they're going to say is a security guard
13 tried to get me to use a fire exit instead of giving me the
14 reasonable -- I'll just say reasonable accommodation, but
15 that's not really -- that's a shorthand, Your Honor, I'm
16 going to try to expedite things -- I was going to the bus
17 stop, and they said I had to go up a fire exit, which is
18 certainly not the way that normal people, other people, any
19 people would be able to exit the property to the bus stop.
20 And by saying go out this door, still put me in the center
21 of the campus. I was no less, if they were trying to stop
22 trespassing --
23 THE COURT: So --
24 MR. STULL: -- I was no less a trespasser on one
25 side of the door than the other. I was just a person that

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1 was no longer in the shelter, but I was out in the cold.
2 THE COURT: Okay.
3 MR. STULL: All right. So I'm saying that --
4 THE COURT: So, Mr. Stull, I have the gist of what
5 you're saying.
6 MR. STULL: Yeah.
7 THE COURT: And I have a couple questions.
8 MR. STULL: Yeah, go ahead.
9 THE COURT: One, you know --
10 MR. STULL: Please, Your Honor.
11 THE COURT: -- 659A, I haven't even looked at it,
12 but I'm familiar with that series of statutes. It doesn't
13 provide a defense to a criminal act, okay.
14 MR. STULL: Yes, it does through Marbet.
15 THE COURT: It -- well, that requires -- but that's
16 not a defense; that's a constitutional challenge. And I
17 don't see one of those files here. A jury doesn't decide
18 constitutional issues; they decide factual issues.
20 THE COURT: Okay?
22 THE COURT: And if there is a legal challenge to
23 the application of this statute to you, that's something
24 that has to be raised in a separate motion. That's not
25 something that gets argued to the jury because the jury

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1 doesn't get to decide what the constitution entitles a
2 person to or not. That's something that the Court does.
3 The jury decides facts --
4 MR. STULL: Exactly.
5 THE COURT: -- as they relate to a particular
6 offense, and then they apply the law that I give them, but --
8 THE COURT: -- the -- right.
9 MR. STULL: We're on the same page with that, Your
10 Honor.
11 THE COURT: Okay.
12 MR. STULL: So if I could -- if I can further
13 enlighten after you make your point.
14 THE COURT: Well, I just -- I want to cut to the
15 chase of the trial, and I guess what I hear you saying is you
16 think that this statute provides a defense. It's not a
17 defense. It sounds like you have a constitutional challenge
18 to this criminal statute's application to you under the
19 circumstances. But that's not something that can be argued
20 to a jury. And so we need to sort that out. Because what a
21 jury gets to hear is the facts. The State presents whatever
22 their evidence is.
24 THE COURT: And you present whatever evidence you
25 have, if you want to. You don't have to.

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1 MR. STULL: Right.
2 THE COURT: And the jury decides what the facts
3 are, and they decide if a crime has occurred.
4 The constitutional challenge is something that
5 would need to be raised -- should have been raised pretrial.
6 But I can't instruct the jury on what a discrimination and
7 accommodation statute says and ask them to decide whether --
8 how that interplays with the criminal statute, because
9 that's just not that their province. That's a legal issue,
10 not a factual issue.
11 MR. STULL: However, just to let you know the
12 history of these -- my two cases (indiscernible), the one
13 that we just had earlier this morning.
14 THE COURT: Yeah, but I'm not dealing with that
15 one. I already --
16 MR. STULL: No, I'm just telling you --
17 THE COURT: -- covered that.
18 MR. STULL: -- about the procedural thing. I had a
19 two and a half hearing on these cases before Judge Bushong.
20 THE COURT: On this issue?
21 MR. STULL: On the totality of the issues. And he
22 was not -- as he said, he was not able to dismiss the
23 charges because he wasn't the factfinder.
24 THE COURT: Oh, is that what the motion to dismiss
25 was about? I mean, I didn't actually see a motion, but I

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1 did see a denial.
2 MR. STULL: There was -- yeah, whatever that was.
3 What are we talking, May or something? I'm not -- I'm not --
4 THE COURT: April. The Court denied Defendant's
5 motion to dismiss.
6 MR. STULL: Right. So that was about mid-April.
7 THE COURT: Okay.
8 MR. STULL: Yeah, I remember I had a subsequent
9 meeting on April 20th after that with one of the attorneys.
10 THE COURT: Were you involved in the case then,
11 Mr. Kelley?
12 MR. KELLEY: I was not, Your Honor.
13 MR. STULL: No.
14 MR. KELLEY: I am --
15 MR. STULL: And neither was -- excuse me, Your
16 Honor -- neither was opposing counsel this morning.
17 MR. KELLEY: I have not seen a written motion to
18 dismiss from the Defense. I have heard about that hearing.
19 I've seen the result of the hearing, but I haven't seen the
20 substance of the hearing. I was not his legal advisor at
21 that time.
22 THE COURT: Okay.
23 MR. KELLEY: I've come on relatively recently. I
24 think I'm the third one.
25 MR. STULL: So -- so, Your Honor, if I can kind of

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1 flush this out quickly.
2 Under the analysis of the Criminal Trespass Statute,
3 the case law dating from -- when's State vs. Marbet? When
4 was that --
5 MR. KELLEY: Got it right here.
6 MR. STULL: Maybe in the '70s, perhaps.
7 But the issue was on -- the defenses to the charges
8 of criminal trespass, and they had the elements of the crime
9 being that a person enters or remains, right, unlawfully?
10 THE COURT: Knowingly and unlawfully.
11 MR. STULL: In the order -- and the person that
12 says to leave has to be the person in charge. For example,
13 I couldn't have this gentleman trespass from this room
14 because I'm not the person in charge. So if I try to --
16 MR. STULL: -- and affected that through a
17 citizen's arrest, that wouldn't hold water because --
19 MR. STULL: -- I'm not the person in charge.
20 So that's all kind of set out in Marbet.
21 And interestingly enough -- and not so much because
22 it's about me being a person with a disability, as I
23 mentioned already -- but interestingly enough, when they
24 were talking about the Marbet case, they incorporated in the
25 Court of Appeals' opinion, that we now all have to follow,

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1 State vs. Marbet, I'm sure Mr. Kelley could give you the
2 case cite -- but the point I'm trying to make is, they use -
3 - for the lawful direction to leave, it has to be lawful.
4 So if that direction to leave violates some other provision
5 that makes the direction to leave illegal, unlawful, then
6 that trespass charge can't be prosecuted because it's barred
7 because one of the elements hasn't been met.
8 And they talked about a person with a disability
9 being in a restaurant and the other patron saying to the
10 restaurant owner that they're uncomfortable because of this
11 person with a disability, and how it would be illegal to use
12 a criminal trespass charge to remove that patron because it
13 would violate the protections of that person being afforded
14 protections as a person with a disability. So you can't use
15 that trespass as a pretext to violate the disability law.
16 Okay. So what we're faced with this morning, Your
17 Honor, is we don't have the facts that we really have to in
18 any case when you're interpreting -- and I'm very much
19 speaking broadly -- under the Americans With Disabilities
20 Act, or under the Oregon statutes, or -- everything is really
21 on a case-by-case basis dealing with a particular individual
22 and how their disability is manifested with all these various
23 things that are on the list. They have to go into double
24 alphabets on the list in the Oregon statutes because they --
25 it's like the rows in a theater where they get into row AA

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1 and double -- they have to do that because there's so many
2 different concepts on the menu.
3 But my point is, is we have to have the facts of was
4 this Defendant -- at Emanuel Hospital this November 22nd --
5 was this Defendant a person with a disability? Was this
6 person identified as a person with a disability to the
7 security guards? Did they do what they're supposed to do
8 that's triggered by that as part of the process with the
9 arrest being one of the outcomes that I'm saying that process
10 would have prevented? So until we actually get the facts
11 about what took place, where was this, what happened here,
12 what was the request, what was the reasonable accommodation
13 or whatever we're saying that the statutes inform us what it
14 means.
15 And then there's also this -- this provision that's
16 a direct threat, that if somebody's a threat to the safety
17 and property, that kind of thing, is in the language, then
18 you don't have to do that reasonable accommodation stuff.
19 However, the assessment that it's a direct threat
20 is made after accommodations have been afforded, because if
21 that stuff's done, maybe there's other things.
22 THE COURT: Okay. So here's --
23 MR. STULL: So it's very complicated, so we need to
24 have a factfinder --
25 THE COURT: Well, here's the situation.

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1 MR. STULL: -- to have this --
2 THE COURT: We're going to call for a jury and get
3 this started, because otherwise, we're just going to sit and
4 talk all day and we don't have time to do that.
5 MR. McMAHON: Your Honor, the State does have a
6 couple 104 motions I want us to take care of as a motion in
7 limine. They were very briefly.
8 Mr. Stull has this packet of medical documents.
9 The State's objecting to their admissibility on several
10 grounds.
11 First and foremost, hearsay. The admission of
12 those documents without the doctors actually wrote them and
13 can testify to their accuracy and the nature of the contents
14 of the statements made by the doctors in those reports,
15 they're inadmissible.
16 Now, secondly, the State's position that they're
17 simply not relevant. Mr. Stull, as he indicated here, is
18 very concerned with his Central Pain Syndrome. That is
19 beyond the scope of him saying, listen, I've -- you know,
20 was receiving emergency medical treatment per the scope of
21 the trespass request. That's not relevant to any material
22 issue in this case. Him discussing his lengthy history of
23 criminal cases, of his medical history, trying to introduce
24 to the jury a large packet of irrelevant medical documents.
25 THE COURT: Okay, stop. Do you have anything you

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1 want to say about the admissibility of the medical records?
2 MR. KELLEY: Regarding the medical records, Your
3 Honor, we have had a discussion about those. And the State
4 is not objecting based on the authenticity, so we did not
5 need to subpoena them to the Court. We don't have a
6 certified copy. My understanding from Mr. McMahon is that
7 the State is not making that objection, but he is reserving
8 other objections. And Mr. --
9 THE COURT: Well, hearsay doesn't seem to apply.
10 There's a specific exception to the hearsay rule, correct?
11 MR. McMAHON: Well, I believe that specific
12 exception, it's statements for the purposes of medical
13 treatment. I believe that's the exception Your Honor's
14 referring to. It's statements made for the purpose of
15 medical treatment. Those are confined to statements by the
16 Defendant. I can (indiscernible) here, because essentially,
17 the reason of those statements are considered to be reliable
18 is because they're made by the Defendant or an individual
19 seeking medical treatment because essentially the idea is,
20 someone's not going to lie about what's wrong with them to a
21 doctor because they need medical treatment.
22 Let me find the specific citation.
23 THE COURT: I know what you're talking about.
24 MR. McMAHON: 803(4).
25 THE COURT: Mr. Kelley, what rule are you using to

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1 admit them?
2 MR. KELLEY: 803(4). The following are not
3 excluded. Statements for purposes of medical diagnosis or
4 treatment and describing medical history or past and present
5 symptoms, pain or sensations, or the inception or general
6 character of the cause of the external source insofar as
7 reasonably pertinent to diagnosis or treatment.
8 So we are not offering 300 pages of medical
9 documents, Your Honor. And I don't want to speak for
10 Mr. Stull here, but we certainly believe that his medical
11 diagnosis, because it's relevant also to how he was feeling
12 at the time. Present sense impression. That would be
13 another one that would apply, because he was under the
14 effect of that medical at the time of this incident, so he's
15 got medical records to demonstrate that.
16 MR. McMAHON: Mr. Kelley, that's not a hearsay
17 exception rule.
18 MR. KELLEY: Well, I'm sorry. Then where is it?
19 There is one that's similar.
20 MR. STULL: Your Honor, if I could kind of -- I've
21 been down this road before with this particular
22 (indiscernible) code of the medical -- the statements and
23 all that kind of stuff.
24 And I don't want to argue that, but it's my
25 impression that that is really for the speaker of the

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1 doctor's office --
2 THE COURT: Right.
3 MR. STULL: -- not for the fact that we can bring
4 those in later.
5 The important -- the important thing is, is we do
6 have -- we do have specific hearsay exceptions, but the
7 overarching Oregon Evidence Code is the interest of the
8 justice, and the relevant evidence will be admissible if
9 it's not prejudicial and those kind of things. So I'm aware
10 of the language of that.
11 But there are a couple of catchalls.
12 THE COURT: Right. I'm --
13 MR. STULL: There's kind of -- at the end of the
14 numbering system. But there's like any other thing that --
15 so there's kind of a catchall.
17 MR. STULL: So the important thing -- and I
18 mentioned it this morning, Your Honor -- the important thing
19 for me as a defendant is that I went to the emergency room at
20 the main hospital any number of times, but, you know, that's
21 kind of like the home base for me as I want to get in the
22 ambulance because my records are there and the experiences
23 were there.
24 But I had treatment in October 2011 where my pulse
25 was 175 beats a minute.

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1 THE COURT: Is that the records that you're seeking
2 to admit?
3 MR. STULL: That particular event on, I believe it
4 was the 15th of October 2011, where my pulse was 175 beats a
5 minute as a product of my neurological condition. So when
6 you're sitting here today hearing me do this kind of stuff or
7 whatever I was doing yesterday, that's not -- that's not just
8 175 beats a minute and 45 minutes to prevent circulatory
9 failure. So that's the follow that I am. That's my
10 episodic, the worst example I can give you on my life where I
11 was actually at the place being monitored and they --
12 THE COURT: So that's what --
13 MR. STULL: So --
14 THE COURT: -- those are the records that are being
15 offered, and they're being offered for the purpose for
16 showing that he's had this condition in the past, or he's
17 been diagnosed with it?
18 MR. STULL: Oh, I still have it.
19 THE COURT: Okay.
20 MR. STULL: And I go to the emergency room for
21 that. And that event was for my Central Pain Syndrome, the
22 three words that we were calling this really complicated to
23 understand neurological condition that most people don't
24 know what it is, Your Honor. And that's --
25 THE COURT: Well, I understand that. And those --

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1 MR. STULL: -- it's not rare. I mean, it's not
2 unique. It's not really common. There's hundreds of people
3 probably with Central Pain. I talked to a guy yesterday
4 that had Central Pain.
5 THE COURT: Yeah.
6 MR. STULL: So it's not like we're -- but we're not
7 obviously folks with service animals, dogs or wheelchairs,
8 or anything -- walkers. It's not that, but it --
9 THE COURT: I hear you.
10 MR. STULL: -- still is a disability.
11 THE COURT: I hear you, but generally --
12 MR. STULL: Yeah.
13 THE COURT: -- you know, if -- I thought the
14 medical records were from this particular incident. No?
15 MR. STULL: And there are also. I was treated --
16 this arrest happened after my --
18 MR. STULL: -- emergency room visit --
19 THE COURT: Okay. So that's my question.
20 MR. STULL: -- on that date.
21 THE COURT: So did he go to the emergency room and
22 he was treated and then --
23 MR. STULL: For the diagnosis, three words --
25 MR. STULL: -- Central Pain Syndrome. The

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1 description of the diagnosis, three words, Central Pain
2 Syndrome.
3 THE COURT: Okay.
4 MR. STULL: And that was the Sunday -- we're calling
5 it November 22nd -- and the Friday, on the 20th, I was
6 treated at Emanuel Hospital emergency department for, three
7 words, Central Pain Syndrome diagnosis and description;
8 again, Central Pain Syndrome.
9 So I left there on Friday with the exit -- in the
10 medical records, it says they provided me the information,
11 return if conditions worsen.
12 Sunday was the return of that. And between the
13 emergency room and the doorway, I was arrested by security
14 for trespassing.
15 THE COURT: On Sunday?
16 MR. STULL: November 22nd.
17 THE COURT: Okay.
18 MR. STULL: So instead of getting to the bus and
19 going home, I went to jail.
20 THE COURT: Okay. So the records --
21 MR. STULL: And that's the charge, yeah.
22 THE COURT: -- themselves, what's the date range on
23 the records?
24 MR. McMAHON: His has stuff going back as far as
25 '93, I think.

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1 THE COURT: Okay.
2 MR. STULL: Just to kind of flush things out, Your
3 Honor. My neurologist, Dr. Grimm, he's the one who arranged
4 my back surgery back in 1980.
5 THE COURT: Right. Here's the situation though.
6 MR. STULL: And --
7 THE COURT: You don't --
8 MR. STULL: Yeah.
9 THE COURT: You don't get to, in lieu of a witness,
10 introduce a bunch of records, okay. If there are records
11 that are related to this incident, then those may be
12 admissible.
14 THE COURT: But your past medical records
15 establishing your medical condition are not going to be
16 admissible for a whole bunch of reasons.
17 MR. STULL: Well, they have -- excuse me, Your
18 Honor. They have to be in order for me to have my defense
19 under Marbet.
20 THE COURT: Well -- but, you know what, we have the
21 Rules of Evidence, which require live testimony. We don't
22 get to just -- we don't try cases by documents.
23 MR. STULL: Well, Your Honor, we have to, because
24 two things -- and don't let me get sick by this, because
25 this is not a healthy environment for me to have to embrace

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1 this. I'm the guy that -- I'm going to be frank with you.
2 I went to the ambulance by emergency room [sic] and I'm here
3 today. I went to the emergency room by ambulance and I'm
4 here today. I want shed of this entire thing.
5 THE COURT: Okay.
6 MR. STULL: I am sick of it. I am sick from it and
7 it's unending. Because, as I mentioned, I had a two-hour
8 hearing before Judge Bushong, and I'm the only person in the
9 room that endured that, and that was me, going to the
10 emergency room by ambulance November 22nd and not getting
11 out of yet. So I don't want to make my career out of this,
12 because these fellows get paid. You're all getting paid. I
13 don't get paid. I get hassled on my way here by the fare
14 inspection. Okay. So I'm sick of this. I'm sick from it.
15 I want to put it to rest.
16 And I'm saying is, as a person with a disability,
17 how can I affect justice if the defense to my criminal
18 charges if they insist on prosecuting. Think of all the
19 people they dismiss cases --
20 THE COURT: Okay.
21 MR. STULL: Wait. If my defense is that I have a
22 medical condition --
24 MR. STULL: -- and I can't defend myself because my
25 medical records aren't available, and my witness that I

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1 subpoenaed, my neurologist quashed a subpoena successfully
2 this calendar year, and my document to get my medical
3 records with my court-appointed legal assistant, Bryan
4 Francesconi, he altered that document after I signed it.
5 And I do not have those witnesses. And I do not have those
6 medical records.
7 And what we do have is, as this gentleman said, a
8 stack of proof that I'm a sick guy, and I'm saying right now
9 that you are making me sick not because I don't believe you
10 are absolutely the kindest person I could take this in front
11 of you, but you're making me sick because you're asking me
12 to do the impossible. And I'm the person with a disability
13 that had my bus pass in my pocket. And instead of getting
14 outside in my gym shorts and t-shirt, I got taken to jail,
15 and I got out of jail at 2:00 in the morning where I
16 couldn't even get transit. It's 38 degrees outside, and I'm
17 still here today because they insist on prosecuting this.
18 So what I'm saying is, this is all under your
19 purview, Your Honor, because once I invoke that I am
20 protected for the purpose of this hearing, and also for the
21 purpose for the defense for Emanuel Hospital under the
22 statute, ORS 659A.142, that makes it out of my hands. The
23 Court has to correctly interpret the statute, regardless of
24 arguments of the party. And it's preserved for appeal. So I
25 don't care if I have to take --

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1 THE COURT: Right.
2 MR. STULL: -- ten years to go through the process
3 to get out of the emergency room November 22nd, but they
4 dragged me into it, and they will not let go under any
5 accord.
6 So here's my defense. I'm going to get the
7 security guards to come in here and I'm going to say, here's
8 the map. Here's the door. Why couldn't I go out the door?
9 Why wouldn't you let me go home?
10 THE COURT: Okay. Well --
11 MR. STULL: And they're not going to have a reason.
12 And they --
13 THE COURT: -- I'm wondering if we're going to get
14 to that point at this --
15 MR. STULL: -- only have one reason, and I'm going
16 to tell you what that reason is. That reason is they know
17 that if they lie and they prosecute me, and they send me to
18 jail, and I get out at 3:00, 2:30 in the morning at 38
19 degrees wearing my gym shorts and t-shirt, and I won't be
20 able to get a MAX home until 5:00 in the morning, then I'll
21 have to come back to court and I'll be talking about it
22 September 6, 2016, and they're still going to be at Emanuel
23 Hospital being the people that I show --
24 THE COURT: Well -- no, we need to resolve this
25 today.

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1 MR. STULL: -- who they are. So my point is, I
2 need to have my medical defense because it's valid. I have
3 a subpoena for my neurologist. That was quashed. I do have
4 his statement.
5 THE COURT: Were you --
6 MR. STULL: And we can't --
7 THE COURT: What was the basis of quashing the
8 neurologist's subpoena?
9 MR. KELLEY: The neurologist submitted a
10 declaration or an affidavit indicating he didn't remember
11 treating Mr. Stull. He was willing to submit a report in
12 lieu of personally attending. And this was prior to me
13 being on the case, but my understanding is the Court quashed
14 that subpoena.
15 THE COURT: Was there a hearing on that?
16 MR. STULL: Yes.
17 THE COURT: What?
18 MR. STULL: It was before Judge Roberts.
19 MR. KELLEY: Regarding the medical records though,
20 I would note that he's got some records from a Dr. Grimm,
21 who has previously been, I believe, his primary care
22 physician. Dr. Grimm has passed away. He is unavailable by
23 any stretch of the imagination.
24 MR. STULL: Which is a --
25 MR. KELLEY: There are several hearsay exceptions

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1 that might apply.
2 MR. STULL: (Indiscernible) that.
3 MR. KELLEY: Those could include then existing
4 mental, emotional or physical condition. That's the one
5 that I was trying to think of, 803(3). And there's also
6 statements made in a professional capacity, 804(3). He's
7 got records from that doctor. I've seen his obituary.
8 And I think the crux of his defense is that he
9 wants the jury to know that he suffers from Central Pain
10 Syndrome. This occurred at a hospital where he was seeking
11 treatment for that condition. It doesn't make his entire
12 health history admissible, of course, but we do think that
13 that --
14 THE COURT: Was he planning to testify?
15 MR. STULL: I'm planning to testify, certainly.
16 THE COURT: Okay. Well, then, he can testify to
17 that. And inasmuch as is necessary to admit the medical
18 record -- of course, I haven't seen them -- from that
19 emergency room visit where he says this is why I'm here and
20 this is what my symptoms are, that would be relevant. It's
21 the historical part of your medical record that is -- is not
22 admissible. But you can certainly testify to it and -- and
23 you'll have the records to prove that you were there for an
24 emergency room visit.
25 MR. STULL: If I could give you my brief history

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1 with Emanuel Hospital Emergency.
2 The security guards arrested me on October 14,
3 2011, after I got out of the emergency room. That report --
4 their report on the incident is part of the discovery I got
5 from the District Attorney's office.
6 THE COURT: Right. But I would never let the State
7 bring that up --
8 MR. STULL: Well, I have to bring that up, Your
9 Honor.
10 THE COURT: -- and that's --
11 MR. STULL: Because here's what happened. I went
12 to the emergency room by ambulance October 14th. I got out.
13 A security guard arrested me as I was drinking my coffee
14 that I bought there at the café. They arrested me. That
15 was the 14th. On the 15th, I returned, had that episode
16 that I mentioned twice this morning already, I can recall,
17 175 beats a minute, my pulse, and it's requiring exclusive
18 critical care.
19 In fact, when I got arrested by Emanuel Hospital
20 security on the 14th of October, 2011, I get sent to jail,
21 returning to the same emergency room the next day because my
22 pulse was 175 beats a minute, and I could have died.
23 Well, as you can imagine, the District Attorney
24 didn't prosecute that arrested at Emanuel Hospital the
25 previous day, but Emanuel Hospital security never got the

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1 memo. So they're acting like I'm still the same guy and
2 they've been doing this for years, and it's a roulette for
3 me, whereas, I mentioned, I went in on a Friday, November,
4 treated, out, no problem. Went in on Sunday, and I'm here
5 talking about it still.
6 THE COURT: Yeah.
7 MR. STULL: So it's the security guard thing, one,
8 arresting me back in 2011, which triggered that outrageous
9 event of 175 beats a minute. Because I was in the emergency
10 room. I was on my way out. I was a citizen drinking
11 coffee. They arrested me. Went back the next day with this
12 extraordinary life-threatening event, which --
13 THE COURT: Okay.
14 MR. STULL: -- informs my very being today, Your
15 Honor, because I know that's --
16 THE COURT: Mr. McMahon.
17 MR. STULL: -- what my disability's capable of
18 doing.
19 MR. McMAHON: Yes, Your Honor. So the issue here
20 is that the State is intending to offer the contact report
21 from 2011, the reason being because that was the trespass
22 notice that -- essentially, there are two rounds for
23 trespass (indiscernible), previously trespassed, and that he
24 refused to follow the instructions on this case. He was
25 trespassing with a written trespass warning notice by Legacy

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1 Emanuel security personnel on October 14, 2011. The State
2 does intend to offer that as a predicate basis for the
3 trespass in this case.
4 MR. KELLEY: We will be objecting as hearsay, Your
5 Honor.
6 MR. McMAHON: I --
7 MR. KELLEY: I don't believe it's public record,
8 and I don't think the custodian of records was present
9 either.
10 MR. McMAHON: I have the guy who trespassed and the
11 original card.
12 MR. KELLEY: That is not the custodian of the
13 record.
14 MR. STULL: Well, wait a minute. This is --
15 THE COURT: If it's the guy who handed it to him.
16 MR. STULL: -- let me get my -- let me get this in
17 there. No, I want them to sway that they arrested me on
18 October 14, 2011.
19 THE COURT: Okay.
20 MR. STULL: I also want to be able --
21 THE COURT: Sounds like they're willing to do that.
22 MR. STULL: No. But I want to be able to say that
23 the District Attorney couldn't prosecute that arrest.
24 MR. McMAHON: And that I would object to being --
25 THE COURT: Well, that part is different.

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1 MR. STULL: Wait. And then after I got out of jail
2 for what couldn't be prosecuted because they knew who
3 committed the crime.
4 THE COURT: They don't prosecute a lot of things --
5 MR. STULL: I'm the guy that went through this.
6 THE COURT: -- for all different reasons.
7 MR. STULL: Once I was arrested, I knew it was
8 illegal at the time of the arrest. Look, I don't cause
9 trouble; I step up to it. So, no, I am not a troublemaker,
10 I'm a trouble stopper.
11 Okay. So the point is, these people acted illegally
12 back in October 14, 2011. They violated my rights, the same
13 ones I'm saying right now under ORS 659A.142, public
14 accommodation. They violated my rights to a person with a
15 disability, created this trespass exclusion, I went to jail.
16 Went back that next day. My pulse was 175 beats a minute,
17 requiring 45 minutes of exclusive critical care to prevent
18 circulatory failure. I could have died, okay. So --
19 MR. McMAHON: Your Honor, if I may interrupt, Your
20 Honor.
21 MR. STULL: -- if they're going to say that they
22 arrested me --
23 MR. McMAHON: I --
24 MR. STULL: -- I want to say, yes, it was a bogus
25 arrest --

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1 THE COURT: Okay.
2 MR. STULL: -- and it caused me to go back to the
3 hospital the next day.
4 THE COURT: How many days is this trial set out
5 for?
6 MR. McMAHON: Two, I believe.
7 MR. STULL: I just want to say that, yeah --
8 MR. McMAHON: Your Honor --
9 MR. STULL: -- they could have killed me by their
10 BS arrest instead of just --
11 THE COURT: Okay.
12 MR. STULL: -- letting me get out of the hospital.
13 THE COURT: We need to get started with the trial.
14 MR. STULL: Okay. I'm defending my case.
15 MR. McMAHON: I understand, Your Honor. I would
16 just ask, Your Honor, that Defendant be instructed not to
17 reference the public accommodations issue since it's not an
18 issue. The jury's going to be able to hear it's prior
19 medical treatment outside of these two issues. Disabilities
20 in general, I think that that's not germane to the issues
21 that are here. And I think that if the jury hears that,
22 it's improper for them to address that.
23 MR. STULL: Your Honor, this is sickening. I'm
24 taking a brief one-minute break. Honestly, I cannot endure
25 this. This is absolutely the problem in this city.

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1 THE COURT: Okay, go take a walk around the floor
2 and come back. Would you do that?
3 MR. STULL: I'm going to do this, but I'm going
4 to --
5 THE COURT: Okay.
6 MR. STULL: -- I'm going to express this. They are
7 actually violating my civil rights by insisting on
8 prosecuting this. And I'm not going to allow as a person
9 with a disability, them to continue to say that my medical
10 records don't matter because they matter as far as --
11 THE COURT: They're not saying they don't matter.
12 MR. STULL: -- they're concerned. No, they matter
13 because I can sue this gentleman in Federal Court across the
14 park for violating my rights under article -- under the
15 Americans With Disabilities Act, Title II, because he is a
16 public accommodation right now offering a service --
17 THE COURT: Well, and here's this --
18 MR. STULL: -- and they won't stop, and it's making
19 me sick, so I'm going to take, like I said, one minute.
20 THE COURT: Okay.
21 MR. STULL: But I'm putting them all -- I'm putting
22 you all on notice. This has to stop.
23 THE COURT: Okay. Go ahead and take a minute.
24 MR. STULL: I'm not going to go to the --
25 THE COURT: Let's --

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1 MR. STULL: -- emergency room from here today
2 because I cannot shed myself from these things that are
3 physically sickening to me, because I'm a person with a
4 disability. And they will not dismiss this case. And
5 you're saying that I can't reference that I could have died
6 in 2011, because of the Evidence Code? I certainly could
7 have died, and I could die today --
8 THE COURT: Sir --
9 MR. STULL: -- if I don't stop this.
10 THE COURT: Okay. Go take a break.
11 MR. STULL: I'm going to take my break.
13 MR. STULL: But he has discretion --
14 THE COURT: Go --
15 MR. STULL: -- to not prosecute this.
16 THE COURT: Go ahead and take a break.
17 MR. STULL: And he insists -- and he's going at the
18 expense of my civil rights and he knows it now.
19 THE COURT: Okay.
20 MR. STULL: I am not going to put up with this
21 again.
23 MR. STULL: I'm going to win. I'm going to win by
24 going and cooling my jets.
25 THE COURT: Okay, go ahead. Let's go off the

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1 record.
3 THE COURT: Okay.
5 MR. McMAHON: Good morning. Eamon McMahon for the
6 State, M-c-M-a-h-o-n, Bar Number 153879. We are still on
7 the record in the case of Barry Joe Stull, 15CR52961.
8 Defendant's present, representing himself pro se, out of
9 custody, assisted by legal counsel, Mr. Kelley.
10 MR. KELLEY: Your Honor, I have discussed the
11 posture of the case at this point with Mr. Stull. And we
12 discussed his desire to have his claims regarding his
13 disability heard. And that the Court would like to see
14 those in writing in the form of a demur. And I've explained
15 to Mr. Stull it will take time to do that.
16 So in order to properly preserve his defenses and
17 present that defense to the Court, I am asked -- well, we
18 would like some time to do that. I don't want to be here --
19 I don't want Mr. Stull's case to come back because he didn't
20 get to present a defense that he wanted to present.
21 So with that being said, I'm also hopeful that
22 perhaps when his more serious cases resolve, the State may
23 change its feelings about this one. I don't know.
24 Ms. Plank, who was here, wasn't willing to commit to that,
25 but I suppose it's a possibility. In that case, it's set for

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1 trial only on the 19th of this month.
2 THE COURT: Okay. And are you working with him on
3 that case as well?
4 MR. KELLEY: I am also his legal advisor on that
5 one. He is his own attorney on both of these cases.
6 THE COURT: Okay.
7 MR. KELLEY: But he does wish to have the defenses
8 he's raised heard. And my understanding from the Court is
9 that they should be filed in the form of a demur and in
10 writing, and of course, filed and give the State a chance to
11 respond to them.
12 MR. McMAHON: And, Your Honor, it's the State's
13 position that these are the perils of representing yourself
14 pro se. This is why the advisement is given. Claims,
15 again, like regarding a demur or disability are not
16 appropriate at this point in time. The Oregon Rules of
17 Criminal Procedure (indiscernible) specific name, but
18 indicate that such motions must be filed 20 days before the
19 trial date, not raised the day of.
20 And I think moreover, any such claims, in
21 particular, demur, are not an appropriate method of recourse
22 in this case. I think a demur looks at the document on its
23 four corners and observes whether or not the charging
24 instrument could possibly state the facts. And criminal
25 trespass -- so essentially, we'd have to look at the document

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1 and say whether or not criminal trespass could be an offense.
2 And I don't think Mr. Stull's claims about disability --
3 THE COURT: Well, we're not arguing about whether
4 the demur's the appropriate procedural mechanism to get the
5 issue before the Court. That's something for Mr. Kelley to
6 think about.
7 I was merely saying that we can't argue the effect
8 -- the legal effect of the disability statutes to a jury.
9 And so that -- that piece need to be argued to the Court.
10 Now, whether that needs to be argued, you know, as
11 an MJLA, or as post-verdict motion, I don't know. It's
12 going to take some thought. I just saw the way that this
13 was framing up to be something that Mr. Stull perhaps
14 thought was going to be argued to a jury, which isn't -- the
15 legal issues have to be decided by a judge. But this would
16 give you some more time to figure that out. Okay?
17 MR. STULL: Your Honor, if I can keep this from
18 having to come back at any point and retread the same
19 ground, I think the problem with this analysis is that we,
20 one, have to have the case-by-case basis analysis of those
21 elements that create the disability law interactions and all
22 those kinds of things. That has to be based on facts.
23 And so if we don't have a factual finding of did
24 this person at this time say this or do this or not do that,
25 if we don't have that factual historical, you know, event,

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1 then we can't do the analysis that would talk about whether
2 the law of disability protection, I'll say, would even lie,
3 whether it would be appropriate to use it.
4 So where we've got this catch-22 is, as Judge
5 Bushong mentioned, he's not the factfinder, so we have to
6 have somebody who's a factfinder -
7 THE COURT: Right.
8 MR. STULL: -- which is going to need the
9 testimony.
10 So, for example, and this may be true, but it's a
11 -- hypothetically, I saw I'm a person with a disability and
12 the security guard says, I don't remember you saying that,
13 well, at least we have that. And then somebody could say,
14 well, this person's more believable than the other, but we
15 would at least have that on the record, that that interchange
16 took place.
17 THE COURT: And the other part of the issue --
18 MR. STULL: So someone -- excuse me -- so I'm
19 wondering when you all -- because this is not my purview,
20 certainly -- when you all are going to get that opportunity
21 to have those witnesses because my understanding is if we
22 have the trial today, you wouldn't allow that filtering
23 process to see if we should even have to charge because that
24 has to be raised prior to trial, but you can't have those
25 issues decided without the facts.

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2 MR. KELLEY: It is possible to stipulate to
3 relevant facts.
4 MR. McMAHON: Perhaps we could do a bench trial,
5 and that way we wouldn't have to be objecting to it. And
6 I'm sure Your Honor could parse the facts out as, you know,
7 we wouldn't -- I wouldn't be having to object because I'm
8 sure Your Honor would -- well, I would raise my objections,
9 but I don't think we would risk the same (indiscernible)
10 tried in front of front of a jury in terms of, you know,
11 discussion about prior medical events and that sort of a
12 thing.
13 MR. STULL: And that would be asking me to give up
14 my constitutional rights to a jury trial, which would be a
15 disability of discrimination because that would create for
16 the persons -- purpose of a person with a disability doing a
17 constitutional challenge to the charge. They wouldn't be
18 able to do it because they have to give up their right to a
19 jury trial. So --
20 THE COURT: Right. I'm not asking you to give up
21 your right to a jury trial. But I am asking you to put some
22 more time in to, inasmuch as there's fact finding, you will
23 have to establish that you're a person with a disabilities,
24 and it can't be done through hearsay. You really need to
25 figure out how to do that.

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1 MR. STULL: Your Honor, I have been working --
2 THE COURT: Okay?
3 MR. STULL: -- on this diligently --
4 THE COURT: Okay.
5 MR. STULL: -- since November 22, 2015.
6 THE COURT: Okay.
7 MR. STULL: And the fact that they're doing what
8 the rest of us would call it tag team match where I get
9 another attorney, I get another prosecutor. I've been
10 working at this the whole time. You're the -- one, two,
11 three -- you're the sixth judge I've seen on this case.
12 THE COURT: Okay.
13 MR. STULL: So what happened today? Imagine me
14 having to do this outburst because I've actually been in
15 front of -- excuse me, I misspoke -- probably seven
16 different judges on this case. And I'm coming from the
17 philosophy, legally and otherwise, that, no, you never even
18 are allowed to bring me into this process.
19 So I'm not finding a very good way to get out of
20 it. Here I am today. I was expected to be able to say,
21 look, I was supposed to be to do this and that and the
22 other, and the jury says, yeah, you're right, and I'm out of
23 here. I can't do that because we're going through all this,
24 do you want to legal up.
25 And what I'm trying to say is as much -- and I said

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1 this privately here -- as much as we're talking about the
2 Oregon Evidence Code prevents the medical records, I'm
3 saying, no, no, ORS 659A.142 prevents all of this stuff
4 where it even has this discussion about the medical records
5 because --
6 THE COURT: So those are all issues that you need
7 to work out, talk with Mr. Kelley about --
8 MR. STULL: And how could I --
9 THE COURT: -- because they're all the same issues
10 in the next case, right?
11 MR. STULL: Exactly. And I've been --
12 THE COURT: Okay.
13 MR. STULL: -- like I said, it's a late date for
14 me, but I've been working on this --
15 THE COURT: So that's why you'll --
16 MR. STULL: -- diligently the whole time.
17 THE COURT: Okay.
18 MR. STULL: When I was in custody, Your Honor, I
19 raised the exact same defenses that I'm talking about here
20 today. This has not changed in my mind. It has not changed
21 in my analysis, the case law and the statutes.
22 THE COURT: Okay.
23 MR. STULL: And what -- the only thing I'm doing is
24 I'm just getting -- beating up against the same wall of
25 who's going to actually consider these things.

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1 MR. McMAHON: And, Your Honor, just for the record,
2 I do want to -- or the State would oppose any set over.
3 This is, I believe the second or third trial setting where
4 State's been ready to go. Mr. Stull -- I understand because
5 (indiscernible) failed to appear at the first one. We're
6 back here. Our witnesses are ready to go on the second one.
7 And as Mr. Stull puts out, it's a ten-month-old
8 case. It's the sort of thing where these are issues I
9 understand he's had motions in front of Judge Bushong
10 before, but at this point, it's a very old case. Our
11 witness is here. The State would ask to proceed, but I
12 understand if the Court would --
13 THE COURT: I hear what you're saying. And for a
14 lot of different reasons, including that he's got another
15 case that's far more serious than this, and the fact that
16 some of the issues weren't teed up for this case, I am going
17 to grant a set over for this to follow the other case. And
18 that -- that other case was set for call on what day?
19 MR. STULL: It's set for trial on the 19th --
20 THE COURT: Okay.
21 MR. STULL: -- ultimately of September.
22 THE COURT: So what do you propose?
23 MR. STULL: I think that's right.
24 MR. McMAHON: I think we should probably have the
25 week after that. That might -- that trial might take a

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1 while.
2 MR. KELLEY: I show call on the 15th with trial on
3 the 19th for that one. That's what I --
4 THE COURT: Okay. So then call on the 22nd for
5 trial on the 26th for the next one?
6 MR. McMAHON: Are we going to set a trial date, or
7 are we going -- because I think if -- I think -- well, I
8 think what might be appropriate is essentially establish a
9 framework for the issues that Mr. Stull potentially is --
10 like a briefing deadline on a given date and then set a
11 further proceedings like after that so the State can have
12 adequate time to react and respond to that brief. And so
13 maybe set a further proceeding just the week of that 26th so
14 we can pick dates. Would that be appropriate?
15 MR. KELLEY: I am setting another trial in this
16 courthouse on the 26th. I don't object to a further
17 proceeding --
18 THE COURT: Okay.
19 MR. KELLEY: -- but I don't have time for another
20 trial that date.
21 THE COURT: Further proceedings on which day?
22 MR. KELLEY: The 26th.
23 THE COURT: Okay.
24 MR. KELLEY: And I would just ask --
25 THE COURT: There's no CPC docket on the 26th, so

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1 it would have to be the 27th.
2 MR. KELLEY: The 27th, would that work?
3 MR. McMAHON: And I would just ask that the Court
4 -- well, I would ask that some form of like deadline or like
5 some timeframe be set so that we can get the motions and
6 really get this thing moving. I think --
7 THE COURT: Okay. Today's the 6th. Well, I guess
8 -- I mean, is it going to be the same issues in the other
9 trial?
10 MR. KELLEY: I believe he intends to raise the same
11 defense. Is that fair to say, Mr. -- to some extent.
12 MR. STULL: I mean, yeah --
13 MR. KELLEY: I mean, there's mixed defenses, but --
14 MR. STULL: Yeah, generally speaking. We're still
15 going to the fact that how do you handle a person with a
16 disability --
18 MR. STULL: -- at a public accommodation, which
19 includes a government office or a hospital.
20 THE COURT: Okay.
21 MR. KELLEY: Well, and then the issue becomes then
22 at that point, we run into the same thing where if we're
23 going to have a written brief on that case and it's set a
24 week from today or wherever that is --
25 THE COURT: Well, that's -- that's --

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1 MR. McMAHON: I can get these things filed within a
2 week.
3 MR. McMAHON: Okay.
4 THE COURT: Okay. So today is the 6th. A week is
5 the 13th. Is that okay?
6 MR. KELLEY: Is that acceptable to you?
7 THE COURT: And then you can look into what the
8 appropriate -- I mean, if you still maintain it's a jury
9 issue, then I guess it would be a draft jury instruction
10 with arguments why it is a jury issue. I just am not
11 thinking it's a jury issue.
12 MR. KELLEY: The Defense believes it can raise
13 constitutional claims at any time. We could raise it in a
14 motion for judgment of acquittal. But for clarity and to
15 try and really put our finger on these issues, we're
16 certainly willing to file them pretrial.
17 THE COURT: Okay.
18 MR. KELLEY: Yeah.
19 THE COURT: Okay. Well, and the effect of 659A.142
20 isn't necessarily a constitutional issue. It -- you know,
21 your client, Mr. Stull, is claiming that it's a statutory
22 interpretation issue. But how that interplays with the
23 criminal case is the issue that needs some thought.
24 MR. STULL: Yeah, Your Honor, excuse me. If I can
25 make sure that we're kind of thinking on the same analysis.

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1 The -- following Marbet, the criminal trespass
2 statute, it has to be a lawful order, right? That's --
3 that's the --
4 THE COURT: And so you want to argue that it's not
5 a lawful order because you're disabled and you have a right
6 to use and enjoy the hospital?
7 MR. STULL: In essence, that's kind of where I'm
8 just saying that to challenge the lawfulness of the order,
9 you have to determine if the actions were lawful or unlawful
10 and if they violated the provisions that we're talking about
11 them --
12 THE COURT: Okay.
13 MR. STULL: -- 659A.142 and those kinds of things
14 and the ADA.
15 THE COURT: Okay.
16 MR. STULL: Then they're not lawful, and then they
17 -- then the trespass --
18 THE COURT: And then the other issue you have to
19 think about is how you're going to prove the medical
20 disability, so --
21 MR. STULL: Right. And so --
22 THE COURT: -- and that's -- and that issue's going
23 to be in play in your next trial too. So that gives you
24 time to work that one out as well.
25 MR. STULL: And then it comes to the issue of the

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1 destroyed records from Emanuel, which would be like the exit
2 paperwork?
3 THE COURT: My guess is that can be subpoenaed. I
4 mean, your copy was destroyed, but --
5 MR. STULL: Right.
6 THE COURT: -- medical records are electronic now.
7 MR. STULL: Right. And that's part of my -- my
8 struggle, because in April, I actually signed a release of
9 information, and I still don't have that. The documentation
10 counsel has is from a Social Security process I'm immersed
11 in right now.
12 THE COURT: Okay.
13 MR. STULL: So they provided me those medical
14 records.
15 THE COURT: Okay.
16 MR. STULL: But --
17 THE COURT: Well, that's all kind of outside my
18 purview.
19 MR. KELLEY: We can talk about that.
20 THE COURT: Yeah. Okay. So set for further
21 proceedings on February -- or, I'm sorry -- September 27th.
22 Is Mr. Stull's appearance waived for further
23 proceedings?
24 MR. KELLEY: I don't imagine since he's
25 representing himself, I don't think it would be.

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1 THE COURT: Oh, that's right. You need to be
2 there.
3 MR. STULL: Yeah, that's not my idea actually, is
4 it?
5 THE COURT: Okay. So you'll be there with your
6 legal advisor and -- but in the meantime, you'll deal with
7 your other case and that will give a good idea, you know,
8 maybe the State would be willing not to prosecute this
9 depending on what the outcome of the other case is, or maybe
10 not, but you'll have more information. Everybody will have
11 more information by September 27th, okay?
12 MR. KELLEY: Who knows, Your Honor may get to hear
13 that other case and would be --
14 THE COURT: You never know, I might.
15 MR. KELLEY: -- aware of the issues. Okay? Oh, I
16 need to sign an order.
18 in Volume 21, November 22, 2016.)
19
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25 ///

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Salem, OR 97302
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STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 311 - 312
______________________________________________________________

came on regularly for hearing before the Honorable CHERYL
ALBRECHT, Judge of the Circuit Court, Wednesday, September 7,
APPEARANCES

Sean M. Mazarol, OSB #116398
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162
No appearance

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1 PORTLAND, OREGON; WEDNESDAY, SEPTEMBER 7, 2016
2 -O0O-
5 THE COURT: Is it?
7 MR. MAZAROL: I should have an answer soon, Your
8 Honor, on that, but do you want to do --
9 UNIDENTIFIED SPEAKER: I heard a rumor that the
10 State asked for --
11 MR. MAZAROL: Oh, yeah. No, we were -- and I
12 didn't -- I was supposed to get information and did not get
13 that.
14 (Discussion being held which was indiscernible.)
15 THE COURT: We can go off the record for a minute.
16 (off the record from 10:32 a.m. to 10:36 a.m.)
17 THE COURT: -- care of Stull, but we can move
18 forward to this matter.
19 MR. MAZAROL: Mr. McMahon will be coming here
20 momentarily, Your Honor --
21 THE COURT: Okay.
22 MR. MAZAROL: -- with some information on that.
24 in Volume 20, September 15, 2016.)
25 ///

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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 313 - 314
______________________________________________________________

JONES, Judge of the Circuit Court, Thursday, September 15,
APPEARANCES

Sean M. Mazarol, OSB #116398
1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162
No appearance

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1 PORTLAND, OREGON; THURSDAY, SEPTEMBER 15, 2016
2 -O0O-
4 THE COURT: And Mr. Stull's case, what's going on
5 with that? Has that been --
6 UNIDENTIFIED SPEAKER: My understanding is
7 Mr. McMahon and Mr. Kelly have dealt with that at AM call.
8 THE COURT: And it's going?
9 MR. MAZAROL: I don't know. Mr. McMahon is out in
10 the hallway. He'll be in in a minute and hopefully, we can
11 get some downlow on what happened.
12 THE COURT: The --
14 THE COURT: Yeah. Going to go to Judge Roberts.
15 MR. MAZAROL: Roberts, you said, Your Honor?
16 THE COURT: Yeah, for Barry.
17 (Proceedings adjourned at 9:11 a.m., recommencing in
18 Volume 21, September 16, 2016.)
19
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 315 - 324
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Friday, September 16,
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707

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1 PORTLAND, OREGON; FRIDAY, SEPTEMBER 16, 2016
2 -O0O-
4 MR. KELLEY: Good morning, Judge Roberts. Kevin
5 Kelley here as legal advisor for Barry Joe Stull, who is
6 also here with us today. He's appearing pro se and is out
7 of custody. Mr. McMahon present for the State.
8 MR. McMAHON: Yes, Your Honor. We're just here
9 sort of to talk a little bit --
10 MR. STULL: Oh, I don’t mean to interrupt.
11 THE COURT: Well, let's --
12 MR. STULL: Good morning, Your Honor.
13 THE COURT: No, you can't interrupt.
14 MR. STULL: Your Honor, I was going to say hello --
15 THE COURT: No, you cannot interrupt.
16 MR. STULL: I'm leaving.
17 THE COURT: That will make it short.
18 MR. STULL: It will. That's an ADA violation with
19 a person with a disability. I at least get to talk.
20 THE COURT: You get to talk in your turn, just
21 like everyone gets to talk in their turn.
22 MR. STULL: I get to say good morning.
23 THE COURT: And if you're going to leave, then I
24 am not going to stop you, but we'll be back --
25 MR. STULL: You already have two trials scheduled

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1 for mine. I'm taking up with the presiding court. We'll
2 get this all straightened out. You can't have my trial on
3 Monday if you're having a --
4 MR. KELLEY: Barry Joe, I'm going to address that
5 with the Court in due course, okay?
6 MR. STULL: No. I just by this, I want to be
7 treated with respect. I'm not being treated with respect.
8 I get to say good morning before he starts talking. And if
9 you don't like, that's fine. I'm leaving. You sicken me.
11 MR. STULL: I have Central Pain Syndrome.
13 MR. STULL: You have my neurologist's chart notes.
14 THE COURT: Do I need to have --
15 MR. STULL: You can check that.
16 THE COURT: -- the Sheriff help you out?
17 MR. STULL: No. They already know I'm here.
18 THE COURT: Okay.
19 MR. STULL: I told them on the way in because I
20 know this happens to me.
21 THE COURT: Well, if you start talking in the
22 middle of everybody else talking and --
23 MR. STULL: I didn't get to say good morning, Your
24 Honor.
25 THE COURT: -- it will happen.

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1 MR. STULL: I'm going to say good morning. I'm
2 leaving. I'm going to take up with this presiding court --
3 THE COURT: Go right ahead.
4 MR. STULL: -- and we're going to decide what
5 we're going to do about these schedule conflicts which keep
6 making me come back.
7 MR. KELLEY: Barry Joe.
8 MR. STULL: I can't trust the scheduling.
9 MR. KELLEY: Barry Joe. I have an idea --
10 MR. STULL: I'm leaving.
11 MR. KELLEY: -- I would like to address with the
12 Court about that.
13 MR. STULL: You can do whatever you want because
14 I'm leaving. This is my fourth 8:30 Multnomah County Court
15 morning. I'm a person with a disability. I should be able
16 to say good morning.
17 (The Defendant leaves the courtroom.)
19 THE COURT: Good morning.
20 MR. KELLEY: So the Court may see what we're up
21 against here. I am not -- he is a pro se. Technically,
22 I'm a legal advisor. But we were here to address, I think,
23 scheduling issues. The case has a lot of witnesses,
24 potentially. It had been set as a two-day trial. We've
25 now been told there's another case set here on Monday.

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1 MR. McMAHON: I think we reported it as a four-day
2 trial.
3 MR. KELLEY: Well --
4 MR. McMAHON: (Indiscernible).
5 MR. KELLEY: -- this case had been reported all
6 along as a two-day trial. The State said they had, I think,
7 13 witnesses at the further proceedings some time ago, if
8 I'm not mistaken. It's three misdemeanor charges.
9 And the day before call, I received a call from
10 Mr. McMahon saying that his witnesses are not available the
11 whole week of trial, and he wanted to reset. And then we
12 came to call, and he came to call, and he said actually his
13 witnesses are available on the Wednesday. And we needed a
14 whole day of motions on Monday. And then we would pick a
15 trial Tuesday, and then we would actually start the trial
16 Wednesday.
17 That was the first I heard that witnesses were
18 available starting -- the State's witnesses were available
19 Wednesday, which leads me to conclude the State is not
20 actually ready for trial Monday. We don't need a day of
21 pretrial motions. There have been no motions filed by either
22 side in this case. We're ready to start the trial Monday.
23 I've heard today that there's another trial set
24 for Monday. So one possibility might be to try to --
25 THE COURT: Do I get to talk?

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1 MR. KELLEY: Of course.
2 THE COURT: I don't schedule cases, just so you
3 know.
4 MR. KELLEY: I understand that, Judge.
5 THE COURT: This is a misdemeanor rotation. It
6 schedules out of CPC. If you want to talk about all this
7 to CPC --
8 MR. KELLEY: Okay.
9 THE COURT: -- I am certainly happy to send you up
10 to CPC, but you might as well be talking to a piece of
11 furniture since I can't do anything about it.
12 MR. KELLEY: I understand, Judge. I was just
13 going to propose maybe that we start this one on Tuesday.
14 THE COURT: I can't.
15 MR. KELLEY: I understand.
16 THE COURT: I can't schedule it.
17 MR. KELLEY: I understand, Judge.
18 THE COURT: I cannot reschedule it.
19 MR. KELLEY: Okay.
20 THE COURT: And I'm also -- I also -- just for the
21 sake of anybody's knowledge, if Mr. Stull behaves that way,
22 then we'll mistry and I will require him to be represented
23 by his counsel because he cannot stand there and disrupt
24 the trial, and he did it within 30 seconds.
25 MR. KELLEY: I completely understand. I've warned

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1 him about that.
2 THE COURT: So he's not going to be -- his right to
3 represent himself depends upon his ability to represent
4 himself within the contours of an orderly trial.
5 MR. KELLEY: I will make that clear to him, Your
6 Honor.
7 MR. McMAHON: And, Your Honor, I was -- what I
8 wanted to address here was some scheduling issues, like
9 sort of essentially discuss with the Court, and I think
10 without Mr. Stull present, I can't do that.
11 So what I would propose doing is I do have
12 Mr. Stull's email address. I'll put what I was going to put
13 on the record and have hope -- what I hope to be discussion.
14 I'll put that in the email just so that the Court is fully
15 advised and we avoid issues of ex parte contact so that
16 Mr. Stull has that communication in email, so I will go ahead
17 and do that today.
18 THE COURT: Yeah. Both of -- you've got to take
19 it to CPC if you want to get handled at a different time,
20 but it's assigned to me --
21 MR. McMAHON: And we --
22 THE COURT: -- for Monday. And I can't say, oh,
23 no, I'll have it on Wednesday. I can't do that.
24 MR. McMAHON: And that's not what the State's
25 asking, Your Honor. What the State's asking -- the State's

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1 -- essentially the State anticipates that with Mr. Stull,
2 things are going to take a little bit longer than expected.
3 We had motions on a similar case that I think took four
4 hours with no (indiscernible) motions in the morning, and
5 then there were issues with jury selection. And so
6 essentially it was just making sure that we'd be able to
7 call one witness on one day.
8 We have several other witnesses that we'd be able to
9 call on Tuesday once we get a jury picked, because I
10 anticipate we're probably not going to get to the evidence
11 till Tuesday. And I was essentially -- and I'll memorialize
12 this in an email -- I was essentially just going to ask the
13 Court's permission that I can call that one witness first
14 thing on Wednesday.
15 He had -- we're adjusting and dealing with vacation
16 and it's one of those things where another officer reported
17 out sick. He is going to be able to come in and be available
18 after ACL surgery and he's going to be -- come down here.
19 And I was just essentially hoping to put some scheduling
20 things for specific witnesses at specific times. And that's
21 essentially what today was going to be about.
22 THE COURT: Okay. And as to the other case, it's
23 a priority case.
24 MR. McMAHON: Yeah, I understand.
25 THE COURT: If it goes, it will go.

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1 MR. McMAHON: And I understand that.
2 THE COURT: And obviously, Mr. Stull thinks that
3 the procedures of the court need to be rearranged for him.
4 And that's not really going to work. If he wants a special
5 super setting, he's going to have to talk people other than
6 me because I can't do it.
7 MR. KELLEY: I understand, Your Honor.
8 THE COURT: And I can't not try a priority case if
9 it's sent to me.
10 MR. KELLEY: Mr. Stull has a second case pending,
11 and that was reset by Judge Skye recently, essentially to
12 follow the one that we've got next week, because the other
13 case is a single count C misdemeanor, and it didn't make
14 sense to have a two-day jury trial on a single count C
15 misdemeanor when he's got these A misdemeanors pending, so --
16 THE COURT: I --
17 MR. KELLEY: -- so there's a lot of pieces to fit
18 together.
19 THE COURT: Yeah. I don't have -- I really don't
20 know anything about the case. Has there ever been an aid
21 and assist hearing?
22 MR. KELLEY: Not to my knowledge.
23 THE COURT: That might be something that's
24 required. I don't believe that he is necessarily tracking
25 with the rest of the world.

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1 MR. KELLEY: I understand. And I will certainly
2 pass Your Honor's observations along to him and requirement.
3 So I don't know if Mr. McMahon wants to go to CPC
4 where Mr. Stull is this morning to address these issues? I
5 believe it's his intent to take this up with the presiding
6 court this morning.
7 THE COURT: Well, he --
8 MR. McMAHON: I'll check -- I have -- I have --
9 THE COURT: -- as long it's not back here because --
10 MR. McMAHON: Yeah, I'll look at it. I have -- I
11 have --
12 MR. KELLEY: Can you come right now?
13 MR. McMAHON: I can come for about five minutes.
14 MR. KELLEY: All right.
17
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22
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24
25 ///

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13 Salem, OR 97302
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17 Date: April 21, 2017
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STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 325 - 517
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Monday, September 19,
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707

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GENERAL INDEX
VOLUME 22 of 29
September 19, 2016 Proceedings Page No.
Preliminary matters....................................... 352
Motions in Limine......................................... 332

State's request to take witness out of order.......... 332
State's request to include prior convictions.......... 333
Defense request for full video/audio.................. 333
State's request to include prior acts................. 337
State's request to exclude certain prior incidents.... 348
State's request to exclude medical records............ 349
State's request to exclude certain encounters......... 362
Court's ruling on excluding certain encounters........ 372
State's request to limit legal argument re: ADA....... 382
Scheduling of witnesses................................... 407
Discussion of evidence of Defense......................... 422
Court's Ruling on Legal Argument Limits Re: ADA........... 435
Discussion of Diminished Capacity Defense................. 438
Preliminary instructions to jury.......................... 441
Jury Voir Dire............................................ 446
Jury sworn................................................ 485
Precautionary instructions................................ 485
Opening Statements
Mr. McMahon........................................... 494
Mr. Stull............................................. 498
Transcriber's Certificate................................. 517

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WITNESS INDEX
James Woods .............. 501
FOR THE DEFENSE:
(None called.)
EXHIBIT INDEX
Offered Received
FOR THE STATE:
1 ................................ 335 ......... 336

2 ................................ 335 ......... 336
3 ................................ 335 ......... 336
4 ................................ 335 ......... 336
FOR THE DEFENSE:
101 .............................. 345 ......... 347

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1 PORTLAND, OREGON; MONDAY, SEPTEMBER 19, 2016
2 -O0O-
4 THE COURT: All right. We are on the record. And
5 if we could hear the case called, please.
6 MR. MCMAHON: Good morning, Your Honor. Eamon
7 McMahon for the State, M-c-M-a-h-o-n, bar number 153879.
8 Calling case 15CR53749. Defendant Barry Stull. Mr. Stull
9 is present out of custody. He represents himself. He is
10 assisted by legal counsel, Mr. Kevin Kelley. Now is the
11 time and place set for trial and the State is ready to
12 proceed.
13 THE COURT: Very well. The order in which we will
14 proceed is as follows. We're going to hear any pretrial
15 motions. After we have done that, we'll call for a jury
16 panel. When we call for the -- after we have called for
17 the jury panel, I will give the precautionary preliminary
18 instructions to the jury, and then each will be entitled to
19 ask questions of the jurors -- prospective jurors. And in
20 that process, the prospective jurors cannot be asked how
21 they will vote in the case.
22 And it is not the time to make any presentation
23 about the facts, as they may or may not be sure, and it's
24 not the time to make an argument about the resolution of
25 those facts. The purpose of it is simply to ask about the

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1 juror's background and attitudes about matters in general
2 that are not about this case.
3 After a jury -- when the questioning has been
4 completed we will have jury selection, and in that process
5 each party will be entitled to excuse three of the jurors
6 from the first six, and as each is excused, then a
7 replacement is placed within the first six. When we have
8 completed that process we will seat the trial jury as
9 selected, swear them, and begin with the statements made by
10 each of the attorneys.
11 First, the prosecution will state the facts as the
12 prosecution expects witnesses to testify or the evidence to
13 show and then defense will be entitled to do the same thing
14 without arguments but stating the evidence as it is
15 expected. When we have done that we will start receiving
16 evidence in the case.
17 First of all, the State will present its case by
18 presenting its witnesses. After direct questioning of each
19 witness then defense will be entitled to cross examine and
20 prosecution will be allowed any redirect on the areas of
21 cross examination. When the State has completed its case
22 then the Defense will be allowed its case by presenting its
23 witnesses, ask questions of those witnesses.
24 The State will be entitled to cross examine those
25 witnesses, and then the Defense will be allowed to ask any

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1 questions on redirect. After we have concluded with all of
2 the evidence in the case we will have closing arguments,
3 first again with the State, then the Defense closing
4 argument, then the State's final argument.
5 After that I will instruct the jury regarding the
6 law, and the jury will retire for their deliberations and a
7 return of a verdict. Throughout this matter, each party
8 will comply with the requirements of decorum. We will not
9 be interrupting other speakers except to object the offer
10 of evidence. In objections to evidence or objections to
11 any improper argument, I should say as well, improper
12 argument or improper statement or improper voir dire; in
13 making objections as soon as an objection is started the
14 other party will stop until we resolve that objection.
15 Objections will not be argued in front of the
16 jury, but the basis for the objection will be stated in the
17 most, in terms of just a reference to court rule or rule of
18 evidence, and if more argument is required then the jury
19 will be excused to the jury room while we here that
20 argument. It will then be resolved by the Court and we
21 will continue accordingly.
22 Other than those kind of objections or a proper
23 objection then parties will not interrupt each other and
24 certainly will not interrupt the Court. And I think that
25 covers the bases. Our timing will be that we've had to

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1 start late because of the overlap of the probation
2 violation matter that we had just heard, so ordinarily the
3 court day starts at 9 o'clock, continues until 12:00. We
4 have the noon break until 1:30; starts at 1:30 again and
5 continues until about quarter to 5:00 so that we have time
6 before 5 o'clock to shut down our equipment. That is the
7 court day.
8 We will take a midmorning break whenever it is
9 convenient between proceedings or between witnesses,
10 whatever, and a mid-afternoon break. If there is a need
11 for a break at a different time, then a party may just
12 indicate to the Court that need and then we'll -- the Court
13 will determine whether we can do that and we won't take
14 breaks while questions are pending. So that means between
15 a question and answer we're not going to take a break, but
16 otherwise I'll consider physical needs and other things
17 like that that require a break. So are there any questions
18 about procedure?
19 MR. MCMAHON: Not from the State, Your Honor.
20 THE COURT: Okay.
21 MR. STULL: Your Honor, I have to draw your
22 attention to the fact that I have a neurological condition
23 called central pain syndrome, and as a result of that I
24 have some issues with my physiology. You've seen me
25 express that in the Court here already. And the type of

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1 things that I have to inform you about my physiology is if
2 I sit too long my legs go numb and I don't even know it
3 until I rise. That's just one of the things.
4 And my condition does cause severe pain and severe
5 nausea, and if I find myself getting too ill to proceed I
6 will inform you so that I can take a break and --
7 THE COURT: Just let me know when you need an
8 extra break. That's fine.
9 MR. STULL: And to kind of inform the Court as we
10 begin this ordeal I'll call it, I have a lot of coping
11 mechanisms. And when I'm trapped in a situation that's
12 increasingly emotionally stressful it just makes me sicker
13 and sicker and then, you know, I just can't endure. I'm
14 trying to stay out of the hospital. I've had emergency
15 room treatment I don't know how many times, and I'd just
16 rather be the well person that I am in salubrious
17 environments.
18 If I'm in a toxic environment it shows. If I'm in
19 a healthful environment where people are kind and courteous
20 then that also shows. And so I wanted to get that aside
21 first as just so you'll know you're interacting with a
22 person with a severe disability. Although it might not be
23 apparent, it's a neurological condition.
24 And as part of this whole process we're going to
25 have to explore ORS 659A.142 which has a couple different

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1 sections. One is the public accommodation which would
2 include City Hall where the arrest took place and that kind
3 of thing, and the other is actually this Court itself. And
4 so --
5 THE COURT: If you --
6 MR. STULL: -- I'm laying that out now so we know
7 what to anticipate.
8 THE COURT: Well, yes, and I appreciate that. I
9 hope that you understand I will take breaks if you need
10 breaks to -- but a trial, particularly a criminal trial in
11 which you're accused, is inherently stressful but we still
12 have to have them. And consequently, we also still have to
13 abide by the rules of procedure and the rules of decorum in
14 court.
15 MR. STULL: Absolutely, and we're --
16 THE COURT: So those things are not going to
17 change.
18 MR. STULL: I don't mean to talk over you, Your
19 Honor. See, I'm starting already. What happened on Friday
20 is Mr. Kelley spoke. I'm actually the person that spoke.
21 This is my case. He's my assistant and his role is not to
22 speak on my behalf. It it's appropriate for some technical
23 reasons for him to address something I can invite him to do
24 that but this is my -- I've already been qualified to
25 represent myself pro se, as the person with the disability.

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1 And if I might just wade into what we're going to
2 endure is at the time of the arrest I had like I have now,
3 my files. Those were destroyed while I was in custody. I
4 never got my property receipt from the Portland Police that
5 said I needed to claim them until after my goods were
6 destroyed.
7 So I don't have -- all the items that are on the
8 video that I imagine that either the State or ourselves are
9 going to introduce, all those items are no longer
10 available. They've been destroyed February 4th of this
11 calendar year. I got out of custody February 9th. And so
12 where I might have said here's my exit documentation from
13 Emanuel Hospital from two days before the arrest at City
14 Hall, I no longer have that. That was destroyed February
15 4th.
16 So as part of my process to defend the case I
17 can't simply open up my files that I had at the time
18 because they've been destroyed. So I don't know. This
19 issue has already been before Judge Bushong, and the
20 State's approach then in May was that's a civil matter.
21 Well, it's a civil matter except they destroyed my evidence
22 for this trial. So I'm just, I don't mean to say throwing
23 that out there, I am just informing the Court that that's
24 the status.

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1 MR. STULL: I'm going to sit down. Is that all
2 right?
3 THE COURT: Okay.
5 THE COURT: And so are there any motions?
6 MR. MCMAHON: Yes, Your Honor, there are several,
7 I think. The first procedure I want to deal with, Officer
8 Singh, I did indicate an email that I had cc:'d Mr. Stull,
9 and we do have one officer who is out and I just request
10 the Court's permission on the record to call him Wednesday
11 morning. That may mean he gets called out of order or
12 potentially in Defense's case in chief, but I would just
13 ask permission for that one witness.
14 The State I believe wishes to call -- I believe,
15 eight or -- no, excuse me -- I believe potentially nine, up
16 to nine witnesses that may be here depending on how the
17 evidence proceeds or, but I just wanted to ask the Court's
18 permission to call that witness out of order.
19 THE COURT: Okay.
20 MR. MCMAHON: Next, Your Honor, there is one issue
21 I have spoken with Mr. Stull about previously. That is,
22 there is approximately a 23-minute long video of first
23 portion of this instance. In it, it focuses on Mr. Stull
24 who is talking. During that video, Mr. Stull makes several
25 references to prior arrests and the time he has spent in

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1 custody. It is my understanding that Mr. Stull is not
2 objecting to the admission of that video and even with
3 those references.
4 I think it may be appropriate to include the
5 witness's prior convictions or a precautionary instruction
6 just, you know, to potentially protect the record. I did
7 not request that in my proposed instructions, but the State
8 does intend to offer that and it's my understanding in at
9 least (indiscernible) Mr. Stull that he will not be
10 objecting to that video, and I think we can cure any
11 potential for prejudice with that instruction.
12 THE COURT: All right, Mr. --
13 MR. KELLEY: Regarding stipulations, Your Honor --
14 THE COURT: Yeah. Is it all right for him to talk
15 now?
16 MR. STULL: Oh, yes. Yes, Your Honor.
17 MR. KELLEY: He's already responded.
18 MR. STULL: Let me clarify for that for you, for
19 the record. Mr. Kelley is going to address some technical
20 points.
21 MR. KELLEY: Thank you. Regarding stipulations,
22 Your Honor, we are stipulating, the Defense is stipulating
23 that the video and audio recordings of the City Hall
24 incident in this case are admissible in full. We want the
25 entire thing in rather than bits and pieces. That includes

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1 -- there are a couple different versions from different
2 cameras and I think we want them all in. Is that the
3 agreement, Mr. McMahon?
4 THE COURT: Yeah, very well.
5 MR. MCMAHON: Great. That's fine with me.
6 THE COURT: Very well.
7 MR. MCMAHON: I could, you know, I can even number
8 and pre-admit those exhibits if you'd like.
9 MR. KELLEY: And is this a court -- are we able to
10 use the machinery or is this Mr. McMahon's?
11 THE COURT: I don't know why it --
12 MR. MCMAHON: That's fine, but I don't have, you
13 know, I can order them --
15 MR. MCMAHON: -- and make sure we're not having to
16 haul --
17 MR. KELLEY: Okay. And I do see here that he has
18 requested Defendant's prior conviction. He and I discussed
19 this at the prior -- at a different, the other trial, and
20 he told me that he doesn't intend to bring out any
21 impeachable offenses on the part of my client. I haven't
22 received any discovery of any prior convictions. Mr.
23 McMahon said he doesn't have any that he intends to use.
24 MR. MCMAHON: That's correct, Your Honor. And I
25 think we can leave that instruction in since in the video

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1 he makes reference to it.
2 THE COURT: Okay.
3 MR. MCMAHON: I will not be offering the certified
4 conviction.
5 THE COURT: If we use the prior conviction
6 instruction though it ought to be edited so it doesn't tell
7 the jury to consider it for credibility --
8 MR. MCMAHON: Absolutely.
9 THE COURT: If it's not an impeachable then it's
10 not going to be used for impeachment. So I just ought to
11 warn the jury that there's been some evidence and it should
12 not be considered as evidence perhaps that because he has
13 been convicted before that those convictions have a bearing
14 on whether he's guilty of these crimes.
15 MR. MCMAHON: I think that's fair.
16 THE COURT: So if we can do that if we can edit
17 that then it's --
18 MR. KELLEY: Thank you, Judge.
19 MR. MCMAHON: And Your Honor, since we're showing
20 the disc to Defense counsel, we have State's Exhibit 1
21 through 4.
22 (The items referred to as
23 State's Exhibits 1-4 were
24 marked for identification.)
25 MR. MCMAHON: The first, State's Exhibit 1 is a

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1 video of Mr. Stull on the floor of City Hall. The second
2 video is a video that was taken from a cell phone of the
3 screen showing some surveillance footage of Mr. Stull. The
4 third is the surveillance feed from City Hall showing Mr.
5 Stull. And finally, the fourth is the audio from City
6 Hall. So those are the four exhibits I believe --
7 MR. KELLEY: Do any of those include Mr. Davis's
8 footage?
9 MR. MCMAHON: Yes.
10 MR. KELLEY: Okay, with the audio?
11 MR. MCMAHON: The first one, yes.
12 MR. KELLEY: Okay, very good.
13 THE COURT: So that's Exhibit 1-4?
14 MR. MCMAHON: Yes, Your Honor.
15 THE COURT: And is that stipulated in there?
16 MR. KELLEY: No objection.
17 THE COURT: Okay.
18 (The items referred to as
19 State's Exhibits 1-4 were
20 received into evidence.)
21 MR. KELLEY: And there are no pretrial motions
22 filed by either side, I don't believe. There are some
23 stipulations, however, regarding for example the medical
24 records.
25 MR. MCMAHON: And I'm sorry.

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1 MR. KELLEY: Did you want to go ahead?
2 MR. MCMAHON: I do have some more motions I'd like
3 to address.
4 MR. KELLEY: I'm sorry, okay. Sure.
5 MR. MCMAHON: So and that does kind of bring us --
6 there is, there was -- so the charges in this case are
7 resisting arrest and attempt to assault a public safety
8 officer. That arrest stemmed from a charge of trespass in
9 the second degree. That charge was dismissed due to some
10 procedural issues earlier.
11 However, the State does intend to offer evidence
12 from the previous day relating to the fact that Mr. Stull
13 was verbally trespassed, and then on this date that because
14 of that verbal trespass and then continued demands by a
15 person in the charge of the premises to leave that that
16 formed the legal basis for his arrest.
17 And it's my understanding that Mr. Stull intends
18 to challenge the legality of that arrest, and I think for
19 that reason it is appropriate to go into these prior acts.
20 Generally prior acts are not admissible, however, in this
21 case because that prior act involves a trespass and a
22 subsequent exclusion I think they are appropriate for the
23 jury to hear in terms of what formed the basis for the
24 resist arrest, especially in light of the fact that Mr.
25 Stull intends to challenge the legality of that arrest.

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1 THE COURT: Okay.
2 MR. STULL: Your Honor, I'll address this one here
3 on a couple of different ways. The City Hall trespass
4 exclusion policy was found unconstitutional in December of
5 2015 by federal Judge Simon.
6 MR. KELLEY: Generally, you should stand up when
7 you're --
8 MR. STULL: I'm sorry, thank you. I'll stand. I
9 could give you the case number. I have it here on me, the
10 federal case. But the issue was that as I was in custody
11 on this thing that they're saying was a trespass exclusion
12 turned into these other subsequent events. As I was in
13 custody the trespass exclusion policy that they affected
14 that I said I wasn't going to follow -- that's all part of
15 the record -- was found unconstitutional. And so --
16 THE COURT: After the time of the arrest.
17 MR. STULL: Right. But that was all pending, I
18 believe, from Mr. Walsh, it was Walsh v. Enge. But I
19 believe that Mr. Walsh had already had that pending, had
20 filed that case, the challenge to the trespass exclusion
21 policy. And so that's one issue.
22 And so to kind of gather these things together we
23 have two things. We have the fact that the policy was
24 found unconstitutional and we also have the fact that owing
25 to I was charged with a felony that was dismissed February

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1 9th, as an operation of law the criminal trespass charge
2 was dismissed. So we have two ways that that trespass
3 doesn't really meet the ground, but it's still evidentiary
4 for me because I'm the fellow that was on the agenda and
5 they told me the day before I couldn't come in.
6 And part of that I'm going to explore because once
7 the witnesses come in I'm going to establish in fact that
8 what they presented as the facts on November 24th, the day
9 before this arrest of November 25th, was in fact a complete
10 fabrication. There's witnesses six ways from Sundays that
11 show that what they said I was doing that merited their
12 unconstitutional and can't be a prosecuted trespass case,
13 what they said was in fact not true.
14 So I'm just letting you know that that's going to
15 be part of my mental state as this was all playing out.
16 So --
17 THE COURT: Well, I understand that that was what
18 you were thinking at the time. As far as the legal
19 question of whether the subsequent on the underlying
20 statute rendered the arrest retroactively illegal that's
21 not a hard question, it does not. So the question of
22 whether the arrest was legal or not is not -- that doesn't
23 -- that's not affected by things that happened after that
24 time with the subsequent dismissal of the charge.
25 MR. STULL: Right. But I'm still going to present

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1 that the State's witnesses in fact lied about the events
2 that took place on November 24th to even have the
3 justification to use the trespass exclusion policy.
4 THE COURT: Okay, fine. The question that I think
5 has been raised is whether he can put in the evidence of
6 the sequence of events by which resulted in the arrest from
7 their point of view. You can then say whatever you say
8 about it, but I understand that since the legality of the
9 arrest is under attack then they can show whatever they
10 have to show that it's a legal arrest.
12 THE COURT: Okay.
13 MR. STULL: And just to kind of lay out what we've
14 got, I have as part of my -- and it's been shared with the
15 State. Mr. Enge issued a permanent exclusion to me with a
16 written document. I believe Mr. Kelley mentioned it was
17 dated December 1st. I got it about ten days later because
18 I was in custody.
19 MR. KELLEY: The one from the city, you mean?
20 MR. STULL: The one from the city, and I have it.
21 MR. KELLEY: December 1.
22 MR. STULL: And that is the document that has the
23 facts as they portrayed them on November 24th and not the
24 facts that I can prove with my witnesses.

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1 MR. STULL: So the issue is going to be whether
2 that document itself is going to be just reference or
3 entered as a Defense Exhibit.
4 THE COURT: This is -- I'm not sure which
5 document.
6 MR. STULL: On December 1st, the City of Portland
7 produced a document that articulates the reasons that the
8 November 24th trespass exclusion and all those kind of
9 things, they state a bunch of things that happened prior to
10 November 25th that sort of justified, I'll say, in their
11 mind that I deserved to be treated the way I was.
12 MR. KELLEY: If you want to offer this you need to
13 put a sticker on it and --
14 THE COURT: Well, okay. Well, wait a second.
15 Let's dispose of -- the first question is whether they can
16 put in the evidence that supports legality of the arrest,
17 and they can't. So now this is another issue is whether
18 that particular doc -- and I haven't seen the doc and I
19 don't know what there any objections to it or what.
21 MR. MCMAHON: The State would be objecting.
22 That's hearsay. It's hearsay. It's not relevant. I
23 understand that the individual who wrote it, Mr. Enge, I
24 don't know if he's under subpoena or not, but there can't
25 be a proper foundation laid. The document in its entirety

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1 is hearsay. I think there is limited potential if Mr. Enge
2 does testify that they potentially might want to use it as
3 impeachment if impeachment at that point is proper. But I
4 think admission of the document in toto is not proper and
5 it's inadmissible hearsay.
6 THE COURT: Well, how is it going to come in?
7 Who's going to produce it and why is it going to -- who's
8 going to testify to the document?
9 MR. KELLEY: Well, it is undoubtedly a public
10 record. It is on City of Portland letterhead. So --
11 THE COURT: I'm not sure whether or not the mere
12 fact that it's on their letterhead makes it admissible.
13 And the question was who's going to proffer it? Who's
14 going to be the witness who testifies to it?
16 THE COURT: It's not a self-authenticating
17 document whatever it is but --
18 MR. KELLEY: If we were to get a certified copy, I
19 don't think there's an objection to its authenticity but it
20 is a public record.
21 THE COURT: So --
22 MR. MCMAHON: I would disagree with that
23 characterization. Let me pull my court pack back here for
24 a second.
25 MR. KELLEY: 803.8 is public records. It falls

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1 squarely within that exception, I would submit.
2 THE COURT: So it's -- you're taking the position
3 that the document which I haven't seen is under which
4 subsection?
5 MR. KELLEY: 803 --
6 MR. MCMAHON: So I think the issue here is --
7 MR. KELLEY: -- 8, public records and reports.
8 MR. MCMAHON: They are --
9 THE COURT: Yeah, public records and reports said
10 in court, so the questions, activities of office or agency.
11 MR. KELLEY: Right.
12 THE COURT: Matters observed pursuant to duty
13 imposed by laws as to matters, as to which there is a duty
14 to report excluding matters observed by police officers and
15 other law enforcement personnel.
17 MR. KELLEY: And I think that if we were to mark
18 this and offer it as I think Mr. Stull intends to do
19 eventually, I don't think there's any reasonable dispute
20 there that it is those things.
21 MR. MCMAHON: I do dispute that. I think that
22 this is predicated on potentially that it is being offered
23 in the course of a criminal matter. This is as it relates
24 to a trespassing order not to return. I think that that
25 does fall under the -- you know that little section where

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1 it says including criminal cases, matters observed by
2 police officers and other law enforcement personnel.
3 Moreover, even if the Court finds that it's not
4 observed by police officers and law enforcement personnel
5 the question is whether or not it is matters observed
6 pursuant to a duty imposed by law as to which matters there
7 was a duty to report.
8 Here we're talking, if it doesn't fall under the
9 criminal records exception here we're looking at this
10 report which is essentially a written document setting out
11 the boundary, the reasons for why Mr. Stull would be
12 excluded from City Hall. Moreover, the nature of this
13 document is sort of well beyond the scope of this
14 particular question.
15 It does talk about the fact that there are, you
16 know, several incidents and it goes into City Hall policy
17 and exclusion and I think that that goes well beyond the
18 hand of the matter today, and it doesn't properly fall
19 within those requirements because it's not something that
20 is a required report as mandated by law. It's a specific
21 document that was prepared in response to Mr. Stull in sort
22 of a pseudo-criminalism of the matter. And for those
23 reasons I don't think the letter itself is probably
24 admissible.
25 THE COURT: It might be, you know, it might be

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1 helpful if I could actually see the document rather than
2 have various descriptions of it.
3 MR. KELLEY: I've got a copy here and I can mark
4 it Defense Exhibit 101, if that's acceptable to the Court.
5 It is a three-page document.
6 (Document referred to as
7 State's Exhibit 101 marked for
8 identification.)
9 MR. MCMAHON: And Your Honor, I just want to, I
10 want to clarify for the sake of the record. Mr. Stull does
11 represent himself. I think that if there is a point in
12 which Mr. Kelley is going to interject himself, I think we
13 need to have some statement by Mr. Stull on the record
14 saying that I'm giving Mr. Kelley permission to speak on my
15 behalf in this matter, just so we keep a clear record
16 moving forward that, you know, given arguments are
17 essentially being adopted by Mr. Stull and so he can't come
18 back later and potentially claim, well, that wasn't
19 actually the argument I wanted to raise that was just what
20 Mr. Kelley did of his own volition.
21 So I think I want to, anytime Mr. Kelley is
22 interjecting with a legal opinion or argument I would just
23 ask that Mr. Stull put on the record, you know, I accept
24 and endorse this statement and this action by Mr. Kelley.
25 MR. KELLEY: My position on that would be that Mr.

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1 Stull has informed me that he does not wish me to speak on
2 his behalf. He wishes to -- he's the attorney of record in
3 this matter. He chose to proceed pro se, so this is his
4 case. I am his legal advisor. However, in particular
5 matters and especially regarding the evidence code, he has
6 talked to me that I am more acquainted with that than he is
7 and he wishes me to address those particular matters, is my
8 understanding. And I think he will correct the Court if
9 I'm wrong.
10 Is that so, Mr. Stull?
11 MR. STULL: Your Honor, to give you the history,
12 on February 9th, Judge Marshall allowed me to appear pro
13 se. The legal advisor -- as a person with a disability,
14 the legal advisor was to -- excuse me. I'm having to halt
15 speech for a neuropathic condition.
16 My legal advisor was to obtain my witnesses
17 through subpoenas, to obtain the relevant medical records
18 through subpoenas and those types of things, and to make
19 sure that passed muster through the Oregon Evidence Code,
20 so that rather than me come in and say this is my document
21 that says I didn't do it, it's actually a document that
22 could be entered into evidence.
23 So that's what Mr. Kelley is -- that's his
24 function as my legal advisor. I know the case law. I know
25 the facts. I know the parties. I know the witnesses. All

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1 those kind of things, but the Oregon Evidence Code is
2 really a hurdle that takes some expertise to cite those
3 different things.
4 THE COURT: Maybe we can simplify it if you'll
5 just agree that when he has said something that does not
6 represent you that is not your position and you don't
7 authorize, you'll let us know so that we can then strike
8 whatever he has said. Does that work?
9 MR. STULL: I think Your Honor saw on Friday that
10 I know how --
11 THE COURT: Well.
12 MR. STULL: That's my opinion on the situation,
13 however indelicately I may do it when I'm sick. But we're
14 of one mind here and one agreeance at this table that when
15 Mr. Kelley is speaking on a point it's because we've
16 already discussed that prior to him taking the reins and
17 following through.
18 THE COURT: Okay. Well, let me take it.
19 MR. KELLEY: The relevant part of this exhibit
20 that we -- pardon me.
21 ` THE COURT: And, you know, I think I'm going to
22 allow it. I'm going to allow it as long as it's relevant.
23 (Document referred to as
24 Defendant's Exhibit 101
25 received into evidence.)

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1 THE COURT: As long as it develops to be relevant,
2 and if -- so the hearsay I'm not going to because --
3 MR. MCMAHON: I understand. And the State does
4 reserve the right to make foundational objections --
6 MR. MCMAHON: -- as to, you know, (indiscernible).
7 THE COURT: Foundation. Then -- yeah.
8 MR. MCMAHON: Okay. Thank you, Your Honor. Then
9 I think now this moves on to prior incidents generally. I
10 think that Mr. Stull intends to offer evidence and there is
11 a major portion of this is medical records and testimony
12 and essentially documents from medical personnel that I do
13 not believe will be present and cannot verify or speak to
14 the contents of those medical records as well as going into
15 his medical history.
16 The State would object to the admission of that as
17 well as the admission of any prior experiences with
18 Portland Police in terms of specific events or occurrences
19 or incidences. His encounter, I believe he was speaking
20 earlier about property receipts, you know, whether or not
21 Portland Police return it to him, he's been referencing
22 cases from 2011.
23 And I would just ask that the Court limit any
24 prior incidents here to something that is directly relevant
25 to the questions that are today and that relates to the

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1 events of November 25th of 2015. I believe the one prior
2 event we've addressed is that it's on November 24th which
3 forms the basis of his arrest. Beyond that prior event we
4 don't believe that there is any relevant or admissible
5 prior incidences that Mr. Stull can go into, and I believe
6 that his medical history as well as his medical documents
7 are not admissible and are not relevant here today.
8 He can talk about the fact that he has a pain
9 syndrome, but going into the contents of those medical
10 reports talking about what doctors said beyond that, that's
11 hearsay; it's also inadmissible and irrelevant to the
12 claims at large today.
13 THE COURT: Okay. Now, it seems to me we have a
14 couple of different topics here. First of all, on the
15 admission of medical records we do need a qualified witness
16 to provide the medical records and that means a person from
17 the hospital or a person from, who can testify that they
18 are the medical records; that they're kept in the ordinary
19 courses.
20 MR. KELLEY: Mr. McMahon did not mention there
21 have been hundreds of pages of medical records discovered
22 in this case and rather than subpoena them to the Court as
23 of course is possible under ORCP 55H, Mr. McMahon
24 stipulated to their authenticity. So he reserved other
25 objections but is not contesting their authenticity.

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1 MR. MCMAHON: Correct. On the authenticity it's
2 the --
3 THE COURT: Yeah, authenticity is not the issue.
4 MR. MCMAHON: Right.
5 MR. KELLEY: So we did not bring in a --
6 THE COURT: It's admissibility.
7 MR. KELLEY: Agreed.
8 THE COURT: It's whether it's hearsay or not.
10 THE COURT: And to qualify as hearsay, to qualify
11 for the hearsay exception for business records the
12 foundation has to be laid by a witness who can testify to
13 the procedures of the medical facility and that these are
14 the way they're kept and that they're accurate and that
15 they represent notations by people who have the obligation
16 to make those notations at or near the time the matters
17 that they reflect, and without them they can't come in.
18 MR. STULL: Your Honor, if I might just show you
19 how this is all developing. I have here my letter I got in
20 my mailbox on Saturday and it's from the Social Security
21 Administration and it's the most recent of an ongoing
22 series because I have an appointment September 26, so this
23 is a future medical appointment.
24 And so the source for most of these documents are
25 from the administrative law judge as part of my Social

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1 Security process, I'll just say that. So these have
2 already been released -- excuse me -- HIPAA, Health
3 Insurance Information Protection Act that all those things
4 have been all cleared to get these documents here and I
5 still have the envelopes that they came in from Social
6 Security.
7 So the other documents I have on this, I have from
8 the Multnomah County Health Department in 2012; I have,
9 strange as it may seem I think it's five consolidated cases
10 that are yet on appeal in the Oregon Court of Appeals; and
11 I have the documents I got for that case from the health
12 department at the time, so Jody Davich was the gal who
13 physically walked those into Judge Hodson's court.
14 And so the issue with me, getting back to February
15 9th, 2016, was that I diligently did whatever I could to
16 get my witnesses and to get my medical records including
17 the subpoena of my neurologist from 2015, Dr. Rosenbaum,
18 and you may recall you quashed that subpoena.
19 So I don't actually have a human being to bring in
20 to talk about my medical condition because you've already
21 quashed the subpoena here in, I'm going to say maybe May.
22 What were we talking the other day, June, June 8th was that
23 motion, I believe we mentioned in Judge Bushong's court
24 last Thursday or so.
25 THE COURT: Yeah. That was a deposition subpoena

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1 not a trial subpoena, and it was quashed because the doctor
2 testified that he had no records and he knew nothing about
3 your condition.
4 MR. STULL: Well, and --
5 THE COURT: And consequently he had nothing to
6 testify to.
7 MR. STULL: And --
8 THE COURT: But that's beside the point. The
9 point is that the rules of evidence say that a business
10 record, including a medical record, can come in only with a
11 certain foundation and that foundation would require a
12 witness to testify to the matters that I've kind of
13 summarized.
14 MR. STULL: Well, if I could follow up on the
15 motion to quash the subpoena, it was that instead he would
16 submit his chart notes, which I have, and that was kind of
17 part of the deal.
18 THE COURT: That was a discovery deposition, I
19 think. I don't recall the specifics of it. But we're not
20 -- that's not really an issue here. The issue is whether
21 you can just present bald records without having a witness
22 to lay a foundation. And that's laid out by the rules of
23 evidence and the rules of evidence say no.
24 MR. STULL: Well, we've got to do something, Your
25 Honor, because I'm a person with a disability. My defense

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1 is based on my medical condition being central pain
2 syndrome which as said I would imagine maybe 25 to 50 times
3 in this 20-minute video of the events that took place on
4 November 25th in 2015.
5 And central pain syndrome is a neurological
6 condition that falls under the National Institutes of
7 Health, National Institute of Strokes and Neurological
8 Disorders, and the State's position as far as the police
9 and all those people is they just decided that I had a
10 mental illness and didn't call an ambulance and all these
11 other things when I actually had this life-threatening
12 neurological condition.
13 MR. KELLEY: (Indiscernible). Put a sticker on it
14 and --
15 THE COURT: Well, you can testify as to your own
16 condition. We're talking just about medical records and to
17 the extent that it's relevant and I'm not ruling on that
18 because I haven't been asked to. But to the extent it's
19 relevant you can testify as to your bodily condition, your
20 pain, your condition and so forth. You just can't say this
21 other doctor who's not here in court, either directly or by
22 his records, made the following records.
23 MR. KELLEY: We believe some would be admissible
24 under 803.4, Your Honor, statements for purposes of medical
25 diagnosis or treatment. Mr. Stull and I have discussed his

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1 desire. He disclosed to me and I discovered to the State's
2 counsel hundreds of pages of medical records. I don't
3 believe all of them would be admissible. I asked him to
4 pare it down and let me know specifically what he intends
5 to offer. He's not been able to pare it down in a way that
6 is concise here for the Court.
7 We believe some of those records are admissible
8 under the medical exception with this stipulation. What I
9 did, I was told Mr. Stull -- and I need to get into a
10 little bit of my role as a legal advisor here and some of
11 this is not something that Mr. Stull has authorized me to
12 do, but I do think at some point I need to make the
13 statements for the record.
14 MR. MCMAHON: And Your Honor, I would just
15 interject here. I think that -- and I understand Mr.
16 Kelley's role as a legal advisor, but making
17 representations to the Court sort of expands beyond that
18 role. And I think that what we need to do here is that if
19 Mr. Stull is going to be making legal arguments he needs to
20 be the one making those legal arguments.
21 If you're going to make representations that don't
22 have the authorization of Mr. Stull I think that's an
23 improper thing for the Court to hear. It's got to be
24 predicated on what Mr. Stull wants and Mr. Stull's
25 representation because he has indicated he wants to be pro

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1 se. And I think that going beyond that we get into
2 conflated issues of whether or not Mr. Stull is or is not
3 his counsel and whether or not he's representing himself
4 and what Mr. Kelley's proper role is within the ambit of
5 being a legal advisor.
6 MR. KELLEY: Well, I appreciate State's counsel's
7 concern for our respective roles here. I need to protect
8 the case. And Mr. Stull yesterday emailed the Court, or
9 rather on Friday. I don't know if he emailed it
10 specifically to this Court, but he did send it to some OJD
11 emails talking about potential ineffective assistance of
12 counsel and appellate issues.
13 And I am authorized under the Oregon Rules of
14 Professional, rules to address that. And to the extent
15 that he is making ineffective assistance of counsel claims
16 regarding me as his legal advisor when he's proceeding as
17 his own counsel, I'm not sure how far that is going to go.
18 But in regards to the medical records that is a
19 particular issue with Mr. Stull, and I would like to state
20 for the record what I did about that and that includes
21 obtaining hundreds of medical records, discovery of
22 hundreds of medical records to the State and obtaining a
23 stipulation as to their authenticity so that that objection
24 would not be a problem. I can't make them admissible if
25 they're not admissible, but I did obtain them, and of State

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1 obtained stipulations.
2 Regarding witnesses, Mr. Stull wanted me to
3 subpoena multiple witnesses, roughly a dozen or more, and I
4 went over that list and I didn't believe that they could
5 all offer relevant and admissible evidence. In my role as
6 legal counsel I explained to Mr. Stull that I would not
7 subpoena witnesses that I did not believe could offer
8 relevant and admissible evidence.
9 I reviewed the Rules of Professional Conduct
10 regarding legal advisors and my responsibilities to Mr.
11 Stull. I even went so far I called Sylvia Stevens at the
12 State bar and spoke with her as a hypothetical reference
13 case.
14 So I went through each witness Mr. Stull wanted me
15 to subpoena. I made independent judgments about whether
16 they could offer admissible evidence. I subpoenaed the
17 ones that I believed could, and I explained thoroughly to
18 Mr. Stull how he could get the remainder into court because
19 the statute of course provides that a Defendant can
20 subpoena witnesses on his own.
21 I drafted those subpoenas. I told Mr. Stull my
22 position on this. I offered to meet with them so that he
23 could sign the subpoenas, get them subscribed by the court
24 clerk. I made arrangements with the county council's
25 officer to accept service of those subpoenas for county

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1 employees. We had an appointment to meet after court last
2 week when Mr. Stull could do those things and he declined
3 to attend that meeting. So as far as getting witnesses
4 into court, I just need to state those things for the
5 record.
6 MR. MCMAHON: And I apologize, Mr. Kelley. I
7 misunderstood what you were saying. I totally understand
8 your concerns in your work here --
10 MR. MCMAHON: -- so I was incorrect, so I
11 apologize for that.
13 THE COURT: As to the question at hand --
15 THE COURT: -- is the admission of medical
16 records.
18 THE COURT: Subsection 4 deals with statements not
19 records, so that doesn't allow records of statements that
20 allows statements to the extent that the statements are
21 those of the doctor, not the statements of the patient for
22 the purposes of diagnosis. That's a different issue.
23 The specific question here is whether certain
24 records and documents can come in without the foundation
25 provided in subsection 6, and I will rule that it cannot

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1 come in without that foundation. You'll have to prove if
2 either as a witness --
3 MR. KELLEY: I'm looking for subsection 6. I'm
4 sorry.
5 THE COURT: -- or he'll have to prove his medical
6 condition through his own testimony or the testimony of
7 someone else.
8 MR. STULL: Your Honor, if I can kind of clarify
9 one of the matters. Dr. Robert J. Grimm was my
10 neurologist. In 1980 he did the preliminary analysis that
11 ended up with Dr. Parsons doing my back surgery. I became
12 his patient around 2001, if I'm recalling, and in 2002 he
13 diagnosed me with central pain going to what he had.
14 Dr. Grimm has since passed away. There's a
15 specific hearsay exception when the witness is unavailable
16 because of death. The sources of the documentation would
17 be for example in the Multnomah County Health Department
18 records they incorporated Dr. Grimm's chart notes. And Dr.
19 Grimm testified in this circuit chapter and verse about the
20 physiology and the mechanics of my particular neurological
21 condition.
22 And his qualifications were that he operated a
23 brain research laboratory and he taught neurology at Oregon
24 Health Sciences University, and the Oregon Supreme Court
25 found that he had advanced degrees in neurology and

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1 neurophysiology. So there's, without citing the specific
2 off the top of my head section of the Oregon Evidence Code,
3 the hearsay exception is when that information is better
4 than anything else that's reasonably obtainable.
5 And so I've got the most qualified neurologist in
6 the state of Oregon I'm likely ever to interact with was
7 the doctor that treated me for ten years prior to his
8 passing away in 2011, and most relevant is him describing
9 the physiology of what happens in my body, which he did in
10 this circuit court up against the Multnomah County District
11 Attorney in a case in 2004.
12 And I think the fact that he said that my
13 condition is a fixed condition in the spinal cord doesn't
14 mean it's a repaired condition in the spinal cord but it's
15 a permanent condition in the spinal cord. So it's unlikely
16 to have changed over this past decade except for
17 potentially getting worse which I am experiencing as I age.
18 So I do have the matter of Dr. Robert J. Grimm's
19 chart notes as a person who's deceased. I would be happy
20 if we want to move on to some other issues so I could brief
21 the Court on that and we could actually get those, the
22 transcript pages of his testimony because there was an
23 appeal and there was a transcript prepared by Anderson &
24 Associates which is the transcriber for that appeal.
25 So we do have that matter as an Oregon Evidence

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1 Code express exception that I've already researched and I
2 have here somewhere among all these types of things. So if
3 we want to maybe perhaps set that aside to a more
4 appropriate time we can expedite today's processes.
5 THE COURT: Right. Okay, sure. We can do that.
6 MR. MCMAHON: And I'm just looking at the exhibit,
7 Your Honor, if I may.
9 MR. MCMAHON: And I'm just looking at that exhibit
10 if I may just have one second, Your Honor.
11 MR. KELLEY: You need to say specifically what it
12 is if you want to offer; identify it for the record.
13 MR. STULL: Well, I can't because I don't have it.
14 MR. KELLEY: Well, you have to put a number on it
15 and give it to the Court.
16 MR. STULL: If you printed it out I have it.
17 MR. KELLEY: Is this the one?
18 MR. STULL: That one I want to get in.
19 MR. KELLEY: You need to put a number on it so
20 that the Court can identify it.
21 MR. STULL: No, no. We would have this go back
22 into my file.
23 MR. KELLEY: I understand. So you need to put a
24 sticker on it and offer it so you can get a ruling.
25 MR. STULL: Not this particular piece of paper.

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1 MR. KELLEY: Okay.
2 MR. STULL: If we want to make a photocopy of it
3 or if you already have it in your stack that you printed
4 out that's fine. But I'm not giving you my original
5 because then I won't have it again.
6 (Mr. Kelley and Defendant confer.)
7 MR. MCMAHON: And I'm looking at these documents,
8 Your Honor. If the Court is inclined to admit some of them
9 I think there are portions that need to be redacted and
10 removed because they are not medical statements or
11 statements for the purposes of medical diagnosis or
12 treatment. Moreover, they're not relevant. I think if he
13 wants to offer them potentially for his medical diagnosis,
14 the State would so contend that the medical diagnosis is
15 not admissible or relevant to the charges.
16 THE COURT: Well, I think that we may have kind of
17 concluded this. I'm not admitting the documents except for
18 the possible exception of the doctor who died and
19 exceptions for prior testimony or that so that the doctor
20 can settle the issue. If there's going to be other
21 testimony relating to statements then we'll have to deal
22 with whether -- the statements come in under 4, but they're
23 not going to come in as documents.
24 MR. MCMAHON: Okay, Your Honor, thank you. And I
25 guess that's the issue I was --

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1 THE COURT: So that's just the -- so I think
2 that's --
3 MR. MCMAHON: And that's what I was, the kind of
4 clarification I was seeking.
5 MR. KELLEY: And I would just ask for the record,
6 Your Honor, we believe they're admissible as statements for
7 medical diagnosis or treatment non-claim. Statement is
8 defined in the Evidence Code. We do believe the records
9 would qualify.
10 MR. MCMAHON: And Mr. Kelley, I --
11 THE COURT: Okay, understood, but I've ruled.
12 MR. KELLEY: For the record. Thank you, Judge.
13 MR. MCMAHON: I do believe some of them are --
14 there are portions where they're talking about things that
15 are totally unrelated to his medical condition that I think
16 should be redacted.
17 MR. KELLEY: And they might need to be redacted.
18 MR. MCMAHON: In that sense you know what I'm
19 saying. I think that addresses medical records.
20 I think -- I'm sorry.
21 THE COURT: So -- yeah. Go ahead.
22 MR. MCMAHON: And I think that the next issue was
23 just other encounters generally. There are some references
24 made into the video; I think we've already addressed that.
25 We're going to actually sort of have that precaution

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1 instruction that they're not to consider it the facts of
2 this case in any way regarding Mr. Stull here today. I
3 think, I mean even seeing Mr. Stull here today so far this
4 morning, there's a tendency to go into other incidents on
5 his history with the police.
6 And I think that that information, it's not in any
7 way, shape or form relevant to the charges here today. And
8 I think that it's not only not relevant, he wants to talk
9 about, you know, his attitudes towards the police. He's
10 obviously able to do that in the context of being placed
11 under arrest, but going into specific instances is improper
12 and is irrelevant.
13 I would ask the Court instruct and limit Mr.
14 Stull's testimony to only those instances that are relevant
15 in the incident matter, the events of mainly on November
16 25th and potentially November 24th for the limited purpose
17 of addressing the legality of his arrest on the 25th.
18 MR. STULL: Your Honor, I was arrested by the
19 Portland Police August 2011, October 2011, November 2011,
20 February 2012, and all of those were not guilty.
21 THE COURT: And why is that relevant in the
22 decision of this case?
23 MR. STULL: Because I have a severe disability.
24 It's a neuropathic pain condition. It's worsened by
25 emotional stress as Dr. Grimm described in the charts that

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1 we'll get to. But the February 22nd, 2012 arrest is
2 mentioned on the video as my being arrested at the Central
3 Precinct and found not guilty at trial and it was on a
4 motion for a judgment of acquittal. I didn't even have to
5 have a defense because it was completely illegal.
6 And now we have this situation where I requested
7 an ambulance, instead I got arrested, instead I got held on
8 a felony that wasn't a felony, instead I had my property
9 destroyed. And each of those things happened to me before.
10 I was arrested. My property was destroyed or I was held on
11 a felony, or I got in the ambulance and my property was
12 destroyed.
13 My interaction with the Portland Police goes back
14 to 1989 and it hasn't stopped. I thought once marijuana
15 became legal they would change their attitude towards me.
16 I thought that since I was found not guilty in Central
17 Precinct that they would change their attitude toward me,
18 but they didn't.
19 I was arrested on July 17th and twice on July
20 19th, 2012, each time seeking medical treatment or trying
21 to enforce a restraining order that I was a protected party
22 under the Elderly Persons with Disabilities Abuse
23 Prevention Act. Off the top my head I'm thinking that's in
24 ORS Chapter 124.
25 But the point of it is for years and years and

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1 years the City of Portland have allowed criminals to act
2 against me with impunity, and when I try to -- for example
3 February 22nd, 2012, I was reporting that Troy Thompson had
4 violated the restraining order that I had against him and I
5 got arrested by the Portland Police. July 17th, 2012, I
6 reported that Troy Thompson was violating the restraining
7 order against me and the Portland Police arrested me when
8 he had a warrant for his arrest in addition to violating
9 the restraining order I had protecting me from him.
10 So the Portland Police haven't really been my best
11 ally regarding living a life unmolested, and that certainly
12 plays into my mental state. On November 25th, 2015 when I
13 expressly said before the police were even brought into the
14 situation my disability was triggered and I need emergency
15 transport to Emanuel Hospital Emergency Room for central
16 pain syndrome, and instead what I got was the Portland
17 Police be coming into the room preventing me as they had
18 two days earlier from accessing medical treatment.
19 I went to Emanuel Hospital on the Sunday before this
20 Wednesday event at City Hall and that was after the
21 Portland Police for 15 minutes stood and prevented me from
22 getting access to the ambulance. So this is a real serious
23 thing for me. I cannot shed myself of the civil rights
24 violation that the Portland Police have done and it's
25 really important for me as a person with a disability to

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1 know that these people that have been violating my civil
2 rights.
3 I'm not going to reiterate that I was arrested
4 four times between August and February in 2012 and found
5 not guilty. That's absurd. But now they're doing it again
6 and they're going to keep doing it again until somebody
7 stops them. And the way that we're going to stop them is
8 by addressing that what they've done is a violation of the
9 Americans with Disabilities Act. It's a violation of ORS
10 659A.142.
11 And I'm a person with a disability and right now I
12 could be doing anything else but this with the exception,
13 with the time yielding aspect is the City of Portland keep
14 abusing me and the district attorney keeps supporting them.
15 And we have the Department of Justice has already sued the
16 City of Portland. There's a settlement agreement.
17 I firmly believe that my interaction with the
18 Portland Police on these dates what this trial is about
19 breached that settlement agreement. I think that's part of
20 the attitude why they insist on prosecuting this case,
21 because they know that they really, really messed up badly
22 on every level and they just picked the wrong guy. I've
23 beat them in court too many times for them to be happy
24 about it. And they beat me physically for too many times
25 for being allowed and to continue to abuse me.

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1 So I'm just sharing as much as I can. I'm going
2 to sit down and let you digest what I've just processed.
3 MR. MCMAHON: And Your Honor, I think that's a
4 really good example of the sort of tangential diatribe and
5 I'm really concerned about the jury seeing and hearing. If
6 that's the defense that's being offered, almost none of
7 what was said is relevant to the case at large and it
8 introduces unsubstantiated allegations totally unconnected
9 to the facts in this case and it goes to specific instances
10 that occurred that are not relevant.
11 And for that reason, Your Honor, I'd ask that the
12 Court instruct that he limit his testimony. He can talk
13 about his attitudes toward the Portland Police, but he
14 can't go into specific instances.
15 THE COURT: He can talk about what? You were --
16 MR. MCMAHON: His attitudes toward the police,
17 generally. That's, you know, his opinion. But going into
18 specific instances, I think it's wholly improper and I
19 think, you know, talking about just very generally they
20 beat me or they did this or they, you know, weren't
21 protecting me, I think he said they weren't protecting him
22 against a restraining order, or there were a lot of sort of
23 unconnected things in there and none of that information is
24 relative to the case at large and it's prejudicial for the
25 jury to hear it.

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1 I would ask that the Court limit that testimony to
2 what is relevant to the case at large.
3 MR. KELLEY: The prior contact is not just on the
4 part of Mr. Stull, but these police officers know Mr.
5 Stull, and the reports we've received indicate how they,
6 you know, what they were thinking, what they were saying.
7 As they approached City Hall they were reporting that there
8 was a mental health case at City Hall and that they know
9 it's Barry Stull and he's really fired up today.
10 These police officers know Mr. Stull. And their
11 prior contact with him and their behavior towards him --
12 THE COURT: The question is whether it is relevant
13 to the elements of the crime --
14 MR. KELLEY: Yes. I understand.
15 THE COURT: -- charged or defenses offered.
16 MR. KELLEY: Yes, right.
17 THE COURT: This isn't the time to tell me lots of
18 facts.
20 THE COURT: It's the time to explain why it has a
21 bearing on the specific charges.
22 MR. KELLEY: Certainly. Well, the lawfulness of
23 the arrest is relevant for one thing. We have provided
24 notice to the State of four defenses that we've raised and
25 provided written notice, Your Honor, of self-defense, self-

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1 defense during arrest, duress, and choice of evils. And
2 the instruction for self defense during arrest includes the
3 police officer, his knowledge of whether it was a lawful
4 arrest and that gets into the legality of the trespass and
5 the legality of the trespass's region. Because here, this
6 is the State's burden to disprove, the State has to
7 disprove here -- the police officer's justified using
8 physical force on a person being arrested, when and to the
9 extent he reasonably believes it is necessary to make an
10 arrest unless he knows that the arrest is not lawful.
11 So that goes into the lawfulness of the trespass
12 exclusion, the police officer's knowledge of that and
13 there's a line of cases regarding trespass Mr. Stull needs
14 to know that he was lawfully trespassed as well.
15 THE COURT: No, I don't believe that that is the
16 case for an arrest. I don't believe that you're entitled
17 to resist an arrest merely because you don't believe that
18 you're guilty of the charge. I think it's quite clear that
19 you are not entitled to resist an arrest because of that
20 belief.
21 So the question is whether or not there is, we
22 have apparently lots of available testimony about past
23 cases and actions, but the question is whether they have a
24 bearing on a specific issue here. And the specific issue
25 you're saying is intent of what?

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1 MR. KELLEY: Well, there are three --
2 THE COURT: I mean it doesn't really --
3 MR. KELLEY: --different reasons we think the
4 prior history is relevant, Your Honor. They include one is
5 the specific defense that's in Uniform Criminal Jury
6 Instruction 1116, Defense-Physical Force-Involving Peace
7 Officers. Simply because someone's being arrested they
8 don't forfeit all their rights to self-defense.
9 THE COURT: Well, that's not the instruction.
10 MR. KELLEY: And of course there's a rule that if
11 it's an illegal arrest it's not a defense then. I don't
12 dispute that.
13 MR. MCMAHON: Me either, Your Honor.
14 MR. KELLEY: But it is also true that police can
15 only do that -- they cannot use physical force. I'm just
16 read -- I've read the instructions, I don't need to read it
17 again. But we do believe the lawfulness of the trespass is
18 relevant for that defense.
19 THE COURT: But what we're talking about here is
20 not that. It's about a succession of encounters and other
21 cases which were resolved in one way or another, but other
22 cases. So the question is whether those prior incidents
23 have anything to do with the specific issues in this case.
24 MR. KELLEY: Fair enough. And I think we would
25 intend to inquire about his physical condition and his

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1 medical condition, how much was known to the police because
2 they are well acquainted with Mr. Stull and his medical
3 condition.
4 THE COURT: And that has bearing on whether or not
5 he unlawfully and intentionally and knowingly caused
6 physical injury to Todd Engstrom or whether he unlawfully
7 and intentionally resisted Todd Engstrom, or whether he
8 unlawfully and intentionally damaged personal property, how
9 does that bear on that?
10 MR. KELLEY: We believe it bears on his ability to
11 form intent whether he was acting intentionally. There is
12 a line of cases including an Oregon Supreme Court case,
13 State v. James Newman. We'll be requesting the voluntary
14 act instruction, whether he was able to, you know, whether
15 this was a controllable outburst or not, and the police
16 officer's knowledge of his medical condition would be
17 relevant to that particular --
18 THE COURT: Among the many things Mr. Stull
19 referred to is a variety of other arrests in which those
20 arrests were dismissed. How would that have a bearing in
21 showing his medical condition or these police officers'
22 knowledge of it?
23 MR. KELLEY: I don't submit that each and every
24 one of those is admissible, Your Honor. And I would
25 suggest that I would trust the Court and the State to

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1 object and the Court to make its ruling as we go.
2 THE COURT: Okay. I'm going to make a ruling now
3 because I don't want to have the case, you know, the same
4 arguments throughout. So I am going to rule that prior
5 incidents involving the Portland Police are not going to be
6 allowed unless outside the absence of the jury there is an
7 offer of proof showing a relevance specific to this, so I
8 will know what the evidence is before I allow it in and the
9 specific issue that it's going to be here for.
10 MR. KELLEY: Would you like to address the evening
11 prior particular?
12 THE COURT: So if there -- yeah. If there is any
13 argument or evidence of that sort I'll need to see the
14 evidence first before I determine whether it's allowable.
15 MR. STULL: Okay.
17 MR. STULL: Your Honor, the video, I'll assume
18 that you haven't seen it. There's -- oh, it might be 20
19 minutes long for there's a part 1 and a part 2, but in that
20 as I am talking to one of the police officers the other one
21 is basically suiting up. He's putting on his rubber
22 gloves. He comes up and he grabs on to me. All those
23 things happened before the arrest.
24 So as the person seeking medical treatment and
25 instead getting physical contact which escalates to abuse

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1 pretty quickly with the Portland Police officers, once
2 again a triggering event for my disability and the issue as
3 a defense is the Americans with Disabilities Act and the
4 ORS 659A.142, and then you get into administrative rules
5 which I don't even want to clog your concentration with how
6 complicated that all is.
7 But the point is that there needs to be a
8 meaningful interactive inquiry as to what my reasonable
9 accommodation to my disability is under those situations,
10 and part of that inquiry and expressed on the video is me
11 saying I have my medical records here; I need an ambulance.
12 And there was none of that obtaining, to correct the
13 misunderstanding that the Portland Police actually said
14 that I was off my medication as a person with a mental
15 illness, and I've never been prescribed a medication as a
16 person with mental illness.
17 So the Portland Police have this complete
18 construction in their own entity of who I am. And that
19 really bothers me because one of the witnesses that Mr.
20 Kelley has secured is a Portland Police officer that
21 appeared the day before on November 25th on the transit bus
22 when I was kicked by a woman, and we're going to find out
23 from him that no, there's no police report. I have the
24 documentation from TriMet, no, there's no secured video.
25 So the fact that I was kicked on a crowded bus in

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1 front of a bunch of people, the Portland Police say it
2 never happened. And so the next day --
3 THE COURT: I suspect --
4 MR. STULL: Right, so --
5 THE COURT: -- that there's going to be an
6 objection to that testimony and I would like to know
7 legally how that bears on the particular charges here. We
8 only have three charges as I understand it.
9 MR. STULL: Right.
10 THE COURT: Resisting arrest, the interference
11 with the police officer, assault, actually assault --
12 MR. STULL: Attempted assault.
13 THE COURT: -- of a public safety officer --
15 THE COURT: -- and criminal mischief in the second
16 degree.
18 THE COURT: So the fact you were kicked the day
19 before on a transit bus and you didn't receive the
20 protection for it, how does that either justify or explain
21 or negate those particular charges?
22 MR. STULL: Oh, I can address them one, two,
23 three.
24 THE COURT: Do it -- yeah.
25 MR. STULL: Okay. Perhaps best expressed by the

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1 Oregon Supreme Court in State v. Gaines which is what we
2 used upon interpreting the statute. They talk about in
3 that case about how passive resistance is not resisting
4 arrest. It's a matter of the statutory language of
5 resisting arrest.
6 THE COURT: Well, I understand that because it's
7 in the statute.
8 MR. STULL: Right.
9 THE COURT: But the fact that you were kicked the
10 day before doesn't show whether you were passive in the
11 arrest or not.
12 MR. STULL: Oh, no, no, no. The fact that I was
13 kicked the day before was just one of the three distinct,
14 extremely stressful events that I had on the morning of the
15 24th which is why I went to City Hall, the Office of
16 Neighborhood Involvement, to request a Multnomah County
17 Health Department medical transport to my home which was
18 then conflated into me demanding a city service that
19 doesn't exist which was then used as the basis to create
20 the trespass exclusion.
21 And like I said, I can bring witnesses to prove
22 that everything that I'm saying is true. And so the
23 overarching situation is the Americans with Disabilities
24 Act Title II prohibits discrimination by the State of
25 Oregon, by Multnomah County, by the District Attorney, by

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1 the Portland Police through the City of Portland. All
2 those things are civil rights that I have and none of these
3 actions can be legal if they're illegal.
4 THE COURT: Well, what is the issue here is
5 whether it was -- whether it had anything to do with
6 damaging property in the police car -- go in the other
7 direction.
8 MR. STULL: Sure.
9 THE COURT: Whether it had anything to do with the
10 charged assault on a public safety officer.
11 MR. STULL: Well, that was the felony that was
12 dismissed.
13 THE COURT: Or whether entitled you to arrest if
14 you did, or whether you did or didn't resist arrest.
16 THE COURT: You mentioned passive resistance and
17 I'm not too sure where that figures in, because what's
18 charged is resisting and under the statute resisting
19 doesn't include passive resistance. So if there was
20 passive resistance that's not going to be illegal under
21 that statute.
22 But the fact that you had been kicked the day
23 before doesn't, to me I just don't see that as bearing on
24 whether you passively or actively resisted nor do I see the
25 Americans with Disabilities Act actually moderating or

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1 changing the question of whether you can actively resist an
2 arrest. So I must say I really do not understand the
3 argument and --
4 MR. STULL: Can I express it again?
5 THE COURT: Yeah, go ahead.
6 MR. STULL: I'll try again. We have to start at
7 the beginning. I have a physiology. It's a neurological
8 condition.
9 THE COURT: Okay, granted. I got that.
10 MR. STULL: And that as we saw here even on
11 Friday, I get triggered and that changes my physical well-
12 being and that leads to these trips to the emergency room
13 such as the one where my pulse was 175 (indiscernible) back
14 in 2011. So at the time at City Hall I did not resist
15 arrest. I countered the fact that the Portland Police
16 interfered with my getting an ambulance.
17 And I now know by looking at the 911 dispatch and
18 hearing the audio that when I requested, maybe five or ten
19 minutes before the police came on the scene I requested an
20 ambulance and had they actually called 911 that ambulance
21 would have been there and I would have been gone with the
22 paramedics before the police even got on the scene.
23 So on the video I'm repeatedly saying where is the
24 ambulance, where is the ambulance, because I went to
25 Emanuel Hospital Sunday evening. I'd been there on Friday

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1 morning, both times being treated for central pain
2 syndrome. And on my day before I had yet another stressful
3 event and another stressful event and another stressful
4 event which triggered me, and when I went to the Office of
5 Neighborhood Involvement simply to inquire as to getting a
6 ride to my home like I saw my neighbor getting a ride that
7 morning in Multnomah County Health Department medical
8 transport, instead I got the security and their complete
9 fairy tale about what I was doing and what my state was and
10 they actually made me sicker, and I thought frankly that
11 they were going to be decent and they weren't on the next
12 morning.
13 And so when I see a police officer once again
14 interfering with my access to medical treatment by putting
15 on rubber gloves, by coming up and physically embracing me
16 -- I had one other officer prior to that put his hand on my
17 chest. Well, I'm talking to Mr. Kelley and he's not
18 putting his hand on my chest because he's not coming from a
19 position that I'm dangerous, and I'm not.
20 However, when I have a condition that could lead
21 to critical, you know, my heart failure, my circulatory
22 failure and they escalate and escalate and physically abuse
23 me, I say I'm not resisting you and they use a pain
24 compliance hold which then triggers me and then they put me
25 in the police car, lock the door and walk away, I am not

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1 going to die in that police car because of the overwhelming
2 amount of adrenalin that's in my system and I vented it by
3 breaking that police car, saved my life.
4 Because flight of fight means two things: you run,
5 which you can't do in a police car; and fight, which you
6 can't do against people without being violent. However,
7 breaking the police car really does vent a lot of emotional
8 stress. We know that people actually have businesses that
9 some places where you pay to go in and smash things because
10 you feel better after you do that.
11 I'm not allowed to use violence. I don't use
12 violence. But I'm not allowed to die because the Portland
13 Police interfere with my access to medical treatment for my
14 well known condition, mislabel me as a person with mental
15 illness. At one point one of the dispatchers is referring
16 to me as the drunk guy for all -- it's incredible what
17 they've done to my reputation in this city.
18 And I'm just trying to save my life, not be
19 triggered here or anywhere else, and not be -- one, they
20 set off my disability; two, interfere with my access to
21 medical treatment; three, physically abuse me; and four,
22 denying me medical treatment once I get into custody and to
23 boot they tell the jail staff-- in 2012 they told the jail
24 staff I refused medical treatment when they kept me from
25 getting the ambulance. This time they just simply said I

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1 was uncooperative. So the jail staff takes me as that
2 person and then they want you to, they talked to me about
3 my medical condition.
4 THE COURT: Well, you can testify or you can have
5 other testimony as well about the things that happened in
6 this incident, in the arrest, and how you were feeling and
7 your medical condition and your reactions in this arrest,
8 the reasons that you did whatever you did, whatever it was
9 to me that you did in the police car, you can testify to
10 all that.
12 THE COURT: I am going to exclude, however,
13 testimony about other previous incidences with the police
14 or with the transit authorities or people when they had
15 kicked you in the car. So we're going to be talking about
16 this event. And all of those --
17 MR. STULL: However, this event starts with them
18 claiming that I did things the day before to exclude me
19 that I didn't actually do. What I did do was I got sick on
20 the 24th of November. I was quite ill and that's why I
21 went to City Hall, to call the -- to go to the place where
22 it says city/county information on the business card to
23 inquire after a county service that does exist rather than
24 the city's portrayal that I demanded a city service that
25 doesn't exist.

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1 THE COURT: I don't think that the reason for the
2 trespass having been issued by the city is what we're here
3 to try. We're not here to try whether that was an
4 appropriate trespass order. That whole charge of that
5 trespass has been dropped. So the question is whether it
6 was a legal arrest or the incidents of the arrest in the
7 end.
8 MR. KELLEY: If I could interject briefly perhaps.
9 Your Honor just asked how prior incidents are relevant to
10 pending charges, and we would submit that in a more general
11 sense the experience of these officers who are going to
12 testify with Mr. Stull is relevance because before they
13 even got into the scene they were exchanging communications
14 over the call data dispatch that it's Barry Stull and he's
15 fired up today. He's holding up the meeting.
16 Barry Stull is off his meds, have mental health
17 personnel respond to the location. So they'd drawn these
18 conclusions before they ever got to the scene and they're
19 making reference to prior contact with Mr. Stull. So they
20 had already formed some conclusions before they even got
21 there that night. So for that reason we believe their
22 prior experience with Mr. Stull and the assumptions that
23 they were working from before they even arrived are
24 relevant. They got him there before and that he's got a
25 known history of mental illness.

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1 THE COURT: I'm not saying that their attitudes
2 in, and their assumptions and their intent and so forth in
3 this incident are irrelevant, I'm saying they are relevant.
4 I'm just saying that years of interaction with the police
5 are not --
6 MR. KELLEY: Got to draw the line somewhere.
7 THE COURT: -- and kicking on the transit bus is
8 not.
9 MR. KELLEY: I understand, Judge. We do intend to
10 inquire about their prior --
11 THE COURT: -- and the fact that the transit
12 officer didn't react to it that's not relevant.
13 MR. KELLEY: Understood, Judge. Thank you. I
14 think I understand the Court.
15 THE COURT: Okay.
16 MR. MCMAHON: And Your Honor, sort of the final
17 motion that the State does have is essentially something that
18 was sort of indicated by Mr. Stull and that's references to
19 the Americans with Disabilities Act and essentially his, what
20 is the legal argument and what I would say a scurrilous one
21 that essentially because of the provisions of the Oregon's
22 and the Americans with Disabilities Act that somehow the
23 actions of the police were illegal, that's not properly a
24 matter to do with the Court. That is not something that the
25 jury should consider that as a matter of law and one of fact,

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1 and that is potentially, meaning not that I think there's a
2 valid claim there, but the proper avenue to raise a claim on
3 the Americans or Oregonians with Disabilities Act is a civil
4 suit not a criminal one.
5 And I think that Mr. Stull's interpretation of the
6 provisions of the Americans with Disabilities Act as well
7 as what constitutes a reasonable accommodation is in no way
8 relevant to the facts that are here. If we get sort of off
9 into the legal weeds about, I think it was like ORS 650 or
10 something to that extent regarding, you know, what
11 provisions mean or what a reasonable accommodation means
12 that has absolutely no bearing on the facts in today's case
13 and the charge that Mr. Stull faced.
14 So for those reasons I think that this should be
15 properly excluded and that they're both irrelevant and a
16 question of law that the jury is not to consider.
17 MR. STULL: Your Honor, the case that's precisely
18 on point is State v. Marbet, and that case happened to be a
19 criminal trespass case.
20 THE COURT: I'm familiar with State v. Marbet.
21 MR. STULL: And in that opinion --
22 THE COURT: I didn't know that it had anything to
23 do with the Americans with Disabilities Act.
24 MR. STULL: Pardon?
25 THE COURT: I didn't know that it had anything to

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1 do with the Americans with Disabilities Act.
2 MR. STULL: Yes, it does actually. The issue in
3 that case was, of course they were discussing the
4 lawfulness of the arrest of Mr. Marbet at a Public
5 Utilities Commission hearing and challenging the lawfulness
6 of the trespass, which the defendants did, because there's
7 elements of trespass. It has to be the person in charge
8 and all those things, they're in the statute.
9 THE COURT: Right.
10 MR. STULL: And what the court adopted in the
11 written opinion is the appellant I believe, because of
12 course the defense was appealing the conviction. The
13 appellants said that if a restaurateur wanted to not have a
14 person with a disability in their restaurant because it
15 upset the other customers, they couldn't use the trespass
16 because using the trespass would actually inviolate the
17 laws preventing disability discrimination.
18 THE COURT: That goes to the legality of the
19 trespass charge. That's not what we're litigating here.
20 MR. STULL: Today we're dealing with the same
21 thing if --
22 THE COURT: No, we're not.
24 THE COURT: We're not dealing with the legality of
25 the trespass.

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1 MR. STULL: No, no, no.
2 THE COURT: And that's a really important point,
3 because a lot of what you're saying deals with whether the
4 city could trespass you. We're not dealing with that.
5 MR. STULL: No, excuse me, Your Honor. That's not
6 the point of law that I'm trying to point out. I'm saying
7 that in order for the police to act legally with the person
8 with the disability, they cannot lawfully do something that
9 is unlawful if it violates the person's civil rights as the
10 person with the disability.
11 THE COURT: I don't think that's what that says.
12 MR. STULL: Which one?
13 THE COURT: The trespass -- in State v. Marbet.
14 The trespass is the fact that the person in charge, not the
15 police, has excluded the person --
17 THE COURT: --and the question's the legality of
18 the exclusion of the person then questions the action of
19 the person in charge.
21 THE COURT: It does not modify the legal authority
22 to the police to make an arrest or how they can make an
23 arrest.
24 MR. STULL: If I could --
25 THE COURT: The Americans with Disabilities Act

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1 does not do that.
2 MR. STULL: Yes, Your Honor, in fact it does. If
3 I can first kind of lump the ORS 659A.142 which is the
4 discrimination by places of public accommodation and a
5 disability discrimination by state government. In 2009,
6 the Oregon legislature amended ORS 659A.139 so that the
7 Oregon statutes would be interpreted as the equivalent
8 statute under the Oregon's -- excuse me -- Americans with
9 Disabilities Act.
10 So what happened was the Americans with
11 Disabilities Act was passed in 1992, I believe, and then
12 after some Supreme Court case law the Congress in 2008 said
13 no, this case law is against the intent of Congress and
14 then they rewrote via what we call the ADAA of 2008, which
15 is expressly said in ORS 659A.139 that that's the way we're
16 going to interpret the Oregon law.
17 And Oregon, because we have the Bureau of Labor
18 and Industries as an executive branch agency that enforces
19 the disabilities statutes, the enabling statute, the most
20 obvious one would be ORS 659A.001, definitions of statutory
21 defined terms. Number 12 defines an unlawful act to be
22 something -- an unlawful practice, excuse me. An unlawful
23 practice is something that violates a Bureau of Labor and
24 Industries administrative rule which then goes back of
25 course to the ADA as the model.

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1 So Oregon's very complex situation is the
2 legislature empowered Bureau of Labor and Industries to
3 enforce the statute, and in that enabling statute they
4 allowed the Bureau of Labor and Industries to formulate
5 rules that enforce and interpret ORS 659A and a violation
6 of those rules is by statutory definition an unlawful
7 practice. So then we have to get into what those
8 administrative rules are.
9 But the point is that government agency or the
10 public accommodation has to do an inquiry. It's an
11 interactive process to kind of go with some of the lingo,
12 and the terms reasonable modification and reasonable
13 accommodation are enforced similarly.
14 I did give the case law, 9th Circuit federal court
15 cases there's a McGary v. City of Portland is one of them
16 and the other one is Duvall versus -- oh, the Puget Sound
17 Transit or whatever it is. But the point is, is there has
18 to be an accommodation.
19 And one of the things that takes the right, I'll
20 say, the civil rights of the ADA, they don't -- you can't
21 have them if the person, the individual with the disability
22 is a direct threat to basically public health and safety or
23 whatever that says in the ADA language which appears also
24 in the Oregon Administrative Rules.
25 But even that direct threat status has to be done

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1 after everything all the steps have been taken that can
2 mitigate that direct threat. And here we don't have any
3 interaction, we don't have any inquiry. The medical
4 records were available on the scene. The Portland Police
5 instead decide to not engage in that mandatory interactive
6 process as a place of public accommodation, but instead
7 they arrested the person with the disability and then
8 prevented that person from having access to what would be a
9 gooder service, call 911 and get me an ambulance -- I'll
10 get out of here but I don't want to die. So you don't want
11 me here, fine, call me my ambulance.
12 I could die from having my condition be triggered
13 by the fact that they're even trying to enforce the
14 exclusion, which as I already said was subsequently found
15 unconstitutional on its face, that section of the code. So
16 to kind of say what the --
17 THE COURT: The fact, and if it comes up I'll have
18 to instruct the jury because it's a matter of law that the
19 subsequent determination that the statute was
20 unconstitutional --
21 MR. STULL: Oh, no, no. I know that already.
22 THE COURT: -- does not excuse resisting arrest.
23 MR. STULL: I know all that.
24 THE COURT: You know that.
25 MR. STULL: Yeah.

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1 THE COURT: But if it comes up I will be
2 instructing the jury so that they also understand that that
3 really doesn't have anything to do with the charges here.
4 MR. STULL: I understand that. But what I am
5 saying as the defense, following not on Marbet as a
6 trespass case is that law enforcement actions are limited
7 by the status of the person with the disability. And maybe
8 I can illustrate it this way. If somebody was having a
9 seizure on the floor because of diabetic or epilepsy and a
10 police officer says stand up and show me your hands that
11 person wouldn't physically be able to do that.
12 THE COURT: That's right.
13 MR. STULL: Right? So --
14 THE COURT: But that's not because of the
15 Americans with Disabilities Act, that's because a criminal
16 act requires a voluntary action or a voluntary inaction.
17 Are you asserting here a defense of that sort that you were
18 physically incapable of complying or would that -- is that
19 an issue?
20 MR. STULL: That of course is going to come into
21 play, but what I'm suggesting and what I'm trying to
22 illustrate to the Court is if the options are providing the
23 person the ambulance by calling 911, which apparently
24 nobody did for maybe ten or fifteen minutes, but if it's to
25 provide the person the ambulance or provide the person

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1 police contact and physical contact that certainly isn't
2 that interactive inquiry, it's not the direct threat has to
3 have the mitigation.
4 I have my medical records on me then as I have
5 now, and if anybody wants to know I can show them a piece
6 of paper and almost everybody in the room here would
7 believe that. Some people wouldn't. And I can't be
8 responsible for the fact that you know, Schmidt v. Safeway
9 is a very old case that says that the required reasonable
10 accommodation interactive process is triggered by the
11 person with the disability saying that they have a
12 disability, the party learning from observation that the
13 person has a disability -- which watching this video it's
14 obvious -- and third is that the person's status as the
15 person with the disability is informed by a third party.
16 So to illustrate, I could say Mr. Kelley has a
17 disability or he could say it or you could see that he has
18 it. And if that happens then the reasonable modification,
19 reasonable accommodation, like I said already, the 9th
20 Circuit has already interpreted those laws under the ADA of
21 those terms to be interpreted exactly the same, the same
22 thing under a different title.
23 But that interactive process and that searching
24 for the facts, particularly the individual in that exact
25 setting; that never happened at all. And so that forms the

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1 basis that if we're going to live in a society that follows
2 the Americans with Disabilities Act and Oregon's laws --
3 and I have to get this in, Your Honor. Oregon's statutes
4 provide for punitive damages for violating it, right, and
5 so that's a serious thing.
6 THE COURT: Of course it is. But it's not an
7 issue because those are punitive damages awarded in a civil
8 proceedings. This is a civil proceedings, but the jury's
9 not going to be asked about punitive damages.
10 The question is --
11 MR. STULL: No, no, no. Look, I'm not suggesting
12 that.
13 THE COURT: -- what is the effect on the
14 particular charges here. And I'm not finding any authority
15 that the Americans with Disabilities Act or the Oregon
16 analog limits or affects procedures that can be taken in
17 arrest, if it's a legal arrest.
18 MR. STULL: And I'm saying following Marbet it
19 can't be a legal arrest if it violates the person's civil
20 rights as a person with a disability and --
21 THE COURT: Marbet concerns not whether the arrest
22 was legal; Marbet concerned whether the order by the person
23 presiding, not the police officer but the PUD hearings
24 officer --
25 MR. STULL: Yeah, sure.

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1 THE COURT: -- could exclude a person appearing in
2 a hearing. They held that person --
3 MR. STULL: I agree with that opinion, Your Honor.
4 THE COURT: -- could not be excluded. But it
5 doesn't tell us that the police could not make an arrest if
6 it's otherwise legal.
7 MR. STULL: And I'm saying it's not otherwise
8 legal because it violates the required and missing
9 completely required interactive inquiry. They have to --
10 THE COURT: And I'm saying that I'm not finding
11 any authority --
12 MR. STULL: And I would like to the opportunity to
13 brief you with that.
14 THE COURT: -- that the Americans -- well, you can
15 provide me with that authority --
16 MR. STULL: I will brief you on that, Your Honor.
17 THE COURT: -- that the ADA requires police
18 officers to adopt a different kind of procedure in making
19 arrest than they would otherwise.
20 MR. STULL: It requires every public accommodation
21 and every state government, it requires everybody to follow
22 the ADA because we have a public policy that disability
23 discrimination -- in Oregon the statutory language is that
24 disability discrimination is a menace to the institutions
25 of a democratic society -- they use the word menace -- that

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1 that's why we have a public policy set out in ORS 659A.103.
2 It's the policy of the State of Oregon that
3 persons with disabilities have access to facilities, they
4 have access to goods and services, and they can't have
5 those accesses to goods and services if they get sick and
6 instead of getting the accommodation they get arrested.
7 That's not -- that's the essence of disability
8 discrimination is to arrest somebody who's having a
9 limited, having a limitation by their disability.
10 I'll brief you on this, Your Honor. I think we
11 should probably move on just for the pending, the time's
12 ticking I'm saying.
13 THE COURT: Yeah. But for the purpose of this
14 we're not going to have -- the jury isn't going to make a
15 decision what the Americans with Disabilities require.
16 That's not a jury issue. That's a legal issue.
17 MR. STULL: If I can --
18 THE COURT: And well, that's what it is. So we're
19 not going to have an argument to the jury about whether the
20 Americans with Disabilities Act was or was not complied
21 with here unless you satisfy me in advance --
22 MR. STULL: And I intend to do that.
23 THE COURT: -- that it is a --
24 MR. STULL: I intend to do that.
25 THE COURT: -- defense to the charge of resisting

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1 arrest or a defense to the charge of assaulting a police
2 officer or a defense to the charge of criminal mischief.
3 MR. STULL: The problem that we have, Your Honor,
4 is Mr. McMahon submitted an advisory to the court about how
5 long it would take to do this trial and he mentioned a
6 four-hour appearance in front of Judge Bushong.
7 And Judge Bushong heard -- I don't believe it was
8 four hours, I think it was actually two and a half hours.
9 But anyhow at that May hearing his determination was that
10 he couldn't rule on the disability discrimination because
11 he wasn't the fact finder. That was something that the
12 jury would have to decide. So now we have this --
13 THE COURT: Well, that's his opinion about that.
15 THE COURT: But he's no more of the judge than I
16 am and I am no less of a judge than he is. So his view of
17 that is his view of that but it doesn't mean I have to
18 follow it. I want you to tell me what provision of the
19 Americans with Disabilities Act or the Oregon analog
20 relates to actions of police arresting or the rights of
21 people when arrested.
22 MR. STULL: Yeah.
23 THE COURT: It is generally about public
24 accommodations and public services, and accommodations and
25 public services don't usually include what we're talking

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1 about here. So I want you to point to me any authority
2 that you have that is relevant.
3 MR. STULL: Duvall. It's --
4 THE COURT: Well, no, no, no. Don't just say a
5 word. Just give me a citation and I'll look at it.
6 MR. STULL: Okay. I've already mentioned that I
7 provided this to Mr. Kelley and Mr. McMahon. But it
8 expressly --
9 THE COURT: Good. Give it to me.
10 MR. STULL: -- says police policies in the 9th
11 Circuit Court of opinion in the Duvall case.
12 THE COURT: Appeals. Then give me the citation.
13 MR. STULL: Certainly, yeah.
14 THE COURT: Yeah, and your advisor can help you
15 with writing out the way it's cited so I can look at it and
16 see if it's --
17 MR. KELLEY: Do you know the name of the case --
18 Duvall?
19 THE COURT: -- and see if it -- right.
20 MR. STULL: Duvall.
21 MR. KELLEY: D-u-v-a-l?
22 MR. STULL: Two Ls.
23 THE COURT: And if I can do it.
25 MR. KELLEY: The case that he's directing me to,

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1 Your Honor, is Duvall v. County of Kitsap, ADA --
3 MR. STULL: I can get you the specific quote as
4 soon as I send it to you.
5 THE COURT: And what's the citation?
6 MR. KELLEY: This is a 9th Circuit Court case,
7 number 99- --
8 THE COURT: Well, do have -- is it a published
9 case?
10 MR. STULL: Is it --
11 THE COURT: Give me the publication.
12 MR. STULL: I have the citation, Your Honor.
14 MR. STULL: I have the citation. I just have to
15 look it up on my laptop. I have that case.
16 THE COURT: Well, I need the citation.
17 MR. STULL: Yeah, I have that.
18 THE COURT: I can't look it up.
19 MR. KELLEY: 260 F. 3d 1124.
20 MR. STULL: Got 1126. Did you say 34 or 24?
21 MR. KELLEY: 24 is where it starts.
22 MR. STULL: I have the exact location here, Your
23 Honor, and I'll -- if this is how and when you want that
24 citation, like I said I'll be able to have --
25 MR. KELLEY: I may not have it correct, though.

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1 I'm sorry. That's just what I came up with. So if you
2 have it --
3 MR. STULL: I have it --
4 MR. KELLEY: (indiscernible).
5 MR. STULL: -- exactly right here at -- Your
6 Honor, what I did is I sent them the case cite and then I
7 went to the law library and looked it up on the paper
8 version and got the actual page number.
9 THE COURT: I've got it up on my computer now.
10 MR. KELLEY: I gave her the right cite.
11 MR. STULL: I think I have it in here.
12 Oh, excuse me, Your Honor. The limitations on
13 police policies is actually under McGary v. City of
14 Portland.
15 THE COURT: All right, what's that citation?
16 MR. STULL: And as -- if you could find that.
17 But I'll just give you the quote that kind of like
18 bolsters my --
19 THE COURT: No, don't read to me a quote. I
20 really don't absorb information that way. So just give me
21 the citation so I can read it.
22 MR. KELLEY: The federal case is the one you want,
23 McGary; is this the one?
24 MR. STULL: Yes.
25 MR. KELLEY: The McGary case he's referenced is

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1 386 F.3d 1259, 2004.
2 THE COURT: 386 F.3d at --
3 MR. KELLEY: 1259, McGary v. City of Portland.
4 MR. STULL: And the pertinent part, Your Honor, is
5 where they're referring in that text to the Technical
6 Assistance Manual which specifically says the changes in
7 policies that result in discriminatory arrests and abuse of
8 individuals with disabilities. That's right there in the
9 case of McGary versus the City of Portland.
10 The reason I was confused regarding the Duvall
11 case is that it follows up on that saying what the public
12 entity has the duty to engage in that interactive process
13 to find the pertinent facts that are important to making
14 the determination whether reasonable accommodation is
15 possible. And --
16 THE COURT: In the McGary case --
17 MR. STULL: Um-hum.
18 THE COURT: -- since we're talking about it --
19 MR. STULL: Yes.
20 THE COURT: -- to go back to it, is this the case
21 that you're referring to, the individual contended that the
22 city discriminated against him on the basis of his
23 disability when it denied his request for additional time
24 to clean his yard and --
25 MR. STULL: Right. That's the case.

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1 THE COURT: -- to comply with the city's nuisance
2 abatement ordinance?
3 MR. STULL: Right. That's the case, Your Honor,
4 but that's not the part of the case that counts here. This
5 of course has nothing to do with the yard or a person that
6 -- no, what it has is the Americans with Disabilities Act,
7 like I said they have an obligation by policies, practices
8 and procedures that requires law enforcement to make
9 changes in policies that result in discriminatory arrests
10 or abuse of individuals with disabilities. And it goes on
11 to cite 28 C.F.R. Pt. 35.
12 THE COURT: Yeah. Where are you in the case?
13 Could you just give me the pinpoint cite?
14 MR. STULL: Did you find --
15 THE COURT: I have the case, but give me the --
16 MR. KELLEY: Can you give her a number, a
17 paragraph number?
18 THE COURT: No, I didn't get the page number.
19 MR. STULL: I can --
20 MR. KELLEY: It begins at 1259.
21 MR. STULL: I don't have --
22 THE COURT: Well, that's when the case begins.
23 But if you're citing a portion of it --
24 MR. KELLEY: Right, right.
25 THE COURT: -- that's what I was trying to get to

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1 quickly.
2 MR. STULL: I don't have -- I believe Mr. Kelley,
3 if he's looking at the 1259, I think that's what it --
4 THE COURT: That's the beginning.
5 MR. KELLEY: Which part are you quoting for the
6 Court, is her question.
7 MR. STULL: The paragraph starts with the
8 regulations specify. That's the paragraph and then it says
9 down here -- that is the paragraph, and it says the
10 discriminatory arrests.
12 MR. STULL: Right, and abuse of personal --
13 MR. KELLEY: Well, for her that's what you find,
14 the part you wanted her to consider, paragraph 34?
15 MR. STULL: It's numbered in paragraphs wherever
16 Mr. Kelley's getting it. I have the page number.
17 THE COURT: Well, it's not in my copy. I just
18 need the -- yeah. Well, let's see.
19 MR. MCMAHON: Okay, I got it under Headnote 18,
20 Your Honor. I think it's that one it's at.
21 THE COURT: It's Headnote which?
22 MR. MCMAHON: Headnote 18, I'm looking at it on
23 Lexis. It's 1269.
24 THE COURT: Okay, I see what it's, I see what it
25 said. So it's really, the Department of Justice's

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1 commentary on the ADA establishes the general regulatory
2 obligation to modify policies, practices or procedures that
3 requires law enforcement to make changes in policies that
4 result in discriminatory arrests or abuse of individuals
5 with disabilities.
6 So that's -- okay, policies, practices, and
7 procedures that require that law -- and so there was a
8 claim there that didn't deal with the police but it does
9 quote that portion of the Technical Assistance Manual, of
10 the Department of Justice's commentary on the ADA. Okay.
11 MR. KELLEY: The part that he has directed me to,
12 Your Honor, I think Your Honor found it as well. It reads,
13 quote, moreover, the Department of Justice commentary on
14 the ADA establishes, quote, the general regulatory
15 obligation to modify policies; is that the same part?
16 MR. STULL: Yes.
17 MR. KELLEY: I just wanted to make sure we're all
18 on the same page.
19 THE COURT: Well, okay. So the question is
20 whether their policies or procedures discriminated against
21 people with disabilities; is that right? But that doesn't
22 get us to whether there was a reasonable accommodation in a
23 particular case, but their policies and procedures.
24 MR. STULL: Correct. Your Honor, if I could just
25 say it's 11 o'clock and I'm not doing as well as I was when

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1 I showed up here this morning. But please allow us to
2 brief you on this --
4 MR. STULL: -- so that we can, we can discuss this
5 with the quotes that I'm looking at here. Because the
6 Duvall case that I mentioned, Duvall v. County of Kitsap,
7 that had to do with a court thing, but the important part,
8 and once again I've shared this with counsel, both of these
9 gentlemen this morning. I gave that to them already.
10 And there's an obligation of the public entity and
11 it's a duty and there's no evidence of that duty at all
12 being recognized in the City of Portland. And it's
13 certainly in the 9th Circuit Court of Appeals opinion
14 interpreting the ADA, which I'd say would apply not only in
15 this circumstances, but is bolstered by as I mentioned the
16 Oregon statute that says to interpret those relevant
17 sections of 659A to be interpreted akin to the ADA. And
18 please allow us to brief you on this.
19 THE COURT: Sure.
20 MR. STULL: All right, thank you.
21 THE COURT: Yeah, maybe it would be a good idea if
22 we all took a break now so we can gather our strength for
23 the next session.
24 MR. MCMAHON: And how long, like I guess --
25 THE COURT: Morning break, 15 minutes is the

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1 length for the morning break. We should take it right
2 here.
3 MR. MCMAHON: Okay. Right, I wasn't sure if we
4 were going to like just break until 1:30 and give them time
5 to brief or just --
6 THE COURT: No.
7 MR. MCMAHON: Okay.
8 THE COURT: We'll just take 15 minutes and get
9 back to --
11 MR. MCMAHON: Thank you.
12 (Break was taken from 11:08 a.m. to 11:27 a.m.)
13 THE COURT: All right, I'm going to have some
14 further briefing I expect on the relevance of the ADA to
15 the particular issues in this case, and do we have another
16 matter to take up?
17 MR. MCMAHON: I think that's it. I want to kind
18 of go through it. There was the references to prior
19 arrests, the medical records that Your Honor's ruled on,
20 the Disability Act and I think we're still pending a
21 ruling.
22 THE COURT: On which?
23 MR. MCMAHON: The references to the Disabilities
24 Act. That's what we're pending.
25 THE COURT: That's -- yeah, we'll have some --

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1 MR. KELLEY: I would like Mr. Stull, he can brief
2 that and argue it at the most (indiscernible) potentially,
3 if that's acceptable?
4 THE COURT: Well, unless I'm satisfied that it has
5 a role for the jury then we're not going to hear of that.
6 So if you want to wait until then, then that's fine, but
7 then we're not going to have an argument to the jury about
8 any of it.
9 MR. KELLEY: I understand, Your Honor. Okay. Do
10 you understand that?
11 MR. STULL: No, I'm not clear on that point.
12 MR. KELLEY: Why don't you stand up and ask the
13 question.
14 THE COURT: Okay.
15 MR. STULL: Your Honor --
16 THE COURT: What I'm saying is I wanted to deal
17 with the questions -- it was raised as a motion in limine
18 which would restrict the amount of evidence on the case. I
19 have not been as yet persuaded that it is a defense or
20 relevant to the issues on the particular charges here.
21 It's without arguing because there wasn't any reason to
22 argue it to a point.
23 MR. STULL: Right, yeah.
24 THE COURT: That it relates to the policies and
25 procedure of discrimination or nondiscrimination, what kind

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1 of policies they have to have in place about discrimination
2 against people with disabilities.
3 So that -- yeah, sure. But that doesn't solve the
4 question of whether in a particular case it is something
5 that has to be dealt with as a defense or modifying whether
6 they can make an arrest or modifying whether a defendant
7 can assault a public safety officer or resist arrest or
8 commit criminal mischief.
9 So without knowing that it's going to have an
10 impact on the evidence in the case I'm not going to allow
11 that argument in about the policies and procedures. So
12 what was suggested is we'd have additional briefing and
13 then that would come later in the case. I'm just saying if
14 that's the way you want to do it that's fine, but until I
15 am persuaded that it has an impact on the particular issues
16 in these particular occurrences it's not going to come in
17 as general subject matter for the jury.
18 MR. STULL: That's fine, Your Honor, I understand.
19 And I can maybe expedite this whole court process by
20 distinguishing -- no, some of this stuff applies as a
21 defense to some of the charges and some of it doesn't apply
22 at all. There are other defenses like the choice of evils
23 defense and those kinds of things. So we'll get you that
24 in a brief probably tomorrow morning.
25 But it might, and before I get too far out of line

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1 here, my difficulty is Your Honor that I have a zero income
2 existence on house under a HUD grant and my bills are paid.
3 I don't have a dime to print out a page, so I'm hoping that
4 Mr. Kelley can facilitate that. But that's one of the
5 things that kind of plagues me is how easy it would be if I
6 had a hundred dollar bill in my pocket to just go down to
7 the law library and start printing stuff out and copying
8 stuff. And I don't have the funds because that's my
9 status.
10 THE COURT: Okay.
11 MR. STULL: So I'm just letting you know that
12 that's who I am.
13 THE COURT: Sure. If I just have the citations of
14 cases or sections of the statute that will --
16 THE COURT: -- show me what, how to understand
17 this that's fine. I don't need a particular form. I don't
18 need fancy paper. I don't --
19 MR. STULL: I'm starting to laugh, Your Honor,
20 because it's incredibly complex. It's incredibly -- you
21 have to go to the statute to look at the administrative
22 rules that are backed by the statute which are modeled
23 after the ADA which -- I'll give you all that stuff and
24 we'll just have to print it out. I have already done the
25 research on this obviously --

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2 MR. STULL: -- or I wouldn't be here talking about
3 it. Thank you.
4 MR. KELLEY: I think the only other preliminary
5 matter from the defense side that I'm aware of is
6 scheduling our witnesses. I have two scheduled for first
7 thing tomorrow morning. I would ask perhaps for permission
8 to bring them in Wednesday morning if that would be
9 acceptable.
10 THE COURT: I don't think there'll be any problem.
11 MR. KELLEY: Does that sound about right?
12 THE COURT: We talked a little earlier about
13 taking witnesses out of order. I do not have any problem
14 with taking witnesses out of order. We'll just --
15 MR. KELLEY: We've got two police officers and I
16 wouldn't want them to sit around all morning.
17 MR. MCMAHON: Yeah, because I have that one that I
18 was going to call Wednesday morning --
20 MR. MCMAHON: -- so I think we'll be doing
21 evidence at that point so that should work fully.
22 MR. KELLEY: Very well, thank you.
23 THE COURT: Okay.
24 MR. STULL: And Your Honor, excuse me. Before we
25 get too far along or too far afield, on November 25th, 2015

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1 I was scheduled, I was on the agenda for 9:30. I had three
2 minutes. It was a communication, and the process to just
3 kind of inform you how it works is any of us can sign up to
4 get our communication time. You have to do that by going
5 to the City Auditor's Office or contacting them and then
6 they reserve that time.
7 And I had done that on November 16th and did that
8 for two Wednesdays, the one we're talking about when I was
9 arrested and the following one. The following one, my
10 topic was, quote, Portland's Criminal Partners, and it
11 talks about some of these individuals that I mention, are
12 addressing.
13 But at the time I requested that communication on
14 November 16th, Karla, the council clerk, included as that,
15 as part of the communication you can attach documents and
16 one of those documents was a Portland Observer article or a
17 photograph. And the things that I want to raise are at the
18 time that I signed up my topic was, one, the Free Music
19 Zone which is part of the partners of agreement with street
20 musicians, which is part of the, it's an exception in the
21 Sidewalk Management Ordinance.
22 However, my exploration I found out that that
23 exception it totally does exist, but the document, the 1994
24 document doesn't exist. And I actually went to the
25 archives to look after that. So we actually have kind of

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1 defense through the Sidewalk Management Ordinance if you
2 want to look at that exception like that but you can't
3 access that.
4 So if you wanted to be a street performer, Your
5 Honor, and you went out there and stood in front of a sign
6 you wouldn't know that you have rules to follow that allow
7 you to be legitimate because they won't give a copy of
8 that. And that was my agenda item on the 25th. And so I
9 want to bring into as evidence the 1994 document that was
10 signed by Charlie Hales who is now the mayor. He signed
11 that.
12 And I also want to bring in the fact that I signed
13 up in advance through two weeks on these really
14 controversial subjects that any person that signed it 20
15 years ago -- so that's mayor now -- they're not enforcing
16 the policy that they signed and said that they would, you
17 know, put their heart into and do it good faith.
18 And then there were a couple of, like I would like
19 to have the council clerk. I would like to have the deputy
20 auditor Maya Rinta, who did that research that found that
21 1994 agreement was in fact an agenda item back in 1994 and
22 it was accepted by the city council and was something that
23 she couldn't find and was something that I was able to
24 provide and so there are those City Hall employees.
25 And my problem is, Your Honor, is part of my

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1 release status because I was in custody and I have to check
2 in and do that is I can't have contact with the victims, so
3 I haven't been able to go over to City Hall to subpoena
4 these people even to have you decide that it's not relevant
5 or something like that. So --
6 THE COURT: Well, nothing that you have described
7 to me seems to have a bearing on either your ability to
8 resist the arrest or the legality of the arrest or the
9 charge of assault on a police officer or the charge of
10 criminal mischief in a police car.
11 MR. KELLEY: Could I just confirm, Your Honor? I
12 was looking at the newest charging document which is a
13 misdemeanor attempted assault.
14 THE COURT: I'm probably not. But in any case I
15 do want, and let me make sure that I do have the right
16 document.
18 THE COURT: That's going to be essential.
19 MR. KELLEY: These are all misdemeanors at this
20 point.
21 THE COURT: But -- yeah, okay, they're
22 misdemeanors. But I do thank you on that. So the current
23 document is 2916; is that right?
24 MR. MCMAHON: That sounds right, Your Honor. Let
25 me double check it.

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1 MR. STULL: Yes, Your Honor, it is. It is.
2 THE COURT: It's attempted assault of a police
3 safety officer, resisting arrest, criminal mischief in the
4 second degree, and criminal trespass charge has been
5 dropped; is that right?
6 MR. KELLEY: Yes.
7 MR. MCMAHON: It was dismissed. Yes, Your Honor.
8 THE COURT: Okay. Yes, all right.
9 MR. STULL: As a matter of statute when they
10 dismissed the felony.
11 THE COURT: Whatever.
12 MR. STULL: Yes.
13 THE COURT: Yeah.
14 MR. KELLEY: Thank you, Your Honor.
15 THE COURT: And so the question is what relevance
16 does this have to those specific charges. Does it
17 constitute part of the charge, part of the defense?
18 MR. KELLEY: Sure. Let me --
19 MR. STULL: On November 25th, I had on the agenda
20 the matter of Multnomah County chair Deborah Kafoury giving
21 an award to PCRI, a landlord, at the same time that that
22 landlord was keeping affordable housing that it owned
23 vacant. They're a nonprofit organization. That piece of
24 property is on the affordable housing inventory that the
25 State of Oregon did, and I know that they were keeping it

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1 vacant for four years, meaning they hadn't collected some
2 quarter of a million dollars worth of rent keeping it
3 vacant. But at the time that I was scheduled to appear,
4 the city was funding PCRI and partnering with PCRI and knew
5 that that property was vacant.
6 And so when I went in knowing that the city was
7 funding what in my experience was an absolute criminal
8 landlord, they were not only doing that, the housing was
9 vacant, the city had declared a housing crisis, a state of
10 emergency, the property was named after Gretchen Kafoury
11 who similar along with Charlie Hales signed that 1994
12 agreement that they also had buried in the archives.
13 And my, mine, at the time that they started this
14 stuff in on me on November 25th was they were doing
15 everything possible to get rid of me and my ability to
16 testify and for my representatives and the public also and
17 they were out to get me. They were out to get me.
18 Everything that they did was illegal.
19 The partnership with the crooked landlord, I was
20 signed up a week after my arrest for the topic of
21 Portland's Criminal Partners. And so my mental state was
22 one where they made up a bunch of lies, gave me a trespass
23 exclusion, I went in the next morning to contest that and
24 they brutalized me, put me in jail, and as we know
25 destroyed my possessions that I had at the time of the

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1 arrest.
2 So the issue, getting back to this, is the jury
3 should rightfully know that I was legitimately on the
4 agenda and it's not the kind of thing that you sign up that
5 day which you can do across the river at the County Board
6 of Commissioners. To sign up for City Council you have to
7 go through a protocol which I did to champion in the issues
8 that I signed up for. I had done years of investigation
9 with the city, I had done, I had exhausted my
10 administrative remedies and I never once blew my stack.
11 When I blew my stack is when I went in there and
12 they told me that I wasn't going to be allowed to testify,
13 right. So my mental state at the time was that the
14 Portland Police were a bunch of thugs that were backing a
15 bunch of liars and cheats that are our public
16 representatives. And so I'm just sharing that --
17 THE COURT: Yeah, right.
18 MR. STULL: -- I want to bring in those matters so
19 that the jury doesn't get to hear the State saying and
20 here's this bad guy; look at him and look at what he's
21 doing, when everything that happened to me was a response
22 physically and otherwise to the fact that I had done
23 everything right, Your Honor, for years, except stop what
24 we know from the United States government suing the City of
25 Portland, a pattern and practice of abusing people with

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1 mental illness or perceived to be mentally ill. I'm
2 certainly one of those perceived to be mentally ill.
3 So I just want to be able to also include the
4 document signed by Charlie Hales and Gretchen Kafoury --
5 rest in peace -- and that actually the photograph that I
6 referenced from the Portland Observer was on the video that
7 the State's already entered into evidence.
8 THE COURT: I want to be really clear about this.
9 The state of mind and the only state of mind that is
10 relevant here is whether you unlawfully and intentionally
11 attempted to cause physical injury to Todd Engstrom --
12 MR. STULL: No that -- yeah.
13 THE COURT: -- whether you intentionally resisted
14 arrest, and whether you unlawfully and intentionally
15 damaged personal property.
17 THE COURT: Other things in your mind, the reason
18 why you sought to cause physical injury to Mr. Engstrom, if
19 you did, is not relevant because what the law prohibits is
20 you attempting to cause physical injury to a police
21 officer. So I do not find that the complaints you had
22 against the City of Portland or your arguments about
23 whether or not you should have been trespassed are
24 relevant, and I will exclude them.
25 MR. STULL: Well, Your Honor, Article 1 Section 26

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1 allows us the constitutional right to two things. One is
2 to inform our representatives, the other is to gather to
3 consult for the common good. So when we have the
4 opportunity to sign up that's not only my opportunity to
5 speak but it's the opportunity for others to be informed.
6 And they certainly have violated my constitutional right
7 there to inform my representative by everything that this
8 is about.
9 And so as a person that's in the mindset of
10 knowing that I am signed up, I have a constitutional right
11 to do this, I've gone through the protocol to do this and
12 they're just not letting me. And they're not letting me do
13 it because they're cheating and they're lying and they're
14 lying about me. And so after years of this, when they
15 started getting physical with me I knew what was going to
16 happen. They were going to arrest me. They were going to
17 charge me with a felony, and they were going to physically
18 abuse me like they had done for years.
19 And so my defenses to these charges, I've got them
20 up here in my noodle and I know what they are. And my
21 concern is unless I am able to say that I was signed up in
22 advance and unless I'm able to say why I was signed up and
23 the matters that I was signed up to address, which we
24 already have part of it on the disc, we're going to hear
25 all things. But the trouble is, Your Honor, you can

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1 probably observe that the person who stormed out of here
2 sick Friday is not the person that you've seen this
3 morning, so I shouldn't have the jury see me in my absolute
4 worst state without the opportunity to explain how I got
5 there.
6 And we can see as this plays out, after I request
7 the ambulance they don't call the ambulance, they call the
8 police. What am I supposed to think when I'm sickened by
9 their acts and I request an ambulance and instead they call
10 the police? Of course the police were physical against me
11 and of course the police physically abused me and you hear
12 me, when they're calling for the ambulance you can hear me
13 screaming in pain in the background.
14 So I, if the State wants to introduce the video of
15 what I was saying in that completely sick state, then I
16 should be able to say what I am and who I am, how I did
17 sign up, how I interact with the public bodies, how I
18 interact with the public offices, how I go in and I talk to
19 Jasmine Wadsworth and -- right, those kind of things.
20 So I do want to bring in the fact that I've got a
21 really excellent reputation in some circles and some people
22 think that I'm, in fact they refer to me as their hero.
23 And so some people on the other hand just whitewash me with
24 a whole bunch of things that cannot at all be supported by
25 any intelligent analysis of the facts. And my concern is

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1 that the jury is going to be prejudiced against me by
2 seeing me in my worst state without knowing that I wouldn't
3 even have been there if I hadn't been signed up on the
4 agenda and that I knew how to do that and I'm just not the
5 guy off the street.
6 THE COURT: I don't have a problem with your
7 saying that you were there because you were signed up. I
8 do have a problem, I will not allow -- you've mentioned
9 calling various witnesses and offering various evidence
10 that you were going to present to the City Council or to
11 support the allegations that you were going to make to City
12 Council. We're not going to do that. We're not going to
13 hear that.
14 MR. STULL: Okay, but --
15 THE COURT: And I'm hoping that -- your demeanor
16 today has been just excellent and I'm hoping that that
17 demeanor by itself is what you're going to be showing to
18 the jury and so they'll be able to gauge that.
20 THE COURT: But I am not going to, we're not going
21 to have a trial that will extend into so many different
22 places. We're going to concentrate on the charges here.
23 MR. STULL: Okay.
25 MR. STULL: And if I can --

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1 THE COURT: Not on the general --
2 MR. STULL: No, that's fine, Your Honor.
3 THE COURT: -- complaints against the City of
4 Portland and their actions and so forth.
5 MR. STULL: If you'll bear with me, I'm not going
6 to search for it right now, but the two documents that I
7 would offer as evidence are the November 16th communication
8 request which granted I was timely and I was the person
9 that was on the agenda for November 25th and the following
10 Wednesday which I believe was December 2nd that showed that
11 the time that I was arrested I was on for not only that but
12 the following week. And these things themselves say
13 Portland's Criminal Partners and the Free Music zones.
14 THE COURT: Okay. You can show that you were on
15 the agenda for that day, but not the agenda for the
16 following week which really doesn't figure in the
17 particular charges or the incident that we're talking about
18 here.
19 MR. STULL: Well, Your Honor, the way I'm seeing
20 it is the only time I've ever missed a communication at
21 City Council was when I was under arrest. I've never been
22 a no-show for any other reason except they arrested me.
23 And the last two of my arrests were when the City of
24 Portland issued a trespass exclusion policy 24 hours before
25 I was scheduled and I was scheduled well in advance of that

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1 24 hours.
2 So what they've done to me more than once is I've
3 gone in and found out after I planned for weeks that --
4 I've gone in and found out after I've planned for weeks on
5 less than a day's notice this most recent time that no, I
6 don't get to come. And so there's some -- that's been an
7 issue for me. So I'll show you those forms and you can
8 decide whether --
9 THE COURT: I'm not going to allow the signup for
10 the 24th, I'm not.
11 MR. STULL: You mean the subsequent one?
13 MR. STULL: It was pending (indiscernible).
14 THE COURT: The subsequent one, I'm not going to
15 allow it. It doesn't bear on the issues, the narrow issues
16 that we're here to try.
17 MR. STULL: Okay, Your Honor. As we've already
18 addressed is the State has entered these videos. In the
19 videos I said a lot of goofy things, but every one of those
20 goofy things and the goofy way that I said them, they're
21 all in fact true except for a statement I made about Amanda
22 Fritz and I how I killed her husband.
23 But that was as a product of her claiming that we
24 were friends when she knew that the landlord destroyed 20
25 grand of my goods and was keeping the property vacant. So

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1 she's not my friend anymore, Your Honor. I'm going to sit
2 down.
3 THE COURT: Okay.
4 MR. KELLEY: If I could just mention, Your Honor,
5 and I completely understand the Court's concern about
6 straying beyond the charges here, but we do think that some
7 evidence will be admissible to establish the raised
8 defenses as well as --
9 THE COURT: Well, tell me what evidence it is that
10 you think --
11 MR. KELLEY: Well, for example, defense of person,
12 a person is justified using physical force from what he
13 reasonably believes to be the use or imminent use of
14 unlawful physical force. So the conditions and the
15 circumstances of Mr. Stull's physical engagement with the
16 officers would be relevant to show whether he reasonably
17 believed imminent use of unlawful physical force was going
18 to be used upon him.
19 THE COURT: By unlawful that means if he believes
20 that a greater degree of force than is allowed, not -- it
21 is not a back door way of saying that you can resist what
22 you believe to be an unlawful arrest.
23 MR. KELLEY: Agreed. I don't dispute that. And
24 then regarding duress and choice of evils, conduct that
25 would otherwise constitute an offense is justifiable, not

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1 criminal, when the injury according to ordinary standards
2 of intelligence and morality, the desirability and urgency
3 of avoiding such injury clearly outweigh the desirability
4 of avoiding these injuries sought to be prevented by the
5 statute.
6 So the circumstances, the context we think is
7 relevant to the jury deciding what the ordinary standards
8 of intelligence and morality under those circumstances are,
9 and similarly for the duress defense, if he engaged in the
10 proscribed conduct only because he was coerced to do so by
11 the use or threatened use of unlawful physical force then
12 it's not guilty.
13 So we think that some his background with the
14 police, with these particular police officers, the way that
15 he was perceiving their behavior in the City Council
16 chambers, we do think that is relevant to those defenses.
17 THE COURT: I'm adhering to my ruling.
18 MR. KELLEY: Understood.
19 THE COURT: Okay. It's almost 12:00. Is there
20 anything else we need to take care of before we call for a
21 jury? Because what we'll do is take the noon break at this
22 point rather than call for a jury and then they wouldn't
23 get here until afternoon.
24 MR. MCMAHON: I think -- I'm just checking, Your
25 Honor. Yeah, I think the only thing that remains

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1 unresolved is the disabilities issue which it sounds like
2 the briefing's going to happen --
3 THE COURT: Yeah, we're just going to get a
4 briefing.
5 MR. MCMAHON: -- and just no reference being made
6 to that until, unless the (indiscernible).
7 THE COURT: Citations briefing. Okay.
8 MR. MCMAHON: So yeah, Your Honor, I have nothing
9 further.
10 MR. STULL: One more point, Your Honor. In the
11 video I talked about a particular veteran friend of mine
12 that couldn't get into housing while this housing, the way
13 it was vacant, and I participated in the Home For Everyone
14 veterans survey as a volunteer. So I knew that there were
15 homeless veterans that couldn't get into housing at the
16 same time that Deborah Kafoury was awarding the landlord
17 keeping the property vacant for helping veterans get into
18 housing.
19 And this was as I mentioned, this was attached as
20 my communication agenda item. This was part of what I was
21 there to present on, on November 25th. So I want to enter
22 this as evidence.
23 THE COURT: No.
24 MR. STULL: Just to bolster the fact that --
25 THE COURT: No. What I'm trying to say is that

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1 the legitimacy of the material that you were going to be
2 presenting to the City Council doesn't have a bearing on
3 whether you are guilty or innocent of the particular
4 charges that we're here to try -- attempted assault of a
5 public safety officer --
6 MR. STULL: Right.
7 THE COURT: -- resisting arrest or criminal
8 mischief in the second degree. And since it doesn't make
9 it more likely that you're guilty or more likely that
10 you're innocent of those particular charges it's not
11 relevant to these proceedings. I'm not saying it's not
12 important, I'm just saying it's not relevant to what we're
13 doing right now.
14 MR. STULL: And how I would express that it is, is
15 getting back to what triggers my disability. The more of
16 these things they stack up, the more of these things that I
17 do and the more of these things that they prevent me from
18 doing, that certainly has a very, very strong impact on my
19 emotions and how my physiology reacts to that.
20 And so what I'm trying to do, Your Honor, is I'm
21 going to reiterate that the jury has this video that shows
22 me when I've already asked for an ambulance that they
23 didn't call, shows my disability escalating and escalating
24 and escalating to the point where when the police officers
25 tried to do a take-down they couldn't even physically do

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1 that because my system feeds back adrenalin and I become
2 kind of model the Incredible Hulk or the mom pulling a car
3 up off her kid in the driveway.
4 I wasn't that person when I requested the
5 ambulance, I knew that is was coming. I turned into that
6 person over the 10 or 15 minutes that I didn't get the
7 emergency medical attention that I knew that I needed to
8 prevent that 15 minutes later because I've had this
9 condition for a long time and I know when I could die from
10 it.
11 And this is one of the -- what I said on the video
12 repeatedly I could die from this; I need emergency medical
13 attention. And what happened was they instead determined
14 on their own volition that I didn't have that issue, I
15 didn't deserve to have an ambulance called because I didn't
16 really have that neurological condition. What I had was a
17 mental illness that made me think that I had the medical
18 condition, when no, we know that I actually had it. So --
19 THE COURT: Well, yeah. But once again the issues
20 here are whether you intended to assault a public officer,
21 not whether he was a good guy or whether he was a bad guy.
22 MR. STULL: No, no, no. And we're going to find
23 out that, no, I didn't intend to do that.
24 THE COURT: And so forth.
25 MR. STULL: And one of the defenses to resisting

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1 arrest is when the police are using excessive force in the
2 process of affecting that arrest. There was a not so long
3 ago case on that point. And I would rather brief you on
4 that than talk --
5 THE COURT: I did want to make it clear you're not
6 asserting a defense of diminished responsibility because of
7 a mental condition or, you're not saying that right?
8 MR. STULL: Yes, I am --
10 MR. STULL: -- because of my disability. And
11 that's why we have the ADA to prevent these kinds of
12 things.
13 THE COURT: If the diminished responsibility is
14 the -- yeah, I'd have to look it up. But if that's the
15 case, if there's going to be evidence of that then there
16 are different instructions that should be given and a
17 different standard. But maybe we can use the noon hour
18 then to do a briefing or adapt to that.
19 MR. STULL: Okay, yeah. Well, I'm doing my best,
20 Your Honor.
21 THE COURT: Okay, great.
23 THE COURT: We all are. Thank you. We'll be
24 adjourned then until 1:30.
25 MR. KELLEY: Thank you.

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2 (Lunch break taken from 11:58 a.m. to 1:47 p.m.)
3 THE COURT: Be seated. Well, I received an email
4 citing to some matters. I agree that I have the duty to
5 correctly interpret a statute, and what I don't quite
6 understand how the other citations shed any light on what's
7 relevant here, because it's a citation generally --
8 MR. KELLEY: I think Mr. Stull would like not to
9 be --
10 THE COURT: -- to the chapter.
11 MR. KELLEY: -- is that right?
12 THE COURT: So maybe you could explain if there's
13 something I should look at within that Chapter 88. I did
14 see that there's a provision that requires the state
15 government to make reasonable modifications in services,
16 programs or activities where the modifications are
17 necessary to comply, unless the state government makes
18 modifications resulting in a fundamental alteration in
19 nature of the services, program or activity. But I don't
20 see that any of this represents a defense to a criminal
21 action.
22 MR. STULL: Your Honor, if I could perhaps be fair
23 to all of us, I just wanted to show that the legislature
24 through ORS 659A has empowered -- and I think the
25 authorization statute is 805 in that chapter, and that's

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1 reflected in the BLI administrative rules in Chapter 839,
2 and in Division 6. And the way this works when we write it
3 all out as a citation is OAR 839, hyphen, 006, hyphen, and
4 then the numbering system, and then the numbering system
5 for these particular interpretations of the relevant
6 chapter, sections of 659A that the -- where was I?
7 Off the top of my head, 839-006.0340 would have
8 the administrative rule and its numbering underneath that,
9 that then through the authority of the unlawful act being,
10 or rather the violation of BLI rules being an unlawful
11 practice, that shows that Oregon in our wisdom has
12 empowered the executive branch agency to interpret and
13 enforce the legislative statute in 659A. And they do that
14 through, are defined, chapter, OAR chapter 839, and in that
15 there's the specific discrimination theories. For example,
16 pretext makes motive, disparate impact.
17 But the gist of it is, is that all of those things
18 are to be interpreted with -- construed is the word I'm
19 looking for. But all of those OAR Chapter 659A and --
20 excuse me -- ORS 659A and OAR Chapter 839 are supposed to
21 be construed along with the particular corresponding
22 sections of the Americans with Disabilities Act.
23 And all I wanted to do was just inform the Court,
24 as I mentioned before lunch, this is very complex because
25 we have the statute authorizing the administrative agency

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1 to then interpret the statute, and the violation of the
2 administrative agency rules are considered by statute to be
3 a violation of the statute.
4 THE COURT: The administrative rules are
5 considered by statute to be a violation of the statute?
6 MR. STULL: No, a violation of the administrative
7 rules are considered by statute to be a violation of the
8 statute.
10 MR. STULL: Because it's an unlawful practice.
11 It's a statutorily defined term and I believe I got it
12 right under 659A definitions. I believe it's under .001.
13 But down underneath that in the statutory defined terms and
14 whatever other section the law has, a specifically
15 statutory defined term is unlawful practice which includes
16 the violation of the BLI rules which interpret and enforce
17 that statute.
18 And so each of those sections, for example, I
19 mentioned Division 6.03400, that has the statutory
20 authority to do that and the statutes that are being
21 interpreted by that section of administrative rule which is
22 authorized by (indiscernible) legislation saying that they
23 can do that.
24 THE COURT: What I do not understand is where in
25 all of this is the defense to a criminal charge.

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1 MR. STULL: I'm going to use these terms in the
2 most comprehensive way that they can be used. First of
3 all, I had hoped to brief you so that you could actually
4 read as we mentioned the McGary v. City of Portland, so you
5 could read that --
6 THE COURT: I read that.
7 MR. STULL: -- and then Duvall v. Kitsap County or
8 whatever that one was.
9 THE COURT: I read that.
10 MR. STULL: And that says that there's a duty of
11 the agency to engage in the investigative process to see
12 what a reasonable accommodation or a reasonable
13 modification; those terms are interpreted to mean the same
14 thing. This is extremely complex law, Your Honor. I'm not
15 trying to simplify something --
16 THE COURT: Well, I have to say that whether it's
17 complex or not, if I do not understand it I will not find
18 it to be a defense or relevant. So whether it may well be
19 complex I'm not arguing with that.
20 MR. STULL: Yeah.
21 THE COURT: But I'm saying that that doesn't help
22 us much to make that observation. It has to be relevant to
23 the charge, and unless you can point me to something
24 specific that says it's a defense to these kind of charges
25 or it's relevant to these kind of charges, then we are not

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1 going anywhere on it.
2 MR. STULL: Okay. Without the benefit of a brief
3 which I had hoped to illustrate this through, I have all
4 these different OAR things and like I said it's going to
5 take pages to just actually go through it because it's not
6 simple. I'm not trying to waste any time here, I'm just
7 trying to say that to have a statute authorized with
8 administrative agency to interpret the statute is kind of
9 itself doing this back and forth kind of interpret reading,
10 it takes some doing and takes some time and I've done all
11 that.
12 But what I'm trying to say, Your Honor, is if a
13 person with a disability identifies that they have the
14 disabilities and the request for reasonable accommodations,
15 or like we're saying reasonable modification -- I have the
16 case law on that that says that those were interpreted the
17 same -- once that is invoked that triggers the duty to
18 investigate and make the inquiry as to what accommodation
19 would in fact be reasonable.
20 And it's my understanding of the case law the
21 failure to engage in that interactive is itself a
22 discrimination of the act, disability discrimination.
23 THE COURT: If it were, what would the impact on
24 these charges, what difference would it make for these
25 charges if there was a violation of that act?

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1 MR. STULL: As the evidence will show, the
2 defendant requested emergency medical transport for
3 treatment of the triggered central pain syndrome. The
4 public accommodation strangely enough includes the City of
5 Portland, the public accommodation did not engage in that
6 inquiry at all, instead did not call an ambulance and
7 called the police officers, which then allowed that person
8 with the disability had to have that triggered event become
9 even more acute, more disabling, which then resulted in the
10 police action to stop what had already been identified as
11 something that needed emergency medical treatment and law
12 enforcement.
13 And so as we visited this morning already, in the
14 McGary v. City of Portland there is an ADA process that's
15 supposed to stop police from inappropriately arresting and
16 subjecting persons with disability --
17 THE COURT: No. That is not what that case says.
18 MR. STULL: No, Your Honor, that's what the
19 citation in that case says. And I gave it to you --
20 THE COURT: I got the citation and I guess I
21 disagree with what it says.
22 MR. STULL: But those policies --
23 THE COURT: That's the question. Are you saying
24 that that should permit a person from as is alleged here
25 assaulting the police officer or resisting arrest?

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1 MR. STULL: No, no. There was not even an
2 allegation of an assault. There's the allegation of
3 attempted assault.
4 THE COURT: Okay. Does it permit the person to
5 attempt to assault the police officer?
6 MR. STULL: Well, we're going to find that there
7 was no attempted assault. That's what we're going to find.
8 THE COURT: That's fine, but that's a different
9 issue.
11 THE COURT: The question is the relevance of
12 these, if there were a violation of the obligations to
13 investigate accommodations and so forth does that
14 constitute a privilege to allow a person to attempt to
15 assault a police officer? I'm not saying it occurred, but
16 assuming that the evidence was that -- if the evidence is
17 you didn't attempt to assault the police officer then
18 you're innocent and that's not -- so it doesn't matter.
19 But if you did attempt to assault a police officer does a
20 previous violation of the ADA act allow you to do that?
21 MR. STULL: Let me be clear.
22 THE COURT: Yeah.
23 MR. STULL: No. However, to get into such a state
24 where that would even be possible two things had to occur.
25 One thing is the defendant person with the disability had

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1 to be denied the medical treatment which then allowed the
2 disability to in fact become worse then, which only
3 happened as a product of the police officers coming in,
4 denying access to the emergency treatment, and then
5 engaging in activities that were in fact even worsening,
6 like physical contact. And saying to somebody that has an
7 adrenalin episode that can't be controlled because that's
8 why the medical treatment is needed, and saying to that
9 person that's incapable of calming down because of the
10 surge of these fight or flight chemicals -- I cannot under
11 those circumstances, I could not under those circumstances
12 calm down.
13 And as you'll see on the video, there is actually
14 a point where I say the reason I am being so loud is
15 because of my disability. And that's a product of being
16 denied a medical treatment. It was quite shocking to say I
17 need emergency ambulance treatment, or transportation, and
18 as I said why are you laughing at me, and why wasn't
19 somebody calling 911? And they were in fact calling 911.
20 They were calling 911 to address the behavior that was a
21 product of the denial of the medical attention itself.
22 So I'm suggesting that if somebody has a
23 disability and they physically can't do something then they
24 can't be criminalized for what they're unable to do.
25 THE COURT: Well, the violation or not violation

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1 of the ADA doesn't actually have to do with that. If
2 there's evidence that says that you didn't physically make
3 a volitional act, then that is by itself a defense. But
4 the violation, whether it's a violation of ADA or not,
5 doesn't affect that issue, so I am finding that not to be
6 relevant.
7 MR. STULL: Okay. Well, and if I can --
8 THE COURT: So we're not going to have litigation
9 here before this jury on a violation of the ADA; that would
10 be another proceedings. But it's not a defense to the
11 criminal charges.
12 MR. STULL: Well, in fact it is. And in this
13 regard, Your Honor, under that same definition there's the
14 statutory defined terms for the chapter ORS 659A, it
15 defines a person and that includes a public body. And
16 essentially where I'm at with this is if the City of
17 Portland engages in disability discrimination and the
18 Multnomah County District Attorney assists them in that
19 disability discrimination, then the State of Oregon assists
20 both of those parties in disability discrimination, then
21 the State of Oregon is liable for an ADA violation.
22 THE COURT: It may be.
23 MR. STULL: And we don't --
24 THE COURT: But that's not what we're litigating.
25 MR. STULL: What we're litigating is the fact that

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1 by not following the appropriate laws we've actually
2 created the need to even have a case. And so I guess what
3 I'm having a problem with, Your Honor, is that a person has
4 a disability, their protected civil rights as a matter of
5 public policy stated in the statute, stated in the, we'll
6 call it the preamble for the Americans with Disabilities
7 Act, it says these are the, this is what we're going to do
8 in our society.
9 And if somebody violates your rights and imprisons
10 you, your remedy is to then having been through this all
11 this disability discrimination is to go to court and have
12 the federal court say that Oregon should follow the federal
13 law. And that's absurd because Oregon should have followed
14 the federal law in the first place. So that's my theory,
15 Your Honor.
17 MR. STULL: And I would like to brief you on this.
18 THE COURT: You can brief me. But for now, my
19 ruling now is that the alleged violation of the Americans
20 with Disabilities Act or the Oregon corollary is not an
21 issue on these criminal charges and we're not going to
22 litigate that in this case.
23 Now you can brief me further, but right now I
24 think I'm fully advised as to the things before me and the
25 argument.

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1 MR. STULL: Okay. And Your Honor, please don't
2 take what I'm about to say as a threat to you or your type.
3 I'm not saying that. But I believe that should this Court
4 deny those defenses that I'm articulating I have the legal
5 right and the legal authority to go to the federal
6 courthouse and file an ADA action asking for injunction
7 against me again being subjected to this, because the whole
8 thing is an ADA violation.
9 And in the processing I'll say of the development
10 of the Americans with Disabilities Act since 1992, the
11 states are not immune under Article 1, or excuse me, the
12 United States Constitution Amendment 11 which gives states
13 immunity, except not for ADA violations.
14 So I could in fact stop this process or at least
15 request the stop of this process by going to the federal
16 court to issue an injunction from the further prosecution
17 and incarceration of me, which would be an eminent thing at
18 this stage of the proceedings, and I would be legitimate to
19 do that.
20 And I don't think that that's, none of that is the
21 remedy because the remedy is we follow the civil rights
22 laws first and we don't offer the person whose civil rights
23 have been violated the option of further litigation,
24 because frankly I'm the person with the disability with
25 limited resources and where am I supposed to come up with

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1 all these resources? I'm in fact not supposed to come up
2 with all these resources because in fact I never should
3 have been drawn into this process. And I'm going to take a
4 break.
5 THE COURT: Then are we ready to call for a jury?
6 Okay.
7 MR. MCMAHON: The State's ready, Your Honor.
8 THE COURT: Very well. We're calling for a panel
9 of jurors. We'll seat them here. I will instruct them,
10 and then you'll have the opportunity to question.
11 MR. MCMAHON: Your Honor, I did want to inquire to
12 the Court, I think we reported this as a four-day trial. I
13 think, you know, we're moving a little bit more quickly
14 than I expected, but I still think it's going to be
15 potentially at least a three-day trial. We do have
16 witnesses coming on Wednesday for both the State and the
17 Defense. I think we'd ask that perhaps an alternate or
18 maybe even two alternates be seated.
19 THE COURT: I'll seat an alternate.
20 MR. MCMAHON: Okay, thank you.
21 MR. KELLEY: Last comment I would have, Your
22 Honor, there will not be any evidence in the sanity or
23 mental disease or defect, but we do intend to offer
24 evidence of diminished capacity.
25 THE COURT: Pardon, I'm sorry. I didn't quite --

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1 MR. KELLEY: Your Honor mentioned the possibility
2 of a mental disease or defect defense.
3 THE COURT: Um-hum.
4 MR. KELLEY: Well, we will not be offering any
5 insanity evidence. There's no psychiatric report or
6 anything like that. But we do intend to offer evidence of
7 diminished capacity which is really just lack of intent.
8 THE COURT: Diminished capacity also is -- well,
9 I'd put the statute out there.
10 MR. KELLEY: Lack of intent is what it really
11 amounts to.
12 THE COURT: So if there's a defense of diminished
13 capacity then we do need to know up front because --
14 MR. MCMAHON: I'm not aware of a separate defense
15 called diminished --
16 THE COURT: Give the State -- yes, there is. I'll
17 tell you what the statute is.
18 MR. MCMAHON: Thank you, Judge.
19 THE COURT: 161.300.
20 MR. MCMAHON: Yes, I do see that.
21 THE COURT: Evidence that the actor who suffered
22 from a mental disease or defect is admissible wherever
23 relevant to on the issue of whether the actor who did or
24 did not have the intent. That is diminished capacity.
25 MR. KELLEY: And I would agree, Your Honor, and we

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1 don't have evidence that he's got a mental disease or
2 defect.
3 THE COURT: Okay.
4 MR. KELLEY: I just wanted to point out we will be
5 arguing of course of the issue of intent, but there's no
6 psychiatric evidence in this case.
7 MR. MCMAHON: Yeah. And I think that essentially
8 what that precludes is them offering the mental disease or
9 defect as a jury instruction (indiscernible).
10 THE COURT: Well, yeah. And okay, I just wanted
11 to get that clear.
13 MR. MCMAHON: Thank you, Your Honor.
14 THE COURT: All right, we will call for a jury.
15 MR. MCMAHON: How many jurors will you be calling,
16 Your Honor?
17 THE COURT: We'll get 15 up here and -- pardon?
18 MR. KELLEY: (Indiscernible).
19 THE COURT: Well.
20 MR. MCMAHON: I'm sorry. Because I think what I'm
21 going to do, time qualification too since we're going
22 outside of the --
23 THE COURT: Well, maybe given the time maybe we
24 should get a few more, but 20. If we do that we're going
25 to have to use some room in the gallery, so the audience

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1 needs to be over on this side.
2 THE CLERK: Okay.
3 MR. MCMAHON: So 15 over here and then we go to
4 the front row.
5 THE COURT: Um-hum, yeah.
6 MR. MCMAHON: And then we'll go to the back row,
7 Your Honor.
8 THE COURT: Okay, we'll do that.
9 MR. MCMAHON: (Indiscernible).
10 THE COURT: Just for --
11 MR. MCMAHON: Did we say that we'd do one then?
12 THE COURT: We'll do one alternate, yeah.
13 MR. MCMAHON: Yeah. Let me think how many people
14 are required.
15 THE COURT: So we need eight, yeah.
16 MR. MCMAHON: Okay. And generally that's extras
17 for a time qual. Okay, I think that should be -- maybe we
18 can see over the time qualification if we drop below 15
19 then we can bring a few more out, but that's --
20 THE COURT: Okay.
21 MR. MCMAHON: -- before we actually dive into --
22 THE COURT: Okay.
23 MR. KELLEY: So I think 15 is what we agreed,
24 right?
25 MR. MCMAHON: 21.

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1 MR. KELLEY: Twenty one, rather; 21 jurors coming
2 out.
3 THE CLERK: (Indiscernible) over there, so we'll
4 just need you folks to sit on that side (indiscernible).
5 (Recess was taken from 2:09 p.m. to 2:14 p.m.)
6 MR. KELLEY: I'm sorry, what was that?
7 MR. MCMAHON: I just asked that the Court request
8 of the spectators, especially if the jurors are present, to
9 limit their conversation. I've been able to sort of
10 overhear.
12 We do need to have the -- right.
14 THE COURT: And certainly not audible.
15 (Recess was taken from 2:14 p.m. to 2:25 p.m.)
16 THE COURT: -- Judge Roberts. I'm the judge in
17 this courtroom. My role includes keeping order, ruling on
18 evidence and instructing as to the law. You have just met
19 Mr. Michael Gibson; he's my in-court clerk and bailiff.
20 His role involves keeping the record -- we're keeping audio
21 record -- and maintaining the exhibits and also being the
22 contact person for the jury.
23 We're here today, first of all, to select a jury
24 to sit in a criminal case. The selection of a jury is a
25 process we call voir dire. And in that process the parties

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1 also participate in learning something about the people who
2 might potentially sit as jurors so that they can exercise
3 their rights to participate in the selection of the jury.
4 The jury is the judge of the facts in the case and
5 therefore the selection of the judges of the facts is an
6 important stage of trial. I'm going to ask you to stand
7 and be sworn to answer truthfully and honestly to questions
8 put to you by Court or Counsel regarding your
9 qualifications to sit as jurors in this case. Please
10 stand.
11 (Jury panel sworn.)
12 THE COURT: Thank you. Now, before we go any
13 further let's make sure that all cell phones are powered
14 off. Any cell phones or communications devices must be
15 powered off whenever court is in session.
16 The case that we're here to select a jury for is
17 entitled State of Oregon v. Barry Stull. Mr. Stull is here
18 at counsel table closest to you and he is assisted -- he's
19 representing himself. He's not being represented by an
20 attorney but he is being assisted by an advisor, Mr. Kevin
21 Kelley. The State is represented by its attorney, Mr.
22 Eamon McMahon.
23 MR. MCMAHON: Good morning or I guess good
24 afternoon.
25 THE COURT: The State is charged with, let's see,

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1 attempted assault of a public safety officer, resisting
2 arrest and criminal mischief in the second degree. I'm
3 going to read those charges to you so that you will merely
4 know the subject matter for the trial. When I do so,
5 remember that the Defendant is innocent of any and all
6 wrongdoing unless and until the State proves guilt by
7 evidence. The charges are merely the State's allegations
8 and they do represent the goalposts that the State will
9 endeavor to reach by its evidence. But the charges are not
10 part of the evidence and they do not constitute any
11 evidence of guilt whatsoever.
12 So with that clearly in mind, I'll read you the
13 charges that we're here to try. Count I, attempted assault
14 of a public safety officer; that the said Defendant Barry
15 Joe Stull on or about November 25, 2015 in the County of
16 Multnomah, State of Oregon, did unlawfully and
17 intentionally attempt to cause physical injury to Todd R.
18 Engstrom, a person that the Defendant knew to be a peace
19 officer, while Todd R. Engstrom was acting in the course of
20 official duty, contrary to the statutes in such cases made
21 and provided and against the peace and dignity of the State
22 of Oregon.
23 Count II is resisting arrest; that the said
24 Defendant Barry Joe Stull on or about November 25, 2015, in
25 the County of Multnomah, State of Oregon, did unlawfully

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1 and intentionally resist Todd Engstrom, a person known by
2 the Defendant to be a peace officer, in making an arrest,
3 contrary to the statutes in such cases made and provided
4 and against the peace and dignity of the State of Oregon.
5 Count III, criminal mischief in the second degree;
6 that the said Defendant Barry Joe Stull on or about
7 November 25, 2015, in the County of Multnomah, State of
8 Oregon, did unlawfully and intentionally damage personal
9 property, the property of the City of Portland. The said
10 Defendant, having no right to do so nor reasonable ground
11 to believe that the Defendant had such a right, contrary to
12 the statutes in such cases made and provided and against
13 the peace and dignity of the State of Oregon.
14 Now, to these charges the Defendant has entered a
15 plea of not guilty. A plea of not guilty is a denial of
16 the truth of all the matters alleged. And under our system
17 of justice the Defendant is innocent of any and all
18 wrongdoing unless and until the State establishes guilt,
19 and the burden is on the State to establish guilt beyond a
20 reasonable doubt.
21 A reasonable doubt is an honest uncertainty as to
22 the guilt of the Defendant. Reasonable doubt is doubt
23 that's based on common sense and reason. Reasonable doubt
24 exists when after a careful and impartial consideration of
25 all the evidence in the case you are not persuaded to a

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1 moral certainty that the Defendant is guilty.
2 In order to sit as jurors in this case -- I might
3 add by the way some of you may have served as jurors in
4 other cases, in civil cases where another and lower
5 standard of proof applies, such as proof by a preponderance
6 of the evidence. That's sufficient evidence to persuade a
7 trier that it's more likely that a given fact is true than
8 not true. But this is a criminal case, so here it is the
9 highest standard of proof that we know of in our criminal
10 system, proof beyond a reasonable doubt.
11 Now, in order to sit as jurors in this case you
12 must be able to judge this case fairly and impartially.
13 I'm going to be asking you some questions. I'll be asking
14 you to answer some introductory questions that are here up
15 on the board. Then I will be turning it to the parties
16 each in turn to have a conversation with you, not to argue
17 the case and not to attempt to do other than simply to get
18 to know you better as individuals so that each can exercise
19 its rights intelligently in making a decision whether to
20 have you one of the six, or seven who will stay with us for
21 the trial.
22 So first of all, is there anyone here who happens
23 to be acquainted with Mr. Stull? Is anyone acquainted with
24 or have any association with either of the legal counsel
25 whom I introduced to you, Mr. McMahon, or Mr. Kelley? I'm

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1 going to ask each of these parties to give us a list of the
2 people who may be called as witnesses in this case so that
3 I can ask you that same question. So we'll start with the
4 State. Mr. McMahon?
5 MR. MCMAHON: Thank you, Your Honor. The first
6 four witnesses are employees at City Hall. Their names are
7 John Chandler, Mike Cohen, Jim Wood, and Jason King. Next
8 we have Ben Walters who is with the Portland City
9 Attorney's Office, and finally we have three officers of
10 the Portland Police, Sergeant Roger Axthelm, Officer Todd
11 Engstrom, and Officer Parik Singh.
12 THE COURT: Are any of those names familiar to
13 anyone? Anybody know any of those? Okay.
14 UNIDENTIFIED JUROR: I have a question.
15 THE COURT: Sure.
16 UNIDENTIFIED JUROR: John Chandler who's
17 (indiscernible)?
18 MR. MCMAHON: He works for the City of Portland.
19 UNIDENTIFIED JUROR: Okay, different one.
20 UNIDENTIFIED JUROR: In the security department
21 (indiscernible)?
22 MR. MCMAHON: Yes, he works in the security
23 department.
24 THE COURT: Mr. Stull, the names of witnesses you
25 might call.

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1 MR. STULL: Jacob Beutler. Do you know Mr.
2 Beutler? Marc, spelled A-R-C, Johnson; Carla Morlov
3 (phonetic); anybody?
4 MR. KELLEY: Anybody?
5 MR. STULL: Jasmine Wadsworth; Portland Police
6 Bureau Officer West Helfrich, anyone? And a Multnomah
7 County employee for the Sheriff's Department, Deputy, I'm
8 going to have to spell her name. I believe it's R-E-G-E-H-
9 E-R.
10 THE COURT: All right. Now, you don't know very
11 much about the case, I just read to you the charges. The
12 charges are attempted assault of a public safety officer,
13 resisting arrest, and criminal mischief in the second
14 degree. Those are things that we'll be talking about.
15 Is there anyone here who has such close personal
16 associations or strong personal feelings about charges or
17 matters that that suggests that it would be difficult for
18 them to judge this case on the facts and on the merits and
19 in accordance with the laws that I will instruct you is?
20 Okay, I don't see any hands going up.
21 All right, as I said the lawyers will be asking
22 you some questions. The point of those questions are not
23 to argue the case, they're not to embarrass you or make you
24 feel uncomfortable, but they're simply to get to know you.
25 And also Mr. Stull will do the same. I'm sorry, I said

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1 lawyers, but Mr. Stull is representing himself so he is a
2 lawyer for this purpose.
3 I am going to ask you to answer these general
4 introductory questions. Now, the last question unusual
5 hardship, that deals with the length of the trial. This
6 trial as you've heard there are quite a few witnesses that
7 may be called, so the trial may take a little longer than
8 some trials, and here we are estimating that it will take
9 four days counting yesterday. So that would take us all
10 the way through our trial week. We don't try cases on
11 Fridays we do other types of things here. So that's the
12 estimated length.
13 But it is always possible in the course of a trial
14 because we never know everything that's going to happen in
15 a trial -- it's a complex thing that it might lap over into
16 the beginning of next week. So I will need to know when
17 you do your introduction, when you get through all of this,
18 then tell me if you have an unusual hardship or if you have
19 a conflict such as a medical appointment that you can't
20 postpone or you have tickets to go out of town.
21 Tell me then and it can be considered in the
22 selection of the jury. I won't rule on those things as we
23 sit, but we will consider that in the selection of the
24 jury. Now with that said we will go around the room and --
25 what's that noise?

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1 THE CLERK: In the hall.
2 THE COURT: Oh, in the hall. I'm sorry about
3 that. I can't do -- my jurisdiction goes right up to that
4 door. I can't go into the hall.
6 THE COURT: Yeah, if you would. It's a little
7 distracting. We can ask. No guarantees.
8 Okay, I hope that works. Very well, so we're
9 going to start front row then and just go down -- I'm going
10 to get the same questions up on my computer so that if you,
11 if there's anybody that can't see it. And when we get over
12 here we'll move the placard so you don't have to try to
13 squint and see it all that distance across the room. So
14 starting --
15 UNIDENTIFIED JUROR: My name is Margaret Minich
16 (phonetic). I'm retired, but I was an import/export agent;
17 bachelors degree from Oregon State. I live in West
18 Portland Park. It's up by BCC Sylvania. I live with my
19 husband, he's retired now too. He was a diesel mechanic.
20 I don't think I've ever been a victim of any crime. I
21 don't know anybody (indiscernible). I've been in court
22 once as a defendant. I don't think I have any unusual
23 hardship.
24 UNIDENTIFIED JUROR: (Indiscernible). I have a BA
25 from Portland State. I work in north Portland. My son's

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1 officially, (indiscernible), so I'm not sure if
2 (indiscernible). (Indiscernible). No friends or relatives
3 in law enforcement. I've never been in a court before.
4 And I'm afraid there's going to be a hardship because I'm
5 independently employed and I don't get paid if I don't
6 work. I'd be okay if I could work Friday, (indiscernible).
7 UNIDENTIFIED JUROR: My name's Teri White
8 (phonetic). I work in retail sales. I have a
9 (indiscernible) education in (indiscernible), and no one
10 (indiscernible); (indiscernible) victim of a crime and
11 (indiscernible). (Indiscernible).
12 UNIDENTIFIED JUROR: My name is Derek Kizaway
13 (phonetic). I'm a maintenance mechanic for the Housing
14 Authority. A GED is my background as some call it. I live
15 in southeast Portland. My girlfriend is a (indiscernible).
16 No relatives in law enforcement. Went to traffic court
17 (indiscernible), and I don't have any hardship.
18 UNIDENTIFIED JUROR: My name's Barry Hockey
19 (phonetic). I'm a technical program manager. I teach
20 business at a community college and (indiscernible). I
21 have an associate's, two bachelors, and a master's degree.
22 I live in southeast Portland; I live alone. I've been a
23 victim of attempted muggings and theft. My sister and
24 brother-in-law are both Multnomah County Corrections
25 officers. I've been a juror before; it's been many years.

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1 Unusual hardship, I've been (indiscernible) but that's
2 their problem not mine. (Indiscernible) plane tickets
3 (indiscernible).
4 THE COURT: Okay. Are you going to be -- how
5 about Monday? Are you going to be away?
6 UNIDENTIFIED JUROR: I'll be back again on Monday
7 morning, yeah.
8 THE COURT: Okay. Well, Friday's not a problem.
9 UNIDENTIFIED JUROR: Thank you.
10 UNIDENTIFIED JUROR: My name is Emily Moss
11 (phonetic). I'm an attorney. I'm deputy (indiscernible)
12 legislative counsel at (indiscernible). I have a
13 bachelor's in psychology and a bachelor's in political
14 science and (indiscernible). I live in southeast Portland.
15 I live with a significant other until (indiscernible). I
16 have had my car broken into and (indiscernible) like that
17 but (indiscernible) reported it.
18 If you're going to ask me about police officers, I
19 don't have any friends in law enforcement and I don't
20 (indiscernible). I've appeared in court when I adopted my
21 daughter, when I was an attorney for adoption, a couple of
22 litigation proceedings and as a law clerk (indiscernible)
23 for two years. Wednesday through Friday (indiscernible)
24 would be a hardship because we have legislative days at the
25 capital and my (indiscernible) inspected (indiscernible)

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1 potential legislative matters. Early into next week would
2 probably not be (indiscernible).
3 UNIDENTIFIED JUROR: My name is Andy Garbosen
4 (phonetic). I'm a self-employed performer and
5 (indiscernible) artist. I have a BA from Pomona College in
6 California. I live in north Portland. I live with my wife
7 and our young son. I've been the victim of a home
8 burglary. I don't have any close friends or relatives in
9 law enforcement. I haven't appeared in court before. And
10 as a self-employed person of course I'm going to feel like
11 it would be a hardship, I have contracted performances and
12 visits to schools on Wednesday through Friday and
13 (indiscernible) if I miss.
14 UNIDENTIFIED JUROR: My name is Jose Perez
15 (phonetic). I'm a shuttle driver for a hotel by the
16 Portland Airport (indiscernible). I am a high school
17 graduate on a Southern California school district. I live
18 inside the (indiscernible) Multnomah. My wife and her 54
19 year old brother live, we reside together. He is mentally
20 disabled. She works for a call center for Sprint. I have
21 been a victim (indiscernible) when I worked for
22 (indiscernible). I was kidnapped at gunpoint, kept in
23 chains for awhile. I also am a victim of identity theft.
24 I do have an ex-brother-in-law who is a Jackson County
25 sheriff, or was. He's now retired. And also my sister in

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1 California, L.A. County, her partner is (indiscernible) for
2 the prison system. I've never been a juror in the past and
3 my only concern about serving is that I work at night,
4 through the night and I sleep during the day. But by the
5 time I get to bed it's about 4 o'clock in the morning.
6 (Indiscernible).
7 UNIDENTIFIED JUROR: My name's Allen Gaine
8 (phonetic). I'm a package handler. I pretty much just
9 load packages in a trailer. I'm currently a student at
10 Portland State (indiscernible) and business. I live in
11 southeast Portland. I live with my parents and my brother.
12 My mom works in a bakery and my dad is a (indiscernible)
13 and my brother is a mechanic. I've never been a victim of
14 a crime. I don't know anyone in law enforcement. This is
15 my first time being in a court. And a hardship for me
16 would be that I'm starting school next week. I'd like
17 (indiscernible).
18 UNIDENTIFIED JUROR: I'm Carrie Paise (phonetic)
19 and (indiscernible) for medical (indiscernible), a
20 bachelor's and a master's (indiscernible). I live in
21 southwest Portland. I live with my husband and my six-
22 year-old. We have had (indiscernible) broken into before.
23 Oh, my husband's occupation is that he works
24 (indiscernible) laboratory. I don't have any friends or
25 relatives in law enforcement. I've never appeared in

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1 court. I do have business travel scheduled for Wednesday
2 of this week, through Thursday.
3 THE COURT: The business travel could be
4 rescheduled or not?
5 UNIDENTIFIED JUROR: Could it be? No. That given
6 the schedule that's been on (indiscernible) for quite some
7 time, the surgeons (indiscernible) taking place would be
8 (indiscernible).
9 THE COURT: Okay.
10 UNIDENTIFIED JUROR: My name is Scott Montgomery
11 (phonetic) and I work for the Department of Human Services,
12 State of Oregon, in the office where people apply for state
13 benefits. And I have a master's degree. I live in
14 southeast Portland. I reside with my wife and she is an
15 educational assistant in elementary school, and my two
16 adult sons. One of them works in a hotel in downtown
17 Portland. I have had my credit card used fraudulently. I
18 have no friends or relatives in law enforcement. I have
19 been a juror in the past. And I do have plans to be out of
20 the city next Tuesday and Wednesday, but prior to that I'm
21 available.
22 THE COURT: Tuesday and Wednesday of next week?
23 UNIDENTIFIED JUROR: Right.
24 UNIDENTIFIED JUROR: My name is Matt Penahan
25 (phonetic). I'm an engineer (indiscernible). I live in

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1 northeast Portland with my wife and children. My wife
2 (indiscernible). (Indiscernible). I don't have any
3 relatives (indiscernible). And (indiscernible). I don't
4 think it would be an unusual hardship (indiscernible).
5 THE COURT: Well, the schedule would take us
6 through Thursday of this week. It's possible it would lap
7 over into next week, but we don't have the case on Friday,
8 so it would, you know. Okay, thank you.
9 UNIDENTIFIED JUROR: My name is (indiscernible)
10 Francis (phonetic). I'm a registered nurse in a hospital
11 (indiscernible). I have a master's degree and two
12 bachelor's degrees. I live in southwest Portland. I
13 reside with my husband and (indiscernible). I have been
14 through identity theft and I don't have any friends or
15 relatives in law enforcement. (Indiscernible) jurors a few
16 years ago and I don't (indiscernible).
18 UNIDENTIFIED JUROR: I don't think it would be a
19 hardship (indiscernible).
20 THE COURT: Okay.
21 UNIDENTIFIED JUROR: I'm (indiscernible) and I
22 have a cleaning business. (Indiscernible). I live in
23 Gresham with my daughter and she's a student
24 (indiscernible). (Indiscernible) a car theft and
25 (indiscernible) credit card. I don't have friends or

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1 relatives in law enforcement. I've been a juror a lot of
2 times and traffic court. It would be hard for me because I
3 pushed my clients back from Monday and Tuesday to the end
4 of the week, and so it would be kind of a hardship for me.
5 UNIDENTIFIED JUROR: My name is Donovan Rice
6 (phonetic). I'm a professional skateboarder, graduated
7 high school, live in (indiscernible) area right now
8 (indiscernible). Never been a victim of a crime. I have
9 (indiscernible). I just (indiscernible) City of Portland.
10 I've never appeared in court, and my hardship would be that
11 I give skateboard lessons (indiscernible) morning.
12 THE COURT: Would be what?
13 UNIDENTIFIED JUROR: I give skateboard lessons in
14 the morning. (Indiscernible).
15 THE COURT: Okay, (indiscernible).
16 UNIDENTIFIED JUROR: My name is Tim Aker
17 (phonetic). I work in IT. (Indiscernible) science degree.
18 I live in Gresham (indiscernible). (Indiscernible). I
19 don't know anyone in law enforcement. I've been on a jury
20 as a juror several years ago and there's no hardship.
21 UNIDENTIFIED JUROR: My name is Tina Riley
22 (phonetic) and (indiscernible). I have a bachelor's and I
23 live in east Portland with my husband who is an electrician
24 and my mother who is a plant manager. I've been a victim
25 of theft. I don't have any friends or relatives in law

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1 enforcement. I've never appeared in court and
2 (indiscernible) my job, so the longer (indiscernible) the
3 longer it's going to take (indiscernible).
4 UNIDENTIFIED JUROR: (Indiscernible). I have a
5 bachelor's in nursing. I live in northeast Portland with
6 my husband and our daughters (indiscernible). I've been a
7 victim of (indiscernible) fraud. I have a neighbor who's a
8 police officer. I've (indiscernible) jury duty before;
9 it's been a few years, five or six years. The only
10 hardship (indiscernible) is (indiscernible) scheduled to
11 work and we are a very busy (indiscernible) and --
12 THE COURT: I'm having a lot of trouble. Maybe it
13 would be helpful if you could stand because I'm just
14 really, kind of make it --
15 UNIDENTIFIED JUROR: I work on a (indiscernible)
16 oncology floor and Wednesdays are our surgery days, and so
17 (indiscernible). (Indiscernible) a number of patients on
18 the floor, they may or may not have (indiscernible).
19 (Indiscernible).
20 UNIDENTIFIED JUROR: My name is Lena Walsh
21 (phonetic). I am a (indiscernible). (Indiscernible) and
22 started working straight out of high school. I live in
23 southeast Portland with my partner who is a
24 (indiscernible). I have not been a victim of a crime. I
25 do not have any friends or relatives in law enforcement. I

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1 have not appeared in court. And my only unusual hardship
2 would be next week (indiscernible), so (indiscernible).
3 UNIDENTIFIED JUROR: (Indiscernible). I'm a
4 designer. I have (indiscernible) in southeast.
5 (Indiscernible). I've been a victim of theft. I have
6 friends and relatives in law enforcement. I've never
7 appeared in court. Unusual hardship is I'm an independent
8 contractor so if I don't work I don't get paid. I'm also
9 (indiscernible). (Indiscernible) next week.
10 THE COURT: I'm sorry. Did you say you're
11 traveling?
12 UNIDENTIFIED JUROR: Yes, next week. And --
13 THE COURT: I'm sorry, this week? When are you
14 going to travel?
15 UNIDENTIFIED JUROR: Next week.
16 THE COURT: When?
17 UNIDENTIFIED JUROR: (Indiscernible) Tuesday.
18 THE COURT: Tuesday.
19 UNIDENTIFIED JUROR: Yeah. But it's for personal
20 reasons so I'm not getting paid for that time as well as
21 that and (indiscernible).
22 UNIDENTIFIED JUROR: (Indiscernible). My name is
23 (indiscernible). I'm a registered nurse. I have an
24 associate degree and (indiscernible) degree. I live in
25 southeast Portland with my husband who is a litigation

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1 attorney but he's not practicing right now, my daughter as
2 well. I've never been a victim of a crime. I do have some
3 friends who are law enforcement but they don't live in
4 Oregon. I've never (indiscernible). Hardship would be
5 that I (indiscernible) but they postponed the whole thing
6 so they're just waiting to hear from me.
7 THE COURT: Okay, very well. We'll start with Mr.
8 Stull. Well, just let us take this down and Mr. Stull can
9 ask you some questions.
10 MR. STULL: Hello, folks. I'm going to walk
11 around so we can see each other a little bit. A number of
12 you said you were on jury. We don't know whether those
13 were civil or criminal. Which of us were on juries here,
14 and we'll just start over here. Was that a criminal jury
15 or a civil?
16 UNIDENTIFIED JUROR: (Indiscernible). It was a
17 criminal case. I wasn't selected. I got (indiscernible).
18 MR. STULL: I'm (indiscernible) in any way, so
19 let's expedite this process (indiscernible).
20 UNIDENTIFIED JUROR: Criminal.
21 MR. STULL: And who else?
22 UNIDENTIFIED JUROR: (Indiscernible).
23 MR. STULL: And --
24 UNIDENTIFIED JUROR: It was, okay, I know what it
25 is.

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1 MR. STULL: Okay.
2 UNIDENTIFIED JUROR: (Indiscernible) liability
3 issue, but it was a criminal thing (indiscernible).
4 MR. STULL: (Indiscernible). For most of us it
5 would be a little bit of both.
6 UNIDENTIFIED JUROR: (Indiscernible) about ten
7 years ago, civil.
10 MR. STULL: Anybody here that really, really
11 doesn't want to be here? And that's two reallys. We all
12 have places we might otherwise want to be. The issue of
13 timing on this, we're going to have evidence as we
14 mentioned but then the jury has to decide.
15 Anybody here think that if the time goes long and
16 you're going to be thinking about your other places and
17 other things that you won't be doing because the time is
18 going long, do you think you won't be able to take the time
19 that it's going to take to actually review the evidence
20 that's been presented because you feel that you have to go
21 to work or go home and take care of your child or any other
22 thing?
23 I'm just asking does somebody here feel that they
24 would be pressured to come down with a decision because of
25 how long it may take you all when you're on the jury to

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1 reach a decision. (Indiscernible).
2 UNIDENTIFIED JUROR: I agree. I'm saying yes to
3 your question.
4 MR. STULL: You would be pressured to get out of
5 this at the other end.
6 UNIDENTIFIED JUROR: If it went past Monday of
7 next week I would feel what you're describing.
8 MR. STULL: Yeah, please feel free to speak, and
9 if these folks have a problem with it they'll let us all
10 know, I'm sure.
11 UNIDENTIFIED JUROR: Yes. If it's going to be
12 (indiscernible), because (indiscernible) figure out how to
13 be (indiscernible) schedule.
14 UNIDENTIFIED JUROR: My concern is like I
15 mentioned I work at night and I go to sleep about 4:00 in
16 the morning. If I have to report here whatever time that
17 is in, my tiredness it would not be fair to either side and
18 I guess that is better said (indiscernible) contribute
19 (indiscernible).
20 MR. STULL: Now I recall hearing one of you having
21 a person with a disability. Anybody else have a family
22 friend or close, like we looked at the law enforcement and
23 those kind of things, do you have that with a person with a
24 disability? Do you have any neighbors that have
25 disabilities or anything like that? (Indiscernible).

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1 UNIDENTIFIED JUROR: My partner has an uncle with
2 (indiscernible) syndrome. (Indiscernible).
3 THE COURT: (Indiscernible).
4 MR. STULL: I was just trying to get a feel of
5 (indiscernible). (Indiscernible) many of us here who have
6 been crime victims and many of us here haven't been crime
7 victims. So I'm just asking you what familiarity you have
8 with (indiscernible).
11 MR. STULL: Sorry to hear that but thank you for
12 sharing. (Indiscernible).
14 MR. STULL: I see we have some (indiscernible) and
15 (indiscernible) person showing male pattern baldness in the
16 room. Can you make your evaluation of the evidence without
17 being too -- we often see things in other people, I'm sure
18 -- without being prejudiced by the fact that I'm the
19 Defendant and this is how I look? We all okay with that?
20 I don't think I have anything else
21 (indiscernible), (indiscernible) who is going to be on the
22 jury. Thank you so much. (Indiscernible).
25 (Indiscernible) Oregon. Before I start out with jury

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1 selection I'm going to kind of outline what I'm looking for
2 in my (indiscernible). And (indiscernible) I'd just thank
3 you. I know it's not optional for you to be here, but
4 trial by jury is one of the fundamental rights we enjoy in
5 our American (indiscernible).
6 We have decided it's important that a jury of six
7 of our peers have to make decisions in these cases. And
8 you'll notice that there are 21 of you and we're going to
9 get down to a jury of six with one alternate. If you are
10 not on the panel don't feel like your service isn't
11 valuable or important, it is. You're the most important
12 people here today and I know it's not optional but it is
13 appreciated.
14 So with that in mind, really what I'm looking for
15 is any inherent bias that might prevent you from being
16 unbiased, (indiscernible) because that's really what jury
17 service is about, looking at the facts in making your
18 decision. So what I'm looking for is I'm going to bring a
19 topic or talk about anything where you sort of have
20 something in your (indiscernible) in your mind that might
21 influence how you view the facts in today's case.
22 And as you heard, one of the things that
23 (indiscernible) and (indiscernible) charges here today
24 (indiscernible). So as you (indiscernible) police are
25 really important (indiscernible) national consciousness

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1 (indiscernible). So I want everyone who's had either a
2 good or a bad experience with a police officer to
3 (indiscernible). So anyone here who's had an interaction
4 with a police officer go ahead and raise your hand and
5 leave it raised.
6 And now leave it raised if you've had a
7 particularly negative experience with a police officer. So
8 Mr. Rice, your (indiscernible), Ms. Austin (phonetic), Ms.
9 Walsh (indiscernible). I'm sorry, (indiscernible).
10 UNIDENTIFIED JUROR: Yes.
11 MR. MCMAHON: Thank you. So I'm going to start
12 with your response. (Indiscernible). What was your
13 experience (indiscernible)?
14 UNIDENTIFIED JUROR: So the experience
15 (indiscernible) one of my classmates was accosted by
16 someone on the street and we saw police officers and we
17 said this person (indiscernible). (Indiscernible)
18 uninterested and, you know, (indiscernible) and that was
19 (indiscernible).
20 MR. MCMAHON: Well, police officers
21 (indiscernible) is there anything that are negative and
22 you've had your experience (indiscernible)?
23 UNIDENTIFIED JUROR: I mean not in Portland, but
24 (indiscernible) could be really good at their jobs or
25 they've had their jobs (indiscernible).

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1 MR. MCMAHON: Okay. And (indiscernible) if you
2 saw police officers up on the stand you'd give them the
3 value of their testimony mutually without bringing in that
4 bad experience?
5 UNIDENTIFIED JUROR: I would assume that they were
6 doing (indiscernible) their jobs, but I wouldn't
7 (indiscernible).
8 MR. MCMAHON: So look at it (indiscernible), okay.
9 Ms. (indiscernible), I think you also raised your
10 hand. What was that experience?
11 UNIDENTIFIED JUROR: Well, actually it's a long
12 time ago. (Indiscernible) neighbors began to harass. And
13 I called the police and they came (indiscernible) he said
14 she said. (Indiscernible) and I was scared out of my wits.
15 But I also (indiscernible).
16 MR. MCMAHON: Okay, so it's fair to say
17 (indiscernible).
18 UNIDENTIFIED JUROR: Yeah.
19 MR. MCMAHON: Do you think you'd be able to
20 (indiscernible) evaluate the officers' testimony?
22 MR. MCMAHON: Ms. (indiscernible), I know you
23 didn't raise your hand for it, but you kind of indicated
24 that you have prior experience being a defendant. If it's
25 not something that you're, something that you're okay with

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1 discussing what sort of case was that?
2 UNIDENTIFIED JUROR: Well, it was a civil case. I
3 was the, owned a condominium that converted to all adult
4 and we had children. And the homeowners association didn't
5 think we were moving fast enough.
6 UNIDENTIFIED JUROR: So it wasn't a criminal
7 matter. I'm sorry, that's my mistake. I apologize. Okay,
8 so I think I also saw Mr. Rice you had your hand raised.
9 You were maybe sort of hesitant?
10 UNIDENTIFIED JUROR: I mean I just had a
11 (indiscernible) with law enforcement. (Indiscernible).
12 MR. MCMAHON: Like again just like Ms. Moss
13 (phonetic). Is it fair to say that if you see an officer
14 up there on the testimony you're not going to be thinking
15 about, you know, any particularly bad or good experience
16 (indiscernible)?
18 MR. MCMAHON: Did I miss anyone else who sort of
19 had their hand raised in this section of the jury pool?
20 Okay, now over here, Ms. Walsh, you raised your hand. What
21 was your --
22 UNIDENTIFIED JUROR: I've had interactions with
23 the police not necessarily (indiscernible).
24 MR. MCMAHON: So experiences (indiscernible).

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1 MR. MCMAHON: Have you had any (indiscernible)?
2 Do you think a bad experience with the LAPD is going to
3 impact (indiscernible) officer testimony here today?
5 MR. MCMAHON: You're not sure? Okay, so
6 (indiscernible) still might have some reservations and not
7 be able to look at officer testimony (indiscernible)?
8 UNIDENTIFIED JUROR: (Indiscernible) being honest.
9 (Indiscernible).
10 MR. MCMAHON: Thank you. (Indiscernible).
11 UNIDENTIFIED JUROR: I just recalled an experience
12 (indiscernible). My brother was only 5 years old. I was
13 taking a nap. (Indiscernible). My mother was
14 (indiscernible) playing with my brother outside. They
15 found a new puppy at (indiscernible) and they brought it to
16 the house (indiscernible), you know, (indiscernible) house
17 and she (indiscernible).
18 But (indiscernible) puppy (indiscernible) and
19 there were some neighbors (indiscernible) police officers.
20 And they were very upset and (indiscernible). Well, I told
21 (indiscernible) what happened. They took the dog, they
22 left and everything, but later on they sent a sheriff to
23 the house. And at the same time that the sheriff was
24 parking his car my husband was driving home
25 (indiscernible). (Indiscernible) changed completely when

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1 they realized that they were coming to (indiscernible). So
2 that was (indiscernible) why, you know. (Indiscernible)
3 sheriff (indiscernible). But at the same time,
4 (indiscernible) neighbors who were nice people; never had
5 any kind of bias (indiscernible).
6 MR. MCMAHON: Okay. So it's fair to say you'll be
7 able to (indiscernible). (Indiscernible).
9 MR. MCMAHON: All right, thank you very much.
10 Has anyone else had any (indiscernible) experience
11 with police that you think might impact or shape how you
12 might view police officer testimony today? (Indiscernible)
13 All right, (indiscernible). And I understand that
14 I believe Mr. (indiscernible) said that your brother-in-law
15 suffers from disabilities. Is that a (indiscernible) or is
16 that --
17 UNIDENTIFIED JUROR: A mental illness.
18 MR. MCMAHON: A mental illness (indiscernible).
19 Has anyone else here had someone that they're close to or a
20 loved one or perhaps even yourself that has had some mental
21 health issues that's had an impact on your life, just by
22 your show of hands. Okay, so we'll start over here and
23 then move back there.
24 Mr. (indiscernible), I'll start with you. What
25 was that experience?

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2 MR. MCMAHON: And do you have any (indiscernible)?
4 MR. MCMAHON: (Indiscernible)?
5 UNIDENTIFIED JUROR: I have a close friend who
6 (indiscernible).
8 UNIDENTIFIED JUROR: Yeah, my (indiscernible)
9 mental illness issues (indiscernible).
10 MR. MCMAHON: Mr. (indiscernible), you had raised
11 your --
12 UNIDENTIFIED JUROR: Yeah, close friends who dealt
13 with bipolar disorder and (indiscernible) issues
14 (indiscernible).
15 MR. MCMAHON: Yeah, I understand that they're all
16 (indiscernible) issues. Is that something that will shape
17 your thoughts and feelings about (indiscernible) someone
18 mentally ill?
19 UNIDENTIFIED JUROR: I mean, I have strong
20 feelings about the way (indiscernible) statements
21 (indiscernible) in our current system and through work in
22 social services, you know, seeing (indiscernible) they
23 should have been. So I have feelings about it. I believe
24 I could still try to be impartial for the case
25 (indiscernible).

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1 MR. MCMAHON: (Indiscernible) Mr. Montgomery,
2 (indiscernible) people that are submitting claims, does
3 that expose you to (indiscernible) or going through mental
4 health issues?
5 UNIDENTIFIED JUROR: I would say that
6 (indiscernible) clientele do have the evidence of something
7 they struggle with, yes.
8 MR. MCMAHON: Is that going to impact or shape
9 your (indiscernible) with respect to mental health
10 (indiscernible)?
11 UNIDENTIFIED JUROR: No.
12 MR. MCMAHON: All right. Moving to Ms. Francis, I
13 think you also indicated that you were a registered nurse.
14 Have you dealt with or worked with mental health patients?
15 UNIDENTIFIED JUROR: Yes. I just realized
16 (indiscernible), I thought at first you wanted just people
17 who were close to us, but (indiscernible). And as far as I
18 feel about it, I do feel like we should never
19 (indiscernible).
20 MR. MCMAHON: And again (indiscernible).
21 (Indiscernible) all right, and you know, is there anything
22 about people you see (indiscernible) justice system and
23 (indiscernible) thinking with respect to (indiscernible)?
24 UNIDENTIFIED JUROR: I am particularly
25 (indiscernible) and I feel like I just (indiscernible) in

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1 my experiences with this population and (indiscernible). I
2 feel like (indiscernible) and feel like (indiscernible) and
3 I know that the patients are struggling and
4 (indiscernible).
5 MR. MCMAHON: Thank you (indiscernible). And Mr.
6 Perez (phonetic) how is (indiscernible) family member but
7 having somebody, it sounds like (indiscernible)?
8 UNIDENTIFIED JUROR: Well, my brother-in-law
9 (indiscernible) depression. My wife has (indiscernible).
10 (Indiscernible) doesn't seem (indiscernible).
11 MR. STULL: Your Honor, I have a question in lieu
12 of an objection.
13 THE COURT: Just a moment, a question?
14 MR. STULL: Yes. The inquiry here has been about,
15 I believe it's leaned over towards mental illness and I --
16 THE COURT: It -- I just, I don't want to go into
17 this very much.
18 MR. STULL: Yes.
19 THE COURT: There's nothing in voir dire that
20 deals with any issue in the case, it's just asking people
21 about their background. So it's not -- it doesn't have to
22 be, it can't be actually about the facts of the case.
23 MR. STULL: So why are we --
24 THE COURT: So this is not an objection. This is
25 not --

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1 MR. STULL: So my objection is why are we
2 discussing mental health?
3 THE COURT: It isn't a problem. Please --
5 THE COURT: -- just let the -- yeah, let the
6 process go.
7 MR. STULL: I wanted to clarify because I know
8 your Court could rule, Your Honor.
9 THE COURT: Please be -- yeah. Please be seated.
11 MR. MCMAHON: Is there anyone else in this section
12 (indiscernible)?
14 Indiscernible) a very close friend and (indiscernible).
15 MR. MCMAHON: Well, (indiscernible). Is there
16 anyone else in this section that (indiscernible). Okay,
17 I'll go over here. (Indiscernible), did you raise your
18 hand? What was your experience?
19 UNIDENTIFIED JUROR: (Indiscernible). I don't
20 have any (indiscernible).
22 UNIDENTIFIED JUROR: Yeah. (Indiscernible) but I
23 along with several people that I know deal with mental
24 issues and I work with people that have mental health
25 issues (indiscernible).

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1 MR. MCMAHON: Okay, and (indiscernible).
2 UNIDENTIFIED JUROR: No. That was the place that
3 I worked for we got (indiscernible) but I'm still
4 (indiscernible).
5 MR. MCMAHON: Okay. And do you think that has
6 any, you know, significant (indiscernible)?
7 UNIDENTIFIED JUROR: It is entirely possible.
9 UNIDENTIFIED JUROR: But then I mean I have no
10 idea what the facts of the case are. I don't know
11 (indiscernible) on a personal level. I do have
12 (indiscernible) mental health.
13 MR. MCMAHON: Okay. And just the -- you know,
14 (indiscernible) version of what's sort of your issue
15 (indiscernible)?
16 UNIDENTIFIED JUROR: I think a lot of people that
17 (indiscernible) about the way with mental health issues are
18 dealt with and/or not dealt with (indiscernible).
19 MR. MCMAHON: All right. And Ms. Myers (phonetic)
20 is --
21 UNIDENTIFIED JUROR: A nurse (indiscernible).
22 MR. MCMAHON: (Indiscernible) on this side.
23 UNIDENTIFIED JUROR: On both my mother's and my
24 father's side I have a lot of mental illness and
25 (indiscernible) hospitalized for mental illness, so I

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1 (indiscernible).
2 MR. MCMAHON: All right. Well, (indiscernible)
3 and I appreciate (indiscernible) honest. Is there anything
4 anyone else (indiscernible) talk about or is it important
5 to them (indiscernible) mental health that we didn't talk
6 about?
8 MR. MCMAHON: All right, so (indiscernible)
9 generally now is (indiscernible) about definitions and sort
10 of what our own (indiscernible) about things are. That was
11 (indiscernible). So I'm trying to think of a good example.
12 At the end of today what's going to happen is
13 Judge Roberts is going to (indiscernible) today and
14 (indiscernible) Judge Roberts is going to instruct you as
15 to what the law is. And she may give you some
16 (indiscernible) definitions for some words that might have
17 everyday use that are a little different than your
18 (indiscernible) definitions and (indiscernible).
19 We have (indiscernible) like intentional,
20 reckless, things that sort of (indiscernible) but are a
21 very, very specific legal definition. At the end of the
22 trial, Judge Roberts is going to (indiscernible) all of
23 that legal definition. Does anyone here think that they
24 might have a problem where if there is a legal definition
25 or they take issue with for a definition that's a little

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1 bit different than their own (indiscernible) definition
2 that they might be inclined to not (indiscernible) Judge
3 Roberts' instructions? (Indiscernible) Judge Roberts'
4 instructions. (Indiscernible)?
6 MR. MCMAHON: Does anyone here think that they
7 wouldn't be able to do that; that's something they might
8 struggle with? (Indiscernible).
9 UNIDENTIFIED JUROR: I have a question.
10 MR. MCMAHON: Sure.
11 UNIDENTIFIED JUROR: (Indiscernible) access to the
12 statutes? (Indiscernible).
14 UNIDENTIFIED JUROR: (Indiscernible) access to the
15 statutes?
16 THE COURT: I'm really having difficulty hearing.
17 It's my fault, I don't have great hearing. But I'm having
18 a little trouble.
19 UNIDENTIFIED JUROR: I was wondering if we might
20 have access to the statutes.
21 THE COURT: No. You will only have the evidence
22 and the exhibits. You will not be allowed to do any
23 independent research of any type.
24 MR. MCMAHON: And (indiscernible), I think
25 (indiscernible) do a lot of legislative (indiscernible)

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1 experience and look at the law only as Judge Roberts, and I
2 think (indiscernible).
3 UNIDENTIFIED JUROR: Well, it's not really a
4 (indiscernible).
5 MR. MCMAHON: I just mean the definitions that
6 we're talking about, you know, recklessness and
7 (indiscernible), so if you can (indiscernible) and set
8 aside your own (indiscernible) only what Judge Roberts
9 (indiscernible).
10 UNIDENTIFIED JUROR: I mean, I think
11 (indiscernible) challenging to not be able to verify that
12 the definition (indiscernible) of the statute are defined.
13 MR. MCMAHON: Okay. (Indiscernible), you'd be
14 able to (indiscernible) given?
15 UNIDENTIFIED JUROR: I think I would have to
16 because I'm not allowed to verify (indiscernible).
17 MR. MCMAHON: Okay. Difficult to (indiscernible)
18 decision on the process.
19 UNIDENTIFIED JUROR: I mean I don't have to,
20 (indiscernible) frustrating (indiscernible).
21 MR. MCMAHON: All right. Well, thank you. So
22 (indiscernible) like to ask, you know, there are a lot of
23 times where this is (indiscernible) topics (indiscernible).
24 I'd just like to ask, is there something that you think I
25 should have asked or an issue that you think is important

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1 or that might impact (indiscernible) the court
2 (indiscernible)? (Indiscernible) question you wish you'd
3 asked. Does anyone have anything like that that you wish
4 you'd asked?
5 UNIDENTIFIED JUROR: I've always been told that
6 you shouldn't represent yourself. It's always a bad
7 decision. (Indiscernible) perception about the case.
8 MR. MCMAHON: (Indiscernible) deliberations you're
9 going to follow the Judge's instructions?
10 UNIDENTIFIED JUROR: I'm already trying to
11 (indiscernible) change (indiscernible).
12 MR. MCMAHON: All right. And finally, Judge
13 Roberts is going to instruct you that you're not to
14 consider bias or prejudice or even the potential
15 consequences of your decision, but (indiscernible) trial
16 (indiscernible) decision.
17 I've had cases where a juror has been on the panel
18 and after being sworn in (indiscernible). (Indiscernible)
19 have to make a decision and they were (indiscernible)
20 struggle. And the fact of the struggle would impact how
21 they would view the evidence and how they would make a
22 decision. So is there anyone here today who think that
23 they might struggle with that or they might have a
24 difficulty making a decision (indiscernible)?
25 UNIDENTIFIED JUROR: (Indiscernible) making

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1 decisions.
2 MR. MCMAHON: Okay, just so (indiscernible). Mr.
3 (indiscernible)?
4 UNIDENTIFIED JUROR: I was through the judicial
5 system found guilty of an infraction (indiscernible) but it
6 was not a jury, it was between the judge and myself
7 (indiscernible). And I know (indiscernible), and I could
8 understand the judge (indiscernible). I understand this is
9 a jury, (indiscernible) and I do have (indiscernible)
10 everybody (indiscernible) in a short amount of time.
11 MR. MCMAHON: And do you think that might impact
12 how you view the evidence in this case?
13 UNIDENTIFIED JUROR: I hope not, but it is in the
14 back of my mind.
15 MR. MCMAHON: Okay. The Judge will instruct you
16 then (indiscernible) set that aside and you have to follow
17 (indiscernible) given (indiscernible).
20 UNIDENTIFIED JUROR: I just have no idea whether I
21 could.
22 MR. MCMAHON: So you don't know. You don't know
23 if you could (indiscernible).
25 MR. MCMAHON: Okay. Do you think that might

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1 impact how you view the evidence or how you might hear
2 testimony?
4 MR. MCMAHON: (Indiscernible). Even if the Judge
5 were (indiscernible) with guidance, here's a list
6 (indiscernible) and here's the evidence and what you'll be
7 considering.
8 UNIDENTIFIED JUROR: I hope I would.
9 MR. MCMAHON: (Indiscernible)? Okay, thank you
10 very much for your time.
11 THE COURT: Okay, and thank you very much. We're
12 going to take an afternoon break and we're going to pick a
13 jury and then we'll get started with the jury after the
14 break. So while we are on break I want you to remember not
15 to -- don't discuss the case amongst yourselves, don't
16 discuss it with anyone else. You can stand, you can
17 stretch. There are facilities in the jury room back there
18 for the jurors. Mr. Gibson will show you those.
19 And folks, we'll select a jury back in chambers,
20 but I'll give you a few minutes to think about it out here
21 and then we'll get started with that part of the
22 (indiscernible).
23 THE CLERK: So just in this moment we're going to
24 take a break. (Indiscernible) stay in here, don't go
25 anywhere unless you have to use the bathroom because we are

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1 going to try to make a (indiscernible). Maybe you can step
2 out in the hall or something but don't go too far away.
3 We're going to resume in about 10 or 15 minutes, so
4 everybody stay with us. Okay, thanks. Oh, and if you need
5 to use the bathroom they're right through that door in the
6 back room. There's two bathrooms in there.
7 UNIDENTIFIED JUROR: (Indiscernible)?
8 (Break taken from 3:30 p.m. to 3:32 p.m.)
9 MR. MCMAHON: Could we just have the --
10 (indiscernible), please go out into the hall just for a
11 second.
12 VOICE: Sorry, I --
13 THE COURT: Just for a second.
14 MR. MCMAHON: Thank you, appreciate it.
15 Your Honor, as I was walking back in, Ms. Eng
16 walked up to Defense counsel table and about three feet in
17 front of the jurors and called out a specific name of a
18 witness and started talking about how this is the first one
19 (indiscernible) that is being sued, that they're not
20 trustworthy and was making commentary on evidence and
21 witness reliability, which is wholly improper
22 (indiscernible).
23 THE COURT: Completely improper. It is completely
24 improper.
25 MS. ENG: (Indiscernible).

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1 THE COURT: No. I instructed you not to speak in
2 the presence of the jury. Standing in front of the jury
3 and talking is totally unacceptable.
4 VOICE: (Indiscernible).
5 MS. ENG: I wasn't trying to deliberately
6 (indiscernible). I did (indiscernible).
7 THE COURT: We have jurors that --
8 MR. MCMAHON: Don't talk when the jury's here.
9 THE COURT: Don't talk when the jury's here. I
10 don't want you to be interfering with the proceedings.
11 MS. ENG: I wasn't talking (indiscernible).
12 THE COURT: And anything else along that line,
13 speaking audibly to the jury or speaking at the counsel
14 table in front of the jury, you're going to be excluded.
15 MS. ENG: (Indiscernible). I apologize.
16 (Indiscernible).
17 THE COURT: Well, you have every right to be here
18 but you have no right to talk in front of the jurors.
20 MS. ENG: I'm so sorry. It was my error. I was
21 absentminded. (Indiscernible).
22 MR. MCMAHON: Your Honor, I'm asking that she be
23 excluded. She's done this twice now before. She was
24 loudly talking. Admittedly, once before the jury she was.
25 THE COURT: I didn't hear her before.

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1 MS. ENG: It may get conflict of interest.
2 THE COURT: I've heard about this now --
3 MS. ENG: I will --
4 THE COURT: Please, please. Okay, the problem is
5 that you're injecting yourself in the proceedings and you
6 keep doing it. Now you are not a party, you are not an
7 advocate, so you can watch.
8 MS. ENG: (Indiscernible) witnesses.
9 THE COURT: You can watch.
10 MS. ENG: Okay.
11 THE COURT: You can watch. And I'm telling you
12 that if you do this again you will be excluded. I'm not
13 going to exclude you now, but --
14 MS. ENG: Well, I (indiscernible) --
15 THE COURT: I am not going to exclude you now but
16 if hear --
17 MS. ENG: -- (indiscernible).
18 THE COURT: -- your words again I will do so.
19 MS. ENG: Officer Engstrom is being -- and I have
20 (indiscernible) --
21 THE COURT: All right, that's enough.
22 MS. ENG: Thank you. I'd like to be --
23 (indiscernible) -- he's a very bad (indiscernible) --
24 VOICE: (Indiscernible).
25 THE COURT: Please do.

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1 MS. ENG: He's a violent (indiscernible) --
2 MR. MCMAHON: Your Honor, can you (indiscernible)?
3 THE COURT: And that -- yeah. Wait until the
4 jurors are clear.
6 THE COURT: I think -- yeah. I think we may have
7 concluded that.
8 MR. MCMAHON: Beg your pardon?
9 THE COURT: I think perhaps we've concluded that
10 issue.
11 MR. MCMAHON: I think so.
12 THE COURT: Okay, all right.
13 MR. MCMAHON: And perhaps as, I don't know, jury
14 instruction could -- when the jurors return just as a
15 general jury pool could they be instructed to ignore
16 anything that Ms. Eng said? Even if they're not -- I just
17 think that if there's even a slight chance that the jury
18 heard anything she said, I'd ask (indiscernible)
19 instruction be given.
20 THE COURT: Okay. We're not going to have -- we
21 don't have words from the gallery that the jury hears that.
22 MR. STULL: Oh, absolutely, Your Honor. I have no
23 problem with that.
24 THE COURT: Yeah. So we're just going to have to
25 tell her not -- I'm going to tell them not to pay any

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1 attention to what anybody else did. And that's --
2 MR. KELLEY: She was not here as part of the
3 Defense case, Your Honor. We didn't ask her to come.
4 She's not our witness.
5 THE COURT: I'm not saying she is. I'm not
6 unhappy with you. I'm not unhappy with you. I'm kind of
7 unhappy that I could keep saying I don't want to hear you
8 anymore and I couldn't stop it; did not indicate that she
9 was going to be able to restrain herself.
10 MR. STULL: She's quite passionate, Your Honor.
11 She had an issue with one of the witnesses.
12 THE COURT: That's what I gathered. But it
13 doesn't have any place in this trial.
14 MR. MCMAHON: Yes.
15 MR. STULL: Of course. We all understand that but
16 it's hard for her having been through her (indiscernible).
17 (Indiscernible) qualify that and then we'll let that go.
18 THE COURT: Her problem but not our problem, okay.
19 We're going to have --
20 MR. STULL: Is she excluded from the rest of this
21 proceeding?
22 THE COURT: Yes, she is.
23 MR. STULL: Okay, all right.
24 THE COURT: Okay.
25 MR. MCMAHON: Okay. I think we can go back --

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1 (Break was taken from 3:36 p.m. to 3:59 p.m.)
2 THE CLERK: Okay, so I'm going to seat those who
3 are sticking with us and when I do, when I call your name
4 up come over here and have a seat. We're going to start
5 with the middle row this time (indiscernible), and when I
6 call your (indiscernible). Teri Lynn White; Derek Matthew
7 Kizaway; Sammy P. Agner (phonetic); Matthew Scott Penahan
8 (phonetic); (indiscernible) ; and (indiscernible); and
9 Dana Clara Walsh.
10 THE COURT: If you are not seated in the jury box,
11 this is our time to thank you for your participation. It
12 was a pleasure to you meet you all, and to send you back
13 down to the jury assembly room. Your service in this
14 portion of the trial is appreciated and invaluable. Thank
15 you.
16 Those in the box I'll ask you to stand and be
17 sworn as our jury in this case.
18 (Jury sworn.)
19 THE COURT: Thank you. Members of the jury, I
20 will now explain to you some of the rules that we will
21 follow in this case. Most trials involve about eight
22 stages, and I'll explain to you what those are. First of
23 all, there's the jury selection. We have just completed
24 that process. The second stage is the explanation of the
25 general rules and that's what I'm about to do, or that's

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1 what I'm in the course of doing.
2 And the third stage is the opening statements. In
3 the opening statements, each side presents the evidence as
4 they expect it to be and that gives you a bird's eye view
5 of the case. After the opening statements we'll have the
6 presentation of the evidence. And then this is the stage
7 in which witnesses are called and give their testimony and
8 any exhibits which are physical things, those things are
9 offered and either received or rejected.
10 On the next stage of the case after the close of
11 the evidence are the closing arguments. In the arguments
12 each side will argue to you why you should resolve the case
13 in one way or the other. Then I will in the next stage
14 give you your jury instructions. Those are instructions as
15 to the law. You've given an oath to follow the law and
16 this is what you will know of the law is the instructions
17 that I'll give to you.
18 After you've heard the jury instructions you will
19 then retire to the jury room and conduct your
20 deliberations, reach a verdict, you'll then signal to the
21 bailiff that you've reached a verdict and we will have you
22 back into the court and your verdict will be read. This is
23 a return of the verdict.
24 In the course of this process you have two major
25 roles. Number one, the jury is the judge of the facts so

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1 you decide what the facts were, what occurred. Your second
2 role is to apply those facts to the law as I instruct you
3 that the law is. When you do this, you must follow the law
4 as I instruct you it is whether you agree with the law or
5 not. You must not allow yourself to be influenced at all
6 by personal feelings, prejudice against, or sympathy for
7 any participant in these proceedings.
8 I'll explain in a moment what is and is not
9 evidence, and this is a very important distinction. As a
10 judge I am a gatekeeper. I'm the gatekeeper on the
11 evidence. If there is an objection to the offer of
12 evidence, either through a witness or through an exhibit,
13 then I will rule whether it is appropriate under our rules
14 of evidence or under our statutes to receive such material
15 in evidence in the case.
16 If I sustain the objection then the testimony
17 can't be offered or an exhibit can't be received. If I
18 overrule the objection it can be. If I do sustain an
19 objection, please disregard anything that was asked of the
20 witness or anything that was said about an exhibit. If I
21 excluded the testimony, disregard the exhibit or the
22 testimony, whatever you heard, and you're not going to --
23 I'll not have an opportunity to explain to you the laws
24 that I am applying in deciding whether evidence comes in or
25 it does not come in, but it is part of my job. So just

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1 disregard that offer and continue with your work on the
2 evidence as received.
3 In general, just in general terms, the rules of
4 evidence in the statutes exclude certain matters on the
5 theory that that evidence is not reliable. That's why we
6 exclude it. However, simply the fact that evidence of a
7 certain character can be received doesn't mean that it
8 necessarily is reliable. It will be your job or part of
9 your job to decide what weight to give the evidence, what
10 testimony you will or will not believe. Those are part of
11 your fact finding tasks.
12 So while you're not allowed to consider any
13 evidence that's been excluded, you're not required to
14 credit any evidence that is received. You're free to make
15 your judgments about what evidence is or is not believable
16 or reliable and what weight or significance that evidence
17 has in determining the facts in the case.
18 Evidence consists of the testimony of witnesses,
19 they'll be under oath; or/and it consists of exhibits
20 received in evidence. Exhibits are physical things such as
21 charts, photographs, objects, and things of that sort.
22 You'll have the exhibits with you when you deliberate. You
23 may draw reasonable inferences and reach conclusions from
24 the evidence, but you're not to engage in speculation or
25 guesswork.

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1 In understanding what is evidence it's important
2 to remember what is not evidence. One thing that is not
3 evidence and I've already told you this, it's not evidence,
4 the charges brought by the State are not evidence. The
5 Defendant is innocent unless and until the State has proven
6 guilt beyond a reasonable doubt based on the evidence, and
7 that's not evidence.
8 Questions that are asked by either side are not
9 evidence either. Now, this particular point is important
10 to remember because it kind of goes against the grain of
11 our day-to-day dealings with each other and our day-to-day
12 experience. Unlike outside this courtroom if your friend
13 asks you did you see so-and-so's new car, maybe you didn't
14 but you might draw the inference from that very question
15 that so-and-so has a new car.
16 But that's exactly what you can't do here. If one
17 of the sides asks a witness did you see, and let's say it's
18 a car case, did you see the car driving down the street and
19 the witness says no, you have now heard no evidence at all
20 that a car drove down a street. The mere question
21 shouldn't lead you to draw any inferences, so that's an
22 important thing to remember.
23 Of course you have to take into consideration and
24 understanding the meaning of the witness's answer. So a
25 witness says yes, then what in effect the witness has just

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1 said is yes, I saw a car drive down the street. So you
2 have to take the context to understand the answer.
3 Now, as I said before, from time to time a lawyer
4 may object to something that's in evidence and I rule on
5 that. It's important not to speculate about what the
6 evidence might have been had I allowed it. Don't speculate
7 about what the answer might have been and don't speculate
8 about what the exhibit might have been. If I exclude it,
9 it's out of the case for all purposes in your
10 deliberations.
11 Sometimes an objection comes to evidence after
12 it's already come in, after the witness has quickly
13 answered it or after an exhibit has been described. And if
14 I rule on such an objection as I will if it's raised and if
15 I sustain the objection, I'll also order the evidence to be
16 stricken and I will instruct you to disregard the evidence.
17 You must follow these instructions and don't consider for
18 any purpose the evidence that I've told you to disregard.
19 We're going to give you notebooks and paper to
20 keep notes with and that's with your convenience. Do we
21 have the notebooks there, Mr. Gibson? Ah, okay. We're
22 going to give those to you and (indiscernible) will give it
23 to you now.
24 Now, you may take notes in the course of the
25 trial. It often helps people concentrate and remember, but

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1 they're just for your convenience. Remember that both
2 sides are entitled to the considered decision of each
3 juror, so don't let another juror's notes influence you
4 unduly. You must rely on your own recollection of what the
5 evidence is.
6 And also don't let your note taking keep you so
7 busy that you fail to observe the evidence as it comes in
8 and fail to observe the witnesses. Sometimes that provides
9 important evidence to you. Whenever we're adjourned in the
10 evening, at breaks, at any time, your notebooks will stay
11 in the jury room back at the end of the courtroom and
12 nobody else is going to have access to them.
13 Now, don't interpret anything that I do, any
14 ruling I make or any other action I take in the course of
15 the trial to suggest to you that I have formed any opinion
16 about the outcome of this trial. It is you, you alone, who
17 are the judges of the facts and who have the responsibility
18 for applying the law to those facts.
19 It's very, very important that you not discuss
20 this case with anyone in the course of the case. Once the
21 case is over and we've received a lawful verdict and you've
22 been discharged, then you get to discuss it if you want
23 with anybody at all. Hear others' opinions, give your
24 opinion, tell your observations; at that point you can talk
25 about it but not until that point.

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1 And the reason for this is simple. You and you
2 alone have been selected as the jurors in this case, not
3 your friends or your family. If you hear the opinion or
4 the input perhaps even some facts from somebody outside
5 this courtroom no one knows what that is. We don't have
6 the opportunity to have the parties argue to you about the
7 impact or about the reliability of whatever's been said to
8 you and nobody has the opportunity to object to me about
9 whether it's admissible under our rules of law.
10 Furthermore, you may have heard the opinion of
11 somebody who's very close to you and that might have some
12 impact on you whether you want it or not, so it's important
13 just not to go there, not to allow it to happen. You can
14 be asked, you might be asked, you very likely will be asked
15 did you get on a jury, and you can say yes, you did. You
16 can tell them how long the case is expected to go because
17 some people will need to know that like employers.
18 But if the next question happens to be, well,
19 what's the case about, you're going to have to say that you
20 can't talk about that now because you're under a court
21 order you can't talk about it until the case is all over,
22 because it's important to preserve the integrity of this
23 system and that's the only way that we can preserve it.
24 Now by the same token and for all the same
25 reasons, don't do any individual investigation of anything

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1 about the case. Don't look up things on the internet or in
2 books or in papers about anything having anything to do
3 with this, not about the people, not about the witnesses,
4 not about the law, not about the facts. Don't visit
5 locations.
6 Just what we learn about the case, what you learn
7 about the case will be what comes in here in open court, so
8 everyone knows what the case is going to be tried upon;
9 everyone has the opportunity to raise objections or to make
10 arguments to you about interpreting things, so no
11 individual investigation and no communications about the
12 case. When I say that, communications or investigation,
13 that includes all the electronic means that we have to
14 communicate with others or do research, so no Googling, no
15 Twittering, no emails, no chat rooms, nothing on Facebook,
16 nothing about this case.
17 When we get to the end of the case by the way I'm
18 not going to be able to give you a written transcript of
19 the testimony. We're compiling an audio version, audio
20 transcript of the trial but we can't have it printed out in
21 time for you to see it. I don't have the capacity to play
22 back parts of it to you, so you're going to have to rely on
23 your own memory and observation in the course of the trial.
24 Please give your attention, your focus, on the evidence as
25 it comes in so that you can do that.

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1 We're going to now hear the opening statements by
2 each side in which they lay out the evidence that they
3 expect to come out, and then we'll have the evidence in the
4 trial. I was asked and I will also give you a special
5 instruction, which is that we did have one person in the
6 gallery who made some statements. I don't know if anybody
7 heard them. Disregard anything that was said or that you
8 heard from the audience back here coming forward and
9 talking. That's not part of the trial and don't consider
10 it for any purpose. Thank you.
11 And now we'll hear first from the State because
12 the State has the burden of proof and the burden of going
13 forward, and then we'll go --
14 MR. MCMAHON: Thank you. May it please the Court,
15 Counsel, ladies and gentlemen, we're here today because on
16 November 25th, 2015, Mr. Stull (indiscernible). You're
17 going to hear first from some Portland City Hall witnesses.
18 (Indiscernible) that on November 24th, Mr. Stull was
19 (indiscernible) that he (indiscernible) and he
20 (indiscernible) told that he couldn't return to City Hall
21 for 24 hours.
22 You're going to hear that in advance of that order
23 (indiscernible) November 24th, walked into City Hall
24 (indiscernible) and obstructed a meeting (indiscernible).
25 That during this time Mr. Stull he had (indiscernible). He

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1 began to rant, began to (indiscernible), talking about a
2 whole host of unconnected incidents. You're going to hear
3 (indiscernible) trespass (indiscernible).
4 You're going to hear Mr. Stull (indiscernible).
5 In fact you're actually going to see video taken
6 (indiscernible) City Hall showing Mr. Stull's
7 (indiscernible) through repeated efforts by not only City
8 Hall's security personnel but by (indiscernible). After
9 approximately 20 minutes (indiscernible) and the Portland
10 Police were asking (indiscernible) walk out, give him a
11 chance to resolve this.
12 But Mr. Stull doesn't take any (indiscernible).
13 He said he was right. He was angry, demanding that the
14 ambulance come and pick him up, demanding that someone
15 (indiscernible) 911, demanding and not listening to any
16 instructions (indiscernible), not following that trespass
17 order, not following the simple requests of the City Hall
18 staff to walk out of that meeting, instead Mr. Stull
19 (indiscernible).
20 You're going to hear that (indiscernible) of the
21 Portland Police was the first officer contacted. When Mr.
22 Stull walked up to him, got very close, (indiscernible)
23 placed his hand on Mr. Stull's chest and gave him some
24 space. (Indiscernible) simply extended his arm and gave
25 him some space. You also may hear that Sergeant

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1 (indiscernible) called (indiscernible) to come and try to
2 address Mr. Stull's concern. You're going to hear that
3 after that initial encounter City Hall security
4 (indiscernible) asked Mr. Stull to leave and
5 (indiscernible).
6 At that point after those repeated warnings, those
7 constant requests and that prior trespass order, after all
8 efforts to resolve peacefully (indiscernible) Mr. Stull was
9 placed under arrest, and as Officer Engstrom does take him
10 under arrest Mr. Stull (indiscernible). Officer Engstrom
11 took him by one hand and asked Mr. Stull, I need you to
12 calm down; I need you to calm down.
13 At this point Mr. Stull's yelling, screaming,
14 making demands -- and you're going to see all of this on
15 the video. Officer Engstrom (indiscernible), Mr. Stull,
16 please come with me, please calm down (indiscernible). The
17 response, Mr. Stull raises his fists and twice strikes
18 Officer Engstrom in the head and chest.
19 You're going to hear at that point after Mr. Stull
20 (indiscernible) lashes out that Officer Engstrom
21 (indiscernible) go to take him into custody. They had to
22 push him against the City Council table because he is
23 struggling and resisting and fighting back, trying to wrest
24 his arms free from their grasp (indiscernible). All the
25 while (indiscernible), fuck you, fuck you, I have a

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1 disability. After yelling (indiscernible) they were
2 finally able to get his hands behind his back.
3 They used two sets of cuffs to handcuff him
4 (indiscernible) walk out of the building. As they were
5 walking out of the building Mr. Stull does not stop
6 resisting (indiscernible) kicking and fighting.
7 (Indiscernible) kick Officer Engstrom twice in the shins.
8 Finally, they're able to get him outside (indiscernible).
9 (Indiscernible) past the point where they told him
10 (indiscernible) Mr. Stull has resorted to violence.
11 Once into the back of that car Mr. Stull began to
12 kick violently. You're going to see pictures of
13 (indiscernible), the metal (indiscernible) he managed to
14 kick and snap off inside the police vehicle potentially
15 damaging the (indiscernible) he didn't have any other means
16 of expressing himself. His yelling and anger is a tirade
17 (indiscernible). (Indiscernible) shout and try to break
18 things (indiscernible).
19 You're going to see several (indiscernible) of
20 video and you'll hear from several witnesses. At the end
21 of today or at the end of trial you're going to be
22 presented with that evidence and I would ask and encourage
23 you (indiscernible) consider (indiscernible) Mr. Stull's
24 actions. And once you see the evidence and you're
25 instructed as to the law (indiscernible) I would ask you to

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1 find him guilty.
2 (Indiscernible) officer for those punches and
3 kicks, Officer Engstrom, resisting arrest, for his trying
4 to wrest away, pulled his arms out, get away from the
5 police officer that's (indiscernible) under arrest, and
6 finally (indiscernible) for potentially damaging and
7 snapping off those brackets (indiscernible). Those are the
8 facts. That is the information (indiscernible).
9 At the close of the trial I would ask you find the
10 Defendant guilty on all three counts. Thank you.
12 MR. STULL: There's going to be some evidence and
13 you're going to find me not guilty because you're going to
14 carefully consider that evidence. And what you're going to
15 see is a person who was scheduled to be on the agenda at
16 9:30 on November 25th, 2015, was less than 24 hours earlier
17 given a trespass exclusion. You'll learn that the process
18 to get on that agenda was not that day, 24 hours; it wasn't
19 even that week (indiscernible). It was before that.
20 And you're going to learn by observing the
21 gentleman referencing right here by the State, the
22 attorney, is certainly not the gentleman (indiscernible).
23 You're going to see the sequence of events. You're going
24 to see the request for a 911 call for central pain
25 syndrome. Those three words are going to be heard again

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1 and again and again.
2 And you're going to hear in the evidence that
3 you'll have the opportunity to review that this entire
4 incident was treated like a mental illness was occurring
5 when in actuality what was occurring, and you'll be able to
6 observe this, was a worsening of the condition that one,
7 the ambulance was requested for; two, was not ordered. And
8 you're going to hear on the various versions of the audio
9 and video tape, the Defendant saying this could kill me.
10 You'll hear a lot of screaming. You're going to
11 hear the call requesting the ambulance. In the background
12 you're going to hear screams of pain. (Indiscernible)
13 additional requests for an ambulance; courtesy transport to
14 a specific place for a specific reason. You're all going
15 to review that evidence and see in fact that that request
16 for that medical transport was utterly disregarded.
17 They're going to portray this entire case as one of being
18 an ugly duckling when it's really a beautiful swan. You
19 know what that's about.
20 And I'm going to give you one final thing to just
21 say, the arguments are not evidence. The judge has
22 instructed you that the questions aren't evidence. The
23 evidence is the exhibits. You're going to see some
24 documents. And you're going to have the opportunity to
25 (indiscernible) and you're going to see a beautiful swan

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1 the entirety of the time that's been treated like an ugly
2 duckling.
3 And finally, I'll close my opening arguments with
4 this. If I were to say my words in this order: black,
5 white, orange, lemon, apple -- (indiscernible) apple,
6 lemon, orange, white, black, going one direction you would
7 think of the orange being a color and going the other
8 direction you would think of the orange being a fruit. But
9 do not allow them to trick you because the evidence in this
10 case (indiscernible) you will find the Defendant myself,
11 not guilty.
12 MR. MCMAHON: Thank you, Your Honor. The State
13 would call James Wood (indiscernible) to the stand.
15 (Witness summoned.)
16 THE CLERK: Please raise your right hand. Do you
17 solemnly swear under the penalty of perjury that the
18 testimony you're about to give will be the truth, the whole
19 truth and nothing but truth?
20 THE WITNESS: Yes, I do.
21 THE CLERK: Please have a seat. State your first
22 and last name and spell your name for the record.
23 THE WITNESS: James Wood, J-a-m-e-s is the first,
24 Wood, W-o-o-d.
25 ///

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1 WHEREUPON,
2 JAMES WOOD
3 a witness, having been duly sworn, was examined and
4 testified as follows:
5 DIRECT EXAMINATION
6 BY MR. MCMAHON:
7 Q Good afternoon, sir. What is your current
8 occupation?
9 A I am a security guard for G4S Corporation. We
10 contract to the City.
11 Q Okay, and when you say the city what do you mean?
12 A The City of Portland, City Hall, mayor's detail.
13 Q Okay. And where are you specifically posted?
14 What's your assignment at G4S?
15 A We work the doors in City Hall and Portland
16 Building and then we work in the mayor's office proper.
17 Q And (indiscernible) before you worked for G4S?
18 A I was a police officer for Portland.
19 Q How long did you work?
20 A 29 years.
21 Q (Indiscernible) prompted a career change?
22 A Retirement, just --
23 Q And what do your duties working for G4S involve?
24 A We are there to calm conflict situations. People
25 get upset. They disturb proceedings, City Council. People

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1 are upset, outraged, whatever, and we do our best to calm
2 that. That's a very, very few times it goes to arrest.
3 Q All right. Now, when you're working for G4S
4 you're actually (indiscernible) City Hall?
5 A Yes, we are.
6 Q And do you carry identification that identifies
7 you're working for a private security (indiscernible)?
8 A Yes, we do.
9 Q And for the purpose of potentially trespassing
10 someone are you considered, or have you been given the
11 authority to trespass individuals from City Hall?
12 A Yes, we have.
13 Q (Indiscernible)?
14 A That would have been the City of Portland, right
15 up through our boss Bob Kita (phonetic), at the time, from
16 the Portland Building, the top supervisor.
17 Q And where were you stationed on November 24th,
18 2015?
19 A The 24th I was at the City Hall 4th Avenue doors.
20 Q Okay. (Indiscernible) building was just right up
21 the street here on 4th Avenue?
22 A Yes.
23 Q This may sound like a silly question, but is that
24 located in the City of Portland in the State of Oregon?
25 A I understand that. Yes, it is.

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1 Q What were you doing on November 24th?
2 A I was at the doors watching for people, helping
3 people, assisting people, and at that time I was called
4 into the Office of Neighborhood Involvement on a
5 disturbance of somebody who they had tried to deal with and
6 came time to leave and they would not leave.
7 Q Okay. What's the Office of Neighborhood
8 Involvement?
9 A That is the office that gives all permits for
10 street parties, it -- multi-facet, it gives the marijuana
11 permits, street permits for festivals. It is also the
12 information.
13 Q And --
14 A Information number, when you call you need
15 information that's the number to call.
16 Q Okay, so you said initially you're on like sort of
17 the first one at the doors?
18 A Um-hum.
19 Q Where is the Office of Neighborhood Involvement?
20 A It is at the south end of the first floor of City
21 Hall.
22 Q And what did you see when you responded to that
23 call in the Office of Neighborhood Involvement?
24 A I got in there. Mr. Stull, to my right at the
25 table with the beard, was there. He appeared visibly

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1 upset. They had had a situation, he had a request and they
2 didn't feel they could fulfill it and he was not settling
3 for that.
4 Q What was he saying when you --
5 A I don't have a report to refer to exactly, but
6 that he was upset about not being served and he wasn't
7 going to leave. We informed him at a certain point that he
8 was disturbing. He was going to be trespassed and excluded
9 from the building on a 24-hour basis.
10 Q Did you give him an opportunity to leave before
11 you told he had trespassed?
12 A Yes.
13 Q Did you give him more than one opportunity?
14 A Yes. We were there several minutes and we called
15 for the police to come. At that time he left Office of
16 Neighborhood Involvement, went up to Commissioner Fritz's
17 office. At that time Sergeant Jason King was accompanying
18 him. He was in Commissioner Fritz's office for a short
19 time, came out and at that time we were again, the police
20 were still coming. At that time Sergeant Cohen arrived.
21 He spoke with Mr. Stull for just a minute and Mr. Stull
22 left out the 5th Street Avenue doors.
23 Q Okay. And were you actually the person that told
24 Mr. Stull he had trespassed?
25 A Yes.

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1 Q What did you tell him, did you give a time limit
2 on the trespass?
3 A 24 hours.
4 Q And what time did you give him that?
5 A That would have been around, I believe late
6 afternoon, 3:30 or so, p.m.
7 Q Did he indicate he understood or acknowledged the
8 trespassing (indiscernible)?
9 A Yes.
10 Q How so?
11 A I'm not going to leave anyway. You can exclude
12 me. I'm not going to leave. I'm going to wait for the
13 police to come. I said the police are going to come and
14 arrest you. And --
15 Q And just to be clear --
16 A Yes.
17 Q -- that's what he said to you?
18 A Yes.
19 Q Okay. And did he leave then? So you told him and
20 he acknowledged that that --
21 A Yes.
22 Q Were you also on duty the next day, November 25th?
23 A Yes, I was.
24 Q And just to clarify, this is actually the next
25 day, correct?

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1 A Correct.
2 Q And what were you doing or where were you posted
3 on November 25th?
4 A The next morning I was posted in the Portland
5 Building at the 5th Avenue doors, and at right around 9:00
6 a.m. on City Council days that position is detailed to go
7 over to City Hall to make a sweep for any items left,
8 people, anything out of order. We first go to the third
9 floor. We leave that locked. We go down, go into the
10 locked City Council. We secure that as far as scanning the
11 room, going behind the commissioner's desk, making sure
12 that there's no debris, any suspicious items.
13 And at that point it was about 9:15 and that's
14 when we let the public in the building in the City Council
15 chambers. I did so and I was just turned around and had
16 taken a seat then Mr. Stull marched in. I looked up and I
17 told him that you know you're excluded for 24 hours and
18 this isn't even close. And he replied, says yeah, I know I
19 am but I'm not leaving.
20 Q Okay. So (indiscernible) what Mr. Stull said in a
21 few minutes, but I want to just (indiscernible).
22 A Sure.
23 Q So on the 24th you're actually in the City Hall
24 Building, correct?
25 A Yes.

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1 Q And so then where are you on the 25th?
2 (Indiscernible) a separate (indiscernible)?
3 A Correct.
4 Q And then you went back over to City Hall.
5 A Correct. You're posted at the Portland Building.
6 That position clears the chambers so that the guard that is
7 in the mayor's office proper escorts the mayor to chambers
8 at 9:30, and that way you have two security guards in
9 chambers when they first get there.
10 Q And what floor is the City Hall compared to the
11 commissioner (indiscernible) on?
12 A The mayor's office?
13 Q The commissioner, the office --
14 A The -- oh.
15 Q Where is the conference room? I'm not sure of the
16 technical terms.
17 A The Council chambers?
18 Q Yes, correct.
19 A Second floor.
20 Q Second floor.
21 A Yes.
22 Q And you say it was on, and those are within the
23 boundaries of City Hall?
24 A Correct.
25 Q And you were on that second floor and that was

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1 where, was that where you saw Mr. Stull?
2 A Yes, and he'd been excluded from the building.
3 Not just the office of Neighborhood Involvement, but he'd
4 been excluded from City Hall for 24 hours.
5 Q Okay. What did Mr. Stull do when he entered the
6 Council chambers?
7 A He walked right by me. I informed him. He looked
8 over at me and said, well, I'm coming in anyway, I'm here
9 to testify.
10 Q How did you respond to that?
11 MR. KELLEY: Objection, hearsay.
13 MR. KELLEY: Pardon me? Prior statements of this
14 witness are hearsay.
15 THE COURT: I understand what the objection is
16 although maybe we'll have a chance to talk about -- I'll
17 make suggestions. But --
18 MR. MCMAHON: (Indiscernible.)
19 THE COURT: Pardon? It's not, as I understand it
20 the statement was not a statement of fact, as it is not an
21 assertion of fact it can't be hearsay. So I'll overrule
22 the objection.
23 BY MR. MCMAHON:
24 Q What did you do after Mr. Stull told you wouldn't
25 leave?

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1 A I got on the line to the -- I informed my
2 supervisor. I informed the lieutenant at Portland Building
3 that dispatches that, you know, gives us, calls us point to
4 point. And I let the guard in the mayor's office to know
5 to not bring the mayor down until we were cleared.
6 And at that time after I got people notified then
7 I got on the non-emergency police line as Mr. Stull was --
8 there were people gathered around different seats. I don't
9 know or remember just how many, but it was not full by any
10 means. And he was starting to speak just randomly to the
11 crowd, and at that time I got on the non-emergency line.
12 In just a short bit, Sergeant Cohen came in and asked me if
13 I had called 911.
14 MR. KELLEY: Objection, hearsay.
15 THE WITNESS: Yep.
16 THE COURT: A question cannot be hearsay. I
17 overrule that.
18 BY MR. MCMAHON:
19 Q Okay. I'm sorry, you're sort of midstream. You
20 said a sergeant just arrived, and who was that sergeant and
21 what happened?
22 A At that time Sergeant Cohen came in, our other G4S
23 security sergeant, and asked me if I'd called the police
24 and I said I'm on non-emergency but I'm stuck here. And he
25 called 911. A short bit after that a police officer

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1 basically just put his head in, observed, and after that
2 then the police came in and --
3 Q Okay. So you're actually in the chambers
4 basically from when Mr. Stull first entered all the way
5 through the entire time?
6 A Yes.
7 Q And at any point were any of the commissioners or
8 (indiscernible)?
9 A Yes. Actually Amanda Fritz, Commissioner Amanda
10 Fritz came in. She approached Mr. Stull in the first row
11 of public seating. At that time he turned, she said
12 something, I don't know what. He turned to her and he
13 explained to her that she'd left him homeless, broke and
14 hungry and yelled directly into her face that he'd killed
15 her husband. At that time she left the room.
16 Q And had Mr. Fritz's husband recently died or
17 passed on?
18 A About a year before he had been killed in a car
19 crash on I-5.
20 Q And did you ask Mr. Stull to leave?
21 A At that time, no.
22 Q But you didn't, but did you relay that to him when
23 he first entered that he could not be here?
24 A Oh, yes.
25 MR. MCMAHON: Your Honor, at this time we'll

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1 playing the video. It's rather extensive. It's 25 minutes
2 I think, but I think part of it might be we'll just begin
3 tomorrow morning.
4 THE COURT: I think this is good time to break for
5 the day. We do have to break at about a quarter to 5:00
6 every evening because we have to get employees out by 5:00,
7 or at least from service by 5:00 and it takes awhile to
8 shut down all of the equipment and the record. So we do
9 end our court day before 5:00.
10 We're going to -- Mr. Gibson will see you to the
11 jury room. You'll leave your notes there, and then you'll
12 be excused. And please do remember not to have any
13 discussions about the subject matter of the trial, what's
14 occurred here, people and places or anything like that and
15 no personal investigation or personal research. Don't do
16 any of that. We'll be back to work at 9 o'clock in the
17 morning.
18 Also don't begin to talk about it amongst
19 yourselves since you don't have everything before you yet
20 to start your deliberations, so wait until the end of the
21 case before you do that. So have a good evening, and Mr.
22 Gibson can help you.
23 (Jury excused from courtroom at 4:44 p.m.)
24 THE COURT: Okay, I asked you folks to stay to
25 clarify roles here. As I understood it, Mr. Kelley was not

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1 representing the Defendant and the Defendant was acting as
2 his own attorney. If that is the case I am concerned that
3 he is in fact speaking in behalf of Mr. Kelley in, before
4 the jury in the case and that is something that is
5 confusing to me.
6 MR. KELLEY: And perhaps I will let Mr. Stull
7 explain how he'd like that to go.
8 MR. STULL: Yes, Your Honor. If I have an
9 Achilles heel aside from the fact that I have my trigger
10 points with my neurological condition it's evidence and the
11 role of my legal advisor. And what I specifically asked
12 for was to get my evidence before the jury and that extends
13 to keeping the State's inappropriate evidence from being in
14 front of the jury. And I did just now give Mr. Kelley
15 permission to object on my behalf. However, if need be
16 he'll simply tell me and I'll object and then I can go from
17 there.
18 THE COURT: That's the way that I've usually seen
19 it and I assume a legal advisor advises you, does not act
20 in your stead in court to speak for you, and that's what
21 was troubling me. So I think the better process is for him
22 to advise you and you can make your own objections.
23 MR. STULL: Yeah. I think that's appropriate too,
24 Your Honor. But here we are in the first minutes of the
25 trial so --

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1 THE COURT: It certainly wasn't enough to
2 interrupt anything that was going on, but I did want to
3 clear it up.
4 MR. STULL: Yeah, that's fine. And I will make
5 those points.
6 MR. KELLEY: I know some judges don't like
7 speaking objections; others are perfectly willing to let
8 you make a bit of a record. What is Your Honor's
9 preference?
10 THE COURT: Not in front of the jury though. That
11 is inappropriate and I believe it's contrary to rule to
12 argue objections before the jury. So you can make the
13 objection. Is it hearsay, is it irrelevant, you can say
14 lack of foundation, but if you need to go any further than
15 that we'll have to excuse the jury and then have a full
16 discussion.
17 MR. KELLEY: It is okay to identify the basis of
18 the objection?
19 THE COURT: Just to identify the basis.
21 MR. STULL: And since we are still on the record
22 for the purposes of these proceedings, I just sat in on a
23 trial here a couple weeks, within the past couple weeks,
24 and there was a lot of times when the counsel came up and
25 the judge kind of cupped her hand over the microphone.

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1 THE COURT: That's called a sidebar.
2 MR. STULL: Right, so --
3 THE COURT: And I think it would be best if we did
4 everything on the record. So instead of doing it that way
5 we'll excuse the jury.
6 MR. STULL: That's fine with me too, and that's
7 going to mean the jury's going to go in and out a lot.
8 THE COURT: Yeah.
9 MR. STULL: And perhaps if I might suggest, Your
10 Honor, that they know that. They don't have to be like --
11 THE COURT: Well, I generally do say we have to
12 discuss some legal matters and so we're going to have to
13 ask you to go back. That's about the way I handle it.
14 MR. STULL: Yeah, I don't know if they --
15 THE COURT: I don't think that we should do
16 anything that we don't have a record of, so I'd rather do
17 it on the record.
18 MR. STULL: My sentiments exactly. But I don't
19 want them to feel like we're jerking them around and they
20 don't like me saying that.
21 THE COURT: It's good for them, you know. It's
22 good exercise.
23 MR. STULL: It might be.
24 THE COURT: Okay.
25 MR. STULL: All right, thank you, Your Honor.

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1 THE COURT: Okay, have a good evening.
3 MR. STULL: And give -- you too and --
4 MR. KELLEY: 9 o'clock tomorrow, right?
5 THE COURT: 9 o'clock tomorrow.
6 MR. KELLEY: Very good, thank you.
7 THE COURT: We will have another probation matter
8 here. I don't think the one tomorrow is going to get into
9 our trial time at all because it's not custody it's just a
10 status check.
12 So it should --
13 MR. MCMAHON: We do have a 1 o'clock here
14 tomorrow.
16 MR. MCMAHON: So just, it's something else to
17 consider.
18 THE COURT: Okay. Yeah, because our trial time is
19 1:30 so if I have to I can squeeze it in.
20 MR. STULL: Your Honor, since we are still on the
21 record, I only want to say that as much advance notice that
22 Mr. Kelley and I have we can spend our time consulting or
23 doing any of those types of things that we have to do so
24 that we're not --
25 THE COURT: Yeah.

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1 MR. STULL: -- not doing something. I want to
2 always -- if I'm not doing one thing I want to be doing
3 something else. I don't want to have any down time.
4 THE COURT: Okay.
5 MR. STULL: Thank you so much, Your Honor.
6 MR. KELLEY: Thanks.
7 THE COURT: Have a good evening.
10 MR. KELLEY: Good night.
11 THE COURT: Good night.
14
15
16
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18
19
20
21
22
23
24
25 ///

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3 I, Patty English, court-approved transcriber,
9 _______
10 Patty English, CET-843
11 PE Transcripts
12 2157 East Settlement Road
13 Priest River, ID 83856
14 (208) 610-4686
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STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 518 - 786
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Tuesday, September 20,
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707

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GENERAL INDEX
VOLUME 23 of 29
Testimony................................................. 518
Discussion re: Defense objection to discovery violation... 653
Defense motion for mistrial............................... 654
Judge's ruling re: motion for mistrial.................... 654
Discussion re: motion to quash warrant.................... 657
Judge's ruling re: motion to quash warrant................ 668
Reporter's Certificate.................................... 786

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WITNESS INDEX
James Wood .............. 518 .... 550 .... 580
Michael Cohen ........... 582 .... 598
Todd Engstrom ........... 604 .... 671 .... 746
Roger Axthelm ........... 750
FOR THE DEFENSE:
None called.
EXHIBIT INDEX
Offered Received
FOR THE STATE:
5-7 .............................. 631 ......... 631
8-9 .............................. 633 ......... 633
10-13 ............................ 636 ......... 637
14 ............................... 749 ......... 749
FOR THE DEFENSE:
102 .............................. 572 ......... 572
103 .............................. 791

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1 PORTLAND, OREGON; TUESDAY, SEPTEMBER 20, 2016
2 -O0O-
4 MR. MCMAHON: Shall I recall the case, Your Honor?
5 THE COURT: Very well. Yeah, call the case again.
6 MR. MCMAHON: Okay. And good morning, Your Honor.
7 Eamon McMahon for the State, M-c-M-a-h-o-n, bar number
8 153879. Here today on the second day of trial for Barry
9 Stull, case number 15CR53749. Defendant is present out of
10 custody. He is representing himself. He is assisted by
11 legal counsel, Mr. Kevin Kelley. The State is ready to
12 proceed.
15 THE COURT: Good morning. We'll bring the jury
16 back in and get back where we started -- or where we ended.
17 (Pause.)
18 (Jury in at 9:13 a.m.)
19 THE BAILIFF: Resume the same spots as yesterday.
20 THE COURT: Good morning. We'll -- we will take
21 up where we left off last night.
24 BY MR. MCMAHON:
25 Q Good morning, Mr. Wood.

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1 A Good morning.
2 Q So where we sort of stopped off yesterday was
3 after you entered the state law chambers and contacted Mr.
4 Stull. I'd like to direct your attention to the video
5 that's marked as State's Exhibit 1. Do you recognize
6 yourself in that video?
7 A Yes, I do.
8 Q And where are you in this video?
9 A I am just inside the south door of chambers,
10 second floor, state hall.
11 Q Okay. I'm going to go ahead and play a little
12 bit of this clip and then I just would like to ask -- would
13 like you to tell me about how long into this we are.
14 (Whereupon, an audio/video recording, State's
15 Exhibit 1, was played in open court and transcribed to the
16 best of the transcriber's ability as follows:)
17 MR. STULL: Call 9-1-1 because I did shut down the
18 Justice of the Jail and I'm passed your security now.
19 MR. UNID: What are you doing?
20 MR. STULL: I'm not going to leave. I haven't
21 done anything. August 29th I came in here, I haven't
22 gotten an opinion yet. You know why?
23 (Recording ends.)
24 Q Okay. Now, please identify who is actually shown
25 in that picture -- or at this point right now.

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1 A Okay. The Defendant in the stocking cap and that
2 other is Sergeant Mike Cohen, chief arrest.
3 Q Okay. So since this video picked up, you
4 initially indicated that you open the chambers and Mr.
5 Stull (indiscernible) walk in, correct?
6 A Correct.
7 Q About how long after you open the chambers door
8 does this video start?
9 A Within a couple minutes.
10 Q Okay. But a relatively brief period?
11 A Yes.
12 Q At any point, had the city councilors come in and
13 exited or is this just before everyone gets there?
14 A This is before everybody got there.
15 Q I'm going to go ahead and play some more of the
16 video.
20 SGT. COHEN: Yes, I do. You were here at 1:00.
21 MR. STULL: That's bullshit. Oh, at 1:00, I'm on
22 the agenda at 9:30. Why at 1:00 the day before does he
23 come in here and all of a sudden I have an exclusion. How
24 -- when did I sign up? Do you know when I signed up this
25 -- is that Colleen?

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1 COUNCIL CLERK: No, I'm sorry.
2 MR. STULL: I'm sorry, I have a disability and
3 they're triggering it right now. At 1:00, okay. Call
4 9-1-1.
5 (Recording ends.)
6 Q Now, after Mr. Stull had said something about his
7 disability, at any point, had you or any other members of
8 city hall, to your knowledge, physically contacted or done
9 anything to Mr. Stull?
10 A No. I simply had informed him that he was
11 excluded.
12 Q But no contact was made of Mr. Stull?
13 A No.
17 MR. STULL: I need emergency to the mental
18 hospital. They just triggered my disability again. You
19 want to see my medical paperwork or you think I'm joking?
20 SGT. COHEN: I don't want to see your medical
21 paperwork.
22 MR. STULL: No, I am because I need you to call
23 9-1-1 right now. I could die from this. Are you going to
24 laugh I could die from this?
25 COUNCIL CLERK: No, that's not my job.

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1 MR. STULL: Well -- but you're -- I'm going to get
2 my medical paperwork out and we're going to find out what
3 the hell is going on in this city. See, this is me in the
4 middle of the night getting out of jail at 3:00 in the
5 morning, T-shirt, shorts because I called the ambulance.
6 They came out to my house where my neighbor is a Multnomah
7 County Health Department client and I'm yelling for how
8 long? We don't have to worry because everybody in the
9 whole neighborhood knows, central pain syndrome. Central
10 pain syndrome.
12 Q Now, at this point, had you contacted police,
13 non-emergency line?
14 A Yes, I was on hold with the non-emergency line.
15 Q Okay. And did you eventually have to call direct
16 9-1-1?
17 A I did not. Mike Cohen did.
18 Q Okay. All right.
19 A Yeah, as he was exiting right there, he went by
20 me and asked -- and he stepped right out and called 9-1-1.
21 Q And this is still while you're on hold with non-
22 emergency?
23 A Correct.
24 Q All right.

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3 MR. STULL: And how long did it take for me to get
4 into the ambulance? I don't really know. That's why I
5 have blood on both shoulders because they had to give me a
6 drug.
7 (Recording ends.)
8 MR. MCMAHON: And actually, I apologize, Your
9 Honor, I just wanted to confirm that everyone in the jury
10 can see the video. I saw some people --
11 THE COURT: Can the jury see it? I can -- you can
12 move around, if you'd like.
13 UNIDENTIFIED JUROR: Okay.
14 THE COURT: It just -- so you can see it better.
15 MR. STULL: Your Honor, could I ask that we
16 rescreen that for the jurors that didn't get to see?
17 THE COURT: If you'd like. Yeah, go ahead. Just
18 restart it or whatever.
19 MR. STULL: Thank you, Your Honor. You don't have
20 to pause it, but just so -- because they heard the audio.
21 I just want to --
22 MR. MCMAHON: I'm just --
23 MR. STULL: Thank you, sir.

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2 MR. STULL: Call 9-1-1 because I did shut down the
3 Justice of the Jail and I'm passed your security now.
4 MR. WOOD: What are you doing?
5 MR. STULL: I'm not going to leave. I haven't
6 done anything. August 29th I came in here, I haven't
7 gotten an opinion yet. You know why?
8 SGT. COHEN: Yes, I do. It's 1:00.
15 MR. STULL: I'm sorry, I have a disability and
16 they're triggering it right now. At 1:00, okay. Call
17 9-1-1. I need emergency to the mental hospital. They just
18 triggered my disability again. You want to see my medical
19 paperwork or you think I'm joking?
21 paperwork.

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3 the hell is going on in this city. See, this is me the
4 other night getting out of jail at 3:00 in the morning,
5 T-shirt, shorts because I called the ambulance. They came
6 out to my house where my neighbor is a Multnomah County
7 Health Department client and I'm yelling for how long? We
8 don't have to worry because everybody in the whole
9 neighborhood knows, central pain syndrome. Central pain
10 syndrome. And how long did it take for me to get into the
11 ambulance? I don't really know. That's why I have blood
12 on both shoulders because they had to give me a drug.
13 Don't give me a drug. Call 9-1-1, I could die from this.
14 What's wrong with you people? You don't believe
15 me? Guess what? He believes me. Oh, you're taking it
16 serious now. Now, we got cameras. See, here's the way
17 they work. Oh, wait, what's this say? Oh, wait, I got the
18 wrong one. Suicide potential by cop equals high. When was
19 this from? Why would it say suicide potential by cop
20 equals high? What does that mean? That means suicide
21 potential low, by cop equals high.
22 Wait, if my suicide potential is low and my
23 suicide by cop potential is high, what am I supposed to do?
24 Well, this -- they had broke two police cars. One of them
25 I was in the back of and the door is closed and the

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1 asshole, so stupid, he drove into the closing doors. But
2 that's okay because I know exactly who he is. We were down
3 here at Bullivant Houser Bailey. And I went in there and I
4 said I want a check for $4,775 or I'm going to jail. What
5 did I get? I got comma. They turned that comma into a Y.
6 Makes sense to me. Stully. Barry Joe Stull turns into
7 Barry Joe Stully turns into Barry Joe, J-o-e, middle name,
8 Stully. So may a/k/a even has an a/k/a. And I still want
9 to know how come I'm not getting medical attention.
10 And the reason I'm so loud, folks, is I got to
11 show it to somebody who's got a camera. Okay. It's in
12 here. You -- can you help find this? And we're on the
13 camera because obviously we have a big problem here in
14 Portland.
16 BY MR. MCMAHON:
17 Q So who was actually filming Mr. Stull at this
18 point?
19 A I don't know.
20 Q Okay.
21 A I'm not familiar with this.
22 Q Okay. Did you see an individual holding a camera
23 walking around state hall?
24 A Yeah, David Kif Davis --
25 Q Okay.

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1 A -- was filming.
2 Q Okay. Is he in any way related or connected to
3 city hall?
4 A He's commonly attends city council.
5 Q But he's not employed by city hall?
6 A No.
7 Q And this wasn't shot by security personnel?
8 A No.
9 Q And you were present in the room --
10 A Correct.
11 Q -- for all of this, correct? Okay.
15 MR. STULL: Here it is, USAA. vs. City of
16 Portland. Let's see what this one says, see if this rings
17 any bells.
18 MR. DAVIS: How the cops like to beat up --
19 MR. STULL: No.
20 MR. DAVIS: -- mentally ill people and kill --
21 MR. STULL: No, no, no, no, no, no, no. It says,
22 "My ongoing experience, as exemplified in the attached
23 checks, the tort claim notices to the environment and the
24 city of Portland is one where retaliation, intimidation for
25 addressing police misconduct is systemic. As a social

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1 justice activist and advocate calling for police
2 accountability, my experience shows I cannot get police
3 protection from known criminals and, instead, get arrested
4 for charges which do not result in conviction." Like
5 yesterday when I went into the justice center jail, I was
6 on the other side of the security and all the people
7 waiting in line to get through the security, I'm sitting on
8 the guy's foot who is our guard. And I'm going, see, I
9 just stabbed him again and all those people I just killed
10 them, bang, bang, bang, bang. Oh, they're all black. Oh,
11 wait, I'm a racist.
12 Hey, you're on camera.
13 UNIDENTIFIED SPEAKER: Great.
14 MR. STULL: Where was I? Oh, wait.
15 "Non-criminals, they get arrested for charges which do not
16 result in convictions." Like my arrest February 22nd, 2012
17 at the Central Precinct lobby. Hey, why don't I sue these
18 people for this? I did and I posted this past week that I
19 was in this room in January 28th, 2015 and I said this
20 landlord is organized crime and I pointed over to -- thank
21 you. I pointed over to the chief of police, O'Dea.
22 Yesterday, I tried to get to my hearing. I came
23 out of my place, almost got run over by a car. The guy
24 said -- I'm in the crosswalk. The guy is talking on the
25 cell phone. Some guy from Washington says on the phone,

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1 "There's a homeless guy here and he's out in traffic and
2 there's no crosswalk." Well, guess what? I've been living
3 across from him for two years. I'm a homeless guy? He's
4 from Washington. We have crosswalk laws, whether it's
5 marked or not. In Oregon, if there's a sidewalk, there's a
6 crosswalk. And I'm tired of people coming here and acting
7 like I haven't been here since 1978. I was here before
8 Steve Novak, short-timer. We're just going to call him
9 shorty from now on because he's never going to get into any
10 office again because out front -- and the reason they're
11 not here is they never had a legal quorum to vote on the
12 sidewalk management ordinance. And in that, they put the
13 street musician ordinances as an exception, but I can't get
14 a copy of it and I challenge any of you to get a copy of
15 it.
16 I can't even get a ride to the God damn hospital.
17 Does anybody here know how to call 9-1-1? Does anybody in
18 this room know how to call 9-1-1? Because a funny thing
19 happened, I live in HUD housing. I am going to give them a
20 presentation today and guess who showed up? My Media.
21 Guess who didn't show up? None of them. I'm on the agenda
22 at 9:30 and I'm here and they're not. You know why?
23 Because I am right and they are not. And as long as you
24 all --

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1 BY MR. MCMAHON:
2 Q Now, Mr. Wood, why hadn't the proceedings for
3 city council did not happen?
4 A Because the mayor had called off to stay in his
5 office with the sergeant for (indiscernible) in his office
6 until this situation was cleared up, however it was going
7 to be. We had called the police and they were outside, you
8 know, setting up what they were going to do and developing
9 their strategy.
10 Q Okay. So who made the decision to hold off on
11 beginning city hall business because of this disturbance?
12 A That went right from me to Sergeant Cohen to our
13 supervisor, John Chandler.
14 Q Okay. Thank you.
15 A Yeah.
16 (Whereupon, an audio/video recording, State's Exhibit
17 1, was played in open court and transcribed to the best of
18 the transcriber's ability as follows:)
19 MR. STULL: -- all think I'm the problem and as
20 long as their media won't put anything on about it and as
21 long as I can't get a ride to the emergency room -- why?
22 Because I already said to all you people in this room, this
23 could kill me. I'm the security problem? I was on the
24 other side of their security in the courthouse saying and
25 you're going to back off, and you're going to back off.

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1 Why? I said because she knows who I am.
2 Who am I? I'm the guy that owes Multnomah County
3 $50 for turning my clothing into, quote, clubs of steel,
4 unquote. Did you hear any of this? Hey, did you hear
5 about that kid up in Louis and Clark College who got
6 attacked by three men? Were they all white? Were they the
7 campus safety that intentionally scarred my head on the
8 paving stones under the "Welcome to Louis and Clark
9 College". Oh, I wasn't here. You know what they said?
10 Oh, it's just like a park, the same week I hear on the
11 radio that there's a federal grant of $500,000 to develop
12 park over there. They say Louis and Clark College is just
13 like a park. Give them back $500,000 that they've already
14 paid because they're getting that for doing this to me,
15 scarred my head on the pavement stones and none of you
16 heard a thing about it.
17 Just like none of you hear them calling the
18 ambulance. And every one of you heard me say I could die
19 from this just like every one of the people in my HUD
20 housing found out. And if you think this peaceful during
21 my life, it's not and I'm going to tell who you're talking
22 to, folks. Barry Joe Stull, 326 OR 72. I filed that from
23 a prison on a pod bus. I'm in this room and they're
24 talking about Hempstalk.
25 I read Willamette Week. The articles got Joe

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1 Walsh's name in there twice. It's got 15 minutes of the
2 light guy who was the last speaker. And the one that was
3 after the last speaker was the guy who said, following my
4 lead, Paul Stanford is a fraud. And he said I was required
5 to do security so they could have the 2013 Hempstalk. My
6 business can't afford to do business without getting paid.
7 One, I was here then; two, so was the Willamette
8 Week reporter; three, guess why my name isn't in there?
9 Because Willamette Week has changed their editorial policy
10 for when they were against marijuana because that was the
11 party line to where they're for marijuana because it's
12 money. And I'm the guy that Dave -- oh, wait, who is Dave?
13 He's sitting over there. Dave gives me a pod seat. He
14 goes down to Southeast Portland and he saves three sequoias
15 He's Lorax Dave. Lorax Dave and I posted on the internet
16 and, since I've been to the emergency room, twice. And
17 those people doing the Hazelnut Grove, that's where it all
18 started and I cannot get them to take a police report.
19 We don't need a police anymore because we don't
20 need the police. We're better off without them and I've
21 been saying that for years and that's why I have one person
22 here that has the integrity to record what's going on long
23 enough that I feel safe because Amanda Fritz' husband over
24 there is dead because I killed her husband because Amanda
25 is downstairs saying this is my friend Barry Joe and Barry

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1 Joe lives on the undeveloped right-away of the city street
2 that can't be -- it's not a street. It's never been built.
3 You never heard about that. Why?
4 Free Camp David W. Crowther. Who's that? Hey,
5 wait, weren't you over there? Didn't you tell me you and
6 Tony were over there? That couldn't have been Tony
7 Stevenson because Tony Stevenson was actually killed by the
8 cop that came over to Free Camp David W. Crowther, which
9 you also never heard about.
10 And where's the SWAT team? How come they can't
11 come in and drag me out? Because yesterday I breached the
12 security at the Justice Center Jail and you didn't even
13 hear about it because they can't tell you about that
14 without saying, oh, yeah, and he owes us 50 bucks for
15 turning our clothes -- his clothing into clubs of steel and
16 bending the jail door. They can't tell you about that.
17 Because you're talking to a dead man.
18 I walked out of my place yesterday and I got run
19 down before I got across the street. By the time I got
20 across the street, the guy is calling -- comes out and
21 says, "9-1-1 says I'm the third one." Well, I have to wait
22 now, don't I? Don't I have to wait when somebody says I
23 called 9-1-1 on you? Because I am not the guy. How well
24 does this work for me in this town?
25 I go down to Mary's Club. I go in and the

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1 waitress says, hey. She goes to this -- she goes to the
2 bartender (mumbling). Oh, no. The bartender says, "Yeah,
3 I know who you are and my sister will be in tomorrow." So
4 the owner's daughters are two sisters. They know me, the
5 waitress doesn't. I walk into Mary's Club and the waitress
6 says, "You're the wrong guy, get out of here." It's just
7 like these security guards.
8 You notice that tall man, Mike, that came in here?
9 Mike says, you know, they told to keep an eye on you three
10 years ago and Mike knows a couple of things. He knows I
11 took over the God damn Justice Center and they let me in
12 your room. When is the bomb going to go off?
13 MR. DAVIS: He works for G4S security and the guys
14 that raped kids in Israel too.
15 MR. STULL: I was not bombed. I did not bomb it.
16 Christmas tree ceremony, what happened there? I wasn't
17 even going to go on the street musicians. You wouldn't
18 know that because I'm here to talk about the partnership
19 with street musicians that Charlie Hales signed and Charlie
20 Hales can't come in here because he knows that none of you
21 can find that partnership agreement with street musicians,
22 except for there was a hearing; and, two, Charlie Hales was
23 there; and, three, they passed the agenda item which had
24 the free music zone. What's that?
25 I get on the list. I go down to Waterfront Park

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1 and I play music. No, we can't be street musicians.
2 That's why they can't even show up at the God damn hearing
3 because these people are criminal and who knows it? The
4 Department of Justice because I didn't finish my last
5 paragraph. Repeating myself, "As a social justice
6 activist" -- Yeah, living in a bush because my friend
7 Amanda is on the Parks Commission. She says I'm her
8 friend. Good for me.
9 Oh, wait, did I mention anybody that there's a
10 five-plex. Oh, I forgot to mention that there's a five-
11 plex that's been vacant for four years that's called
12 Kafoury Court. It's named after Gretchen Kafoury. This is
13 the first Thanksgiving that she hasn't been alive and for
14 four years, the place has been vacant.
15 And did I mention they haven't even gotten an
16 opinion for when I was arrested out here with Troy
17 Thompson, had a warrant for his arrest, was violating my
18 restraining order when I was a protected party. They knew
19 all that. Arrested me and let him go.
20 Wait a minute? Who's up at Filbert Grove.
21 Filbert Grove I thought was Hazelnut Grove. Well, there's
22 a difference between the Filbert and Hazelnut, for one
23 thing, because we have a Police Officer Filbert and he told
24 me in January -- I got my card. I might be mistaken
25 because I was supposed to be out of here in an ambulance

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1 and nobody has called yet. Yet.
2 Oh, wait. Barry Joe Stull is a crazy guy. He
3 went to the Justice Center to kill all those black people.
4 No, I was on their side of the security and I said I just
5 killed all you, pointing to them. And I said, "And see all
6 your customers over in line?" What customers were they?
7 Black people.
8 Why didn't my taking over the Justice Center Jail
9 and breaching security not make the news? Because Black
10 Lives Matters getting -- oh, what happened here? I was
11 right over there, the next building over. We have an
12 attorney general. Oh, wait, did I mention Willamette Week?
13 Yeah, they got -- I can't keep up with all these scandals.
14 What happened was, I was over there. We were doing a
15 profiling, right? Don't profile, it's bad. Who says?
16 Well, the law for one thing. And why are they there?
17 Because they're the ones that enforce those civil rights.
18 And what are they doing? Getting scandalized for
19 profiling.
20 Are we picking up a pattern here, ladies and
21 gentlemen? The pattern is -- I've got a song. This is the
22 third time that I've been on the agenda. The other two
23 times I got arrested on the way in. Do you notice that I
24 didn't get arrested on the way in? Do you notice that
25 there's other people talking about your public safety?

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1 Do you know that I have taken you all hostage?
2 Oh, you think that's funny. Where's the cops? I called
3 9-1-1. They're going to let me die here.
4 Mr. Johnson --
5 SGT. JOHNSON: Yes.
6 MR. STULL: Charles was here and he said Mr. Stull
7 has been talking about this vacant property for quite some
8 time and that was to rebut former housing -- a failed
9 housing commissioner, Mick Fish. True or false,
10 Mr. Johnson?
11 SGT. JOHNSON: True.
12 MR. STULL: Now, if we wanted to go in the
13 archives and find that, we can't because when Dan Saltzman
14 and he left the building and called in his vote, yeah, it's
15 the quorum. No, it isn't. Oh, just look at it on the
16 archives, Barry Joe Stull says. Here's the time code and
17 -- hey, wait a minute, we don't keep those videos on the
18 archives anymore. Well, why not? Too many cat videos?
19 Look, what was Hamilton Fish in another porno.
20 You know, he was a big star. Hamilton Fish was not only a
21 United States congressman and Mick Fish's father. I have
22 to get the right Hamilton Fish because I've got to get the
23 right peculiarity. For example, there was a gal here in
24 town doing a rock opera called "The Many Lives of Hamilton
25 Fish". Well, I got one, it's called "Bestiality: The Many

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1 Affairs of Hamilton Fish".
2 See, because Hamilton Fish was not only Mick
3 Fish's daddy, but Hamilton Fish was the secretary of state
4 doing that little bit of, you know, hey, next door
5 neighbor, how about I send General Custard out there. One,
6 he wasn't a general; two, guess he didn't meet with
7 Hamilton Fish before he did his last stand. And this is
8 Thankstaking Day. I have this on the internet. At 10:15,
9 I'm going to number 5, 4066 Northeast Grand, number 5.
10 Well, how long has that been vacant? Oh, well, what's it
11 say today. Why aren't they here?
12 It says here Merry Christmas dinner -- oh, I
13 remember her. She's from PCRI because she's the gal that
14 showed up on the legislature with Maxine Fitzpatrick name
15 was called. And who is Maxine Fitzpatrick and why doesn't
16 she didn't -- oh, what are they doing? Oh, they're getting
17 an award. Deborah Kafoury is getting a warrant for PCRI.
18 They helped six veterans get into housing.
19 Wow, and what do I get for pointing out that that
20 housing has been vacant for four years? Apparently, I get
21 the -- hey, look, I shut down City Hall. I think this is
22 occupied. No, couldn't be occupied because I'm the hammer
23 wielding menace of occupied and you can read that all over
24 the internet.
25 53-year-old previously excluded. Well, I had the

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1 hearing and that didn't work, so I wasn't excluded because
2 I actually had a hearing. And, gee, I can't find myself
3 not guilty at trial for being a the hammer wielding menace
4 because they couldn't even charge me.
5 That got me all over the internet for stuff that
6 never happened and they can't even come to my appearance.
7 Now, look, I got arrested two times ever in my entire life
8 when I was on the agenda at City Hall, one was this one.
9 You never heard about any of this, folks. You never heard
10 about any of this, folks, and that's why I'm here and
11 that's why they can't come in.
12 I have a thing, it's called Crow Feather. That's
13 easy to remember because Crowther is in Crow Feather. Go
14 down to Police Memorial Wall, look at Crowther --
15 MS. FRITZ: Good morning.
16 MR. STULL: I'm not going talking to you because
17 you left broke, sick, and homeless. You looked out there.
18 I'm walking in to use a public phone and you're saying
19 that's my friend Barry Joe to her customers.
20 (Recording paused.)
21 BY MR. MCMAHON:
22 Q Who was that individual that just walked on
23 screen?
24 A Commissioner Amanda Fritz.
25 (State's Exhibit 1 continues to play.)

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1 MR. STULL: They're all customers. You know what
2 my job is? My job is to be the way that I get my housing
3 by suing Marc Jolin. Marc Jolin got appointed by Deborah
4 Kafoury to head up a home for everyone, including a home
5 for every veteran. So if you folks would like to call my
6 veteran friend, who was inside as an Embassy guard when
7 they lost the war. He got shot seven times.
8 UNIDENTIFIED SPEAKER: Marc Jolin is a scumbag.
9 MR. STULL: And Marc Jolin is a defendant in my
10 lawsuit. My lawyer -- watch, I'll point. My lawyer is up
11 there at 17 feet.
12 UNIDENTIFIED SPEAKER: Are you ready to go?
13 You're not getting anywhere.
14 MR. STULL: Hey, I'm going to punch you.
15 UNIDENTIFIED SPEAKER: All right. I'll sit down.
16 MR. STULL: I told down to security I was on that
17 -- hey, everybody knows. And, you know, I'm really curious
18 about your thing, man, because you told me I was supposed
19 to copy the stuff to give to them and they're not here.
20 You know why? Because they -- they can't handle the truth.
21 These folks have been trying to kill me for years.
22 Who do we know was down here at Waterfront Park in
23 1995 and seen the Hempfest? Oh, Portland Hempfest in 1995.
24 Oh, that would be me. That would be me. Whose case
25 reversed the former Republic Attorney General? Uh, that

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1 would be me. What was his name? Lee Johnson. Oh, what
2 was his history as an attorney general? Well, they
3 couldn't seat him.
4 (Recording ends.)
5 BY MR. MCMAHON:
6 Q Sir, after Commissioner Fritz went off screen,
7 did she do or say anything to you?
8 A No, she just walked out.
9 Q Okay. Did you receive any indication what
10 occurred in chambers?
11 A When the police entered council chambers, that
12 was when we started -- chambers never completely cleared
13 that day, but that was when we started asking people to
14 leave and head out because the situation was going to take
15 place and the police were present at that time.
16 Q Okay. And did you start escorting people out the
17 doors?
18 A Yes.
19 Q And is this point -- it looks like this is the
20 point in the video the police have arrived --
21 A Yeah.
22 Q -- (indiscernible)?
23 A Yeah, that'd be about the --
25 MR. STULL: They couldn't seat him. Come on,

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1 guys, get me out of here. Call the ambulance. You guys
2 were told to get me an ambulance.
3 SGT. JOHNSON: I got one coming, so come on down.
4 MR. STULL: I'm waiting for you to clear the room.
5 SGT. JOHNSON: We're not clearing the room.
6 MR. STULL: She just did. So, obviously, you're not in
7 charge. Hey, why did I hear on the radio, "Assist" -- or "Acting
8 Chief"? What happened to Chief O'Dea? What happened to Chief
9 O'Dea?
10 MR. DAVIS: Sorry about that.
11 UNIDENTIFIED SPEAKER: Whoops.
12 MR. STULL: Oh, wait. Oh, there's Thomas' guitar.
13 I've never been -- oh, wait. I got this from my friend, Thomas.
14 MR. DAVIS: All the way over here for this bucket.
15 MR. STULL: You know what this says? "One less bucket
16 drummer."
17 MR. COHEN: Mr. Davis, we're clearing the chambers, so
18 you need to go. You can -- you're more than -- you need to go.
19 MR. DAVIS: No, I will not go.
20 MR. COEHN: Yes.
21 MR. STULL: No, don't go.
22 MR. DAVIS: I will not go.
23 MR. STULL: Don't go.
24 MR. COHEN: Okay.
25 MR. STULL: Don't go. Look at this.

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1 MR. DAVIS: No. I am filming police interaction with
2 the public --
3 MR. STULL: Look at this. Yeah.
4 MR. DAVIS: -- and it's my duty as a --
5 MR. STULL: That's right, and I have a --
6 MR. DAVIS: -- journalist.
7 MR. STULL: Hey.
8 MR. DAVIS: No, bullshit.
9 MR. STULL: Stay away from him. Did you hear --
10 SGT. AXTHELM: Don't come up next to me.
11 MR. DAVIS: I'm allowed to fucking -- I'm allowed to
12 record.
13 MR. STULL: Did you hear say (indiscernible)?
14 SGT. AXTHELM: Sit down, Mr. Stull. Sit down,
15 Mr. Stull.
16 MR. DAVIS: You're not kicking me out again for this.
17 SGT. AXTHELM: You're out, sir.
18 MR. DAVIS: No.
19 SGT. AXTHELM: You're out. 69 (sic) him.
20 MR. STULL: Where's the ambulance?
21 SGT. AXTHELM: Leave.
22 MR. DAVIS: No, I will not leave.
23 MR. STULL: Oh, yeah, what about me?
24 UNIDENTIFIED SPEAKER: Where's the ambulance?
25 OFR. ENGSTROM: Barry, back up.

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1 MR. STULL: No.
2 OFR. ENGSTROM: Back up.
3 MR. STULL: Hey, you guys --
5 MR. DAVIS: I'm here to film this.
6 MR. STULL: No. Call me the fucking --
7 OFR. ENGSTROM: Settle down.
8 SGT. AXTHELM: You're being excluded, sir.
9 MR. DAVIS: And you're not going to --
11 MR. MCMAHON: I'm just going to go ahead and replay
12 a --
13 BY MR. MCMAHON:
14 Q Were in the room for this?
15 A Yes, I was back over towards the south door.
16 Q Okay. I'm going to go ahead and replay a part of
17 it and if you can --
18 A Yeah, between the south door and the center of
19 the room, I was kind of back and forth.
21 MR. DAVIS: I am filming police interaction with the
22 public --

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2 MR. STULL: Hey.
3 UNIDENTIFIED SPEAKER: Two now. We're going to get the
4 press out now, too.
7 SGT. JOHNSON: Don't come up next to me.
9 record.
11 SGT. JOHNSON: Sit down, Mr. Stull. Sit down,
12 Mr. Stull.
14 SGT. JOHNSON: You're out, sir.
15 MR. DAVIS: No.
16 SGT. JOHNSON: You're out. 69 (sic) him.
18 SGT. JOHNSON: Leave.
23 MR. STULL: No.

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5 SGT. JOHNSON: You're being excluded, sir.
8 MR. STULL: Call me the ambulance.
9 OFR. ENGSTROM: We will.
10 UNIDENTIFIED SPEAKER: He needs an ambulance.
11 MR. STULL: When is my ambulance going to get here? Do
12 you want your thumb back?
13 UNIDENTIFIED SPEAKER: I'm not going to leave the place
14 when there's no ambulance.
15 SGT. JOHNSON: Okay. Come on.
16 MR. DAVIS: No.
17 UNIDENTIFIED SPEAKER: You are not dragging the -- I --
18 oh, you're fucking lying. You guys are out of control.
19 SGT. AXTHELM: You're out of here, now.
20 MR. DAVIS: Get the hell out of my fucking way.
21 SGT. AXTHELM: You're out.
22 MR. DAVIS: No fucking way.
23 SGT. AXTHELM: Now you're done.
24 MR. DAVIS: Get the fuck -- fuck you.

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1 BY MR. MCMAHON:
2 Q So, Mr. Wood, we saw what happened up until the
3 point where Mr. Stull was initially taken into custody.
4 What happened after that?
5 A Mr. Stull was taken into custody. At that time,
6 Sergeant Cohen -- can I tell you what Mister --
7 Q Actually, if I -- Mr. Stull's counsel --
8 THE COURT: Cell phones need to be powered off
9 when court is in session. I'm not going to have people
10 going out and taking calls. Would you, Mr. Kelley --
11 MR. KELLEY: Would you like me to have a chat with
12 him?
13 THE COURT: Yes. Power it off, please.
14 MR. STULL: I'm sorry, Your Honor. I don't have
15 the ability to do that. I don't know how to do it.
16 THE COURT: Oh, well, we can take it for you then
17 and put it in chambers. We're not going to be interrupted
18 that way. Every phone can be powered off, you can take the
19 battery out, but if you can't, we can handle it.
20 MR. STULL: Okay. I'll do that then, sure.
21 THE COURT: Okay. Take the battery out then.
22 MR. STULL: Or we can put it in chambers. Let's
23 do that, let's put it in chambers.
24 THE COURT: Well, you -- okay. Well, Mr. Gibson,
25 would you please take the phone and put it in chambers.

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1 MR. STULL: It some call from the former owner of
2 the phone.
3 THE COURT: Okay. Well --
4 MR. STULL: It's, you know, call restricted, so --
5 THE COURT: -- no matter who's it from, we just
6 need the --
7 MR. STULL: Excuse me, Your Honor. I'm sorry
8 about that.
9 THE COURT: -- we need the devices off.
10 BY MR. MCMAHON:
11 Q And we'll kindly go back to what you're talking
12 about. So what -- you said that after that, initially --
13 that initial contact when he was taken into custody, what
14 happened?
15 A That's when Mr. Davis was taken down by Sergeant
16 Cohen. He had been pushing him and trying to push him out
17 of the way to get around the table where the officers -- or
18 with Mr. Stall. And anyway, Sergeant Cohen got him down on
19 the floor and he was in custody. And --
20 MR. STULL: I object, Your Honor.
21 THE WITNESS: Okay.
22 THE COURT: Grounds?
23 MR. STULL: It's beyond personal knowledge.
24 THE COURT: Is the witness asking (sic) what he
25 saw?

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1 MR. MCMAHON: That was the question, Your Honor.
3 MR. MCMAHON: That was my question, but
4 (indiscernible).
5 THE COURT: Just testify to what you saw
6 personally.
7 THE WITNESS: Yes.
8 THE COURT: Okay.
9 BY MR. MCMAHON:
10 Q So after you saw Mr. Davis taken to the ground,
11 what did you see happening to Mr. Stull?
12 A Okay. He was to my left and the officers and him
13 were in a conflict situation, physical conflict.
14 Q Okay. Was he eventually removed in --
15 A Yes, he was.
16 Q Did you see what happened to him after he was
17 taken out council chambers?
18 A No.
19 Q And we only saw sort of part of the custody at
20 that point. What happened after that initial contact where
21 they sort of had him up against council desk, as best you
22 can remember?
23 A He was pushing -- I saw his feet coming out and
24 the officers were attempting to get, you know, different
25 holds on him and put leverage on him until they get his

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1 hands behind his back and handcuff him.
2 Q Okay. But then they were able to escort him out
3 of the council chambers?
4 A Correct.
5 Q And did you remain in the council chambers after
6 that?
7 A Yes, I did.
8 Q And that was sort of your last involvement?
9 A Correct.
10 Q I don't think I have any further questions for
11 you at this time. Thank you, Mr. Wood.
12 THE COURT: Okay. Cross.
13 CROSS-EXAMINATION
14 BY MR. STULL:
15 Q Mr. Wood, how long have you been working security
16 at city council -- City Hall rather, the building?
17 A Since March 2013.
18 Q What do they do at the Office of Neighborhood
19 Involvement? You mentioned the --
20 MR. MCMAHON: Objection, Your Honor. Relevance.
21 THE COURT: Overruled.
22 BY MR. STULL:
23 Q What do they do at the Office of Neighborhood
24 Involvement?
25 A Partly, it's the information and referral phone

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1 number for city and county. They issue recreation permits,
2 block party permits. They work business license
3 information. They do the marijuana licensing, give
4 directions. That's all -- about all I know about them
5 personally.
6 Q Is there a courtesy phone there?
7 A Yes, there is.
8 Q Who can use that courtesy phone?
9 A Whoever they designate. I'd say whoever the
10 Neighborhood Involvement people would allow to use it.
11 Q Members of the public?
12 A Whoever they would allow. It's not my phone, so
13 it's not mine to say.
14 Q Do you know the phone number for city/county
15 information and referral?
16 A Yes, I do.
17 Q And could you tell us that number please?
18 A Yeah, 503-823-4000.
19 Q And where do they answer that telephone?
20 A Where?
21 Q Yeah.
22 A You mean like a physical location or --
23 Q If a person were to dial 503-823-4000, who would
24 pick up that phone on the other end?
25 A I don't for a fact know. I know that the people

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1 from that office are the information referral people, so I
2 would imagine they do. But I really don't know if it's
3 somebody else. I don't know.
4 Q You testified that on the day before what we just
5 saw on the video, you were in the Office of Neighborhood
6 Involvement when I was present?
7 A Correct.
8 Q Your testimony was that you had been called to
9 that office because of some kind of a matter; is that true?
10 A Yes.
11 Q Were you present when I requested a Multnomah
12 County Health Department medical transport ride to my home
13 like my neighbor got that morning? Were you present
14 when --
15 MR. MCMAHON: Objection. It's a improper
16 question. It presupposes information outside the --
17 THE COURT: Well, he can -- if he -- it can be
18 answered. It can be answered yes or no.
19 THE WITNESS: Yes, I was.
20 MR. MCMAHON: I would just ask that the
21 information about "that my neighbor had" that had been
22 offered, that be stricken from the question, since that
23 doesn't pertain to --
24 THE COURT: Well, is he -- if you would ask a
25 question in aid of the objection, let's see if he has

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1 personal knowledge of all of the things (indiscernible).
2 MR. MCMAHON: May I ask a question in aid of
3 objection, Your Honor?
4 THE COURT: Please.
5 VOIR DIRE
6 BY MR. MCMAHON:
7 Q Do you have any knowledge about Mr. Stull's
8 neighbor or any potential medical rides he received?
9 A No.
10 THE COURT: Okay. I will instruct the jury to
11 disregard that portion of the question. This witness can't
12 answer it.
13 DIRECT EXAMINATION (CONTINUED)
14 BY MR. STULL:
15 Q Didn't I ask for a Multnomah County Health
16 Department medical transport ride to my home that I was --
17 ask after, I should say. Was I seeking, at the office, a
18 Multnomah County medical transport ride to my home?
19 A Yes, you were.
20 Q Okay. Thank you. And what happened to that
21 request for that information?
22 A I don't have that report in front of me to
23 refresh my memory. What I remember in the conversation at
24 the counter where there was you, myself, and then another
25 sergeant -- security sergeant came in, that you had called

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1 and that the transport would not come to pick you up.
2 Q Is that your recollection?
3 A That's my recollection.
4 Q That I --
5 A The best as I can do.
6 Q That I called and made contact with the Multnomah
7 County --
8 A I don't know if you made contact with them
9 though.
10 Q If you don't know whether I made contact with
11 them, you just said that they wouldn't come to pick me up.
12 So how could they not come and pick me up -- they're not
13 coming to pick me up now because certainly I haven't made
14 contact with them, so how could you rectify what you just
15 said that they --
16 A You were --
17 Q -- knew -- they knew --
18 A -- you were at the phone.
19 Q Yes.
20 A And it was a tense situation --
21 Q Why was it a tense --
22 A -- and I don't remember exactly --
23 MR. MCMAHON: Your Honor, I ask that the witness
24 be allowed to finish his answer.
25 MR. STULL: I'm sorry, Your Honor.

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1 THE COURT: Yeah, the witness answer questions.
2 You can then ask clarifying questions.
3 MR. STULL: I'll state that now.
4 BY MR. STULL:
5 Q Why was it a tense situation?
6 A What I was told when I went in there with you is
7 that you had become increasingly upset because your request
8 had not been met and that you were getting more and more
9 upset and they could not help you. They didn't know how to
10 help you and they wanted you to leave.
11 Q You just testified, the last question, you said
12 that you went in there with me and your prior testimony
13 this morning was that you came in there because there was
14 an event already -- a matter that was already taking place
15 that you were called to respond to. So which was it, did
16 you go in there with me like you just said or were you
17 called to go because I was there creating some kind of a
18 matter like you said earlier this morning?
19 A They had come out to the doors and called me in
20 there and it was with you. I was not there regarding any
21 other matter, no. It was with you.
22 Q Did you walk into the Office of Neighborhood
23 Involvement accompanying me?
24 A Not that I remember.
25 Q Were you standing at the counter when I was

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1 asking for the information you said the request --
2 A I was.
3 Q Why was the matter tense?
4 A Because your voice was raised, your voice was
5 elevated. You appeared to be upset, and frustrated, and
6 there was no help for you and you were causing them
7 concern. That was their feeling.
8 Q So which came first, your responding to the
9 matter or the matter that you responded to? Because you
10 said that the -- you were at the counter and they were
11 concerned and that's why you came there. But then you also
12 testified that you were there already. So which was it?
13 A I was not there already. I was called over, you
14 were there. You had been around City Hall through that
15 morning. You and I had spoken a couple of times. You had
16 told me about the breach of security over at the Justice
17 Center. Remember that? You were telling me that and I had
18 a chuckle along with you. You had been around City Hall
19 and on, you know, our normal convivial circumstances. And
20 midafternoon, apparently, you know, I was over at the doors
21 and you had been in at the counter in Office of
22 Neighborhood Involvement. And they were concerned you had
23 been increasingly upset and the fact that they didn't seem
24 to be able to help you made you more upset. And that's
25 when I went in there and stood at the counter with you.

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1 Q I have documents that says G4S Secure Solut ions,
2 City of Portland incident report, which is officer
3 reporting is Sergeant James Wood, with the incident date of
4 11/24/15. Would that be you and talking about this date?
5 A That would be me.
6 THE COURT: If you don't mind, I'll allow him to
7 review his report before I -- to refresh his recollection.
8 THE COURT: Well, you can ask him a question. If
9 he doesn't remember, then you refresh his recollection, but
10 not before. Just ask him a question. If he doesn't
11 remember without the documents, you can refresh his
12 recollection.
13 MR. STULL: Okay.
14 BY MR. STULL:
15 Q I apologize for the printing on this if you do
16 get to read it because the -- I don't know if the printer
17 was out of ink or what, but there is a sentence here --
18 MR. MCMAHON: Your Honor, I would object to the
19 Defendant reading any sentence off of the report. It would
20 be improper hearsay.
21 THE COURT: Well, I hope that you'll just go ahead
22 and ask him a question --
23 MR. STULL: I'm going to.
24 THE COURT: -- rather than read -- don't read it
25 to him, but --

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1 MR. STULL: No, no, I wasn't going to.
2 THE COURT: -- just ask him -- yeah, okay. Great.
3 BY MR. STULL:
4 Q There's a sentence here that makes me want to
5 explore this further. What medication might I have been
6 off of to be off my medication that day? Any idea -- do
7 you have any idea?
8 A No.
9 Q Do you remember having an idea that I was off my
10 medication?
11 A No.
12 MR. STULL: Can I refresh his memory with this
13 document, Your Honor?
14 THE COURT: If he does, go ahead. Yeah.
15 BY MR. STULL:
16 Q And once again, I apologize for the printing. I
17 was handed this document myself. Is it true that that
18 document says James Wood and the date that we're talking
19 about?
20 A Yes, it does.
21 Q And doesn't it say in your report, the consensus
22 was that I was off my medication?
23 MR. MCMAHON: Objection, Your Honor. It's
24 hearsay. It's improper. It's an improper impeachment
25 document.

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1 THE COURT: It is improper impeachment, if it's
2 meant for impeachment. It -- and it is hearsay, so I don't
3 really know where we're going with that.
4 MR. STULL: I just want to know what it says on
5 this document.
6 THE COURT: If it's necessary to argue it, then
7 we'll excuse the jury and we'll talk about it.
8 MR. STULL: It's his report.
10 MR. STULL: We'll argue it, Your Honor.
11 THE COURT: -- okay. We'll have the jury out for
12 a minute and we'll talk about it.
13 (Jury out at 9:59 a.m.)
14 THE COURT: Okay. The fact that he has a report
15 doesn't mean everything in it is admissible.
16 MR. STULL: Okay.
17 THE COURT: And the things that are not admissible
18 against objection are going to be hearsay.
19 MR. STULL: Sure.
20 THE COURT: That's what somebody else says. So if
21 he has a report that says other people have said X, Y, and
22 Z, that -- the fact that he has a report that says other
23 people have said doesn't make it admissible. So what makes
24 this admissible?
25 MR. STULL: Well, Your Honor, the language says

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1 consensus and my understanding of the word consensus, it
2 means that all parties are in one agreeance. And if I said
3 "we", that would imply that I'm part of the "we". So if
4 there's a consensus that I'm part of, that means that I'm
5 part of the agreement.
6 THE COURT: Well, the fact that there may or may
7 not have been a perception that there was an agreement by
8 other people, we're still talking about what other people
9 said. You can ask him whether he believed that or whether
10 he said that, but don't ask him whether he said that other
11 people said that because --
12 MR. STULL: I didn't --
13 THE COURT: -- that's what consensus means.
14 MR. STULL: Pardon me.
15 THE COURT: Consensus means a crowd, undefined
16 other people who are not present and here in court. So
17 we're not going to hear about what the consensus is.
18 MR. STULL: If you don't mind, I'd just like to
19 explore the exact text that we're --
20 THE COURT: No, I do mind.
21 MR. STULL: No, no, I don't mean --
22 THE COURT: You're not exploring the exact --
23 MR. STULL: -- I don't mean in front of the jury.
24 THE COURT: -- text of it.
25 MR. STULL: Your Honor, I don't mean in front of

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1 the jury.
2 THE COURT: But --
3 MR. STULL: I just mean to finish up this process
4 of the objection. I believe, and I just walked back, that
5 it says the consensus was he was off -- can I quote it?
6 THE COURT: You can quote it.
7 MR. STULL: Let me -- let me, please, approach?
8 THE COURT: But tell me what difference it makes?
9 MR. STULL: Well, whether he's part of the
10 consensus or not, Your Honor, that's all.
11 MR. MCMAHON: And, Your Honor, I think it's --
12 THE COURT: Well, you can ask --
13 MR. STULL: Whether it's his consensus -- it says
14 here "their consensus". So I'll -- it doesn't his
15 consensus.
17 MR. STULL: So --
18 THE COURT: We'll get the jury -- if that's
19 done --
20 MR. STULL: Okay.
21 THE COURT: -- we'll get the jury back.
22 MR. STULL: No, that's fine and tell them --
23 MR. STULL: That's fine. Thank you, Your Honor.
24 THE COURT: -- to disregard --
25 MR. STULL: That was that -- the difference of the

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1 word "their" and "the".
2 THE COURT: Okay.
3 MR. STULL: Your Honor, could I have Mr. Kelley
4 just explain what he --
5 THE COURT: No, he's not going to be arguing to me
6 about objections.
7 MR. STULL: No, it's just that the --
8 THE COURT: I don't -- it's not going to happen.
9 MR. STULL: No, no, Your Honor, the conflict is
10 that the witness just testified that his opinion was that
11 he didn't think that I was off my medication.
12 THE COURT: Okay. Well, that's --
13 MR. STULL: But other people's opinion was is
14 reflected in his report.
15 THE COURT: And other people's opinion --
16 MR. STULL: So if I'm not going to talk about the
17 other --
18 THE COURT: -- are not --
20 THE COURT: No.
21 MR. STULL: That's fine. So I'll ask -- I'll some
22 other questions.
23 THE COURT: Okay.
24 MR. STULL: I'll just let this one go for now --
25 THE COURT: Okay.

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1 MR. STULL: -- because I have some other things to
2 explore with this.
3 THE COURT: Very well. We'll get the jury back.
4 MR. STULL: Thank you, Your Honor. And I do know
5 that it's cross-examination and I'm limited to the --
6 THE COURT: It is.
7 MR. STULL: Yes, I do understand that.
9 THE COURT: Thank you. Continue.
10 BY MR. STULL:
11 Q Mr. Wood, you testified that this incident in the
12 exclusion took place -- your testimony yesterday evening,
13 was that your -- this incident took place at 3:00 p.m. on
14 November 24th.
15 A Midafternoon. And without a report to refresh my
16 timing, I remember it was in the middle of the afternoon.
17 Q Well, I have your report that states your time of
18 incident to refresh your memory.
19 A Okay.
20 Q And the time of the incident?
21 A I've got here 12:35 p.m.
22 Q Now do you remember what time the incident took
23 place?
24 A I see it here that it says 12:35, so that would
25 be the time.

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1 Q Okay. Thank you. The --
2 A That's why we get a report, to refresh our
3 memory.
4 Q Thank you. You stated that that day we had some
5 laughs over an incident at the Justice Center, what we
6 would refer to as the breach of security in --
7 A Earlier, yes.
8 Q Yeah, okay. Before 12:35?
9 A Right.
10 Q Okay. And then the individuals that were there
11 at the time of this conversation about the trespassing
12 exclusion, Mr. Cohen, and Mr. Chandler, and yourself, and
13 myself. Is that -- did I get that right from your
14 testimony?
15 A At the first floor?
16 Q Yes.
17 A It would have been me --
18 Q First, with me.
19 A -- and -- of course, yes.
20 Q And then -- yeah.
21 A And following in, Sergeant Jason King --
22 Q That's the gentlemen that I --
23 A -- came in. Right, and then when you left, you
24 had gone upstairs and Sergeant King was with you up there.
25 And then at that time, give or take, you know, however much

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1 time it was, that's when Sergeant Cohen came through and
2 that's when you left the building.
3 Q Based on your experience working there as
4 security, if any of that members of the public wanted to
5 enter Portland City Hall, what door would they use?
6 A 4th Avenue.
7 Q And if they wanted to exit, what options would
8 they have?
9 A They could exit 4th Avenue or go upstairs and go
10 out the 5th Avenue.
11 Q So the 5th Avenue exit is from the second floor?
12 A Correct.
13 Q And where is Commissioner Fritz' related to the
14 entrance and the --
15 A South of the Fifth Avenue door. It's room 220.
16 Q So the closest exit to Amanda Fritz' office would
17 be the Fifth Avenue side?
18 A Correct.
19 Q And how long was you -- that short while that you
20 testified to yesterday evening that there was a
21 conversation -- if I could flush this out and make it --
22 there was a conversation on the first floor?
23 A Correct.
24 Q Then I went upstairs with these other individuals
25 coming or going, as we don't need to get -- we will let the

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1 jury decide what they heard about those affairs. But what
2 I'm trying to say is, then my path was up the stairs to
3 Amanda Fritz' office for some duration of time --
4 A Minutes, yeah.
5 Q -- a conversation with Mr. Cohen and Mr. King?
6 A Correct.
7 Q And then exited by the Fifth Avenue door?
8 A That's as I remember it, yes.
9 Q Okay. What time were the police called?
10 A They were called while we were down in the first
11 floor, in the Neighborhood Involvement Office.
12 Q Who called the police?
13 A It would have been -- it'd have been me or it
14 would have been the staff at the Neighborhood Involvement
15 people.
16 Q You're not sure, is -- you don't recall?
17 A No.
18 Q Okay. So the police were called by narrowing it
19 down --
20 A One of us, correct.
21 Q -- the people that were aware that I was in the
22 Office of Neighborhood Involvement?
23 A Right.
24 Q Which is sequestered, it's its own room?
25 A Correct.

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1 Q Okay. So the people in that -- let me just say,
2 inside the door of the office of neighborhood involvement?
3 A Right.
4 Q Okay.
5 MR. STULL: Your Honor, I'd like to have this
6 witness identify what I'm going to offer as Defense Exhibit
7 102.
8 THE COURT: Yeah, okay. You've got it to show to
9 DA.
10 MR. MCMAHON: And I'd object to relevance, Your
11 Honor.
13 MR. MCMAHON: I'd object to relevance.
14 THE COURT: The objection is to relevance. Do we
15 have to argue that?
16 MR. STULL: Oh.
17 THE COURT: I don't know what it is, so --
18 MR. STULL: It's a business card for the Office of
19 Neighborhood Involvement. What it actually says is --
20 THE COURT: Well, wait a second. Wait.
21 MR. STULL: If he -- it's an objection, so --
22 THE COURT: Wait, it's a business card for the
23 Office of Neighborhood Involvement.
24 MR. STULL: Yes.
25 THE COURT: And what's the plain relevance? Just

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1 very briefly if you can.
2 MR. STULL: Oh, city county information, that it's
3 both Multnomah County and City of Portland information.
4 THE COURT: I -- and why is that relevant to the
5 charges today?
6 MR. STULL: Because the trespass exclusion, as far
7 as I -- would you -- could we have this out of the jury?
8 THE COURT: Sure, yeah.
10 THE COURT: Let's take the jury out.
12 MR. STULL: Your Honor, I have not yet offered
13 Defense Exhibit 101.
14 THE COURT: Right. Right now, we're talking about
15 this other exhibit that you've offered and that's what we
16 will talk about.
17 MR. STULL: And I'm talking about 102.
18 THE COURT: Well, I'm talking about --
19 MR. STULL: Excuse me, Your Honor.
20 THE COURT: -- this business card and why it needs
21 to be in evidence.
22 MR. STULL: And, Your Honor, the witness testified
23 that the 5 -- the phone number, telephone number, 503-823-
24 4000 is the place where they answer the phone with city and
25 county information; City of Portland information and

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1 Multnomah Count information.
2 THE COURT: Right.
3 MR. STULL: The witness testified that he was
4 present when he became aware that I --
5 THE COURT: I did hear --
6 MR. STULL: -- had requested --
7 THE COURT: -- the testimony. I did hear it.
8 MR. STULL: -- that I had requested a Multnomah
9 County Health Department --
10 THE COURT: But I am still under -- trying to
11 understand what the relevance is to any issue in the events
12 of the following day, relating to arrest, and attempted
13 assault charges, and the criminal mischief charges.
14 MR. STULL: I'm getting there, Your Honor, please.
15 THE COURT: Well, please do.
16 MR. STULL: "Dear, Mr. Stull: On November 24th,
17 around noon, you entered the Office of Neighborhood
18 Involvement. You made a request that ONI staff to provide
19 you with personal transportation to your home. OIN staff
20 informed you that it was not an office that provided
21 personal shuttle or passenger transport service, offered
22 the city telephone." This goes on to say that I also went
23 to Amanda Frtiz' office where I, again, demanded a city
24 ride and where I was, again, told that there are no city
25 ride available when, in fact, it was a Multnomah County

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1 ride that I sought from the city office that provides
2 information for the county, as it says on this card.
3 THE COURT: Well, what difference does that make
4 to the charges here?
5 MR. STULL: The trespass exclusion that started
6 this whole thing was based on my having apparently been
7 misinterpreted as asking for a city service that doesn't
8 exist when I, in fact, inquired, and as we heard the
9 witness testimony, a county service that does exist.
10 THE COURT: I think that that gets to the -- to
11 the heart of the problem. We are not trying -- in this
12 case, it doesn't matter whether they should have trespassed
13 you or not. It doesn't matter. So we're not going to
14 decide whether they were wrong in issuing the trespass
15 order or whether they shouldn't have because that doesn't
16 matter to the question of whether there was a lawful
17 arrest, or whether you resisted that arrest, or whether you
18 caused damage in the police car, or whether you tried to
19 strike an officer. It doesn't matter. If there was a
20 trespass order --
21 MR. STULL: Yes, uh-huh.
22 THE COURT: -- and it existed --
23 MR. STULL: Yes.
24 THE COURT: -- and they called the police, and
25 those officers didn't know there was anything wrong with

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1 the trespass order --
2 MR. STULL: Yeah.
3 THE COURT: -- then that's all that matters. It
4 doesn't matter whether the trespass order was issued --
5 MR. STULL: Fraudulently or illegally --
6 THE COURT: -- previously, or --
7 MR. STULL: -- or mistakenly?
8 THE COURT: Well, mistakenly or anything else.
9 MR. STULL: Yes, I understand. Okay.
10 THE COURT: So why are we pursuing this?
11 MR. STULL: Because, Your Honor, the pattern that
12 we already have established by the video is that I, on
13 Sunday night, as it showed, that I had been drugged instead
14 of getting emergency medical transport. How long did it
15 take for me to get into the ambulance, I don't know. Then
16 we have on Tuesday, the witness testimony that I sought
17 from my medical condition, which then led to the following
18 day when I requested an ambulance. And the one thing
19 that's common to every one of these is city of Portland
20 agents, one, interfering with my access to medical
21 treatment for my central pain syndrome; or -- and/or, two,
22 retaliating against me for having made that request.
23 THE COURT: I'm not finding it relevant. That's
24 not a defense and that's not an issue on this charge.
25 MR. STULL: I understand you.

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1 THE COURT: So I'm going to exclude the
2 evidence --
3 MR. STULL: That's fine, Your Honor, and we'll --
4 THE COURT: -- and that line of testimony.
5 MR. STULL: -- just put this into the record
6 because it is --
7 THE COURT: It's an excluded -- it's excluded
8 evidence.
9 MR. STULL: We'll put that into the record.
10 THE COURT: Sure, we'll mark it for the purposes
11 of the record --
12 MR. STULL: Right, that's all.
13 THE COURT: -- but -- all right.
14 MR. STULL: And we'll move on.
15 THE COURT: And we'll move on.
16 MR. STULL: No problem, Your Honor. Thank you.
17 THE COURT: Okay.
19 Defense Exhibit 102 is
21 THE COURT: So that's offered, but not accepted
22 and we'll --
23 MR. STULL: You can bring the jury back, Your
24 Honor. It's your call. I'm not telling you what to do,
25 but I'm finished with that.

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1 THE COURT: Okay.
2 MR. STULL: Thanks.
4 BY MR. STULL:
5 Q Mr. Wood, would you say there was something
6 different about my behavior, based on our relationship
7 since maybe 2013 -- I imagine you might have known me --
8 A Right.
9 Q -- since that long, anything different on --
10 let's do it first one and then the next. On that --
11 MR. MCMAHON: Your Honor, I object. It's improper
12 character evidence.
14 MR. MCMAHON: I object, Your Honor. It's improper
15 character evidence. He's asking about his behavior in
16 context of his reputation in general and what he would act
17 like.
18 THE COURT: Okay. We're not going to talk --
19 there was an exclusion for character evidence, so --
20 MR. STULL: Sure.
21 THE COURT: -- we don't go there.
22 MR. STULL: I was -- let me rephrase that.
23 THE COURT: Well, if you can --
24 BY MR. STULL:
25 Q Since 2013, has there ever been an incident with

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1 my behavior at City Hall that was called to your attention
2 that --
3 MR. MCMAHON: I object, Your Honor.
4 BY MR. STULL:
5 Q -- needed to be addressed?
6 MR. MCMAHON: It' improper character evidence.
7 THE COURT: I believe that it is. If you want to
8 discuss this in more detail, we're going to have to ask the
9 jury to step out. Past incidents are not going to be a
10 factor.
11 MR. STULL: I'm talking about --
12 THE COURT: I -- well --
13 MR. STULL: I'll ask it again, Your Honor, please.
14 THE COURT: Okay. Let's talk about this event and
15 not about anything else.
16 MR. STULL: I will not oppose his objection and I
17 will proceed.
18 THE COURT: All right. Okay.
19 BY MR. STULL:
20 Q Was this the first time --
21 MR. MCMAHON: Okay. Your Honor, I raise my
22 objection. It's just ways of rephrasing and asking the
23 same question.
24 THE COURT: Yes, that's what we're doing. We're
25 going to have to talk about what had occurred on that

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1 occasion, not what occurred on other occasions, whether it
2 was similar or not similar. Either way, we're just going
3 to talk about this occasion.
5 BY MR. STULL:
6 Q On my arrival to council chambers on the video,
7 approximately 9:25, according to the time -- excuse me.
8 I'll ask this question first.
9 You're familiar with the layout of the council
10 chambers, aren't you?
11 A Correct.
12 Q Generally, I mean.
13 A Yes.
14 Q And there is a large clock called -- it's an art
15 piece called "Time Matters"?
16 A Yes, it is.
17 Q All right. Thank you. And is that time on that
18 clock accurate?
19 A Relatively, yes. I consider it accurate. We go
20 by that.
21 Q So when we look on the video and we see that
22 clock in the background, it's rather large, correct?
23 A oh, yeah.
24 Q It's quite large. When we look at that and we
25 see that clock and the time on that clock, that's pretty

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1 close to the actual time, correct?
2 A It's supposed to be, yes.
3 Q It's supposed to be. And in the video, we can --
4 we can see that clock, if you want to revisit that.
5 MR. STULL: Could I do that, Your Honor, have --
6 show -- any --
7 THE COURT: If you wish.
8 MR. STULL: Any of that portion of that video to
9 show that clock so I can ask the specific question about
10 the time.
11 MR. MCMAHON: Mr. Stull, please tell me when you'd
12 like me to pause the video.
13 MR. STULL: Yeah, it's going to be -- oh,
14 almost. Right there. Okay.
15 BY MR. STULL:
16 Q I don't know if you can see the clock. Can you
17 tell us what time that is? If you need to, you can get up
18 and go over there. Can you see what that clock says as the
19 time?
20 A Yeah, it's right after 9:20. Be a lot like 9:21
21 or 2 --
22 Q Okay.
23 A -- that I can see from here.
24 Q And council was scheduled for 9:30?
25 A Scheduled for 9:30, yes.

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1 Q Okay. So this was before the city council
2 hearing was scheduled to start?
3 A Correct.
4 Q Okay. And this is as people, including myself,
5 were coming in for the 9:30 hearing?
6 A Right.
7 Q Okay. The video started, as we saw just now and
8 earlier, with you on the telephone?
9 A Right.
10 Q And then as this was getting to this portion,
11 which is literally seconds into that, I requested an
12 ambulance? We can go forward with this if you want to
13 hear, but I was talking to the council clerk at some point
14 in the early minutes --
15 A Right.
16 Q -- and I requested an ambulance?
17 A Uh-huh, I remember that.
18 Q You recall that?
19 A Yeah.
20 Q Did you call an ambulance?
21 A No, I was on hold with the police.
22 Q And did anyone else call an ambulance?
23 A I don't know.
24 Q Did, at any point after you got off of the
25 telephone, when you were calling the police or -- and you

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1 were on hold for non-emergency, correct?
2 A Correct.
3 Q So you hadn't dialed 9-1-1, instead it was 823-
4 3333; is that --
5 A Right.
6 Q Okay. So that's the line you called. Can you
7 tell us the difference between those two?
8 A Oh, yes. 9-1-1 is an emergency, bodily injury,
9 imminent death, break-ins, threats, emergency. Non-
10 emergency is that the police might not be needed at the
11 scene, but there is a need for police information, contact,
12 telephonically, whatever, but it's not a "step up, hurry
13 up".
14 Q Did you, at any point, consider my request for an
15 ambulance to create an emergency?
16 A By that time, the police were there. They had
17 looked in the door and they were in control. So it was not
18 up to me at that time. It was their situation to control
19 from then on.
20 Q So you're saying that once the police arrive on
21 the scene, you lose the authority to call an ambulance for
22 somebody that needs medical attention or requests medical
23 attention?
24 A It would be there direction to me to call. Other
25 than that, I stand by. It's their scene from that time on.

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1 Q How long do you think you were on hold to the
2 non-emergency?
3 A A few minutes.
4 Q It wasn't straight through --
5 A No.
6 Q You had to wait some period of time; is that what
7 you're saying?
8 A Correct.
9 Q Okay. Did -- do you recollect, once the police
10 had arrived, hearing me say I needed an ambulance?
11 A Yes, I did.
12 Q Did you -- do you recollect hearing me say that I
13 could die from the condition?
14 A Yes, I did.
15 Q But you felt that you could not address that
16 because the police were present?
17 A Right.
18 MR. STULL: No further questions, Your Honor.
19 THE COURT: Okay. Redirect.
20 REDIRECT EXAMINATION
21 BY MR. MCMAHON:
22 Q Very briefly, sir. I just want to talk a little
23 bit about what happened the previous day. Approximately
24 how long were you speaking with Mr. Stull when he was at
25 the Office of Neighborhood Involvement?

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1 A About over five minutes, between five and ten
2 minutes at the most.
3 Q Did you give him an opportunity to leave?
4 A Yes.
5 Q What was his demeanor like at that point at time?
6 A Go ahead and call the police, let them come .
7 Q Was he upset or was he yelling?
8 A He wasn't yelling. His -- he appeared anxious.
9 He appeared very nervous. He was -- how you put words to
10 somebody. I wouldn't say he was losing his temper so much
11 as that he was not getting what he felt he needed and the
12 people there were not able to negotiate his needs and so
13 that he was getting more and more frustrated. And it was
14 to the point where the witnesses listed in my report there
15 were saying we cannot help him, we cannot honor his
16 request. He's going to have to leave.
17 Q And that, again, sort of drawing attention to the
18 video of the events of that day, approximately how long
19 after you were on the phone with non-emergency line that
20 the police arrived?
21 A Very early because they didn't come in. The
22 officer looked in and observed and listened in.
23 Q And so I guess the reason -- and why wouldn't you
24 call additional emergency personnel if emergency personnel
25 was (indiscernible)?

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1 A I had made the calls that I needed to make as far
2 as I called the police. I called my supervisor. We were
3 monitoring. And at that time, it was simply letting -- as
4 they designated.
5 Q All right. Thank you.
6 MR. MCMAHON: I have no further questions.
7 THE COURT: Very well. You may step down. This
8 is a good time for our morning break.
9 THE WITNESS: Thank you.
10 THE COURT: We're going to be on break for 15
11 minutes. Remember not to begin to discuss the case amongst
12 yourselves. And we'll be back to work in 15. Mr. Gibson
13 will show you into the jury room.
15 THE WITNESS: Do you need me to stay around or am
16 I dismissed?
17 THE COURT: I --
18 (Witness excused.)
19 (Recess is taken from 10:27 a.m. until 10:43 a.m.)
20 THE COURT: All right. We'll get the jury back
21 and continue.
22 (Jury in at 10:44 a.m.)
23 THE COURT: All right. Call your next witness.
24 MR. MCMAHON: Thank you, Your Honor. The State
25 will be calling Mike Cohen.

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1 (Witness summonsed.)
3 solemnly swear under the penalty of perjury that the
4 testimony you are about to give will be the truth, the
5 whole truth, and nothing but the truth?
6 MR. COHEN: I do.
7 THE CLERK: Please have a seat. I'm going to ask
8 you to spell your name for the record.
9 MR. COHEN: First name is Michael, last name is
10 Cohen. First name is spelled M-i-c-h-a-e-l. Last name is
11 spelled C-o-h-e-n.
12 WHEREUPON,
13 MICHAEL COHEN,
14 a witness, having been first duly sworn, was examined and
17 BY MR. MCMAHON:
18 Q Good morning, Mr. Cohen. What is your current
19 occupation?
20 A I'm a security supervisor for the City of
21 Portland. I'm under contract with a company. G4S is the
22 company I actually work for. We contract with the City of
23 Portland.
24 Q All right. And how long have you been in this
25 role as a supervisor for the City of Portland?

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1 A A little over three years.
2 Q I'm sorry, you said three years?
3 A A little over three years.
4 Q Three years. And what did you do before you
5 began to work security for --
6 A As a police officer in Los Angeles for 21 years.
7 Q And (indiscernible)?
8 A Retired. Went overseas for a year with the
9 Department of Defense. And while I was overseas, my wife
10 took a job up here in Beaverton, actually. So I followed
11 her.
12 Q Now, what are your duties working for G4S as
13 security, let's say, working for (indiscernible)?
14 A Maintaining security at both the Portland
15 building and City Hall. The front entrances of both
16 buildings. And also providing body guard -- basic body
17 guard for the mayor or commissioners if they need,
18 depending on the situation.
19 Q Okay. Now, I want to talk to you
20 (indiscernible). Were you on duty on that day?
21 A Yes.
22 Q Where were you posted?
23 A That day, I probably -- depending on what day
24 that exactly was, I may have been downstairs on the first
25 floor, depending time and day. We rotate our positions at

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1 1:00 and then we start at varying positions, you know,
2 throughout the day.
3 Q Okay. And did you provide assistance to a call
4 of Jimmy Wood at some point?
5 A Yes, I did.
6 Q What sort of assistance did you provide?
7 A We had a -- as I understood it, we got a call
8 about somebody causing a disturbance. I went up there, saw
9 Jim and I'm not sure if the other officer there, Jason
10 King, was there also. And then I showed up talking to the
11 Defendant trying to calm him down. He was upset about
12 something, but I don't know. I wasn't there at the
13 beginning of it. I caught the tail end of it. He was
14 talking loudly and they were just trying to talk to him.
15 Q Okay. And what happened after you got there
16 (indiscernible)?
17 A I believe he went upstairs. I'm not quite sure.
18 I didn't have a lot of contact with him. I mean, he was
19 down there and then he upstairs, I believe, to Commissioner
20 Fritz' office. I'd have to look at a report to refresh.
21 It's been almost a year.
22 Q Okay. But you weren't at the Office of
23 (indiscernible)?
24 A Not initially, no.
25 Q Okay. Did you eventually make contact?

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1 A Yes, one of the other officers were up there with
2 him on the second floor.
3 Q What happened after that?
4 A They tried to get him to calm down. He was upset
5 about something. I've dealt with Mr. Stull on numerous
6 occasions and --
7 Q Actually, I just want to talk about the
8 (indiscernible).
9 A Okay, yeah. All right.
10 THE COURT: Yeah, strike anything about other
11 occasions.
13 BY MR. MCMAHON:
14 Q What happened next after you contacted him?
15 A I was just standing by while the other officers
16 were talking to him trying to get him to calm down.
17 Q Did he eventually leave the building?
18 A Yes, he did.
19 Q And did you see Mr. Stull the next day?
20 A Yes, I did.
21 Q Where'd you see him?
22 A Council Chambers.
23 Q Now, were you in the city council chambers when
24 Mr. Stull entered or did you respond to a call there?
25 A I happened in there after he was already inside.

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1 Q Okay. Did you contact Mr. Stull?
2 A Yes, I did.
3 Q Actually, I want to direct your attention over to
4 the video screen. Do you recognize (indiscernible)
5 individual?
6 A Yes, I do.
7 Q I guess, if you could please (indiscernible)
8 indicate for the jury where (indiscernible) on the screen.
9 A Absolutely. Right here.
10 Q And I'm going to go ahead and play a little bit
11 of the video.
21 MR. STULL: I'm sorry,
23 BY MR. MCMAHON:
24 Q Now, we couldn't really hear what -- kind of what
25 you were saying. What were you talking to Mr. Stull about?

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1 A Well, I was trying to just get him to calm down,
2 remind him that he had been excluded the day prior and he
3 wasn't allowed back in the building until 1:00, 24-hour
4 verbal exclusion. And he wasn't allowed back until 1:00.
5 Q And I guess you did hear part of what he was
6 saying. How was he responding?
7 A He was upset. You could see by the video he was
8 upset.
9 Q And he acknowledged that he knew he was excluded?
10 A The best I can remember, yes, he did.
11 Q And it looks like at this point you're doing
12 something on your phone. Do you remember what you were
13 doing at that point?
14 A I believe I was responding to -- or looking at a
15 text I had gotten from my supervisor, John Chandler, as to
16 what was going on.
20 MR. STULL: I have a disability and they're
21 triggering it right now. At 1:00, okay. Call 9-1-1. I
22 need emergency to the mental hospital. They just triggered
23 my disability again. You want to see my medical paperwork
24 or you think I'm joking?

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1 paperwork.
8 the hell is going on in this city. See, this is me the
9 other night getting out of jail at 3:00 in the morning,
10 T-shirt, shorts because I called the ambulance. They came
11 out to my house where my neighbor is a Multnomah County
12 Health Department client and I'm yelling for how long? We
13 don't have to worry because --
15 BY MR. MCMAHON:
16 Q Okay. It looks at that point, you sort of walk
17 out of the altercation with Mr. Stull. What did you do
18 after that?
19 A Went and called 9-1-1.
20 Q All right. And that wasn't non-emergency, that
21 was actually 9-1-1?
22 A It was 9-1-1.
23 Q Okay. Who did you request to come down on
24 response?
25 A I requested units from the bureau, the police

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1 bureau, to come down and assist us with Mr. Stull.
2 Q All right. What did you do after you made that
3 call?
4 A I came back in there, to the Chamber, after
5 making the call and just stood by and waited for the
6 police.
7 Q Okay. (indiscernible).
11 MR. STULL: -- who was inside as an Embassy guard
12 when they lost the war. He got shot --
14 BY MR. MCMAHON:
15 Q Now, at this point, maybe you can see who was
16 standing right next to --
17 A Well, standing in front of him right now is a
18 friend of Mr. Stull, and behind him right before he walked,
19 it was Commissioner Amanda Fritz.
20 Q Okay. At this point, where were you?
21 A Probably off to the right maybe. I'm not quite
22 sure.
23 Q Okay. But you weren't -- you weren't in the
24 middle of that, you were sort of (indiscernible)?
25 A Yes, I was.

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4 MR. STULL: -- seven times.
8 there at 17 feet.
23 would be me.
25 BY MR. MCMAHON:

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1 Q Just to clarify, were you -- (indiscernible) just
2 for a second. I will go back a little bit.
3 A Yeah, you might have to. I couldn't -- didn't
4 see myself.
8 MR. STULL: Oh, Portland Hempfest in 1995. Oh,
9 that would be me. That would be me. Whose case reversed
10 the --
12 BY MR. MCMAHON:
13 Q Is this you right here?
14 A Yes.
15 Q Okay. At that point, what are you doing?
16 A I'm briefing the sergeant as to what's going on
17 and why we called them.
18 Q And just for the sake of clarity, are you a
19 person with authority charged over the premises of City
20 Hall?
21 A Yes.
22 Q During that briefing with the officers, did you
23 tell them (indiscernible) Mr. Stull in Council Chambers?
24 A Yes.
25 Q What did you (indiscernible)?

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1 A With --
2 MR. STULL: Objection. Hearsay.
3 THE COURT: We're receiving it for the purpose
4 of --
5 MR. MCMAHON: Effect on listener, Your Honor.
7 MR. MCMAHON: Effect on listener, Your Honor.
8 THE WITNESS: Well, prior to -- well, I told the
9 sergeant that we wanted him removed and we wanted him
10 trespassed and disorderly conduct. We had also -- the
11 people were milling around, they had already made --
12 ordered Commissioner Fritz and ordered to clear the Chamber
13 and we were trying to get people out the Chamber. And I
14 was just telling the sergeant and the other officer that we
15 were trying to get the Chamber cleared so that they could
16 do what they had to do.
20 MR. STULL: -- former Republic Attorney General?
21 Uh, that would be me. What was his name? Lee Johnson.
22 Oh, what was his history as an attorney general? Well,
23 they couldn't seat him. And you couldn't seat them. Come
24 on, guys, get me out of here. Call the ambulance. You
25 guys were told to get me an ambulance.

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7 O'Dea?
9 SGT. COHEN: Whoops.
14 drummer."
15 SGT. COHEN: Mr. Davis, we're clearing the chambers, so
18 SGT. COHEN: Yes.
22 SGT. COHEN: Okay.
24 MR. DAVIS: No.

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1 BY MR. MCMAHON:
2 Q No, Mr. Cohen, you just made some hand gestures there.
3 What was the (indiscernible) of those hand gestures?
4 A I was trying to talk to another individual in the
5 courtroom, David Kif Davis who was filming. I believe this is
6 his video, that the order was given from the Chamber that he
7 needed to clear the Chambers.
8 Q Okay. It looks like you sort of pointed at what was
9 Mr. Davis and Mr. Stull. What was the indication of that?
10 A I believe I was just -- I basically -- I mean, I was
11 just trying to get Mr. Davis to exit the -- you know, exit
12 Chambers.
13 I am filming police interaction with the public --
18 MR. STULL: Hey.
19 SGT. COHEN: Two now. We're going to get the press out
20 now, too.
21 MR. DAVIS: No --
23 BY MR. MCMAHON:
24 Q Now, right there, we were able to hear what you're
25 saying. What were you doing at that point?

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1 A At that point in time, because Mr. Davis wouldn't
2 cooperate with me after multiple requests for him to leave, I
3 turned around and looked at the officer and I go, "I will
4 trespass him also."
5 Q Okay. So at this point, you're already getting into --
6 you obviously trespassed Mr. Stull?
7 A Yes.
9 1, was played in open court and transcribed to the best of the
10 transcriber's ability as follows:)
15 record.
17 SGT. JOHNSON: Sit down, Mr. Stull. Sit down, Mr.
18 Stull.
21 MR. DAVIS: No.
22 SGT. JOHNSON: You're out. 69 (sic) him.

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4 MR. STULL: No.
22 MR. DAVIS: No.
25 UNIDENTIFIED SPEAKER: You're out of here, now.

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2 UNIDENTIFIED SPEAKER: You're out.
4 UNIDENTIFIED SPEAKER: Now you're done.
6 (Recoding ends.)
7 BY MR. MCMAHON:
8 Q So after Mr. Stull was taken into custody, you listened
9 to the (indiscernible), correct?
10 A Yes.
11 Q And did you see what happened to Mr. Davis after he was
12 taken out of the City Hall Chambers?
13 A No, I know they took him downstairs, but after that, I
14 don't know.
15 Q So after (indiscernible), that was your last encounter
16 with --
17 A Yes.
18 MR. MCMAHON: Thank you. I have no further questions.
19 THE COURT: Cross?
21 BY MR. STULL:
22 Q Mr. Cohen, how long have we known each other?
24 THE COURT: I'll let him answer that question, but we
25 aren't going into any earlier events or any earlier instance.

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1 MR. STULL: Oh, no, not at all, Your Honor.
2 THE COURT: Well, go ahead and ask it.
3 THE WITNESS: Basically the whole time I've worked at
4 City Hall.
5 BY MR. STULL:
6 Q So when you came to work at City Hall, I was part of
7 that environment that you came into?
8 A Yes.
9 MR. STULL: That's all I wanted to say, Your Honor.
10 BY MR. STULL:
11 Q And -- oh, yeah, how long have you been working -- I
12 believe you mentioned you came in 2013?
13 A Yes.
14 Q Okay. And have you seen me around? You know how I
15 interact with folks --
16 MR. MCMAHON: Objection, Your Honor. He's talking --
17 MR. STULL: I --
18 THE COURT: I will sustain this. I did say we're not
19 going to talk about any other incidents or any other -- we're not
20 going to go into anything about character or past events. We're
21 just not.
22 BY MR. STULL:
23 Q How was I those two days that we're talking about
24 compared to right now?
25 MR. MCMAHON: Objection, Your Honor.

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1 THE COURT: Well, compared right now is fine.
2 THE WITNESS: Of right now, currently in the
3 courtroom?
4 BY MR. STULL:
5 Q Yeah, yeah.
6 A You were in an agitated state those two days before.
7 Q You -- you called 9-1-1 as we see and we --
8 MR. STULL: Your Honor, we do have the recording of his
9 telephone call. I just wanted to let you know that.
10 BY MR. STULL:
11 Q Did you call for medical attention?
12 A I just called for the police, if I remember correctly.
13 Q Did you hear me say I wanted an ambulance?
14 A I believe so. Like I said, the best I can remember.
15 If it's on the videotape, then yes, I may have hear you say it.
16 Q Was there something that kept you from understanding
17 the nature of my request for medical attention?
18 A No.
19 Q English, plain English?
20 A No.
21 Q Well, was it in plain English?
23 THE COURT: I think that we don't need to have a
24 question about that.
25 BY MR. STULL:

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1 Q Do you have the authority to summon medical emergency
2 -- medical response to City Hall?
3 A Yes, I do.
4 Q And did you have that authority on the 25th of November
5 --
6 A Yes, I did.
7 Q -- of 2015?
8 A Yes, I did.
9 Q Did you exercise that authority to summon emergency
10 medical attention?
11 A No.
12 Q Was there a limitation on that?
13 A No.
14 Q What -- why didn't you?
15 A Because I called 9-1-1 to call the police.
16 Q And in your experience, and you did state you had
17 experience as a law enforcement officer before you came to the
18 job at City Hall, are Portland Police Officers trained medical
19 personnel?
20 A I can't answer that. I didn't work for the Portland
21 Police Bureau.
22 Q Did you think that there was a medical emergency at the
23 time?
24 A Based on my training and experience, no, I did not.
25 Q And what did you think, since you heard the parties

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1 say, on the video, I need an ambulance, what made you think that
2 that wasn't a -- what thwarted that request?
3 A The only thing I could see was you were arguing and
4 yelling. I saw no medical issues. You were on the ground. You
5 weren't grabbing your chest. There were no medical issues that
6 I could see that warranted me calling an ambulance first.
7 Q Do you recall me saying I have my medical information
8 here?
9 A Not really, but if it's on the videotape, you may have
10 said. I don't remember. It's been close to a year now, so I
11 don't remember.
12 Q The day before, the --
13 MR. STULL: Excuse me, Your Honor. We've already
14 heard that I went to the Office of the Neighborhood Involvement.
15 BY MR. STULL:
16 Q You're aware of that, right, whether you were present?
17 Right, you're aware of that?
18 A Yes, I was aware of that.
19 Q Okay. And then I went up to the second floor and out
20 the Fifth Avenue exit by way of stopping a brief moment or some
21 period of time at Amanda Fritz' office?
22 A I know you stopped at Amanda Fritz' office.
23 Q Did you know how I exited the building?
24 A I did not see you exit the building.
25 Q Did you know that I exited the building?

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1 A Yes, that much I did know, that you had exited the
2 building.
3 Q Okay.
4 A But which way you went out, I didn't see.
5 Q And did you know that the police had been called on
6 November 24th regarding my being in the building?
7 A Not that I know of.
8 Q You're not aware of that?
9 A No.
10 Q Okay. But did you -- were you present when -- if
11 police responded? Did you have a conversation with the Portland
12 Police on November 24th?
13 A Which would be the day before the incident, no.
14 Q Correct.
15 A They -- I did not make contact with the police that
16 day.
17 Q So does your security force keep records of when the
18 Portland Police are contacted regarding individuals on like a
19 daily log or incident, you know, chart?
20 A Yes, it should be recorded on the daily activity
21 report.
22 Q So if James Wood -- you know James -- do you know who
23 James Wood is?
24 A Yes, I do.
25 Q Okay. Would it be fair to call him your colleague or

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1 your coworker or --
2 A Yes.
3 Q -- someone you -- when you go to work, sometimes he's
4 at work too?
5 A Yes.
6 Q Okay. Did you know that he filed an incident report
7 about November 24th?
8 A Yes, I did.
9 Q And you already mentioned that you didn't know the
10 Portland Police were called on the 24th, and on the 25th you
11 called the police. Do you know of any -- do you know, on the
12 25th, when the ambulance was requested for me or if there was
13 one?
14 A I don't know.
15 Q Okay.
16 A I know -- I just know that I did not request an
17 ambulance for you.
18 Q That's fine.
20 THE COURT: All right. Do you --
21 MR. MCMAHON: No redirect, Your Honor.
22 THE COURT: You may step down.
23 MR. MCMAHON: Your Honor, I ask that this witness be
24 excused.
25 MR. STULL: Your Honor, that's fine with me, thank

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1 you.
2 THE COURT: Okay.
4 THE CLERK: Do you solemnly swear or affirm that the
5 testimony that you're about to give will be the truth, the
6 whole, and nothing but the truth?
7 THE WITNESS: Yes.
8 THE CLERK: Have a seat. State your first and last
9 name and spell your name for us.
10 THE WITNESS: Okay. So first name is Todd, two Ds.
11 Last name is Engstrom, E-n-g-s-t-r-o-m.
12 WHEREUPON,
13 TODD ENGSTROM,
17 BY MR. MCMAHON:
18 Q Good morning, officer.
19 A Good morning.
20 Q Before we begin, I just want to (indiscernible). You
21 actually walked here on crutches today?
22 A Yes.
23 Q What's the reason for that?
24 A So I tore my ACL playing basketball on the 4th of July
25 and just had surgery three weeks ago.

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1 Q Okay. So this is not --
2 A Unrelated to this event today, so --
3 Q Okay. So what is your profession?
4 A I'm a Portland police officer and I've been with the
5 Portland Police Bureau since '94, so I've been there 22 years.
6 And I am currently assigned to patrol, so I work downtown,
7 dayshift, typically Old Town Pearl District downtown, in that
8 area.
9 Q Okay. And what was your training to become a Portland
10 police officer?
11 A So every police officer goes through the state
12 academy, so I went through the state academy. Back then, it was
13 at Western Oregon University. And Portland police officers are
14 on probation for 18 months. And during that 18 months, you go
15 through the state academy. You come back. You're out on the
16 street for a little while with a training officer and then you
17 go through another academy. We have our own in-house academy,
18 which we call the -- or the -- excuse, the advanced academy. So
19 the state is the basic academy and then we put our folks through
20 some training in our advanced academy. And back then I think it
21 was 16 weeks and then you go back to the street, again, with a
22 training officer until they feel that you can do the job by
23 yourself. And then you finish out your probation in 18 months
24 working patrol. And so I did that and then I've had various
25 different jobs throughout my 22-year career.

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1 Q I'm sorry, I may have missed it. How long have you
2 been (indiscernible)?
3 A Twenty-two.
4 Q Twenty-two?
5 A Twenty-two years.
6 Q And have you had any additional training with respect
7 to use of force or self-defense?
8 A Yes. I -- so in the police bureau, we have our own
9 in-house instructor schools, so we have a full-time training
10 division, full-time staff, full-time facility. And, you know,
11 every other year or so they'll offer an instructor class. So
12 there's instructors in firearms. There's instructors in
13 defensive tactics. There's driving instructors. There's patrol
14 tactics instructors. So I have been to two of those instructor
15 schools. I've been through an 80-hour defensive tactics
16 instructor course and an 80-hour firearms instructor course. So
17 I am an instructor in both of those disciplines. And for eight
18 of my 22 years, I was actually assigned to the training division
19 as one of the lead defensive tactics instructors.
20 Q And what are your duties as a defensive tactics
21 instructor?
22 A So when we have academies going on, it's primarily
23 teaching those advanced academies, going down and helping with
24 the basic academies. In-service training that happens every
25 year, so the 950 Portland police officers have to get in-service

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1 training every year. So the training division puts that on.
2 And as a member of the training division, you would help teach
3 those classes. And then in the down time, between academies and
4 in-service, you're just doing research on, you know, what the
5 best practices are throughout the country and, you know, how we
6 can, you know, make our program better.
7 Q And (indiscernible) something that used to be refer to
8 as the continuum of force. That's changed, correct?
9 A That has changed. Yeah, so 20 years ago, even as, you
10 know, recent as maybe ten years ago, a lot of police agencies
11 referred to a force continuum. In Portland, we never refer to
12 it as the continuum, at least since I've been here. We called
13 it our levels of control. But people still had this idea that
14 in order to go from one point, which may be arriving on a call,
15 the lowest level of control is just mere presence. That is a
16 level of control. So when you show up at a call, you as the
17 policeman, in the police car, lights going, siren going, that
18 oftentimes deters people's behavior. It stops crime. It makes
19 people go away, so that's a level of control. So just showing
20 up, mere presence.
21 Then there's verbal control where maybe I have to get
22 out and I have to start talking to people, say, "You stand over
23 here and talk to my partner. You come with me." So there's
24 verbal control.
25 Then there's hands-on control, physical control. Then

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1 we have things like our pepper spray. That would be another
2 level of control. Our baton, kicks and strikes, if somebody is
3 violently and kicking and fighting with us. The taser. Bean
4 bag shotgun. So you're kind of working up this ladder, this
5 level of control or this force continuum.
6 We've kind of gone away with that with some federal
7 law that happened, you know, 20 years ago and now we use a
8 standard called the Graham standard. And it's basically just
9 totality of the circumstances. So when an officer shows up,
10 they need to be able to articulate what's going on, what's your
11 thought process, what are your options, what option best fits
12 this scenario, and then, you know, use it, and then later
13 justify it in your police report. It's not this ladder that I
14 need to show up and first tell you not to do it, and then try my
15 pepper spray, and then try my baton, and then get my taser out,
16 and work up this later because that's just not reality. That's
17 not how things work in the real world.
18 Q All right. And so what sorts of factors and things
19 are you looking for when you're making that evaluation of the
20 totality of the circumstances?
21 A So it all -- this picture in your mind starts to form
22 even before you get to a call. It's based on the radio
23 information. It's based on your information that you have maybe
24 dealing with people in previous incidents. Like if you hear a
25 name that you recognize as someone that you've dealt with, okay,

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1 now I know who I'm going to talk to. As I get out of my police
2 car, I'm surveying the situation. I'm looking at demeanor. Are
3 they yelling? Are they screaming at each other? Does somebody
4 have a weapon in their hand? So you're just -- you're
5 accumulating all this knowledge as you arrive. So it kind of
6 starts from the beginning of the call and lasts throughout the
7 call until the call is done.
8 Q And just (indiscernible) looking to minimize the force
9 that you're using?
10 A Absolutely. That's in our directive, to use the least
11 amount of force necessary in a call. We don't want to have to
12 hurt people. I don't want to get hurt, I don't want to hurt
13 people. I want to calm the situation, resolve the situation
14 with the least amount of force that's feasible, that's possible.
15 Q Okay. Well, I want to talk now about the events of
16 November 25th, 2015. Were you on duty that day?
17 A I was.
18 Q Where were you posted?
19 A I was down in Old Town, I believe. I don't remember
20 exactly which district I was working, but I remember when I got
21 the call, I was down about Third and Burnside.
22 Q Okay. And just very generally, what was the nature of
23 that call?
24 A A call came out of a subject in City Hall that was
25 disrupting the city council meeting and there was some

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1 information that it was the same guy that had done it the day
2 before.
3 Q Okay. And about how long did it take you to actually
4 get to City Hall?
5 A About three minutes --
6 Q Okay.
7 A -- or so. I don't -- I'm not sure, but I remember I
8 worked my all the way down Third and then looped up on, what is
9 it, Columbia, and then came around and parked in front of City
10 Hall on the 4th Avenue side.
11 Q Were there other officers present?
12 A No, I was the first one there. So I was the primary
13 officer. I was the one that was dispatched to the call and then
14 they had some other officers coming. I just happened to be the
15 first one there. And at that point, when I was getting out of
16 my car, the security folks from City Hall, they met me at the
17 curb line right there to kind of give me a little information on
18 what was going on.
19 Q Okay. Was that Mr. Cohen or was that another
20 individual at City Hall?
21 A I don't remember if it was him or not.
22 Q Okay.
23 A I remember him being there. I don't remember if it
24 was him that met me at the curb line of it was one of the other
25 guys. I can't recall.

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1 Q Okay. So after you sort of got out of your car, what
2 happened next?
3 A I talked to him briefly, asked if it was the person
4 that I thought it was. They said yes and they kind of said he's
5 pretty agitated today. I said, okay, let's go ahead and take a
6 look. So we went in. I went up to the second floor. As I got
7 to the second floor, at in the atrium of City Hall, I could hear
8 the yelling coming from city council chambers and I just kind of
9 poked my head in there, observed Mr. Stull standing in the
10 middle of the -- of the council chambers, right in the middle of
11 the room yelling at the top of his lungs about numerous
12 political issues, kind of darting back and forth between these
13 issues. And immediately I thought, well, this is not something
14 I'm going to need to handle by myself. I'm going to need some
15 more support. It's probably good that it's a supervisor, so I
16 asked for a supervisor and I asked for another officer to come
17 at that point. And then I just stepped back out of city council
18 chambers. So I barely walked in, poked my head in, saw him. I
19 don't even know if he saw me. Got a -- you know, a quick
20 snapshot of what was going on, backed out so that I could talk
21 on my radio because the radio reception inside City Hall is
22 terrible, so I had to kind of go back out to the atrium to get
23 out on my radio so that they could hear me and asked for a
24 sergeant and a cover officer.
25 Q And just very general, why did you think you had to

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1 call a sergeant?
2 A Because of Mr. Stull's agitation level, that I thought
3 potentially, you know, we would have to take him into custody.
4 There may be some type of use of force. I wanted a supervisor
5 there also because it's political in nature. You know, he's
6 disrupting the city council meeting and he had several political
7 issues that he's yelling about. I thought, no, this is just
8 best to have a supervisor here to help with this one.
9 Q And did a supervisor arrive?
10 A He did, yes. Sergeant Axthelm, who's one of the
11 central precinct sergeants showed up to the scene.
12 Q And did another officer arrive as well?
13 A Yes, Officer Singh, Parik Singh, he showed up as well.
14 So, first, Sergeant Axthelm arrived and then just maybe a couple
15 minutes later, Officer Singh arrived.
16 Q About how long did it take Sergeant Axthelm arrive
17 (indiscernible)?
18 A In my mind, it seemed like a long time, but that was
19 because everybody -- well, not everybody, but a majority of the
20 folks from City Hall were kind of out in that atrium. They're
21 asking me, hey, when is this going to get resolved. I'm like I
22 don't know. My sergeant is on the way. Four or five minutes,
23 maybe. I'm not positive. I didn't look at my watch.
24 Q What happened when Sergeant Axthelm arrived?
25 A So when Sergeant Axthelm arrived, he said, well, let's

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1 go in and take a look. So, again, we walked back in, back to
2 the same spot, just inside the doors where I had stood before.
3 We observed. And Sergeant Axthelm and I were standing right
4 next to each other and I think, at that point, Mr. Stull saw us,
5 recognized us, and there may have been a little communication
6 back and forth between Mr. Stull and Sergeant Axthelm at that
7 point.
8 Q Okay. I'm going to play a clip of the video for you.
10 1, was played in open court and transcribed to the transcriber's
11 best ability as follows:)
12 MR. STULL: -- General? Uh, that would be me. What
13 was his name? Lee Johnson. Oh, what was his history as an
14 attorney general? Well, they couldn't seat him. They couldn't
15 seat him. Come on, guys --
17 BY MR. MCMAHON:
18 Q And do you see yourself in the video there?
19 A Yep, I'm standing behind Sergeant Axthelm. I'm
20 wearing my glasses. I didn't wear them today. But, yes, that's
21 me.
22 Q Okay. And does this -- I guess, where is this when --
23 in relation to like when you actually reentered the council
24 chambers?

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1 A Time or distance?
2 Q Time, yes.
3 A I don't know, maybe we've been in there a minute or
4 so. Not very long.
6 MR. STULL: get me out of here. Call the ambulance.
7 You guys were told to get me an ambulance.
11 MR. STULL: She just did. So, obviously, you're not
12 in charge. Hey, why did I hear on the radio, "Assist" -- or
13 "Acting Chief"? What happened to Chief O'Dea? What happened to
14 Chief O'Dea?
21 drummer."

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3 MR. COEHN: Yes.
7 MR. COHEN: Okay.
10 the public --
15 MR. STULL: Hey.
16 MR. DAVIS: No --
18 THE WITNESS: So you can see Officer Singh just
19 arrive. He's putting on his blue gloves, so he's just now
20 coming over. And I think right here you may hear Sergeant
21 Axthelm say, you know, he's under arrest, referring to Mr. Davis
22 who's the one that's filming this -- the scene here. This is

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1 his footage.
2 BY MR. MCMAHON:
3 Q All right. And did you hear anyone call Mr. Stull or
4 say Mr. Stull you're under arrest or did you say that to
5 Mr. Stull?
6 A I don't recall.
7 Q Okay. All right. So --
8 A -- if I actually told him that.
9 Q Okay. So at this point, you sort of moved into the
10 council chambers, correct?
11 A Yes.
12 Q Okay. What are you, I guess, getting prepared to do
13 at this point?
14 A So we're -- you know, we all carry blue rubber gloves
15 in our pocket just when we're going to go touch people, we go
16 ahead and put gloves on. So Officer Singh is already doing
17 that. I think I get caught with one glove on and then that's
18 when Mr. Stull kind of walks toward me.
19 Q I guess, why do you put the gloves on?
20 A Keep your hands clean, so keep from getting nasty
21 stuff, germs.
22 Q Okay.
24 MR. DAVIS: -- bullshit.

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3 record.
6 Mr. Stull.
9 MR. DAVIS: No.
17 MR. STULL: No.

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1 BY MR. MCMAHON:
2 Q All right. Now, at that point, it looks like you take
3 a hold of Mr. Stull, correct?
4 A So, yeah. He got really close and I told him backed
5 up and he kind of flinched, and I reached down and grabbed his
6 left arm. So I -- with my right hand, I went down to the wrist
7 of his left arm, just to restrain it to keep it from, you know -
8 - at this point, I don't think I'm -- in my mind, I'm taking him
9 into custody just yet because the other two are walking away. I
10 just want him to keep his distance. I want him to calm down. I
11 keep telling him, please calm down. Please calm down. But he's
12 really close and I didn't want him to take a swing at me.
14 UNIDENTIFIED SPEAKER: Where's the ambulance.
16 UNIDENTIFIED SPEAKER: He needs the ambulance.
17 MR. STULL: Where is my --
19 BY MR. MCMAHON:
20 Q All right. And at that point, you're kind of -- I see
21 you saying something to him, but you can't really hear. Do you
22 recall just the gist of what was being said?
23 A I think he's saying call me an ambulance and I told
24 him that, you know, we're -- we called you an ambulance. We
25 actually did. There was one, you know, standing by outside.

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1 Q So the ambulance having called was actually staged
2 (indiscernible)?
3 A I'm not sure at what point it got there, but when we
4 finally got outside, when I got outside with Mr. Stull, the
5 ambulance was there, yes.
6 Q Okay. And you actually told him that there was an
7 ambulance?
8 A Yes, I said there's one on the way.
10 UNIDENTIFIED SPEAKER: I'm not going to leave the
11 place when there's no ambulance.
13 MR. DAVIS: No.
14 UNIDENTIFIED SPEAKER: You are not dragging the -- I
15 -- oh, you're fucking lying. You guys are out of control.
18 BY MR. MCMAHON:
19 Q Okay. So there's really a lot of things happening.
20 We're going to break it down as best we can sort of
21 step-by-step.
22 A Okay.
23 Q After you had told him that the ambulance was coming,
24 tell me what happened.

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1 A So he reached down to grab one of my fingers to peel
2 my hand off of his. At that point, I went to grab his other
3 hand to keep him from doing that. So he's trying to break my
4 grasp. And as I, you know, tried to keep him from pulling his
5 hand -- excuse me, my hand off of his, that's when he took a
6 couple swings at me striking me up here in kind of the bicep
7 area, upper -- just above the bicep kind of where it ties into
8 the shoulder, strikes me a couple times. At that point, it's
9 like, no, I'm not going to get hit. So I go and I kind of put
10 him in a kind of quasi-bear hug to keep him from swinging. So I
11 trap that arm that he was swinging with to grab ahold of him. I
12 thought briefly about taking him down to the ground, but I got
13 this big wooden table there. That's not a good place to try to
14 throw him down on the ground. So I chose -- I actually made the
15 conscious decision not to try to put him on the ground there
16 because I didn't want him to hit the table. And I kind of
17 changed gears and pushed him back toward the council desk there.
18 And we just kind of held him against the council desk until we
19 could get handcuffs on him.
20 Q All right. And at this point, are you in the process
21 of (indiscernible)?
22 A Yes, he's -- yes, he's under arrest at this point, in
23 my mind.
24 Q Okay.

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1 UNIDENTIFIED SPEAKER: You guys are out of control.
4 BY MR. MCMAHON:
5 Q All right. And at that point, you sort of changed
6 how you were handling him. What were you doing at that point?
7 A Well, I see that Officer Singh is -- has got his right
8 hand and I'm trying to get ahold of his left hand. So I still
9 have him kind of wrapped up with that left hand, so I'm kind of
10 holding him around his upper arm area and the side of the neck,
11 kind of pinning that hand up, and he's bent over a little bit so
12 that he can't swing with that hand because I see that Officer
13 Singh has got the right and then we just work toward getting
14 that right hand back behind his back.
15 Q Okay. Now, some of your training is something called
16 a pain compliance hold?
17 A Uh-huh.
18 Q What is a pain compliance hold?
19 A So there's control holds that we use, whether it's a
20 wrist lock, pressure point control. So a real simple
21 explanation of wrist lock is where I put leverage on both sides
22 of a joint which does cause temporary pain in that joint. And
23 as soon as you release the pressure, that pain is going to be --
24 is going to go away. It's fleeting. So a wrist lock can be an
25 example of pain compliance, but it's also joint control. It

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1 allows you to control that limb or that, you know, potential
2 weapon to keep them from using it against you.
3 There's pressure points all of the body. It's places
4 where nerves come together and they're close to the surface. A
5 good example of one is right here at the base of your ear. This
6 is the mandibular pressure point right here that if you --
7 MR. STULL: Objection.
8 THE COURT: Grounds?
9 MR. STULL: It's nonresponsive. The question was,
10 what's a pain compliance hold, Your Honor.
11 MR. MCMAHON: I think he's still talking about what a
12 pain compliance hold is.
13 THE COURT: Well, I'll let him describe what a pain
14 compliance hold is. Okay. Go ahead.
15 BY MR. MCMAHON:
16 Q Sorry, you were kind of (indiscernible) description of
17 what is (indiscernible).
18 A So it's just -- it's pressure on the body that causes
19 temporary pain to break someone's focus, so if they're focused
20 on fighting or hurting you, now they start thinking about that
21 pain that they're experiencing so that we can, in turn, you
22 know, manipulate the body into a point where we can put
23 handcuffs on them. It breaks the concentration, it makes them
24 think about, hey, that hurts. I'm not thinking about punching
25 you right now.

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1 Q All right. And you also were kind of using what you
2 call strikes, correct?
3 A Correct.
4 Q What are strikes?
5 A Strikes are directed blows to spots of the body. It
6 -- and, again, that's a pretty high level of control. If
7 someone is fighting us, if somebody is punching at us, we, yes,
8 are justified in punching back. And, again, you just want to do
9 enough to stop what's happening to end that behavior and then to
10 take them into custody.
11 Q So after Mr. Stull had punched you, did you use any
12 pain compliance or strikes?
13 A No, I did not. So I -- there was no strikes at all.
14 I simply reached up and grabbed in that quasi-bear hug where I
15 trapped the one arm up near his head. So I was kind of going
16 around his neck and around his shoulder. I was just holding it
17 at that point. We moved up toward the desk, used the desk as
18 leverage to keep him from going anywhere else. And then we took
19 his hands behind his back and then handcuffed him.
20 MR. STULL: Objection.
21 THE COURT: What?
22 MR. STULL: The conversation here, it calls for a
23 legal conclusion.
24 THE COURT: Overruled.
25 BY MR. MCMAHON:

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1 Q Okay. So I think you were describing you got to the
2 bear hug, you had pushed him up against the table. What
3 happened after that?
4 A At that point, well, I have Officer Singh assisting me
5 and then you can see Sergeant Axthelm walking up to help control
6 the left arm. So Officer Singh had right arm, Sergeant Axthelm
7 helped control the left arm. I got the handcuffs out and I
8 placed the handcuffs on him. And then, actually, Sergeant
9 Axthelm, and I don't know if you can hear it in the video, said,
10 hey, maybe we should double cuff him, which means we link
11 together two sets of handcuffs which makes the handcuffs longer,
12 which is actually easier on the person that we're handcuffing.
13 If someone is not very flexible and can't get their arms behind
14 their back and close enough together for one set of handcuffs,
15 what we'll do is use two sets of handcuffs. So now you're not
16 really pulling those arms as far behind their back and as close
17 together. So it's something that we did to his benefit to allow
18 for less pain and less discomfort during this whole process.
19 Q Okay. Now, Officer, I'm just going to go ahead and
20 show you a (indiscernible). Okay. Now, I'm going to go ahead
21 and show you what's been marked as State's Exhibit 2. Can you
22 see it, at least --
23 A Yeah.
24 Q -- what's (indiscernible)?
25 A Uh-huh.

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1 Q Just briefly, do you recognize what's being depicted
2 in this video?
3 (Whereupon, audio/video, State's Exhibit 2, played in
4 open court.)
5 A Yes. This would be the middle of council chambers
6 there with Mr. Stull in the middle. And he's talking to
7 everybody in the crowd.
8 Q And who is that individual that just contacted Mr.
9 Stull?
10 A That's Sergeant Axthelm.
11 Q Okay. And, I guess, just reconstruct where you're at
12 in the video.
13 A Right down by the date stamp there, the bald head,
14 that's me. So I'm just behind Sergeant Axthelm.
15 Q Okay. Is this where (indiscernible)?
16 A Yes. Yes.
17 Q (indiscernible).
19 A Again, I think we were pretty controlled and
20 calculated. You know, we took time, we made a plan. So this
21 went about as well as it could possibly go considering the
22 circumstances, that there was no strikes, no kicks. We simply
23 got his hands back at this point, applying the handcuffs. It
24 takes a little while longer because I'm going to put two sets of
25 handcuffs on him. We're grabbing for the second set right

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1 there. And it's my practice that, you know, we check and double
2 lock them for tightness and so that they don't get tight on them
3 and they move around or when they sit down in the car.
4 Q And how do you do that?
5 A There's a lock on the handcuffs. It's a little button
6 that you use, the back end of a handcuff key, the little skinny
7 knob on the handcuff key to push in that button, once you set
8 them to the proper tightness and then -- and then they won't get
9 tight. So right after handcuffing, Sergeant Axthelm and Officer
10 Singh see that security is now dealing with Mr. Davis. Sergeant
11 Axthelm tells me, go ahead and take him out of here. So I start
12 to escort Mr. Stull out and he's like, no, I'm not going to help
13 you. You can't take me. I'm not going. And he just becomes
14 dead weight and flops down onto that table. So at that point, I
15 just kind of hold him there and we're waiting for more officers
16 to come because we know that there's more on the way. It just
17 takes them a little while to get there and, you know, downtown
18 traffic in the middle of the day or, you know, late morning.
19 Q So what I want to talk about too is Mr. Stull's level
20 of resistance when you were trying to handcuff him there. We
21 saw a little bit up on the screen, but can you just describe his
22 level of force with which he was struggling and trying to get
23 out of your grasp.
24 A So when he kind of moved back toward the council
25 table, he's definitely fighting. He's trying to get away. He's

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1 doing everything he can to get out of my grasp. And Officer
2 Singh has his right hand. We hold him up against that desk.
3 Sergeant Axthelm works the left hand back behind his back. And
4 at that point, where he's bent over, he's still flexing, he's
5 still tense, he's still pulling away, but it's -- at this point,
6 it's three against one and he doesn't have a lot of choice and
7 we have the leverage of having him bent over the desk to keep
8 him from getting away. But he is still actively pulling away,
9 tensing his muscles, trying to pull his hands apart, trying to
10 keep us from handcuffing him.
11 Q Okay. And then sort of after that initial punch that
12 he threw, what was his level of resistance at that point?
13 A After that initial punch, where -- to me, it looks
14 like two quick punches there back to back. That level of
15 aggression continues until the point where we get those
16 handcuffs on him.
17 Q And so after you sort of have him on the desk in the
18 video, we saw the second officer arrived for assistance?
19 A Yeah, the next officer to arrive was Sergeant Price
20 and he walked up to me. And at that point, Mr. Stull is just
21 laying on the desk. I'm not putting any pressure on him. I'm
22 just kind of holding him, you know, there on the desk so that he
23 doesn't go anywhere. And he's laying there. And when Sergeant
24 Price arrives, he says, "What can I do to help?" And I said,
25 "We need to take him out of the courtroom -- or out of council

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1 chambers, take him out to a car." And he says okay. And so the
2 two of us get him in what we call our escort hold, so we're just
3 each kind of holding an arm that are already behind his back
4 because he's handcuffed and we start to escort him out of
5 council chambers.
6 Q What's (indiscernible) to escort out of chambers?
7 A So we actually go out the other door than the one that
8 we came in, so we kind of -- the way that camera was last
9 facing, we go out that door. And about the time we hit
10 threshold to that door, Mr. Stull rears back and I refer to it
11 as a mule kick. He kicks back at me because I'm walking behind
12 him, striking me in my left shin. So it causes a lot of pain.
13 He's wearing big, heavy shoes, hits me square in the shin. It
14 hurts. I tell him knock that off and we continue moving forward
15 toward the elevator.
16 Q So after that kick, did you have to use any pain
17 compliance or strikes?
18 A No, I didn't use anything else. I did tell him don't
19 kick; stop kicking. But, no, we just kept doing what we were
20 doing, which was escorting him out of council chambers.
21 Q Okay. Did you attempt to prevent him from kicking you
22 any further?
23 A I tried. I tried to keep my body positioned so that I
24 wasn't a target, but when we got to the elevator, we were
25 waiting for the elevator door to open and, again, he kicked back

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1 a couple more times, this time striking me in the right shin.
2 So he was successful in doing that again. Again, pain, kicked
3 me right in the shin, hurt.
4 Q So for -- I guess, for the first time, on a scale of 1
5 to 10, 1 being a, you know, papercut and 10 being the worst pain
6 in your life, where was that pain?
7 A For the kick of the shin, the immediate pain was
8 probably a 5 or a 6. It hurt.
9 Q Okay.
10 A It did strike right on my shin bone.
11 Q Okay. And what about the second kick to your shin?
12 A Same, same. They were both square on the shin.
13 Q Okay. And I'm going to show you what's been marked as
14 State's Exhibit 5, 6, and 7.
15 MR. STULL: Oh, thank you. Which one is -- this is
16 Number 5?
18 MR. STULL: And this is Number 6?
20 MR. STULL: And this is Number 7?
22 MR. STULL: Are all three of these Officer Engstrom?
23 MR. MCMAHON: That's the foundation I'm going to lay,
24 yes.
25 MR. STULL: Oh, okay. Thank you. Because it could be

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1 me for all I know.
2 BY MR. MCMAHON:
3 Q Okay. So, Officer Engstrom, I'm going to go ahead and
4 show you picture 5. Do you recognize who that is in Number 5?
5 A That's a picture of me.
6 Q Okay. Do you know when that picture was taken?
7 A I -- not exact -- I'm going to say that it was the day
8 that this happened, but --
9 Q Okay. And do you recognize what's shown in --
10 A Yes, okay. Yes. So that was the first picture
11 showing -- you know, so they just got a back shot of how I was
12 dressed that day. This was a picture of my shin when we were in
13 the report writing room at Central Precinct after Mr. Stull had
14 been taken down to jail.
15 Q Okay. Can you see the marks? I know it was
16 (indiscernible). I don't know if there may be marks or not, but
17 --
18 A You know, I'm not seeing a lot there.
19 Q Okay. And then the same thing with picture 7.
20 A Same thing, I don't see any marks.
21 Q Okay. And I just want to -- but you did decide -- you
22 did think it was important to document and see if there was --
23 A Yes.
24 Q All right.
25 MR. MCMAHON: State would move to admit Exhibit 5, 6,

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1 and 7 into evidence.
2 MR. STULL: No objection, Your Honor.
3 THE COURT: Be received.
4 (The pictures referred to as
5 State's Exhibit 5, 6, and 7
6 are admitted into evidence.)
7 BY MR. MCMAHON:
8 Q Did your shins end up bruising?
9 A I don't recall there being any bruising from that, no.
10 Q Okay. So after those kicks to the shin, were you able
11 to get him to a patrol car?
12 A I was, yes.
13 Q Okay. And I guess -- so I guess, sort of walk me
14 through what happened from where you're standing at the elevator
15 and (indiscernible).
16 A So before the doors open in the elevator, on the
17 second floor, he kicks me again. I tell him knock it off, stop
18 kicking. We go -- the doors open, we get into the elevator,
19 take him down to the main floor, out toward the 4th Avenue side
20 and take him straight to a patrol car that's there. It was my
21 patrol car that we put him in. So open the car door, place him
22 in, and seatbelt him, close the door. That all happened pretty
23 quickly.
24 While we're deciding what we were going to do, because
25 we had ambulance waiting, we had Project Respond on the way.

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1 We're deciding, okay, is he going to jail, or is that medical
2 issue, or is this a mental health issue. We're talking about
3 it. He then starts kicking different things on the inside of my
4 -- the back of my police car.
5 Q Okay. So we're kind of going (indiscernible).
6 A Okay.
7 Q First of all, what is Project Respond?
8 A So Project Respond is part of Cascadia Mental Health.
9 They've been around for 20-plus years. It's -- they're social
10 workers and mental health workers that their job is to come help
11 us, the police, de-escalate people that are in crisis. So we
12 have them on speed dial basically where they'll send out a pair
13 to our location and they get there sometimes pretty darn fast,
14 sometimes it takes a while. It depends on how busy they are.
15 But they are people with special mental health training that can
16 help people in crisis. So that was, you know, one of the first
17 things that Sergeant Axthelm asked for over the radio was to
18 have Project Respond come to City Hall to see if they could help
19 us deal with Mr. Stull, with his, you know, agitation level,
20 maybe bring him down and maybe not go the route of going to
21 jail. That was our initial plan.
22 Q Okay. So let me go ahead and show you what's been
23 marked as State's Exhibit 9 -- 8 and 9. Oh, yes, 8 and 9. So
24 now I'm showing you what's been marked as State's Exhibit 8. Do
25 you recognize what's depicted in that image?

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1 A So that Mr. Stull in the back of my police car.
2 Q Okay. And is this snapped when you first got him in
3 there?
4 A Yes.
5 Q Okay. And, I guess, why would you take a picture of
6 him sitting back in the police car?
7 A Just to, again, document how he looked, that he wasn't
8 injured, he's not bleeding, that he seems fine, and we had him
9 in the back of the car seatbelted in.
10 Q Okay. And please tell me was in State's Exhibit 9.
11 A That would be a close-up of the side of Mr. Stull's
12 face.
13 Q Okay. Taken roughly the same time that --
14 A Same time, yep.
15 Q Okay.
16 MR. MCMAHON: State would move to admit Exhibits 8 and
17 9.
19 THE COURT: It'll be received.
21 State's Exhibits 8 and 9 are
22 admitted into evidence.)
23 BY MR. MCMAHON:
24 Q At this point, had medical personnel contacted him?
25 A At the point those pictures were taken, I'm not quite

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1 sure. I recall there -- you know, we put him in -- placed him
2 in the police car fairly quickly, closed the door, and then AMR
3 was parked back behind our car. And I think at that point, we
4 decided that, no, it's not going to be an AMR, a medical issue,
5 that he's going to go to jail based on, you know, the things
6 that had transpired inside the city council chambers.
7 Q Okay. What happened when Mr. Stull was sitting in the
8 back of the patrol car?
9 A So the seatbelt system that we have is -- there's two
10 shoulder harnesses right in the middle of the backseat. So you
11 place somebody in the backseat and the seatbelt is anchored
12 there on the top of the seat. And then we have it strung to a
13 seatbelt clasp up toward the door, so it's just kind of
14 suspended in air that way we know where it is, and it's easy to
15 gran when we put someone in the back of the police car. So it's
16 -- so if he's being placed in the driver's side backseat of the
17 car, you'd sit him down. The seatbelt is anchored here and then
18 it's strung up to this little buckle attached to the roof or
19 attached to the cage bar. And so I would sit him in and then I
20 could reach up, take that seatbelt and then go right straight
21 down, down, toward his hip where another seatbelt clasp is, and
22 then I can cinch it tight so that he's now properly buckled in
23 with a seatbelt going across his chest. He was --
24 Q So just --
25 A Okay.

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1 Q Let me interrupt there. So that's where that middle
2 clasp that pulls the seatbelt up and does (indiscernible) or is
3 that just sort of there to hold the seatbelt so you know where
4 it is?
5 A It's just there to hold the seatbelt. Yeah, there --
6 yeah, it’s not designed to protect someone in an accident. If
7 someone is sitting in the backseat and the seatbelt is still
8 attached up and forward, it's not across their chest, it's not
9 going to do anything to prevent injury in an accident. It needs
10 to be clipped down by their hip. So it's just a place for the
11 seatbelt to be stored so that we know where it is so that we're
12 not fishing around for the seatbelt with a potentially angry,
13 biting, spitting subject in the back of our police car. You
14 just quickly grab it, clip it down, cinch it up, close the door.
15 Q Okay. And is -- are those seatbelts, are they just
16 lap restraints or do they also have shoulder restraint?
17 A They're just a shoulder restraint.
18 Q Okay. So it's just shoulders?
19 A It's one strap, one shoulder restraint, correct.
20 Q Okay. So you say after you sort of unclip that, what
21 happens in the back of the car?
22 A So Mr. Stull is in the back of the car. He's spinning
23 around onto his back. He's kicking and he kicks off both of
24 those buckles that we use to store the seatbelt. So not only
25 one on his side he breaks off with his feet, but the one on the

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1 other side, on the passenger's side he breaks off with his feet
2 because they were intact at the beginning of my shift. I always
3 check my car thoroughly at the beginning of my shift and when I
4 got him down to jail, both -- both seatbelt assemblies were down
5 on the floor of the car where he had kicked them off. And I
6 could hear him kicking them and I could hear metal being struck
7 and I could hear metal hitting the floor when he was in the back
8 of the car.
9 Q Okay. And were you actually able to -- after you
10 transported Mr. Stull, were you able to see inside the back of
11 the car?
12 A After?
13 Q After you finished transporting Mr. Stull.
14 A Yes, yes, yes.
15 Q And so was there, in fact, damage inside the back of
16 the car?
17 A Yes, both of those -- both of those seatbelt clips
18 were broken?
19 MR. MCMAHON: Okay. I'm showing Defense counsel
20 State's Exhibit 10, 11, 12, and 13.
21 MR. STULL: Okay. No objection.
22 THE COURT: It'll be received.
24 State's Exhibits 10 through
25 113 are received into

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1 evidence.)
2 BY MR. MCMAHON:
3 Q And, Officer Engstrom, I'm going to go ahead and show
4 you State's Exhibit 10. Can you describe for the jury what that
5 depicts?
6 A So this is the broken seatbelt portion and the strap.
7 Q Okay. Now, if I could get you to go ahead and circle
8 with this blue marker the broken portion of the seatbelt.
9 A Nope, it's not going to work. It's not working.
10 Q Okay.
11 MR. MCMAHON: Permission to approach the jury, Your
12 Honor?
13 THE COURT: Give it to Mr. Gibson and he will do so.
14 And just pass that around. When you get to the end, Mr. Gibson
15 will collect it again. Proceed.
17 BY MR. MCMAHON:
18 Q And I'm going to go ahead and show you what's been
19 marked as State's Exhibit 11. Can you describe what's shown in
20 State's Exhibit 11?
21 A So this would be the bolt that affixes that seatbelt,
22 this would be the female end of the seatbelt, up onto the upper
23 portion of the car, the cage.
24 Q Okay.
25 A So you can kind of see the cage there and so it should

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1 be bolted there. So you've got a bolt in the middle and what's
2 left of that flange that the bolt holds on.
3 Q Okay. Can I get you to go ahead and circle that bolt.
4 A Okay.
5 Q And I'm actually going to go ahead and show you a
6 little bit out of order. I think I've already (indiscernible)
7 down accidentally. State's Exhibit 13, do you recognize what
8 that is?
9 A That's going to be the same thing. It's probably --
10 it's going to see the other side of the car because you can see
11 the same bolt and then that flange, but now half of the seatbelt
12 is still there while the other half is not.
13 Q Okay.
14 A So it's not completely sheared off like it is on this
15 side.
16 Q Okay. And if I could get you to go ahead and circle
17 that. So fair to say, basically, State's Exhibit 13 is a more
18 complete version of that which was sheared off on State's
19 Exhibit 11?
20 A Correct.
21 Q Okay.
22 MR. MCMAHON: Permission to publish to the jury, Your
23 Honor?
24 THE COURT: Certainly. Give it to Mr. Gibson.
25 BY MR. MCMAHON:

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1 Q I'm finally showing you what's been marked as State's
2 Exhibit 12. What is depicted in State's Exhibit 12?
3 A So this is the seatbelt from the side where there's
4 just a half a little ring because the majority of the seatbelt
5 is still -- the majority of the female end of the seatbelt is
6 still attached to the male end and the strap and is all now
7 laying down on the floor of the police car, but you can see the
8 jagged edge where it broke off from that flange that was bolted
9 to the -- to the bar.
10 Q If I could get you to go ahead and circle that jagged
11 end where it broke off. Okay. So fair to say, it's basically
12 like 12 and 11 are sort of a matched pair of the seatbelt buckle
13 that snapped off now and then 10 and 13 are also the opposite
14 version, the opposite pair of the broken seatbelt?
15 A Yes.
16 Q Okay. All right.
17 MR. MCMAHON: Permission to publish this?
18 BY MR. MCMAHON:
19 Q So after Mr. Stull had been kicking inside the police
20 car and broke those mounts, what happened?
21 A So some of that transpired in the front of City Hall
22 and then it continued as I was driving that short distance to
23 jail, which is only three blocks, down on 3rd Avenue. And at
24 the same time, he's yelling and screaming in the back of the
25 car. He's telling me that he's going to kill me. I didn't real

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1 -- I didn't say anything to him at that point. I just drove him
2 down to jail.
3 Q Okay. And when you got to the jail, what happened?
4 A Normally -- just refreshing my -- no, it's normally
5 when I have someone that's combative, I go ahead and let jail
6 staff know and I did let them know so that the jailers can come
7 out and help me so it's not just the one-on-one thing where I'm
8 trying to get him out of the police car and get him through the
9 two secured doors that lead into the intake area of jail. So at
10 that point, the jailers from Multnomah County came down. He did
11 not resist at all when they came out to the car to take him in
12 and he simply walked into the booking facility.
13 Q Okay. Now, earlier you said the decision was made
14 that you weren't going to give him medical attention at that
15 point. I guess, what was the decision-making process there?
16 Was that your decision or was that somebody else's?
17 A That was the sergeant's. I don't remember if it was
18 Sergeant Price or Sergeant Axthelm. But because he had fought
19 to the point of getting into the car, had kicked me en route to
20 the car, once we placed him in the car, we wanted to keep him in
21 the car. We did not feel that he had any injuries from what we,
22 you know, did at City Hall, so we just decided, at that point,
23 he's going to go to jail. There's nurses at jail if he did need
24 medical attention. That can be sought at jail.
25 Q And that's sort of going to be my next question is, is

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1 there medical personnel --
2 A Yes.
3 Q -- to check him out when he is taken into custody in
4 jail?
5 A Yes, absolutely. Yeah.
6 Q Will they accept someone if they need hospitalization?
7 A No, they will not. So it's happened numerous times to
8 me where you get down to jail and somebody is complaining of
9 injury or showing signs of injury, or maybe they say they've,
10 you know, swallowed drugs and the jail staff refuses them, and
11 now it's up to us to take them to the hospital ourselves or to
12 call medical -- call an ambulance and have us meet -- have them
13 meet us up in front of the Justice Center and then they could be
14 transported by ambulance, if need be.
15 Q Did jail medical staff check out Mr. Stull?
16 A Yes, they did.
17 Q Did they refuse to take Mr. Stull?
18 A No, they did not.
19 Q Did they have him taken to a hospital?
20 A No.
21 Q Did they get an ambulance for him?
22 A No.
23 MR. STULL: Your Honor, I -- I am -- a question in
24 aide of a -- in lieu of an objection.
25 THE COURT: Certainly.

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1 VOPIR DIRE
2 BY MR. STULL:
3 Q The -- I would like to know if the officer was present
4 when the jail medical staff were making this evaluation he just
5 testified about his knowledge of.
6 A At no point during the booking procedure, which is the
7 only part -- you know, so when -- when we walk somebody into
8 jail, there's these two secured glass doors, and then you walk
9 them into this main lobby area, and there's a table with four
10 stations. Police officers go to one side, people being booked
11 into jail are on the other side, and the jailers are on that
12 side. If someone complains of injury or illness, they tell the
13 jailers. The jailers ask those questions. And it's up -- and
14 then the jailers will ask for one of the nurses to come out and
15 talk to them.
16 MR. STULL: Well, Your Honor, I --
17 THE WITNESS: That did not happen.
18 MR. STULL: -- would object. It's nonresponsive. I
19 believe it was responsive. He was explaining what he -- as I
20 understood, he was explaining the part of the procedure that he
21 watched, during what is there -- the placement occurred. And
22 that is his knowledge, it's responsive.
23 MR. STULL: I understand that, but we were -- I
24 already am addressing the previous matter of him saying that the
25 medical staff --

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2 MR. STULL: -- checks people out.
3 THE COURT: If we need to discuss it further, we'll do
4 it outside the presence of the jury. Do you need to discuss it
5 further?
7 THE COURT: Okay. We'll take the jury out.
10 THE COURT: Now, my understanding was that you had
11 asked a question in aide of objection. Your question was
12 whether he was present. And he was describing the portion of it
13 at which he was present. You certainly can object to anything
14 beyond what he was present for, but it seemed to me that his
15 answers to your question in aide of objection were responsive.
16 MR. STULL: Oh, I'm before that, Your Honor, when --
17 THE COURT: Well, before that --
18 MR. STULL: -- when he said that the medical people --
19 when he took the prisoner into custody, the medical people are
20 present and made that evaluation that there was no medical
21 treatment necessary. He was testifying about that and he wasn't
22 there if that would have, in fact, ever happened.
23 THE COURT: He was -- you didn't make an objection.
24 At that time, you had asked for a question in aide of objection.
25 I allowed you to ask a question in aide of objection, which is

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1 true of the response. So you can certainly object and I would
2 sustain that objection to his testifying about anything he
3 didn't see --
4 MR. STULL: That's what I was doing once I realized --
5 THE COURT: That's what I -- well, that's what I'll
6 do.
7 MR. STULL: And that's why we got into --
8 THE COURT: But -- and we don't need to have a
9 colloquy to do that. I can figure --
10 MR. STULL: I understand that, Your Honor.
11 THE COURT: Okay.
12 MR. STULL: We're in agreement.
13 THE COURT: Okay. And get the jury back.
14 MR. STULL: We're in agreement.
15 THE COURT: Okay.
16 MR. STULL: And so also, before they come in, I would
17 ask that they strike -- that we strike his testimony saying that
18 there was a medical evaluation that he's aware of at all.
19 THE COURT: Well, that he knows anything beyond what
20 he observed, which was that -- what he observed.
21 MR. STULL: No contact with medical staff.
22 THE COURT: Okay.
23 MR. MCMAHON: I think he was -- got cut off right
24 before he was in the process of answering --
25 THE COURT: Yeah, I don't --

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1 MR. MCMAHON: -- where he was standing in this
2 process.
3 THE COURT: -- know exactly --
4 MR. MCMAHON: Yeah.
5 THE COURT: -- what he was saying and I not going --
6 MR. STULL: Oh, okay.
7 THE COURT: -- so we'll get the jury back.
8 MR. STULL: So we'll bring the jury in. And I'm just
9 going to say --
10 THE COURT: And we'll --
11 MR. STULL: -- if he says something about witnessing
12 medical staff contact, that's fine. But if he doesn't -- if he
13 didn't witness it, I don't -- we don't need to know what's
14 supposed to happen or what regularly happens.
15 THE COURT: That's fine. True enough.
16 MR. STULL: We need to know what actually happened or
17 didn't happen, Your Honor. That's all.
18 THE COURT: True enough.
20 THE COURT: Okay.
21 MR. STULL: Until the jury comes in, I'll stand up for
22 them.
23 (Jury in at 11:55 a.m.)
24 THE COURT: All right. We'll continue. And the
25 question will be confined to what the witness observed on this

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1 occasion and any other remarks about what he supposes or what
2 might have happened on other occasions will be struck. Okay.
4 BY MR. MCMAHON:
5 Q So when you're in the booking -- the booking in this
6 case, I guess, where were you standing?
7 A I would have been standing across the table from Mr.
8 Stull.
9 Q Okay. So you were present the entire booking process
10 of Mr. Stull?
11 A Yes.
12 Q And you observed him speaking to jailers?
13 A Yes.
14 Q And you observed -- did you observe any medical
15 personnel check him out?
16 A No.
17 Q At any point, did you -- was there a request that Mr.
18 Stull made for medical personnel treatment?
19 A No.
20 Q Did the jail end up admitting him?
21 A Yes.
22 Q Did anyone at any point say that you need to take him
23 to (indiscernible)?
24 A No.
25 MR. MCMAHON: I have no further questions of this

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1 witness, Your Honor.
2 THE COURT: I think we're going to break for lunch
3 now. We'll do cross-examination of this witness when we return
4 from lunch. So we'll be back at 1:30 and do cross then. Okay.
5 Remember, while you are on break, don't begin to
6 discuss the case. Oh, also, while you're at lunch, to keep your
7 tags on, your jury tags, so that no one says anything to you
8 that shouldn't be said to a juror. And if you see any of these
9 folks, they will not speak to them -- to you. They're not being
10 rude. They're under Court orders not to have any contact with
11 jurors. So Mr. Gibson can help you out. Take your notes with
12 you to leave in the jury --
14 (Recess taken at 11:57 a.m. until 1:30 p.m.)
15 MR. MCMAHON: All right. Your Honor, briefly, before,
16 I did rest with Officer Engstrom. It turns out there is one
17 additional exhibit and some brief explanation I wanted to go
18 into with him. I would just ask the Court's permission that I
19 reopen my direct questioning of him and then turn over to cross.
20 THE COURT: I'll let you reopen. We have to start,
21 please. So we'll have the jury back in.
22 MR. MCMAHON: Well, I don't know if you want to take
23 up the issue that I want to call right now, but I am going to
24 object to (indiscernible).
25 MR. STULL: Your Honor, no, Your Honor. There was

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1 just -- they provided me discovery and I didn't know that they
2 weren't -- they haven't yet, but the State is asking now. So
3 maybe they want to bring their audio records that they've
4 submitted to me and to -- in as --
5 MR. KELLEY: He's not offering it. He's objecting.
6 MR. STULL: Right.
7 THE COURT: What -- I'm not --
8 MR. STULL: Oh, I'm sorry, Your Honor. As part of
9 discovery, I got what we've seen here as some of the stuff and
10 there's some other things that the State didn't use in its case,
11 but they were provided to me. And I didn't know that they
12 weren't going to be part of the record and I want them to be
13 part of the record for the Defense. And then there's the whole
14 issue of that. And I think what we should probably do is put
15 that off until we --
16 THE COURT: Sure.
17 MR. STULL: -- are not in the middle of a witness.
18 THE COURT: Yeah.
21 THE COURT: Okay.
22 MR. STULL: So, Your Honor, I just wanted to say, if
23 -- I'm getting my cards together here. I found my cell phone,
24 so I had to jumble my things. But anyhow, I have no objection
25 to the State reopening their --

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3 MR. MCMAHON: Your Honor, he's talking about a 9-1-1
4 call. That has not been offered.
5 THE COURT: Just something will be --
6 MR. KELLEY: Is this the one you want to offer then?
7 MR. MCMAHON: Yeah. Mr. Stull?
8 MR. STULL: Oh, yes. Thank you. Oh, Your Honor, I do
9 rise for the jury, so sometimes I don't hear them coming in
10 behind and we rise for the jury where I come from, so I'm still
11 going to stand.
12 THE COURT: Yes, it's up to you.
13 (Jury in at 1:33 p.m.)
14 MR. MCMAHON: May I inquire, Your Honor?
15 THE COURT: Yes.
17 BY MR. MCMAHON:
18 Q All right. So, Officer Engstrom, I'm going to go
19 ahead and show you what's been marked as State's Exhibit 14. Do
20 you recognize what is actually shown as State's Exhibit 14?
21 A I do.
22 Q What is shown as State's Exhibit 14?
23 A That is a picture of my upper bicep.
24 Q And when was this taken?
25 A That was taken, I think, exactly one week after the

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1 incident.
2 Q Okay. And what is it actually showing?
3 A It's showing bruising up at the upper portion of my
4 bicep where it kind of ties into my shoulder.
5 Q Okay. If I can go ahead and get you to circle with
6 red the discoloration or bruising.
7 A Okay.
8 Q And so you take it about a week after. When did you
9 actually notice the bruising?
10 A So the day of the incident when we took the other
11 pictures, I didn't think to check my arm. It just didn't
12 register at that time and it was -- I went on my weekend and it
13 was during my weekend, which I think was an extended weekend.
14 MR. STULL: Your Honor, I would object. This is
15 beyond the scope of our agreement to simply offer the exhibit.
16 THE COURT: And to have some testimony about it, but
17 I'm going to allow him to do that.
19 THE COURT: Okay.
20 BY MR. MCMAHON:
21 Q Okay. So you -- and you said you were talking about
22 how you actually noticed it after a long weekend, correct?
23 A I noticed it during my weekend, so it was exactly a
24 week later by the time I took a picture of it and submitted it
25 into evidence. And I wrote a special report documenting that,

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1 that I had seen it over the weekend, took the picture when I got
2 back to work and put it in as evidence.
3 Q Okay. So you waited and took it afterwards?
4 A Yes. Correct.
5 Q And -- but do you believe that that actually happened
6 during the incident in this case?
7 A Yes, I do.
8 Q Okay.
9 MR. MCMAHON: The State would offer State's Exhibit 14
10 into evidence. Mr. Stull, do you object?
11 MR. STULL: I never received the special report on
12 that as discovery, Your Honor.
13 MR. MCMAHON: Your Honor, I (indiscernible) discovery
14 request outside the presence of the jury.
16 MR. MCMAHON: But you can --
17 THE COURT: It's --
18 MR. MCMAHON: I'm sorry, the State would ask to admit
19 State's Exhibit 14. Mr. Stull?
20 THE COURT: The photograph.
21 MR. MCMAHON: The photograph, do you object to the
22 admission or no?
23 MR. STULL: Frankly, when I agreed to have it --
24 THE COURT: Okay. Just yes or no.
25 MR. STULL: I object.

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1 THE COURT: Okay. Well, then I'll take the jury out.
2 (Jury out at 1:35 p.m.)
3 MR. MCMAHON: And, I'm sorry, Your Honor. I'm just
4 checking to see if I have anything regarding that report in my
5 file. This is the first time I'm hearing of it, so bear with me
6 for just one second, if I may.
7 (Pause.)
8 MR. MCMAHON: I don't seem to have a copy of that
9 report in my file, Your Honor. I'm not sure what the issue is.
10 I can go check documents, unless, officer, do you have a copy of
11 that with you?
12 THE WITNESS: I don't, but I'm pretty certain I wrote
13 a report because here I'm submitting a picture a week later and
14 I wanted to explain why I did that. So I'm almost positive I
15 wrote a report on that.
16 MR. MCMAHON: Okay. Your Honor, may I take a brief
17 recess just to see if I can track that down?
18 THE COURT: Okay.
19 MR. MCMAHON: Okay. Thank you, Your Honor.
20 THE COURT: Okay. We'll just take a few minutes and
21 see if you can track it down.
22 (Recess is taken from 1:37 p.m. until 1:53 p.m.)
23 (Outside the presence of the jury.)
24 THE COURT: Okay.
25 MR. MCMAHON: So, yes, Your Honor. So, obviously,

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1 during Officer Engstrom's testimony there was indication of a
2 supplemental report. I went back up to my office and I double
3 checked the report system. There was a supplemental report by
4 Officer Engstrom that was not, in fact, the reports disclosed.
5 There were two other additional reports, one of which relates
6 to Mr. Davis' consent to search the camera, which isn't really
7 an issue of this case. The other one was the fact that an
8 officer said that they went with an exclusion order to the jail
9 to try to serve it on Mr. Stull. It wasn't actually served on
10 him. Again, that's a secondary issue. The real question is
11 Officer Engstrom's report. It is a short report, but it does
12 indicate and talk about, you know, that he did have those -- he
13 saw the injury two days after the incident, noticed a scrape
14 and bruise, and then had the photographs taken. The State
15 concedes that it was a discovery violation. It was not
16 willful. As soon as I heard about it, I went up and attempted
17 to address it. I must confess to the Court, I don't know why
18 -- I think this report was filed December 3rd, and I think the
19 other two reports were filed, one was on December 11th, one was
20 on December 23rd. So I think what happened was it was an
21 oversight. Obviously, I think Officer Engstrom's report is
22 concerning because there is, you know, potentially evidence of
23 the accused crime. I believe the picture, itself, was
24 disclosed, but not the report. And I understand the context of
25 the report, that is a problem.

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1 I think at this point an appropriate remedy -- and I
2 don't -- I believe Mr. Stull and Mr. Kelley are going to move
3 for a mistrial. At this point I believe an appropriate remedy,
4 given the contents of the report and the fact that it refers
5 only to the bruise and the information obtained at a later
6 date, I believe an appropriate remedy would be to exclude the
7 photograph and references to the bruise, since that is the
8 entire content of that report.
9 MR. STULL: Your Honor, I do have my discovery that I
10 received in -- January 8th is when I received it on this.
12 MR. STULL: And it does have black and white copies
13 of photographs. And I'm not sure if this photograph was
14 included. However, there's nothing in the documents anywhere
15 that says anything about an arm bruise. There's been no
16 testimony that -- in fact, the witness testimony this morning
17 was that there were no bruises. And there's nothing in any of
18 the documents that I've received that says anything about an
19 injury to the upper arm. And here I'm finding out now, without
20 any discovery that they --
22 MR. STULL: -- have a crucial element to the -- to
23 the crime, which was that he was injured.
24 THE COURT: The State has conceded it was a discovery
25 violation.

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1 MR. STULL: Right.
2 THE COURT: And it is suggested that an appropriate
3 sanction would be to exclude the photograph and any testimony
4 about bruising.
5 MR. STULL: Your Honor, I just want to advise you
6 that the jury has already seen this.
7 THE COURT: I'm not -- I don't think that they did.
8 MR. STULL: But they did see the picture.
9 THE COURT: Well, they saw something was
10 (indiscernible) around. I don't --
11 MR. STULL: Right. Okay. Something --
12 THE COURT: There was no testimony about it.
14 THE COURT: And I don't think that -- I don't think
15 that they could see what that photograph portrayed because I'm
16 a lot closer than the jury and I couldn't see it. I saw it was
17 a knee but I didn't see any bruising. I didn't see anything on
18 it --
19 MR. STULL: I thought --
20 THE COURT: -- or I don't know what it -- actually, I
21 thought it was limb, I guess I should say.
22 MR. STULL: -- that photograph was just like -- Your
23 Honor, excuse me for interrupting. I would have two new things
24 that happened to me since I arrived here after lunch. One was,
25 I have a gentleman here representing one of the subpoenaed

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1 witnesses. And, two, is I have this new discovery problem.
2 THE COURT: Well, let's take care of one thing at a
3 time.
4 MR. STULL: Right. So I'm just trying to get myself
5 centered --
6 THE COURT: So --
7 MR. STULL: -- because both of those things kind of
8 knocked me off my point, right?
9 THE COURT: So what is -- what's your position about
10 what the State suggests?
11 MR. STULL: Well, if we want to strike his testimony,
12 it --
13 THE COURT: Only about the bruise.
14 MR. STULL: Since he was -- after lunch, the State --
15 I'm trying to be kind. I allowed the State to reopen the --
16 THE COURT: Actually, I allowed it.
17 MR. STULL: Oh, I'm sorry. It was his request, but I
18 didn't -- I didn't object or anything.
20 MR. STULL: So I'm allowing this to be at least
21 thorough as possible. And if it's grounds for a mistrial, I'm
22 moving for a mistrial. If that's not what the Court feels, and
23 there's a lesser remedy that's available, I would then have the
24 testimony about this upper arm bruising just stricken from the
25 record.

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1 THE COURT: Okay. I'll strike testimony about upper
2 arm bruising and not admit the photograph.
3 Was there testimony about upper arm bruising?
4 MR. MCMAHON: There was a little bit of testimony.
5 He begun to go into that.
6 THE COURT: Okay. Well, then I'll tell them to
7 disregard that and we'll --
8 MR. STULL: And so I'm just --
9 THE COURT: -- and strike that.
10 MR. STULL: -- saying that -- and you'll tell the
11 jury or not whatever is appropriate.
12 THE COURT: I'll tell the jury.
13 MR. STULL: I'm just -- I'm just invoking that.
14 THE COURT: I'll tell the jury. Okay.
15 MR. STULL: All right, and makes it --
16 THE COURT: Was there something else, as long as we
17 don't have the jury out?
18 MR. STULL: Oh, sure, certainly. And that it
19 wouldn't be referred to on cross.
21 MR. STULL: It wouldn't -- the witness wouldn't refer
22 to that matter on cross-examination.
23 THE COURT: He won't. Yeah.
24 MR. STULL: All right. Thank you, Your Honor.
25 THE COURT: Okay. All right. We'll get the jury

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1 back then.
2 MR. MCMAHON: And, Your Honor, there is a matter.
3 Mr. Tony Garcia is here from the City of Portland. He does
4 represent one of the witnesses that has been subpoenaed for
5 trial tomorrow. It's my understanding that Mr. Garcia is
6 moving to quash that subpoena. It sounds like notice was given
7 today of that subpoena. And it sounds like that witness is not
8 available, and is -- and the State would be moving to quash
9 that subpoena.
10 THE COURT: He's what?
11 MR. MCMAHON: And the City is moving to quash that
12 subpoena.
13 THE COURT: All right. Did you have any
14 documentation or you just going to do it orally? Is that what
15 you're going to do?
16 MR. GARCIA: Your Honor, for the record, Tony Garcia,
17 G-a-r-c-i-a, attorney for the City of Portland, Bar number
18 061570. It is typically the City's process to deal with these
19 for a motion, due to the time constraints, I'm here to argue
20 for a (indiscernible). This is a particular issue because I am
21 -- my understanding is this clerk is the only person available
22 for a City council hearing tomorrow. So if this individual
23 needs to be here, then the City council meeting cannot proceed.
24 And I also don't believe this individual has relevant evidence
25 to provide. She was absent on the day in question here. So I

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1 attempted to confer with Defense counsel, and I asked them to
2 meet their Cartwright standard, which is showing that the
3 evidence and her testimony that she's going to offer is
4 relevant and admissible. And I don't believe it is. So I'm
5 here to ask that the Court quash this subpoena.
6 And I think I'd just also add in there, I'm not sure
7 this was validly served because it was not personally served
8 upon her, and it was just left at the office.
9 THE COURT: Well, if it wasn't personally served,
10 then it's not valid. So, yeah, there's no question about that.
11 MR. GARCIA: So --
12 THE COURT: Would you like to comment?
13 MR. KELLEY: As the one who served the subpoena,
14 could I address that matter, Your Honor?
15 THE COURT: Are you representing the client or not?
16 MR. STULL: No.
17 THE COURT: If you're not representing him, then he's
18 going to -- you can advise him, but he speaks for himself.
19 MR. STULL: Your Honor, that's fine.
20 THE COURT: If you'll address, first, the question of
21 service, because that's -- if it wasn't personally -- a witness
22 subpoena has to be personally served. So if it wasn't
23 personally served, then it's not a valid subpoena anyhow.
24 MR. STULL: Right. Your Honor, if I could first tell
25 you how this happened, and I just didn't walk over to City Hall

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1 and serve it on Carla, who is the witness we're talking about,
2 Carla Moorelove. Carla Moorelove -- and we'll expedite this.
3 When I signed up to be on the agenda the day that we're talking
4 about, November 25th, that was on November 16th. And that was
5 via Ms. Carla Moorelove, City Council clerk, on the actual
6 form. And on that date, November 16th, as part of my signing
7 up, Ms. Moore [sic] also included and scanned this to be
8 incorporated with my message to City Council. And my
9 restrictions are various, but the one that's most pertinent is
10 that the Department of community Justice and Adult Services
11 division, which is the Multnomah County Pretrial Supervise
12 folks, gave me the special conditions. And it says, "No
13 contact with victims. Contact legal counsel." And I raised
14 the issue is I won't be able to subpoena my witnesses. And I
15 did that on February 10th, the first day I got out of custody
16 on this matter. And on February 10th, the supervisors over
17 here appended, "Except through legal advisor." So the only way
18 I can have contact with my victims, which would be, in this
19 instance, Officer Engstrom, apparently, or the City of Portland
20 was via, now, Mr. Kelley.
21 And I would request that Mr. Kelley testify about the
22 -- the subpoena process that he went through. But what's on my
23 mind about the process is that -- and it's Oregon Rules of
24 Civil Procedure, and it's not exactly under ORCP, I believe
25 it's 55 that we're talking about, the subpoenaed witnesses for

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1 this process. But under Rule 7, the Oregon Court of Appeals,
2 my very own Stull vs. Hoke case in April of 1998, had a
3 situation where the -- the process server went, gave the
4 documents mistakenly to the receptionist, went back, said, "Oh,
5 I have to give that to the party personally," and the
6 receptionist says, "Well, she's got it and she's reading it
7 right now." And that was adequate service. So --
8 THE COURT: That's service of process. That's a
9 different thing.
10 MR. STULL: Right. That's different than subpoenas.
11 THE COURT: That is different, and it's not --
12 MR. STULL: And -- what I'm -- what I'm --
13 THE COURT: -- really the same thing at all.
14 MR. STULL: But, Your Honor, where I'm hampered as
15 the Defendant here is, although I may have not inappropriately
16 subpoenaed a witness, I specifically said, and was granted
17 authority to represent myself as a person I am, with my
18 disability and --- you have to qualify to be a pro se
19 defendant. And the conditions of that was that I would be
20 appointed a court-appointed legal advisor for the specific
21 reasons that I knew I needed one; getting my medical records,
22 getting my witnesses, getting the subpoenas, and getting them
23 served. And the matters I currently have on appeal, Your
24 Honor, involved the Portland Police refusing to accept my
25 defense witness subpoena in 2012. And that's currently under

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1 advisement at the Court of Appeals. So I am a person that has
2 a problem with getting my subpoenas accepted by -- by the
3 people I'm trying to subpoena. And that could not be the best
4 thing for my debilitating neurological condition. So I do have
5 Mr. Kelley to assist that on me. So where I'm -- where I'm
6 at --
7 THE COURT: If you want --
8 MR. STULL: -- I'm either having inassistance --
9 ineffective assistance of my court-appointed legal advisor, or
10 I'm having the inappropriate service, and I am -- I can't do
11 anything about any of those things because I have the
12 restriction imposed here on my release status, which was a
13 product of the -- me having been released on February 9th.
14 THE COURT: Well, anybody could serve it, but it has
15 to be personally. Not anybody, but anybody over 18 is --
16 MR. STULL: Right. Yeah, I know.
17 THE COURT: But it doesn't have to be you. So the
18 fact that you can't contact them doesn't mean you couldn't
19 serve.
21 THE COURT: But in any case, the rule says it has to
22 be personal service, and it doesn't have any exceptions.
23 MR. STULL: And I don't see --
24 THE COURT: If you want Mr. Kelley to testify as a
25 fact witness, then we'll put him under oath and he can testify.

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1 MR. STULL: Your Honor, I don't -- I don't know why
2 it would be so difficult, given that City Hall is literally two
3 blocks away, for Mr. Kelley to simply walk over there with a
4 subpoena and serve it to her personally, especially since we
5 know she's going to be at the City council meeting at 9:30 a.m.
6 We know that that's when the council meeting is. So I should
7 -- I'm saying, as the person that is subpoenaing this witness
8 for an important reason for my defense, that I don't think we
9 need to have us all with lawyers and everybody here sitting in
10 -- and addressing this, when the cure is simply that
11 Mr. Johnson could walk over there with a subpoena right now and
12 find Carla.
14 MR. STULL: And she knows who he is, and he would
15 recognize her, and even if she was outside enjoying an apple,
16 they would still get the role of -- it would still be done.
17 THE COURT: So right now we don't have a valid
18 subpoena. But --
19 MR. STULL: Okay.
20 THE COURT: -- if you are going to serve her, it
21 would -- it still remains true that it has to be for a relevant
22 purpose, and she has to have some testimony to -- to provide.
24 THE COURT: If it's only about your signing up at an
25 earlier time to testify, that's not relevant to any issue on

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1 this case.
3 THE COURT: I've already explained that the validity
4 of the trespass is not an issue.
5 MR. STULL: It has to do with my --
6 THE COURT: The wisdom of the trespass is not an
7 issue.
8 MR. STULL: I understand that. I'm not saying that.
9 I'm saying that my mental state as the person who went in on
10 November 16th and signed up for these two items, right -- this
11 is what was included, and actually --
12 THE COURT: And whether that was included or not --
13 MR. STULL: -- on this --
14 THE COURT: -- doesn't make it admissible.
15 MR. STULL: Well, I'm just saying that on --
16 THE COURT: So just so you know that.
17 MR. STULL: Well, Ms. Moore [sic] scanned this
18 herself on the 16th.
19 THE COURT: Doesn't matter.
20 MR. STULL: All right. And so I want to establish
21 that I was on the agenda, and the only evidence that we have is
22 my testimony or my -- on the video. We don't have anything
23 that -- that -- we don't have a daily journal of commerce that
24 says I'm signed up for this. We don't have the agenda from
25 City Hall that says. What we do have is me requesting this

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1 specific agenda item on this specific day from the person whose
2 name is on the form. And I simply wanted Carla to come in and
3 say, so that I don't look like a person who came in off of the
4 street without any concept. I was -- I was -- I reserved this
5 space, and I knew that that's what my plan was. And all this
6 that we're talking about factually, we haven't even gotten
7 through all that. And we're going to find out that there are
8 quite a little bit of factual matters that I will be able to
9 cure in -- in my favor once we get through this process.
10 But --
11 THE COURT: If I could cut through this for just a
12 second. If it were relevant that he was signed up, is there
13 any dispute that he was signed up.
14 MR. MCMAHON: that's just what we were talking about
15 here. Essentially, the State would agree -- would stipulate to
16 the fact that he had signed up for a slot at a given time.
17 That's not an issue since the trespass we're discussing is sort
18 of a collateral -- mainly collateral. It's only importance is
19 like essentially whether or not there was valid grounds -- like
20 the arrest itself, whether or not --
21 THE COURT: Okay.
22 MR. MCMAHON: -- the officers thought it was legal
23 and affording --
24 THE COURT: Well, we can talk about that, but it
25 seems to me that's also relevant. If there's a stipulation,

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1 which the jury can be informed of, if it becomes relevant,
2 there's a stipulation that you were signed up to testify.
3 MR. STULL: And that that's -- my reservation was
4 made on November 16th.
5 THE COURT: Well, I'm not going to characterize it as
6 a resolution.
7 MR. STULL: Whatever you want to say. I --
8 THE COURT: You were signed up.
9 MR. STULL: I requested a -- it's called a Portland
10 City Council communication request.
11 THE COURT: Okay.
12 MR. STULL: My request was made on November 16th --
13 THE COURT: Fine.
14 MR. STULL: -- for me to be on the Portland City
15 Council agenda under the topic of partnership agreement, street
16 musician, free music, so on, as it says right here.
17 THE COURT: I think that there is no dispute about
18 the fact of it. There remains a dispute about the relevance of
19 it, but that wouldn't be assisted or -- in any way by having
20 the fact witness to whether you were signed up or not. So the
21 fact witness seems to be unnecessary, since there's no dispute
22 about that fact.
23 MR. STULL: Well, if I may just suggest to you, Your
24 Honor, that it's a --
25 MR. MCMAHON: I would stipulate -- what I would

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1 stipulate to is that on November 16th, 2015, Mr. Stull signed
2 up to discuss the partnership agreements on the 25th at 9:30.
3 MR. STULL: If we could --
4 MR. MCMAHON: If it's -- if there is a finding of
5 relevance.
6 MR. STULL: -- get the rest of the sentence, because
7 partnership agreement with who, with what. If he would just
8 read what's on there, that's fine with me, Your Honor.
9 MR. MCMAHON: Why is that relevant?
10 MR. STULL: Because it's a partnership agreement with
11 street -- it's a free music zone, a --
12 THE COURT: It's not relevant whether it's a free
13 music zone or anything.
14 MR. STULL: Not at City Council. The topic I was
15 signed up to discuss was a policy that we have in the City of
16 Portland, which explains why I, as a street musician, which you
17 can hear as part of this -- this video, and you can have me --
18 THE COURT: Okay.
19 MR. STULL: -- with a bucket, and you can have me
20 with a guitar, and that's not --
21 THE COURT: And that's not relevant to whether you
22 did or did not intend to assault a police officer. It's not
23 relevant to whether you did or did not resist arrest. And it's
24 not relevant to whether you did or did not commit criminal
25 mischief in the police officer's car. That is -- that is my

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1 ruling.
2 MR. STULL: My defense, Your Honor, because I haven't
3 had my opportunity yet -- and I realize the clock is ticking.
4 My defense, Your Honor, is, I was signed up on these agenda
5 items and I endured an utter fabrication on the part of the
6 City of Portland through its City Hall security and the
7 Portland Police that, one, worsened my medical condition and
8 interfered with my getting medical treatment, which then made
9 me so ill that the actions that I took were, one, a product of
10 that and, two, a response to it. And my defense is under the
11 choice of evils. Those are all -- those are all based on what
12 I was dealing with, the imminent threat of my life-threatening
13 condition. I didn't want to die in a police car out in front
14 of City Hall. That's what --
15 THE COURT: Okay. I am quashing the subpoena.
16 MR. STULL: Okay.
17 THE COURT: And we'll go forward on the basis of --
18 MR. STULL: And we have the stipulation?
19 THE COURT: We have a stipulation to the fact that
20 you were signed up to testify on the date indicated.
21 MR. STULL: And not the topic that I was signed up
22 for?
23 THE COURT: No. We're not -- we're not dealing with
24 the topic. I'm still of the opinion that the topic that you
25 were ultimately seeking to testify to has no relevance to these

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1 proceedings. We have certain things to determine here. The
2 jury has certain things to determine here, and the -- the topic
3 of your subsequent testimony is not something that there is --
4 either for or against the issues that are determined here.
5 MR. STULL: Well, I'll --
6 THE COURT: No, I'm not --
7 MR. STULL: -- respectively object, and --
8 THE COURT: -- going to -- wait. We've done that.
9 MR. STULL: -- then we've put that on the record.
10 THE COURT: Yes. We have a --
11 MR. STULL: Okay. That's all I --
12 THE COURT: -- record running. So --
13 MR. STULL: That's all I wanted to do, Your Honor.
14 I'm not here to oppose you. I'm here to challenge your
15 decisions so that I have a record on appeal.
16 THE COURT: We've -- yeah, and we've finished this --
17 MR. STULL: And we were -- and we both know that,
18 so --
19 THE COURT: -- proceeding.
20 MR. STULL: -- we can proceed.
21 THE COURT: So we're going to let the jury in and
22 we're going to get started again.
23 MR. STULL: Thank you, Your Honor. And I will accept
24 the stipulation.
25 MR. GARCIA: Thank you, Your Honor.

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2 THE BAILIFF: Ready for the jury?
5 THE COURT: Very well. We started to have some
6 testimony from this witness. The jury will disregard that
7 testimony. Is there anything else for this witness?
8 MR. MCMAHON: The State has no further questions for
9 this witness, Your Honor.
10 THE COURT: Okay. Thank you. An dis it -- you may
11 step down because we've not had any new testimony then that
12 stays in the record.
13 MR. ENGSTROM: Cross-examination?
14 THE COURT: No, because there's nothing to
15 cross-examine about. I've stricken the testimony --
16 MR. STULL: Oh, this morning --
17 THE COURT: Oh, cross-examination on -- I'm sorry.
18 MR. STULL: This morning, not this afternoon.
19 THE COURT: This is -- quite right. Quite right.
20 Quite right. Cross-examination about the testimony before the
21 noon break.
22 MR. STULL: So, Your Honor, if we could -- excuse me.
23 If you could -- if we could end the confusion --
24 THE COURT: I did. I did.
25 MR. STULL: So what was stricken was the after-lunch

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1 testimony, not earlier?
2 THE COURT: Yes. That's right.
3 MR. STULL: That's all we're saying.
6 THE COURT: Okay. Cross on the morning testimony.
7 MR. STULL: May I bring cross?
8 THE COURT: Yes.
9 CROSS-EXAMINATION
10 BY MR. STULL:
11 Q You're not wearing glasses today. Do you wear
12 contacts?
13 A No.
14 Q You were in the video wearing glasses?
15 A Yep.
16 Q Were those corrective lens?
17 A Yes.
18 Q Can you see all right without --
19 A Yes.
20 Q -- your corrective lens?
21 A Yes.
22 Q I have something you might have to read, so I'm just
23 making sure before I begin my cross that you're prepared to do
24 that today.
25 A Yes.

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1 Q So if I hand you a document you can read it?
2 A Yes.
3 Q Okay. Because my arms are getting longer all the
4 time as I age. So I wanted to make sure. Thank you.
5 If you're -- you're trained in defensive tactics?
6 A Yes.
7 Q True? Based on your expertise --
8 MR. STULL: And I'm not qualifying him as an expert
9 witness. I'm just saying his expertise as training and
10 experience.
11 BY MR. STULL:
12 Q -- wouldn't right about here be a good place to aim a
13 blow at a person?
14 A Not necessarily.
15 Q To punch somebody in the nose and the mouth --
16 MR. MCMAHON: Objection, Your Honor; relevance.
17 THE COURT: I'll let him ask the question.
18 BY MR. STULL:
19 Q To punch somebody in the nose -- to aim. To punch
20 somebody in the nose and the mouth is a well-defined target,
21 and it was -- is one that would actually injure somebody?
22 A That's not what we've taught. We've never taught to
23 punch --
24 Q No, I'm not saying what you were taught. I'm just
25 saying as a defense -- defense is defending yourself, I'm

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1 imagining; is that correct? So when you defend yourself, one
2 of the places you're going to want to defend is the center of
3 your face, correct?
4 A That I'm going to defend or that I'm going to strike?
5 Q I'm asking you, if a fellow comes in here or a gal
6 comes in here or a woman comes in here or a child comes in here
7 and they try to injure you by striking at your center of your
8 face, that would be a bad place to be injured, right, or to be
9 -- to be struck?
10 A Yes.
11 Q Okay. Wouldn't another place be to take a blow, a
12 place you'd want to defend against, right here, because we have
13 the heart, we have the sternum, we have the diaphragm? Aren't
14 -- are those vulnerable places?
15 A Sure.
16 Q And a third vulnerable place would be in the groin?
17 A Sure.
18 Q Another vulnerable place would be -- if I could step
19 out here -- to kick somebody in the knee? If somebody -- if
20 somebody was in front of me and they kicked me in the knee,
21 that could potentially break my knee?
22 A Potentially, yes.
23 Q And if somebody stood on your foot and pushed you
24 over, wouldn't that break your ankle when you fell?
25 A I don't know.

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1 Q Could it?
2 A I don't know. I've never had that happen to me.
3 I've never done that to anybody. I don't know. I've never
4 seen it happen.
5 Q But have you ever been trained to defend yourself, or
6 have you ever trained any of the people that you've trained --
7 I mean, I -- let me correct that.
8 Weren't -- you do train people?
9 A Yes.
10 Q Okay. Have you ever trained somebody to defend
11 against a person stepping on their foot and pushing them over
12 to break their ankle?
13 A No, not specifically.
14 Q Thank you. On the -- as part of the exhibits, the
15 evidence we've seen, involves me requesting an ambulance. Did
16 you hear me request an ambulance?
17 A Yes, I believe I heard you say that on the video.
18 Yes.
19 Q Did you request an ambulance?
20 A I personally did not. I think the sergeant did.
21 Q Do you know if an ambulance was requested for me?
22 A Well, there was one waiting outside for you when we
23 got outside, so I'm assuming, yes, one was requested for you.
24 Q For me?
25 A Yes.

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1 Q Did I have any encounter with the paramedics that you
2 noticed?
3 A No.
4 Q So why were they there?
5 A Because initially you were asking for one, and we
6 requested one for you. But after that, you started fighting
7 with us and you were arrested, and then you were going to be
8 taken to jail. And so we put you in the back of a police car.
9 Q And why -- when you were there with Officer Singh and
10 Sergeant Price --
11 A Yes.
12 Q -- and Sergeant Axthelm, why were there no paramedics
13 there?
14 A I just said that they were there. They were parked -
15 -
16 Q No, I mean, in City --
17 A -- behind our patrol car.
18 Q I mean in council chambers.
19 A They were arriving just as we were coming outside the
20 door. So that they were exiting their AMR vehicle, walking
21 toward us, as I was walking you toward the police car, and we
22 decided at that point to put you straight in the police car and
23 transport you very quickly to -- to the jail instead of having
24 AMR look at you outside a police car in the street. Because we
25 knew that there was medical -- medical personnel that could

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1 take care of you down at jail.
2 Q Pardon me for a moment.
3 (Pause.)
4 Q When Sergeant Axthelm said, "Mr. Stull, sit down,"
5 did you hear that?
6 A Yes, on the video. Yes.
7 Q And you were, in fact, standing behind Sergeant
8 Axthelm at this time?
9 A Uh-huh.
10 Q And then you approached me?
11 A You -- I think we --
12 Q Well, then --
13 MR. STULL: I'm moving on, Your Honor.
14 MR. MCMAHON: Your Honor, I'd ask that the witness be
15 allowed to answer.
16 THE COURT: Well, wait a second. If you've asked a
17 question, wait until he answers, okay?
18 MR. STULL: I will, certainly.
19 BY MR. STULL:
20 Q The question was, and you approached me?
21 A I think we kind of approached each other because
22 Mister -- or Sergeant Axthelm was stepping out of the way to
23 deal with Mr. Davis. You came towards me as I was stepping up.
24 It kind of happened together, at the same time.
25 Q So you were coming towards you and I was coming

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1 towards you?
2 A Correct.
3 Q And you were behind Sergeant Axthelm at the time?
4 A I took his place. When he stepped away to deal with
5 Mr. Davis, I took his place and stepped forward.
6 Q Well -- excuse me. The question was, is your
7 supervisor Sergeant Axthelm --
8 A Yes.
9 Q -- at that time? At that moment?
10 A Yes.
11 Q When Sergeant Axthelm asked me -- or told me, you
12 hear it on the video, I believe it was Sergeant Axthelm, but
13 we'll review that in a way when he comes to testify, but
14 actually I hear, it sounds like his voice, saying, "Mr. Stull,
15 sit down," or something to that effect. We just talked about
16 that, right?
17 A We did.
18 Q Okay. Was he your supervisor then?
19 A Yes.
20 Q And so when you started interacting with me, was I
21 finished interacting with him, and was he no longer in control
22 and you were, or were you still under his command?
23 A I don't -- I'm not following your question. I mean,
24 he is the supervisor on the scene, but we can all make our own
25 decisions. He was stepping away to deal with someone else. I

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1 was stepping up to talk to you, and you engaged me. You didn't
2 follow Sergeant Axthelm to where he was going. You stepped
3 forward to me.
4 Q Had I followed Sergeant Axthelm to where he was
5 going, I would have been following Sergeant Axthelm from
6 behind, wouldn't I be?
7 A Yes. Or from the side.
8 Q Isn't it -- did you turn your back to me?
9 A We just talked about the fact that --
10 Q I'm asking you questions.
11 A -- we stepped --
12 Q Did you turn --
13 A -- we stepped together.
14 Q -- your back to me?
15 A No. No, I did not.
16 Q When you, as your expertise, train people --
17 MR. MCMAHON: Your Honor, I'd object right now. He's
18 walking up, advancing on the witness and yelling at him. It's
19 improper.
20 MR. STULL: I'm not yelling at him.
22 MR. STULL: I'm sorry.
23 THE COURT: Unless there's a reason to approach the
24 witness, maybe you should keep a little distance.
25 MR. STULL: I want to make sure that he feels safe,

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1 Your Honor, and everybody else does.
2 THE COURT: And I'm telling you to do that.
3 MR. STULL: That's my sentiment exactly. I will.
4 THE COURT: Okay. Good.
5 BY MR. STULL:
6 Q Do you get sick?
7 A Yes.
9 THE COURT: Just go ahead --
10 MR. STULL: I don't, you know --
11 THE COURT: Just go ahead and ask another question
12 now.
13 BY MR. STULL:
14 Q When you train people to defend themselves, do you
15 train them to turn their back on people?
16 A No.
17 Q Do you train to not turn their back on people?
18 A Yes.
19 Q Why do you train them not to turn their back on
20 people?
21 A Because you don't want them exposed to threats. They
22 need to be able to see what's going on.
23 Q So had I, in fact, turned to follow your supervisor,
24 who had told me to sit down, I would, in fact, been placing
25 myself in -- what to him would have been a threatening

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1 position, according to your training and experience? Answer
2 the question, please.
3 MR. MCMAHON: Your Honor, I'm not sure that sure that
4 was phrased as a question. I think it was --
5 THE COURT: Well, it sounded --
6 MR. STULL: It was a question. I'm sorry.
7 THE COURT: Let's imagine there's a question mark at
8 the end.
9 THE WITNESS: Yes.
10 BY MR. STULL:
11 Q Had, in fact, I turned to follow your supervisor,
12 Sergeant Axthelm, who went to address not me, had I turned and
13 followed him, I would, in fact, have been in a place that you
14 just testified was a place you're not supposed to allow people
15 to be; is that correct?
16 A Correct.
17 Q When you approached me, after Sergeant Axthelm put
18 his hand on my chest, and as you put your hand up on my arm,
19 and as you grabbed my hand, why did you tell me that after I
20 got out of jail I was going to be arrested for --
22 BY MR. STULL:
23 Q -- for assaulting a police officer?
24 MR. MCMAHON: It calls for hearsay.
25 THE COURT: It does assume a lot of stuff. Why don't

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1 you just ask him what he said to you. It doesn't -- you're
2 assuming something, and I don't --
3 MR. STULL: I'll --
4 THE COURT: This -- the question seems kind of
5 backwards that way.
6 MR. MCMAHON: And, Your Honor, I would --
7 MR. STULL: I'm try. I'm sorry, Your Honor.
8 MR. MCMAHON: I would --
9 THE COURT: I -- as far as hearsay, it is only coming
10 in for impeachment. It can come in only for impeachment for
11 undermining the credibility, but not for the truth of anything.
12 So you can go ahead and ask.
13 BY MR. STULL:
14 Q Can you answer the question?
15 A What's --
16 THE COURT: Well, no rephrase the question as a
17 question about what was said, not assuming that and then asking
18 him why.
19 BY MR. STULL:
20 Q Did you tell me that after I got out of jail I would
21 be arrested for assaulting a police officer, after Sergeant
22 Axthelm placed his hand on my chest and as you approached and
23 had your arm on my arm and were putting on your gloves and have
24 your hand on my fingers?
25 A No.

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1 Q We can't hear that. What did you say?
2 A I'm not sure what you're talking about.
3 Q Just --
4 MR. STULL: Can we play the video, Your Honor? And
5 is it okay if Mr. Kelley operates that for me, cue up the point
6 or --
7 THE COURT: It's not really -- it belongs to the DA.
8 I'm sure the DA can operate it. I don't want to have it --
9 MR. STULL: Well, I -- the only inquiry I have -- or
10 hampering I have, I don't want to have to learn the technology
11 right now. I'm trying to do this right now.
12 THE COURT: Yeah, we don't want him to be --
13 MR. STULL: But if we can have the State's exhibit
14 cued up to the point.
15 MR. MCMAHON: Are you referring to State's Exhibit 1,
16 Mr. Stull?
17 THE COURT: The first video.
18 MR. STULL: It's the -- it's the video we've been
19 watching this morning.
20 MR. MCMAHON: So the first video? There's a second
21 video from up here. Are you referring to this video, the first
22 video?
23 MR. STULL: The one that Mr. Davis took. It has
24 audio. The other one is silent, if I understand it. I want
25 the one with the audio and the video at the same time. And,

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1 Mr. McMahon, it's fine for Mr. Kelley to operate this, if you
2 two can --
3 MR. KELLEY: Do you want me to go ahead and operate
4 it for him?
5 MR. MCMAHON: I was just going to cue it up if that's
6 all right, Mr. Stull.
7 MR. STULL: If you could -- you two can work it out.
8 I was just trying to get to the part that I want to ask this
9 witness' questions -- some questions.
10 MR. MCMAHON: Mr. Stull, is this an appropriate
11 place, do you feel?
12 (State's Attorney cues up audio.)
13 MR. STULL: It's -- it's concerning this witness'
14 approach to me when he has blue gloves on, so we can go that
15 far, because he does put the gloves on.
16 MR. STULL: It's obviously before that -- or after
17 that, rather.
18 MR. MCMAHON: And there is a part 1 and part 2.
20 1, was played in open court and transcribed to the transcriber's
23 drummer."

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2 MR. COHEN: Yes.
6 MR. COHEN: Okay.
9 the public --
14 (State's Exhibit 1 continues to play while people are
15 speaking in the courtroom.)
16 MR. STULL: Okay. You can stop the video
18 BY MR. STULL:
19 Q Okay. If I can point out, this is you wearing the
20 glasses then, right?
21 A Yes.
22 Q Okay. You're not wearing glasses now. And this is
23 Sergeant Axthelm?
24 A Yes.
25 Q And this is myself?

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1 A Yes.
2 Q And he is the supervisor regarding this event in
3 council chambers at this time?
4 A Yes.
5 Q So you're acting -- the question I have is, are you
6 acting independently or under his instruction at that point?
7 A Under his instruction at that point.
8 MR. STULL: If you could continue.
14 record.
16 SGT. AXTHELM: Sit down --
19 MR. STULL: Okay. You can pause it here.
21 BY MR. STULL:
22 Q Okay. We see this is Sergeant Axthelm, and that's
23 myself, and that's his hand, and that's the distance we have
24 there.
25 MR. STULL: If you could go to the point where --

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1 this is the one view. And we'll see this on the other view.
2 But this -- within, I think, a few seconds we'll see his hand
3 on my chest.
4 MR. MCMAHON: Would you like me to play the video.
5 MR. STULL: Yeah, if you could do that.
7 SGT. AXTHELM: -- Mr. Stull. Sit down, Mr. Stull.
11 MR. STULL: Stop.
13 BY MR. STULL:
14 Q Okay. So that was -- that two fingers on my chest, and
15 I think there's a full hand.
16 MR. MCMAHON: Okay. I would object at this point.
17 Mr. Stull is testifying. He can ask the witness questions. He
18 can't describe on his own.
19 MR. STULL: I'm trying to get to the part of the video
20 that I'm trying to question him about.
21 THE COURT: Well, why don't we roll it back a little
22 and just let it play continuously.
23 MR. STULL: Okay. Let's do that.
25 MR. DAVIS: -- as a --

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3 MR. STULL: Hey.
8 record.
11 Mr. Stull.
14 MR. DAVIS: No.
15 SGT. AXTHELM: You're out. 69 him.
22 BY MR. STULL:
23 Q The last statement we could hear from Sergeant -- I
24 could hear form Sergeant Axthelm was, "Sit down, Mr. Stull." And
25 now you're approaching. You heard that?

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1 A Well, you're approaching me. You came up fairly
2 quickly to me.
3 Q This is -- this is --
4 A And I didn't have time to put my second glove on. I
5 threw it down on the ground because you were coming up on me so
6 fast.
7 Q I --
8 THE COURT: We're not going to have an argument.
9 MR. STULL: No, no. Certainly not.
10 THE COURT: Just ask questions.
11 MR. STULL: Certainly not.
12 BY MR. STULL:
13 Q The jury will be able to decide who is approaching who,
14 and that's not -- that's not the argument that -- or that I
15 intend to get into. Am I under arrest right there?
16 A Not at this point.
17 MR. STULL: Okay. And if we could get another 30
18 seconds, please. That will be plenty.
19 (State's Exhibit 1 continues to play while questioning
20 continued.)
24 (State's Exhibit 1 continues to play while questioning
25 continued.)

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1 BY MR. STULL:
2 Q Am I arrested right there?
3 MR. STULL: No.
8 BY MR. STULL:
9 Q Am I arrest --
11 BY MR. STULL:
12 Q Am I under arrest there?
13 A I haven't said the words you're under arrest, and in my
14 mind, we were just trying to have you leave and leave the council
15 chambers. It isn't until you swing at me that, in my mind,
16 you're under arrest.
17 Q So at that point in time, right there, right now, I
18 was --
19 A I think it --
20 Q -- I was free to walk out and talk to the arriving
21 ambulance people, in your opinion?
22 A Sure. We just wanted you to leave the council
23 chambers. We told you that earlier. Sergeant Axthelm did.
24 Q You're putting on blue gloves.
25 A I put on blue gloves at almost every call I go to,

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1 whether or not I'm going to arrest them or not. I do it for my
2 own protection.
3 Q Right. But you're trained in defensive tactics. Are
4 you tried in de-escalation tactics?
5 A Yes.
6 Q Do you think what happens in the next minute is a
7 de-escalation?
8 A I tried. I tried my best. I tell you to calm down. I
9 do -- several times I ask you to calm down.
10 Q And did you hear me yell, "Where's the God damn
11 ambulance?"
12 A You were yelling that several times in the video, yes.
13 Q Where was the ambulance?
14 A I don't know.
15 Q Why don't you know?
16 A Because I can't keep track of all the ambulances in the
17 City of Portland.
18 Q You testified this morning about having a pain nerve
19 you press on?
20 A Uh-huh.
21 Q Do you know about nerves
22 A A little bit.
23 Q Do you know what central pain syndrome is?
24 A No.
25 Q Did you hear me say central pain syndrome?

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1 A I do not recall hearing you say that.
2 Q Never?
3 A No.
4 Q From this point at council chambers, referring to this
5 one point in time, November 25th, 2015, at that point, going on
6 the 10:00 hour, between 9:25 and leaving the building and going
7 into your police car, you never heard central pain syndrome?
8 A I told you I don't know what it is, so it didn't
9 register.
10 Q The three words?
11 MR. MCMAHON: Objection, Your Honor. It's asked and
12 answered.
13 THE COURT: Well, I think that we have kind of gone
14 over that, so it's a little redundant.
15 MR. STULL: That's fine, Your Honor.
16 THE COURT: Let's move on.
17 BY MR. STULL:
18 Q Why was I arrested?
19 MR. STULL: You can shut off the video.
20 THE WITNESS: You were arrested for trespassing, for
21 resisting arrest, assaulting a public safety officer, and also
22 for damaging the patrol car, for dis -- well, disorderly conduct
23 and for the criminal mischief for damaging the police car. Those
24 are the charges you were brought in on.
25 BY MR. STULL:

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1 Q Are you -- if you'd like to refresh your recollection,
2 can I show you your report?
3 A I have a copy of it in front of me.
4 Q Okay. Unfortunately -- oh, on page 1 of 1, and it's
5 arrest booking --
6 A Uh-huh.
7 Q And about two-thirds of the way down the page, can you
8 read those charges?
9 A Criminal trespass 2; assaulting a public safety
10 officer, two counts; criminal mischief to the patrol vehicle; and
11 resisting arrest. And if you notice in the last paragraph of my
12 report I add disorderly conduct. That should be added but I
13 forgot to put it on the sheet. But I suggested that the DA's
14 Office add disorderly conduct.
15 Q So was I arrested for assault on a public safety
16 officer?
17 A Yes.
18 Q What public safety officer?
19 A Me.
20 Q You've been a police officer for over 20 years; is that
21 correct?
22 A Correct.
23 Q What are the elements of --
25 THE COURT: He's not here to testify about the elements

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1 of the crime. I'll be instructing --
2 MR. STULL: No, no.
3 THE COURT: Those are matters of law, and I'll be
4 instructing the jury regarding that.
6 BY MR. STULL:
7 Q The question is, doesn't assaulting a public safety
8 officer require -- require an injury? Doesn't assault require an
9 injury?
10 MR. MCMAHON: Your Honor, I would object in this point.
11 He's asking about matters of law, not --
12 THE COURT: He is. And, sir, he's not here as a legal
13 expert witness, so --
14 MR. STULL: That -- that's fine.
15 THE COURT: -- just ask him what happened. Don't ask
16 him about --
17 MR. STULL: Oh, I will.
18 THE COURT: -- law.
19 BY MR. STULL:
20 Q Were you injured?
21 A Yes.
22 MR. STULL: Your Honor, I'd like to impeach this
23 witness.
24 MR. MCMAHON: Mr. Stull, please provide me -- I need to
25 see what you're approaching with, Mr. Stull.

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1 MR. STULL: Oh, I'm sorry.
2 MR. MCMAHON: You need to provide me an opportunity
3 to --
4 (Advisory Counsel/Defendant discussions.)
5 MR. MCMAHON: Okay. He needs to -- you need to offer
6 an opportunity to confront it.
7 MR. STULL: Okay.
8 MR. MCMAHON: And enter it clearly.
10 (Defendant/clerk discussions.)
12 Defendant's Exhibit 103 was
14 MR. STULL: Your Honor, I would offer Defense Exhibit
15 103.
16 MR. MCMAHON: Okay. And I would object --
17 THE COURT: It hasn't --
18 MR. MCMAHON: -- he's not laid the proper foundation.
19 THE COURT: Yeah. You got to -- you got to have it
20 identified and lay the foundation. So you can --
21 MR. STULL: I haven't had a chance to talk about it,
22 but I'm --
23 THE COURT: Well, you can identify what it is.
24 MR. STULL: I already have.
25 THE COURT: Have the witness identify what it is.

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1 MR. STULL: Oh, that's fine. I was just -- I'll do it.
2 THE COURT: Yeah. Okay. Do that.
3 MR. STULL: Thanks, Your Honor. Thank you, Your Honor.
4 I knew I had to --
5 THE COURT: I'm just telling you that's the order.
6 MR. STULL: Okay.
7 BY MR. STULL:
8 Q Mr. Kelley's saying I need to have you identify it
9 first. All right. There you are, sir. Can you identify that?
10 A This is a Portland Police supplement report. It's
11 referred to as our force data collection report.
12 Q And is your name on the bottom of that?
13 A Yes.
14 Q So that's your report?
15 A Yes.
16 Q Okay.
17 MR. MCMAHON: Your Honor, I have a matter for the Court
18 I think needs to be heard outside the presence of the jury.
19 THE COURT: Okay. Very well. The jury will step out.
20 MR. STULL: Can I have the -- can I have the document?
21 THE COURT: Yes, you can have the document.
24 MR. MCMAHON: So, Your Honor, I think that, first off,
25 this is improper impeachment. And I think, secondly, he's going

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1 to go into the injuries. Again, I actually would have a question
2 in aid of objection for --
3 THE COURT: Well, if he goes into the injuries, even
4 though, at your -- because you objected to the discovery
5 violation, and the State conceded there was a discovery
6 violation. Even though I excluded them, if you go into it on
7 your cross, that opens the door and it will all come in. You
8 need to understand that. Secondly, you have marked as a police
9 report. Police reports, by statute, can't be received into
10 evidence in the case. You can question him if he's made
11 statements in that report that are contrary to the statements
12 that he's made in his testimony. That would be proper
13 impeachment. But is there something else that we need to talk
14 about?
15 MR. MCMAHON: No, I just wanted to raise the issue that
16 I think the door's going to be opened to talk about his bruising
17 if that is, in fact, the injuries he's referring to.
18 THE COURT: If -- yeah.
19 MR. MCMAHON: And Mr. Stull needs to be advised that --
20 MR. STULL: Oh, no, no. You're --
21 THE COURT: Yeah. The -- if you ask him whether he was
22 injured --
23 MR. STULL: Yeah.
24 THE COURT: -- he's entitled to say whether he was or
25 not --

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1 MR. STULL: Certainly.
2 THE COURT: -- regardless of the ruling of that
3 discovery.
4 MR. STULL: And he just did say he was -- he was
5 injured.
6 THE COURT: Yes, he said yes.
7 MR. STULL: But this --
8 THE COURT: But I just want you to know --
9 MR. STULL: Yes.
10 THE COURT: -- that he is -- if you start talking about
11 injuries sustained, on redirect -- on redirect they can bring in
12 any injury, including the bruising. So you understand what
13 you're --
14 MR. STULL: Yes, I do understand.
15 THE COURT: -- doing.
16 MR. STULL: Your Honor, once again, I've been
17 misunderstood. And the document is, in fact, this gentleman's
18 November 25th, 2015 mandatory use of force report to the
19 Department of Justice. And it says here, "Injuries, check all
20 that apply." And both checks on Mr. Engstrom's report says,
21 "Officer, none. Subject, none."
22 THE COURT: Yeah.
23 MR. STULL: So the day that he just mentioned that he
24 just said -- the testimony in front of the jury --

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1 MR. STULL: -- was he was injured. But his police
2 report that day said that he wasn't injured.
3 THE COURT: Well, that's fine.
4 MR. STULL: And so --
5 THE COURT: You can -- you can bring that out. But do
6 know that by doing so, you then allowed the State on redirect to
7 ask him why he now says yes and to develop why he now says yes.
8 MR. MCMAHON: And, Mr. Stull --
9 THE COURT: And why it changed.
10 MR. MCMAHON: And, Your Honor, I'd also ask that
11 Mr. Stull be instructed that because of his inconsistent -- he
12 apparently attempting impeachment with a prior inconsistent
13 statements. The Rules of Evidence mandate that the officer must
14 be given an opportunity to confront and explain that statement.
15 THE COURT: Certainly.
16 MR. MCMAHON: And I think that if that opportunity is
17 not presented, then it's going to be improper. So I just want to
18 -- I think, Mr. Stull, procedurally --
19 THE COURT: Well, he'll have that -- the opportunity to
20 explain the statement.
22 THE COURT: Right. The Court says that is right.
23 MR. STULL: Oh, I want to place in the record,
24 impeachment by contradictory evidence, Your Honor, in the
25 Oregon --

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1 THE COURT: Well, you --
2 MR. STULL: -- Evidence Code
3 THE COURT: Yeah, but you do that --
4 MR. STULL: -- 607.03.
5 THE COURT: -- by questioning about it.
6 MR. STULL: Right.
7 THE COURT: And then we'll go ahead.
8 MR. STULL: I'm just trying to go through the process
9 the best as I can.
10 THE COURT: Okay.
11 MR. STULL: And I have a document by this gentleman
12 that says the opposite thing then what he just testified in front
13 of the jury about.
14 THE COURT: So you can ask him about the statement.
15 He'll have the opportunity to explain.
16 MR. STULL: Certainly. Thank you.
17 THE COURT: Okay.
18 MR. STULL: No problem. I'm prepared for the jury as
19 soon as you are, or whatever is next.
20 THE COURT: Okay. We're bringing them back in.
22 CROSS-EXAMINATION (CONTINUED)
23 BY MR. STULL:
24 Q Officer Engstrom, did you complete a report on November
25 25th, 2015?

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1 A Yes.
2 Q Did you include in that report that there were no
3 injuries to yourself?
4 A I filled out that force data collection report, yes,
5 and I put none in the injury column, correct.
6 Q Oh, if you don't mind, you qualified it as a force --
7 A It's called a force data collection report.
8 Q That's --
9 A It's a supplemental report that we use when -- when
10 uses of force have been used to include takedowns or control
11 holds during arrests. We don't use them for every arrest. If
12 someone just turns around and is handcuffed, then we don't fill
13 out one of these forms. But because it took three of us to
14 handcuff him, we filled out a force data collection report.
15 Q Here it says, "Check the box," and the box is checked,
16 it says, "None," regarding your injury. Is -- was that
17 typographical error?
18 A No, I put -- I checked the box purposefully, "None."
19 Q Now, the force data that's being collected, is that
20 mandated by the United States Department of Justice?
22 THE COURT: No, I'll let the question come in.
23 THE WITNESS: I believe it is now mandated, but we've
24 had that form for a long time. We've had that form for probably
25 15 years.

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2 MR. STULL: Your Honor, I do want to offer Defense
3 Exhibit 103 into evidence.
4 MR. MCMAHON: I'd object, Your Honor. It's not
5 admissible.
6 THE COURT: It is not admissible --
8 THE COURT: -- here.
9 MR. STULL: And I'll -- we'll put it in as a --
10 THE COURT: As a Court exhibit. It won't go to the
11 jury.
12 MR. STULL: No, it won't go to the jury.
14 MR. STULL: No, no, no. I understand.
15 THE COURT: It's not -- yeah. It's not admitted in the
16 record.
17 MR. STULL: I know. Yeah, it's admitted into the
18 record.
19 THE COURT: Not admitted in the record.
20 MR. STULL: That -- Your Honor, excuse me, that was
21 page 2 of 3, and if I could go to the cover, page 1 of 3 that was
22 right before that and ask him a question about it.
23 THE COURT: If you -- go ahead.
24 MR. STULL: Okay. Thank you.
25 THE COURT: You can ask him.

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1 BY MR. STULL:
2 Q So legal mandate is what that says, correct?
3 A The --
4 MR. MCMAHON: Objection, Your Honor. There's
5 absolutely no relevant to whether or not it's a legal mandate.
6 THE COURT: Yeah. The -- you can ask him about --
7 about that document --
8 MR. STULL: Oh, I'm sorry, I will.
9 THE COURT: -- for impeachment for his statements.
10 But --
12 THE COURT: -- beyond that, we're not going to --
13 MR. STULL: No, it --
14 THE COURT: I don't see the relevance of --
15 MR. STULL: The --
16 THE COURT: -- what the nature of the report is. So --
17 MR. STULL: Off -- thank you, Your Honor.
18 BY MR. STULL:
19 Q Officer Engstrom --
20 A Yes, sir.
21 Q -- having had the opportunity to refresh your memory by
22 reviewing the document you prepared, was the preparation of that
23 document a required report to the United States Department of
24 Justice?
25 A I already answered yes to that question. But I said

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1 that this form has been around for 15 years because I created
2 this form.
3 Q You created that form?
4 A My partner and I created this form.
5 Q Okay. So you're familiar with it.
6 A Yeah. And just recently, under the DOJ, they added
7 that bullet there on the top.
8 Q Recently?
9 A Well, within the past probably three years.
10 Q Which is, of course, was more recent than a --
11 A But I agreed with you.
12 Q -- November 25th, right?
13 A I agreed with you what it said. It says legal mandate,
14 yes.
15 Q All right.
16 A And I filled it out.
17 Q Okay. That's fine. Thank you.
19 BY MR. STULL:
20 Q The report says you weren't injured. You say here
21 today you were injured. Is this report to the Department of
22 Justice accurate, or is your testimony today to the Court and all
23 of us here today accurate?
24 A The testimony here in court is accurate, yes.
25 Q Were you injured?

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1 A Yes, you punched me and you kicked me, and I was
2 injured. And I later had bruising.
3 Q We didn't hear about your bruising this morning. Is --
4 MR. MCMAHON: Objection, Your Honor. It's improper
5 commentary.
6 THE COURT: I -- I agree. This is not -- that's not
7 appropriate remark and it's not -- and I will order that the jury
8 disregard it. I don't want your -- you --
10 THE COURT: -- understand --
11 MR. STULL: I do understand. The objection is --
12 THE COURT: -- procedure rules that have been made --
14 THE COURT: -- you're not to use them as a weapon.
15 You're not to use the rulings of the Court to imply something
16 other than what they were.
17 MR. STULL: Oh, I didn't intend to, Your Honor.
18 THE COURT: Okay. Then --
19 MR. STULL: It was --
20 THE COURT: Then the --
21 MR. STULL: It was a mistake on my part.
23 MR. STULL: I would like to continue.
24 THE COURT: The jury will disregard that statement.
25 MR. STULL: I would like to continue.

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1 BY MR. STULL:
2 Q Did you appear in front of a grand jury?
4 THE COURT: Agreed. I'm sustaining that objection.
5 BY MR. STULL:
6 Q You have said that you're trained in defense. And you
7 also testified about the use of pain compliance holds. And the
8 first one you mentioned was a wrist lock. And you demonstrated
9 how that involves bending the person's wrist. How long are you
10 supposed to apply that? Until what compliance? The question is,
11 when you're trying to use a pain compliance hold to effect
12 compliance, what compliance are you authorized to use that
13 toward?
14 A I don't understand the question.
15 Q If you're a public safety officer with 20 years'
16 experience, at least a year ago, right, you had 20 years -- you
17 had 20 years -- you had at least 20 years' experience? And
18 through your training, and as you've testified, there's various
19 options for use of force. And you explained in your testimony
20 how part of your options is to use pain compliance holds. And
21 one of those pain compliance holds you mentioned was a wrist
22 lock, which is bending the -- to cause some, as you explained,
23 temporary pain to effect the compliance. And I'm asking you,
24 what are you allowed to use a pain compliance hold to get the
25 person in custody to comply to do?

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1 A Whatever legal command I'm giving them, to put their
2 hands behind their back, to stop resisting for handcuffing, to go
3 a direction that I'm escorting them to. Anything that I'm
4 legally and lawfully allowed to ask them.
5 Q When you transported to me, as you testified, with
6 Sergeant Price, as you testified, did you --
7 A I didn't -- I didn't transport you with Sergeant Price.
8 Q Sergeant Axthelm?
9 A I was by myself. It was just you and me.
10 Q Oh, no, I'm sorry. I'm -- I simply meant the
11 transference of my body from city council chambers --
12 A To the car?
13 Q -- the room on the second floor of City Hall, out of
14 that room to the elevator, which we heard, from the elevator out
15 of the building, out of the building into the police car.
16 A Yeah, that was with Sergeant Price, yes.
17 Q That's what -- that's the part I was talking to you.
18 A Okay.
19 Q And so that's the transport that -- we have prison
20 transport here in the courthouse. We see people being escorted.
21 That's the terminology I was using. So -- so I was just
22 referring to. In the process, taking a person that you have
23 cuffed in the city council chambers to the hallway, then
24 elevator, another floor, out the building to the police car,
25 could you have used a pain compliance hold through that whole way

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1 to guide the direction of the person you was trying to move?
2 A No, I did not do that to you.
3 Q When -- getting back to Sergeant Axthelm saying,
4 "Mr. Stull, sit down," and you stepping up, were you the
5 individual then responsible for communication with me? Was --
6 were you the person that was responsible at that point?
7 A Yes, when Sergeant Axthelm stepped away, yes, I was the
8 person responsible for talking to you.
9 Q Okay. And we've seen you, as we've discussed, and
10 you're saying now that you were bruised. Were you wearing a
11 ballistic vest?
12 A Yes.
13 Q Would that be a bullet proof vest?
14 A Yes.
15 Q Have you ever been, in your 20 years, to that point,
16 had you ever been bruised through a ballistic vest?
17 A I can't recall having that happen.
18 Q Have you ever, in your training, been bruised while you
19 wearing a ballistic vest?
20 A Not that I know of.
21 Q Protective vest is to protect you, correct?
22 A Correct.
23 Q You didn't have on a face shield that day, did you?
24 A No.
25 Q Have you worn a face shield?

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1 A In the past I have, yes.
2 Q Could you tell us when you wore a face shield?
3 MR. MCMAHON: Objection, now, Your Honor; relevance.
4 THE COURT: Irrelevant.
5 BY MR. STULL:
6 Q The face shield protects your face, right --
7 A Yes.
8 Q -- when you wear it?
9 A Yes.
10 Q The ballistic vest protects your vest [sic] when you
11 wear it?
12 A It protects your torso.
13 Q Well, your -- some part of your abdomen, I'll saying.
14 Just the general part of you in front of your body between your
15 head and your legs?
16 A And the back of your body, too.
17 Q Yes, but I'm saying -- well, you don't turn your back,
18 you said, because you wouldn't turn your back to me, you didn't.
19 So my question is, facing me, the protected part of your body
20 was, most apparently, the bullet proof vest, and the less
21 protected part of your body was, as we've discussed, this place
22 where if you get punched, it has the potential of damaging your
23 nose and your mouth; that was not protected by any sort of shield
24 of screen or anything, right?
25 A No, it was not.

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1 Q That's all I wanted to say on that.
2 Now, you weren't any protections on your legs; is that
3 correct? Like -- like --
4 A No.
5 Q -- maybe a catcher might wear something, you didn't
6 have anything protecting --
7 A No.
8 Q -- your shins or anything, right?
9 A No, just pants.
10 Q Okay. Now, at the time of -- getting back to, if you
11 don't mind, sir, what word would you use to describe the event of
12 Sergeant Price on one side, myself in handcuffs in the middle,
13 and you on my right side, what would you call that getting us all
14 from one place to another, so I don't have to confuse anybody?
15 A An escort.
16 Q An escort. When you escort people, and there are two
17 police officers and one, we'll call it prisoner at that point or
18 -- what do you call somebody that's been handcuffing and you're
19 taking?
20 A Prisoner.
21 Q Prisoner.
22 A Custody.
23 Q Okay. So -- so you could understand if I use the word
24 prisoner?
25 A Yes.

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1 Q Okay. Okay. When a prisoner is being escorted, in
2 this case, this Defendant, and we're talking about November 25th,
3 2015 at Portland City, initially, the council chamber, it's the
4 City Hall now, you were on the right side; isn't that correct?
5 A Correct. No, I was on your left side. I was on this
6 side of your body. Sergeant Price was on your other side.
7 Q Who was on my right side?
8 A Your -- your -- I was on your left side. Sergeant --
9 Q Well --
10 A -- Price was on your right side.
11 Q Well, this is my left.
12 A Correct. I was on that side of your body.
13 Q You were on the left?
14 A Uh-huh.
15 Q And Sergeant Price was on the right?
16 A Correct.
17 Q Did you hear me crying out in pain?
18 A No.
19 Q During any of this process of escorting?
20 A No. You were yelling, but you were not crying out in
21 pain.
22 Q Do you hear me yell without using understandable words?
23 A I don't remember exactly what you were yelling.
24 Q You did hear me yell, "Where's my God damn ambulance?"
25 A Before the custody, yes.

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1 Q We settled that.
2 A Yes.
3 Q But you didn't hear central pain -- you said -- you
4 said you didn't hear that. And you didn't hear anything that was
5 heading -- were -- is there any point where you felt that I was
6 in pain while you were escorting me with Sergeant Price?
7 A No.
8 Q Do you know anybody with central pain syndrome?
9 A No.
10 Q Do you know what central pain syndrome is?
11 A No.
12 Q Have you ever participated in civil disobedience?
13 MR. MCMAHON: Objection, Your Honor, relevance.
14 THE COURT: It is irrelevant.
15 BY MR. STULL:
16 Q Have you ever engaged in a protest action where you
17 didn't --
18 MR. MCMAHON: Again, objection, Your Honor; relevance.
19 THE COURT: I don't believe that the line of
20 questioning about his participation in other actions has a
21 relevance to this case.
22 BY MR. STULL:
23 Q You mentioned during your testimony Graham as a set of
24 standards. Could you tell us the -- you use that in your
25 training, don't you?

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1 A Yes. The -- the Graham standard was being taught kind
2 of at the time that I left the training division. Most of my
3 defensive tactics instruction was along the lines of the levels
4 of control. And then we started to adopt the Graham standard
5 more and put it more into our lesson plans and our teaching and
6 our scenario based training that we do with the Department of
7 Police Bureau.
8 Q What are the three elements of the Graham standard?
9 MR. MCMAHON: Objection, Your Honor; relevance. Legal
10 question.
11 THE COURT: I don't think I can analyze that now. You
12 can ask the question, but I'll entertain a further motion if it
13 goes on too long.
14 BY MR. STULL:
15 Q The question was, what are the three factors of the
16 Graham standard?
17 A Well, there's a lot more than three. We have an
18 acronym called STARTIS (phonetic). I can't -- I don't think I
19 can pull it off the top of my head very well without refreshing
20 my memory. But a lot of it has to deal with the time and tactics
21 we have available to us, the person's ability to escape, the
22 gravity of the crime, the age of the person, their access to
23 weapons. It's just -- it's the totality of the circumstances.
24 You have to take everything into consideration before you opt for
25 a level of force or a level of control. It's not just a real

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1 mechanical device like we had before, where you had this stair
2 step ladder. It was real easy to throw up on a chalkboard and
3 say, if they do this, you do this. If they do this, you do this.
4 Well, that's -- that's not the case anymore. We're not being
5 judged on that standard as police officers. We're being judged
6 on -- on the Graham standard. And it's just taking everything
7 into consideration. So at -- it's been awhile since I've
8 reviewed it, but --
9 Q The totality of the circumstances?
10 A Correct.
11 Q Would those include the -- the physical qualities of
12 the person that you're --
13 A Sure, size of the person, their ability to resist, yes.
14 Those all come into play.
15 Q Their ability to resist. Would that include
16 disability; for example, a person in a wheelchair, would that --
17 would that be something --
18 A Yes.
19 Q -- you take and consider it?
20 A Yes. Obvious disabilities, if we have that kind of
21 information ahead of time, that should be taken into
22 consideration. Yes.
23 Q How far ahead of time?
24 A I don't know. If you receive it prior to the call. If
25 you have prior knowledge that the suspect or the person that

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1 you're dealing with, that does come into play, yes.
2 Q Did you have prior knowledge of me before you arrived
3 there that day?
4 A I knew who you were. I had seen you before. I don't
5 know that we had had conversation before.
6 Q Are you aware that some people have life-threatening
7 conditions that don't involve the blood and other things you
8 testified you checked for before you took somebody to jail?
9 A Yes, I believe that's true.
10 Q Have you heard of that from central pain syndrome?
11 A As I said before, I don't know what that is.
12 Q You don't know what it is?
13 A I've never -- I've never read about it, I've never been
14 taught about it. I do not know what it is.
15 Q So --
16 A I cannot define it for you.
17 Q So your training doesn't include neurological
18 conditions that people may have?
19 A It does, but not that specific one. We've never talked
20 about that specific one.
21 Q So you are aware of neurological conditions that people
22 have?
23 A Yes.
24 Q Can you explain, briefly, what types of neurological
25 conditions you're aware that people do have?

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1 A Well, there's lots of things.
2 Q Okay. So it's not -- you're not -- we're not taking --
3 A I'm not a doctor.
4 Q I was going to say that.
5 A So --
6 Q Since you're not a doctor --
7 A Cerebral palsy, MS, Crohn's disease, I don't know if
8 that's one.
9 (Advisory counsel/Defendant discussions.)
10 Q When you responded to this call to City Hall, what
11 circumstances were you aware about prior to your arrival?
12 A I had assumed, I think, when the call came out -- I
13 don't know if it had -- if it said in the call, but there had
14 been an incident the day before at City Hall in which you were
15 involved, and I think you were asked to leave and left. So I had
16 some knowledge about that. I did not respond to that call the
17 day before, but I work downtown. I work around the other officer
18 that work downtown. I listen to the radio, I know what's going
19 on downtown. So I was free for this one. They picked me for
20 this one, and -- and I think I even said over the radio that I
21 thought it was going to be you because you had been there the day
22 before, and had been trespassed from City Hall the day before.
23 Q But you didn't respond to City Hall the day before?
24 A I did not, no.
25 Q Okay. I just wanted to clarify that.

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1 A Not on the 24th.
2 Q Okay.
4 Q Yeah. I wanted to -- I wanted to ask questions about
5 the communications because there's audio, radio calls, and 9-1-1
6 dispatch, and those kind of things. And I wanted to ask the
7 question about identifying yourselves as numbers. I heard on the
8 dispatch that number --
9 MR. MCMAHON: Objection, Your Honor. He's testifying
10 to what he heard --
11 MR. STULL: No, no. I --
12 MR. MCMAHON: -- on the dispatch.
13 MR. STULL: Your Honor, I'm trying to get to the
14 question.
15 THE COURT: Yeah, if you just ask him a question.
16 MR. STULL: I'm trying to get to the question.
17 THE COURT: But -- yeah, I know, but ask the question.
18 You put the statement with the question, again.
19 BY MR. STULL:
20 Q The question is, do you use numbers when you call in
21 with dispatch?
22 A Yes.
23 Q Could you tell us what number you use and what that all
24 means, please?
25 A The numbers vary, depending on the district that you

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1 work. I don't remember exactly what district I was working that
2 day. Sometimes it varies. I don't have a set district that I
3 work every day. They move around in downtown Portland, and
4 sometimes down in the southwest. I could have been 821 or 822,
5 because I was coming from 3rd and Burnside, and 822 is the Old
6 Town car and 821 is the Pearl district car. 831 is around Voodoo
7 Doughnuts. The City Hall is in 851 or 850s. So we all have
8 three-digit numbers. All of central precinct has three different
9 -- digit numbers, and the 8 means that you are west of the river.
10 So everything downtown. And so the second digit just refers to
11 the district, and then the last digit refers to what shift you
12 work. So I was a -- it would either be a 1 or 2 because you're a
13 dayshift. The second shift is a 3. The afternoon shifts are 4s
14 and 5s. Nightshifts are 6s and 7s. So it's just how you know.
15 Like when you hear somebody say their number, you know what
16 precinct they are, what district they work, and what shift they
17 are just with that three-digit number.
18 Q Okay. Did -- I have the -- your emergency
19 communications --
20 MR. MCMAHON: Your Honor, I object to improper
21 foundation. The witness hasn't answered a question if he needed
22 to refresh.
23 THE COURT: Yeah. You should not --
25 THE COURT: Yeah. You let him see it --

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1 MR. STULL: I will let him see it.
2 THE COURT: You let the witness identify it. You don't
3 walk up to him identifying it.
4 MR. STULL: Okay. I'm sorry, Your Honor.
6 THE COURT: Okay. Great.
7 BY MR. STULL:
8 Q Sir, this is a Bureau of Emergency Communications --
9 THE COURT: No, no. You don't do that. Just show it
10 to him --
12 THE COURT: -- ask him what it is.
13 MR. STULL: Oh, well, I apologize.
14 THE COURT: Yeah.
15 MR. STULL: Thank you, Your Honor. We'll see if we get
16 the same answer here.
17 BY MR. STULL:
18 Q Officer Engstrom, could you identify that for us,
19 please?
20 A This --
21 Q If you're familiar with it.
22 A This looks like a printout of the call. So this is the
23 BOWIK (phonetic) printout of the call. It talks about the time
24 the call came in, where it was, information in the call, and then
25 all the officers assigned to the call, the call taker, the

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1 dispatcher, everybody is noted here.
2 Q Did you make any of the comments that are identified
3 there, or did you hear them on the radio?
4 A Well, that day I was working 850, so City Hall was my
5 district. That's why I was primary officer. I'm just looking
6 quickly to see -- there's call taker, dispatcher. 850, "Unwanted
7 inside city council holding up the meeting, asking for one more
8 car." That's me.
9 Q What -- pardon me for interrupting.
10 A So the dispatcher types in the computer, when I asked
11 -- when I arrived there -- I can't find the timestamp. Oh, it's
12 9:38 in the morning. 850, so that's me. And then I -- and she's
13 typing just notes of what I just transmitted over the air. So
14 you're putting a physical log in in the call. And it says,
15 "Unwanted inside city council chambers holding up the meeting.
16 Asking for one more car and a supervisor. Barry Stull, and is
17 fired up today." And I did say that. I said it was Barry Stull
18 and he was fired up today.
19 Q If I can make you check the typing there.
20 A Oh, Barry Sull. Oh, typo on her part because I know
21 your last name. It says Barry Sull, without the T.
22 Q How do you know my last name?
23 A Because I know who you are. Having worked downtown
24 precinct for a long time, and all your interactions with City
25 Hall and around City Hall, you're known around central precinct.

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1 Q What type of interactions?
4 MR. MCMAHON: We've been over this.
5 THE COURT: -- that we are going into an area that
6 we've already talked about, we're not going to do. We're not
7 going to explore other interactions or other incidents.
8 MR. STULL: Okay. All right.
9 BY MR. STULL:
10 Q Did -- let me hand this back to you, sir. Right here
11 where it's highlighted, did you call this matter in as a mental
12 health matter?
13 A No. I did not initiate the call. I was just
14 dispatched to the call. I did not code the call. I did not
15 create the call. Dispatch, the call taker, created this call.
16 So someone calls 9-1-1.
17 Q Okay.
18 A They get a call taker. They set the call up. They
19 create the type of call. They put the information in. It goes
20 from the call taker over to the dispatcher, who then calls us.
21 Q Okay.
22 A I didn't create the call.
23 Q All right.
24 A I was just called to the call.
25 Q All right. On the second page there, is that statement

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1 yours?
2 A No, that's from 3806, which is Sergeant Axthelm.
3 Q Your -- do you have the same car -- the squad car,
4 patrol car, whatever they're called under those these days, do
5 you have the same one every day?
6 A No.
7 Q Do you get assigned to them?
8 A No.
9 Q They are assigned to you?
10 A No.
11 Q You're -- explain how you get in a police car so you're
12 allowed to drive that one that day.
13 A You just go down in the basement and you take whatever
14 is available. We whole basement full of police cars, so you just
15 take what's available. It's different car almost every day.
16 Q How do you start them?
17 A They all work on the same key.
18 Q Did the car you chose out of your options that day have
19 recording?
20 A No.
21 Q Do you recall if there was one available for you to get
22 in that day that did have recording?
23 A I do not recall.
24 Q Could have been?
25 A Could have been.

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1 Q Did you --
2 A We --
3 Q Did you personally have any recording devices on you?
4 A No.
5 Q Why not?
6 A Because I don't have one. You asked if I had any
7 recording devices on me, and we don't carry body cams. It's not
8 something that's issued by the Portland Police Department.
9 Q What cars have recording devices in them or don't?
10 A The 2011 Crown Victorias. One generation of cars only
11 at central precinct.
12 Q Have you ever driven that vehicle?
13 A Yes, I have.
14 Q But not that day?
15 A Not that day, because now we have the SUVs and they're
16 much more comfortable. And I take an SUV every day because I'm a
17 bigger guy.
18 Q You testified I said I was going to kill you while I
19 was in that police car?
20 A Yes, you did. Yes, I did. I said that.
21 Q Don't have a recording of that. Any other way you
22 could validate that?
23 A No, it's not --
24 MR. MCMAHON: Objection, Your Honor; it's improper
25 commentary.

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1 MR. STULL: No, it's a question (indiscernible).
2 THE COURT: No, it really is. Just ask him.
3 BY MR. STULL:
4 Q Is there any other way you could validate your claim
5 that I --
7 BY MR. STULL:
8 Q -- threatened to kill you?
9 MR. MCMAHON: He's making claims about vouching. It's
10 wholly improper for him to be asking that.
11 THE COURT: Yeah, he's not here to present the case.
12 So it's not him --
13 MR. STULL: No.
14 THE COURT: -- to present evidence.
15 MR. STULL: No.
16 THE COURT: Please do not ask him about evidence.
17 BY MR. STULL:
18 Q Anybody else in the car besides you and me when you
19 heard that threat?
20 A No.
21 Q Threat made anywhere else?
22 A What was that?
23 Q Was the threat made anywhere else?
24 A Only in the car.
25 Q When we were alone?

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1 A Correct.
2 Q What's Project Respond? I believe you've talked about
3 it today.
4 A We did.
5 Q And they have an interface with the police and persons
6 deemed to be needing what?
7 A Correct. They are -- they are a special unit of
8 Cascadia Mental Health, they are mental health workers, that I
9 explained earlier today. And there's teams of them. They always
10 respond in twos. There's probably anywhere from two to four
11 teams working at any given hour. They always show up in silver
12 Nissan Versas, and when we call for them they come as fast as
13 they can, because they -- they want to help, and we want them
14 there. Because they are better equipped to deal with folks, you
15 know, suffering from mental illness than we are.
16 Q Were you present when I was interviewed or interfaced
17 with Project Respond?
18 A On this day, the ambulance showed up at City Hall, and
19 I took you straight to jail. At the same time we were arriving
20 at jail, or in the front of -- on the third -- excuse me, 2nd
21 Avenue side of the Justice Center, Project Respond was showing
22 up. And at that point I said, I told them, I was the one that
23 talked to them and said, "No, you know, he's gone beyond, you
24 know, mental -- mental health intervention today. He's going to
25 jail and he's booked -- going to be booked on these charges."

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1 So --
2 Q If I --
3 A -- you did not talk to Project Respond that day.
4 Q I didn't; you did?
5 A I did.
6 Q Let me -- if you don't mind, let me clarify some of
7 your testimony today so the jury can have the accurate depiction
8 of the geography. You testified earlier today that -- that the
9 ride from City Hall was three blocks to 3rd Avenue. I believe
10 you misspoke. It's on 2nd Avenue; is that --
11 MR. MCMAHON: Objection, Your Honor. He's testifying.
12 He can ask the witness a question.
13 THE COURT: Yeah, he can -- you can ask the witness.
14 It isn't your time to testify.
16 THE COURT: Okay. Just ask questions.
17 THE WITNESS: We went a half a block to Madison. We
18 turned east on Madison, went two blocks, and then went another
19 half of block to the front of central precinct. So technically,
20 that was three blocks, total.
21 BY MR. STULL:
22 Q No. What street is central precinct on?
23 A It is on 2nd Avenue.
24 Q Right. This morning I believe I heard you say 3rd
25 Avenue.

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1 A Oh.
2 Q That's why I wanted to make sure. According -- if I
3 may, to refresh your memory, your report is here. Did Project
4 Respond meet me at the jail?
5 A Oh, I stand corrected, yes. No, they did not meet you
6 at the jail.
7 Q What does your report say?
8 A My report does say that they came to City Hall. So I
9 misspoke. When I read it, I read it too quickly, I saw the jail
10 part. Now, they were there at City Hall, but we told them that
11 they didn't -- that you didn't need their services today and you
12 were going to jail.
13 Q Had I been placed in the squad car then?
14 A Yes, you had.
15 Q So by the time by Project Respond got on the 1221
16 Southwest 4th Avenue, City Hall, by the time they arrived there,
17 I had already been arrested?
18 A Correct.
19 Q For the things that we've discussed?
20 A Uh-huh.
21 Q And About the time we see you on the video appearing,
22 the ambulance arrived?
23 A I don't know exactly what time the ambulance arrived.
24 Your call would say. You have the call in front of you. It says
25 the time that they arrived.

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1 Q Okay. I'm --
2 (Pause.)
3 A Fire EMS response was dispatched --
4 Q Oh, could you tell us what time it was dispatched from
5 that form?
6 A Well, it says 9:46.
7 Q Okay.
8 A And then a callback; meaning, we asked for them again,
9 at 10:39. So maybe -- and I don't know who asked for them to
10 call back. Oftentimes, that's a supervisor asking, you know,
11 where is fire, but that's according to the call. And fire
12 produces their own call too. They're not all combined police
13 and fire. They'll have their own dispatch call. It gets
14 assigned their own number.
15 Q Do you recall what ambulance company that was that
16 morning?
17 A It's AMR. It's always AMR in the city of Portland.
18 It's the contract ambulance company.
19 (Pause.)
20 Q Why did you grab my arm in council chambers and not
21 let me go?
22 A Well, you stepped up quickly to my face, which caused
23 me to put my glove down on the floor because I didn't have time
24 to put that second glove on, and you still had your bucket in
25 your right hand. So I reached down and grabbed your left hand.

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1 And you can't see it very well in the video, but I took the
2 bucket out of your hand and set it up on the table and then
3 security from the -- from city council took the bucket and sat
4 it further away from you on a chair. But I grabbed your hand
5 because you were so agitated and I didn't want that coming up to
6 hit me. I just grabbed -- I simply laid my hand on the back of
7 your wrist just to kind of restrain it from coming up, but I
8 didn't twist on it. I didn't grab it. I didn't squeeze it hard
9 at all.
10 Q There were a lot of people there that day; meaning,
11 more than two, less than a hundred, if I'm trying to narrow it
12 down. There a bunch of people there. Could you describe what
13 the environment in the hallways and down to the elevator and out
14 to the car, how many people there might have been, we went
15 through? Any idea?
16 A I don't want to guess. Probably, close to 50 maybe,
17 total, between the council chambers, the atrium area, downstairs
18 lobby. Maybe more, I don't know. I wasn't doing a head count.
19 Q Did you escort through those people?
20 A Yes.
21 Q When you escorted through the doorway to the elevator,
22 did you say, "And now we're going to turn left," to the prisoner
23 that you were escorting?
24 A I don't remember giving you specific instructions on
25 which way we were going to turn. It's pretty much a straight

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1 line from the door to the elevator.
2 Q And from the elevator, how do you get out the
3 building?
4 A You had an officer on each arm. I don't think we
5 needed to give you specific instructions on which way to turn.
6 You just simply needed to follow our lead and we were going to
7 guide you out of the building.
8 Q So it's, at that point, body language communication?
9 A Sure. I don't remember. I could have given you
10 instructions. I don't remember giving you instructions. I
11 don't know.
12 Q I'm trying to follow-up on your testimony about how
13 you used pain compliance hold when you're escorting people to
14 get them to follow your commands to go from one place to another
15 as you're being escorted. What were your commands?
16 A I wasn't using pain compliance to escort you out of
17 the building.
18 Q You said there was no evidence of pain. I'm recalling
19 that. I'm asking you what commands to go one direction,
20 another, do not run, do not skip, any commands you can remember
21 at all.
22 A I can't remember exactly any commands, no.
23 Q Did Sergeant Price give commands that you heard?
24 A I don't remember him giving commands. I don't know.
25 Q Between the two of you, how did you coordinate that

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1 you were at least going to the right place?
2 A I think we talked between each other that we're going
3 to go out that door and to the elevator, and down the elevator
4 to the police car.
5 Q Did you express that to me, or Sergeant price; you
6 plural?
7 A I talked -- Sergeant Price and I were talking, yes, on
8 how we were going to get you down.
9 Q And did you tell me how you were going to get me down?
10 A Again, I've testified that I don't remember giving you
11 commands or not.
12 Q So you're saying you might have given me commands?
13 A Possibly, yes.
14 Q Was Sergeant Price your supervisor then?
15 A He's a sergeant. They're all sergeants. They out
16 rank me. I'm an officer. But the sergeant in charge of that
17 scene was Sergeant Axthelm, but he was not with us at that time.
18 He wasn't helping me escort you out of the building.
19 Q Sergeant Price was?
20 A Sergeant Price was.
21 Q And he was on the left and you were -- or he was on
22 the right and my --
23 A I was on your left side, he was on your right side.
24 Q Do you remember me saying that the handcuffs were too
25 tight?

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1 A No.
2 Q Do you remember me saying that the handcuffs were
3 being twisted?
4 A No.
5 Q The damage to your police car, sir, these seatbelt
6 holders up on the top, they're on the roof, right?
7 A Correct.
8 Q And they got broken?
9 A Yes.
10 Q How'd they get broken?
11 A By you kicking them.
12 Q When they were up by the roof?
13 A Yes.
14 Q Was I in handcuffs?
15 A Yes.
16 Q How did my feet get up to the roof?
17 A You laid back on your back along the bench of the
18 seat and kicked your feet up and were kicking the windows, and
19 the bars, and the divider between the front and the back of the
20 police car, and then you found a weak spot of the seatbelt
21 buckles and you continued to kick them until you broke both of
22 them.
23 Q A lot of kicking?
24 A Yes.
25 Q Hard kicking?

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1 A Yes.
2 Q Very hard kicking?
3 A Yes.
4 Q Based on your interaction with me that day, can I kick
5 hard?
6 A Yes.
7 Q When you said earlier a mule kick, did that break your
8 skin?
9 A No, there's no broken skin.
10 Q Bruising on your shin where you were kicked?
11 A Nope.
12 Q When you were in the council chambers, you were under
13 the direction of Sergeant Axthelm?
14 MR. MCMAHON: Your Honor, at this point, I believe
15 it's been asked and answered several times.
16 MR. STULL: It is. I'm --
17 THE COURT: Well, yeah, let's go onto some fresh --
18 MR. STULL: It's a bit leading. I'm trying to --
19 THE COURT: -- well, go on, next question.
20 MR. STULL: Okay.
21 THE COURT: -- fresh questions, please.
22 BY MR. STULL:
23 Q And then you became the person to interact with me.
24 We've established that. And then Sergeant Price and you -- and
25 I'm just making sure, was Sergeant Price -- because you said

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1 he's a sergeant, and there's a sergeant, was -- he was under the
2 overarching authority of Sergeant Axthelm?
3 A Sure, if you want to call it that. Sergeants will
4 take different roles. They do what's needed to be done at
5 calls. It's a big dynamic call and there's multiple supervisory
6 jobs that need to be done. They'll divide up the work and share
7 that work. Sergeant Price was one of the first ones to arrive
8 in council chambers and he asked me quickly, "What do you need
9 from me?" And I said we need to get you out of the courtroom
10 (sic) and into a car. And so then he started helping me escort
11 you out. So at that point, he was just helping me, not
12 necessarily acting as a sergeant.
13 Q If I could get that timeline right. You arrived, then
14 Sergeant Price arrived or he arrived and then you arrived?
15 A I was the first one to arrive.
16 Q You said that.
17 A Sergeant Axthelm was the second to arrive.
18 Q Okay.
19 A Officer Singh was the third to arrive.
20 Q Okay.
21 A And then Sergeant Price, along with a couple others,
22 all arrived at about the same time. I was -- I wasn't watching
23 the door. I didn't see who they were or how and what order they
24 came in. I was holding you on the table that you flopped down
25 on and just waiting for somebody to come help. And then all of

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1 sudden appeared on my side was Sergeant Price and then he helped
2 me escort you out of the room.
3 Q Okay. When you arrived, was it before 9:30?
4 A I don't know the exact time. I'd have to see the
5 call.
6 Q Did we have the dispatch paper? Do you still have it
7 up there?
8 A I don't have it.
9 Q I'm sorry. Thank you. Would this help you, the BOAC?
10 A Uh-huh.
11 Q Okay. And are you finished with this?
12 A Sure.
13 Q It's your report. So 9:38 was right after I arrived
14 to city council chambers because that's when the dispatcher put
15 in my comment about needing another officer and a supervisor.
16 So that was at 9:38. So I probably arrived there -- I'm not
17 seeing dispatch en route, on scene. I got there at 9:34:07.
18 Q 9:34:07. Outside the building or inside the building?
19 A That's when I'm probably a block away hitting on-scene
20 on my computer.
21 Q Okay. Did you -- did you try to do a take-down with
22 Officer Singh?
23 A No, not with Officer Singh. No.
24 Q Did you try to do a take-down?
25 A I briefly, fleetingly thought about doing a take-down

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1 after you punched me, but realized the table was there and chose
2 not to do it. I thought about it, but I did not attempt it,
3 which is a form of de-escalation.
4 Q Did you --
5 A I chose not to --
6 Q Did you --
7 A -- I chose not to use a higher level of control.
8 Taking you down to the ground could have hurt you, could have
9 hurt me. The table was in the way, a big solid wood table. I
10 chose not to do that.
11 Q So going around that table, when you then on the -- I
12 believe the left side --
13 A I was on your left side. It was after -- we went
14 around that table is when Officer Singh joined in to grab your
15 arm.
16 Q And so the people whose body weight I was supporting,
17 that wasn't the take-down?
18 A That's not a take-down. We were just using that desk
19 as leverage to keep you still --
20 Q No, before --
21 A -- when we handcuffed you.
22 Q -- that. Before that.
23 A I'm confused.
24 Q Prior to the desk -- if you're referring to where the
25 council person -- the people on city council sit --

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1 A That's --
2 Q -- it's in the gallery.
3 A Correct.
4 Q And there's -- in the video, we can see that there's a
5 point where I'm bent over there, but I'm saying before that,
6 just seconds before that.
7 A The seconds before that was when I kind of wrapped you
8 up in that modified bear hug, but that's not a take-down.
9 Q What was that?
10 A I was just attempting to control you, keep you from
11 hitting me some more. I was just stopping the aggression and
12 trying to get you restrained. And I thought about going down to
13 the ground. There was no room to do it, so then I pushed you
14 over toward the council chambers -- the desk, the councilmen's
15 desk, and that's when Officer Singh joined in, as we were moving
16 toward that desk.
17 Q At what point, it appears that your weight is coming
18 down on me there? Did you apply weight with that there?
19 A Probably, yeah.
20 Q How much do you weigh?
21 A 240 pounds.
22 Q And Officer Singh was there too?
23 A Uh-huh.
24 Q How much of your weight between yourself and Officer
25 Singh do you think I was supporting?

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1 A I'm not sure what Officer Singh was doing, but I did
2 not have all of my weight on you. I had enough to keep you
3 pinned against the desk.
4 Q I mean, prior to that.
5 A Prior?
6 Q Right, before I got pinned to the desk?
7 A Then you weren't supporting our weight. You were on
8 your feet.
9 Q Did I appear strong to you that day?
10 A You fought pretty hard that day, yes.
11 Q Oh, I didn't say -- the question was, did I -- not
12 whether I fought. The question was, did I appear to be strong
13 that day?
14 A Yes.
15 Q How strong?
16 A I don't know how you want me to answer that question.
17 Q It's your question to answer is all I'm saying. How
18 strong do you think --
19 A Strong enough to resist three police officers that
20 were trying to handcuff you.
21 Q If we can get on one agreeance -- and excuse me for
22 asked and answered. When three police officers try to
23 physically control me, I was strong enough to resist that,
24 right?
25 A Yes.

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1 Q Have you ever interacted with a person with a surge of
2 adrenaline resulting in strength?
3 A Yes.
4 Q Extraordinarily strong person --
5 A Yes.
6 Q -- in a situation?
7 A Uh-huh.
8 Q Could you give us an example of that?
9 MR. MCMAHON: Your Honor --
10 BY MR. STULL:
11 Q I mean, not specifically, but how you knew.
12 MR. MCMAHON: I object to relevance. It's a prior
13 unrelated act. It has no bearing on the present case.
14 THE COURT: I -- we are -- we're kind of -- we're near
15 the afternoon -- probably passed the time for the afternoon
16 break.
17 MR. STULL: Sure.
18 THE COURT: Let's take the afternoon break at this
19 time. We might discuss it outside of the jury --
20 MR. STULL: Sure.
21 THE COURT: -- since the jury --
23 THE COURT: We have -- we have some issues about
24 pacing because we do have a juror who has an appointment on
25 Monday morning and I was assured, when we were selecting the

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1 jury, that we were going to get this done in maybe three or four
2 days and we're not going very fast. So that's -- that's
3 something that's a concern that I hope that you folks will all
4 share in terms of use of time.
5 Now, so far as -- I really don't want to limit
6 anything unnecessarily, but I really don't understand the
7 relevance of how he understands whether or not someone is having
8 a burst of adrenaline. I just don't understand why we're going
9 here.
10 MR. STULL: Well, I could tell you, Your Honor.
12 MR. STULL: We're maybe a little bit ahead of
13 ourselves for you to understand it, so I share in where you be.
14 THE COURT: Well, it's got to be cross-examination, so
15 it's got to relate to direct.
16 MR. STULL: Well, it is, Your Honor.
17 THE COURT: And why is this coming out?
18 MR. STULL: Your Honor, my particular manifestation of
19 central pain syndrome is worsened by adrenaline. And we propose
20 to offer and offer of proof that my medical condition, according
21 to Dr. Grimm, and we'll have to address that, but it
22 specifically talks about the impact of adrenaline specifically
23 on my central nervous -- central pain syndrome and how that
24 actually -- the word I'm going to use today is reverberates it.
25 It feeds that. It escalates. The adrenaline itself causes

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1 problems that makes more adrenaline, and more adrenaline, and
2 more adrenaline. And what I wanted to know from this witness
3 was, if he had experience with folks that were enduring that
4 adrenaline surge, we call fight or flight, and the people --
5 THE COURT: Well, I know --
6 MR. STULL: -- would become extraordinarily strong.
7 THE COURT: Okay. I know what adrenaline is.
8 MR. STULL: Right.
9 THE COURT: And the question is, however, whether his
10 experience with other people who have an -- who are presumably
11 experiencing adrenaline has anything to do with the issues in
12 this case.
13 MR. STULL: It does exactly, Your Honor, because --
14 THE COURT: Why?
15 MR. STULL: -- it has to do with --
16 THE COURT: Why does his experience with the
17 adrenaline of other people have to do --
18 MR. STULL: Oh, just the ability to identify it,
19 that's all. I just wanted to know how he knew -- I mean, we
20 could even -- Your Honor, if we can even talk about what
21 adrenaline does to people, then --
22 THE COURT: We're not going to talk about it.
23 MR. STULL: No, I mean --
24 THE COURT: No, no, we're not. We're not.
25 MR. STULL: No, no, I --

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1 THE COURT: That's not what we're going to do right
2 now.
3 MR. STULL: I know, Your Honor. Please let me make
4 this statement so you're not -- I'm on your -- in agreeance with
5 you, so I don't want to -- I don't want to have to go through
6 this if we're both saying the same thing and we're both in
7 agreeance. My understanding is -- and we'll use this gentleman
8 as an example. He doesn't know what central pain syndrome is.
9 Okay. The fact that other people might or might not is
10 something that has to be understood because I'm well-informed to
11 what it is because it's important to me; however, as we just
12 discussed and I've obviously -- you and I have this vocabulary
13 that includes adrenaline and so we kind of know that there is --
14 and we're talking about it. So if somebody says someone is an
15 adrenaline junkie, and they go, oh, what do they do? They
16 bungee cord off a bridge. They go, oh, that's because they're
17 an adrenaline junkie and we kind of know that in society.
18 THE COURT: I'm not going to allow you to use this
19 witness as an expert witness as to whether or not you were
20 experiencing an adrenaline surge, which does not appear to be
21 cross-examination at all about the subject matter of the direct.
23 THE COURT: I would allow you to ask him whether, in
24 his view or his observation, anything while he was arresting you
25 was adrenaline surge, but I am not going to allow you to go --

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1 MR. STULL: That's all --
2 THE COURT: -- into how he identifies it, whether he
3 can identify it --
4 MR. STULL: No, no, no, I just --
5 THE COURT: -- and any of that sort. If he doesn't
6 know whether you were -- you had a particular chemical reaction
7 going on in your body, that's the end of it.
8 MR. STULL: No, I understand that, Your Honor, but
9 the --
10 THE COURT: So cross-examination is cross-examination.
11 You just test -- you go over the subject matter of the direct --
12 MR. STULL: right.
13 THE COURT: -- and any impeachment, fine. But you're
14 not going to turn him into an expert witness about medical
15 issues.
16 MR. STULL: No, I just --
17 THE COURT: And you're not going to talk about his
18 other experiences that don't have bearing on anything but your
19 case.
20 MR. STULL: I didn't intend to.
21 THE COURT: Okay.
22 MR. STULL: I just wanted to raise the point that on
23 this particular episode, as he just moments ago testified, I was
24 strong enough to resist three police officers and that's
25 important to my defense. And you'll learn about that later, but

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1 it's not about what resistance or any of that. It's just the
2 amount of strength that was exhibited.
3 THE COURT: There was an objection to a particular
4 question. The question was, how do you identify adrenaline
5 surges.
6 MR. STULL: Yeah.
7 THE COURT: I am sustaining the objection.
8 MR. STULL: Sure.
9 THE COURT: That question won't be answered.
10 MR. STULL: Right. That --
11 THE COURT: Okay.
12 MR. STULL: I just -- I just wanted to make sure that
13 people know that when we're talking about an -- we say have
14 adrenaline surges, that must mean somebody who is somebody --
15 something to somebody and I just wanted to know you know that,
16 that's all. And if this --
17 THE COURT: Yeah, but you're not going to ask that
18 question.
19 MR. STULL: If it's like --
20 THE COURT: Not of this witness.
21 MR. STULL: If it's obvious or we can move on, that's
22 fine because the point I wanted to raise --
23 THE COURT: No, we are going to move on.
24 MR. STULL: -- is this gentleman did say --
25 THE COURT: No if about it. We are going to move on.

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1 MR. STULL: I said this gentleman did express that, at
2 that moment, I was strong enough to -- even if we say resist --
3 THE COURT: That's right, that was his testimony.
4 MR. STULL: -- three police officers and that's all I
5 wanted to make sure that that was basically the end of the line
6 of questioning --
7 THE COURT: Okay.
8 MR. STULL: -- on that point. Did you want to --
9 THE COURT: We're going to take a break.
10 MR. STULL: -- take a break? Okay.
11 THE COURT: We're off the record.
14 THE COURT: Okay.
15 (Recess is taken from 3:46 p.m. until 4:00 p.m.)
17 MR. MCMAHON: Yes, Your Honor. And the State just has
18 one quick matter. The State has one quick matter. Since Mr.
19 Stull has opened the door, I just ask that the jury be
20 instructed that they can consider evidence regarding the
21 bruising to the upper arm and any officer testimony --
22 THE COURT: Well, you can put it on redirect.
23 MR. MCMAHON: Okay. Is there any way the Court can
24 give --
25 THE COURT: I don't -- I'm not going to -- I didn't

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1 tell them not to consider anything about bruising. I just said
2 to disregard the testimony.
4 THE COURT: So you can go ahead and put it on his
5 redirect.
7 THE CLERK: Is everybody ready?
8 MR. MCMAHON: Yes.
10 THE COURT: Very well. Proceed.
12 BY MR. STULL:
13 Q One last question. To arrest someone for assault of
14 any kind, you have to have probable cause that the victim was
15 injured, right?
16 MR. MCMAHON: Objection, Your Honor. That's a legal
17 question.
18 THE COURT: I'll let him answer that.
19 MR. STULL: I'm sorry, Your Honor?
20 THE COURT: I'm letting him answer.
21 MR. STULL: Okay.
22 THE WITNESS: Yes.
24 THE COURT: Very well. Cross (sic)

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1 BY MR. MCMAHON:
2 Q Now, Officer Engstrom, I'm going to go ahead and show
3 you what's been marked as State's Exhibit 14. What is the
4 depicted in State's Exhibit 14?
5 A So that's my upper arm, bicep area. That's a bruise.
6 It's kind of a greenish color right there.
7 Q And is that the injury you sustained during the arrest
8 of Mr. Stull?
9 A Yes.
10 Q When did you actually first notice that bruise?
11 A So I had gone on my weekend and didn't notice until
12 over my weekend. So I didn't photograph it until my next work
13 day, had someone else actually photograph it and then we
14 submitted it to evidence and then I wrote a quick little special
15 report documenting the fact that I had noticed the bruise. I
16 just didn't notice anything the day of. I was wearing a
17 lightweight jacket that we wear, and I had my vest on, and just
18 didn't notice it until a couple days later.
19 Q Okay. And so you say you actually noticed the bruises
20 the day before that picture was taken?
21 A Yeah, probably two or three. I don't know exactly how
22 many. I know that picture was taken exactly one week after the
23 injury.
24 Q Okay. Had it faded in the picture?
25 A Yes, it is faded.

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1 Q Were you aware of that injury on the day of the
2 arrest?
3 A Yeah, I remember getting struck. I just -- you know,
4 while everything was happening, I didn't think to check my arm,
5 you know, and take my coat and vest off to see it, so --
6 Q Okay. And why did you check the not injured
7 (indiscernible) on --
8 A You know, because he kicked me back in the shins, and
9 I felt pain in my shins, but I didn't require medical help. I
10 didn't see any visible marks on my shins, so at that point, I
11 checked the no injury box on that form.
12 Q Okay. And it wasn't until a couple of days later that
13 you realized you had one?
14 A Correct.
15 Q And the next thing I want to talk about was the pain
16 compliance I believe Mr. Stull sort of asked you about, the
17 transporting him from the City Hall down to the car, correct?
18 A Correct.
19 Q At any point, did you use any compliance technique on
20 him during that transport?
21 A So while we were escorting him, an escort hold is
22 simply like with my outside hand up on his tricep, and the
23 inside hand holding his hand up in a reverse wrist lock. So
24 it's in that position where you can apply pressure if you need
25 to, but not necessarily. You only do it when you need it. When

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1 he kicked at me that first time in the council chambers as we're
2 headed to toward the door, yes, I applied it and said stop
3 kicking me and then released it. Then we walked further toward
4 the elevator. Got to the elevator. He kicked me again. I
5 applied it again, stop kicking me, and then released it. But I
6 did not hold it the entire time, escorting him from the council
7 chambers out to the police car.
8 Q Okay. And in your opinion, was he trying to kick you
9 to get away from you?
10 A I don't know that he was necessarily trying to kick me
11 to get away from me. He was trying to kick me to hurt me.
12 Q Was it your opinion, based on his struggling that he
13 was showing against the three of you, was he trying to get out
14 of your custody?
15 A That, I believe he was trying to get out of our grasp.
16 He did not want to be handcuffed.
17 Q Thank you.
21 MR. STULL: Your Honor, I would like to recross.
22 THE COURT: No.
23 MR. MCMAHON: Oh. And the State would ask that
24 Exhibit 14 be -- or is -- yeah, 14 be admitted into evidence and
25 published to the jury.

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1 THE COURT: Any objection?
2 MR. STULL: I would object.
3 MR. MCMAHON: You would object to the admission of --
4 MR. STULL: Yes.
5 THE COURT: It will be received.
7 State's Exhibit 14 was admitted
8 into evidence.)
9 THE COURT: And you can hand it to Mr. Gibson, and
10 he'll --
11 MR. MCMAHON: And the State will now be calling
12 Officer -- or excuse me -- Sergeant Roger Axthelm to the stand.
14 THE CLERK: Do you solemnly swear under the penalty of
15 perjury that the testimony you're about to give will be the
16 truth, the whole truth, and nothing but the truth?
17 SGT. AXTHELM: I do.
18 THE CLERK: Have a seat. State your first name, last
19 name, and spell your name for the record please.
20 THE WITNESS: Sure. My name is Roger Axthelm, R-o-g-
21 e-r. Last name is A-x-t-h-e-l-m, as in Mary.
22 WHEREUPON,
23 ROGER AXTHELM,

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2 BY MR. MCMAHON:
3 Q Good afternoon, Officer Axthelm.
4 A Good afternoon.
5 Q What is your current occupation?
6 A Sergeant, Portland Police Bureau.
7 Q How long you been with the Portland police?
8 A Twenty-two years.
9 Q How long have you been a sergeant with the Portland
10 police?
11 A Eleven or 12 I think.
12 Q I'm sorry, you said --
13 A Eleven or 12 I think.
14 Q And what are your trainings to be a police officer?
15 A We have annual training, in-service, which is ongoing
16 type training, also videos that come out, state academy, our
17 advanced academy, which takes place here.
18 Q And what were your qualifications to become sergeant?
19 A Experience on the street, leadership capabilities, the
20 training that you go through. And then you also have advanced
21 training as a sergeant, both administrative and supervisory.
22 Q And what are your roles as a sergeant with the
23 Portland Police Department?
24 A It's to supervise your line officers that work the
25 street, respond to calls, needs for service, for direction, and

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1 also clarity in certain situations. And then also the way we
2 are now, sergeants also respond just to calls. Sometimes we're
3 backup and cover officer.
4 Q Now, were you asked to assist Officer Engstrom on
5 November 25th, 2015?
6 A Yes. He had responded to a call at City Hall, and then
7 he requested a sergeant respond.
8 Q During your response, did you sort of determine what
9 was going on?
10 A While en route and when I got to the City Hall, I was
11 briefed by him and also security.
12 Q Did you make any statements over the Bureau of
13 Emergency Calls regarding whether you believed Mr. Stull was on
14 or off medication?
15 A I don't remember anything on or off medication. I do
16 remember request Project Respond.
17 Q Okay. Would it refresh your recollection to review a
18 report regarding those comments?
19 A Sure, yeah, if you got a transcript. This shows my
20 dispatch. And then you're looking up above. Okay. The initial
21 was basically stated for Barry -- it says Sull, S-u-l-l -- off
22 his meds. Have Project Respond come to location. And that was
23 me for 3806, which is my callsign.
24 Q Okay. And I guess based on -- one second. Did you
25 make that as you were responding or after you responded?

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1 A That was after I got there, because I had heard the
2 name Barry Stull, but I didn't know him, but probably briefed by
3 somebody there based -- had some knowledge of him previously.
4 Q Okay. Did you have any actual knowledge of whether or
5 not he actually had to take medication?
6 A I didn't. It was -- that would have come from
7 somebody on scene.
8 Q Okay. And, I guess, why would you say something like
9 that, just generally?
10 A Based on, again, what I had from what somebody told me
11 at that point. And so that way, if we were calling the
12 ambulance, which we did at this time for medical, and also
13 Project Respond, they would have knowledge base.
14 Q So it wasn't based on your personal knowledge that he
15 had medication and was taking (indiscernible)?
16 A Again, this is the first time I think I've actually
17 had direct contact with Mr. Stull.
18 Q So why were you called to that scene?
19 A It was taking place in city council chambers. They
20 had a person who was asked to leave, wasn't, was trespassing.
21 Mental health cases, usually a supervisor responds to that.
22 Also, more officers, recovery type officers.
23 Q And you mentioned Project Respond.
24 A Uh-huh.
25 Q You contacted Project Respond to have them respond?

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1 A Yeah. I believe I notified them by -- notified BOEC,
2 our dispatcher, by radio that I wanted them to respond.
3 Q And just generally, why would you want Project Respond
4 to that incident?
5 A They're trained social workers who are trained in
6 crisis response, also mental health issues more than officers
7 are. They also have a database of numerous people throughout
8 the community who get services from them. So they can look in
9 their databases. Some of them have, you know, direct contact
10 with these people and their -- and have a little bit better
11 working relationship with them than possibly an officer who's
12 dressed as I was and am today.
13 Q Okay. And I guess that was the next question I'd ask.
14 Like are you wearing the same uniform that you've got on today?
15 A Yes.
16 Q Where did you go once you arrived at City Hall?
17 A I went up to chambers, which is on the second floor.
18 I think I talked with security on the lower floor where you
19 first come in. I parked on what would be 3rd and got a little
20 brief from security down there, and then walked -- or took the
21 elevator to the next floor to chambers and met up with Officer
22 Engstrom outside the City Council chambers.
23 Q And what did you do after you met up with Officer
24 Engstrom?
25 A He briefed me on what he had. He also briefed me that

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1 he knew that -- knew Mr. Stull and had contact with him
2 previously. One of the security people there also let me know
3 -- you know, I kind of asked what do you want to do with him,
4 you know, what's your wishes as the property owner, basically.
5 And they said we just want him to leave. They didn't want him
6 trespassed. They had probable cause for trespass based on some
7 other issues. But they said we just really want him to leave.
8 Q What did you do after you sort of learned that the
9 City Hall security (indiscernible)?
10 A Well, again, city council chambers had been in
11 session. So there's still people inside. I'll call it the
12 rotunda of chambers. It's a two-story facility there. I don't
13 know -- have they seen the video?
14 Q Yes.
15 A Okay. So they have kind of a diagram of the layout.
16 I came in on the south side and just kind of worked my way where
17 I could watch Mr. Stull and be not seen at that point, to --
18 just to see what he was doing, to get a lay of what was going on
19 in there to begin with. And that's where Officer Engstrom and I
20 were for a little bit, just watching and seeing what was going
21 on.
22 Q All right. Did you (indiscernible) asking for
23 ambulance?
24 A Yes.
25 Q Did you have an ambulance respond?

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1 A Yes, I called for one.
2 Q Okay. So let me go ahead and play a short little
3 video.
4 (Whereupon, audio/video recording, State's Exhibit 1,
5 played in open court to the best of the transcriber's ability as
6 follows:)
7 MR. STULL: Who do we know was down here at Waterfront
8 Park in 1995 and seen the Hempfest? Oh, Portland Hempfest in
9 1995. Oh, that would be me. Whose case reversed --
11 BY MR. MCMAHON:
12 Q Sergeant Axthelm, I'm going to -- sorry.
13 A It's all right.
14 Q So at this point in the video, can you kind of just
15 they generally identify where you're standing?
16 A Sure. Let me get the bearing here. That's me right
17 here.
18 Q Okay. And can you see okay?
19 A Yes. And that's me right here to the south side, and
20 then it comes like this and it comes (indiscernible).
21 Q All right. Can you see the video portion up there?
22 A Yeah. I'm fine. Yeah.
24 MR. STULL: -- former Republic Attorney General?
25 Uh, that would be me. What was his name? Lee Johnson.

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1 Oh, what was his history as an attorney general? Well,
2 they couldn't seat him. And you couldn't seat them. Come
3 on, guys, get me out of here. Call the ambulance. You
4 guys were told to get me an ambulance.
9 BY MR. MCMAHON:
10 Q So, at that point, were you going to take Mr. Stull in
11 custody?
12 A No.
13 Q What were you trying to get him to do?
14 A Our hope was just to go -- have him leave chambers.,
15 escort him out, walk him out, get him out there. We had an
16 ambulance coming, and we had Project Respond coming.
21 O'Dea?
24 BY MR. MCMAHON:
25 Q All right. At that point, it looked like you were

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1 speaking into something. Do you recall what you were doing or
2 saying?
3 A Yeah. My microphone is right here where it is today.
4 So just talking into that probably, giving directions. I think
5 I was calling for a couple other officers to come to the
6 building too.
13 drummer."
17 MR. COEHN: Yes.
21 MR. COHEN: Okay.
24 the public --

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4 MR. STULL: Hey.
9 record.
12 Mr. Stull.
16 BY MR. MCMAHON:
17 Q All right. So at this point, you look like you'd been
18 speaking a little with Mr. Stull, correct?
19 A Yeah. We'd had a little discourse back and forth, I
20 mean, with the ambulance. And then I stepped out from where I
21 was. The main reason was there was still people that were
22 lingering. And then he went back for that bucket and stuff. I
23 didn't know what was in the bucket. People were leaving either.
24 So it became a little bit of a security issue to us too on what
25 we had. And so, I stepped out basically to, hopefully, distract

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1 him to have him back to me, so people would leave.
2 Commissioner Fritz was in there. She had spoken with
3 him too, and has known him from previous -- and she had
4 basically ordered the Council chambers clear. And their
5 security guard, Mr. Cohen, who you had in here previously, was
6 announcing for people to leave, and that wasn't happening. So
7 my issue with stepping out was to basically draw attention to me
8 at that point and divert his attention back to me at that point.
9 Q At this point, were you still hoping to get him
10 outside and that the ambulance would now be --
11 A Our hope the whole time was to do that. Yeah.
13 MR. DAVIS: No.
21 MR. STULL: No.
23 MR. STULL: Hey, --
25 BY MR. MCMAHON:

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1 Q Now, at this point, it looks like you're sort of
2 disengaging from Mr. Stull. What were you going to do at this
3 point?
4 A Yeah. Another officer, Officer Singh, had come to --
5 the person filming Mr. Davis is an acquaintance of Mr. Stull and
6 was filming it. And my hope, at this point, was possibly if Mr.
7 Davis could leave, that that would get his audience to leave
8 too, i.e. one, the camera; and secondly, the other people who
9 were there.
10 Mr. Davis had been told a number of times by security,
11 who controls the chambers, to leave, that he was trespassed,
12 that he needed to leave. Mr. Davis refused. So once I had
13 officers in there, I directed officers to place Mr. Davis in
14 handcuffs for trespassing.
16 MR. DAVIS: I'm here to film this. You're not going
17 to --
19 MR. STULL: Where is my ambulance?
20 UNIDENTIFIED SPEAKER: He needs the --
22 BY MR. MCMAHON:
23 Q Now, at this point, you're sort off screen. Do you
24 remember where you were at that point?
25 A I'm right over here, because we're -- Mr. Davis

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1 obviously is filming right here. So we're moving in to take Mr.
2 Davis into custody.
7 MR. DAVIS: No.
8 UNIDENTIFIED SPEAKER: You are not dragging the -- I
9 -- oh, you're fucking lying. You guys are out of control.
12 BY MR. MCMAHON:
13 Q So after that, Mr. Stull struck Officer Engstrom and
14 we see you talking into your mic at that point. What are you
15 doing?
16 A I caught out of my eye -- I thought Singh was coming
17 with me. But I visually saw him peel off, which, at that point,
18 I knew there was something else going on, because it was
19 different than the plan we had. So I was calling for more
20 officers to come to the situation.
21 Q Now, you're talking about the plan you had. What
22 was --
23 A Basically, to arrest Mr. Davis for trespass, get them
24 out of the chambers area, and then hopefully everybody house.

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1 Then we could have spent time with Mr. Stull.
2 Q All right. And I guess were you the person that sort
3 of (indiscernible) and acting sergeant at that point?
4 A Yes. Yes.
5 Q All right. So I'm actually going to go ahead and show
6 you a video from a little different perspective.
7 MR. MCMAHON: This next video is what's been marked as
8 State's Exhibit 2 for the record.
10 2, played in open court while questioning continuing.)
11 BY MR. MCMAHON:
12 Q And if you go ahead and when you think you see
13 yourself step into the frame, go ahead and --
14 A Okay. That was -- I'm still watching from the back,
15 south side. That's Mr. Davis.
16 Q When you say that's Mr. Davis, can you identify what
17 he's wearing?
18 A All black with a black backpack and holding a camera.
19 Q Okay. Is that sort of the person who's shooting that
20 other video?
21 A Right. Right.
22 Q And is that you sort of right now at the bottom of the
23 screen?
24 A Yeah. That's when I stepped out there.
25 Q Okay. All right. Now at that point, it looks like

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1 you placed your hand on Mr. Stull. Why did you do that?
2 A Yeah. I told him to stop. He basically kept coming
3 toward me. So I basically pushed him and told him to give me an
4 arm's length distance from him.
5 Q And I guess why do you want to create a little bit of
6 distance between yourself and Mr. Stull?
7 A Just for my safety and for his safety.
8 Q And what are you doing at this point in the video?
9 A Okay. They have a wrist lock on his right side. And
10 they're trying to get him handcuffed, and he's still fighting.
11 So what I did, I radioed to get more people to come up. But
12 then I went and grabbed onto his left arm, to hold his left arm,
13 so we place him into custody, and that's when Officer Engstrom
14 is placing handcuffs on him.
15 He's tightening up. We didn't want to take him down
16 to the ground. We would prefer to handcuff somebody stranding
17 up, you know, if we can, and for safety, obviously. This is a
18 very tight space in here with very hard sharp objects around
19 here, too. So it's safer to keep him standing up if we could.
20 And this is Mr. Davis over here that was taken to the ground by
21 security.
22 Once we started handcuffing him, he mentioned
23 something about he had tight shoulders. I could tell that he
24 was pretty tight shouldered. And so, I directed the officer to
25 make sure that he used two sets of handcuffs connected together.

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1 Gives you more room. For people who are tight shouldered or big
2 in the shoulders, just for a comfort factors that
3 (indiscernible).
4 Q Okay. Now at this point, you had actually moved away
5 from Mr. Stull. Why did you do that?
6 A Right. Stull was here. There was still kind of a
7 struggle going on with Mr. Davis. And I was watching that the
8 whole time we were over here. So we knew we had Mr. Davis. We
9 could take him for trespass II. He was struggling a little bit
10 with security. So I -- with Officer Singh, I said let's place
11 him into custody too. So we had to roll him. He was still
12 filming on his back. We took his camera and placed it I think
13 up on the table. And then we rolled him over and placed him in
14 handcuffs.
15 Q Now, when, I guess -- when you were assisting Officer
16 Engstrom in taking Mr. Stull into custody, what level of
17 resistance were you getting when you were trying to put gloves
18 on?
19 A I mean, he was tightening up, you know, his arms and
20 fighting back. I mean as far as throwing punches or anything,
21 we were containing that. But, so just basically, you know,
22 tightened up and verbal.
23 Q All right. Do you remember him trying to get away
24 from you and the other officers?
25 A I think if he could have, you know -- he probably

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1 would have if he could have, but that's why we boxed him in.
2 Q Now I'm going to go ahead and play another video for
3 you.
4 MR. MCMAHON: This is a video that's been marked as
5 State's Exhibit -- I'm sorry. Just for the record, State's
6 Exhibit 2.
7 (State's Exhibit 2 continued to play.)
8 MR. STULL: -- ceremony, what happened there? I
9 wasn't even going to go on the street musicians. You
10 wouldn't know that because I'm here to talk --
12 BY MR. MCMAHON:
13 Q Pardon me. I'm actually going to play you the audio
14 recording.
15 MR. MCMAHON: And this is the one that's -- what has
16 been marked as State's Exhibit 4.
18 4, was played in open court to the best of the transcriber's
19 ability as follows.)
20 MR. STULL: -- public phone, and you're saying that's
21 my friend Barry Joe to her customers. They're all customers.
22 You know what my job is? My job is to be the way that I get my
23 housing by suing Marc Jolin. Marc Jolin got appointed by
24 Deborah Kafoury to head up a home for everyone, including a home
25 for every veteran.

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2 BY MR. MCMAHON:
3 Q So just based on that initial clip, do you recognize
4 that audio?
5 A No. I don't recognize it.
6 Q I'll play a little bit more.
8 MR. STULL: So if you folks would like to call my
9 veteran friend, who was inside as an Embassy guard when
10 they lost the war. He got shot seven times.
14 there at 17 feet.

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4 would be me. What was his name? Lee Johnson. Oh, what
5 was his history as an attorney general? Well, they
6 couldn't seat him. They couldn't seat --
8 BY MR. MCMAHON:
9 Q Do you recognize the recording at this point in time?
10 A Yeah. I mean it's the same discussion he was having
11 earlier on film that was filmed by Mr. Davis. I heard Mr.
12 Davis' voice in there. Also heard my callsign and part of my
13 radio chatter going on in there.
14 It's -- the chambers -- I don't remember verbatim what
15 he was saying, because the chambers actually is really big and
16 open. Where I was standing, he was basically directing a lot of
17 his discussion out to the -- it would be to the east there,
18 which is away from me. So it's hard for me to hear a lot of
19 what he was saying.
20 Q I'm going to go ahead and play a little bit more.
21 A Okay.
23 MR. STULL: Come on, guys, get me out of here.
24 Call the ambulance. You guys were told to get me an
25 ambulance.

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7 O'Dea?
11 THE WITNESS: -- his discussion to some degree.
12 BY MR. MCMAHON:
13 Q And I'm sorry. You were describing what you were
14 doing at this point.
15 A Yeah. I was still -- from that point, I was still
16 back by the pillar and coming around to his -- that's where we
17 started more to have some dialogue back and forth.
19 MR.
20 STULL: Oh, wait. Oh, there's Thomas' guitar. I've never been -
21 - oh, wait. I got this from my friend, Thomas.
24 drummer."

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1 THE WITNESS: That was his bucket. I'd asked -- I
2 think I'd seen this, but what's in the bucket, you know. And he
3 basically gave me that response.
5 MR.
6 COHEN: Mr. Davis, we're clearing the chambers, so you need to
7 go. You can -- you're more than -- you need to go.
9 MR. COEHN: Yes.
13 MR. COHEN: Okay.
16 the public --
21 MR. STULL: Hey.

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1 record.
4 Mr. Stull.
6 BY MR. MCMAHON:
7 Q The voice saying sit down to Mr. Stull, was that you?
8 A That was me. Yeah. Yeah. I think what you got there
9 is the vocalization of right when I -- he was coming at me and I
10 put my -- told him to stop, sit down, and he kept coming.
11 That's when I put my palm of my hand in his chest and kind of
12 pushed him back. I said sit down. And then the other voice you
13 hear is Mr. Davis still, who was kind of still going, trying to
14 and things up and keep them going.
18 MR. DAVIS: No.

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1 MR. STULL: No.
8 SGT. AXTHELM: You're being excluded, sir.
11 BY MR. MCMAHON:
12 Q And I'm sorry. You're saying what happens right --
13 A Yeah.
14 Q -- at that point?
15 A He was instructed to leave. Davis was instructed to
16 leave. He refused, said he wasn't going. And again, I believe
17 right in that same one, Mr. Stull was saying hey, just leave,
18 you know. You need to leave too. He wouldn't. He said he
19 wasn't going.
21

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6 BY MR. MCMAHON:
7 Q At this point, was the ambulance waiting outside?
8 A I had ordered one. Whether they were outside right
9 now, I -- you know, at that point, I couldn't tell you. But I
10 had called one up and told them to stand by, basically.
11 Q Okay. And you told Mr. Stull?
12 A I told him I had ordered -- yeah. There's one coming.
13 There's one going to be here, you know. There's one outside.
16 MR. DAVIS: No.
23 SGT. AXTHELM: Now you're done.
24 MR. DAVIS: Get the fuck -- fuck you, you fucking --

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1 BY MR. MCMAHON:
2 Q All right. At this point, can you sort of like --
3 what's happening? Do you know who's saying that
4 (indiscernible)?
5 A I believe that's Mr. Stull's voice.
7 MR. DAVIS: -- touch this camera --
9 THE WITNESS: That's Mr. Davis.
11 BY MR. MCMAHON:
12 Q So just to clarify, the comment on the camera is?
13 A Mr. Davis. Yes.
15 MR. DAVIS: You're not allowed to do that type of
16 shit, you fucking asshole.
17 UNIDENTIFIED SPEAKER: (indiscernible)
19 BY MR. MCMAHON:
20 Q All right. That last statement, do you know if that
21 was Mr. Davis or Mr. Stull?
22 A I couldn't hear that one.
24 MR. DAVIS: You're not allowed to do that. Hey.
25 UNIDENTIFIED SPEAKER: Here's really out of line.

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1 MR. DAVIS: Hey.
2 UNIDENTIFIED SPEAKER: (indiscernible) Really?
3 (indiscernible)
4 MR. DAVIS: Hey.
5 UNIDENTIFIED SPEAKER: I have every right to express
6 my opinion on (indiscernible) right now. That's totally
7 uncalled for and improper behavior (indiscernible) on a security
8 guard.
9 MR. DAVIS: Bullshit. You fucking -- you assaulted
10 me, you fucking (indiscernible) Nazi prick.
11 UNIDENTIFIED SPEAKER: Fuck you, you piece of fucking
12 shit.
15 BY MR. MCMAHON:
16 Q Okay. So there were sort of two statements. And if
17 you'll excuse my language. But there's a reference to
18 (indiscernible). Was that Mr. Davis or Mr. Stull?
19 A You'd have to play that again for me. I didn't hear
20 it clear enough.
22 UNIDENTIFIED SPEAKER: I have every right to express
23 my opinion on (indiscernible) right now. That's totally
24 uncalled for and improper behavior (indiscernible) on a security
25 guard.

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1 MR. DAVIS: Bullshit. You fucking -- you assaulted
2 me, you fucking (indiscernible) Nazi prick.
4 shit.
6 BY MR. MCMAHON:
7 Q That statement, was that -- hearing it a second time,
8 could you tell who that was?
9 A No, I couldn't tell you.
11 UNIDENTIFIED SPEAKER: I have (indiscernible).
12 UNIDENTIFIED SPEAKER: You fucking piece of shit. You
13 are a piece of shit.
14 UNIDENTIFIED SPEAKER: (indiscernible) you.
15 UNIDENTIFIED SPEAKER: Good. Fuck you
16 (indiscernible).
17 UNIDENTIFIED SPEAKER: (indiscernible) you.
18 UNIDENTIFIED SPEAKER: State versus Gaines.
19 UNIDENTIFIED SPEAKER: Fuck.
20 UNIDENTIFIED SPEAKER: State --
22 BY MR. MCMAHON:
23 Q All right. At that time, the repeated comment of
24 State versus Gaines, can you tell who's making that?
25 A No. Again, I've only heard Mr. Stull the short time

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1 that we had in the chambers. So I can't really be
2 (indiscernible).
4 UNIDENTIFIED SPEAKER: -- versus Gaines. State versus
5 Gaines. State versus Gaines.
7 UNIDENTIFIED SPEAKER: State versus Gaines.
8 MR. STULL: Hey. This is my disability. All right.
9 UNIDENTIFIED SPEAKER: You fucking --
10 MR. STULL: (indiscernible), man.
12 MR. STULL: I have a fucking got damn disability,
13 asshole. I have PTSD. And I have fucking (indiscernible) --
14 THE WITNESS: I believe that's Mr. Stull there.
16 BY MR. MCMAHON:
17 Q Okay. Pardon?
18 A I believe that's Mr. Stull speaking there.
20 MR. STULL: -- (indiscernible) years (indiscernible).
22 UNIDENTIFIED SPEAKER: April Fool's.
24 UNIDENTIFIED SPEAKER: April Fool's (indiscernible).

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1 MR. STULL: State versus Gaines. State versus Gaines.
3 MR. STULL: State versus Gaines. Central pain
4 syndrome.
5 MR. DAVIS: It's called self-protection. Maybe I
6 should (indiscernible).
8 MR. DAVIS: (indiscernible) Nazi did attack me.
9 THE WITNESS: I believe that's Mr. Davis --
11 BY MR. MCMAHON:
12 Q Okay.
13 A -- when we're --
14 Q That comment about the Nazi you believe that's Mr.
15 Davis?
16 A Yeah. And I believe what we found on him was a little
17 bottle of pepper spray about the size we carry on our belts.
18 And we found that pants pocket. I think one of us asked him
19 what's that for, and that's when he came out with
20 self-protection.
21 Q Okay. And that -- you're talking about Mr. Davis
22 not --
23 A Correct. Correct. And Mr. Stull was a ways away on
24 the table at that point, I think. Seated on the table.

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1 MR. DAVIS: (indiscernible) being criminal, huh?
2 UNIDENTIFIED SPEAKER: No. I don't like your
3 (indiscernible) it. (indiscernible)
5 THE WITNESS: That's Mr. Davis still.
6 BY MR. MCMAHON:
7 Q Beg your pardon?
8 A That's Mr. Davis we're dealing with there. The reason
9 why you don't hear the Davis as clear is because we move the
10 camera either up on the table or it's on the ground. I mean he
11 was holding it like this. And then there's a distance between
12 with the camera is, which is getting the mic where Mr. Stull is
13 too.
15 UNIDENTIFIED SPEAKER: I want to know what you got in
16 your pocket.
17 MR. DAVIS: I got nothing but a little
18 (indiscernible).
19 UNIDENTIFIED SPEAKER: You've got a pepper spray.
20 MR. DAVIS: Yeah. And that (indiscernible).
21 MR. STULL: State versus Gaines. I'm not resisting
22 you.
23 THE WITNESS: That's Mr. Stull.
24 MR. STULL: (indiscernible) I'm not resisting you.

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1 BY MR. MCMAHON:
2 Q So those comments, the State versus Gaines and the not
3 resisting, that's --
4 A That's Mr. Stull. Yeah.
5 Q -- Mr. Stull?
7 MR. STULL: I have a disability. I have a disability.
9 MR. STULL: I have a disability. Call an ambulance.
10 Call 9-1-1. Central pain syndrome. Central pain syndrome.
11 Central pain syndrome. These handcuffs are too tight. Central
12 pain syndrome. These hand --
14 BY MR. MCMAHON:
15 Q At this point, is that Mr. Stull the (indiscernible)
16 in handcuffs?
17 A I believe so, yes.
18 Q Okay. And is this after you'd actually done the
19 double handcuffs to allows his (indiscernible)?
20 A Yeah. He's been moved. If you saw on the original
21 video, he and Officer Engstrom moved down that table closer to
22 where the footage was, you know, where you watch. And they move
23 more to the -- trying to get my bearings in there -- more to the
24 south, while we started to handcuff Mr. Davis, who was recently
25 right beside the big will call it the witness table at City

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1 Council City.
3 MR. STULL: (indiscernible) Central pain syndrome. I
4 am person with a disability. This could kill me. I'm a person
5 with a disability. This could kill me. Central pain syndrome.
6 Central pain syndrome.
9 UNIDENTIFIED SPEAKER: No, but the -- apparently, it
10 is.
12 UNIDENTIFIED SPEAKER: This (indiscernible) right
13 there.
14 UNIDENTIFIED SPEAKER: Yeah. (indiscernible) that's -
15 -
16 UNIDENTIFIED SPEAKER: (indiscernible) I bet she is.
17 UNIDENTIFIED SPEAKER: Yeah.
18 MR. STULL: Central pain syndrome.
20 MR. STULL: I need emergency transport to Emanuel
21 Emergency Department for central pain syndrome.
23 MR. DAVIS: I didn't assault a police officer. Fuck
24 it.
25 UNIDENTIFIED SPEAKER: So what?

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1 MR. STULL: State versus Gaines. I'm not resisting
2 you.
3 UNIDENTIFIED SPEAKER: All right. Sir.
4 MR. DAVIS: You guys are assaulting me you fucking
5 (indiscernible). I'm not helping you.
6 UNIDENTIFIED SPEAKER: You fucking (indiscernible).
7 UNIDENTIFIED SPEAKER: (indiscernible) buddy.
8 UNIDENTIFIED SPEAKER: (indiscernible) fuck the
9 (indiscernible).
10 MR. STULL: I've had enough of you.
12 MR. STULL: (indiscernible)
14 THE WITNESS: And you're hearing Mr. Stull I think
15 further -- get further away from you, because he was being
16 escorted out of the chambers at that point. The hope was,
17 initially, after we got him handcuffed that we could have gotten
18 him out of the chambers quickly. That's what I had kind of
19 asked Officer Engstrom to do. I was hoping there was going to
20 be compliance. We would just get him out of the chambers, out
21 to a car, so there wasn't a lightening point, flashpoint there.
22 And then we were going to deal with Mr. Davis and get him taken
23 care of, but it didn't happen. He wasn't as cooperative. So we
24 had other officers that came in to assist Officer Engstrom and
25 get him downstairs.

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1 BY MR. MCMAHON:
2 Q Okay. And at this point, were you still in the
3 Council Chambers? Like where are you --
4 A I believe there we're still in Council Chambers with
5 Mr. Davis. We're completing search on him while he's on the
6 ground, both Officer Singh and I. And then we took him out the
7 north side of the chambers into an elevator and down and out.
9 UNIDENTIFIED SPEAKER: Okay. (indiscernible)
10 MR. STULL: (indiscernible)
11 UNIDENTIFIED SPEAKER: (indiscernible) going to have
12 to (indiscernible).
14 UNIDENTIFIED SPEAKER: No, I can hold it
15 (indiscernible).
16 UNIDENTIFIED SPEAKER: No. Here's the
17 (indiscernible).
19 UNIDENTIFIED SPEAKER: But I --
20 MR. DAVIS: Right. I understand.
21 UNIDENTIFIED SPEAKER: Is that his hat?
22 MR. DAVIS: Yeah. That is his hat and his binder
23 there.
25 MR. DAVIS: Yeah. That is his backpack and

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1 (indiscernible).
2 UNIDENTIFIED SPEAKER: (indiscernible) It's okay.
3 We'll take it out to him.
4 MR. DAVIS: All right.
5 UNIDENTIFIED SPEAKER: (indiscernible) Thank you.
6 MR. DAVIS: (indiscernible) I'm not doing it.
8 MR. MCMAHON: Your Honor, I did have video I was going
9 to play, but I think we're getting too close to the end of the
10 day.
11 THE COURT: I think it depends. How long is the
12 video?
13 MR. MCMAHON: I apologize. I confused the sleeves of
14 the disc. I have to run up and grab it and bring it back down.
15 I believe it's about a two or three-minute video. But I would
16 need to ask our sergeants -- ask him some questions about
17 (indiscernible) in pieces. So it may take a moment to play.
18 THE COURT: Well, we really don't have more than five
19 minutes at the outside. And I'd rather --
21 THE COURT: -- (indiscernible) on time.
23 THE COURT: So I think we'll break now.
24 So we will take our evening recess. Mr. Gibson will
25 see to the jury room, and you'll leave your notebooks there.

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1 Remember not to discuss the case either with your other jurors
2 or with anybody else. And don't do any individual
3 investigation. We'll be back to work at 9:00 tomorrow morning.
4 And you'll be back in the jury room. We do have an 8:30 matter,
5 unrelated case. So there will be things going on. But you
6 could just come on in and go into the jury room normally.
7 Mr. Gibson.
8 (Recess taken from 4:45 p.m. until 4:48 p.m.)
9 MR. MCMAHON: Sleeve two -- put the wrong disc in --
10 THE CLERK: Hold on.
11 MR. MCMAHON: Oh, I'm sorry.
12 THE CLERK: And (indiscernible).
13 MR. MCMAHON: And yes, Your Honor. Again, Eamon
14 McMahon for the State. I just want to indicate to the Court I
15 put the wrong disc in the sleeve marked State's Exhibit Number
16 2. With the Court's permission, I'm going to take that sleeve,
17 put the correct disc in, and bring it back down in the morning
18 if that's okay.
19 THE COURT: Okay. As long as we keep it straight what
20 we're talking about when we're talking about it on the record.
21 If -- you know, if there's already been discussion about it, you
22 know, this is Number 2 or this is -- then we're just going to
23 have to change the numbers.
24 MR. MCMAHON: And I think what happened is State's 2
25 is just a duplicate of State's 1. I had two -- I think I had

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1 like four or five discs, and I accidentally slipped a duplicate
2 copy of State's Exhibit 1 into what is State's Exhibit 2. And
3 State's Exhibit 2 is a wholly separate video. So I think that's
4 what happened.
5 THE COURT: Okay.
6 MR. MCMAHON: We have not played State's Exhibit 2
7 yet. Thank you.
8 THE COURT: All right. Have a good evening.
10 (Proceedings adjourned at 4:49 p.m., recommencing in
12
13
14
15
16
17
18
19
20
21
22
23
24
25 ///

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3 I, Erin Perkins, court-approved transcriber,
9 _____________________
10 Erin Perkins, CET-601
13 Salem, OR 97302
14 970.405.3643
15
16
17 Date: April 24, 2017
18
19
20
21
22
23
24
25

Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 787 - 1077
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Wednesday, September 21,
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707
GENERAL INDEX
VOLUME 3 of 9
401 Hearing............................................... 797
Court's Ruling on relevance of witness testimony.......... 812
Discussion regarding Dr. Grimm exhibits................... 813
Discussion regarding State's Exhibit 2.................... 815
Discussion regarding State's exhibits..................... 816
Discussion regarding recording proceedings................ 819
Discussion regarding State's exhibits..................... 879
Discussion regarding exhibits............................. 919
Reporter's Certificate................................... 1077

WITNESS INDEX
401 Hearing:
West Helfrich ........... 797 .... 800
Trial testimony in presence of jury:
Roger Axthelm ........... 821 .... 826 .... 960
Officer Parik Singh ..... 962 .... 973
Officer Jeremy Price .... 1019 ... 1028
FOR THE DEFENSE:
(None.)
EXHIBIT INDEX
Offered Received
FOR THE DEFENSE:
(None offered.)
FOR THE STATE:
(None offered.)
JOINT:
50 ............................... 909 ......... 909
51 ............................... 911 ......... 911

787
1 PORTLAND, OREGON; WEDNESDAY, SEPTEMBER 21, 2016
2 -O0O-
4 (Whereupon, the following proceedings were held in
5 open court out of the presence of the jury:)
6 MR. MCMAHON: And good morning, Your Honor. Eamon
7 McMahon for the State. Again, we are here on day three of the
8 trial for Mr. Barry Stull, 15-CR-53749. The State is ready to
9 proceed.
10 I would have a preliminary matter. Officer --
11 Portland Police Officer Helfrich has been subpoenaed by Defense
12 counsel. I'd like to have a brief 104 hearing this morning.
13 He's present now. And essentially, it's my understanding,
14 speaking with Mr. Stull, Mr. Stull wants his testimony because
15 of the incident on the bus where he says he was kicked. The
16 Court has already ruled it is not relevant and will be
17 excluded. And so, I'd just like to have the 104 hearing, so we
18 can rule on Officer Helfrich's testimony and let him leave if
19 that's necessary.
20 THE COURT: Okay. Then we're going to have a brief
21 hearing outside the presence of the jury --
22 MR. STULL: Oh.
23 THE COURT: -- on whether he has any testimony that's
24 relevant. Okay.
25 MR. STULL: Okay.

788
1 THE COURT: So he's here?
2 MR. MCMAHON: Yes, he is.
3 THE COURT: Okay. Do you want to say anything before
4 we start with his testimony?
5 MR. MCMAHON: No.
6 THE COURT: You?
7 MR. STULL: Who?
8 MR. MCMAHON: Or actually, I guess briefly. It
9 was -- it involved the incident that was dealt with in pretrial
10 matters, I believe, when Mr. Stull was kicked on the bus and
11 that the Portland Police didn't respond to his claim. As Your
12 Honor has already ruled, it's irrelevant. I think that's the
13 only encounter he will testify to.
14 THE COURT: Okay.
15 MR. STULL: Your Honor, if I may.
16 THE COURT: Sure.
17 MR. STULL: Your Honor, as this trial and all
18 these -- between -- you know, prior to the trial process
19 matters, let's just call it that, the prior hearings and all
20 those kind of things. Those have all been playing out. I
21 think each of us has been learning something, and I think
22 that's what the -- that's what our role is here, is to not come
23 in and know it all.
24 But, however, Your Honor, my defense, under the
25 Choice of Evils Defense, is simply one that I went to Emanuel

789
1 Hospital Emergency Room, where I was treated with three-word
2 diagnosis and three-word -- oh, excuse me. Yeah, three-word
3 diagnosis and three-word description of the diagnosis, central
4 pain syndrome. That was Friday morning on the Friday before
5 this Wednesday at City Hall. I went to the emergency room on
6 Sunday evening. We also have the subpoenaed ambulance drivers
7 from Sunday evening. And included in the AMR discovery I will
8 call it is an EKG that just shows my heart is going absolutely
9 crazy as I'm going from my home to Emanuel Hospital, where I'd
10 been instructed to return on Friday morning if my condition
11 worsened. So that did happen.
12 And on Sunday, when I went to the Emanuel Hospital
13 Emergency Room, I was treated by the same doctor. Same
14 three-word diagnosis, central pain syndrome. And then --
15 excuse me. And then on Wednesday, this day we're talking about
16 at this trial, I had in my possession the Emanuel Hospital
17 Emergency Department exit information that said return if
18 condition worsened. And my condition did, in fact, worsen at
19 City Hall. But part of the problem of this is I had the
20 initial triggering event prior to that Friday. It was actually
21 Wednesday, a week before the City Council event that was on
22 trial.
23 I went to the emergency room on Friday. I went to
24 the emergency room on Sunday. And on Tuesday, I had three very
25 stressful events when I had to come downtown to go to the

790
1 Justice Center or to have a warrant for my arrest. One was I
2 was almost struck by a car crossing the stress outside my home.
3 The other was a gal on the number 20 bus, after I got on it,
4 kicked me down here at 5th and Burnside.
5 And the third was as I was going into the Justice
6 Center, I had an encounter with the facility security officers,
7 which ended up, in their misunderstanding, turning into a bunch
8 of -- with all due respect to them, a bunch of corrections
9 deputies who are armed. And I, seeing the situation, focused
10 on one individual. She's a female that my legal advisor --
11 excuse me. I'm just looking for the words here. My legal
12 advisor and myself have both spoken with that woman.
13 And the issue was that particular morning, before I
14 went to City Hall and requested the Multnomah County medical
15 transport ride information, as Mr. Wood has testified that I
16 had done, prior to the issuance of the 24-hour exclusion, that
17 morning I had deescalated an event where there was a number of
18 people and a number of guns could have gone off. And they
19 didn't, because I resolved it by speaking with -- to one
20 particular individual. And the stress of the -- that event,
21 even though I was able to deescalate it -- I wasn't at fault.
22 We know that because I've basically won everything on appeal in
23 that matter.
24 And that's why I have a witness willing to testify
25 about the -- I'm going to state my position -- the magnificence

791
1 where I was able to deescalate a situation that had me and
2 five -- she'll tell them many -- five armed corrections
3 deputies coming out all at once, not knowing the full picture
4 of the story. And I was able to say first thing is I'm going
5 to one person. I'm going to talk to you. And I talked to that
6 woman. And we negotiated the thing. And I went out the door,
7 and everything was fun. And there was no problem.
8 And she's --
9 THE COURT: What is this witness going to testify to?
10 MR. STULL: Having been -- responding as part of
11 TriMet Transit Police, to the fact that this gal kicked me on
12 the number 20 bus at 5th and Burnside as I was about to get off
13 prior --
14 THE COURT: And what --
15 MR. STULL: -- to going to the Justice Center.
16 THE COURT: And what's the relevance claim?
17 MR. STULL: I get sickened by emotional stress.
18 Central pain syndrome is a neurological condition. It has
19 consequences. For example, maybe if I can --
20 THE COURT: Wait, wait, wait.
21 MR. STULL: Yeah, go ahead.
22 THE COURT: I don't want you to go on and talk to me
23 about central pain syndrome. I want to know what this witness
24 is going to say that will have any impact on whether you were
25 or were not guilty of the particular crimes charged.

792
1 MR. STULL: Absolutely.
2 THE COURT: And yeah. And so far, I haven't heard
3 anything about that. I haven't heard anything that would say
4 whether you were or were not intending to assault an officer,
5 whether you were or were not --
6 MR. STULL: Oh, absolutely. I can --
7 THE COURT: -- guilty of criminal mischief in the
8 car.
9 MR. STULL: Yes.
10 THE COURT: You know -- okay. So as long as you're
11 really focused on --
12 MR. STULL: I'm --
13 THE COURT: -- these events and whether you were or
14 were not guilty of these --
15 MR. STULL: That's all --
16 THE COURT: -- charged crimes.
17 MR. STULL: That's all it is, Your Honor. If I can
18 put something in --
20 MR. STULL: Your personal interaction disagrees with
21 me in these very walls, this room.
22 THE COURT: No. I'm talking about this witness.
23 MR. STULL: Your Honor, I'm trying to --
24 THE COURT: I don't want you to try to -- this isn't
25 the time to try to persuade me of something completely

793
1 different.
2 MR. STULL: No. No.
3 THE COURT: I want to know whether this witness has
4 anything to contribute.
5 MR. STULL: Yes.
6 THE COURT: And in what way does his observations on
7 a previous occasion --
8 MR. STULL: Right.
9 THE COURT: -- on the TriMet have -- is admissible --
11 THE COURT: -- as to --
12 MR. STULL: Absolutely.
13 THE COURT: -- any element of these crimes.
14 MR. STULL: I can start at the very --
15 THE COURT: Or defenses.
16 MR. STULL: I can start at the very end. Choice of
17 Evils Defense. In order to be I a situation where I, as was
18 seen on this video so many times, saying I need an ambulance
19 for central pain syndrome -- and everybody that interacts with
20 me knows when I'm sick just by observation. And the
21 observation is that I'm having an adrenalin feedback. That's
22 what makes me sicker. And that's what I have to address when I
23 go to Emanuel Hospital is how I've triggered this inherent
24 physiology, that -- I have Dr. Grimm's trial testimony, chapter
25 and verse, about how I have a physiology, a rewiring of the

794
1 spinal cord relay mechanism. I have that here in dispute --
2 morning, Your Honor, if you want. But --
3 THE COURT: Can this officer testify to your medical
4 condition? Is he medically qualified --
6 THE COURT: -- to diagnose?
7 MR. STULL: He's not going testifying to that.
8 THE COURT: So he's not going to be testifying to
9 that.
10 MR. STULL: No, no, no. He's going to testify --
11 THE COURT: Can he testify to whether then an
12 emergency existed on the day of the council meeting?
13 MR. STULL: Right. For me having a condition that's
14 worsened by emotional stress and having an extraordinary number
15 of conditions that got worse and worse and worse to the point
16 where, at City Council, the morning, I said -- the first thing
17 on the video is me saying I need an emergency transport to
18 Emanuel Hospital. I have a central pain condition. I have my
19 medical records on me. And instead of me treated as the person
20 that central pain syndrome is a neurological condition --
21 THE COURT: Well, you said that many times.
22 MR. STULL: -- I was treated like it was a mental
23 illness and was denied access to medical treatment, and that
24 sickened me even worse and worse and worse and worse and worse.
25 And then I was physical -- they used pain compliance holds and
795
1 all these types of things --
2 THE COURT: I still --
3 MR. STULL: -- that triggered me more and more and
4 more --
5 THE COURT: I'm going to interrupt --
6 MR. STULL: Okay. Yeah, Your Honor.
7 THE COURT: -- because I want to keep moving.
8 MR. STULL: Yeah.
9 THE COURT: And the thing I've been trying to focus
10 you on is --
11 MR. STULL: Yes.
12 THE COURT: -- what this witness can say about an
13 event that he wasn't present at.
14 MR. STULL: No.
15 THE COURT: And what -- the event that he was
16 present --
17 MR. STULL: The event was the day --
18 THE COURT: Wait a second.
19 MR. STULL: Go ahead. May I sit down, please?
20 THE COURT: And the event at which he was present is
21 another act. And under our rules of evidence, other acts are
22 admissible only for specific purposes. So I'm trying to figure
23 out whether there's --
24 MR. STULL: Yes.
25 THE COURT: -- any of those purposes are admissible.

796
1 MR. STULL: It is, and it gets --
2 THE COURT: So I think maybe we just ought to have
3 the testimony.
4 MR. STULL: Yes, if you could.
5 THE COURT: Because I don't think I'm being --
6 MR. STULL: And we'll see.
7 THE COURT: -- helped very much.
8 MR. STULL: Yes, thank you. We'll try. He's here --
9 THE COURT: Okay.
10 MR. STULL: -- right now, and I'm here, Your Honor.
11 I'm sorry to take up so much time with this. I've been working
12 on this since like November 25th.
13 THE COURT: Okay. We'll get the witness.
14 MR. STULL: All right. Thank you, Your Honor. And I
15 don't mean to argue with you, Your Honor. I want to have a
16 conversation. I don't want either of us to have to feel --
17 THE COURT: Okay.
18 MR. STULL: -- pressured or upset.
19 THE COURT: We'll listen to the evidence.
20 MR. STULL: Yes.
21 THE COURT: And I'll just have to rule.
22
23
24
25 ///
797
1 WHEREUPON,
2 WEST HELFRICH,
5 THE CLERK: Would you state your name and spell it?
6 THE WITNESS: Name is West Helfrich. Helfrich is
7 spelled H-e-l-f-r-i-c-h.
9 BY MR. MCMAHON:
10 Q And good morning, Officer Helfrich.
11 A Portland.
12 Q I guess what's your current occupation?
13 A I'm a police officer at the City of Portland.
14 Q And were you on duty on November 25, 2015?
15 A I don't know. I don't know what day of the week that
16 was.
17 Q Did you respond to a call at City Hall the week
18 before Thanksgiving?
19 A Not that I'm aware of.
20 Q Did you deal with, present in court, Mr. Stull, at
21 any point during the week of Thanksgiving 2015?
22 A I don't believe so.
23 Q Do you recognize him?
24 A No, I don't. It's about a year ago. And I have no
25 idea if I was even working that day. So --

798
1 Q Okay. Even if you were working earlier in the week,
2 say the 23rd or the 24th?
3 A I work Tuesday through Friday. So if that was one of
4 those days, there's a good chance I was working.
5 Q But just to be clear, you don't recognize Mr. Stull?
6 A I don't, no.
7 Q Don't have any interact -- any recollection of any
8 interaction with him?
9 A No. And I would remember a call at City Hall. And I
10 was --
11 MR. STULL: Your Honor, I have to step outside. I
12 don't want throw up.
13 THE COURT: Sir.
14 MR. STULL: I'm sick. Sorry.
15 THE COURT: This is a problem, because he is now no
16 longer represented. If he were represented and he chose to
17 absent himself, I'd go forward. Without him being represented,
18 however, if he chooses to absent himself --
19 MR. STULL: I'm sorry. I have nerve -- I have a pain
20 condition, and I have severe nausea.
21 THE COURT: You've told me that.
22 MR. STULL: I have severe nausea. I told you I might
23 need a break. And this was one that I just needed that much
24 space.
25 THE COURT: We just started.

799
1 MR. STULL: And I'm ready to go back where we had to
2 interrupt.
3 THE COURT: Okay. Let's go back.
5 THE COURT: But this is going to be a problem.
6 MR. STULL: I can -- this can be -- I didn’t realize
7 we'd be talking about City Hall, and that's not the -- has
8 nothing to do with what I had just talked about this morning.
9 So I'll let him finish, and I hope I get to say something.
10 THE COURT: You get to ask the witnesses your
11 questions --
12 MR. STULL: I certainly will.
13 THE COURT: -- so I can determine whether they're
14 valid -- or whether we can admit them --
16 THE COURT: -- or whether we need to have them at
17 all.
18 MR. STULL: But --
19 MR. MCMAHON: Do --
20 MR. STULL: You can finish, please. I don't mean to
21 interrupt, Your Honor. I was just shocked that we're --
22 THE COURT: Don't interrupt then, okay?
23 MR. STULL: The initial questions seemed to be --
24 THE COURT: Ask any more questions.

800
1 BY MR. MCMAHON:
2 Q Do you have any recollection of dealing with Mr.
3 Stull on an event involving a bus or transit?
4 A No.
5 Q Okay. An event involving him alleging that someone
6 had kicked him?
7 A I'm sorry?
8 Q Do you recall an event where Mr. Stull had alleged
9 that somebody had kicked him?
10 A No, I don't remember. No.
11 Q Thank you.
12 MR. MCMAHON: No further questions.
13 THE COURT: Mr. Shull, would like to ask your
14 questions?
15 MR. STULL: Mr. Stull. I don't know if my name is
16 being pronounced correctly, Your Honor. It was in one of
17 the --
18 THE COURT: Sir, would you please ask your questions?
19 MR. STULL: I will, Your Honor.
21 BY MR. STULL:
22 Q Do you work for transit division? Or did you in
23 November 2015, a year ago?
24 A I was assigned to the transit division. Yes.
25 Q So if there was a TriMet call, and you worked for

801
1 transit division, the likelihood would be that that would be
2 part of your job, that you would have a --
3 A I would --
4 Q -- response to a MAX or a bus or other transit; is
5 that correct?
6 A I do respond to calls there. Yes.
8 MR. STULL: Your Honor, I have here -- and I do know
9 it's one of my envelopes. And there aren't that many of them.
10 But I do have a document regarding -- you know, it's from
11 TriMet itself about that date. And I will be happy to use that
12 to refresh the gentleman's memory. But in the meantime, if I
13 could just hand these to counsel here. And I believe it's that
14 one there.
15 If you could open that, so I could refresh his
16 memory.
17 MR. KELLEY: Okay. You can take it out. You're
18 welcome to.
19 MR. STULL: I'm asking you to help --
20 MR. MCMAHON: And is it a document that -- used to
21 refresh.
22 MR. STULL: -- because I'm really sick. And hand it
23 to him and that kind of stuff. I just got here, and I've been
24 knocked off my center by asking the question was he present at
25 this event at City Hall. And everybody in the room knows he

802
1 wasn't.
2 MR. MCMAHON: Mr. Stull, am I to understand that
3 you're offering them to ask if the -- refresh recollection.
4 THE COURT: No. He said he was going to just let --
5 MR. KELLEY: He intends to use it.
6 THE COURT: -- him to --
7 MR. MCMAHON: That's right.
8 MR. STULL: Don't --
9 (Counsel confer.)
10 THE COURT: All right. You can --
11 MR. STULL: Yeah. Because if I don't have to get up
12 for another two minutes, I'll be doing well. I'll drink this
13 water. I'll ask my questions. If you could please do that.
14 MR. KELLEY: With the Court's permission, may I
15 approach the witness?
16 THE COURT: If you can give him -- see if that
17 refreshes his recollection.
18 MR. KELLEY: Please just look these over yourself.
19 You don't need to read them out loud.
20 (Pause)
22 MR. KELLEY: Okay. Mr. Stull may have some more
23 questions.
24 MR. STULL: Thank you, Mr. Kelley.
25 ///
803
1 BY MR. STULL:
2 Q Officer -- you are an officer. Is your status officer?
3 A Yes.
4 Q Okay. Officer Helfrich -- is there more than one
5 Helfrich with the Portland police?
6 A Yes.
7 Q Is there more than one that you know of that is
8 assigned to transit?
9 A The other Officer Helfrich used to be assigned to
10 transit, is no longer.
11 Q Could it be that perhaps we ended up being
12 misinformed by my inquiry as to the Officer Helfrich that
13 worked at transit for TriMet on November 24, 2015? The
14 information I got regarding your name was there's only one
15 Officer Helfrich, and he is assigned to transit.
16 MR. MCMAHON: Your Honor, I'd object at this point.
17 He's testifying.
18 THE COURT: I think this is a pretty long question.
19 BY MR. STULL:
20 Q Is there another one? Do we have a case of mistaken
21 identity where we've just got the wrong -- got you two or three
22 mixed up? Because I know there's more than one Stull, sir. So
23 are you sure that you would have been -- the November 24, 2015
24 transit -- the transit division I think is what you are under
25 the Portland Police Bureau. So let me maybe --

804
1 THE COURT: Could it have been the other person?
2 THE WITNESS: No. It was me. He was not assigned at
3 that time.
4 THE COURT: Okay.
5 BY MR. STULL:
6 Q In November 2015?
7 A Correct.
8 Q Okay. And if you don't mind me asking, since you
9 said that it's -- are you -- almost a year ago and you have a
10 foggy recollection as to events that long ago. How do you know
11 that he wasn't assigned to transit at that time?
12 A Because he's since been promoted to sergeant, and
13 he's assigned to the personnel division. At that time, I know
14 all the Portland officers that were assigned. I was the only
15 Officer Helfrich assigned to the transit division last year.
16 Q Okay. Thank you, sir. The incident that I'm
17 inquiring as to you responding to involved a response -- there
18 were three in my recollection. And there were three responding
19 officers. You were one of them. The incident was at 5th and
20 Burnside, the number 20 bus. And the call was because a
21 passenger on the bus kicked.
22 And I did inquire after TriMet that there was no
23 report. Did you bring your notes?
24 A Of course, not.
25 Q Do you have notes somewhere else that you could see

805
1 if you were on the -- on that number 20 bus, November 24th? Do
2 you keep those records?
3 A I keep a notebook, yes, for the last five years. But
4 I was not told any information. I have no idea why I was here.
5 So --
6 Q All right. I'm --
7 A -- of course, I didn't bring anything.
8 Q Okay. What -- where are those records if you don't
9 mind my asking?
10 A Probably at my office.
11 Q And where is your office?
12 A 2010 Northwest 1st, here, in Portland.
13 Q Are you currently on duty?
14 A Yes.
15 Q Would it be possible for you to go to 210 Northwest
16 1st, get your notebook, and then come back here sometime today?
17 MR. MCMAHON: Your Honor, I would object. I think
18 this isn't relevant to his testimony.
19 THE COURT: I am yet to hear anything that would make
20 me think that this witness can be heard in this trial. And I
21 don't want to spend more time on it.
22 MR. STULL: Thank you, Your Honor. Let me tell you
23 why I wanted to know that this officer was the officer on that
24 bus at that time.
25 THE COURT: Perhaps you could concentrate on why that

806
1 incident on that bus at that time makes it more or less likely
2 that you're guilty of the particular charges.
3 MR. STULL: Thank you, Your Honor. I can do that.
4 One of my defenses is that the prosecution of this case
5 violates the Americans With Disabilities Act. And it's a
6 defense. And one of my defenses is this prosecution of this
7 case violates the corresponding Organ Revised Statute Chapter
8 659A, as interpreted by Organ Administrative Rules under the
9 Euro of Labor and Industries Authority Chapter -- OAR Chapter
10 839. So that's one issue.
11 The other issue is that we've seen a denial of a
12 transport by an ambulance at City Hall that morning for I'm
13 thinking it's some number of 20 minutes from the time I
14 requested emergency ambulance. And we know that the ambulance
15 was not called or summoned and that some number of reason -- my
16 whole speech is because I'm ill. Some number of reasons why
17 the Portland police were called instead of the ambulance.
18 THE COURT: Why would this witness's testimony have
19 any bearing?
20 MR. STULL: It was a very stressful event for the
21 Defendant, Your Honor, the day before. Part of this morning
22 ended up with the three events. And I think I've told them
23 almost as struck by a car. I got on the bus. I got kicked on
24 the bus. I had this event at the Justice Center. And then --
25 and they're all part of the video. We know that from Mr. Davis
807
1 having recorded me saying that as part of my 20-minute rant.
2 So the incidents were I had to go to the Justice
3 Center for a warrant would be issued for my arrest. If you
4 want to know why, I'll tell you that, too. There has -- I'm
5 not guilty on that charge as of today. I had to go to the
6 Justice Center. I had to go there or I would get a warrant for
7 my arrest.
8 And in the time period that I had already been on
9 schedule to go there and appear and not get a warrant for my
10 arrest, crossing the street, people called the 9-1-1 call
11 before I even got across the street out of my apartment -- my
12 trailer complex. And I got on the number 20 bus after I waited
13 for the response to the three 9-1-1 calls that I was told was
14 made about me in the process of crossing the street. I let to
15 number 20 buses go by.
16 I got on the third number 20 bus at 108th and Stark
17 Street. And I got off that bus at 5th and West Burnside. And
18 as the moments -- I believe the bus was even stopped at 5th and
19 Burnside. As I was in the process of getting off, a woman who
20 got on the bus at the same stop is me went -- started yelling.
21 She kicked me. She tried to pull a bulletin board I had. "I'm
22 taking this from you." And she took it for me, and she kicked
23 me. And it was on the bus. It was on the camera. It was on
24 the audio if they'd had the audio. But it was on the bus. It
25 was on the camera. And three transit officers responded. And

808
1 then I got off the bus.
2 That was not reading the newspaper to get downtown.
3 It was not me walking out my door and going down to the MAX
4 like I did this morning without a hitch. Those three events,
5 the event that the Justice Center that Mr. Wood testified we
6 were laughing about how we did.
7 And so, that's what the corrections deputy who's on
8 staff today -- we spoke about -- I believe we spoke about it
9 before the Court. And this gentleman is simply a sandwich
10 between not getting across the street, which I can testify
11 about as a sickening event, not getting a safe bus ride
12 downtown, which I can testify as a sickening event, and not
13 getting into the Justice Center without having to have what
14 this witness is going to talk about escalated.
15 And I resolved the escalation only to go to the
16 Office of Neighborhood Involvement in City Hall to inquire
17 after a Multnomah County Health Department medical transport
18 ride to my home, as James Wood testified already that that's
19 why I was there and that's what I was doing. And then I was
20 told to leave City Hall, and that -- with an exclusion not to
21 come back.
22 None of those events got me any closer to stabilizing
23 my disabling central pain syndrome. In fact, I have peered at
24 City Council with the clothing I came out of the Emanuel
25 Hospital Emergency Department with, as I said on the video, at

809
1 I said 3:00 in the morning. I think my walking out the jail
2 was more like 2:30 that 38 degree night. I got home at 5 a.m.
3 Of course, there's no transit to my neighborhood. And then
4 that was Monday morning at 5 a.m. Tuesday, I had to get to
5 court at 9:30 at the Justice Center. And I crossed the street.
6 As I said, I almost got hit by a car.
7 Another guy that wasn't in the car made the 9-1-1
8 call and said he was the third. Who knows who else drove by
9 and called. And because the guy was pressing his car bump up
10 against my legs, and I was in the crosswalk. And then I got on
11 the bus. The bus driver wouldn't quell the behavior of this
12 woman. When I got to get off the bus, she attacked me. And
13 it's my understanding that this gentleman is the one that
14 responded. It's my understanding that this gentleman's notes
15 validate that encounter with the police. And all I'm
16 suggesting, Your Honor, the minimal thing I'm suggesting to say
17 is as you've seen this morning, I have a disability and it's
18 worsened by emotional stress.
19 I went through this entire -- everything that's gone
20 on in this entire proceeding since we started this trial and
21 got the jury. Nothing has sickened me. What sickened me, Your
22 Honor, was counsel asking the question was this gentleman at
23 City Hall that day, which could do nothing but confuse him. So
24 I'm simply wanting to get his notes that he said he has. I
25 didn't know to ask him to bring them, because I didn't even

810
1 know if he was the right Helfrich.
2 The information I get, Your Honor, is from the
3 Portland Police Department. And as we saw with the report to
4 the Department of Justice, sometimes things change. And
5 sometimes the information isn't accurate. And I discovered
6 that like this morning. I thought he'd bring his notes. I
7 didn't know. I don't know if he's even the right guy. TriMet
8 said that it was a verbal exchange and there was no kicking
9 involved.
10 And because there was no -- excuse me, Your Honor --
11 because there was no police report, there was no securing the
12 video. Because there was no securing of the video, I was never
13 kicked. And I know I was kicked. And if this gentleman can
14 look at his notes, he will know he responded to that incident
15 about 10:00 on the morning of the day before my arrest at City
16 Hall.
17 And I know that, at 10:30, I bought a coffee down
18 here at Elephants Delicatessen, on my way to the Justice
19 Center. And I know what time I entered the Justice Center,
20 because they've got that incident report that the corrections
21 deputy was part of. And I know what time it is. I've got that
22 paperwork here.
23 So I can put the timecode of me at my house, me at
24 5th and Burnside, me at the Justice Center, and after all that,
25 me simply inquiring as to how I could get a ride home to my

811
1 house through the Multnomah County Health Department Medical
2 Transport, at the office that's established -- although it's
3 confusing. It's in the City Hall building, but it's the source
4 of county information. All the numbers on the county trucks
5 are the same as the ones on the city trucks.
6 And the Parks Bureau truck for the city of Portland
7 has the same (503) 823-4000 phone number as the Multnomah
8 County truck has on the side of it, 823-4000, because we have a
9 clearinghouse for city/county information that's operated
10 through the Office of Neighborhood Involvement, where I have
11 access to a public telephone.
12 And I'm trying to say that under Matthews, in the
13 Choice of Evil Defense case history -- I haven't read it in
14 four years. But I think it was a Judge Lee Johnson
15 determination, or he had the case. But it was a reversal and
16 it had to do with if something can prove an element of the
17 Choice of Evils Defense, it has to be the -- what's relevant in
18 a Choice of Evils Defense, it expands the scope of relevant
19 information so, in fact, that Choice of Evils Defense can be
20 raised and defended. You can't raise a Choice of Evils Defense
21 if your limited to solely what's appropriate when there is no
22 Choice of Evils Defense, because a Choice of Evils Defense is
23 kind of like having a hall pass to go down to the hall that you
24 can't go down without the hall pass.
25 So there's -- I believe the case law -- I saw it

812
1 there. I know that the most relevant current case on Choice of
2 Evils is Siemens (phonetic), if I'm not mistaken. I don't
3 think there's been any appellate case specifically on point
4 with that. Or Owneby, O-w-n-b-y (sic), is another case. And I
5 know that that was on part of the jury instructions, that
6 the -- Mr. Kelley gave to me to review. I've read these, all
7 these cases. And there happened to be, unbeknownst to me, one
8 that -- whatever the Uniform Jury Instructions Mr. Kelley
9 produced, they're singing the same song as me, Your Honor, is
10 all I'm trying to say.
11 And can I not talk for a minute.
12 THE COURT: Okay. I'm ruling that this evidence is
13 not going to be admissible. It's not relevant. And I am
14 quashing the subpoena.
15 MR. STULL: Your Honor, if I can make one objection
16 on -- for appeal. This will only take a moment. Had this
17 actually been the officer that was on that bus, and had that
18 officer actually responded to the event, and had I, as the
19 Defendant, claimed that that was a triggering event that
20 worsened my neurological condition, would this witness, indeed,
21 still be excluded?
22 THE COURT: Yes.
24 THE COURT: Okay. Very well.
25 You are free to go.

813
2 MR. STULL: Thank you, Officer Helfrich.
3 MR. MCMAHON: Your Honor, I just have two brief
4 matters. The first is I think there was some reference made to
5 prior testimony by Dr. Grimm. Though I do have voluminous
6 medical records for Mr. Stull, I don't have any prior
7 testimony. If he's intending to offer that as evidence, those
8 are written statements of a witness. It may or may not be a
9 discovery violation. I kind of reserve my right to raise it
10 again. I would just ask that I get a copy of those records or
11 the certified testimony that Mr. Stull intends on offering.
12 THE COURT: Okay.
13 MR. STULL: Your Honor.
14 THE COURT: Can we give him copies?
15 MR. STULL: Your Honor.
17 MR. STULL: I have emailed -- beginning my --
18 MR. MCMAHON: Is it this?
19 MR. STULL: There are those. It says Exhibit case 7.
20 That was from a contempt of court pleading --
21 MR. MCMAHON: Okay. So --
22 MR. STULL: -- authorized by Presiding Judge Gail
23 Koch. And that's why they have the exhibit numbers.
24 The other things I have are documents that were from
25 the state of Oregon -- well, they keep changing the names on

814
1 these agencies.
2 MR. MCMAHON: Is it the --
3 MR. STULL: Department of Human Services Medical
4 Marijuana Program. And one of those is also from Dr. Grimm,
5 who's passed away.
6 MR. MCMAHON: I have those. They're not -- they're
7 exhibits. They're not testimony. But I do have those
8 documents. So then I would --
9 MR. STULL: And --
10 MR. MCMAHON: There's no violation.
11 And the issue is also I think I would --
12 MR. STULL: Your Honor, I wasn't finished.
13 THE COURT: Just a minute.
15 THE COURT: I want to know what the objection is.
16 MR. STULL: Okay.
17 MR. MCMAHON: So beyond that, I don't have an objection
18 to those -- well, I have the previously raised objection. I
19 think there may be some stuff that needs to be redacted. If we
20 can discuss that I think at a little bit later date, so we're not
21 holding the jury out anymore.
22 Based on Mr. Stull's representations, I am just going
23 to give the Court and Mr. Stull notice. I'm going to have --
24 requesting a 104 hearing on the witnesses that Mr. Stull is
25 indicating he's subpoenaing, including the person from -- the

815
1 corrections deputy and the AMR. Based on the testimony they
2 were giving, I don't think that is relevant testimony since it
3 doesn't involve the incident on the 25th, and they do relate to
4 prior incidents that the Court has already ruled or disputed.
5 THE COURT: Well, if that's so, when those witnesses
6 are here, then we can take a break and do that.
7 MR. MCMAHON: Okay. All right. Thank you, Your
8 Honor. I have nothing further at this time.
9 THE COURT: All right. So we had --
10 MR. KELLEY: Do you want to address the disc at all?
11 MR. MCMAHON: The what?
12 MR. KELLEY: The disc.
13 MR. MCMAHON: Oh, the disc.
14 Sure, Your Honor. I was able to get the correct disc
15 for what should have been State's Exhibit 2. I can play that
16 for Mr. Stull in the court and just confirm that that is the
17 correct disc and that there are no objections to its admission.
18 THE COURT: Okay. Why don't we take a look at it,
19 and then we can see if you have objection to it playing.
20 MR. STULL: And if you don't mind, Your Honor. I was
21 provided the disc as discovery. And there are two of them. And
22 all of the things that we've seen so far, including the
23 photographs that were accepted into evidence, all of those things
24 are on the same two discs I have. And what I did is I made cards
25 for each of the files, because they're just identified with a

816
1 number and letter sequence. There's nothing that says that this
2 file is the audio version of the -- Mr. Davis' video, this file
3 is the City Council security video that doesn't have sound, this
4 file is the recording of the -- Mr. Cohen calling 9-1-1, all
5 those -- I have all those in discovery.
6 And what I do have here, Your Honor, is simply cards
7 that identify each of those. But I haven't been able to sync
8 those up with the exhibits.
9 THE COURT: Well, let's look at the --
10 MR. STULL: I'm familiar with all the --
11 THE COURT: Okay.
12 MR. STULL: I'm familiar with the entirety of them.
13 Like this one, I know what that is. For me, that's the short
14 City Council city provided video that has sound. There's
15 another one that has a time code that cuts off and then this
16 one starts. And then there's Mr. Davis.
17 THE COURT: Well, if you don't have any problem with
18 him -- do you want to look at them now and --
19 MR. STULL: No, no, no. I just want to be able to --
21 MR. STULL: -- know what -- by reference, which one
22 is which, because they --
24 MR. STULL: The names don't mean anything, Your
25 Honor. They're like license plates on a car.

817
1 THE COURT: Okay.
2 MR. STULL: They're just random.
3 THE COURT: Okay. Can --
4 MR. MCMAHON: I can tell you that right now, Mr. Stull,
5 if you want to write it down.
6 THE COURT: If we can do that without playing them --
7 MR. KELLEY: I'll --
8 THE COURT: -- through, that's fine.
9 MR. STULL: He'll do that for me, please.
10 MR. MCMAHON: State's Exhibit 1 is the video track
11 playing Mr. Davis.
12 MR. KELLEY: 1 spliced together?
13 MR. MCMAHON: Yeah. That -- it was originally two
14 video files. We spliced it together into one continuous, so we
15 wouldn't be clicking stop and start.
16 MR. STULL: That's fine. I understand that. I have
17 both of those, and that won't delay me in any way, Your Honor,
18 that mine is two videos and his is the compilmination (sic).
19 MR. MCMAHON: Okay. State's Exhibit 2 is what I have
20 written on what's -- was the file as the City Council Hall desk
21 video. It does have audio.
22 MR. STULL: That one?
23 MR. MCMAHON: Yes. This is 2.
24 MR. STULL: Okay. Thank you. And?
25 MR. MCMAHON: State's Exhibit 3 is the City Hall

818
1 surveillance video with no audio. And it does have the
2 timestamp on it.
4 MR. MCMAHON: And I'm just letting Mr. Kelley write
5 it down.
6 MR. STULL: I'm --
7 MR. MCMAHON: Oh, no.
8 MR. STULL: Did he --
9 MR. MCMAHON: I'm giving Mr. Kelley time to write it
10 down.
11 MR. STULL: Yeah.
12 MR. MCMAHON: State's Exhibit 4 is the audio.
13 MR. STULL: Of what?
14 MR. MCMAHON: The audio from inside City Hall. It
15 was the audio that was played at the end of yesterday's
16 testimony.
17 MR. STULL: Okay. So if I can clarify this. There's
18 a silent City Hall with the time code.
19 MR. MCMAHON: That's --
20 MR. STULL: And then there's the audio with no video
21 that are basically the same period of time. It's the same --
22 MR. MCMAHON: Correct.
23 MR. STULL: -- events.
24 MR. MCMAHON: And the audio with no video is State's
25 Exhibit 4.
819
1 THE COURT: So we've got these four. These are the
2 four exhibits then and the right numbers?
3 MR. MCMAHON: Yes.
4 MR. STULL: And if I can please inquire after
5 Mr. Gibson. The other exhibits, they're all paper so far,
6 photographs and --
7 MR. MCMAHON: Yes. State's Exhibits 5 through 14 are
8 all photographs.
9 MR. STULL: That's fine, Your Honor. I'm ready to
10 proceed with the jury out if everybody else is. I don't want
11 to delay further.
12 MR. MCMAHON: I'll get Sergeant Axthelm on the stand
13 if that's all right.
14 And just really quickly, Your Honor, I'll put on the
15 record. I mentioned Mr. Robert West is here today. He does
16 record proceedings. I'm not sure if he's away. But anyone
17 making a recording of the proceeding in this courtroom I believe
18 needs to request permission. I just want the Court to advise
19 him, potentially. I can't have direct contact with him, because
20 he is a Defendant in an ongoing series of cases, but --
21 THE COURT: I'm sorry. I missed the --
22 MR. MCMAHON: I would just ask that the Court advise
23 Mr. West that he cannot record in the courtroom without
24 permission.
25 THE COURT: Yeah. We can't. We're -- there's no

820
1 recording in the court without permission.
2 UNIDENTIFIED SPEAKER: We are not recording, Your
3 Honor.
4 THE COURT: And the camera cannot be on.
5 UNIDENTIFIED SPEAKER: It's not.
7 Please resume the stand.
8 WHEREUPON,
9 ROGER AXTHELM,
10 a witness, having been previously sworn, was examined and
12 THE COURT: You're still under oath.
14 MR. STULL: Your Honor, I apologize. My cell phone
15 is in my pocket.
16 THE COURT: Oh, okay. Just give it to Mr. Gibson.
17 THE BAILIFF: Just come get it (indiscernible).
18 THE COURT: Yeah. When --
19 MR. STULL: Oh. It's sitting right here in the
20 corner.
21 THE COURT: -- he walks back this way. Yeah.
22 MR. STULL: Whenever you want. I don't think anybody
23 is going to call me, though it might call the other guy.
24 THE COURT: Okay.
25 THE BAILIFF: I'll grab it.

821
1 MR. STULL: Call the jury.
2 (Jury enters.)
3 THE COURT: Good morning. Thank you for bearing with
4 us. We had some things we had to talk about first. And we're
5 continuing where we left off yesterday evening.
7 BY MR. MCMAHON:
8 Q Good morning, Sergeant Axthelm.
9 A Good morning.
10 Q I'd like to direct your attention to the video
11 screen. I'm playing a video that's been marked as State's
12 Exhibit 2. The beginning of the video, do you recognize what's
13 shown in this video?
14 A Yes. This is a shot from going north to south.
15 That's Mr. Stull here. That's Officer Singh (indiscernible)
16 room. And there's a regular (indiscernible).
17 Q Okay. And I just want to talk about the -- just --
18 does everybody on the jury (indiscernible) the videos right
19 now.
20 (Video played in court.)
21 BY MR. MCMAHON:
22 Q And, Sergeant, if you're -- if there's something that
23 you want to describe or -- you know, please speak up, and I'll
24 go ahead and pause the video.
25 A Sure. I mean Officer Singh has got a wrist lock on

822
1 one side, and he's starting to work to get a wrist lock on the
2 other side to bring his hands behind his back.
3 (Video continues.)
4 MR. STULL: Fuck you. Fuck (indiscernible) camera.
5 MR. DAVIS: You're not allowed to do that type of
6 shit, you fucking asshole.
8 MR. DAVIS: You're not allowed to do that. Hey.
9 UNIDENTIFIED SPEAKER: He's really out of line.
10 MR. DAVIS: Hey.
11 UNIDENTIFIED SPEAKER: (indiscernible) Really?
12 (indiscernible)
13 MR. DAVIS: Hey.
15 (Video ends.)
16 THE WITNESS: And as mentioned yesterday, the typical
17 is to use on set of handcuffs. I think he made a statement or
18 something that he, you know, had a bad shoulder or something, or
19 just how tight he was. We put the -- I told Officer Engstrom to
20 go to two cuffs. So he had more expansion for his shoulders.
22 UNIDENTIFIED SPEAKER: That's uncalled for and
23 improper behavior on a security guard.
24 MR. DAVIS: You assaulted me, you fucking
25 (indiscernible) Nazi prick.

823
2 shit.
3 MR. STULL: I have a disability.
4 (Audio ends.)
5 THE WITNESS: And then on this, you can't see quite
6 yet. But Mr. Davis is right down here. This is where he was
7 taken down by security.
9 UNIDENTIFIED SPEAKER: (indiscernible).
10 MR. STULL: You are a piece of shit.
11 UNIDENTIFIED SPEAKER: (indiscernible).
12 MR. STULL: Good. Fuck you all.
13 UNIDENTIFIED SPEAKER: It's not all about you.
14 MR. STULL: State versus Gaines.
15 (Video ends.)
16 BY MR. MCMAHON:
17 Q So sort of at the end of that video, did you assist in
18 taking both Mr. Davis and Mr. Stull to the Multnomah County
19 Detention Center?
20 A I actually escorted Mr. Davis downstairs to the patrol
21 car. And then they were escorted over to the jail. And I
22 followed them over (indiscernible).
23 Q What did you do when you got to the jail?
24 A They were taken inside. I can't remember if jail
25 staff came out to assist with that or not, to be quite honest.

824
1 Q And you were (indiscernible) the jail staff, did you
2 return to City Hall?
3 A Yeah. I went back to City Hall.
4 Q And what did you do while you were at City Hall?
5 A I went back there to speak to some witnesses who were
6 there. I'd been asked to go ask -- talk to witnesses who were
7 there.
8 Q Okay. And I guess what was the reason for talking to
9 those witnesses?
10 A To basically review the -- who had seen the use of
11 force, quote, unquote, on the handcuffing of Mr. Stull and Mr.
12 Davis, and also statements they had prior to that about what
13 took place.
14 Q And when you were finished with this, did you write a
15 report, that you had use force report?
16 A Yes. I wrote a report and I used force.
17 Q And based on your training and experience, was that
18 level of force appropriate for Mr. Stull's conduct?
19 A Yes.
20 Q Could you have used a lower level of force?
21 A We tried. We tried to verbally talk with him in the
22 mere presence. At that point, again, my whole purpose -- my
23 whole plan was just to get him to leave the courtroom and leave
24 the building. That's what security there wanted even though
25 they had probable cause for trespass on him. But they

825
1 request -- they just wanted him basically to leave. It wasn't
2 until the incident with Officer Engstrom that then it bumped up
3 to a different level.
4 Q Thank you.
6 THE COURT: Cross.
7 MR. STULL: Your Honor, I would like to have the
8 witness identify a photograph.
9 THE COURT: Then show him the --
10 MR. STULL: It's already entered into -- I don't know
11 which exhibit it is.
12 THE COURT: Oh, already entered?
13 MR. STULL: Yeah.
14 THE COURT: Sure. Which exhibit and we'll get it?
15 MR. STULL: May I approach Mr. Gibson and take a look,
16 so I can just pull it out of the stack --
17 THE COURT: Yeah, go ahead.
18 MR. STULL: -- with his permission?
19 THE COURT: Yeah.
21 THE COURT: Come on up.
22 (Pause)
23 MR. STULL: It's State's Exhibit 5, Your Honor, for
24 the record. May I approach the witness?
25 THE COURT: Sure.

826
1 CROSS-EXAMINATION
2 BY MR. STULL:
3 Q Good morning, Sergeant.
4 A Good morning.
5 Q Do you recognize that photograph?
6 A Yes.
7 Q Are you the person that took that photograph?
8 A No.
9 Q Okay. Do you recognize who that is in the
10 photograph?
11 A Yes. That's Officer Engstrom.
12 Q Are you his supervisor?
13 A I am one of his supervisors. Yes. We have multiple
14 sergeants that work dayshift.
15 Q Were you his supervisor that day?
16 A Yes. I was there on that incident. Yes.
17 Q Does that portray Officer Engstrom as he appeared
18 that day regarding his uniform?
19 A Yes.
20 Q Do you see any problems with his uniform in that
21 photograph?
22 A No. He has a taser on his vest. He has a radio. He
23 has his nametag. He has a badge. He has patches on both
24 sleeves. No.
25 Q How many letters of his name can you read from that
827
1 name badge in that photograph?
3 THE COURT: I'll let it be asked.
4 THE WITNESS: He spells his name E-n-g-s-t-r-o-m, I
5 believe. I can see E-n-g-s-t and part of the M. The shot --
6 if I was standing normally, I could probably see his full name,
7 because I would be looking straight at his eyes as opposed to
8 this shot appears like it's shot from an upward trajectory.
9 BY MR. STULL:
10 Q Isn't the gentleman a tall man?
11 A I don't know where he had the -- you mean Mr.
12 Engstrom?
13 Q Yes.
14 A He's probably four inches taller than me.
15 Q How -- what is his height?
16 A Maybe six feet.
17 Q I'm about six feet.
18 A Okay.
19 Q Is he taller than me you think?
20 A I wouldn't -- I think he's six feet.
21 Q How tall would a person have to be to read all of the
22 letters of his name then?
23 A I'm sure I could have read his name badge if I was
24 standing there next to him.
25 Q Are you finished reviewing that --

828
1 A I am, yes.
2 Q -- and ready to answer a couple more questions? They
3 don't have to do with you looking at it.
4 A Yeah. That's fine.
5 Q (Indiscernible).
7 And, Mr. Gibson, thank you for that. And that was
8 Exhibit 5?
9 THE BAILIFF: Yes.
10 MR. STULL: All right. State's Exhibit 5.
11 Mr. Kelley, could you write a note of that for me
12 with the photograph of Mr. Engstrom in his uniform?
13 MR. KELLEY: It's Exhibit 5.
14 BY MR. STULL:
15 Q Do you train other officers even, other -- you know,
16 at -- do you train as your role as a Portland police sergeant?
17 Ever engage in training exercises?
18 A I've never been assigned to the training division.
19 I've never been a training officer. But as a sergeant, we have
20 supervisory oversight, and we do, you know, direct officers to
21 do certain things. Yes. But as far as officially training,
22 no.
23 Q Are you, in your supervisory capacity -- I don't want
24 to say empowered, authorized. Is part of your job as a
25 supervisor to make sure that the people you're supervising

829
1 follow the Portland Police Bureau policy?
2 A Yes. That's a responsibility of a supervisor and
3 other officers for each other.
4 Q Could you tell us the Portland Police Bureau policy
5 regarding displaying of the issued --
7 BY MR. STUFF:
8 Q -- ID badge on the outermost garment?
9 THE COURT: There is an objection based on relevance.
10 And so --
11 MR. STULL: Oh.
12 THE COURT: -- if you need to talk to me about its
13 relevance, then I'll have to ask the jury to stand aside.
14 MR. STULL: I would have to do that, Your Honor.
17 (Jury exits.)
18 (Counsel confer.)
19 THE COURT: Okay. What is the relevance of this --
20 of the question of policies about --
21 MR. STULL: Your Honor, I know from my --
22 THE COURT: -- identification.
23 MR. STULL: I know from my response from a sergeant
24 at the Portland Police Bureau, that it is, in fact, a uniform
25 policy that the --

830
1 THE COURT: But what's the relevance of the uniform
2 policy here?
3 MR. STULL: Oh. He was supervising a gentleman that,
4 in that photograph, is clearly out of uniform, because they
5 must display their nametag. It must be displayed. You can't
6 display it if you're covering it with a taser or anything like
7 that.
8 THE COURT: But what's --
9 MR. STULL: It must be displayed.
10 THE COURT: But what is the relevance to the charges
11 and defenses in this case?
12 MR. STULL: Credibility, Your Honor.
13 THE COURT: That is not something that impeaches
14 credibility.
15 MR. STULL: No, Your Honor. The gentleman -- excuse
16 me. Officer Engstrom is a 240-pound man who was wearing
17 glasses, although he doesn't need them, to read as he did
18 yesterday, or whenever he testified. Don't hold me to that.
19 But in his testimony, he said he didn't need to read the
20 glasses -- need the glasses to read. He wore the glasses. He
21 has a hair proof head. He's trained in defensive tactics. He
22 recognized the legal mandate as a form that he knows the rules
23 on use of force. He talked a little bit about how the Graham
24 standard was superseded. And the entire time of this event at
25 Portland City Council, Officer Engstrom was out of uniform

831
1 because his nametag, which is mandated that it be displayed, so
2 it could be read --
3 When citizens have an interaction with a law
4 enforcement officer, the -- for example, I'll cover my eyes,
5 because of my disability. I need to have a break from the
6 fluorescent light. So this is the easiest way to do it, Your
7 Honor. No disrespect to anybody. The -- and you can interrupt
8 me if you feel appropriate. I'm not hiding from you.
9 The requirement is that the nametag be displayed.
10 That's a policy. I'm asking my legal advisor to identify that.
11 If I hadn't had my thumb drive taken at the time of the arrest,
12 I could simply -- I already have it on my thumb drive. I've
13 done this. Like I said, I had the interaction with the
14 Portland Police Bureau sergeant confirming that as the policy.
15 And they saw that as a training opportunity.
16 And all I'm saying, Your Honor, is the fellow that
17 was testifying and the fellow in the videos and the fellow in
18 the photograph are the same fellow. And he was out of uniform.
19 And his supervisor allowed him to be out of uniform. And how
20 that impacts me as a person who's trying to get ambulance
21 transportation and is not getting it, when, instead, I got what
22 seemed to be, as part of my training and experience, an
23 individual who's hiding his name, because he's a thug.
24 The Portland Police Bureau has a policy to display
25 nametags. And I see officers that put pens in front of their

832
1 nametags to keep that from being identified. They'll put their
2 radio microphone over the nametag to keep it from being --
3 themselves from being identified. They'll put their taser over
4 it. The most offensive to me, Your Honor, is the taser,
5 because that says two things.
6 One, we have a practice at the city of Portland that
7 brought the Department of Justice into town, of overuse of
8 tasers, the repeated cycles on the same person with tasers, and
9 two people using a taser at that same time. And so, for
10 someone to, one, violate the uniform policy to cover up their
11 name is one thing. But to do it with a taser is not only
12 saying I am able to do whatever I want no matter what the rules
13 are, part of what I want is to use this taser. And I'm going
14 to get away with it, because I have a shaved head. And if
15 Barry Joe Stull has a beard I can grab, when I get to tussle
16 with him, he's not going to win, because, look at me, I've been
17 trained with 20 years' experience. And I can grab his beard.
18 And he can't grab my head, because it's slicked down.
19 THE COURT: You --
20 MR. STULL: He can't poke my eyes, because I'm
21 wearing glasses.
22 THE COURT: I'm sorry to interrupt. But talking
23 about who's got a beard and who's bald is not helping me --
24 MR. STULL: It's helping me.
25 THE COURT: -- at all.

833
1 MR. STULL: As the person trying to get --
3 MR. STULL: -- medical treatment and, instead,
4 getting a gargantuan thug --
5 THE COURT: I am trying to understand --
6 MR. STULL: -- covering up his name.
7 THE COURT: I am trying to understand what the
8 significance of this argument is. You said it was credibility.
9 MR. STULL: It has to do with --
10 THE COURT: Credibility --
11 MR. STULL: -- Officer Engstrom not following the
12 exact, specific, clearly stated policy. I'm only getting
13 frustrated, because I can't figure out why Mr. Kelley can't
14 find that. I found it in 30 seconds when I looked it up, Your
15 Honor. It's a PDF --
17 MR. STULL: -- document. But the point I'm trying to
18 make without the value of the document is I know that the
19 nametag must be displayed on the outermost garment. And that's
20 because you can't have the nametag and then put your jacket
21 over it, so your nametag is no longer displayed. Display means
22 display. You can't display your license plate in your car and
23 have it all covered up with pens. You can't put a toy gun on
24 your license play so it's not displayed. It must be displayed.
25 We have all our traffic laws. You must display no white lights
834
1 to the rear except for the backup lights. We have display.
2 It's a word. And the --
3 MR. KELLEY: You can ask the witness if that's
4 policy. He may agree with you.
6 MR. STULL: Is that the policy, Your Honor? If I can
7 resolve this by having him say that his --
8 THE COURT: He said that he could read the nametag.
9 So --
10 MR. STULL: He said I'm going to say I can't, and the
11 photograph says he can't. You can't get all the letters in
12 that photograph --
13 THE COURT: I'm ruling this irrelevant. I'm going to
14 sustain the objection. I don't think it's impeachment. And I
15 don't think it's proper impeachment.
16 MR. STULL: Your Honor, please.
17 THE COURT: And therefore, I have ruled. And
18 we're --
19 MR. STULL: I'm --
20 THE COURT: -- going to move on.
21 MR. STULL: I'm -- it's 10:00 in the morning. I
22 showed up here at 9. I said as a person with a disability, I
23 may need to take a break. So if I could please have --
24 THE COURT: We'll take a break, but we're --
25 MR. STULL: -- two minutes.

835
1 THE COURT: -- not going to take our 15-minute break,
2 because we have --
3 MR. STULL: No, I only asked for two.
4 THE COURT: We started this -- as far as the jury is
5 concerned, we started this at -- like 20 minutes ago. So --
6 MR. STULL: I understand, Your Honor.
7 THE COURT: -- we'll take a five-minute break --
9 THE COURT: -- and then we'll be back.
10 (Break taken from 10:04 a.m. to 10:13 a.m.)
11 MR. MCMAHON: Your Honor, during the break, as we
12 were walking out off the record, Mr. West is sitting in the
13 gallery and he made repeated comments to the effect of I think
14 it was lying Nazi thug. I wasn't sure if he was referring to
15 me or Sergeant Axthelm. At this point, I'd ask that he be
16 excluded from the courtroom if he's going to make comments like
17 that in the back.
18 THE COURT: I would exclude him at this time. But
19 any other comments to any of the participants, regardless of
20 whether we're in session or out of session, particularly
21 about -- to any witness, will not be allowed. And you will be
22 excluded if you violate that rule.
23 UNIDENTIFIED SPEAKER: I understand, Your Honor.
25 We'll start. We'll bring the jury back.

836
2 (Jury enters.)
3 THE COURT: Very well. You may proceed.
4 BY MR. STULL:
5 Q Did you have any role in what we call escort, moving
6 a person who's in custody, from outside of the council
7 chambers?
8 A As I mentioned earlier, I escorted Mr. Davis --
9 Q But --
10 A -- from the council chambers down to a patrol car.
11 Q And did you escort me, at any point, from the council
12 chambers?
13 A I can't recall if I did. If anything, it would have
14 been just to the front of the council chambers, and then an
15 officer took over for me. But I was predominantly with Mr.
16 Davis the whole time.
17 Q Were you aware of when I left the council chambers?
18 A I can't say exactly that I can recall that. No. I
19 believe you went out -- they escorted you out the -- it would
20 be the south doors, I believe.
21 Q If I could refresh your memory. The one side of the
22 room has the big clock called Time Matters. It's an art piece.
23 And that's on the north side of the building.
24 A Yeah. I believe you went out the south, because we
25 went out the north with Mr. Davis. In order for you to get
837
1 back to the north, you would have had to have been escorted
2 around the table or between where we were with Mr. Davis. So
3 you'd probably go out the south door or something.
4 Q Can I maybe refresh your memory with looking at
5 the --
6 A Sure. Go ahead.
7 Q -- video we had up there already today?
8 MR. STULL: It's the desk, the City Council desk I
9 guess what we'll call it, where the City Council.
11 BY MR. STULL:
12 Q That right there.
13 A Okay.
14 Q So --
15 MR. STULL: You can stop it any time you want.
16 (Video ends.)
17 BY MR. STULL:
18 Q So from there --
19 A Do you want me to point?
20 Q Where are you referencing is north and south, so we
21 know which --
22 A Okay. The council members sit here.
23 Q Okay.
24 A They face out to the east.
25 Q Okay.
838
1 A The north would be up here.
2 Q Okay.
3 A The south would be down here. You initially were
4 escorted by Officer Engstrom (indiscernible). And then there
5 was a confrontation there while Officer Singh and I went down
6 to Mr. Davis. So your escort I believe went out the south
7 door, because in order for you to come back north, you would
8 have had to come between the confines right here, where I was
9 with Officer Singh, or they would have to take you around the
10 table, around the long ways to go to the north side
11 (indiscernible).
12 Q Okay. So I guess what are your -- what I'm
13 understanding from your testimony is you're not sure which --
14 whether the -- on this side closest as we view this scene -- or
15 over to where the flags are, if you can look at the picture
16 there, because --
17 A My understanding is you went through the south door,
18 which would have been at the top. That's my understanding.
19 Q And what informs that understanding?
20 A The visual cue that I had of the direction you were
21 heading to begin with. And I did not see you coming behind me
22 or in front of me when I was on the ground with Mr. Davis.
23 Q As the person in -- did -- were you the top
24 supervisor regarding control of this -- I'll call it the event.
25 Were --
839
1 A Yes.
2 Q You were the person that was --
3 A Yes.
4 Q -- the top decision maker?
5 A Yes.
6 Q And at what point did you become informed that I had
7 inquired after an ambulance transport?
8 A I believe I heard you when I first initially went
9 into the chambers yelling that you needed an ambulance.
10 Q And do you know what time that was?
11 A I don't have the time. I'd have to look at the call
12 and see. I believe I asked for an ambulance at that point.
13 Q So we can all rest, because these events are all time
14 coded. And even though one might be a video like we're looking
15 at, and one might be something else, I think that -- and the
16 clock itself that we just referenced there.
17 My question is -- if we can proceed while we're here
18 and just expedite things, if we could proceed past the point
19 where the three we've already identified is Officer Singh. In
20 the middle is Officer Engstrom. And you, sir, are on the far
21 side. And I'm that fellow in the middle. And I would like to
22 see when it gets to the point where it's only Officer Engstrom
23 and the other two are Officer Singh and Officer -- excuse me --
24 Sergeant Axthelm are not in contact with me physically. It
25 should be in the matters -- 30 seconds or --

840
2 THE WITNESS: I think that's probably a different
3 tape.
4 (Video end.)
5 MR. MCMAHON: Mr. Stull, are you referring to this
6 video or a different video?
7 MR. STULL: I think it's in this video, actually,
8 enough that --
9 THE WITNESS: Because if this is the one --
10 MR. STULL: -- I can inquire.
11 THE WITNESS: -- we just went through it.
12 MR. STULL: Yeah.
13 THE WITNESS: It ends right --
14 MR. STULL: But continue.
15 THE WITNESS: It ends, and you don't see the
16 separation if I remember, but go ahead.
17 MR. STULL: Well, let's confirm that, because --
18 while we're here.
19 (Video plays in court.)
20 MR. DAVIS: You fucking (indiscernible) Nazi prick.
22 shit.
23 MR. STULL: I have a disability. You fucking piece of
24 shit. You are a piece of fucking shit.
25 (Video ends.)
841
1 MR. STULL: Okay. Stop right there.
2 BY MR. STULL:
3 Q Okay. If -- the scene we're looking at is on the left
4 is what? Our left, just facing this. So you're kind of turned
5 around, but, you know, the far side from where you're sitting.
6 You can walk around if you'd like to point.
7 A Right here?
8 Q Yes.
9 A That's Mr. Davis, as I mentioned before. He's on the
10 ground. He's being held there by security. And he's being held
11 there.
12 Q And you just left, obviously, from where you were over
13 there. Can you tell us why you walked from the -- where we're
14 looking at? Apparently, there's a nametag. Do you see where
15 I'm referring, right --
16 A You were just placed in --
17 Q Right there.
18 A Right there?
19 Q Right there. Yes. Yes.
20 A You were just placed in handcuffs there.
21 Q And you moved. And why did you --
22 A You --
23 Q -- move?
24 A I was going to explain.
25 Q I want -- thank you.

842
1 A You were handcuffed. You kind of settled down for a
2 little bit. I looked at Officer Engstrom to basically say he
3 needs to be escorted out. I will (indiscernible) being taken
4 out of the building at that point. There's another officer
5 coming. We went down to assist security with Mr. Davis and
6 placed him in custody.
7 Q Okay. At the time you walked, apparently, to deal
8 with another matter, over to the left of the screen, was it your
9 understanding, once you turned your back, that I would be
10 leaving the council chambers --
11 A Yes.
12 Q -- on the way to the patrol car?
13 A Yes.
14 Q Okay.
15 MR. STULL: Can you roll that forward until I'm on the
16 table there?
18 UNIDENTIFIED SPEAKER: Good. Fuck you
19 (indiscernible).
22 (Video ends.)
23 MR. STULL: Stop, please.
24 BY MR. STULL:
25 Q What is that maneuver that Officer Engstrom did under

843
1 your supervision at that point?
2 A I don't know if that's a maneuver that he did or you
3 laying on the table. Because that's no training maneuver I've
4 seen that we would do. I think Officer Engstrom was trying to
5 keep walking with you at that point.
6 Q So, at that point, we were heading out past the
7 American flag we can see there?
8 A You'd be heading out the south door. Yes.
9 Q Out that way.
10 MR. STULL: Okay. Can you do that video. We have the
11 other one that's going to run. This is going to run very
12 shortly. Okay. And if I could get to -- it would have to be --
13 since Mr. Davis' video was stopped prior to that, it would have
14 to be the silent timecoded security video.
15 MR. MCMAHON: So for the record, State's Exhibit 3.
16 MR. STULL: Could somebody facilitate that, please?
17 I'd like to look at State's Exhibit 3 at about that same time.
18 So just if you know where that is on the time coder, generally,
19 so --
20 MR. MCMAHON: I'll (indiscernible).
21 MR. STULL: Thank you, Your Honor. I mean thank you,
22 Your Honor, for bearing with us.
23 But thank you, Mr. McMahon.
24 (Pause)
25 MR. STULL: And just to the point where Officer

844
1 Engstrom is turned around and with me solo, and like we just
2 watched from the other view. Okay. Here we are.
4 MR. STULL: You could stop that. Thank you. That was
5 perfect timing. If you can just turn it off or pause, I can
6 ask -- I'm sorry. If you have to do it all over again, don't
7 worry about it. We'll see it again.
8 BY MR. STULL:
9 Q The question I have is did that look to you like you
10 described, that I was lying down? Or did that look like Officer
11 Engstrom was actually moving me to that table?
12 A Again, I'd have to see it. And I don't know a tactic
13 where we lay somebody down on a table.
14 Q You're not familiar with a tactic to do that?
15 A I'm not familiar with a tactic where we would lay
16 somebody down on a table like that. If somebody is violently
17 resisting, at times, we have. But the preference would have
18 been to keep escorting you unless he felt there was some need to
19 hold you there.
20 Q With a wrist lock it apparently looks like. Is that
21 true?
22 A I can't tell from that photo if he's got a wrist lock
23 on you or not. I would expect my officers to -- somebody who
24 we've had issues with, to keep ahold of a person who's detained
25 at that point, and a wrist lock is an approved method to do

845
1 that.
2 Q How hard do you do that? And how long do you do that?
3 A A wrist lock?
4 Q Yes. We're looking at it. Say we started right
5 there. How long in a person in that position, in that setting,
6 would it be appropriate, as you being his supervisor, to apply
7 the wrist lock?
8 A Well, I can keep a wrist lock on you like this without
9 putting any pressure or I can put pressure on it. From a photo,
10 you can't really tell the difference, I think. So I wouldn't be
11 able to tell you exactly whether he had a wrist lock on whether
12 he just had the move on.
13 Q Oh. Could -- did you hear me there on the table
14 screaming State versus Gaines?
15 A I've heard you yell that numerous times. Yeah.
16 Q Do you know what that means?
17 A No. Go ahead and --
19 THE WITNESS: -- advise me.
20 MR. MCMAHON: We're going into a legal matter. I
21 don't think it's --
22 MR. STULL: That's fine. It's all -- it's a statement
23 I -- we can head that repeatedly, and I'm just asking if he
24 heard me say it and if he knew what it meant.
25 THE COURT: He can say what he heard you say. He --

846
1 we're not going to go into discussing what that may or may not
2 mean.
3 MR. STULL: Oh, that's fine.
4 THE COURT: Okay.
5 MR. STULL: It's important for my exploration here,
6 Your Honor. So excuse me if you all don't understand where I'm
7 going with this.
8 BY MR. STULL:
9 Q If -- I think it's only another minute or two until we
10 see Mr. -- or excuse me, sergeant. I misspoke.
11 MR. STULL: Sergeant Axthelm again. So if you
12 could -- if you -- even fast forward will work, so we can see
13 what plays out here.
15 MR. STULL: Was that the end?
16 MR. MCMAHON: Yes, it is, Mr. Stull.
17 BY MR. STULL:
18 Q Did you have a recording device, as a supervisor, on
19 you?
20 A No. No. I've never worn a recording device.
21 Q Yeah. Well, why not? I've been recorded by people
22 with a recording device. So why weren't you --
23 MR. MCMAHON: Okay. Objection, Your Honor. I would
24 object to his comments about I've been recorded by people with a
25 recording device. I would ask that that be stricken and that he

847
1 simply ask.
2 THE COURT: Yeah. It --
3 MR. STULL: Well, that's fine. I know that --
4 THE COURT: The asides --
5 MR. STULL: I'll rephrase it.
6 THE COURT: -- will be stricken. So just ask
7 questions.
8 MR. STULL: No. I'll -- I'm sorry, Your Honor.
9 I'm -- it's been an interesting morning. I'll just qualify it
10 as that.
11 THE COURT: If you'd just ask questions, that would be
12 best.
13 MR. STULL: I would like to do that, Your Honor.
14 Thank you.
15 BY MR. STULL:
16 Q What happened after that tape ended?
17 A As I mentioned, you were escorted out of council
18 chambers, placed in a patrol car. And Mr. Davis was escorted
19 out of the council chambers to a patrol car. They were waiting
20 on Southwest 3rd.
21 Q And when Sergeant Price came on the scene, were you
22 his supervisor?
23 A He is a sergeant. I'm a sergeant.
24 Q Were you his supervisor?
25 A That's the same rank.

848
1 Q Were you his supervisor?
2 A Again, that's the same rank. We don't supervise a
3 sergeant.
4 Q So who made the decisions that day in council
5 chambers, at City Hall, as to what tactics were going to be
6 done, who was going to go where? How did you and another
7 sergeant work that authority out since you're both, as you've
8 said several times -- I'm not going to go into that again.
9 You're both the same authority. You said you were in control of
10 the -- you were in control of that event, as we clarified -- or
11 qualified. Excuse my misspeaking.
12 You were the person in charge of that event, and then
13 Sergeant Price came on. And what happened to you being in
14 charge?
15 A I was still in charge of the event.
16 Q That's --
17 A Sergeant Price was there for a different issue.
18 Sergeant Price was called there to do the investigation for the
19 use of force based on DOJ contract. And he was there to
20 investigate it as a use of force issue based on DOJ issues at
21 the present time for a 940. So his role is in that part of the
22 940 investigation. I was still lead as far as the operational
23 sergeant.
24 Q Okay. So as far as Portland Police Bureau personnel,
25 the person that was deciding this event should happen over here
849
1 and these people should go over there, you're still saying that
2 you were the person in charge even though Sergeant --
3 A I was in charge of the event that took --
5 A -- place at the council chambers on the day in
6 question.
7 Q Do the -- do you yield to council commissioners as a
8 police officer -- or a sergeant but a member of the police
9 bureau?
10 A I guess you'd have to explain what you mean by that.
11 Q If you're saying we want to everybody to stay, and
12 over here somebody says no, I'm a councilperson and I want
13 everybody to leave. Do you allow that person to make a decision
14 while you're supervising the event or do you have, as a
15 position, the ability to simply say I'm the police officer here,
16 I'll tell what -- I'll tell people what to do?
17 A Well, again, the mayor is my boss. The mayor chairs
18 the council. The commissioners, shall we say in simplified
19 version, it's their house. Okay.
20 Q Okay.
21 A We were asked to come into their house on an issue at
22 their house. And they advised us, initially, what they wanted
23 to do. And that was to ask you to leave and have you leave
24 council chambers and the building that day.
25 Q Okay.
850
1 A And they initially did not want to press charges for
2 trespass even though they advised us that they had probable
3 cause to do that and we had probable cause to do that. But they
4 wanted, basically, you to leave. That was my position with the
5 officers. That was my position with the plan, was to get you to
6 leave. In fact, my plan was to basically get chambers
7 evacuated. And we probably would have stayed there with you for
8 a while to evaluate where to go next. And I would have had
9 time/distance on my side.
10 Instead, the issue got accelerated with what took
11 place when we were going to arrest Mr. Davis, and the conflict
12 that took place between you and Office Engstrom, which
13 facilitated a custody issue.
14 Q I've got a question of that -- without the aid of the
15 video. There's a -- do you recall speaking to me and, at one
16 point, putting your hand in my chest?
17 A Yes, it's on video.
18 Q Right. And then we can -- do you recall saying --
19 telling me to sit down?
20 A I told you to sit down, and I believe I told you to
21 back up when you kept walking toward me.
22 Q And there's some issues in the video with where we see
23 you're pointing. I'm just telling you what I'm talking about.
24 At one point, you point to Mr. Davis, that he's -- to trespass
25 him on, to arrest him for trespass; is that correct?

851
1 A Yeah. I believe we went over that yesterday
2 afternoon, that I made instruction that his arrested for
3 trespass.
4 Q Okay. Now at the time that -- where we're at with
5 that, while you're pointing to have Mr. Davis arrested for
6 trespassing, as we just mentioned, you were in a conversation
7 with me, at least as far as instructing me to sit down and back
8 up, right?
9 A I believe that was a bit after, but yes.
10 Q Right. I'm going sequentially, so we can go through
11 this.
12 A Yes.
13 Q And then, at one point, your conversation with me was
14 replaced with Officer Engstrom's conversation with me.
15 A Because Officer Singh and I stepped forward to place
16 Mr. Davis in custody. But then the issue happened between you
17 and Mr. -- and Officer Engstrom.
18 Q When you came into council chambers and saw me, was --
19 as you mentioned, the intent wasn't to do anything more than ask
20 me to leave. Yet, Officer Engstrom is seen placing his hand on,
21 first, my hand and his hand on my upper arm.
22 A Uh-huh.
23 Q Could I have left with him holding me like that?
24 A I believe he probably would have let you go if you
25 would have walked.

852
1 Q What if I tried to get him to unclasp from holding my
2 hand?
3 A Again, I believe that he -- if you would have said
4 hey, I'm leaving, he probably would have let you just walk out.
5 That isn't what took place.
6 MR. STULL: I'm anticipating the law enforcement
7 witnesses. And --
8 MR. MCMAHON: Objection, Your Honor. He's going into
9 what he --
10 MR. STULL: Excuse me.
11 THE COURT: Yes.
12 MR. STULL: It's a leading question.
13 THE COURT: No, it's not. Just ask questions or
14 address me.
15 BY MR. STULL:
16 Q Did Officer --
17 MR. STULL: It's hard enough for me to do this, Your
18 Honor.
19 BY MR. STULL:
20 Q Did Sergeant Price transport -- excuse me. The word
21 we use here is escort a prisoner.
22 A I believe -- I don't know if he came in -- what time
23 he came in to be honest with you.
24 Q And do you know who assisted, if anybody, Officer
25 Engstrom in the route from council chambers to the elevator down

853
1 to the first floor, out the front of the building, across the
2 plaza, into the police car? Do you know who accompanied Officer
3 Engstrom with that?
4 A Not without reading some of the other reports.
5 Q But you don't know right now --
6 A No, I don't know right now.
7 Q -- from your recollection?
8 A No.
9 Q Okay. Did you have any role in the after-incident
10 report produced by Sergeant Price?
11 A Again, I interviewed people who were in the council
12 chambers. And those statements were used, I believe, in the 940
13 investigation.
14 Q If you could tell us what 940 investigation means.
15 A Right. As I mentioned earlier, it's a -- on this one
16 it was a force issue that the Department of Justice asked us to
17 investigation when there's a use of force. In this instance,
18 the -- basically, the cupping, resistance against him, that's
19 where Officer Price came in to do that investigation. We have
20 our officers, or in this case it was me, interview witnesses who
21 might have seen the use of force. And then one sergeant writes
22 that after-action, which can be a fairly lengthy amount of time
23 to get that done.
24 Q Did you see Officer Engstrom's, as you referenced,
25 Department of Justice report to them?

854
1 A Report to who?
2 Q From Officer Engstrom to the United States Department
3 of Justice.
4 A Well, Officer Engstrom doesn't write a report to the
5 Department of Justice. He wrote his police report.
6 Q If I may actually get the document, we'll see if you
7 have any interaction or experience with that particular
8 document. And if you don't, then that's fine.
9 MR. STULL: Your Honor, may I approach to show him
10 what we discussed?
11 THE COURT: For the purpose refreshing his
12 recollection.
13 MR. STULL: Yes.
14 THE COURT: Yes.
15 MR. STULL: Or just to see if he --
16 THE COURT: Well, if -- for the purpose of --
17 MR. STULL: Yes.
18 THE COURT: -- refreshing his recollection. That is
19 the only question.
20 THE WITNESS: Okay. This is not a Department of
21 Justice report. This is a Portland Police Bureau supplemental
22 report. This is his force data collection sheet.
23 BY MR. STULL:
24 Q Right. That's what I'm -- that's what -- is that the
25 page that says legal mandate? Does it say legal mandate on

855
1 there? We might have page 2 of 3. And we might need --
2 A I'm looking at page 2 of 3.
3 THE COURT: The document itself is not admitted and it
4 will --
6 THE COURT: -- not be admitted.
8 THE COURT: So what the document says will not be
9 related either by the witness or by you. But you can use it to
10 refresh his recollection about questions to him where he -- his
11 recollection isn't clear if he's testifying to admissible --
13 THE COURT: -- evidence.
15 MR. STULL: 27, 28 --
16 MR. MCMAHON: I believe --
17 MR. STULL: We're looking for 26.
18 MR. MCMAHON: I believe Mr. Gibson has that front
19 page. It's not been admitted into evidence, but you did turn it
20 over to the --
21 MR. KELLEY: Mr. Gibson has it.
22 (Defendant and clerk confer.)
23 MR. STULL: No. This is still 2 of 3. I have my own.
24 I'll get my own. Less time than --
25 MR. MCMAHON: And, Your Honor, at this point, I'd

856
1 object to relevance and hearsay. It's a report written by
2 another officer. It's already been excluded. I don't think
3 it's --
5 MR. STULL: It's been excluded?
6 THE COURT: -- what was the question exactly? We've
7 had --
8 MR. MCMAHON: I couldn't tell. He was --
9 THE COURT: -- quite a bit of colloquy about exhibits
10 and so forth. And I think I've lost track. What question --
12 THE COURT: -- is pending?
13 MR. STULL: -- since it's my witness, technically, I'm
14 asking the question. And the question I'm trying to --
15 THE COURT: Well, that's fine, but there's an
16 objection to the question. I was just asking you to repeat what
17 the question is for the witness.
18 MR. MCMAHON: Just, very generally, questions about
19 this use of force report?
20 THE COURT: Well, what question do you propose to ask
21 him?
22 MR. STULL: Oh. It's just that if he had any
23 involvement in the production or had any knowledge of this
24 particular Department of Justice use of force report prepared
25 by --
857
1 THE COURT: Well, wait a second. Whether he had an
2 involvement in -- you can ask him that question, whether he had
3 involvement in that document.
4 MR. STULL: I -- yeah. I want to just see if he's
5 aware of it at all. We'll start with that.
6 THE COURT: Well, ask him if -- you said you were
7 going to ask him if he had involvement in the production of that
8 document. So he can answer that question.
9 MR. STULL: That's a stupid question. That's all.
10 THE COURT: Well, whatever.
11 MR. STULL: (indiscernible) that's (indiscernible).
12 THE COURT: If he was involved in the production of
13 that document.
14 MR. STULL: I can narrow this down.
15 THE COURT: Wait. You're going to ask him that
16 question.
17 MR. STULL: I'm going to ask him one question, Your
18 Honor.
19 THE COURT: That question. That question. You said
20 you were going to ask him if he was involved in the production
21 of this document. That is the question --
22 MR. STULL: That's --
23 THE COURT: -- I am permitting.
24 MR. STULL: Right. Okay.
25 THE COURT: Okay.

858
1 MR. STULL: I was not going to (indiscernible). It
2 would be narrow, Your Honor.
3 BY MR. STULL:
4 Q As you role as supervisor, did you have anything to do
5 with the production -- your officer you were supervising
6 document you're looking at there?
7 A This is a force data collection sheet. On the bottom,
8 it's reported by Todd Engstrom. It's page 1 of 3.
9 THE COURT: Could you tell us just --
10 THE WITNESS: The officer --
11 THE COURT: -- whether you were involved in the
12 production of it rather than --
13 THE WITNESS: I did --
14 THE COURT: -- reading what the document is?
15 THE WITNESS: I did not make it. I did not assist him
16 with it.
17 THE COURT: Okay.
18 MR. STULL: Okay. That's all I wanted.
19 BY MR. STULL:
20 Q Sergeant Axthelm, what charges were -- was -- do you
21 think that I -- let me see.
22 MR. MCMAHON: Your Honor, I'm going to object.
23 It's --
24 MR. STULL: No, no, Your Honor.
25 THE COURT: No. Wait until we've heard the whole

859
1 question. I know that you've got an objection.
2 MR. STULL: I've having some hulk speech, Your Honor.
3 THE COURT: So don't answer until I've ruled on the
4 objection.
5 MR. STULL: Excuse me, Your Honor. I'm talking over
6 everybody. I'm experiencing hulk speech. If I can just kind
7 of --
8 THE COURT: Please just --
9 MR. STULL: I'm trying to do my role here.
10 THE COURT: Okay.
11 MR. STULL: Okay. And that's what --
12 THE COURT: Ask your question.
13 MR. STULL: That just made me lose that question, but
14 I have plenty of other things that I'd like to ask.
15 BY MR. STULL:
16 Q Are -- in this instance -- the question I had
17 before --
19 BY MR. STULL:
20 Q At the point of my encounter with Officer Engstrom,
21 what was I arrested for and -- because you said there was -- to
22 ask -- excuse me if I'm -- you said that your intention was to
23 simply ask me to leave and go. And I'm asking that once Officer
24 Engstrom placed his hand on mine and his arm, as we discussed,
25 what was I arrested for there? What was the charge?

860
1 A I don't think you were arrested at that point.
2 Q Well, at some point.
3 A I think you were arrested after the assault took place
4 against Officer Engstrom, based on the video and based on his
5 statement.
6 Q Okay. Did he -- were you aware of any injuries at
7 this event?
8 A Officer Engstrom?
9 Q Any? Were you aware of any injuries at this event,
10 regarding --
11 A I believe Officer Engstrom --
12 Q -- the whole thing that day, November 25th?
13 A I believe Officer Engstrom had some bruising.
14 Q So Office Engstrom had some injuries?
15 A Yes.
16 Q He talked to you about that or -- how'd you learn --
17 or excuse me. Let me rephrase that. How did you learn that
18 Officer Engstrom had some injuries?
19 A I believe it was a few days later. He saw some
20 bruising in that area and some soreness. And it was brought to
21 the attention of me and probably Officer -- Sergeant Price, who
22 was doing the after-incident.
23 Q So if I can put these together and take them apart.
24 You and Sergeant Price were both at City Hall Council Chambers
25 on November 25th. And you were in charge even though he was a

861
1 sergeant. He arrived, but you had command I'll say of the
2 event. And then some days later, Officer Engstrom and Sergeant
3 Price and you were in the process of understanding that he'd
4 been injured -- Officer Engstrom had been injured. Are you with
5 me?
6 A Again, I was the --
7 Q The three of you were all there.
8 A I was the sergeant in charge --
9 Q Okay.
10 A -- at the council chambers.
11 Q Right. I'm speaking of -- you just mentioned that --
12 you learned of his injury. He had some bruising a couple days
13 later. And then you and Sergeant Price and Officer Engstrom
14 were all aware of the arrest being for assault of Todd Engstrom?
15 A Well, the assault charge was filed that day against
16 you. Had nothing to do with the bruising. The bruising just
17 showed up a few days later.
18 Q So the day --
19 A The assault charge was -- happened as we saw in the
20 video, assault on a public safety officer. That took place. He
21 observed it. I did not observe it. I didn't observe it until I
22 happened to see the video at one point --
23 Q When?
24 A -- which was quite a while ago.
25 Q That's fine. My --
862
1 A That's what he charged you for.
2 Q Okay. Excuse me for interrupting, but I didn't need
3 anymore.
4 A I was just trying to answer your question.
5 Q You can, but I wasn't inquiring anymore on that and I
6 wanted to move on with that. So the day of the event, November
7 25th, 2015, you were not watching Officer Engstrom in -- as he
8 was injured?
9 A Again, I was --
10 Q Describe it.
11 A I was going to arrest Mr. Davis --
12 Q Right.
13 A -- who was in front of you. My back was toward you.
14 I didn't see the incident. I just saw something out of the
15 corner of my eye.
16 Q Thank you. That's all for that.
17 We have a photograph in evidence of an arm that was --
18 MR. MCMAHON: Do you know what exhibit it was?
19 BY MR. STULL:
20 Q And I believe we're just going to establish that
21 you're the one who took the photograph.
22 MR. STULL: I believe that Officer Engstrom testified
23 to that.
24 THE COURT: Do you want to look at the exhibits --
25 MR. MCMAHON: It is --
863
1 THE COURT: -- to see which one you want to use?
2 MR. MCMAHON: It is Exhibit 14, Mr. Stull.
3 MR. STULL: Do you have that, Mr. Gibson? And I'll --
4 just to make sure that he's the photographer. We don't need the
5 person claiming to be on there. I just want to make sure that
6 the photographer is him.
7 BY MR. STULL:
8 Q Okay. Is Exhibit 14 a photograph of the bruise that
9 you took from Officer Engstrom?
10 A I believe that's the photo I took with my bureau
11 issued phone. And I placed it into DIMS, which is a storage
12 system that the Portland Police Bureau has to store evidence
13 photos.
14 Q Okay. And the date of that would be about a week
15 later?
16 A I believe it was recorded in the after-action by
17 Sergeant Price.
18 Q So it --
19 A But it was about two to three days later.
20 Q So if we were to refer to the after-action report by
21 Sergeant Price, we'd be able to find that photograph
22 referenced --
23 MR. MCMAHON: Your Honor, I'd --
24 BY MR. STULL:
25 Q -- through the --
864
1 MR. STULL: -- objection. It's hearsay. He's
2 referring to the contents of the report. He's not using it to
3 refresh. I'd ask that that be stricken.
4 THE COURT: Whether it would be in the report or not,
5 I'm going to sustain the objection unless whether it's in the
6 report or not has something to do with this case.
7 MR. STULL: Your Honor, everything I'm doing here has
8 to do with this case. So I'll move to another line of
9 questioning.
10 BY MR. STULL:
11 Q I want to ask you, sergeant -- we have -- I don't
12 think it's been offered into evidence. But did you call
13 regarding the incident? Did you make phone calls from or to
14 City Hall Council Chambers? Is there a bureau of --
15 MR. STULL: What are we calling it BOEC?
16 MR. KELLEY: Bureau of Emergency Communications.
17 BY MR. STULL:
18 Q Bureau of Emergency Communications. Did you have any
19 telephone calls that you made at -- that day?
20 A Boy. I have no idea. I called him -- every once in a
21 while I'll call the dispatcher. I'll call -- they have them
22 bring stuff for other calls. I'll call them on certain cases.
23 So I have no idea if I called BOEC on that day.
24 Q Can I -- oh, yes. And do you know what your number
25 was that day on the radio traffic?

865
1 A My call sign?
2 Q No, just -- when the Bureau of Emergency
3 Communications, dispatch, and those types converse over the --
4 however you all do it, do you use numbers?
5 A Yeah.
6 Q Three digit number?
7 A Are you asking for my call sign over the radio?
8 Q Yeah. So if we look on here and it's yours, then it
9 might be you. And if you tell us what that is, we'll be able to
10 find it.
11 A Yeah. My call sign on the radio is 3806.
12 Q So when you make a call, do you identify yourself by
13 that number?
14 A Okay. I'm getting confused on when you're saying make
15 a call. To me, make a call means I'm dialing a telephone.
16 Q Right. Let me maybe give you a specific example.
17 Maybe you use the radio. I'm sorry. I'm not familiar with your
18 means of communication. Did you summons an ambulance?
19 A Yes.
20 Q Okay. So if you did and there was a conversation, how
21 you would be identified?
22 A That request was made by radio. I contact them by
23 radio.
24 Q And that -- does that go to the Bureau of --
25 A That goes to BOEC.

866
1 Q Bureau of Emergency --
2 A Communication.
3 Q We call that BOEC or --
4 A Our dispatcher who monitors --
5 Q -- B-O-E-C.
6 A -- Central Net. I asked for an ambulance to standby,
7 which means an ambulance would come to the location. They may
8 wait a block off or so, depending on the situation. And they
9 would wait for further instructions, which would be relayed
10 either by an officer on scene directly to the ambulance people,
11 or it would go through radio traffic to BOEC and back down to
12 AMR, the ambulance.
13 Q Okay. You're number 3806?
14 A 3806. Yes.
16 MR. STULL: Your Honor, I would like to offer in this
17 to see if refreshes his memory or maybe he simply can follow
18 the (indiscernible).
19 THE WITNESS: It has -- we brought this up yesterday
20 too, for Barry Sull, S-U-L-L, off his meds. Have Project
21 Respond come to location.
22 BY MR. STULL:
23 Q Was that you?
24 A I don't remember saying Barry Sull off his medication,
25 because I had never met you before. So I wouldn't know if you

867
1 were on medication or not.
2 Q If we heard the audio of this statement, as is printed
3 here, would that be you?
4 A I'm not contesting that that was said. But me knowing
5 that you were off your medications, I would have no idea. It
6 could have been somebody related to me, you know, that told me
7 hey, Mr. Stull is off his medications, and I simply related that
8 to BOEC. But I have no first-hand knowledge that you're on any
9 medication.
10 Q I guess what I'm trying to narrow down here, sir, is
11 here we have two things that agree, the number 3804. Did I get
12 that right? 3806. And you're saying that that is you, 3806?
13 A 306 is me. Yes.
14 Q Okay. So I don't -- I'm not sure. This doesn't
15 appear to be a complete transcript. I only know that this is a
16 Bureau of Emergency Communication jurisdiction Portland police,
17 provided by the District Attorney in discovery. And it has that
18 statement, 3806, for Barry Sull off his meds. Have Project
19 Respond come to (indiscernible).
20 If we have audio of that, would that be you on that
21 audio?
22 A Yeah. I could tell my voice. Yes.
23 Q Do you need to hear that to know it's you or are you
24 willing to say that that's you based on the fact that your
25 number is on this page?

868
1 A Again, like I mentioned, I could have said that. But
2 again, that would have been something relayed to me, somebody
3 saying that Mr. Stull is off his medication. And then I would
4 have said hey, Project Respond is not the ambulance. It's
5 actually a social service agency that comes --
6 Q Right.
7 A -- to assist us with people in mental crisis.
8 Q Right.
9 A But the ambulance was also called.
10 Q Okay. What's central pain syndrome?
11 A I'm not a doctor.
12 Q Me neither, but I know. What's --
13 MR. MCMAHON: Objection, Your Honor. I'd ask that --
14 BY MR. STULL:
15 Q You have no idea? The question was --
16 MR. MCMAHON: -- his commentary be excluded.
17 BY MR. STULL:
18 Q -- what is central pain syndrome?
19 THE COURT: I -- yeah. Just a second.
20 BY MR. STULL:
21 Q And I don't know --
23 MR. STULL: Sorry, Your Honor.
24 THE COURT: You can ask him questions. You can repeat
25 the question. He can say yes or no. But don't engage in an

869
1 argument, okay?
2 MR. STULL: Your Honor, excuse me.
3 THE COURT: Just ask him the question.
4 BY MR. STULL:
5 Q Can you answer the question?
6 A Restate, please.
7 Q I think the answer is binary. Do you know what
8 central pain syndrome is?
9 A No.
10 Q Thank you.
11 MR. STULL: I'm sorry, Your Honor. When he answered
12 the question by saying he was a doctor, it wasn't what I was
13 seeking.
14 THE COURT: It is not necessary to discuss this.
15 MR. STULL: I am just saying that's --
16 THE COURT: Not before the jury and not here.
17 MR. STULL: All right, Your Honor.
18 THE COURT: Not now.
19 MR. STULL: I just asked a yes or no question and I
20 got a I'm not a doctor.
21 THE COURT: I am telling you --
22 BY MR. STULL:
23 Q Do you have medical experience?
24 A Do I have medical experience.
25 Q Are you a trained medical professional?

870
1 A I'm a certified EMT in the state of Oregon.
2 Q Have you ever had an encounter with someone with
3 central pain?
4 A Not that I would use that name for. No.
5 Q If somebody says to you I need an ambulance, what do
6 you do from that point? If somebody says to you -- you're a
7 police officer. We know that. You're in uniform. If I said to
8 you I need an ambulance, what would you do?
9 A I would get on my radio and I'd let dispatch -- that I
10 need an ambulance here.
11 Q How much information would you need from the person
12 requesting that ambulance before you would actually make that
13 call?
14 A Really, none. If they said they wanted an ambulance
15 for some reason, I might ask what's your condition. BOEC will
16 come back and give me, if it's threatening, i.e., are you
17 breathing, are you having chest pain, because that would change
18 the response.
19 Q Okay. So did you make an inquiry as to what my
20 medical condition was?
21 A No.
22 Q Not knowing what central pain syndrome is, did you try
23 to find out what it might be?
24 A There was never any mention of central pain. What I
25 heard was you were requesting an ambulance? I had an ambulance

871
1 come to stand by. It appeared that you were not in pain, if you
2 call it that, because you were walking around picking buckets
3 up, yelling, screaming. You were ventilating yourself. Your
4 heart was working. So it wasn't a need for a code 3 response.
5 Q How do you know?
6 A Again, because you were breathing. You were moving
7 around. You were yelling. You were screaming. You were
8 picking things up that would not quality at that point for a
9 code 3 response.
10 Q Why not?
11 A For the same reason I just told you.
12 Q Do you only summon an ambulance for an individual that
13 has identified a condition, medical or otherwise, that you're
14 familiar with?
15 A No.
16 Q If you don't know what the person is asking after, if
17 you personally don't know what they're saying they need the
18 ambulance for, if somebody says I need an ambulance for
19 something, hypothetically anything, and if you don't understand
20 what that something is, does that mean you won't call the
21 ambulance?
22 A Again, if the person requests an ambulance, which you
23 were, I requested an ambulance to respond. The code of the
24 ambulance requested, on my behalf, I told them to have an
25 ambulance staged.
872
1 Q Did the paramedics come in to respond to the request
2 for an ambulance?
3 A No. They were told to stage outside.
4 Q By who?
5 A Me.
6 Q Why?
7 A Because that was the safe zone for them to be, number
8 one.
9 Q Continue. You said number one. I thought there might
10 be another number.
11 A Secondly, paramedics or firemen don't come into a zone
12 that they feel is unsafe for treating anybody. If there's -- we
13 get called all the time to go to calls for medical assistance.
14 They won't -- they'll stand by until the scene is safe. This
15 scene was not safe at that point.
16 Q At what point?
17 A Until you were placed in handcuffs.
18 Q Pardon me, sergeant. I'm not sure we firmly
19 established what time you arrived on the scene. If somebody
20 knows that, if we've heard that, I would like to know that. I'm
21 sorry if I'm asking again. What time did you arrive at City
22 Hall?
23 A It would be in your transcript from BOEC. It would
24 have my arrival time.
25 Q The one I just showed you? Same document?

873
1 A Should be in that document. It'll show all cars that
2 were assigned, when they were dispatched, what time they
3 arrived, what time they cleared.
4 Q Are you -- based on your training and experience, are
5 you able to interpret this document if we give it to you, so
6 you'll be able to te4ll when you arrived at City Hall, November
7 25, 2015?
8 A I'm not the best at it, because the way they print it
9 out has come out a number of different ways lately with the
10 change in software.
11 Q Okay.
12 A So you feel my frustration.
13 Q All right. And I apologize for the specks on the
14 pages. We had received them in that fashion. So
15 (indiscernible) you can't read them, maybe Mr. (indiscernible)
16 got a better copy here in the room. We're not going to use it
17 for anything except for your telling us what time you arrived.
18 A Okay. I was dispatched. You want the times?
19 Q Yes, please. And --
20 A I was dispatched at 9:38, which either means they told
21 me to go or I assigned myself to the call, at 9:38:12. And I
22 was cleared at 11:57:11. There's a transport time in there
23 where I followed the officers to the jail. And that was at
24 10:27:07. And we were at the jail at 10:30:16. And then when I
25 totally cleared the whole call, meaning I was back in service,

874
1 was at 15:04:37.
3 A And that's on page 2.
4 Q Thank you so much. And you accompanied two vehicles?
5 And you would be a third one behind them? Or two people were
6 arrested, I assume.
7 A Right.
8 Q You mentioned arresting Mr. Davis and then myself.
9 Were there any more people --
10 A No.
11 Q -- arrested that day?
12 A No.
13 Q So the only people that we could possibly be talking
14 about be transported in the vehicles that you referenced, two,
15 would be the two individuals that we're familiar with from
16 watching this video, Mr. Davis, who videotaped it up to a point,
17 and myself, who was in most of the video?
18 A Correct.
19 Q Okay. Did both those cars leave City Hall at the same
20 time, the ones you were following? Or did one car go and then
21 the other one came in later -- or followed?
22 A I can't recall.
23 Q All right.
24 A I believe --
25 Q That's fine.
875
1 A I could refer to my report.
2 Q If you have it.
3 A You want me to read from my report?
4 Q Whatever the --
5 MR. MCMAHON: Your Honor, just for clarity of the
6 record --
7 MR. STULL: Judge Roberts, is --
8 MR. MCMAHON: -- and evidence issues, I think --
9 THE COURT: What's the objection?
10 MR. MCMAHON: Potentially hearsay. I think it'd be
11 appropriate if it's being used to refresh and he can --
12 THE COURT: I will --
13 BY MR. STULL:
14 Q Does that refresh your memory?
15 A Yeah.
16 Q Thank you. Whenever you're ready, the question that
17 we're exploring is simply did two Portland police vehicles
18 transport two prisoners from City Council Chambers, ultimately,
19 to the police cars? Did both those police cars leave City
20 Council at the same time? And you followed -- you said you
21 followed the car?
22 A I followed the police cars to MCDC.
23 Q So --
24 A Both cars. Two cars.
25 Q All right. So you were behind two cars?

876
1 A Uh-huh.
2 Q One of them had -- was more boxy and the other was not
3 as boxy. One was maybe a Crown Victoria and the other one was
4 Mr. Engstrom's car. Is that true?
5 A I can't recall that. We have a number of different
6 styles of police cars.
7 Q Oh, that's fine. Do you have that document or did I
8 bring it back here? I'm not --
9 A You took it.
10 Q I have it. That's fine. That's fine. Did you call
11 to the Multnomah County Detention Center stating that you were
12 brining two prisoners in?
13 A I believe I did, yes.
14 Q And what's it -- what are you trying to affect in your
15 role as the supervisor of this event at City Council which
16 involved the two arrests that were -- we've already found -- the
17 cars are on their way to the jail. People are prisoners inside
18 them. And there's a call to the jail. And my question is do
19 you advise or inform the jail that people are uncooperative
20 prior to the arrival at the jail?
21 A Yes.
22 Q Could you tell us how and why you do that?
23 A Sure. We have people we arrested that are -- have
24 been uncooperative, are not compliant to a certain extent, or we
25 fought with, we will contact the jail a lot of times, because

877
1 they have a team of corrections officers that will come out and
2 assist with getting the people out of the car and into the
3 booking facility peacefully, just based on the number of people
4 they have. It's their jail. It's an open booking situation.
5 It used to be where, years ago, we would bring somebody in. We
6 would open a door. We would put them in a room with a bench.
7 We would close the door. And then the jail staff on the other
8 side would take the people out and start processing them on the
9 far side. The process now is an open booking whereby the
10 officer takes the person in. The handcuffs are taken. There
11 are -- a couple jail staff there in the open booking area. And
12 you start to process the person there.
13 If we have people that are uncooperative, that -- or
14 that we've been fighting with, or that there's just, you know,
15 an angst between that person and the officer because of what's
16 taken place previously, we'll call and let the jail know and ask
17 them to provide deputies, corrections officers, to come out and
18 assist with that. And that usually makes it a lot smoother
19 process for both them and for us.
20 Q Do you inform, along with this process, whether
21 somebody has requested medical attention?
22 A Again, in this instance, we had an ambulance that was
23 standing by that looked at Mr. Davis. I believe they attempted
24 to assist you with medical issues.
25 Q When?
878
1 A At the scene and when you were in the patrol car.
2 Q Were you present?
3 A I was with Mr. Davis. Mr. Price I believe -- Sergeant
4 Price was with you. The ambulance was pulled behind the two
5 cars.
6 Q That's fine. My question is -- new question. I'm
7 sorry -- is -- since you brought it up. The cars were parked on
8 4th Avenue in front of City Hall.
9 A 4th, correct.
10 Q Okay.
11 A Sorry. 4th.
12 Q And what you just described was two patrol cars
13 parked -- which direction does 4th Avenue traffic flow, sir?
14 A Northbound.
15 Q Northbound. So if the ambulance was behind the other
16 cars, the ambulance was the most southerly vehicle?
17 A Probably.
18 Q Okay. And in front of those, the ambulance, two other
19 cars --
20 A At least two.
21 Q -- with prisoners.
22 A Correct.
23 Q And somewhere in there -- not important right now for
24 me -- you were parked in the neighborhood?
25 A I was parked somewhere. Yes.

879
1 Q You had a -- did you have a car?
2 A I did, yeah.
3 Q Are you aware that the security at City Council will
4 not call an ambulance once the Portland police have been called?
5 Did you ever hear that?
6 A I don't know their policies.
7 MR. STULL: Your Honor, I'm concerned about the -- we
8 have -- I was offered discovery. And --
9 THE COURT: We're not going to --
11 THE COURT: -- talk about discovery in open court.
12 MR. STULL: No, no, no. Your Honor, I'm just talking
13 about --
14 THE COURT: Do we need to talk about discovery?
15 Because we will --
16 MR. STULL: No.
17 THE COURT: -- excuse the jurors and --
18 MR. STULL: No, no, no. It's simply that the audio --
19 I have some audio, and I believe this witness is on the audio.
21 MR. STULL: And I don't believe the State --
22 THE COURT: I don't know what --
23 MR. STULL: -- has entered it --
24 THE COURT: We're not going to talk about discovery in
25 open court, but we will --

880
1 MR. STULL: No.
2 THE COURT: -- talk about it if you like to. But --
3 MR. STULL: No, no. Your Honor --
4 THE COURT: -- I don't know what you're asking.
5 MR. STULL: Okay. We have various -- as we've seen,
6 various video. I think the jury has already heard some audio
7 that has been --
8 THE COURT: Well, yes.
9 MR. STULL: -- played on the screen. And I have some
10 audio that hasn't been played yet, that I believe has this
11 witness on it --
13 MR. STULL: -- making statements. For example, we had
14 the piece of paper --
15 THE COURT: Okay. Wait a second. You have an audio.
16 If you wish to offer it in evidence and see if there's any
17 objection from the State. And if you wish to offer it, then you
18 can have it identified and you can offer it.
19 First --
20 MR. STULL: Oh.
21 THE COURT: -- has the State seen it?
22 MR. MCMAHON: And I am aware of it, Your Honor. It is
23 a 9-1-1 call. And since they're generally admissible, the
24 State -- inadmissible, the State would be objecting to it.
25 THE COURT: Okay. The State is objecting to the offer

881
1 of that testimony. If you want to talk about it further, we'll
2 do that outside the presence of the jury.
4 THE COURT: Okay. We'll take the jury out.
5 (Jury exits.)
6 MR. MCMAHON: So, Your Honor, the reason for the
7 State's concern is essentially trying to keep as clean a record
8 as possible. If Mr. Stull wants to waive any and all objections
9 to the contents of that document, that's fine. I'd be willing
10 to offer it as a joint exhibit. I just wanted to keep the
11 record clear in case there --
12 THE COURT: If you --
13 MR. MCMAHON: -- was inadmissible hearsay.
14 THE COURT: If he's offering it --
16 THE COURT: -- then he's not objecting to it. And if
17 you don't have an objection if he's offering it, then it can
18 come in.
19 MR. MCMAHON: And I just want to get that put on the
20 record. Mr. Stull has indicated he wants to potentially appeal.
21 And I think that it's important to keep a clear record that he
22 is waiving any and all objections to anything on that disk.
23 THE COURT: Is that right?
24 MR. STULL: Your Honor, please --
25 THE COURT: You --

882
1 MR. STULL: -- for a moment here. I'll tell you what
2 I have. I have a disc that has, additionally, one file folder,
3 because it's all computerized. And then you open that up. I
4 opened it up. And there's folders. And they each have various
5 audio. We have video like -- these things are all on it. That
6 was provided to me from -- Mr. Kelley is not my first legal
7 advisor on here. So I do have things that preceded him. But I
8 do have the document -- the disc --
9 MR. KELLEY: Yeah. But this is just (indiscernible).
10 MR. STULL: -- with the audio, with the video,
11 including the 9-1-1 and all those kind of things. And if the
12 State hasn't offered them as evidence or is going to --
13 THE COURT: They have not offered the 9-1-1 calls. Is
14 that what you're going to offer?
15 MR. STULL: I would like everything that I got from
16 the State regarding the Bureau of Emergency Communications or
17 9-1-1 calls --
19 MR. STULL: -- or audio at City Hall -- I want
20 everything that I was provided as discovery regarding --
21 THE COURT: Just because you --
22 MR. STULL: -- the audio and video --
23 THE COURT: Okay. Just because --
24 MR. STULL: -- or one disc? I think we may have two.
25 THE COURT: Okay.

883
1 MR. STULL: Do we have two discs for this. I believe
2 it's two discs.
3 THE COURT: Just because it was --
4 MR. STULL: I want them all in.
5 THE COURT: Just because it was turned over in
6 discovery doesn't make it admissible.
7 MR. STULL: Right.
8 THE COURT: So we'll talk about each document one by
9 one and see if we have any objections to it or whether it should
10 come in. So which are the specific separate documents?
11 MR. STULL: Okay. Regarding this witness, you --
13 MR. MCMAHON: What I can do is I can actually make a
14 clean copy, where it's just the 9-1-1 calls, so it's not a disc
15 with multiple things on it. I can --
16 MR. STULL: No.
17 MR. MCMAHON: -- go up and do that at lunch and I'm --
18 MR. STULL: No.
19 THE COURT: He's asking to introduce more than that.
20 So I want --
22 MR. STULL: You --
23 THE COURT: -- to get a list of what he wants to
24 introduce.
25 MR. STULL: Your Honor, if I --

884
1 THE COURT: And we'll take them by -- document by
2 document.
3 MR. STULL: At the risk of repeating myself --
5 MR. STULL: -- this morning when I arrived at court, I
6 said that I have, from discovery, the video, the audio, the
7 exhibits that the State entered. And we had Mr. Gibson identify
8 that they were actually numbered exhibits. These other things
9 that I have don't have anything except a randomized number that
10 is -- identifies it --
11 THE COURT: Well, we're --
12 MR. STULL: -- as a computer file. However, each of
13 those --
14 THE COURT: I'm trying to be clear too.
15 MR. STULL: -- file -- huh?
16 THE COURT: I'm trying to be clear too. I am saying
17 specific documents, tell us what they -- what you want to offer.
18 We'll see if there's an objection to them.
20 THE COURT: But what -- I don't need to hear about
21 things that have already come in. They've already come in.
23 THE COURT: And I don't -- and whether they've got
24 numbers on them or not, I want to know what they are and --
25 MR. STULL: That's my problem, Your Honor.

885
1 THE COURT: -- find it --
2 MR. STULL: Excuse me.
3 THE COURT: If you don't know what they are, I'm not
4 going to receive them.
5 MR. STULL: No. No.
6 THE COURT: I'm not going to receive anonymous stuff.
7 MR. STULL: No, Your Honor. That's not what my
8 predicament is right now. What I'm saying is we have been
9 watching Mr. McMahon show videos. We've been watching
10 Mr. McMahon -- we listened to audio. I have the disc provided of
11 discovery. I have the ability, and I did that -- and that's how
12 I'm so informed on these matters. I did that using this computer
13 with the disc that I got from the State as discovery. Each of
14 those documents has a number of files. I think maybe we're
15 talking a total of maybe 20 different files.
16 We do know now that two of those files have been
17 consolidated into one consolidated, uninterrupted, Mr. Keith
18 Davis -- the -- what we've been watching. So we have -- for
19 example, we have the numbered silent City Hall one we've seen
20 this morning. We have the over the front desk City all we've
21 seen this morning. We have the Keith Davis. I have two. I
22 mentioned this morning that I don't have a problem with
23 consolidating it into one.
24 And then we have these other things that are 9-1-1
25 calls, Bureau of Emergency Communications. You hear about

886
1 somebody talking about a tree down in Milwaukie or something like
2 that, those types of things that I have. I don't know what they
3 are other than I've listened to them. I know what I call them.
4 The State doesn't call them anything. The numbers assigned to
5 those files in the computer disc don't mean anything.
6 And so my predicament is, if I said I want to have this
7 witness identify that that's actually him on this particular
8 audio, I have the witness, I have the audio. But since they've
9 been so utterly unidentifiable except for a number that means
10 someone --
11 MR. KELLEY: Mr. McMahon has offered to make a clean
12 recording of the 9-1-1 call if that is what you would like to
13 offer.
14 MR. MCMAHON: And we could offer it as a joint exhibit
15 if you like, so -- I just want to make sure that you're not
16 objecting to the contents of that because generally speaking, the
17 contents of a 9-1-1 call are not admissible unless they fall
18 under a hearsay exception. And I am trying to keep a clean
19 record. And I want -- I'm asking you to put on the record that
20 you're waiving those objections.
21 MR. KELLEY: Is there more than the 9-1-1 call that you
22 want in?
23 MR. STULL: This is so -- this is so difficult for me
24 right now. Even -- even if I didn't have a disability, I
25 wouldn't know how to possibly allow you people to understand what

887
1 I'm trying to say. I'm going to put it in this model.
2 This is a yellow piece of paper. This is a pink piece
3 of paper. This is a white piece of paper. These are all white
4 pieces of paper, and I have the discovery from the District
5 Attorney's office, the Bureau of Emergency codes are all on white
6 pieces of paper with numbers that mean nothing to me. And I
7 would like to simply give -- say I want to listen to the pink
8 one, the white one, or the yellow one, and I can't because the
9 numbers are so absolutely -- it doesn't say BOEC file. It
10 doesn't say recording at City Hall file. It's a number. You
11 type the computer, click on the file on the little yellow thing
12 that looks like these old-time file folders that I have, you
13 click on that. It says three. One, two, three. You click on
14 that, you hear. You click on the --
15 THE COURT: You've said --
16 MR. STULL: -- other one, you see and hear. You click
17 on the third one, you don't -- you don't see, but you do hear.
18 You go to another folder within that same disc, you then get this
19 one, and it has five. One's a photograph. One's another
20 photograph. One's a photograph of Mr. Davis that has nothing to
21 do with my case, but it's on that disc, and I don't have the
22 simple labels on the jars so I can say that this one's peanut
23 butter and this one's jelly because there's no way to see the
24 contents --
25 THE COURT: Have you --

888
1 MR. STULL: -- until you open the lid.
2 THE COURT: Have you reviewed the contents at all?
3 MR. STULL: Again and again and again.
4 THE COURT: Then you have reviewed the contents. You
5 know what is in the contents of the file. I'm just asking you
6 which files you wants to pursue -- present.
7 MR. STULL: And in order for me to do that, I would
8 have to identify those files by something that would allow me to
9 simply --
10 THE COURT: Okay.
11 MR. STULL: -- locate them.
12 THE COURT: Identify them by the content. Tell --
13 MR. STULL: I don't have a title on the disc.
14 THE COURT: You say that you've reviewed them. What
15 did you see?
16 MR. MCMAHON: In the interest of making things easier.
17 I have the DVD with everything in the file. What we can -- with
18 the Court's permission just to clarify everything -- Mr. Stull, I
19 can open it on the computer. I can go through and tell him what
20 file is marked as what exhibit. And that way we can go through
21 and clarify all this out. Is that --
22 THE COURT: Okay. Why don't we do that.
24 MR. STULL: Your Honor, if I could talk while he's
25 setting this up, so -- if that's all right.

889
1 THE COURT: Well, you can --
2 MR. STULL: Here's --
3 THE COURT: -- talk, but not to me. I don't want to be
4 -- I don't want to have you talking to me while he's doing
5 something, and he's talking about the files, and I am not going
6 to entertain a three-ring circus. We'll do one thing at a time.
7 (Counsel confer.)
8 MR. MCMAHON: All right, Mr. Stull, I am --
9 MR. KELLEY: He's asking you a question.
10 MR. MCMAHON: -- this is the -- this is the disc that
11 was -- one of the discs that was provided to you in discovery.
12 The Boax (ph) stuff is on a separate disc. This --
13 MR. STULL: We have two discs.
14 MR. MCMAHON: This is a disc that was provided in
15 (indiscernible).
17 MR. MCMAHON: I'm opening the first four.
19 MR. MCMAHON: This has -- this is the audio recording.
21 MR. KELLEY: Would you maximize it, please? Thank you.
22 MR. MCMAHON: Okay. So this right here, this GN94347,
23 that was the audio. That is State's Exhibit 4.
24 MR. KELLEY: It's already in, is that --
25 MR. MCMAHON: It's already admitted.

890
1 MR. STULL: Wait. G2N94347 --
2 MR. MCMAHON: Yes.
3 MR. STULL: -- is?
4 MR. MCMAHON: State's Exhibit 4.
5 MR. STULL: Okay. And that's audio.
6 MR. MCMAHON: That is the audio.
7 MR. STULL: I have that on the card already, Your
8 Honor, but only identified as that number.
9 THE COURT: It's already in.
10 MR. STULL: Okay. Well, I --
11 THE COURT: So we don't have to talk about putting it
12 in again.
13 MR. STULL: No, we don't.
14 THE COURT: Okay, go on.
15 MR. STULL: Thank you. But I'm --
16 THE COURT: Go on.
17 MR. STULL: -- making sure they have this exhibit
18 written so I know that the number G2N94 -- just simply means 4
19 here -- State's 4, so I don't have to know that. And once -- I
20 can even re-label them on my own computer so I don't have to even
21 use that numbering system.
22 MR. MCMAHON: Okay. Mr. Stull --
23 MR. STULL: Number --
24 MR. MCMAHON: -- the one on the end, 48 --
25 MR. STULL: Is silence City Hall video with a time

891
1 code.
2 MR. MCMAHON: Yes. That has been entered as State's
3 Exhibit 3.
4 MR. STULL: All right. Thank you. We're making
5 progress. And 34 -- the one ending in 349?
6 MR. MCMAHON: Yes. That one is what's been entered as
7 State's Exhibit 2. I inverted the video because in this form, it
8 is upside down. I flipped it over in a video editor so that it
9 would play. I didn't alter the video in any other way except for
10 that.
11 MR. STULL: Oh, I don't have a problem with that. Go
12 ahead.
13 MR. MCMAHON: Okay. So 4 --
14 MR. STULL: And that is?
15 MR. MCMAHON: State's Exhibit 2.
16 MR. STULL: And that was the one that's up at the front
17 of the counsel desk, we call it?
19 MR. STULL: Okay. Thank you.
20 MR. MCMAHON: Okay. Now, we're going into the second
21 file folder.
22 MR. STULL: Thank you so much for this.
23 MR. MCMAHON: This is the one where there are three
24 files ending in 564.
25 MR. STULL: I have that as Mr. Davis, part one.

892
1 MR. MCMAHON: 565?
2 MR. STULL: Mr. Davis, part 2.
3 MR. MCMAHON: And 556.
4 MR. STULL: The very short one of Mr. Davis that's up
5 near the counsel table.
6 MR. MCMAHON: Yes.
7 MR. STULL: Or counsel desk.
8 MR. MCMAHON: All three of those videos have been
9 sliced together --
10 MR. STULL: Okay.
11 MR. MCMAHON: -- and are State's Exhibit 1.
12 MR. STULL: That simplifies things for me. And they're
13 all State's Exhibit 1.
15 MR. STULL: Okay. So --
16 MR. MCMAHON: They're a continuous video.
17 MR. STULL: I was looking at a whole bunch of numbers
18 ending in a sequential number that now is simply on this card.
19 All of it is State's Exhibit 1. See how simple this is getting
20 for me. Thank you.
21 MR. MCMAHON: I am now opening the third file folder.
22 This has three (indiscernible). It is what's been entered as
23 State's Exhibit 5.
24 MR. STULL: It's Officer Engstrom and a couple pictures
25 of his leg?
893
1 MR. MCMAHON: Yes.
2 MR. STULL: Okay. And -- and what -- how many are in
3 that folder, because --
4 MR. MCMAHON: There were --
5 MR. STULL: -- five, right, is what I'm saying?
6 MR. MCMAHON: There were three. It was --
7 MR. STULL: Okay, three. I'm sorry. I'm looking up
8 where your blue is there where your cursor is --
9 MR. MCMAHON: That's fine.
10 MR. STULL: -- or, your mouse clicker is. Okay. And
11 what's the number for that one, because I'm not looking at my
12 card on that one?
13 MR. MCMAHON: This was 5?
14 MR. STULL: No, the file number.
15 MR. MCMAHON: Oh. They end in 282.
16 MR. STULL: And what do they start with?
17 MR. MCMAHON: FBR --
18 MR. STULL: Give me -- excuse me. Mr. McMahon. If you
19 could, simply give me the first one because the other ones, the
20 last three numbers are the same, and actually the last number, it
21 just -- the one -- it goes -- in this one, I'm looking at 234 is
22 the far right end of the number, being the one's column if you're
23 writing that out as a million or whatever it is.
24 MR. MCMAHON: It's 284. It's -- so it's FBR --
25 MR. STULL: Okay, thank you.

894
1 MR. MCMAHON: -- 36 --
3 MR. MCMAHON: -- 282, 283, and 284.
4 MR. STULL: FBR362?
5 MR. MCMAHON: 82.
6 MR. STULL: 82.
7 MR. MCMAHON: It's the first picture of Officer
8 Engstrom --
9 MR. STULL: Okay.
10 MR. MCMAHON: -- which I offered as Exhibit 5.
11 MR. STULL: Right, okay.
12 MR. MCMAHON: The one ending in same sequence of
13 numbers, except the last digit's a 3.
14 MR. STULL: Right, got it.
15 MR. MCMAHON: That is State's Exhibit 6.
16 MR. STULL: And that's his -- one of two photos of his
17 leg of the other two, right?
19 MR. STULL: Okay.
20 MR. MCMAHON: One's ending in 384 are the pictures of
21 which --
22 MR. STULL: Right, okay. I've got that on the card
23 here and I'm not finding it, but I want to make sure we're on the
24 -- okay, and we can move on to the next file.
25 MR. MCMAHON: These are ones starting at sequence at

895
1 FBP36195 through FBP3620 -- so they're sequential. There's
2 3,600 --
3 MR. STULL: Right, right. Let me read this back. I'm
4 sorry to interrupt. I want to get through this. FBP36195.
5 MR. MCMAHON: Yes.
6 MR. STULL: Okay. And then there would be 196 and 197.
7 MR. MCMAHON: And 198.
8 MR. STULL: Oh.
9 MR. MCMAHON: 199.
10 MR. STULL: Okay. So there's a lot of those.
11 MR. MCMAHON: There's nine. So it's --
13 MR. MCMAHON: -- it's 195 through 203. So --
14 MR. STULL: And they're all -- they're all photographs?
15 MR. MCMAHON: They are all photographs. They are the
16 ones --
17 MR. STULL: And have they been entered into evidence
18 yet?
19 MR. MCMAHON: 95 has.
20 MR. STULL: Okay. So let me --
21 MR. MCMAHON: 96 has.
22 MR. STULL: Oh, my goodness. Okay. So 95 is a close-
23 up of the face in the car, right?
25 MR. STULL: And 90 --

896
1 MR. MCMAHON: 96.
2 MR. STULL: -- 6 is sitting in the car.
3 MR. MCMAHON: Yes. 97 is Mr. Davis.
4 MR. STULL: Okay, we don't need that one.
5 MR. MCMAHON: And I did not admit it.
6 MR. STULL: Right, okay. Thank you. So we'll -- we'll
7 move forward to -- what's the next number that has something to
8 do with this case?
9 MR. MCMAHON: Okay. I'm going to go --
10 MR. STULL: I don't need to know the other --
11 MR. MCMAHON: I'm going to go through them
12 sequentially, so, yes, so 98 is also Mr. Davis.
13 MR. STULL: Okay.
14 MR. MCMAHON: 199 is Mr. Davis.
15 MR. STULL: Okay.
16 MR. MCMAHON: 200, that's the inside of the police
17 car --
18 MR. STULL: Right, okay, there we go.
19 MR. MCMAHON: -- with the mount that's been broken off.
20 MR. STULL: Sure.
21 MR. MCMAHON: 201 is the picture of the seatbelt on the
22 floor with the broken off portion of the mount.
23 MR. STULL: Excuse me. The first one was the mount on
24 the roof, we'll call it.

897
1 MR. STULL: Okay. And the second one is -- would be
2 201?
3 MR. MCMAHON: 201 (indiscernible).
4 MR. STULL: All right. Is mount on floor. Okay. And
5 have those been entered yet?
6 MR. MCMAHON: Yes.
7 MR. STULL: Okay. And do they have exhibit numbers?
8 MR. MCMAHON: Yes. I believe -- I don't know the exact
9 exhibit number, but they are exhibit --
10 MR. STULL: Okay, we'll move on just so we can identify
11 them and I'll take this up with Mr. Gibson. But I do need to
12 have some kind of way to keep track of all these other than a
13 number that's absolutely meaningless.
14 Okay. So --
15 MR. MCMAHON: 202 is another snapped off mount from the
16 roof of the car.
17 MR. STULL: Okay.
18 MR. MCMAHON: 203 is the matching portion of the
19 seatbelt that has been snapped off on the floor.
20 MR. STULL: Okay.
21 MR. MCMAHON: We're now going to the last section of
22 file folders.
24 MR. MCMAHON: There are two in this. They are what's
25 been offered as State's Exhibit 14. They are just images of the
898
1 same bruise. There's almost no discernible difference between
2 the two images. I offered one of them.
3 MR. STULL: Oh, right. That's not a problem with me.
4 What are we going to call it? Give me a number so I can --
5 MR. MCMAHON: So it's 597. It's the one I named 597.
6 And that's Exhibit 14.
7 MR. STULL: No, wait, wait, wait. We have to -- if
8 we're not going to -- continuing from 200 to 201, we have to have
9 the beginning again.
10 MR. MCMAHON: G14 --
12 MR. MCMAHON: -- 88597 and 9.
13 MR. STULL: Okay. The one ending in 597 is what, sir?
14 MR. MCMAHON: All right. That is the bruise on Officer
15 Engstrom's arm.
16 MR. STULL: Okay, thank you. And the final one?
17 MR. MCMAHON: 598 is just another picture of the same
18 bruise. I didn't offer it because it is redundant.
19 MR. STULL: Okay. So we don't need to even really know
20 that.
21 MR. MCMAHON: And I forget -- I forget if it's 97 or
22 98. It's entered into evidence as one of those --
23 MR. STULL: It doesn't matter. Do we have -- I'll take
24 those up with -- I'll take those up with the clerk here when we
25 get an opportunity to do that.

899
1 MR. MCMAHON: That is the -- that is the entirety of
2 the disc of (indiscernible). There is --
3 MR. STULL: And then there's the other entire disc of
4 BOEC.
6 MR. STULL: And it has its own process.
7 Your Honor, would you allow us to continue this so we
8 can do it on the other disc?
9 MR. MCMAHON: I haven't offered anything on the
10 (indiscernible).
11 MR. STULL: That's where I'm trying to go, Your Honor,
12 but I can't do it until I know what it is. I've listened to it.
13 I don't have a title for it.
14 THE COURT: Well, but without a title, can't you
15 describe what you saw that you want to offer?
16 MR. STULL: I don't know -- it doesn't have a name to
17 me. It's just a series of numbers, and I can easily look at --
18 THE COURT: Well -- no. If you'll open -- if you could
19 open the file, it's not a series of numbers. It may be a
20 document or it may be an image.
21 MR. STULL: No, I've seen them all. I know what it is,
22 but they --
23 THE COURT: Well, okay. Well, then describe what it is
24 that you want to offer.
25 MR. STULL: As soon as I know what we're all calling

900
1 it, Your Honor. These series of numbers are quite helpful.
2 However, an individual number --
3 THE COURT: Let's go through them.
4 MR. MCMAHON: Okay. There are two items, 01 and 02.
5 One is the dispatch, one is the radio (indiscernible).
6 MR. STULL: Okay. So here's what I'm trying to narrow
7 down, Your Honor and Mr. McMahon.
8 THE COURT: We're going to -- what we're going to do is
9 we're going to have him open them to --
10 MR. STULL: And then we'll have the number --
11 THE COURT: -- and then we'll have the number --
12 MR. STULL: -- correspond to something and I'll --
13 THE COURT: -- and then you can tell me.
15 MR. STULL: Yeah, so if --
16 THE COURT: I don't need any more discussion of it.
17 MR. MCMAHON: In the name of the files --
18 MR. STULL: Yes.
19 MR. MCMAHON: -- one of them says the 9-1-1 call.
20 MR. STULL: Oh, yes, simple enough, thank you.
21 MR. MCMAHON: One of them says central dispatch.
22 MR. STULL: All right. I know exactly which ones they
23 are now.
24 MR. MCMAHON: Okay. That is all that is on the BOEC
25 disc. What I will do, is I will put those on two separate discs
901
1 since they are two recordings so the jury can be -- is aware of
2 which exhibit they are marked as, and I can bring those back down
3 after lunch and we can enter them as a joint exhibit.
4 MR. STULL: Your Honor, could I please request that
5 when these agreeance discs go to the jury, that the jury can
6 simply see without going through what we just did, a particular
7 file, knowing that --
8 THE COURT: They are only --
9 MR. STULL: -- can we number them as exhibits even?
10 THE COURT: -- he was just saying that he will put them
11 on two separate discs, each of which will be -- have its own
12 exhibit number, and that's what the jury will have.
13 MR. STULL: So where we've gone through the process to
14 not --
15 THE COURT: But the -- there's nothing on the --
16 MR. STULL: -- to go backwards, Your Honor.
17 THE COURT: -- it sounds like everything on the first
18 disc has already come in --
20 THE COURT: -- or you didn't want it. So the first
21 disc is irrelevant.
22 MR. STULL: I want it all --
23 THE COURT: So we're only talking about --
24 MR. STULL: -- I don't think --
25 THE COURT: -- two files. He's going to make a disc

902
1 for one file and a disc for the other file. Each will be -- have
2 an exhibit number. And if you want them to go in and waive any
3 objection, anything on them, that's all they'll have on them,
4 that will go to the jury.
5 MR. MCMAHON: (Indiscernible) waiving any objection to
6 the (indiscernible).
7 MR. STULL: Your Honor, I'm not making any objection.
8 In fact, I want all of this information before the jury.
9 However, I don't want --
10 THE COURT: It seems like we've solved the problem.
11 MR. STULL: No, and I don't -- however, I just -- we'll
12 be done in 30 seconds if I can just wrap this up.
13 THE COURT: Well, it's been 30 minutes so far.
14 MR. STULL: I'm not trying to draw this out, Your
15 Honor. This is what I was given as a person with a disability as
16 a pro se litigant to prosecute this case. I don't have a file
17 that says this document is inside the police car picture of
18 Mr. Stull. I don't have this document -- when you go to the
19 library, you get a book off the shelf, you know what it is before
20 you open up the book because it has a label that corresponds with
21 the contents. These numbers do not correspond with anything but
22 some data set somewhere. And I'm perfectly happy to decode it
23 and say that FBR36282 is Exhibit 5. I'd rather have the jury
24 simply have a disc that doesn't have to decode FBR and --
25 THE COURT: No. They are going to --

903
1 MR. STULL: -- it will say Exhibit 5.
2 THE COURT: -- they are going to have what has been
3 entered in evidence. They are not going to have that first disc
4 at all.
5 MR. STULL: No, no, no. Your Honor, if I may --
6 THE COURT: They're not going to worry about it.
7 MR. STULL: -- approach here.
8 THE COURT: Those are just new copies of what is
9 already in evidence. They'll have what's already in evidence.
11 THE COURT: They don't have to worry about the numbers.
12 MR. STULL: Your Honor, if I could point over here and
13 tell you what I'm talking about. It will take us ten seconds.
14 THE COURT: I think I've heard enough. If you are not
15 offering an exhibit --
16 MR. STULL: Your Honor, I want all of these files that
17 we have to be before the jury.
18 THE COURT: No, they are already before the jury. They
19 are already entered.
20 MR. STULL: Everything is entered.
21 THE COURT: You have not indicate -- not those, but on
22 this last disc --
23 MR. STULL: Well, that's what I'm talk -- I want
24 everything we discussed on both discs. However --
25 THE COURT: No. You're not going to get two copies of

904
1 the same thing.
2 MR. STULL: I don't want that.
3 THE COURT: Well, then --
4 MR. STULL: I want one copy --
5 THE COURT: -- then why talk about the other disc?
6 It's already -- everything --
8 THE COURT: -- on it is in evidence.
9 MR. STULL: No, no, no. Your Honor, here's what I'm
10 saying. Right here, this says 9-1-1 call. That makes sense.
11 THE COURT: Okay.
12 MR. STULL: Right here it says, B00833801PP15-406345.
13 Then it says 9-1-1 call. I simply want it to be labeled 9-1-1
14 call so that if the jury wants to look at a file, they don't have
15 to decode what B00833801PP15 -- how that's different than the one
16 right below it that says the exact same numbers except somewhere
17 over here --
18 MR. MCMAHON: Mr. Stull --
19 MR. STULL: -- there's a discrepancy.
20 THE COURT: There are going to be two discs. One of
21 them will just have the 9-1-1 call, and it will be labeled. And
22 the other one will just have the dispatch call, and it will be
23 labeled. The jury will not have to worry about any of the
24 computer file location numbers.
25 Let's get the jury back and get started again. We've
905
1 had quite enough time on this.
2 MR. STULL: Your Honor, I'm just saying the video
3 that's Keith Davis, will they be able to look on it and say that
4 it's Mr. Davis' video and not look at a string of numbers.
5 MR. MCMAHON: Mr. Stull, what I've done --
6 MR. STULL: Exhibit 1.
7 MR. MCMAHON: -- what I've done --
8 MR. STULL: Exhibit 2.
9 MR. MCMAHON: What I've done in these videos is we'll
10 see on the disc, I've written, "Stull, City Hall (indiscernible)
11 video." That's Mr. Davis' video.
13 MR. MCMAHON: There's one, "Stull, counsel desk video,"
14 that's State's Exhibit 2.
15 There's a third one that says, "Stull, surveillance
16 camera." That is State's Exhibit 3.
17 There's one that says, "Stull, audio only." That's
18 State's --
19 MR. STULL: And they're each on independent discs at
20 this point.
21 MR. MCMAHON: Yes. So they will know which it is --
22 MR. STULL: Thank you. I never got them on independent
23 discs. I got them on one disc that had all of them on there with
24 all these many files I went through. If the State could have
25 provided discovery in the form of one file per disc, we could

906
1 have --
3 MR. STULL: -- avoided all this.
4 THE COURT: -- you have been told this quite a few
5 times.
6 MR. STULL: I haven't been, Your Honor.
7 THE COURT: So we're going to get the jury back and
8 we're not going to go over it again.
9 MR. STULL: I know what's going on now, Your Honor.
10 But those numbers mean absolutely nothing to me. When he's
11 talking about having them separated, nobody identified that each
12 file was on a different disc. My --
13 THE COURT: We're done with this topic. Stop
14 belaboring it.
16 THE COURT: We're getting the jury back. We're going
17 to go on.
18 MR. STULL: I'm prepared.
19 THE COURT: We're spinning wheels. We're talking about
20 the same thing after it's already been decided two or three
21 different times.
22 MR. STULL: It hasn't been communicated clearly to me,
23 Your Honor.
24 MR. MCMAHON: We will come back with lunch with two --
25 THE COURT: We're going to get the jury back.

907
1 MR. MCMAHON: -- separate discs with each --
3 MR. BOLOGNA: -- thing labeled on the disc what they
4 are.
5 MR. STULL: Your Honor, I only have one disc with all
6 those combined shots.
7 THE COURT: No more talking of discs. None.
8 MR. STULL: I never wanted to. Your Honor, can we --
9 THE COURT: No more.
10 MR. STULL: Can we hear --
12 MR. STULL: -- him on the video --
14 MR. STULL: -- on the audio of the 9-1-1 call where he
15 calls -- I want to hear him calling for the ambulance. I want to
16 her hear him saying --
17 THE COURT: We're getting the jury back. We're
18 proceeding until we break for noon. After lunch, he'll have
19 clean discs. Did you want to have him play what he's got on that
20 disc now? That's a yes or no. Do you want to have him play the
21 9-1-1 call now and then he'll come back with a clean disc that
22 only has that on it?
23 MR. STULL: Your Honor, I want this gentleman to simply
24 be able to say we have this misquoted Shull -- Sull, Shull,
25 whatever the typo was that -- or audio mispronouncing --

908
1 THE COURT: I'm not hearing an answer to my question.
2 Do you want the 9-1-1 call played now?
3 MR. STULL: So if this gentleman can confirm that that
4 was him, and then we can ask a question about that, that's all.
5 THE COURT: So I take that as a yes?
6 MR. STULL: About --
7 THE COURT: That's a yes, right?
8 MR. STULL: -- Sergeant Axthelm.
9 THE COURT: I guess we want the 9-1-1 call played.
10 Okay. We'll get the jury back.
11 MR. STULL: And some of these things, Your Honor, are
12 like nine-minute files, and we only need the first one minute and
13 the last one minute.
14 THE COURT: No. We're going to hear all of the 9-1-1
15 call. We're not going to --
16 MR. STULL: Whatever's on the file. If we're going to
17 listen to all that at once, I'm happy to do that.
18 THE COURT: Okay.
19 MR. MCMAHON: And when we're doing that, when we put it
20 in front of the jury, just for the sake of numbering,
21 essentially, can we refer to it as -- Mr. Stull, do you want to
22 offer it as a joint exhibit, or do you want me to offer it as a
23 State's exhibit?
24 MR. STULL: Joint exhibit's fine with me, Your Honor.
25 THE COURT: Okay.

909
1 MR. MCMAHON: Okay. We'll say that it will be offered
2 on a separate disc as Joint Exhibit 1. The second call
3 (indiscernible) will be offered as Joint Exhibit 2.
5 MR. STULL: And, Your Honor, does anybody have a
6 problem with hearing this stuff right now, is what I'm trying to
7 say? Is this the inappropriate time that he be exposing this?
8 THE COURT: This is the time to hear it.
9 MR. STULL: Thank you, Your Honor. That's what I
10 wanted to do, but I didn't know how to tell -- I have 15 things
11 and he has one each.
12 MR. MCMAHON: You can offer it or you can object to it.
13 MR. STULL: I want everything that we -- everything
14 they gave me in discovery that's audio and video in front of the
15 jury.
16 THE COURT: We're going to bring the jury in and we're
17 going to play that --
18 MR. STULL: Thank you, Your Honor. I'm sorry it's been
19 so taxing for all of us this morning.
20 (Jury enters.)
21 MR. MCMAHON: And, Your Honor, just for the record,
22 we'll begin playing what we marked as -- actually, perhaps it
23 might be appropriate to call it Joint Exhibit 50 in the sake of
24 not getting confused with State's Exhibit 1 or any potential
25 Defense exhibits.
910
1 THE COURT: Okay. Joint Exhibit --
2 MR. MCMAHON: So Joint Exhibit 5-0.
4 (The disc referred to as Joint
5 Exhibit 50 was marked for
6 identification.)
7 MR. MCMAHON: Mr. Stull, any questions you wish to ask
8 the witness before we begin this exhibit?
9 MR. STULL: No. I just want everybody to listen to
10 this and then we'll talk about it afterwards as we all hear it
11 and then --
12 THE COURT: Okay.
13 MR. STULL: -- if there's any questions appropriate to
14 this witness, we'll all know by then.
15 THE COURT: I guess that's no. Okay.
16 (Joint Exhibit 50, a 9-1-1 call, is played in open
17 court and transcribed as follows:)
18 DISPATCHER: 9-1-1.
19 SERGEANT COHEN: Yeah. This is Sergeant Cohen with the
20 City Hall security detail. We need to get one of our units down
21 here. We have a gentleman that we excluded yesterday from the
22 facility. He's back and he's causing a huge scene in our council
23 chamber before council session.
24 DISPATCHER: What's the address?
25 SERGEANT COHEN: 1221 Southwest 4th Avenue. We tried

911
1 doing a non-emergency, and we've been on hold for like ten
2 minutes and it needs to happen, so...
3 DISPATCHER: And where exactly is he?
4 SERGEANT COHEN: He's on the second floor in our
5 council chambers. What we do, is we can -- we'll have one of our
6 security officers meet at the front door of City Hall. We can
7 take him up.
8 DISPATCHER: Okay. And he is White, Black, Asian,
9 Spanish?
10 SERGEANT COHEN: Male, White, about 50 -- mid 50's,
11 gray hair, full beard. No weapons at this time.
12 DISPATCHER: Okay.
13 SERGEANT COHEN: It's more verbal than anything, but...
14 DISPATCHER: And what's he wearing?
15 SERGEANT COHEN: I'm not in the chamber right now.
17 SERGEANT COHEN: It's like -- probably like blue jeans
18 and a jacket.
20 SERGEANT COHEN: Like I said, he's the one making the
21 most noise.
23 SERGEANT COHEN: Cohen's the last name, C-o-h-e-n.
24 First name is Mike.
25 DISPATCHER: And you're with security there?

912
1 SERGEANT COHEN: Yes.
2 DISPATCHER: And a contact number for you?
3 SERGEANT COHEN: Yeah. It's (503) 730-8229.
4 DISPATCHER: (503) 730-8229?
5 SERGEANT COHEN: Correct.
6 DISPATCHER: All right. We'll send an officer out.
7 SERGEANT COHEN: Thank you.
8 DISPATCHER: You're welcome.
9 (Joint Exhibit 50, a 9-1-1 call, concludes.)
10 THE COURT: Okay.
11 MR. MCMAHON: Mr. Stull, it's your witness.
12 CROSS-EXAMINATION (Continued)
13 BY MR. STULL:
14 Q Sergeant Axthelm, did you recognize yourself on any of
15 that audio we just listened to?
16 A No.
17 Q None of those calls were the ones that you made from --
18 none of those were calls that you made?
19 A Correct.
21 And we can go to the other joint exhibit.
23 For the record, Your Honor, this is what will be
24 offered as Joint Exhibit 5-1. It is the central dispatch log.
25 We will be offering these on two separate discs numbered and

913
1 labeled accordingly.
2 (The disc referred to as Joint
3 Exhibit 51 was marked for
4 identification.)
5 (Joint Exhibit 51, a dispatch call, was played in open
7 DISPATCHER: 9-1-1 dispatch (indiscernible).
8 UNIDENTIFIED SPEAKER: We have arrived.
9 DISPATCHER: (Indiscernible).
10 UNIDENTIFIED SPEAKER: (Indiscernible) change my
11 location in traffic.
12 DISPATCHER: (Indiscernible) copy.
13 OFFICER: 811 (indiscernible).
14 UNIDENTIFIED SPEAKER: At 811.
15 UNIDENTIFIED SPEAKER: 850.
17 UNIDENTIFIED SPEAKER: Yeah, I inside the council
18 chambers (indiscernible) council meeting (indiscernible) and
19 supervisor. It's Barry Stull, and he's fired up today.
20 DISPATCHER: Okay. 814, you want to head that way?
22 DISPATCHER: (Indiscernible) copy, 814, you copy? 841,
23 how about you?
24 UNIDENTIFIED SPEAKER: 42, I copy.

914
1 DISPATCHER: 3806 (indiscernible).
2 UNIDENTIFIED SPEAKER: Yeah, can you have
3 (indiscernible) from down here too? I think Barry's known to him
4 and apparently he's off his meds today.
5 DISPATCHER: No problem. That is Barry Sull: Sam,
6 union, union, Lincoln, Lincoln?
7 UNIDENTIFIED SPEAKER: Yeah, I think it's Sull.
8 DISPATCHER: Okay, copy.
10 DISPATCHER: He's mapping, he's just arriving.
13 UNIDENTIFIED SPEAKER: 3806, I need an ambulance here.
14 UNIDENTIFIED SPEAKER: Copy. I'll get you a code 3
15 ambulance.
16 UNIDENTIFIED SPEAKER: Send me a couple more cars.
17 DISPATCHER: 841.
18 UNIDENTIFIED SPEAKER: Copy.
19 DISPATCHER: 837, are you still early out?
22 DISPATCHER: Okay. 84186, do you have (indiscernible)?
23 UNIDENTIFIED SPEAKER: 3806, I'm (indiscernible).
24 UNIDENTIFIED SPEAKER: 3806, I couldn't copy. What
25 kind of supervisor?
915
1 UNIDENTIFIED SPEAKER: Police.
2 UNIDENTIFIED SPEAKER: 3802, I'm almost there.
3 DISPATCHER: Thank you.
4 UNIDENTIFIED SPEAKER: 3802, I'm (indiscernible).
5 UNIDENTIFIED SPEAKER: Thank you, 948.
6 UNIDENTIFIED SPEAKER: We're having problems. As soon
7 as you get up there (indiscernible) what's going on, okay?
8 UNIDENTIFIED SPEAKER: (Indiscernible) arriving.
9 UNIDENTIFIED SPEAKER: Copy (indiscernible).
10 UNIDENTIFIED SPEAKER: Do you have an update?
11 UNIDENTIFIED SPEAKER: 3806, can you update? 3806,
12 3802, can you update?
15 UNIDENTIFIED SPEAKER: Copy 10/4, thank you.
16 UNIDENTIFIED SPEAKER: Did he say he had two in
17 custody?
18 UNIDENTIFIED SPEAKER: That's what I copied.
19 UNIDENTIFIED SPEAKER: Did you ask those guys
20 (indiscernible)?
21 UNIDENTIFIED SPEAKER: (Indiscernible) 10/4.
22 UNIDENTIFIED SPEAKER: Copy and regular copy can
23 resume.

916
1 UNIDENTIFIED SPEAKER: He shows at 8380 Southeast
2 Strawberry Lane in Milwaukie.
3 UNIDENTIFIED SPEAKER: Copy 8380 Southeast Strawberry
4 Lane in Milwaukie, 952, information on a caller -- call holding
5 for such units, northeast 4 and Glisan, components of guy who's
6 been on the news who's supposed to have a locator bracelet on
7 now, is there. White male, gray hair, blue eyes, baseball cap,
8 information 954.
9 UNIDENTIFIED SPEAKER: 4575, what's the address of that
10 last call?
11 UNIDENTIFIED SPEAKER: The guy is supposed to be on
12 Northwest Glisan from 4 to 5.
13 UNIDENTIFIED SPEAKER: I'll go check it out.
14 UNIDENTIFIED SPEAKER: Copy. Thank you, 955.
15 UNIDENTIFIED SPEAKER: 4528, we'll cover him.
16 UNIDENTIFIED SPEAKER: 4528, thank you.
17 UNIDENTIFIED SPEAKER: (Indiscernible) I'll close by.
18 I'll slide by that Glisan (indiscernible).
19 UNIDENTIFIED SPEAKER: 3751, okay, thank you.
22 UNIDENTIFIED SPEAKER: Yeah, I'm having a hard time
23 finding that flier, know who they're talking about. A guy who
24 looks pretty close to the flier (indiscernible). He's wearing a
25 green jacket. He's heading back over to 4th and Glisan now, but
917
1 (indiscernible).
2 UNIDENTIFIED SPEAKER: 13th and Everett, and I've seen
3 him before, so I'll be there in a second. Just keep eyes on him.
4 UNIDENTIFIED SPEAKER: I think the last name is Davis,
5 correct?
6 UNIDENTIFIED SPEAKER: 3751, I'm not -- I'm not
7 familiar with who they're talking about.
8 UNIDENTIFIED SPEAKER: It's Dennis Davis, 61059.
9 UNIDENTIFIED SPEAKER: 4575, he's hiding behind a white
10 SUV on the corner of 4th and Glisan right now for (indiscernible)
11 on the phone with.
12 UNIDENTIFIED SPEAKER: Thank you.
13 UNIDENTIFIED SPEAKER: 1744, we're just about going
14 through there.
17 UNIDENTIFIED SPEAKER: Going in the parking lot
18 (indiscernible) with him.
20 UNIDENTIFIED SPEAKER: He's got a tattoo of like
21 marijuana leaves on his right forearm.
23 UNIDENTIFIED SPEAKER: Supposed to have a marijuana
24 tattoo on one of his forearms.
25 UNIDENTIFIED SPEAKER: (Indiscernible) 1061.

918
1 UNIDENTIFIED SPEAKER: 1061, thank you (indiscernible).
4 UNIDENTIFIED SPEAKER: Yeah (indiscernible) can have a
5 car back for transport.
6 UNIDENTIFIED SPEAKER: Is there somebody close to 4 and
7 Glisan who can assist with a transport?
8 UNIDENTIFIED SPEAKER: 820, we're almost there.
9 UNIDENTIFIED SPEAKER: Thank you. And just information
10 on a call that's holding (indiscernible) is out with the
11 (indiscernible) subject asking for police at the stadium Fred
12 Meyer, 100 Northwest 20th Place, information 1003.
13 UNIDENTIFIED SPEAKER: 811 are on their way.
14 UNIDENTIFIED SPEAKER: 811, thank you, 1003.
15 UNIDENTIFIED SPEAKER: 860 can cover 11 if he wants
16 another car.
17 UNIDENTIFIED SPEAKER: (Indiscernible) looks like he
18 wants an ambulance.
19 UNIDENTIFIED SPEAKER: It looks like the ambulance and
20 firetruck are already on scene and have determined that he needs
21 you more.
22 UNIDENTIFIED SPEAKER: 6048 (indiscernible).
23 UNIDENTIFIED SPEAKER: 6048 at 1006.

919
1 UNIDENTIFIED SPEAKER: Did this call come in from
2 security?
3 UNIDENTIFIED SPEAKER: 811, negative. It was a request
4 from fire and EMS on scene.
6 UNIDENTIFIED SPEAKER: Well, to correct that. It looks
7 like security called about the drunk guy. He asked for medical.
8 Medical responded. Medical's asking for you.
9 UNIDENTIFIED SPEAKER: Gotcha.
13 UNIDENTIFIED SPEAKER: Could you please put me back on
14 that stolen vehicle 18 and Everett?
15 UNIDENTIFIED SPEAKER: Copy, back on the stolen vehicle
16 call. Are you talking about the car prowl 18 and Everett?
17 UNIDENTIFIED SPEAKER: Yes. And then I asked for
18 another call. I thought I saw it on there for a stolen vehicle
19 that was separate from this.
20 UNIDENTIFIED SPEAKER: Oh, you did and I know I sent it
21 up. I'm just not sure where it went.
22 UNIDENTIFIED SPEAKER: I thought that was the same that
23 Carl was on and so I (indiscernible).
24 UNIDENTIFIED SPEAKER: Okay, 811, thanks.
25 (Indiscernible) I'll put you back on that.

920
1 UNIDENTIFIED SPEAKER: 6048 (indiscernible).
2 UNIDENTIFIED SPEAKER: 6048, thank you. 742. 742,
3 non-injury accident at Southeast 13 and Nehalem. Got a report of
4 a car into a tree. Tree is down blocking the road.
5 UNIDENTIFIED SPEAKER: Copy.
9 UNIDENTIFIED SPEAKER: (Indiscernible) jail now that
10 we're going to have at least one coming down, possibly two that
11 are uncooperative?
12 UNIDENTIFIED SPEAKER: Will do. What's your ETA there?
13 UNIDENTIFIED SPEAKER: About two blocks.
15 (Joint Exhibit 51, a dispatch call, concludes)
16 BY MR. STULL:
17 Q Sergeant Axthelm, did you recognize Officer Todd
18 Engstrom's voice at the beginning of that regarding the call to
19 City Hall?
20 A Yes.
21 Q Okay. And at the very end, the notice to the jail to
22 uncooperative people were coming, was that your voice there?
23 A That was.
24 MR. STULL: Are we still on Exhibit 51?
25 MR. MCMAHON: Yes, Mr. Stull.

921
1 BY MR. STULL:
2 Q Okay. And the office meds referenced in that, was that
3 your voice?
4 A That was my voice, yes.
5 Q Okay, thank you.
6 And in between there, there was some other unrelated
7 matters that weren't involved with this event at City Hall, as
8 far as you can observe from listening, right?
9 A Right. This is a compressed audio recording. So the
10 timeframes from communication are not how they would have been in
11 real life. It's compressed. So it doesn't take a huge disc.
12 Q Oh, sure, okay.
13 A And so there's other calls that are intermittent in
14 between there with other stuff that's going on on the central
15 precinct.
16 Q So, for example, we heard something about a fellow
17 somewhere with a marijuana leave tattoo that they were looking
18 for , that just happened to be another call over in North Glisan
19 and something at the stadium Fred Meyer, that had to do with
20 this --
21 A Correct.
22 Q -- the event at the City Hall?
23 A Correct.
24 Q Okay. So the compression means that if we had our
25 stopwatch going and we heard Officer Engstrom on this disc here

922
1 in the room at a certain point in time, and then we heard you at
2 the other end of the event saying the undesirables are -- what
3 was the word -- uncooperatives were -- were being sent to the
4 jail, it's not real time in between those?
5 A Correct.
6 Q So none of us could say that from listening to this
7 thing or that other subsequent thing, that that was the actual
8 time in between? That's what I'm trying to establish.
9 A This is a record of the transmissions. It's not a
10 record of the time of the event.
11 Q Right. That's -- I wanted -- I wanted to make sure of
12 that.
13 Do you -- did you recognize anything except for those
14 -- those two -- Officer Engstrom at the beginning -- oh, excuse
15 me -- well, you didn't you call for an ambulance from the
16 telephone. Would it be on here if you did it by audio --
17 A I believe you heard it on --
18 Q -- I mean, or on radio?
19 A I believe you heard it on audio. I requested an
20 ambulance.
21 Q Okay.
22 A BOEC responded back, I'll send an ambulance, code 3,
23 which means lights and sirens that responded to the location.
24 Q Okay. What I'm trying to avoid is any confusion from
25 any listener that the aforementioned stating Fred Meyer was

923
1 something. There's an incident where I think it involves a drunk
2 person and medical -- an ambulance requested and that -- that
3 wasn't this instance, right? It was our invent, I'll
4 characterize it as --
5 A No. What I heard was me requesting an ambulance,
6 dispatch responding immediately back that they would dispatch an
7 ambulance code 3.
8 Q And code 3 means lights and --
9 A Lights and sirens.
10 Q To City Hall?
11 A Correct.
12 Q Okay. And so we know the car -- or whatever happened
13 in Milwaukie wasn't -- wasn't -- the City Hall -- I'm trying to
14 screen these out so -- so we have these events that were -- for
15 one, the confusion that I'm experiencing, excuse me, is that it's
16 not real time. And the other is, it's not just this event.
17 A Correct.
18 Q So what I'm trying to do is we have to take what we
19 get. That's the way our system's working. But my point is, what
20 I'm trying to do is to make sure the part of the audio, the
21 marijuana tattoo on the arm is not the City Hall event. And I'm
22 thinking that the -- until I identify otherwise, that those are
23 basically the things -- Officer Todd Engstrom calling and saying
24 he needed some backup or the -- additional officers responding.
25 Is that how you heard --

924
1 A That's how the call starts basically --
2 Q Right.
3 A -- is the dispatch and then --
4 Q Right.
5 A -- you next hear him. He was at car 850 saying he
6 needed a supervisor.
7 Q So that's --
8 A Another car, and he also explains what he's observed.
9 Q Oh, okay. Here's my confusion, Sergeant, I'm sorry.
10 We heard Officer Engstrom, and he's fired up today, and he wants
11 to have backup or additional people. And then there's the
12 request for the supervisor?
13 A Correct.
14 Q And then your request for the ambulance --
15 A Correct. That would follow --
16 Q -- if I'm going chronologically --
17 A -- chronologically, yes.
18 Q Or I should -- I suppose we should say sequentially
19 because the time -- chronological is a measurement of time. This
20 isn't a measurement of time because it's been compressed. But
21 this is sequential so we can have one thing -- we have the
22 beginning of our listening to it, and one thing's at the middle,
23 and another thing's at the end or such.
24 A Sure.
25 Q Okay. Now, the call, as soon as you get here, was that
925
1 our here or was that somebody else's here?
2 A Our here, I don't remember --
3 Q There's an audio that says call -- somebody saying,
4 call as soon as you get here or get there -- no, it's there, I'm
5 sorry -- call as soon as you get there is part of the audio on
6 that. And I'm just wondering if that was the confirmation of the
7 supervisor or somebody sending somebody out to arrive and they
8 want to know when they get there. Did that have to do with City
9 Hall, or can we disregard that just like the tree in the --
10 A I would disregard it. I know no reason that would --
11 transmission would be there in this City Hall incident.
12 Q So you don't think that was -- that particular --
13 A No. I see no reason a transmission like that call when
14 you get there. We had a hot incident. We aren't going to -- you
15 know, it's an incident going on right now, we aren't going to
16 make a phone call to somebody and say, hey, we're here. We do it
17 all by radio.
18 Q Did you think that this was a hot incident?
19 A It was dispatched as a priority one incident.
20 Q And what does that mean? Priority one means the lowest
21 or the highest --
22 A Highest.
23 Q -- depending on which way --
24 A I believe it was dispatched as priority one, which is
25 the highest.
926
1 Q And then a lower priority would be number two and maybe
2 number three --
3 A All the way down to number seven.
4 Q Okay. So this was the highest possible priority for
5 police response at this time?
6 A To my understanding, remembering, it was a priority
7 one. We dispatched two cars to it.
8 Q And one officer per car or more?
9 A Officer Engstrom was by himself. I believe the other
10 car was by himself.
11 Q And do you know what those two cars that were
12 dispatched, would be Officer Engstrom, and the second?
13 A I believe the second voice I heard was Officer Singh.
14 But I think he was coming from a ways away.
15 Q If we can trust that this is sequential, we would then
16 have evidence by this audio, Officer Engstrom on the scene,
17 Officer Singh on the scene, or did you arrive before Officer
18 Singh?
19 A Well, I think your better way to do that would be to
20 look at the BOEC printout sheet for each officer assigned to the
21 call, and it tells when he was dispatched, when he arrived on
22 scene, and when he cleared. Because officers can either state
23 they're on scene over the radio, and hopefully the dispatcher
24 notes it, or they can hit their on-scene button on the computer
25 in the car, which time stamps it.

927
1 Q Okay. Does that -- oh, so it does have --
2 A And that was on page 2 of the BOEC transcript.
3 Q Right.
4 MR. STULL: Do you have -- is this page --
5 (Counsel confer.)
6 MR. STULL: Is the jury going to have this?
7 MR. MCMAHON: Not unless you offer it.
8 MR. STULL: I would like to establish the -- timing of
9 these events, this happened at this time and this happened at
10 that time.
11 And, Your Honor, if you don't mind, my predicament, I
12 don't think will be too much different than anybody else, is
13 we've established that this Sergeant has a number that he goes
14 by.
15 THE COURT: Okay, just a second.
16 MR. STULL: Yeah, okay.
17 THE COURT: It's after noon, so we're going to take our
18 noon recess. Be back at 1:30 in the jury room back there, and
19 we'll get started then. Remember what I've told you not to have
20 any discussions with anyone, not to do anything to research or
21 discuss with others. Keep your tags on. These folks are not
22 allowed to have any contact with you. You shouldn't have any
23 contact with anyone about this case.
24 So Mr. Gibson will see you out.
25 THE COURT: We can discuss things briefly before we --

928
1 after the jury is taken care of.
2 (Jury exits at 12:05 p.m.)
3 THE COURT: Have all the jurors left?
4 THE CLERK: Yeah.
5 THE COURT: Okay. Now, what is it that you wanted to
6 say?
7 MR. STULL: Your Honor, I know a little bit about a
8 number of languages and a numbering of measuring systems and a
9 number of things like music, and I know that there are different
10 codes. If I say a "C," that might be ocean. It might be a note
11 on the trombone. It's different than the same note on the
12 trumpet, because they sound different to the ear, although, you
13 use the letter "C."
14 And what my predicament is and when I'm looking at the
15 interest of justice, is that when the jury is allowed to hear
16 these statements that I do want them to hear about this
17 (indiscernible) he's fired up, I don't want there to be confusion
18 that the tree in Milwaukie is part of this case, or the call for
19 the ambulance over in Northwest and it was the drug guy somebody
20 referred to, and that he's going to work it out with somebody. I
21 want to make sure that they know that that's not about the City
22 Hall case, because as you said, this is about this day and this
23 place.
24 And so as we experienced this morning with the
25 different files, if there's a way that the jury can translate.

929
1 For example, this gentleman has a number, I think it's 3604, into
2 this guy, or if somebody else has a number. And some of these
3 documents, like the BOEC printout actually do that. But some
4 things are less clear.
5 THE COURT: That's true. And we talked for 45 minutes
6 about whether those files came in or not and whether you had
7 wanted to get them all in and waive objections to.
8 MR. STULL: Oh, no, that's not --
9 THE COURT: And the --
10 MR. STULL: Yeah.
11 THE COURT: -- the problem that you present is one
12 which you're going to have to deal with through testimony. I am
13 not going to tell the jury what's relevant and what's not
14 relevant. If you've got it in, it's just going to go to the
15 jury.
16 And so if you wish to help the jury understand what's
17 relevant and what's not, you're going to have to ask appropriate
18 questions --
19 MR. STULL: As I did --
20 THE COURT: -- and take testimony.
21 MR. STULL: Excuse me for interrupting, Your Honor. As
22 I did with Sergeant Axthelm, I'm saying is this --
23 THE COURT: So --
24 MR. STULL: -- as is Todd Engstrom and at the other
25 end, is this a statement about the people in the jail that are
930
1 uncooperative.
2 THE COURT: What is it you're asking me to do?
3 MR. STULL: Oh, nothing, Your Honor. We just had -- I
4 learned this morning, thanks to --
5 THE COURT: But if you're not asking me to do anything,
6 not asking me for a ruling, just sharing --
8 THE COURT: -- your thoughts, it's not very helpful.
9 MR. STULL: I'm not, Your Honor. I'm not on my beset
10 form right now today, and especially at this hour.
11 But what I'm -- what I've learned so far, today, is
12 this document has a compressed file, which means it can't be
13 relied on as a time-coded document that could be synced up with
14 the other things that we have. We have a silent, city-produced,
15 time-coded video to watch. We have a pictureless audio to listen
16 to, except you can't say by listening to one and the other that
17 they're going to -- to line up, because you can't -- you can't
18 listen to the -- the statement on what we just did because it's
19 compressed and it's not -- it's sequential, but it's not
20 chronological, so you can't say that --
22 MR. STULL: Yes.
23 THE COURT: If you're not asking for a ruling, I don't
24 know why you're making a speech now, and I'd like to go to lunch.
25 MR. STULL: Me too, Your Honor. But I'm pretty well

931
1 together walk through the door, just like I think these jurors
2 are. And if these things are so -- I had this morning -- we took
3 all this time to just identify that this gentleman's talking
4 about a stack of 15 discs, and I'm talking about one disc with 15
5 files on it. And it's a lot easier to reach to a disc and figure
6 out what it is than have them all together in a big stack you
7 can't even see their names, because if you do, that doesn't mean
8 anything because it's FBU38-96, that has nothing to do with
9 whether it's a 9-1 [sic] call, a video or --
10 THE COURT: You can step down.
12 MR. STULL: So that's all, Your Honor. I'm just trying
13 to take the confusion out that --
14 THE COURT: We have drafts of proposed jury
15 instructions. You guys can review them over lunch.
16 MR. KELLEY: Yeah, absolutely, Your Honor.
17 MR. MCMAHON: Thank you, Judge.
18 THE COURT: And we'll find a time to talk about them.
19 Thank you.
20 MR. STULL: Thank you, Your Honor. I have to get some
21 food.
22 THE COURT: We'll be adjourned and we'll go off the
23 record.
24 (Lunch break was taken from 12:12 p.m. to 1:38 p.m.)
25 MR. McMAHON: Yes, Your Honor. Again, Eamon

932
1 McMahon for the State. M-c-M-a-h-o-n, bar number 153879.
2 As per discussions with the Court, I went and I
3 made two copies of the disks. I separated out -- they were
4 the same audit as before the break. That 9-1-1 has been on
5 -- and on a separate disk as Joint Exhibit 50. The Dispatch
6 audio, which is the second recording played has been put on
7 another disk. That is recorded at Joint Exhibit 51. So I
8 have shown them to Mr. Stull. I listened to the first few
9 seconds of both them to confirm that they were the requested
10 files. And I'm not going to go ahead and submit those to
11 you.
12 MR. STULL: And we're in agreeance, Your Honor. I
13 just wanted to let you know on the record that --
15 MR. KELLEY: It's not a secret, is it Eamon, in
16 the prior case?
17 MR. McMAHON: No. They were the -- that was what
18 we played on that one disk and what we wanted to play for
19 the jury, and so we're going to separate it out.
20 MR. KELLEY: Sounds good.
21 (Jury enters.)
22 THE COURT: Okay. Proceed. Carry on.
23 MR. STULL: Yes.
24 If I could just show the -- the shortest of the
25 Keith Davis videos? There's one right at the very end.

933
1 There's this little three second or four second --
2 MR. McMAHON: Okay. And, Mr. Stull, that has --
3 that has been spliced out into one complete video on
4 State's Exhibit 1. I can scroll to the end of that video.
5 MR. STULL: Yeah, just to the very end of it, or --
6 or maybe five seconds back. We'll see -- just a question I
7 need to ask the Sergeant.
8 (Video State's Exhibit 1 is played open court and
9 transcribed as follows:)
10 MR. STULL: No.
12 (Video interrupted.)
13 MR. McMAHON: Mr. Stull, please tell me if you'd
14 like me to pause the video at any point.
15 MR. STULL: Yeah. Right -- right at the very end.
16 MR. McMAHON: Right -- right here?
17 MR. STULL: Yeah. At the -- at the very end of
18 the --
19 (Video State's Exhibit 1 continues to play in open
21 MR. STULL: -- fuck -- fuck you.
23 MR. STULL: That right there. And what I'm --
24 what I'm trying to secure here is there's a view that shows
25 me in between those two officers, and you can see a -- a

934
1 string on my -- at least on the -- I -- I could see on my
2 copy. I have -- will imagine we could find that shortly.
3 But maybe it's the last -- very -- are you at the very,
4 very end there?
5 MR. McMAHON: Yes.
6 MR. STULL: So if you could just scroll back maybe
7 two seconds -- three seconds? And we might be able to see
8 it there actually. I'm getting a little glare. I'm seeing
9 a little bit of Mr. Gibson --
10 (Video State's Exhibit 1 continues to play in open
12 MR. STULL: -- out of my fucking way. Get the
13 fuck --
15 MR. STULL: As soon as you get the other -- if you
16 could -- there --
18 BY MR. STULL:
19 Q Sergeant, if you can see the back of my -- well,
20 the top of my -- my right leg, there's a little string
21 going to the pocket on my pants.
22 A There's something dark right here, but it --
23 Q Yeah. That -- that would be it.
24 A -- I don't know what that is.
25 Q That would be it, and that's -- and that's my

935
1 question for you. And I'm going to make sure that the
2 person that -- do you remember or were you involved in
3 taking those -- and I'll show you what I've got if it's --
4 if it's all right with the Court. I have this kind of
5 effect on -- with a lanyard, and that's what we're seeing.
6 MR. McMAHON: Your Honor, I would objection to his
7 testifying as to what he's seeing. The --
8 THE COURT: Right. Right.
9 MR. STULL: That -- well, there that -- that --
10 THE COURT: He's the witness, so he testifies as
11 to what he can see.
12 MR. STULL: I -- I'm --
13 THE COURT: Don’t tell him what you --
14 MR. STULL: Right. Okay.
15 THE COURT: -- see or what you think.
17 BY MR. STULL:
18 Q Did you remove any of those -- from those pants in
19 the police car in front of city hall? If you were that
20 individual, then?
21 A No. Not that I remember. From the videos we've
22 watched, I assisted in the handcuffing you, and then I
23 moved over to Mr. Davis. You should have been searched
24 prior to being inside the police car -- thoroughly searched
25 since you're about to be leaving the area.

936
1 Q Okay. In Officer Engstrom's car -- there was
2 Officer Engstrom and there was another -- another Portland
3 Police Bureau personnel. I'll -- I'll limit it to that.
4 And -- and I'm just clarifying if it was perhaps you. If
5 it wasn't you, then it was perhaps Sergeant Price. And if
6 you don't have a recollection of that, I don't -- I don't
7 have any further questions about that. We've already
8 established as far as we could go.
9 And I do have -- I do have a question about the
10 control of the room. There's a -- there's a point in the
11 video and we might not have to even go to it. Sergeant
12 Axthelm, do you remember saying to me that you were waiting
13 for me to leave, and I responded to the effect that I was
14 waiting for the room to be cleared?
15 A I can't recall that conversation.
16 Q And then -- and then you -- you responded -- I'll
17 just -- going from my recollection -- I don’t want to
18 testify here. I'm trying to get to the point. You
19 responded the room wasn't going to be -- you weren't -- you
20 all -- plural you -- it was you speaking. And we can see
21 this on the video, so I don’t think it's anything that I
22 alone have access to memory-wise. But the issue was that
23 you said you weren't going to clear the room. And I said,
24 well, she already did -- referring to Amanda Fritz ordering
25 that the room be cleared. Do you -- can you recall that?

937
1 A Well, I heard through security that Commissioner
2 Fritz had asked the room to be cleared. And so we were
3 waiting for that to happen. And that's what, in fact,
4 brought on the issues of trespass now, because we were
5 telling numerous people, mainly the person that was with
6 you, Mr. Davis, that he needed to leave and he was
7 refusing. Then that moved on to an -- an arrest.
8 Q What makes you say that the person that was with
9 me?
10 A Because he was filming you. You seemed to be
11 speaking directly to him all the time and were concerned
12 about the -- being in making sure the camera was there with
13 you.
14 Q Did you know that -- do you know about my
15 relationship to the -- the gentleman that filmed this --
16 that we're looking at that. That's his video.
17 A I --
18 Q You remember?
19 A Correct. All I observed was you and making sure
20 that -- you wanted to talk to that camera, it appeared to
21 me, when I was watching you. That was partially your
22 audience, along with some of the people that were there.
23 But the audience was -- the audience was more important to
24 you was, I think, the video camera.
25 Q And as a product of him filming, we obviously have

938
1 this. So you didn't know or don’t know that I didn't know
2 him at the time that this film was taken?
3 A I have no idea on your relationship with him.
4 Q Okay. So the person who was with me was a lot of
5 people, and this individual was only assumed to be with me.
6 If -- if you're making that connection, I have -- I have
7 never --
8 A Again, like I said, there was an intention, it
9 appeared on your part from watching, that you were
10 communicating with that camera, that that was partially
11 your audience that you were trying to address. Therefore,
12 the feeling was if that camera would leave, perhaps you
13 would de-escalate.
14 Q De-escalate from what?
15 A The behavior that was going on and possibly leave
16 as we'd requested you to.
17 Q Okay. Just prior to this as part of the arrest,
18 there's a point where you, Officer Singh, and Officer
19 Engstrom are all three right there at the council desk.
20 Was I pretty strong?
21 A Are you talking when they were placing you in
22 handcuffs?
23 Q Yeah. The whole -- that whole 10 or 15 seconds
24 starting with my interactions with -- starting with
25 actually you pointing to Mr. Davis, which then began the

939
1 encounter with Officer Engstrom, which then led to that.
2 And as we've seen, my movement over the table by Officer
3 Engstrom. And did you observe your officers having
4 difficulty handling me physically?
5 A Well, as I mentioned -- mentioned a couple times,
6 I saw a confrontation off the side of my eye when I was
7 going to deal with Mr. Davis. That's when I also looked
8 back and saw them over by the council table.
9 Q About right there, but maybe not exactly at that
10 time?
11 A Yeah. We were further along. You scooted along
12 the rail of the council table.
13 Q Yeah.
14 A That they were attempting to place you in
15 handcuffs, and that's why I went -- I went over there to
16 assist them. They were giving you commands, you know, quit
17 resisting. They were obviously having trouble getting your
18 hand -- arm -- hands behind your back, and that's why I
19 assisted them in doing that.
20 Q Do you experience that three people needed to
21 handcuff an individual often?
22 A Yes. Actually our preferred is a two-on-one.
23 Q But this is three-on-one?
24 A Correct. If three-on-one can't do it, we have to
25 go with another one. Yeah. I mean, our -- my preference

940
1 would be that a person would be, "Hey, you're under arrest,
2 "and they'd put their hands behind their back and they'd
3 get handcuffed peacefully and we'd walk off. That would be
4 my preference. But if we have to go and handcuff somebody,
5 we prefer a two-on-one tactic as opposed to one person on
6 one suspect.
7 Q The use of double -- double cuffs for people that
8 have broad shoulders, simply takes the strain out of the
9 shoulder -- the -- the stretch, right? Is that -- you're
10 not stretching as far --
11 A Correct.
12 Q -- behind your back? Is -- is it --
13 A Correct.
14 Q And -- but the cuffs themselves could be tightened
15 or loosened at -- regardless of how many were strung. The
16 ones on the hands -- on the wrists could be tight or loose?
17 A Correct. You're handcuffed. Those cuffs work
18 independent of the other ones, yes.
19 Q Did you hear me say that the cuffs were too tight?
20 A I don't know if I heard you say that. My
21 understanding was they were checked. I know Mr. Davis was
22 complaining about his handcuffs being too tight. They were
23 checked and they were fine.
24 Q Were mine checked?
25 A I don't know if yours were checked in the car. I

941
1 think Sergeant Price was down there at that time, too, and
2 he might have checked them. I'm not sure.
3 Q I was referring to in the council chambers.
4 Because we --
5 A As you could tell from the video, I was busy with
6 Mr. Davis.
7 Q Yeah. Okay. I -- I won't ask you to -- to try to
8 hear something when you were so distracted. Do you know
9 the use of pain compliance hold is something that distracts
10 the prisoner?
11 A There can be pain compliance, yes, and use of
12 handcuffs for pain compliance is not one of them.
13 Q Using handcuffs to -- to inflict pain as a pain
14 compliance is not among the --
15 A Not a method taught by the Portland Police Bureau.
16 Q And when folks are escorting a prisoner with
17 handcuffs -- single, double, triple, any -- what is -- I'm
18 asking you if it's possible to still regardless of the
19 length of one set -- two set of cuffs, it's possible for
20 there still to be stretch by pulling the arms apart? I'm
21 doing it, of course, where you can see me. But what I'm
22 demonstrating is here are my wrists together and here are
23 my wrists apart. But if the length of the cuff length or
24 the handcuffs doesn't change, still pulling the hands apart
25 when the cuff-links aren't giving could, in fact, cut into

942
1 the wrists? Is that true?
2 A Well, I guess cut into the wrist is not something
3 that would --
4 Q Well, I mean impact the wrists. I'll just say
5 that.
6 A I would use, but -- but yeah. I mean, handcuffs,
7 I mean, they aren't made for comfort obviously. They're
8 made to hold and detain somebody. In this instance,
9 because of your tightness, I directed the officers to use
10 two cuffs to give you more room.
11 Q Right.
12 A Using three cuffs in that -- no, that wouldn't
13 have happened.
14 Q No.
15 A Two is the most I've ever done, and you're not the
16 biggest guy I've ever placed in handcuffs.
17 Q No. I --
18 A So two cuffs was more than enough, but if a person
19 pushes against the handcuffs or pulls against the
20 handcuffs, he's obviously going to impact that cuff on his
21 wrist. If they don't struggle, the cuff just stays on the
22 wrist.
23 Q But what if the escorting personnel anywhere,
24 escorting someone, pulls out on both of the elbows? One
25 person on one side, one person on the other side, each

943
1 going further from the center with the elbow each in hand,
2 thereby pulling the handcuffs tight?
3 A Well, I'm looking at the physics of that. And if
4 my elbows go out, actually it -- my hands come closer
5 together. So if you're being pulled apart like this it
6 brings your shoulders up, and your arms come up. And to
7 me, when I do that on my back, it brings my arms closer
8 together which would mean there would be more slack in the
9 handcuff.
10 Q At -- couldn't the handcuffs be seen as a link in
11 the chain completing one link, the cuff, the center link
12 being the handcuffs, and the other link being the other
13 cuff. And couldn't, in fact, that chain be stretched by
14 separating the two wrists?
15 A Well, from what you described to me, your elbows
16 being pulled out would bring your hands up and closer
17 together the way I perceive you telling me that. If your
18 wrists were pulled out, then yes, you would be stretching
19 against those handcuffs and possibly, you know, expanding
20 to the tightness of those handcuffs.
21 Q What about -- thank you -- what about twisting the
22 handcuffs as they're --
23 A Twist --
24 Q Twisting the handcuffs as they're on the wrists.
25 If, for example, there's a handcuff here, and the handcuffs

944
1 themselves are twisted. Couldn’t that cause -- would --
2 would that be an appropriate use of force compliance?
3 A No. Like -- like I mentioned, compliance by
4 twisting the handcuffs is not anything I've been taught
5 with the Portland Police Bureau. Wrist lock, yes. Using
6 the wrist lock and escorting and placing pressure in a
7 wrist lock move while the person is handcuffed is taught
8 and instructed by the Portland Police Bureau.
9 Q What about persons engaged in passive resistance?
10 If -- if the -- not to say that passive resistance -- I --
11 let me explore this. Passive resistance is not resisting
12 arrest.
13 MR. McMAHON: And, Your Honor, I'd object. It's a
14 legal conclusion. It's not appropriate for the witness to
15 comment or testify on.
16 THE COURT: No. Well, I -- yeah. It's -- it is a
17 legal conclusion. He hasn't asked about what passive
18 resistance is. Go forth.
19 MR. STULL: I'm -- I'm sorry, Your Honor. I
20 wasn't --
21 THE COURT: I said you could ask what passive
22 resistance is, but don't --
23 MR. STULL: Okay.
24 THE COURT: -- ask him about --
25 MR. STULL: Sure.

945
1 THE COURT: -- the legal --
2 MR. STULL: I'll -- I'll -- thank you, Your Honor.
3 BY MR. STULL:
4 Q What is passive resistance?
5 A Passive resistance would be basically sitting, not
6 moving; refusing to move. Could even be the officer has
7 you in a wrist lock and you remain at that point. It's
8 basically you just stay there; lay there. You're not
9 kicking. You're not scratching. You're not biting.
10 You're passively sitting there and refusing to move.
11 Q Okay. Could, as you're describing it, could
12 passive resistance start at some point in the escort?
13 A Well, again, I suppose if somebody all of a sudden
14 went limp as we're walking along, and went to the ground --
15 yes, I've had them do that.
16 Q And is pain compliance appropriate at that point
17 to get them to continue to be escorted?
18 A Again, using the wrist lock like I explained would
19 be attempted. If that didn't work, more than likely we'd
20 get more officers, pick them up, and carry them out, which
21 I've done on numerous occasions.
22 Q So using a wrist lock in the process of escorting
23 someone who decides to no longer be escorted can be used to
24 suggest that they move up to a point where the -- what is
25 the point where the -- the wrist lock and that would be
946
1 inappropriate and you'd get additional officers?
2 A Well, I -- I'd probably be starting to get
3 additional officers to begin with. Because if you do this
4 once, there's more than likely you're going to do it twice
5 or more than one time. You've shown a propensity to do
6 that, so I'd probably get more officers there to begin with
7 to assist in case we do have to carry you out. If I place
8 a wrist lock on you and apply pressure to it, and you're
9 going to not move from that position, then I've got to move
10 to a different tactic to get you to move. And that next
11 step for us would be to probably carry you out.
12 Q And in the carrying, can pain compliance be used
13 to -- my question is can the Portland police officers that
14 you're supervising, can they use pain compliance to get
15 someone to comply to help the transport of the escort? Of
16 course, if I -- if I could just flesh this out for just a
17 moment, if somebody decides that they're -- say, I'm not
18 helping you. How much pain compliance is appropriate in
19 that situation? Once a person says I'm not helping you,
20 as -- it -- regarding walking or just -- no, I'm not going
21 to help anymore. What pain compliance is appropriate, for
22 how long, and in what fashion?
23 A Well, I don't think we can give a time-frame, and
24 I don't think we can -- you know, basically what I've told.
25 In an instance where somebody's handcuffed, like you're

947
1 stating, if the wrist lock does not work, and they aren't
2 moving, and they're able to walk, then we have to do
3 something different to get you out. And that would resort
4 to probably carrying that person out. It could be two on
5 one with each having a wrist lock. If that doesn't work,
6 then we'll move to the tactic of probably getting two more
7 officers in to grab your legs and carry you out physically.
8 Q If one officer applies a wrist lock, does that
9 authorize the next officer to apply the wrist lock as if
10 the first person didn't? Or is there kind of a limitation
11 on how much a wrist lock could be used in any duration of
12 time against one particular individual?
13 A Again, like I mentioned, we prefer two-on-one --
14 just number superiority and control. So two -- one each
15 having a wrist lock and escorting out is appropriate.
16 Q What if the person doesn't want to walk?
17 A Well, if you're up on your feet, either the
18 officers are going to make a choice to continue to drag you
19 out while they have a hold of your arms, or if you go down
20 to the ground then we move to a different scenario.
21 Q So once it goes to dragging, because a person is
22 refusing to walk, does that prohibit the use of a wrist
23 lock --
24 A No.
25 Q -- to comply?
948
1 A No. And to be quite frank, I'm not going to drag
2 somebody for very long, because I cherish my back.
3 Q Sure.
4 A So more than likely I would just lower you onto
5 the ground, and you can sit there and wait on the ground
6 until I get enough people to carry you out.
7 Q If you will recall, Officer Engstrom moved from
8 what was after the handcuffing, that location back over to
9 the table where people testify if you're familiar with the
10 room there. Are you familiar with the room?
11 A I've been in there numerous times.
12 Q Okay. So there's a -- a table that people --
13 A Testify from.
14 Q -- come up and testify opposing -- like you and I
15 are facing each other, except I -- you might be a person
16 testifying and I might be counsel, or I might be a person
17 testifying and you might be counsel. They're face to face
18 and the table's there for people to be facing each other
19 when they're facing the council and the council's facing
20 them. And that's the table I'm talking to. That's what
21 we're seeing right there. Is that correct?
22 A Yes.
23 Q Right. Okay. When Officer Engstrom, in his
24 transport, there's the moment where he's applying a wrist
25 lock when I'm on my side on the table. Is -- is that

949
1 appropriate to apply the wrist lock? You mentioned
2 something about it earlier. But --
3 A Okay. You mean when he started to escort you out
4 the south door?
5 Q Right.
6 A Okay. And then you ended up on the table --
7 Q Right.
8 A Laying on the table?
9 Q Right.
10 A Yes. I would actually want my officers to have a
11 hand on you like I mentioned earlier, a wrist lock to
12 control you there is good for two reasons. One is you can
13 roll off and injure yourself --
14 Q Sure.
15 A -- or you can do something and kick the officer
16 while you're at that. So he has control on you to where he
17 can apply pressure if he needs to to control your behavior.
18 I have no problem with the wrist lock while you're --
19 you're on the table there. I have no problem that a wrist
20 lock is on while he's escorting you out. That's an
21 approved method for the Portland Police Bureau.
22 Q And if the person refuses, dragging, but without
23 the wrist lock, because they're, at that point, engaging in
24 passive resistance?
25 A Again, like I -- I said, if I -- if a -- if there

950
1 was two people and they both tried wrist locks and the
2 person refused to go, then I would probably look at
3 carrying that person out.
4 Q Okay. When the person's crying out in pain while
5 the wrist lock being applied, is that an indication that
6 it's applied too hard or -- or could that be a -- a reason
7 that another tactic should be considered?
8 A Well, there's indicators when you do a wrist lock
9 or when you do any type of martial arts move besides
10 screaming. I can scream and say, "My watch is too tight,"
11 and keep screaming about that.
12 Q Sure.
13 A But when you see muscles tighten up and you feel
14 the stretch, that's when you know that you're getting pain
15 compliance. The scream is not the ultimate issue that
16 judges the amount that the wrist lock might be put on.
17 That's -- that's not it, because people start screaming
18 when we show up to begin with then -- we haven't even
19 touched anybody. So that's -- you can't use that as a
20 reference point.
21 Q We can't. People can, I would say, to correct
22 your you.
23 A We can't -- meaning me, a Portland Police officer.
24 Q All right. So I'm -- I'm a stickler on the -- the
25 conflated -- the things that come out of us having a -- a

951
1 singular and a plural "you", where I could say "you" and
2 mean Sergeant, and I could say "you" and mean everybody
3 that's on the other side of the room. That's what I was
4 trying to say. And we do talk and say "when you" when
5 we're talking about how we handle ourselves. So I just
6 want to make sure that "when you do that" means "when we do
7 that" if it's the police having a protocol and a policy.
8 So when you say "you" it's not us over here. It's Portland
9 Police Bureau.
10 A Is that a question?
11 Q Yes. I'm just clarifying. You used the word
12 "you". When you say "when you do this" or "when you do
13 that" it -- it -- you're not talking about -- about me.
14 You're -- are you?
15 A No. I'm not addressing your action.
16 Q Right. So we -- I'm just clarifying when you say
17 "you" --
18 A Okay.
19 Q -- it could be you're speaking as a police
20 officer -- Portland -- Police Sergeant.
21 A The plural we.
22 Q We're talking about --
23 A People on the police force.
24 Q Right. That's what I wanted to clarify. So are
25 you aware of a OSHA report being filed by --

952
1 MR. McMAHON: Objection, Your Honor. Relevance
2 THE COURT: I think it's irrelevant.
3 MR. STULL: I do want to be heard, Your Honor.
4 THE COURT: Okay. I'll ask the jury to exit.
5 (Jury exits.)
6 THE COURT: All right. Explain.
7 MR. STULL: How it's relevant?
8 THE COURT: Yes.
9 MR. STULL: The After Action Report which was a
10 product of Sergeant Price who's testimony we have not heard
11 includes on that form regarding whether an officer was
12 injured also whether an OSHA report was -- they're very
13 close on the form, because it is an occupational injury.
14 And so if there's an injury as -- that somebody that's
15 working in an occupation while it's a workplace injury
16 whether it's driving their car or cooking in a kitchen and
17 cutting themselves, or in this case, being a police
18 officer, doing their jobs. If there's an injury in the
19 workplace, we do report that as part of our Occupational
20 Health and Safety. And this is a --
21 THE COURT: Why is this witness being asked about
22 that by way of cross-examination?
23 MR. STULL: I was just asking if he knew if the --
24 an OSHA report had been filed.
25 THE COURT: I know. I know. But why does his

953
1 knowledge of the OSHA report, if there is one, why is that
2 relevant?
3 MR. STULL: He was the supervising sergeant on the
4 scene and this was his event, and he was supervising it.
5 The officers were under his control, and if an officer
6 under his control was injured then my question is is he
7 aware, as the supervisor of that event, that there was an
8 OSHA report filed regarding that injury.
9 THE COURT: Would you -- have you asked him
10 whether he would be aware if there was any injury report?
11 Have you asked him if he would --
12 MR. KELLEY: Honestly it says supervisor's
13 responsible --
14 THE COURT: -- be or are you just presuming?
15 MR. KELLEY: -- right there.
16 MR. STULL: Your Honor, the Portland Police Bureau
17 policy --
18 THE COURT: I -- I don't -- no.
19 MR. STULL: -- specifically says the supervisor --
20 THE COURT: I'm -- your testimony is not what I'm
21 asking for. I asked you, did you ask him if he would be
22 advised if a report had been filed?
23 MR. STULL: No. I asked him if he knew one.
24 THE COURT: You didn't. Well --
25 MR. STULL: -- and that if he didn't then I could

954
1 follow with a reply.
2 THE COURT: No. First ask him if in his -- in his
3 capacity as a sergeant whether he would be aware of such a
4 filing under his authority.
5 MR. STULL: No problem.
6 THE COURT: If he has responsibility to monitor
7 those. If he does, then you can ask him if one was filed.
8 If he does not, then you don't go any further.
9 MR. STULL: Okay. That's fine, Your Honor.
10 THE COURT: Okay.
11 Anything further?
12 MR. McMAHON: No, Your Honor. I mean, I would
13 object generally to any -- I guess occupational self and
14 like safety and hazard report, I guess.
15 THE COURT: Well, it -- I supposed there are -- I
16 said it goes to whether or not there was an actual injury.
18 THE COURT: Of course, an actual injury is not
19 required for any of the charges, but I'll let him ask --
21 THE WITNESS: Could I have a moment with the DA?
23 THE WITNESS: Could I have a moment with DA just
24 talk and clarify an issue?
25 THE COURT: No. We're going to finish the --

955
1 THE WITNESS: Okay. Okay. It -- clarify that
2 point.
3 THE COURT: Well, he's going to ask you --
4 MR. KELLEY: You need to establish that --
5 THE COURT: -- if you would ordinarily be involved
6 in that.
7 THE WITNESS: Yeah.
8 MR. KELLEY: There was an injury. He has to file
9 a report.
10 MR. McMAHON: We bring the jury back?
11 THE COURT: Yep.
12 (Discussion between Mr. Stull and Legal Advisor
13 off the record.)
14 (Jury enters.)
16 BY MR. STULL:
17 Q Sergeant, if an OSHA report were to be filed,
18 would you be aware of it?
19 A I would be if I was writing the After Action, yes.
20 Q If as -- if you didn't write the report, and there
21 was an injury and your officer that you're supervising
22 wrote a report, would you become aware of that?
23 A It -- it depends. Like I mentioned to you on
24 these DOJ uses of forces, we bring in another supervisor
25 who writes the After Action and basically kind of takes

956
1 control of the report writing, the injury law and stuff and
2 that. And so he compile -- or she compiles that data
3 that -- and they, you know, get that sent up the chain. So
4 they would be the one that would have the lead on that part
5 of it.
6 Q And would you -- where were you -- in the loop
7 would be part of that?
8 A Not necessarily. I mean, they don't have to
9 report back to me on -- on that. I could be gone on my
10 days off or whatever. The officer -- the sergeant who does
11 the investigation is the one that compiles the reports that
12 go with the After Action that can -- that compiles the, you
13 know, OSHA report. Which there aren't a lot of OSHA
14 reports done, because there's a difference -- if you look
15 on that report it says OSHA or I believe it says injury
16 log, correct?
17 Q I'm not sure. Would you -- would you care to see
18 it? See -- I -- hang on. I did not receive the After
19 Incident report until much later than I did these --
20 MR. McMAHON: I'd object to that commentary.
21 THE COURT: Let's -- yeah. We're not going to --
22 please don't have the commentary as you're doing those
23 things. If you're going to show him the report, go ahead
24 and show him the report.
25 MR. STULL: Your Honor, I'm sorry. I have this --

957
1 I have this material --
2 THE COURT: I don't want you to be talking to the
3 jury about what you're doing.
4 MR. STULL: I'm trying not to, Your Honor.
5 THE COURT: Just provide it.
6 MR. STULL: I will delay it.
7 THE COURT: Okay.
8 MR. STULL: I have two envelopes.
9 THE COURT: Show him --
10 MR. STULL: One of them has the After Action
11 Report. One of them doesn't. I didn't get them at the
12 same time.
14 MR. STULL: All the other information --
15 THE COURT: Just -- just provide what he --
16 provide.
17 MR. KELLEY: Is this what you're showing him?
18 MR. STULL: Yes. Have you got the whole thing
19 there?
20 MR. KELLEY: Yes, I do. When we start the --
22 May I approach the witness, Your Honor?
23 THE COURT: Yes.
24 BY MR. STULL:
25 Q I have Sergeant Price's After Action Report. And

958
1 while -- before you start even looking at that, I want to
2 ask a question as to whether the person who does the After
3 Action Report can be a part of the action?
4 A No. If they're involved in the use of force, no.
5 If they have directed the use of force, no.
6 Q But if they were a part of the -- is this -- in --
7 in --
8 A The After Action deals with force issue in this
9 instance. If they were part of the force issue, no.
10 That's why you heard me calling for another supervisor to
11 come down, because I knew I was out as far as being able to
12 do any 940 issue because I was involved in the force issue.
13 Q What about Sergeant Price that day?
14 A He was not -- he was not involved in the force
15 issue.
16 Q Who was involved in the force issue?
17 A Officer Engstrom, Officer Singh; myself.
18 Q Okay. And getting to the -- the report there --
19 A What do you want me to look at?
20 Q I'm sorry. I'm having --
21 A Okay. Page 1, the bottom of the page it says
22 Officer Andrew --
23 THE COURT: Well, wait. Wait, wait. You haven't
24 been asked for me to -- just wait. Just look at it.
25 MR. STULL: Thank you, Your Honor. All trying to

959
1 jump the starting here.
2 BY MR. STULL:
3 Q On the bottom left-hand corner of that form, is
4 there information or -- or it's a form. But is it -- is it
5 printed in a manner that if it's completed, the -- whether
6 or not there was a OSHA report or on -- as you referred to
7 a different type of log? Is that on that form?
8 A There is an online injury log or an OSHA notified.
9 Q Right. And for this event was there either of
10 those two?
11 A Neither one of the boxes are checked.
12 Q And does that indicate that neither of those -- do
13 you think it's an error on the part of Sergeant Price or do
14 you think that --
15 MR. McMAHON: Your Honor, at this point I'd
16 object. It's hearsay. He's commenting on the content
17 that's offered.
18 THE COURT: It is. It is. It is. I sustain the
19 objection.
20 MR. STULL: Your Honor, it's offered to impeach a
21 prior witness.
22 THE COURT: And we are not going to be arguing
23 these. If we need to argue them, we'll have to take jury
24 out. And --
25 MR. STULL: I'll withdraw, Your Honor.

960
1 THE COURT: Okay.
2 BY MR. STULL:
3 Q Regarding potential places where an officer might
4 be injured, and potential places they might not be injured,
5 have you ever heard of somebody standing on somebody's foot
6 and pushing them over so that they're own body weight
7 breaks their ankle?
8 A No. I believe physically that could happen
9 though.
11 THE COURT: Redirect?
12 MR. McMAHON: Briefly.
14 BY MR. McMAHON:
15 Q There's a couple issue --
16 A Sure.
17 Q -- I'd like to go into. First off, we were
18 talking about the use of force and the force issue. In
19 this specific case what were you defining as the use of
20 force in this case?
21 A The use of force is the handcuffing. Handcuffing
22 him with the wrist locks against his will.
23 Q Okay. So escorting him out --
24 A Over --
25 Q Escorting out -- escorting out -- him out to the

961
1 vehicle that was not part of the use of force?
2 A Not that I saw, but I wasn't present when it
3 happened.
4 Q Okay. Now, with respect to Mr. Stull's actions,
5 and you actually heard him call the ambulance, right?
6 A Yes. I heard him call. Yes.
7 Q And like you told him that one ambulance was
8 outside?
9 A Correct.
10 Q Up until the point where he began to punch Officer
11 Engstrom, would you have let him walk out and go to that
12 ambulance?
13 A That was our hope, yeah. My hope.
14 MR. McMAHON: No further questions.
15 THE COURT: All right. You may step down.
16 THE WITNESS: Okay. Thank you.
19 MR. McMAHON: And, Your Honor, I'd ask this
20 witness be excused.
21 THE COURT: He'll be excused.
23 THE COURT: Okay.
24 MR. McMAHON: And, Your Honor, the State will be
25 calling Officer Parik Singh.

962
2 (Discussion held between Mr. Stull and his Legal
3 Advisor off the record.)
4 THE CLERK: Do you solemnly swear under the
5 penalty of perjury that the testimony you're about to give
6 will be the truth, the whole truth and nothing but the
7 truth?
8 OFFICER SINGH: Yes.
9 THE CLERK: State your first and last name and
10 spell your name for the record.
11 OFFICER SINGH: Parik Singh; P-a-r-i-k; S-i-n-g-h.
12 WHEREUPON,
13 OFFICER PARIK SINGH,
17 BY MR. McMAHON:
18 Q Good afternoon, Officer Singh.
19 A Good afternoon.
20 Q What's your current occupation?
21 A I'm a police officer with the City of Portland.
22 Q How long have you been with the City of Portland?
23 A Almost 20 years; 19 years and about eight months.
24 Q And what did you do before you became a police
25 officer?
963
1 A I was a student.
2 Q And when you became a police officer, what was
3 your training like? In other words, what was your training
4 like with respect to use of force?
5 A We were given lots and lots of training, different
6 scenarios, went through the Academy, went through Reserve
7 Academy, the real Police Academy, went through the advanced
8 training with the Portland Police Bureau, and then we have
9 in-service training every year.
10 Q And were you on duty on November 25th of 2015?
11 A I was.
12 Q Where were you on duty?
13 A I was working downtown Central Precinct.
14 Q And did you respond to a call down at City Hall?
15 A I did.
16 Q And just generally speaking what was that call in
17 regards to?
18 A I believe it was a disturbance at the City Hall
19 and Sergeant Axthelm and another officer had asked several
20 officers to respond. I think I was the second one there.
21 Q And when you got to City Hall where were you in
22 the staging or standing or where were you?
23 A I was told to park out front and then just walk
24 up. And we were supposed to meet our supervisors right at
25 the front door at City Hall, and we got briefed.

964
1 Q All right. And did you at any point enter City
2 Hall council chambers?
3 A We did.
4 Q And at that point, sir, who was in charge of the
5 situation?
6 A Sergeant Axthelm.
7 Q And were you given any instructions by Sergeant
8 Axthelm about what to do?
9 A Yes.
10 Q And at that point, sort of during your initial
11 arrival, what were you there to do?
12 A When we got there, Sergeant Axthelm told us we
13 need to go arrest Mr. Davis, who was -- there was two
14 people causing a disturbance, and one was Mr. Keith Davis.
15 It was -- and the other one was the Defendant that's
16 sitting here.
17 Q And I'd first say you're sort of there as backup
18 for Sergeant Axthelm, the officer in charge?
19 A Yes.
20 Q And I'm going to go ahead and play a clip of the
21 video. And you can go ahead and identify when you --
22 (Video is played in open court and transcribed as
23 follows:)
24 MR. STULL: -- Waterfront Park in 1995.
25 (Many people speaking at the same time and cannot

965
1 separate voices.)
2 MR. STULL: No, I will not go. I will not go.
3 No. I am filming police interaction with the public as a
4 journalist.
6 MR. STULL: No, bullshit. I'm allowed to fucking --
8 BY MR. McMAHON:
9 Q Do you see yourself on screen at this point?
10 A Yes. All the way over to the left.
11 Q Okay. And where do you go at this point in the
12 video?
13 A We're just walking past Mr. Stull.
14 (Video continues to play in open court and
16 MR. STULL: I'm allowed to record.
17 UNIDENTIFIED SPEAKER: Sit down, Mr. Stull.
18 MR. STULL: You're not kicking me out again for
19 this.
20 UNIDENTIFIED SPEAKER: Get out, sir.
21 MR. STULL: No. Hey, I'm already --
22 UNIDENTIFIED SPEAKER: Bring the ambulance.
23 MR. STULL: No, I will not leave.
24 UNIDENTIFIED SPEAKER: (Indiscernible) the
25 ambulance.
966
2 BY MR. McMAHON:
3 Q Now, Officer Singh, I see that you put on
4 something that looked like blue nitrile gloves. Just
5 generally what's your practice when putting those on?
6 A I try to put them on on every call that I go to.
7 Q Okay. And just generally what's the use of them?
8 A Just communicable diseases and everything that we
9 have to deal with. We were told -- they tell us --
10 precaution prior to going in.
13 MR. STULL: No. I'm here to film this. And
14 you're not going to --
15 UNIDENTIFIED SPEAKER: Bring the ambulance.
16 UNIDENTIFIED SPEAKER: Call the ambulance.
17 UNIDENTIFIED SPEAKER: We need the ambulance.
18 MR. STULL: When is my ambulance going to get here?
20 BY MR. MCMAHON:
21 Q All right. And at that point it looks like there
22 was a little aside with, I believe, Sergeant Axthelm. Do
23 you remember what you were told? Do you remember what was
24 sort of going on at that point?
25 A Yeah. We were told by Sergeant Axthelm to go

967
1 arrest Mr. Davis.
2 Q Okay. And Mr. Davis was, in fact, the one who was
3 filming?
4 A Yes.
7 UNIDENTIFIED SPEAKER: I'm not going to
8 (indiscernible).
9 MR. STULL: No.
10 UNIDENTIFIED SPEAKER: You're not (indiscernible).
11 (Many people shouting at one time and
12 indiscernible).
14 BY MR. McMAHON:
15 Q Okay. Can you sort of walk us through what was
16 going through your head and why you reacted like you did in
17 that video?
18 A Our initial -- our order from Sergeant Axthelm was
19 to go arrest Mr. Davis. We were just trying to get around
20 Mr. Stull, and then my partner got down like -- kind of
21 trapped with Mr. Stull, and he couldn't get around him and
22 stuff. So then he had to interact with him. And then I
23 turned around and saw that he was struggling with him and
24 began swinging at Mr. -- at Engstrom. So then I had to
25 stop. I mean, my partner was getting assaulted. So I had

968
1 to grab the hand that was assaulting -- assaulting him.
2 Q And what are you trying to do at sort of this
3 point?
4 A Well, he was trying to assault the officer, so we
5 were going to arrest him for assaulting a police officer.
6 I was just trying to gain control, and we're trying to get
7 him down to the ground or to an area where we can take him
8 into custody. But there are just so many desks in the area
9 we couldn't like just force him down on the ground because
10 he might hit his head on -- on the desk or something. So
11 we were just trying to hold onto him, but he was struggling
12 so hard that we had to like, dance around a little bit.
15 MR. STULL: Get the hell out of my fucking way.
17 MR. STULL: Get the fuck -- fuck you.
19 BY MR. McMAHON:
20 Q Okay. Now, I'm going to go ahead and play a
21 different video from a different angle. I'm going to have
22 you do the same thing; sort of explain what you're doing
23 and why you're doing it.
24 MR. McMAHON: And just for record, Your Honor,
25 this is State's Exhibit 2, the Stull Council arrest video.

969
1 (State's Exhibit 2, video is played in open court
2 and transcribed as follows:)
4 MR. McMAHON:
5 Q So sort of at this point, first this is sort of a
6 reverse angle of that other video?
7 A Uh-huh (affirmative).
8 Q And what are you doing in this point of the video?
9 A I'm just holding onto his hand, just keeping in
10 control. He'd finally calmed down at this point, but then
11 I noticed the other security officers were struggling with
12 Mr. Davis, also, so I was keeping an eye on that. Because
13 when our backs were turned on -- on him I just didn't want
14 him coming up behind us.
15 Q And when you say "him" you're referring to Mr.
16 Davis?
17 A Yes.
20 MR. STULL: (Indiscernible) fuck you. Fuck you.
21 Fuck --
23 BY MR. McMAHON:
24 Q All right, at that point it's almost like you --
25 you take your hand off and manipulate something on your

970
1 vest. What were you trying to do?
2 A I'm just calling for more -- more cover officers,
3 because it was just the three of us here. And I didn't
4 know how -- he wasn't handcuffed yet. I didn't know how
5 bad it was going to get with the other guy behind us, so.
6 Just letting Dispatch know we might need more cover or
7 something like that.
10 MR. STULL: (Indiscernible). You're not allowed
11 to do that kind of shit you --
13 BY MR. McMAHON:
14 Q All right. Now, at that point it kind of looked
15 like you were using some leverage with his arm. What were
16 you trying to do there, and why were you trying to do it?
17 A Just to get him handcuffed to hold him into
18 control.
19 Q Okay. And what sort of control hold is that?
20 A Just like a wrist lock.
21 Q Okay.
22 A And then right behind his back.
23 Q Is that considered pain compliance or is that
24 different than -- control different than pain compliance?
25 A Yeah.
971
1 Q Okay. What's the difference between the two?
2 A Pain compliance you're actually trying to cause
3 pain just to get him to comply. A wrist lock is just to
4 hold somebody's wrist back. I mean, you can actually
5 manipulate it to do a pain compliance, but he was
6 struggling so far, and he's just pulling away. It was just
7 difficult to do anything.
8 Q Okay. At this point were you using it as a pain
9 compliance or were you using it as a control?
10 A I was just trying to get a sturdy hold to just get
11 his hands back so we could handcuff him. I was just doing
12 whatever I could just to keep his hands back and handcuff.
15 MR. STULL: Fuck all of you.
16 UNIDENTIFIED SPEAKER: (Indiscernible.)
17 MR. STULL: You're not allowed to do this.
19 MR. STULL: Hey. Hey.
21 MR. STULL: Hey.
23 MR. STULL: (Indiscernible) to me you fucking
24 (indiscernible) prick. Fuck you piece of fucking shit. I
25 have a disability you fucking piece of shit. You are a

972
1 piece of shit.
2 (Video concludes.)
3 BY MR. McMAHON:
4 Q So at that point you sort of disengage. What are
5 you doing at that time?
6 A I believe the security officer was struggling with
7 Mr. Davis, and I think he'd pushed him to the -- they were
8 on the ground. So that -- went back over to put Mr. Davis
9 in handcuffs.
10 Q Okay. Now as you were saying, as you were getting
11 with Mr. Stull there, how much force was he using on -- as
12 you were trying to hold his arm?
13 A He was resisting. He was pulling away. You could
14 see his arms getting away. It was just hard to control.
15 We tried to tell him to calm down and all that stuff.
16 Tried to talk to him, but he wouldn't listen. He was just
17 yelling so loud and stuff.
18 Q Okay. Now, Officer, based on your experience and
19 what Mr. Stull was doing -- believe he was trying to -- to
20 get away and get out of your custody?
21 A I'm sorry?
22 Q Did it -- he was trying to get away and get out of
23 your custody?
24 A Yes.
25 Q And was he resisting that custody forcibly?

973
1 A Yes, he was.
2 Q And after Sergeant Engstrom sort dealt with
3 Mr. Stull, did you escort Mr. Stull, or did you escort Mr.
4 Davis out of the Council chambers?
5 A Davis.
6 Q After you disengaged with Mr. Stull here, did you
7 ever -- did you go again that day or was that pretty much
8 your interaction with Mr. Stull?
9 A I believe that was the end.
10 Q All right. Thank you.
11 MR. McMAHON: I have no further questions at this
12 time.
13 THE COURT: Cross?
15 BY MR. STULL:
16 Q Officer Singh, what's Central Pain Syndrome?
17 A I'm sorry? Central Pain Syndrome?
18 Q Yes.
19 A I have no idea.
20 Q When you said that you asked the prisoner to calm
21 down, did you think that was possible?
22 A Anything is possible. You got to talk to people
23 in order for them to comply.
24 Q So do you think that's possible if someone has --
25 you thought it was possible. Do you think it's possible if

974
1 somebody has Central Pain Syndrome for them to calm down?
2 A I don't know what Central Pain Syndrome is so I'm
3 not sure. I know people can calm down. It's a choice that
4 they make sometimes, yes.
5 Q Did you hear the three words Central Pain Syndrome
6 anytime during your appearance here on that day?
7 A I don't remember.
8 Q Do you think that people who have disabilities can
9 do anything, like just said? People can calm down? I
10 believe is what you said. If -- if people could do
11 anything if they -- I'm not going to put words in your
12 mouth, but do you think it's possible for people with
13 disabilities to do the same things as people that don't
14 have disabilities can do?
15 A Yeah. I think they can. Yes.
16 Q Do you expect a blind person to be able to see?
17 A They can see in other ways, not just through their
18 eyes, yes.
19 Q Do you think you can expect a blind person to read
20 a stop sign from 200 feet?
21 A Probably not, no.
22 Q How could a blind person read a stop sign in
23 another way?
25 object.
975
1 THE COURT: This does seem to be -- he said he
2 didn't think so. So --
3 MR. STULL: He said he could read it in another
4 way. And I was thinking --
5 THE COURT: No. We're not -- I'm not arguing with
6 you. You're not arguing with me.
7 MR. STULL: Well -- I'll --
8 THE COURT: I'm going to rule on the objection.
10 THE COURT: I think we're getting off the topic,
11 so I will sustain the objection. Go ahead and ask him
12 about his observations here.
13 BY MR. STULL:
14 Q Did you observe somebody that you thought needed
15 to be inquired after or instructed to calm down?
16 A Yes.
17 Q Who was that person?
18 A Mr. Davies and -- and yourself.
19 Q And in what ways did I express to your observation
20 that I needed to be instructed or asked or inquired --
21 coached into calming down?
22 A Because you were swinging at my partner.
23 Q And before that?
24 A We were -- we weren't even going to deal with you.
25 We were going after Mr. Davis. I don't know why you even
976
1 stepped in.
2 Q What?
3 A I don't even know -- understand why you even came
4 in the middle of us. We weren't even going to -- you
5 weren't even our target or anything.
6 Q Mr. Davis was your target?
7 A Yes. We were there to go arrest Mr. Davis, not
8 you. We were instructed to go arrest Mr. Davis, not you.
9 We only decided to arrest you -- is when you started
10 swinging at my partner and you assaulted him.
11 Q When we -- what -- what did you believe when you
12 arrived at City Council -- the City Hall first and City
13 Council chambers secondary to that because it's interior
14 part of the building. Once you came into this room, what
15 did you think you were there to achieve as a police
16 officer?
17 A Whatever my supervisors told me to do. I knew
18 there was a disturbance and we needed to help solve
19 whatever the disturbance was.
20 Q At any point did you hear anybody say they needed
21 an ambulance?
22 A I believe you said you did.
23 Q And did you afford or affect that ambulance being
24 provided --
25 A We didn't --
977
1 Q -- at that request?
2 A -- I think we were trying to accommodate you that
3 and I think Officer Engstrom was going to get you an
4 ambulance. But we needed to arrest him first, and then --
5 and it only takes a second to call an ambulance.
6 Q It takes a second --
7 A And I --
8 Q It takes a second to call --
9 A -- I think --
10 Q -- for an ambulance?
11 A Yeah. I could call an ambulance right now. It
12 only takes -- right -- right here. We're -- we're
13 connected with our Dispatcher to call for an ambulance.
14 Q Are you all -- if -- if you were out on -- in your
15 employment, the course of your employment, if you're in --
16 alone, and somebody requests a call for an ambulance, can
17 you make that decision yourself?
18 A Yes.
19 Q That -- if you're under a supervisor can you make
20 the decision to call an ambulance for somebody without
21 consulting your supervisor?
22 A Yes.
23 Q Is there something about your status that's
24 different than other officers regarding the ability to
25 summons an ambulance?
978
1 A No.
2 Q Can anyone with a radio use the radio to summons
3 an ambulance?
4 A Anyone, yes.
5 Q And it takes a very short amount of time?
6 A I mean, obviously depends on which radio they're
7 on -- which channel they're on. You have to be on a
8 correct radio channel to call for an ambulance.
9 Q Have you called an ambulance for a person before?
10 A Probably five times a day.
11 Q You -- you call ambulances for people?
12 A Yes.
13 Q And what information do you need to know about
14 that person at -- before you request the ambulance using
15 your radio?
16 A Whether they're breathing, whether they're having
17 medical conditions and maybe how old they are.
18 Q What if they're medical condition is Central Pain
19 Syndrome?
20 A Then if we know that knowledge we give that over
21 the air for the ambulance staff to know. We relay -- we
22 just relay the information that we get, give it to our
23 radio dispatcher, and they pass it on to the AMR staff or
24 Fire; whoever's coming.
25 Q Are you a trained healthcare provider or you

979
1 have -- have medical nurse's training; paramedic, any of
2 that?
3 A No. I'm not.
4 Q As a police officer are you required to have some
5 level of first aid or?
6 A Basic first aid -- aid and CPR.
7 Q So beyond that are you -- are you instructed
8 through your training on body systems so you can -- as you
9 expressed, do things like wrist locks and other things? Do
10 you -- do you have a knowledge of the workings of the human
11 body?
12 A I have some knowledge, yes.
13 Q And do you know about the neurological system of
14 the human body?
15 A I don't.
16 Q If somebody has a neurological condition that
17 can't be observed, as like you said, the breathing, blood,
18 unconsciousness; if somebody has a condition that's what's
19 deemed invisible disability, what limitations are imposed
20 on you before you call an ambulance for them?
21 A If the symptoms are invisible? Like how would I
22 know if they're -- if -- if anybody asks for an ambulance I
23 call it for them whether they need it or not. We're not
24 allowed to refuse an ambulance or medical attention. Even
25 if we arrest them for warring or -- it doesn't matter

980
1 whether they are faking it or not, we call for an
2 ambulance. It doesn't matter.
3 Q Immediately upon request?
4 A Whenever we can. Whenever it's feasible. But if,
5 in this case, where you're punching my partner, we're not
6 going to call for an ambulance before I take you into
7 custody.
8 Q How --
9 A We'll call for an ambulance afterward, of course.
10 We can call for an ambulance afterwards.
11 Q If -- if somebody -- if somebody's committing any
12 number of crime, for example, I'll use a bank robbery, just
13 so we're not talking about me, but we're talking about
14 policies --
15 A Sure.
16 Q -- and your training.
17 A Sure.
18 Q If a bank robber, in the course of coming out the
19 bank gets shots by his partner, by accident or revenge or
20 I'm going to get my share of the loot -- whatever their --
21 their thing is.
22 A Sure.
23 Q Even though this person is committing a -- what
24 most of us would consider a major crime, a bank robbery --
25 if that person's injured at the crime scene, are they able

981
1 to get medical attention?
2 A Yes.
3 Q And how -- how would that happen?
4 A The exact same way anybody else would.
5 Q Okay. In any instances --
6 A We would probably go handcuff him, make sure he
7 doesn't have any other weapons or a -- a threat to the
8 medical staff, make the scene secure, and then call for
9 medical.
10 Q And then once the person's secure, the ambulance
11 can come without it being a threat to the paramedics? Is
12 that correct?
13 A Yes.
14 Q But security, in itself, isn’t as reason to deny
15 calling the ambulance for a person?
16 A No. We have medical staged all the time before we
17 even attempt to make a phone call -- calls or even go into
18 a call at -- at different instances that we get. We can
19 call for an ambulance -- have them staged because any time
20 you call for an ambulance or Fire or any kind of medical
21 help, they have their policy. They can't go into a hostile
22 situation. We have to go clear it for them before they can
23 go just to protect them -- for -- make the scene safe.
24 Then they can come in.
25 Q Upon your arrival to this room on that day before

982
1 Mr. Davis was asked to leave; did you hear before this --
2 as you said -- did I get in the way of -- of arresting Mr.
3 Davis?
4 A Yes. You did.
5 Q How did I get in the way of arresting Mr. Davis?
6 A You were blocking my partner's path.
7 Q And your partner was?
8 A Officer Engstrom.
9 Q So my physical position in the room was in the way
10 of Officer -- Sergeant Axthelm --
11 A No, Officer Engstrom. Todd Engstrom. Officer
12 Axthelm and I had already passed by you. You blocked
13 Officer Engstrom and --
14 Q From arresting Mr. Davis -- Davis?
15 A Yes. And then you started assaulting him. We
16 walked around you to go arrest Mr. Davis --
17 Q Excuse me.
18 A -- but you left my partner, and you kind of
19 trapped him back behind us. He was trying to get around
20 you, but then you were screaming at him. And then he --
21 you were asking for an ambulance, I believe. And he was
22 trying to get you to calm down -- even held your hand. And
23 then you began swinging at him. I don't understand why you
24 even swung at him. We were there to arrest Mr. Davis.
25 Q Could -- if we go to that part where you said

983
1 Officer Engstrom was -- I'm going to ask you this in
2 another way first. Excuse me, sir. Do you believe I
3 thwarted Officer Engstrom from arresting Mr. Davis?
4 A I don't think you planned it, but you did.
5 Q So it was unintentional?
6 A Right.
7 Q But just the fact that that's where I was in the
8 room put me in the route --
9 A Right.
10 Q -- from point A, being Sergeant Axthelm's position
11 1, and point B, being Mr. Davis. And in-between A and B, I
12 was in the middle?
13 A Right.
14 Q And if you could tell us, since we know from what
15 you just said that there was a -- Sergeant Axthelm in a
16 line, myself, continuing the line; Mr. Davis -- what --
17 excuse me. I misspoke. You're -- you're talking about
18 Officer Engstrom and not Sergeant Axthelm?
19 A Yes.
20 Q So I found myself, according to your analysis, I
21 misspoke Sergeant Axthelm, because they're both very close
22 to me at the time, so --
23 A Right.
24 Q -- that -- that's why I'm trying to get your
25 testimony here on that. If -- if by way of illustration

984
1 before we go onto the other point, if I could just use the
2 screen that's on there so we can kind of understand the
3 concept? We can see the -- the police officer there. Do
4 you recognize that as Officer Engstrom?
5 A Yes. I do.
6 Q Okay. And on the far side over there, the man
7 with the -- the big man with the blue shirt almost over to
8 the windows --
10 Q -- and I believe at that point in this video, I'm
11 just on the other side and out of sight. But would I be
12 blocking for the purposes of your -- your analysis of the
13 way you said the -- between me and Mr. Davis, would I be
14 blocking, if that were the case, would I be blocking
15 Officer Engstrom's route to Mr. Rhoads (ph), the man in
16 the -- the large blue shirt man over there by the -- the
17 window in the background? Would -- would I be, as you
18 said, preventing Officer Engstrom from arresting Mr. Davis?
19 Would I be if I am, and I believe I am on the other side of
20 that out of sight because I'm behind the -- Officer
21 Engstrom. Would somebody in-between those two be blocking
22 his way to get there as -- as you said I was blocking his
23 way to -- Officer Engstrom's way toward Mr. Davis?
24 A I believe there's furniture in the way. That --
25 that's what caused it be blocked. And like there's limited

985
1 areas to walk around.
2 Q Yeah. Okay. Okay. Could -- could you do me a
3 favor? We'll approach this two ways and maybe save some
4 time if --
5 MR. STULL: If it's all right with Your Honor.
6 Could we have Officer Singh draw a diagram at the same time
7 that -- prepare to draw a diagram at the same time that Mr.
8 McMahon prepares the video to that part where he said that
9 Mr. Engstrom was holding -- holding my hand -- Officer
10 Engstrom was holding my hand. Is that fine with you, Your
11 Honor? Is that appropriate?
13 MR. STULL: What I'm trying to do is I'm trying to
14 save the Court's time but --
15 THE COURT: Did you want him to go to the -- yes.
16 MR. KELLEY: May the witness step over to the --
17 MR. STULL: May the witness step over to the
18 board?
19 THE COURT: He can -- yes, he may.
20 MR. STULL: And -- and may Mr. McMahon prepare the
21 video for the witness as he's preparing there? One of them
22 could do the other? Is that all right with you?
23 THE COURT: Well, I -- I'm not going to order Mr.
24 McMahon, but if he'd like to oblige?
25 MR. STULL: I'm asking if it's correct.

986
1 THE COURT: He's obliging.
2 MR. McMAHON: I'm happy -- I'm happy to do that.
3 MR. KELLEY: Mr. Singh, could come over to the
4 board.
5 THE COURT: He's obliging. Okay.
6 MR. STULL: Mr. -- Mr. Singh, you have the Court's
7 permission to approach the board, and let us know if
8 there's a marker over there --
9 MR. KELLEY: There are markers. So just tell him
10 what you want him to do. He'll draw it on there, when it's
11 all done, you'll slap a sticker on it and offer it as an
12 exhibit.
13 MR. STULL: Okay.
14 MR. KELLEY: If you want.
16 (The video, State's Exhibit 1, is played without
17 audio.)
18 BY MR. STULL:
19 Q If you could -- if you could please for -- for our
20 sake, draw the -- the Council table at the top. That's --
21 that's where the people speak. Yeah. That -- City
22 Council -- that's - your artwork is just fine for the
23 purpose of illustration, so don't do any more detail --
24 then a rectangle -- that table -- the wooden table that's
25 out in the middle there. Okay. And that little black line
987
1 that started there. Would that fairly represent where just
2 to say Officer Engstrom?
3 A I think there's something else like a step or
4 something or --
5 Q We can -- we can --
6 A I've -- I've only been there that one time, so --
7 Q All right.
8 A -- I'm not 100 percent sure.
9 Q Sure. And --
10 A But if you could pause it I could --
11 Q We were going ahead of that because -- and you
12 might fast forward. I can --
13 MR. KELLEY: And just for the record, Your Honor,
14 we are referring to the video that's already been offered
15 as State's Exhibit 1.
17 MR. STULL: That's true.
18 THE WITNESS: So there's a podium or something
19 like right here. I think it's on both sides.
20 MR. STULL: And it's probably -- Mr. McMahon it's
21 probably another three minutes or so.
22 MR. McMAHON: Would you like the sound playing,
23 Mr. Stull, or shall I leave it muted?
24 MR. STULL: It's -- it -- muted is fine because
25 we're just going to get the -- the thing stopped and --

988
1 it's very soon after this. Okay. Right there.
2 (Video is paused.)
3 MR. STULL: We could -- we could start with
4 that.
5 BY MR. STULL:
6 Q And -- and where -- where would you picture
7 Officer Engstrom -- you're seeing there compared to your
8 table? And if you could use another color, please. Pick
9 one, and we'll just say that that's Officer Engstrom.
10 A I believe he's right about here.
11 Q Yeah. Could you -- and -- and designate that
12 with some version of E. It doesn't have to be on the dot.
13 Just so we know that you're referring to that. That's
14 fine. Thank you.
15 MR. STULL: Okay. And if we could scroll forward
16 a little more and --
17 (The video, State's Exhibit 1, resumes playing
18 without audio.)
19 MR. STULL: -- and stop that. Okay.
21 BY MR. STULL:
22 Q And where would you place -- okay. First of all
23 by the American flag, that person in the background, is
24 that -- that's you, isn't it?
25 A Yes. It is.
989
1 Q Okay. So what we're looking at now is the back of
2 my head? And beyond my bald head the clean head of -- of
3 Officer Engstrom?
4 A Yes.
5 Q On upper -- upper right hand side of my head --
6 our view?
7 A Yes.
8 Q Right and looking over the -- my right shoulder?
9 A Yes.
10 Q Okay. And -- and if you could put on your -- your
11 diagram where Officer -- excuse me -- I keep doing this --
12 Sergeant Axthelm is and myself?
13 A I'm not sure where he's at right now.
14 Q Okay.
15 MR. STULL: You might -- you might want to fast
16 forward the video.
17 The video, State's Exhibit 1, is played without
18 audio.)
19 BY MR. STULL:
20 Q As long as -- please pay attention. There we are.
22 BY MR. STULL:
23 Q Try that -- try that for your diagram --
24 A So this is Sergeant Axthelm.
25 Q -- on another color, please. I’m sorry. A

990
1 different color. I'm not saying I'm -- it -- it's just so
2 we can -- there we have it. Okay.
3 MR. KELLEY: Have him say "A" for Axthelm.
4 MR. STULL: Yeah. And on your diagram please --
5 MR. KELLEY: Because someone's listening.
6 MR. STULL: -- yeah, because we are doing an audio
7 record of it, so.
8 THE WITNESS: A is for Sergeant Axthelm.
9 BY MR. STULL:
10 Q Right there as you've -- as you indicated on --
11 on --
12 A E is for Sergeant or Officer Engstrom.
13 Q Okay. And the other two would be -- and generally
14 speaking. And we might just right now say putting myself
15 on there, and we could see if Mr. Davis or the other
16 parties are moving around. But --
17 A I don't have any other colors.
18 MR. STULL: Pardon me, Mr. -- Mr. Gibson, the
19 dryer -- the markers over there seem to have be of limited
20 effectiveness.
21 THE COURT: He can -- one of them will work, and
22 he can find the one that will, I think unless we're out of
23 them over there.
24 THE WITNESS: I can use the black.
25 ///
991
1 BY MR. STULL:
2 Q I have some, too. Is that all right? Want to use
3 one of these?
4 A I have the black.
5 Q Okay. You've got one -- your own? That's fine.
6 A You want me to put where you're at?
7 Q Yeah.
8 MR. GIBSON: What color do you want? What color?
9 THE WITNESS: What color would you prefer?
10 MR. STULL: It's up to you, Your Honor -- Officer.
11 THE WITNESS: Have a blue?
12 MR. GIBSON: Yeah. I have a blue and red.
13 BY MR. STULL:
14 Q You could -- you can use an open circle. You can
15 make one a triangle just so we know that -- okay. So I am
16 the black circle, and then there's the -- I'm seeing brown.
17 A Should I put --
18 Q And yeah. You could put a -- put an "S" there for
19 myself. For yourself put a -- or you could put a "D" there
20 for me for Defendant is fine with me. There's only one of
21 those here.
22 A Okay.
23 Q Okay. And where would be Mr. Davis at that point?
24 And you can point with your finger and then -- and then
25 if -- as you do you might -- you might --

992
1 A Waiting --
2 Q -- want to draw it later, but okay. So your -- so
3 your observation is that the -- the "E", also designated by
4 the color green and the --
5 MR. McMAHON: I'm sorry, Mr. Stull, to interrupt.
6 It looks like some of the jurors are having a hard time
7 seeing it. Would it be easier if we moved the board so
8 that where the jurors can see it?
9 THE COURT: I think it can stay right where it is.
10 I want to be able to see it as well.
12 THE COURT: And -- and I don't want it in front of
13 me and between me and them -- the jury --
14 MR. STULL: Sure.
16 THE COURT: So, please.
17 MR. STULL: Okay. Sorry to speak over Your Honor.
18 I'm just trying to --
19 BY MR. STULL:
20 Q You are the open circle "S" up at the top?
21 A Yes.
22 Q "E" is green for Engstrom.
24 Q And "A" is -- I'm going to call it brown.
25 A Okay.
993
1 Q Does that look brown to you? Orange? What color
2 is that?
3 A It's red.
4 Q Red. Okay. We'll call it red. And then what
5 about the -- what you're using Mr. Davis --
6 A Red also.
7 Q Okay, but you have it as open? Red -- but it's --
8 it's more a ring. Okay. So based on your testimony where
9 you're seated there, the issue is you -- you were
10 describing it before we got you over here at the diagram
11 and to assist it was that the black dot, Defendant --
12 A Yes.
13 Q Was in-between the green "E" and Mr. Davis
14 represented down on the bottom of the -- bottom part of
15 that page?
16 A Yes.
17 Q And that's what led to the -- my being a problem
18 as far as the law enforcement action that you were a part
19 of?
20 A Well --
21 Q Or that -- that -- explain. I don't want to put
22 words in your mouth. We have the diagram. Please say what
23 you were up there with a -- the diagram.
24 A Like who was a problem, or why you were in --
25 Q Well, how I got -- you mentioned something about

994
1 my -- my encounter or my interface with Officer Engstrom
2 was because he couldn't get --
3 A We -- we --
4 Q -- from point A where he was to point B where Mr.
5 Davis was, because I was in the middle.
6 A Okay.
7 Q Is that correct? Or -- or your version of that.
8 I don't want to -- I don’t want to -- I was only refreshing
9 what you started before we got you over here with the pens.
10 A Okay. So Mr. Davis is standing here. You're
11 right here, Mr. Stull. Our supervisor Sergeant Axthelm's
12 talking to you face to face. Engstrom is right there, and
13 I was coming up behind Engstrom; his cover. Sergeant
14 Axthelm pointed at Mr. Davis to be arrested and told us we
15 need to go arrest Mr. Davis.
16 Sergeant Axthelm walks around you. I walk around
17 you, and he -- Engstrom kind of gets trapped between this
18 little alley or little space right there, and you can see
19 it on the video better. Where we actually walked around
20 you, to go to get Mr. Davis, but we then we were waiting
21 for Engstrom to come help. But then you trapped him and
22 then you started swinging at him.
23 That took our distraction away, because you're
24 more of a threat to us than Mr. Davis. So we deal with the
25 first threat first, which was you, because you were

995
1 assaulting my partner. So instead of going after Mr.
2 Davis, now our attention is on you; take you into custody.
3 Q That -- that's clarifying. And if -- if you don't
4 mind, you can return to your seat. I don't think we're
5 going to offer that as an exhibit, but it does clarify what
6 you were saying.
7 Now as far as a point in time without referring to
8 the video, but through -- referring to your diagram, at
9 what point did you observe Sergeant Axthelm calming down --
10 trying to calm down -- as I believe you said, and by
11 including putting his hand on my hand?
12 A Right when he was -- we were trying to move around
13 you. I think you can see it on the video where Officer --
14 Sergeant Axthelm and I walked around you. And you kind of
15 started yelling at Engstrom by himself. And then he -- and
16 you asked for -- I believe you asked for an ambulance on
17 there or said something, or somebody was yelling an
18 ambulance.
19 And I think Officer Engstrom said, "We'll get you
20 an ambulance." And he was hold -- grabbed onto your hand.
21 I believe it was your right -- or your left hand. And he
22 was trying to calm you down saying, "Hey, we'll get you and
23 ambulance," or whatever. But we -- we are told to go
24 arrest someone -- we have to go deal with that first. When
25 you're yelling at them, we can't call for an ambulance

996
1 while you're yelling, and we have a mission to arrest
2 somebody else. So you --
3 Q Okay.
4 A -- interfered, and then all of a sudden you
5 started swinging at my partner. So that's why we went --
6 arrested you. We had no intention to arrest you. We
7 weren't told to come arrest you. We were only there to go
8 get Mr. Davis. The only reason we arrested you is because
9 you were swinging at my partner and you were assaulting
10 him.
11 Q The point in time when Officer Engstrom has his
12 hand on -- whichever hand -- it doesn't matter. It's all
13 in the video, and we talked about that. But my -- my query
14 is -- the point in time that that happened, I was not yet
15 under arrest. Is that correct?
16 A No.
17 Q Right. And the point in time that you heard
18 Officer Engstrom say that he was going to get me an
19 ambulance -- call for an ambulance -- we'll get you --
20 we'll get you one, was that before or after you were
21 pointing -- as you testified, your supervisor pointed get
22 that fellow referring to, as we discussed, Mr. Davis?
23 A I think you can see it and hear it on the video.
24 Q Would you like to -- would you like to look at it?
25 A If you need to, I mean, I -- I know I remember.

997
1 The ambulance words popping up, but the ambulance stuff has
2 to wait. The assault has to -- takes priority. Anytime --
3 Q But -- okay.
4 A -- a crime in progress, anybody's going to be
5 heard -- whether it's an officer or a citizen or anything,
6 we don't call for ambulance. They're not going to come in,
7 period, unless we tell them it's safe. So there's no point
8 in calling an ambulance if there's an aggressor still out
9 of control.
10 Q Okay. I believe what we're looking at right there
11 and that, by happenstance, stopping -- though I guess maybe
12 we stopped to give you another view. But that's Mr. Cohen,
13 I don’t know if you're familiar with that, but the -- the
14 gentleman with the tie -- the striped tie --
15 A He's a security for City Hall.
16 Q Right. And then there's myself, and then
17 there's -- I believe that's Sergeant Axthelm that I'm still
18 talking to with Sergeant Engstrom behind me?
19 A Yes.
20 Q Could an ambulance be called right then?
21 A No.
22 Q Why?
23 A Because it's a disruptive call. There's -- we had
24 to clear out the whole City Hall just to get people out of
25 there because of disturbance that was already going on. We

998
1 can't call more people in unless we secure that -- that
2 scene first. There were people still filing out when we
3 were coming in, because there was actually a meeting going
4 on or something like that -- some kind of a City Hall
5 meeting. All the -- everybody was filtered out in the
6 hallway because we had to come deal with -- with two people
7 that were causing a disturbance.
8 Q So to kind of try to resolve this, an officer may
9 call an ambulance anytime, as you said, you do it several
10 times a day. You can do it, and it takes very little time
11 with your radio, except the anytime can't include when
12 there's a disturbance?
13 A Yeah. There's no reason to call for an ambulance
14 when there's a disturbance still going on. You can't --
15 there's a difference between calling -- can call and will
16 call. We're not required to call for an ambulance anytime,
17 but we will call anytime you need it. But we have to make
18 sure the scene is safe for them to come in and the
19 situation is handled before inviting more people in to get
20 hurt. We need to calm the situation down before we can
21 bring more people in unless -- the only other people that
22 can come in are probably more law enforcement officers
23 coming to help us calm the situation down. Because we took
24 the least amount of people in that room -- just two
25 officers and a supervisor, and that's -- that -- I mean, I

999
1 don't understand. We could have called the whole precinct
2 to come in and handle the situation, but we didn't because
3 we figured we could handle it. But it got out of hand. We
4 had to call more people in during the struggle with you,
5 and more people did show up. But we had -- we actually
6 handcuffed both people before they all showed up.
7 Q Did you notice the demeanor of --
8 A And we did --
9 Q -- the people in the gallery -- various people?
10 For example, it seems that Mr. Cohen is standing there.
11 A I believe that Mr. Cohen's the one that called us
12 initially.
13 Q Initially we're -- you may be right. That's what
14 you're testifying. The -- does it look like he has his
15 hand in his pocket -- Mr. Cohen -- has his right hand in
16 his pocket?
17 A I have no idea.
18 Q What does that look like he's doing there?
19 A It's possible. It's possible. If you put it on a
20 play maybe we could get a better angle.
21 Q My question -- and the person in the background
22 there in the far ground standing --
23 A It's kind of --
24 Q -- does that person -- is that person exhibiting a
25 posture that reflects that they personally feel threatened?

1000
1 A I have no idea. You'd have to -- have to push --
2 put it on play to see the whole thing.
3 Q If and you're -- you're welcome to view this, and
4 I have to ask before we do that --
5 A Because there were --
6 Q -- if -- excuse me. Go ahead.
7 A There was no issue with you talking or yelling at
8 this point.
9 Q Okay.
10 A Our focus was just Keith Davis. There was no
11 threat. There was no -- no intention to arrest you or deal
12 with you or anything. I think -- I don't know -- I don't
13 know to make it more clear. We weren’t coming after you.
14 We were trying to get around you to go get the person we
15 wanted to arrest for trespassing. And when we -- we were
16 trying to get around you. You created a situation where
17 you forced our hand, because you were assaulting my
18 partner. We -- we are not allowed to ignore that, period.
19 Q Sure.
20 A If you assault my partner, you're going to go to
21 jail, because you're either going to assault either him and
22 get him hurt, you're going to get hurt, or you're going
23 to -- as soon as you hurt his -- my partner, you're going
24 to come after me. So the -- the biggest threat at this
25 point was Mr. Davis, not you. We just wanted to get around
1001
1 you.
2 Q Are you aware of any injuries that Officer
3 Engstrom sustained?
4 A I think he had pain to his right side somewhere.
5 I don't remember it all. He wrote a report. He documented
6 it, and you'd have to ask him.
7 Q Did you talk to him about it at the time, like
8 that day or, you know?
9 A I think I talked to him during -- when it happened
10 or after. And I did remember. Maybe he had some kind of
11 a -- like where you had hit him or something like that.
12 Q And, first of all, maybe we can establish there
13 are a lot of Portland Police officers, aren't there?
14 A Yes. There are.
15 Q And what -- it's in the hundreds. Isn't that
16 correct?
17 A Depends on what officers you're talking about,
18 because there --
19 Q But just in general there is --
20 A -- there's detectives, there's lieutenant
21 sergeants and all of that; patrol officers. I'd say there
22 was hundreds -- about 300.
23 Q 300. So do you encounter Officer Engstrom or did
24 you happen to just be dispatched or are you part of a
25 squad, a team? Are you?

1002
1 A No. We're all assigned to --
2 Q You work together or you just happened to show up
3 here today and you -- you know how to work together?
4 A We're assigned districts every morning; depends on
5 what district mean patrol. I’m a floater. I think Officer
6 Engstrom's a floater. Wherever. Nobody's assigned a
7 district and the -- and the District Officers on their days
8 off -- we fill in. Some officers choose not to have
9 assigned districts, so on this particular day, I think, I
10 was assigned downtown and so was Officer Engstrom. It's
11 just -- different districts. We have downtown district.
12 We have Southeast district. And we have Southwest
13 district, and Northwest districts. They all get called by
14 different officers all the time.
15 Q And this particular day, my question really is --
16 A It's all random.
17 Q -- is -- is you just all happened to be on that
18 spot at the same time doing your jobs?
19 A No. We were probably the only officers clear
20 because we do have a pretty high call load, and they called
21 the closest officers to come respond. And whoever was free
22 took the call. I don't even remember what district I was
23 working that day.
24 Q Right. So -- so basically you were available --
25 A Right.
1003
1 Q -- you were close and that's what brought you
2 together?
3 A Yes.
4 Q You -- you weren't necessarily a --
5 A It's no different than any other call.
6 Q And -- but did you arrive in your own patrol car?
7 A I did.
8 Q And so it wasn't like --
9 A We don't work partner cars usually. There's --
10 some people do, but not -- it's very rare. Everybody comes
11 in their own patrol car.
12 Q And you work with whoever you need to whenever
13 you're called to work with --
14 A We respond to calls --
15 Q Right.
16 A -- and it could be a different officer every time.
17 Q Okay. I was -- I was just trying to understand
18 that you're not -- the five people that go do this and
19 then --
20 A No.
21 Q -- the same five people go do something else. It
22 could be --
23 A It could be anybody.
24 Q -- coming. And -- and with that kind of a -- you
25 could be working with anybody, how important is the role of

1004
1 the supervisor on the scene?
2 A Very important especially at City Hall.
3 Q And could you explain why you think the
4 supervisor's important at a scene like City Hall?
5 A Because it's very political and very looked at in
6 a very -- I mean, under a microscope no matter what we do.
7 Q And if we could get back to -- your supervisor's
8 there -- if you want to look at that video with me, please.
9 Your supervisor's there to our left. That's his left hand.
10 That's -- he's facing me. There's part of a conversation.
11 I believe this point in time is prior to the pointing to
12 Mr. Davis to direct you with the point. If -- if I could
13 clarify this -- did you follow the direction of your
14 supervisor pointing with his hand that -- get that guy --
15 A Yes.
16 Q -- that kind of thing?
17 A Yes.
18 Q Arrest that guy or whatever. I don't want to -- I
19 don't want to characterize what he said, but it was like
20 that's the fellow?
21 A Yes.
22 Q -- meaning officer -- I'm -- I'm trying to set you
23 up -- hope I'm not out of line. I'm trying to suggest that
24 your response to go get Mr. Davis was through your
25 supervisor doing an act. It was a motion with his finger

1005
1 pointing saying now him. Would you as his -- at his -- I
2 don't want to say at his service -- did what you were
3 instructed by your supervisor to do to go to Mr. Davis?
4 A Yes.
5 Q By the point?
6 A Yes.
7 Q The pointing --
8 A Not only pointing. He actually vocalized it.
9 Q Okay.
10 MR. STULL: And can we go ahead and watch the next
11 minute or so of video?
12 MR. McMAHON: Mr. Stull, would you like the --
13 would you like the volume on or --
14 MR. STULL: Just --
15 MR. McMAHON: -- would you just like it without
16 volume?
17 MR. STULL: It -- it's up to Officer Singh if he --
18 THE WITNESS: You might want to volume up. I
19 think you might be able to hear Sergeant Axthelm telling
20 him.
21 MR. STULL: That -- that's fine. This is to aid --
22 THE WITNESS: And you can hear the ambulance part
23 also.
24 MR. McMAHON: Mr. Stull, tell me when you would
25 like me to stop the video, please.

1006
1 (The video, State's Exhibit 1, is played in open
3 MR. STULL: You're not taking me out again for
4 this.
5 UNIDENTIFIED SPEAKER: Sir --
7 BY MR. STULL:
8 Q Okay. There's the pointing.
9 (Video paused.)
10 BY MR. STULL:
11 Q We agree?
12 A Right.
13 Q Is that the pointing?
14 A He told him --
15 Q and there might be another one here --
16 A He told him he's out. Yeah.
17 Q -- I -- and but that was what you were talking
18 about --
19 A Right.
20 Q -- and --
21 A And then Sergeant Axthelm gives us the command to
22 go arrest him.
23 Q And the command was for you and --
24 A To go arrest -- yes.
25 Q You and Officer Engstrom?

1007
1 A Yes. Our supervisors don't get involved in
2 arresting unless it's necessary. That's what patrol
3 officers do.
4 Q Right. And -- and if you don't mind me asking,
5 that's because they have other things to be concerned about
6 which is supervising the totality of the scene and not the
7 smaller elements?
8 A There's more to it than that, yes.
9 Q But -- could you give us a hint of what the more
10 to it is?
11 A The supervisors -- if the supervisor's involved in
12 any kind of use of force, he has to get investigated as
13 well. So then he has to call another supervisor to come
14 investigate the investigation. So it's easier to tell one
15 supervisor to tell two officers that are already there,
16 hey, go arrest this guy, and if you have to use force, he's
17 standing by to investigate any kind of use of force that
18 he'll observe.
19 So he's not involved in the use of force to get
20 investigated by another supervisor. That needs to be
21 called in, and then he has to interview every single
22 witness also, just like repetition -- to avoid repetition.
23 It's a -- it's a new -- new way of -- we document
24 everything and -- and it's part -- I believe it's part of
25 the DOJ.
1008
1 Q Is that -- is that the 904? Do you know -- does
2 that number mean anything to you?
3 A I have no idea. I'm not sure which one.
4 Q But it was -- it was a --
5 A 9.40.
6 Q 9.40, thank you. That's --
7 A Just the use of force, any kind of use of force
8 you can investigate no matter how minor.
9 Q All right. And at this point you're following the
10 instruction to -- we're frozen in time, but you're --
11 you're following an instruction and subsequently do go to
12 Mr. Davis?
13 A Yes.
14 MR. STULL: Okay. Go ahead and proceed, Mr. McMahon
15 -- Mr. McMahon if you don't mind.
16 (The video, State's Exhibit 1, is played in open
18 UNIDENTIFIED SPEAKER: -- an ambulance.
19 MR. STULL: No, I will not leave.
20 UNIDENTIFIED SPEAKER: (Indiscernible) the
21 ambulance.
22 (People talking all at the same time and
23 indiscernible.)
24 MR. STULL: I'm here to film this and you're not
25 going to --
1009
3 UNIDENTIFIED SPEAKER: He needs the ambulance.
4 MR. STULL: When is my ambulance going to get
5 here?
6 UNIDENTIFIED SPEAKER: I'm not going --
7 (People talking all at the same time and
8 indiscernible).
9 (Video paused.)
10 Okay. If you could stop the video, please.
11 BY MR. STULL:
12 Q And is that the moment that you referred to as him
13 placing his hand on to calm me?
14 A Yeah. Because you -- yes, and he was also trying
15 to calm you down by -- I mean you can actually sense his
16 body language. And I even -- his tone, almost, how calm
17 he's trying to talk to you. But I don't know what -- what
18 interaction you had. You had to pull his hand away, and
19 then started punching him.
20 Q That's fine. And -- and you weren't at that -- on
21 the scene. You weren't viewing this at the time, right?
22 Were -- or were you?
23 A I was right in front of him, and then I -- I did
24 view him -- you swinging at him. Yes, I did. That's why I
25 got involved and grabbed your right hand -- or grabbed your

1010
1 right hand.
2 Q Right. I think -- I think it -- right now you may
3 be behind -- is that Sergeant Axthelm very close in the --
4 A Yes.
5 Q -- corner? I think you may have been on the other
6 side of that. So if we could move up a little bit we might
7 see you coming into the -- there you are.
8 (The video, State's Exhibit 1, resumes playing in
9 open court and transcribed herein.)
10 (Many people shouting at the same time and
11 indiscernible).
12 UNIDENTIFIED SPEAKER: -- control.
13 (Video paused.)
14 BY MR. STULL:
15 Q MR. STULL: And if you could stop the video.
16 I don’t -- I really don't have any -- anything
17 further, but one -- one final thing. That movement that we
18 just saw; the very last thing. I noticed, and I think you
19 will that was pretty quick, the movement compared to the
20 other thing. That people were standing around and also
21 that people were moving around the room faster than they
22 were.
23 A Right. We were struggling with you.
24 Q Right now. I mean, we just saw, right?
25 A Yeah.
1011
1 Q Okay. I'm --
2 A When you struggle with some people it happens
3 quickly.
4 Q Okay. And -- and you're the person that I'm --
5 that I'm concerned about at this point, not the other
6 players on your chart. Thank you. That was -- that was
7 helpful, I believe. And -- and the question is, it -- it
8 seemed to be there was -- it -- were you pulled through
9 there or -- or as that went on -- and we can replay it. I
10 just wanted to -- wanted to show -- you're bringing up the
11 rear so to speak.
12 A Right.
13 Q And -- and I just wanted to -- to show that part
14 right past the table.
15 MR. STULL: If you could just back up another
16 10 -- 15, not even 10 seconds? Right --
17 (The video, State's Exhibit 1, resumes playing in
18 open court and not transcribed as follows:)
19 (Many people shouting at the same time and
20 indiscernible).
21 MR. STULL: Get the hell out of my fucking way.
22 (Video concludes.)
23 MR. STULL: If -- if you could stop that for --
24 BY MR. STULL:
25 Q The -- the question I have is did you have a

1012
1 predetermined plan that that's where you were going to take
2 somebody to that portion of the building?
3 A Absolutely not.
4 Q So your --
5 A You can't have a -- you can't have a plan when --
6 when something like that comes up.
7 Q Right.
8 A You just deal with whatever comes up.
9 Q So at that point, I was moving. You were moving.
10 You were in the direction that both of us were traveling.
11 You were further behind in that line of -- of travel.
12 A Right.
13 Q And sorry; excuse me. Officer Engstrom was in the
14 front. Was he pulling us?
15 A Yes. He was.
16 Q So he pulled me, and I pulled you, because you
17 were holding on to me, as you said, to keep me from --
18 A Right.
19 Q Right. Did you hear anyone instruct or tell
20 Officer Engstrom to put his hand on mine to grab me, to put
21 his hand on -- on me to physically encounter me?
22 A No.
23 Q Was -- do you think that was his own decision?
24 A Yes.
25 Q So the decision for that physical contact was

1013
1 solely --
2 A To calm you down.
3 Q -- on the part of Officer Engstrom?
4 A Yes.
6 A It's a technique used by many officers.
7 Q And -- and you didn't hear any orders and -- and
8 similarly, the -- there was no instruction to say go over
9 there to that bench over there where the City Council
10 itself sits? That was the end of all these videos?
11 A I don't know what the end of the videos were.
12 Q Okay. Well, as we've -- to retrace what we've
13 already done, just to -- to hopefully wrap up your
14 testimony, sir. I'm glad you're doing as well as -- and
15 we're doing this. We already discussed there was a
16 movement. Officer Engstrom was in the front over to the
17 area where, subsequently it ended up with three people
18 including Sergeant Axthelm, over the -- over the -- what
19 we've been referring to as this council desk where they
20 actually sit.
21 A Right.
22 Q Not the table where the -- where the people
23 testify sit. That -- who determined that -- to go in that
24 direction?
25 A You can't determine something like that. You just

1014
1 go with wherever you can. We're trying to take you into
2 custody. It's not like we planned we're going to take him
3 to that corner. We were just trying to get control of you.
4 Q So --
5 A If whether it -- he's trying to take you down to
6 the ground with an arm-bar take down, or whatever it may
7 be. The easiest way to take somebody into custody is to
8 get them down on the ground where it's easier. Nobody gets
9 hurt. But in this situation, the desks and the -- the
10 council table and all that stuff's in the way. So you
11 can't like force somebody down on the ground because
12 they're probably going to hit their head against the wall
13 or the desk or whatever.
14 So it's not as easy -- plus you're still
15 struggling, and there's not enough for me -- between -- you
16 can see where I was going around the table. Because I
17 can't go over the table, so it -- it's not like I was --
18 you can't -- our end result is to calm you down to get you
19 under control, and to put you in handcuffs, because you are
20 going to jail. That -- that's the end result as -- it
21 doesn't matter where we end up. We don't plan where you
22 end up.
23 Q Okay.
24 A The only thing we plan is the end result. You're
25 going to be in handcuffs at the end of it.

1015
1 Q And -- and the final question is since, as we
2 said, I was going; you were following. Was Officer
3 Engstrom leading?
4 A Yes.
5 Q Okay.
6 MR. STULL: No further questions. Thank you.
7 MR. McMAHON: Your Honor, I ask that this witness
8 be excused.
9 THE COURT: You have no --
10 MR. McMAHON: I don't have any redirect.
11 THE COURT: Okay. Very well. You may step down.
14 THE COURT: And we can take our afternoon break at
15 this point.
17 (The following proceedings were had outside the
18 presence of the jury.)
19 THE COURT: Okay. I just wanted to get an idea of
20 timing. I understand there's going to be one more State
21 witness. It's 3:20 and I assume that there are going to be
22 Defense witnesses. So I assume that we're not going to get
23 finished with testimony today. Fair to say?
24 MR. McMAHON: That's up to Your Honor.
25 MR. KELLEY: Defense testimony? I'm sorry was

1016
1 that?
2 THE COURT: Are we going to get finished with all
3 the testimony in the case today?
4 MR. STULL: No.
5 MR. McMAHON: No.
6 THE COURT: Okay. That's all I needed to ask.
7 That’s all I was asking.
10 MR. KELLEY: And Mr. Stull has --
11 THE COURT: So we'll deal with the --
12 MR. KELLEY: Pardon me.
13 THE COURT: -- instructions tomorrow.
14 MR. KELLEY: He -- he has authorized me to
15 discuss -- there are Defense witnesses waiting outside. If
16 we're not going to get to them today could they possibly be
17 excused?
18 THE COURT: I don't know if we'll not get to
19 Defense witnesses. We are not going to finish with the
20 evidence. And --
21 MR. KELLEY: I understand.
22 THE COURT: -- you can --
23 MR. KELLEY: There will be a motion as well from
24 the --
25 THE COURT: -- Mr. --

1017
1 MR. KELLEY: Defense, Your Honor.
2 THE COURT: Well then --
3 MR. McMAHON: And, Your Honor, I would actually --
4 Judge, those Defense witness at -- I'll be fair to the
5 Court. I'm going to request another 104 hearing. They're
6 here today.
7 THE COURT: Then we may be -- do that.
8 MR. McMAHON: Yeah. Perhaps we can get that done,
9 just so that they don't have to get ordered back to come
10 back if there's -- if that's -- if that is the Court's
11 ruling. That way we can save them --
12 THE COURT: Well, okay. Well, right now we're
13 going to take a break.
16 THE COURT: And we will -- can talk about what --
18 THE COURT: -- what your timing is.
19 MR. STULL: And when are we returning, Your Honor?
20 THE COURT: 15 minutes
23 (The following proceedings were had outside the
24 presence of the jury.)
25 THE COURT: All right. Bring the jury back.

1018
1 MR. McMAHON: Beg your pardon, Your Honor?
2 THE COURT: Can we bring the jury back?
3 MR. McMAHON: Yes.
4 THE COURT: Okay.
5 MR. KELLEY: Your Honor? We were told that
6 witnesses --
7 THE BAILIFF: The jury.
8 (Jury enters.)
9 THE COURT: Very well. Call your next witness.
10 MR. McMAHON: Thank you, Your Honor. The State
11 will be calling its last witness, Sergeant David Price
12 (sic).
14 THE CLERK: Would you raise your right hand? Do
15 you solemnly swear under the penalty of perjury that the
16 testimony you're about to give will be the truth, the whole
17 truth, and nothing but the truth?
18 THE WITNESS: I do.
19 THE CLERK: Please state your first and last name
20 and spell your name for the record.
21 OFFICER PRICE: Jeremy D. Price; P-r-i-c-e.
22 MR. McMAHON: I’m sorry. I think I said David not
23 Jeremy, so I apologize.
24 OFFICER PRICE: That's all right.
25 ///
1019
1 WHEREUPON,
2 OFFICER JEREMY PRICE,
6 BY MR. McMAHON:
7 Q What is your current occupation?
8 A I am a Sergeant with the Portland Police Bureau at
9 Central Precinct.
10 Q How long have you been a Portland Police officer?
11 A 16 years.
12 Q And how long have you been a sergeant?
13 A Four years.
14 Q And just very generally speaking what was your
15 training in order to become a police officer and a
16 sergeant?
17 A Well, I had 10 years of military police
18 experience, six month Police Academy in Virginia, and then
19 a six month Police Academy here, and a six month Advanced
20 Academy. And then after that I went to a two-week
21 supervisor's course after promotion.
22 Q And where are you generally posted in Portland?
23 A Downtown Central Precinct area.
24 Q Okay. And Central Precinct -- is that the
25 building that's basically just across from the Justice

1020
1 Center?
2 A Yes, sir.
3 Q And what are you duties as a sergeant?
4 A I respond to major incidents. I do investigations
5 on use of force allegations or use of force events that
6 officers are involved in; general supervisory
7 responsibilities for calls for service.
8 Q Okay. So I do want to talk about After Action
9 Reports. What are your responsibilities involving those
10 After Action Reports and use of force reports?
11 A If there is an event where one of our officers
12 uses force per the DOJ, a supervisor has to respond to the
13 scene, interview the person the force was used on,
14 interview the officers involved, any witnesses that can be
15 identified, collect any video footage, and then make a
16 determination whether or not that use of force was within
17 policy and consistent with training guidelines that we --
18 we use in the Bureau.
19 Q And are you the person that sort of makes that
20 decision or is that something that's -- I guess, you'd say,
21 above your pay grade?
22 A I make the determination whether I believe it was
23 within policy, and whether it is consistent with training
24 doctrine. And then it goes through several other layers
25 of, like, basically lieutenant, captain, commander, and

1021
1 then up to IPR and internal affairs.
2 Q Okay. Now just very generally, when you're
3 writing out their Action report, can you actually be called
4 in this specific instance of use of force or are you sort
5 of have to be removed?
6 A General practice is that if a supervisor directs
7 the use of force or uses force involved in the use of
8 force, another supervisor will come into the investigation.
9 Q Okay. And if you sort of come into an
10 investigation after that use of force has occurred, and
11 you're involved and say dealing with custody or escorting
12 someone that's (indiscernible) After Action Report?
13 A Yes.
14 Q So I want to direct your attention to the events
15 of November 25th, 2015. Were you on duty that day?
16 A Yes. I was.
17 Q Did you respond to a call at City Hall and conduct
18 an After Action Report investigation on use of force?
19 A Yes. I did.
20 Q What prompted your arrival on the scene?
21 A Sergeant Axthelm, Officer Engstrom, and Officer
22 Parik Singh had responded to a disturbance in council
23 chambers. Barry Stull and David "Kip" Davis were refusing
24 to leave after being told by their security that they
25 needed to leave the building. The Sergeant Axthelm and the

1022
1 other two officers arrived. And at some point they ended
2 up using a take-down on Mr. Stull, and, therefore, I was
3 requested to respond to do the investigation.
4 Q Okay. And it's fair to say that's because
5 Sergeant Axthelm was actually involved in the use of force
6 and couldn't write the report himself?
7 A Correct.
8 Q So, I guess, at what point did you arrive on scene
9 at City Hall?
10 A When I arrived on scene Officer Engstrom kind of
11 had Mr. Stull kind of bent over one of the tables in front
12 of City Council chambers and was holding him down to the
13 table. And then, I believe, David "Kip" Davis was already
14 on the ground. He was taken to the ground by their
15 security. And then Officer Singh was over handcuffing him.
16 Q All right. And -- and by "him" are you referring
17 to Mr. Davis or Mr. Stull?
18 A Mr. Davis.
19 Q All right. After you arrived on scene and sort of
20 saw these two individuals in custody, what did you do?
21 A Initially I assisted Officer Engstrom escorting
22 Mr. Stull down to the police vehicle outside the -- the
23 City Council -- or City Hall.
24 Q Okay. And how did you do that?
25 A I basically held onto one of his arms. I believe

1023
1 I was on his left arm as we escorted him out of the
2 building. Officer Engstrom was kind of walking behind him
3 due to the tightness of chamber entryway. He kind of had
4 his right arm, but was walking, you know, we were kind of
5 back behind him holding onto his arm.
6 Q And what happened after you got out of the council
7 chambers?
8 A As we were exiting the Council chambers, towards
9 the elevator Mr. Stull kicked Officer Engstrom several
10 times in the shin area at which time Officer Engstrom was
11 telling him to stop. We were trying to calm him down. And
12 then once we got to the elevator, we just kind of held him
13 up against the wall inside the elevator until we got down
14 to the ground floor.
15 Q Okay. And did you actually see those kicks?
16 A Yes. I did.
17 Q Did there appear to be four kicks?
18 A Yes.
19 Q Was Mr. Davis -- or Mr. Stull struggling at all
20 on -- in any other manner?
21 A It wasn't aggressively struggling. But it wasn't
22 basically walking with us at -- at, you know, at a normal
23 pace. He was, you know, just kind of -- wasn't even
24 putting all of his weight on us, but he certainly wasn't
25 voluntarily walking with us. We just kind of kept

1024
1 escorting him out.
2 Q Okay. And then once you got him outside were you
3 able to help him into the back of a police car?
4 A Yes. We got him into the back of the police
5 vehicle and we had -- ambulance had already been requested.
6 He'd been requesting one earlier in the chambers
7 apparently. And so we were going to wait for the ambulance
8 to arrive to treat him for whatever issues he was having.
9 Q Okay. And while he was in the back of that police
10 car, did you observe his behavior?
11 A Yes. I was actually trying to interview him about
12 what had occurred; how the take-down happened. But I could
13 not roll down the back window. He had rolled onto his back
14 and began kicking the door, which was protected by bars on
15 the inside of the window.
16 Q All right. Did he say anything to you?
17 A He was yelling and -- and cursing, but I -- I
18 don't recall exact statements of what he was saying
19 specifically while I was trying to -- to interview him.
20 Q Did you see him kicking at any of the fixtures or
21 items inside of the police vehicle?
22 A The seat belts -- I believe the latches that kind
23 of hang down or they're right at the like seat level. And
24 I believe those got broken off the vehicle, but I don't
25 recall seeing, you know, if they were by his feet or hands

1025
1 or -- or what had happened.
2 Q But you did see that they had been broken off?
3 A Yes.
4 Q And it's fair to say that Officer Engstrom was the
5 one who actually took him from City Hall and drove him down
6 to the jail?
7 A Yes. The decision was made based on his actions
8 in the back of the police car that rather then hold him
9 at -- at the City Hall until AMR arrived. It would be
10 better to transport him down to the jail where they have
11 medical staff there that can help him, you know, once he's
12 lodged.
13 Q All right. And did -- after he was sort of off
14 scene, did you conduct your After Action Report -- the
15 investigation of use of force?
16 A I did. I went back up to City Council chambers.
17 Well, first I had actually interviewed Mr. Davis who was in
18 the police car behind. He was complaining of wrist injury
19 from the handcuffs. So I interviewed him, and then I went
20 up and interviewed several of the people who were inside of
21 City Council chambers: the security guard, and collected
22 some of the video from, I guess, they livestream City
23 council meetings and record it. So I collected video from
24 that as well as from I think it's G -- G-4 or whatever
25 their security company is that they use.

1026
1 Q Okay. And did you speak with the officers and
2 review the reports involved in this case?
3 A Yes. I did.
4 Q And did you interview other witnesses that had
5 been present on the scene?
6 A Yes. There was several witnesses that were
7 actually present in -- in the chambers that were just
8 citizens. I think Sergeant Axthelm had also interviewed
9 several of them.
10 Q And sort of after reviewing all of that evidence;
11 the video, speaking to the officers, to Mr. Davis, Mr.
12 Stull, and even based on your own experience, do you
13 believe that the use of force in this case, the take-down,
14 was appropriate and in accordance with policy?
15 A Yes. After -- not only speaking to the officers,
16 but the video footage is -- is telling. I viewed all of
17 the video footage and, you know, based on his aggressive
18 physical resistance with the officer, and, you know, the
19 assault that -- that occurred, doing a take-down on Mr.
20 Stull was appropriate at that point to control his -- his
21 ability to resist and assault the officers. And I think
22 was the lowest level of force other than some form of
23 pepper spray or Taser that could have been applied.
24 Q Okay. Now very generally I want to talk about
25 officer injury laws or OSHA notifications. Is that part of

1027
1 the After Action Report you fill out?
2 A There is a box on the After Action Report that we
3 check if, you know, an officer is injured, and that --
4 whether or not they filled out a -- an injury log. And
5 that's an electronic --
6 Q Do you know --
7 A -- thing on our computers that we have at the
8 office.
9 Q To your knowledge any -- about injury -- anything
10 apparent that would have you to check off either of those
11 things?
12 A I -- I don't recall if one of the -- I -- I
13 believe that Officer Engstrom from the kicks to his shins,
14 and you know, the punches that occurred from Mr. Stull
15 entered a -- an injury log. And I would have signed off on
16 that and sent it to the lieutenant for further.
17 Q Okay. And would it refresh your recollection if
18 you reviewed your report to check whether or not that
19 injury log was actually filed or not?
20 A Yes. And according to this there was no injury
21 log that was completed.
22 Q Based on your observations of Mr. Stull, it
23 appeared that he was undergoing a crisis?
24 A The initial, I thought there was maybe some mental
25 health crisis, but not a, like a medical emergency, like

1028
1 heart attack or anything like that.
2 Q And there's medical personnel available at the
3 Detention Center who would be able to treat someone if they
4 were going through a crisis?
5 A Correct.
6 Q Thank you.
7 MR. McMAHON: I have no further questions.
8 THE COURT: Cross.
9 CROSS-EXAMINATION
10 BY MR. STULL:
11 Q Sergeant Price.
12 A Yes, sir.
13 Q At the time it started to end, as far as I could
14 tell with you, sir, the placement into the police car, was
15 there an ambulance there right there, right then, at the
16 time parked behind Officer Engstrom's police car?
17 A I do not recall if there was an ambulance parked.
18 I know there was another police car parked directly behind
19 Officer Engstrom's car.
20 Q If there was a -- an ambulance there, and
21 accompanying paramedics, how long would it take for you or
22 Officer Engstrom or Sergeant Axthelm to talk to the
23 paramedics parked one car behind Officer Engstrom's car to
24 walk up to the car and inquire after the condition of the
25 person in that parked car? How long would it take to walk

1029
1 one car up?
2 A Probably less than a minute. Less than 30
3 seconds.
4 Q Okay. I would -- I would refer to -- we have some
5 photographs that are entered into the record as exhibits.
6 And I want to refer to the photograph that's me sitting in
7 the -- the police car with the door open. Do we know what
8 exhibit that one is?
9 MR. KELLEY: You'll have to speak to Mr. Gibson, I
10 believe. I'm not sure.
11 MR. STULL: Mr. Gibson, if you could assist by
12 getting the paperwork out. I'll -- I'll try to expedite
13 this by pursuing another matter as you do that.
14 BY MR. STULL:
15 Q I want to --
16 MR. GIBSON: Here you go.
17 MR. STULL: These are all of them? Thank you.
18 MR. GIBSON: It's (indiscernible) right?
19 MR. STULL: The photographs, yes.
20 BY MR. STULL:
21 Q Just to be clear, this photograph identified as
22 Exhibit 5 is that Todd Engstrom?
23 A Yes, it is.
24 Q Are -- are you -- you supervise people or just do
25 After Action Reports?

1030
1 A I supervise people.
2 Q Okay. Could I -- and you worked that day with
3 Officer Engstrom as -- as part of the escort?
4 A Yes.
5 Q Can you see anything wrong with his uniform right
6 there?
7 MR. McMAHON: Your Honor, I'd object. We've dealt
8 with this matter before. It's been ruled irrelevant.
9 THE COURT: This doesn't seem to be cross-
10 examination within the scope. And so he's not going to be
11 asked about what isn't within the scope of the direct
12 cross -- cross-examination.
13 MR. STULL: Okay. That's fine.
14 BY MR. STULL:
15 Q Your After Action Report --
16 MR. STULL: Thank you for -- order those for me.
17 Thank you.
18 BY MR. STULL:
19 Q The -- and there's a couple issues here. I'll
20 refer you to page 105. The upper right-hand corner of the
21 document, the boxes are checked?
22 A Yes, sir.
23 MR. McMAHON: Okay, Your Honor. I'd object.
24 We're going into the hearsay contents of a report. It's
25 inadmissible.
1031
1 MR. STULL: It's -- it's his report. I'm going to
2 ask him questions --
3 THE COURT: Well, we're going to -- no, wait.
4 MR. STULL: It's objection. I'll --
5 THE COURT: It's an objection based on hearsay.
6 If you're going to ask him what the report says, I think
7 we're going to have to have the jury out of the room and
8 discuss --
9 MR. STULL: No. No, I'm just -- not specifically
10 go down this box, say this box say this.
12 MR. STULL: I'm -- I'm not asking -- I'm not
13 asking him to read the report into the record if that's
14 what's -- where he --
15 THE COURT: Well, or ask him questions about
16 what's in the report. That's not what he's here for. You
17 can ask him about his background, what he did and saw. I
18 don't know what the report is, but if it's somebody else's
19 report --
20 MR. STULL: No, it --
21 THE COURT: -- not his --
22 MR. STULL: -- well, maybe we should clarify that,
23 Your Honor.
24 THE COURT: Do you have -- well, what was your
25 question about the --

1032
1 MR. STULL: That --
2 BY MR. STULL:
3 Q Sir, could you identify that document, first --
4 A Yes.
5 Q -- as your report?
6 A This would be a copy of the After Action that I
7 prepared.
8 MR. STULL: He prepared it, Your Honor.
9 THE COURT: Okay.
10 MR. STULL: Okay. May I continue to ask
11 questions?
12 THE COURT: Ask questions about it.
13 MR. STULL: Okay.
14 BY MR. STULL:
15 Q At the time that you prepared that document,
16 was -- you -- you reported things -- what's the date of --
17 of the -- that you prepared that, sir?
18 A November 25th.
19 Q So the day of the event?
20 A Correct.
21 Q So at the time of the event, and according to the
22 report was medical needed?
24 object. He's asking according to the report and asked
25 about the witnesses --

1033
1 MR. STULL: Well, he --
2 THE COURT: Well, he can -- he can still say
3 whether at the time of the event, in his opinion, medical
4 was needed. He can ask him that and if -- that's what he
5 gets to. So --
6 THE WITNESS: As it relates to the take-down used
7 on you, Mr. Stull, medical was not needed.
8 BY MR. STULL:
9 Q As a result of the entire experience, was medical
10 needed by the prisoner in this?
11 A The -- when we do these reports, when we fill out
12 these box -- is in relation to the event of force that --
13 that is used on someone. So it's not whether you needed an
14 ambulance prior to -- while you're walking around in City
15 Council chambers and asking for an ambulance. I'm not
16 looking at that portion to say whether you needed an
17 ambulance or not. I'm looking specifically at whether
18 injury was caused to you by the take-down. And based on my
19 visual observations of you, there was no medical needed at
20 that time for that -- for an injury that, you know, would
21 be something that you would need to be transported to the
22 hospital for immediate treatment.
23 Q Are you familiar with Central Pain Syndrome?
24 A No.
25 Q Could I have needed medical treatment for Central

1034
1 Pain Syndrome?
2 A I don't know, because I'm not familiar with it.
3 Q So I might have?
4 A I wasn't there to treat you for Central Pain
5 Syndrome. I was there to do an investigation on a use of
6 force.
7 Q You escorted?
8 A Yes.
9 Q So you were there at least to escort a prisoner?
10 A Yes.
11 Q So to say that you were only there to do that use
12 of force report is not the whole story, because you
13 actually did other than that, you didn't just take data
14 and -- and type and -- you actually physically engaged with
15 the -- with the prisoner. Is that true?
16 A That's correct. We have to secure --
17 Q Is it --
18 A -- the scene first and secure everybody before I
19 can -- can continue an investigation, yes.
20 Q -- in City Council chambers, out to the police
21 car, and you had made a determination that the use of force
22 did not result in a need for medical treatment even if the
23 person needed medical treatment for something you weren't
24 aware of?
25 A Nothing visible that I could see.

1035
1 Q Do you know nothing about Central Pain Syndrome?
2 A No. I am not a physician. I am a police officer.
3 Q What was the demeanor that you interacted -- the
4 person that you interacted with? Excited? Agitated?
5 Calm? Sleeping?
6 A The person being you?
7 Q Yes.
8 A You were aggravated, hostile, uncooperative;
9 assaultive.
10 Q Any evidence of adrenaline?
11 A I don't know how to test levels of adrenaline.
12 Q Okay.
13 A I can say you were elevated. You were agitated.
14 Q Not relaxed?
15 A Okay.
16 Q I’m asking. I was not relaxed?
17 A I -- I would assume not if you were, you know,
18 acting the way you were that you were not relaxed as if you
19 would be sitting at home watching TV.
20 Q Well, I -- I don't have television, but we'll --
21 let's --
22 A Okay.
23 Q -- go on with that. But if I had a television and
24 I was at home snoozing on the couch, and somebody knocked
25 on my door and I kind of went -- that -- that was not who

1036
1 you were interacting with then. That was somebody that was
2 quite active?
3 A Correct.
4 Q Very active?
5 A Active.
6 Q All right. Did you hear me say Central Pain
7 Syndrome?
8 A No.
9 Q Did you hear me ask for medical attention?
10 A Not while I escorted you down. And then after you
11 were in the vehicle, between the kicking of the door and
12 the breaking of the inside of the vehicle, I don't recall
13 what you were saying.
14 Q As part of the injury as noted in the After
15 Incident Report, excuse me -- Officer Engstrom, he was
16 injured according to your analysis?
17 A He had complaints of pain on his shins, and I
18 believe there were photographs taken of his shins, but I
19 don't recall how extensive.
20 Q Was -- was there an OSHA report as on the -- did
21 you complete -- first of all do you believe you completed
22 your After Incident Report accurately?
23 A The After Action Report?
24 Q After -- After Action.
25 A Yes.
1037
1 Q And did you note whether or not there was an OSHA
2 report?
3 A No. I did not.
4 Q Is there a -- a place for you to note that there
5 was an OSHA report?
6 A There is.
7 Q And did you note that there was?
8 A No. the only time we're required to notify an
9 OSHA -- OSHA is if an officer is admitted into a hospital
10 for an injury.
11 Q So this didn't rise to that level?
12 A No. It did not.
13 Q Okay. What about the injury log that's on there?
14 Was it online injury log?
15 A Right.
16 Q What level of injury does it take to have one of
17 those required?
18 A Depends on what the officer feels is -- would be
19 considered an injury that he received on duty. I've had
20 everything from I tweaked my back to I got a sliver.
21 Q Was an online injury --
22 A At the time I completed this there was nothing
23 marked.
24 Q You --
25 A But if the officer filled it out at a later date,

1038
1 then there could have been one completed.
2 Q But this -- this was done with the information you
3 had at the date you completed it which was November 25th --
4 A Correct.
5 Q -- 2015?
6 A Yes.
7 Q Okay. Now were you aware that subsequent to you
8 completing this that Officer Engstrom completed a
9 supplemental report that he had injuries in addition to
10 the -- I don't want to mischaracterize it -- not the level
11 of the sliver according to this.
12 A Right.
13 Q Right? Did you say you -- you had them -- people
14 have a sliver, and they've filled them out?
15 A Yes.
16 Q This one -- did -- Officer Engstrom didn't at this
17 point in time even have that documentation within the
18 system. I don't understand your system. That's what I'm
19 trying to figure out.
20 A Right.
21 Q It says, you said that there was no online injury
22 report, and they could be anything from a sliver to
23 whatever might trigger the need to do the OSHA report
24 because hospitalization was required?
25 A Right. The officer has the ability to do an

1039
1 online injury at any point. So if he felt pain the next
2 day or something like that, then he would go and fill that
3 out, and it gets sent to us via email. Whether or not, I
4 can't talk to as to whether or not he did a supplemental
5 later -- several days later or not, unless my signature is
6 the one that is on there. He could have submitted a
7 supplemental to another supervisor indicating his injury
8 log or -- so if you have that report, and I was the
9 reviewing supervisor, then I would refresh my memory to
10 observe it.
11 Q Hold on. Are you familiar with the Portland
12 Police Director's Manual?
13 A Yes.
14 Q Who is required to document the injury under that?
15 A The officer is required to do the injury log
16 unless he is incapacitated at -- at the hospital and unable
17 to. Then the supervisor who's on duty would be the one
18 responsible to do that.
19 Q And if there was, as we kind of discussed, the --
20 an officer a couple of days later realizes that they had an
21 injury that they didn't notice at the -- at the time --
22 A Right.
23 Q -- then would that then go back to you and -- and
24 revise the After Incident Report?
25 A Once I have completed -- we have 72 hours to

1040
1 complete the After Action Report. And once I have sent
2 that to DOJ it does not get sent back to me for, hey, did
3 he add injuries or anything like that after the fact.
4 Q DOJ -- what does that mean?
5 A Department of Justice.
6 Q Of -- which one?
7 A What do you mean?
8 Q Oregon Department of Justice?
9 A No. The U.S. Department of Justice who is
10 overseeing our 9.40 review of use of force.
11 Q And what's a 9.40 review of --
12 A 9.40 is simply the directive number that that
13 After Action Policy falls under in our directive manual
14 which you seem to be familiar with.
15 Q Only by being at this trial. But the question I
16 have is is the mandated use of force report to gather
17 accurate data regarding injuries and those types of things
18 that -- that -- why -- why do we have this report?
19 A The -- which one?
20 Q Yours, as DOJ --
21 A The -- the After Action?
22 Q Yeah.
23 A Is to investigate whether or not the officer used
24 the appropriate amount of force for the situation.
25 Q Okay. Would the situation include whether the

1041
1 person of force was used on had a medical condition?
2 A It would include whether or not they had a injury
3 caused by the officer based on their actions. I'm not
4 listing medical history of every person that an officer
5 comes into contact with if they've used force.
6 Q If, by way of an illustration, someone had -- I'll
7 just use an example, you may have been familiar with
8 because I've seen it in movies. If somebody has -- and
9 seen it in person -- if somebody has epilepsy, for example,
10 any of us, not apparent, and a flashing red light triggers
11 a seizure, would that -- if that seizure became something
12 that required medical treatment because of a police officer
13 arriving on the scene with his flashing lights, and a
14 person goes into seizure, and they bite their tongue, or
15 they chip a tooth, or whatever -- they hit their head,
16 because they -- they were in a -- would -- would that fall
17 under this?
18 A No.
19 Q And the Department of Justice wouldn't want to
20 know about that?
21 A No.
22 Q If an officer arriving at Multnomah County
23 Courthouse runs over a person that's out in the -- in the
24 parking space on the way to an incident where force was
25 used, would that type of injury be included in this type of

1042
1 report?
2 A That would be a completely different
3 investigation. That would be a vehicle collision/crash
4 investigated by our traffic division.
5 Q So -- so the sole function of this is to report to
6 the Department of Justice data regarding whether the
7 officers themselves appropriately used -- appropriate used
8 force on somebody that they used force. That -- this is
9 produced because there was use of force?
10 A Correct.
11 Q Okay. So if somebody was a subject of the use of
12 force --
13 A Yes.
14 Q -- and they had a medical response to that because
15 they had a disability, say epilepsy, would that go in?
16 A Not unless it was something caused by the officer.
17 Q For example, some people can't take sort -- some
18 types of exposure or perhaps they're going to have a heart
19 attack. And so if an officer uses a -- a level of force
20 that produces the person to have a heart attack, they do
21 have a heart attack, would that be incorporated in this
22 type of report?
23 A If the force is the cause of the heart attack,
24 then yes.
25 Q Do you know -- can you think of conditions that

1043
1 are worsened by emotional stress?
2 A Shingles.
3 Q Shingles, for example.
4 A Sure.
5 Q If an officer in the process of using the -- the
6 use of force, does that on a person and that produces an
7 exacerbation of the shingles, would that type of thing be
8 in this report?
9 A Not if it was a pre-existing condition. It may be
10 documented in the report as a pre-existing condition --
11 condition like in the narrative, but that is primarily to
12 look at whether the force used caused injury to the person
13 and whether or not I can correlate those two. Right? So
14 like if I shoot you with a Taser and the probes enter your
15 body, then that would be considered an injury.
16 Or if I Taser you, and you fall on the ground and
17 hit your head, that would be considered an injury caused by
18 the force. But a take-down that has no visible signs of
19 injury, no broken bones, if there was a complaint of pain,
20 then an investigation would be done into the complaint of
21 pain. However, I -- I don't have any way to measure it as
22 far as injury-level-wise a complaint of pain.
23 Q If a -- if a prisoner or somebody that's -- that's
24 use of force is -- because we've -- excuse me, sir, we've
25 had some discussion about use of force while people are in

1044
1 handcuffs, and before and after, and so --
2 A Right.
3 Q -- you're kind of coming into this, and I don't --
4 I'm relying on your expertise as -- as your training
5 experience. If a -- if a prisoner has a condition that is
6 specifically exacerbated by their inherent physiology,
7 disability; we might characterize it -- inherent physiology
8 as. Somebody has a physical condition -- if the use of
9 force -- if that person is sensitive in an ordinary state,
10 and the use of force serves as a triggering to -- to
11 manifest the episode of not exactly shingles, because I --
12 I think that can be really horrible -- but something much
13 more serious than that, would that be in this report?
14 A I guess it would depend on the supervisor whether
15 or not they would document it in the narrative portion.
16 Like I said, I mean, it depends on the interview process.
17 For instance, the day this happened with you, had I been
18 able to have a normal conversation and get a statement from
19 you, then it may have been documented in there that you
20 have -- I -- I don’t recall the name of your illness.
21 Q Three words: Central Pain Syndrome.
22 A Right. Okay. So Central Pain Syndrome -- if I
23 was able to interview you and find out that you had that
24 then it may have been documented in there in the narrative
25 portion saying that you claim that the use of force

1045
1 exacerbated your complaint of Pain Syndrome.
2 Q In the 72 hours that you have to do this report,
3 do you have access to go to the Justice Center called
4 Multnomah County Detention Center, which we call it the
5 Justice Center jail around here on the busses and
6 sidewalks? Justice Center jail is across the park over
7 here diagonally?
8 A Right.
9 Q Can you go in there and interview somebody that's
10 been in a -- the first day we have -- November 25th --
11 A Right.
12 Q But had you not done it that day, could you have
13 interviewed me on the 26th?
14 A If you were still in jail, yes.
15 Q And on the 27th?
16 A Yes.
17 Q And up to the deadline of your 72 hours to get
18 information??
19 A Yes.
20 Q Did you make any inquiries in that regard?
21 A No.
22 Q Why not?
23 A Because on top of the 72 hours that we have to
24 complete that, I also have to respond to all emergency
25 calls that are occurring on the street, supervise, read

1046
1 reports, and complete any other general assignments that my
2 supervisor has provided me. So what I generally do is try
3 to do the interview that I can at the time. And then if
4 that person determines that they would come forward later
5 and give a statement, then they are always welcome to do
6 that at the precinct.
7 Q A person in custody is above the precinct in the
8 jail. Can they go to the precinct?
9 A They can call and have an officer come up and
10 interview. We have done it before.
11 Q Have you ever been in jail?
12 A No.
13 MR. McMAHON: Objection, Your Honor. Relevance.
14 MR. STULL: No. The relevance is he said a person
15 can call --
16 THE COURT: This --
17 MR. STULL: -- and that assumes they have a --
18 THE COURT: That is -- it is not relevant. I will
19 sustain the objection.
20 BY MR. STULL:
21 Q Where did you get your information regarding the
22 mental health status of this prisoner?
23 MR. McMAHON: And again, Your Honor, I'd object.
24 He's referring to specific information in a report and he's
25 asking about it. And it's hearsay, and it's improper.

1047
1 THE COURT: Well, wait. Wait a second. I will
2 allow him to be asked where he got the information in the
3 report. That's not hearsay. We'll wait to see what goes.
4 THE WITNESS: So it's yes?
5 BY MR. STULL:
6 Q Where did you get the information that you relied
7 on in preparing this report?
8 A Several different sources: through officer
9 interviews, therefore, officer's past experiences with you.
10 If Officer Engstrom has had dealings --
11 Q Excuse me?
12 A Yes, sir.
13 Q If I could interrupt you, past experience? Not on
14 the date of November 25th, so prior to that if they have
15 some kind of an idea of who I was?
16 A Yes.
17 Q That's what you're talking about past experience?
18 A Yes.
19 Q Okay. When you prepared this did any medical
20 professional, medical, health, physical health doctor,
21 nurse, nurse practitioner, chiropractor, dentist,
22 acupressure, acupuncture, somebody who does Rolfing -- did
23 any of those professions, whether licensed or not, did any
24 of those professionals be -- influence your decision to --
25 to put the information you had in this report?

1048
1 A No.
2 Q What was the source of the information in this
3 report aside from Portland Police officers who, in many
4 cases, have a level of medical training that's required to
5 do first aid? If -- they're not doctors. Many -- there
6 might be some doctors working for the Portland Police
7 Force. If I was a doctor, I might quit and become a
8 Portland Police officer. That might be a great change of a
9 career, but the information here had nothing to do -- the
10 medical needed or mental illness status whether there is or
11 any -- that was not a product of healthcare professionals,
12 was it?
13 A The Department of Justice does not require us to
14 get advice from medical professionals when it asks us to
15 check this box that says mental health influence. What it
16 does state is that officers need to check this box if they
17 are aware of previous mental health issues with a person.
18 Basically they are trying to determine if we knew whether
19 someone that we used force on had a mental health issue
20 prior to us dealing with it. That information can be
21 gathered by officers, our databases from past experiences
22 and dealing with Barry Stull, and from statements of people
23 calling 9-1-1 reporting the situation. So that is where
24 that information comes from.
25 Q Okay. The 9-1-1 calls may influence your filling

1049
1 out this report? Is that correct -- what you said?
2 A The information provided by the complainants in
3 the 9-1-1 call can, yes.
4 Q Whether or not they have any medical expertise at
5 all?
6 A Correct.
7 Q So to kind of pick on my esteemed legal advisor
8 here, if I called 9-1-1, and said I have a raving lunatic,
9 paranoid schizophrenic, bipolar, schizoaffective disorder
10 person with shingles, the only thing that wouldn't go in
11 there would be the shingles, right?
12 A The box on here would say mental health
13 influence -- check, And that's what would go in there,
14 because the --
15 Q Okay.
16 A -- the officer's required to write that
17 information in his report about his level of knowledge of
18 mental health crisis that a person is in before they
19 contact them or use force.
20 Q Okay. Maybe the question I need to really flesh
21 out to give us an understanding of the terminology we're
22 utilizing in this -- in this discussion is we all have
23 mental health -- correct?
24 A Yes.
25 Q Some people have good mental health, and some

1050
1 people's mental health isn't so good, and we refer to that
2 as being mental illness?
3 A Correct.
4 Q So when it says, if it does -- I'm just asking --
5 A No history of mental illness, yes.
6 Q What's the basis of that known history? I know
7 you -- you did say something on it, but I'm asking you
8 specifically. We're not talking about mental health
9 status. We're talking about mental illness.
10 A Okay. That is based on the officer's information
11 that he has provided me at the time. If I talk to an
12 officer involved in a use of force, and he tells me, yes,
13 I've dealt with Barry Stull on numerous times and he has a
14 mental health illness, or I have had to use Project Respond
15 or that is basically him stating to me that he was aware
16 that you had a mental health illness. And that can be
17 gathered via computer on the car on the way here if there's
18 a flag that says there has been complaints or calls
19 involving Barry Stull where mental health has been noted,
20 and whether that comes from Project Respond or, you know,
21 your statements, or witness's statements based on the
22 actions that are occurring.
23 Q That raises an interesting -- if -- if Project
24 Respond -- I'm going to pick on Mr. Kelley, because he's so
25 handy. If Project Respond -- if I'm saying as I said, he's

1051
1 all these paranoid schizophrenic, bipolar, schizoaffective
2 disorder, and he chews gum, we're going to call Project
3 Respond. And Project Respond actually never encounters Mr.
4 Kelley at all, would the fact that Project Respond was
5 summoned show up in the records as a -- one of the things
6 that informs you and mental -- mental health illness?
7 A If I were to speak with Project Respond, then
8 maybe. But if they showed up and never saw or treated this
9 gentleman, then I would have no record of it.
10 Q But if they were on the 9-1-1 calls that you do
11 use and somebody said call Project Respond, because Mr.
12 Kelley is chewing gum and all these other things. Wouldn't
13 the 9-1-1 call that that Project Respond was summoned
14 influence your preparation of this type of document?
15 A No.
16 Q So what would influence the known history of
17 mental illness of a particular individual would be that
18 Project Respond was summoned -- interfaced with the person
19 and they made a report that you relied on?
20 A We actually would rely on anything that they told
21 us. We don't get to see their reports because of medical
22 reasons. So --
23 Q Excuse me. If -- if you don't mind if I could
24 just -- medical reasons -- would that be the health?
25 A Yes. Mental health influence that they may place

1052
1 somebody on a hold for that goes to the site -- treatment
2 facility.
3 Q No. That wasn't my question.
4 A Okay. I’m sorry.
5 Q My -- my question would be the HIPPA?
6 A Right.
7 Q The Health Insurance Information Protection Act?
8 A Correct.
9 Q The call it HIPPA.
10 A Right.
11 Q Is that the limitation you're talking about?
12 Access to a patient's medical information?
13 A Yes.
14 Q Aside from your busy schedule and your need to do
15 these daily emergencies that mount up, if you had enough
16 time, would you simply follow up on something -- would you
17 handle it different?
18 A In this situation?
19 Q In any situation?
20 A No. Not in this situation.
21 Q I didn't ask about this situation. I'm asking
22 about any situation. Does -- does your time constraints on
23 your job --
24 A I'm not here to testify to any situation. I'm
25 here to testify to this situation, sir.

1053
1 Q Sir, I’m asking about the way you do your job. If
2 you have more time to do your job, do you -- do you do your
3 job more thoroughly?
4 A Yes.
5 Q If you have less time to do your job because
6 you're facing a 72-hour deadline and you have the phone
7 ringing and somebody else, and there's another -- oh my
8 gosh, we got to go to the -- the 9-1-1 call just came in,
9 and Project Respond wants us on the scene. If that's all
10 happening, then are you able to do as thorough as a job?
11 A I do the best job that I have the ability to do in
12 the time that I have.
13 Q And in this report preparation, the 72 hours that
14 you had from somewhere -- I'm going to say 10 a.m. in the
15 morning on November 25th, the following day at 10 a.m. that
16 was Thanksgiving. The following day after that was what we
17 call Black Friday, which we -- is named because it's the
18 most -- it's the busiest shopping day of the year.
19 MR. McMAHON: Your Honor, at this point, I'd
20 object. Defendant's testifying.
21 THE COURT: Sustained.
22 BY MR. STULL:
23 Q If those --
24 THE COURT: Just ask questions. Don't make
25 speeches --
1054
1 MR. STULL: I'm asking --
2 THE COURT: -- and try and make your questions --
3 BY MR. STULL:
4 Q Did this particular report -- was this
5 influenced -- the fact that the next day was a holiday?
6 A No. 72 hours is 72 hours, therefore, at that time
7 I did have Thursday, Friday, Saturday off, which meant I
8 worked on those days to complete this investigation within
9 the 72 hours regardless, based on DOJ.
10 Q Okay. Now when I was asking earlier, you said
11 about this report, tell us about what you did to prepare
12 this report? What investigation you did, how long a time
13 you spent on it, how much -- how many phone calls you made,
14 how many officers if they're -- are they all listed in
15 this?
16 A Yes, sir. They are.
17 Q So if I were to just simply go through and see the
18 different, for example, some of the witnesses we've seen
19 here -- you're certainly Sergeant -- Sergeant Price --
20 A Yep.
21 Q -- so you're not -- Sergeant Axthelm, if he's
22 here. That would be one.
23 A Right.
24 Q Officer Singh would be another. Officer Engstrom
25 would be another. Who else would there be?

1055
1 MR. McMAHON: Your Honor, at this point --
2 BY MR. STULL:
3 Q People -- people you interviewed at --
4 MR. McMAHON: The Defendant's testifying from the
5 document.
6 THE COURT: I think -- yeah.
7 MR. STULL: I'm -- I'm just saying --
8 THE COURT: I have no idea whether there's a
9 question here or not.
10 MR. STULL: I --
11 THE COURT: There -- you've got to ask a question
12 and let him answer it.
13 MR. STULL: I --
14 THE COURT: Do not go along with a long commentary
15 about what you're looking at.
16 MR. STULL: It's - leading question are --
17 THE COURT: No. I -- this isn't a leading
18 question. This is just not even a question, so tell us
19 what the question is.
20 MR. STULL: We're talking about 72 hours that he
21 spent including a holiday --
22 THE COURT: That's not a question. Ask --
23 MR. STULL: Right -- on normally his --
24 THE COURT: -- the question.
25 MR. STULL: -- day off.

1056
1 THE COURT: No. Ask the question.
2 MR. STULL: I’m getting there, Your Honor.
3 THE COURT: No. Don't get --
4 MR. STULL: The question is --
5 THE COURT: Get there now. Now.
6 BY MR. STULL:
7 Q How much time did you spend to prepare this
8 particular report?
9 A I don't know. It's not noted on top of the
10 report.
11 Q What --
14 MR. STULL: I’m going to allow you to hang onto
15 this if you don’t mind in case you need to refresh your
16 memory. Thank you.
17 BY MR. STULL:
18 Q In your role in this case of supervisor of
19 recordkeeping as to the use of force --
20 THE COURT: Was that a question?
21 MR. STULL: I’m getting there.
22 THE COURT: No. Get there now.
23 MR. STULL: I had to take a breath, Your Honor. I
24 just walked across the room.
25 ///
1057
1 BY MR. STULL:
2 Q Are you familiar with Portland Police Bureau
3 directives on the use of force?
4 A Yes.
5 Q The Directive -- it's a -- it's a manual. Is that
6 right?
7 A Correct.
8 Q Is that right?
9 A Yes, it is.
10 Q Okay. You have plenty of time to read your report
11 and the reports of the primary officers prior to
12 testifying? Did you review the materials before you came
13 here?
14 A Did I review -- no. I got the reports or the --
15 my After Action this morning. I think I reviewed it.
18 BY MR. STULL:
19 Q Did you review Officer Engstrom's report in this
20 case?
21 A When?
22 Q Prior to your testimony here today?
23 A No.
24 Q Why didn't you know if Officer Engstrom filed an
25 injury log -- online log or otherwise in -- in this case?

1058
1 A Because when the officer fills out a injury log he
2 sends it to his detail sergeant. Would not necessarily
3 have to come to me if I am not his detail sergeant.
4 Q Do you agree that for there to be an assault there
5 must be an injury --
6 MR. McMAHON: Objection, Your Honor. He's
7 commenting on the --
9 MR. KELLEY: What's he commenting on?
10 THE COURT: Sustained. I sustained the objection.
12 BY MR. STULL:
13 Q Can you explain how I was lodged on two felony
14 accounts --
15 MR. McMAHON: Objection, Your Honor. He's asking
16 about --
17 MR. STULL: -- assault on a public safety officer?
18 THE COURT: Yes. I -- wait a second. The
19 objection is?
20 MR. McMAHON: The objection is it's improper and
21 it's irrelevant.
22 THE COURT: It is improper. It is irrelevant.
23 BY MR. STULL:
24 Q So the Portland -- I'm asking -- the Portland
25 Police Bureau can add injuries that do not get reported to

1059
1 the United States Department of Justice simply by waiting
2 72 hours?
3 MR. McMAHON: Objection, Your Honor. Relevance.
4 THE COURT: I -- you know, if there is something
5 that's relevant, I would like you to ask it. But I have --
6 I -- I just -- I can't understand the relevance of that.
7 So I'm going to --
8 MR. STULL: Your Honor, we have --
9 THE COURT: -- sustain the objection. I'm not
10 going to hear argument on it unless you need to. And if
11 we're going to have argument on it, then I'll ask the jury
12 to step out.
13 BY MR. STULL:
14 Q Did you use a pain compliance hold on me?
15 A No.
16 Q Did Officer Todd Engstrom use a pain compliance
17 hold on me while -- of any kind, while you were
18 accompanying him in the escort? I believe you testified
19 this morning that you were on my left side, and he was on
20 my right side. From the exit of the Council chambers on
21 the second floor, across the hall of the second floor to
22 the elevator, down to the first floor, across from the
23 elevator out to the front of City Hall, across the plaza
24 out in front of the City Hall, to the police car, was there
25 use of a pain compliance hold?

1060
1 A There was the use of, I believe, Officer Engstrom
2 would have described it as a wrist lock.
3 Q The entire time?
4 A Or an escort hold.
5 Q The entire time?
6 A Yes.
7 Q Do you remember me screaming in pain?
8 A I remember you screaming, but you were also
9 kicking the officer, so --
10 Q The entire --the kicking? Did the kicking started
11 at Council chamber door and go all the way to the police
12 car?
13 A No. It happened at the council chamber door.
14 Q In that narrow spot that you mentioned earlier?
15 A Yes.
16 Q Now I don't want to make you get up and draw a
17 diagram, but I do want you to explain to us how a large
18 man, such as Sergeant Engstrom, a large man that has wide
19 shoulders that the issue of double-cuffing was -- was
20 considered and a gentleman like yourself could all three
21 fit through a narrow area. Would there have to be some
22 kind of, maybe one person got behind the other?
23 A Yes.
24 Q And would -- wasn't that the exact time because I
25 was -- I was distracted by the pain compliance of a wrist

1061
1 lock forcing me, as I was being dragged to kick in response
2 to the pain. If Officer Engstrom got behind me, and one of
3 my feet was flailing --
4 MR. McMAHON: Your Honor, at this point the
5 witness is clearly testifying.
6 MR. McMAHON:
7 MR. STULL: -- got into his shin --
8 THE COURT: I - I think this is --
9 MR. STULL: -- would that --
10 THE COURT: -- I think this is a lot of testimony.
11 MR. STULL: Would that be --
12 THE COURT: This is a lot of argument.
13 MR. STULL: He was there.
14 THE COURT: I want just questions. I just want
15 question. Ask a question, please, and do not
16 editorialize --
17 BY MR. STULL:
18 Q Was, in fact --
19 THE COURT: -- or argue.
20 BY MR. STULL:
21 Q -- the kicking a product of the pain compliance
22 hold? Yes or no.
23 A No.
24 Q This was an intentional forced mule kick in your
25 assessment?
1062
1 A That would be my assessment, yes.
2 Q Did you see the damage to the patrol car out in
3 front after I was placed in there?
4 A I believe it would have been photographed or
5 documented. I didn't get close enough to the door because
6 you were kicking it to look into the back of it.
7 Q Nonresponsive -- nonresponsive is yes or no. Did
8 you see it?
9 A No.
10 Q Do you know how hard I can kick or how hard I
11 can't kick?
12 A Based on the way you were kicking the door, yes.
13 I know how hard you can kick.
14 Q The door of what?
15 A The police vehicle.
16 Q Pretty hard?
18 Q Did I kick Officer Engstrom that hard?
19 A You did kick Officer Engstrom. Was it as hard as
20 the door, no. Did the kicking in -- in back happen? Yes,
21 it did.
22 Q Was it intentional?
23 A It appeared to be intentional on your case, yes.
24 Q How do you know it was intentional?
25 A Based on the action that you were intentionally

1063
1 kicking your foot backwards in a mule kick-type manner. If
2 I am walking and my heel hits somebody is a totally
3 different appearance.
4 Q What's a mule kick mean to you, sir?
5 A Mule kick is where like somebody was -- would bend
6 their knee at like a 90 degree angle, take their knee
7 forward, and thrust it back at somebody's body or wall or -
8 -
9 Q If -- can you see me all right?
10 A No, sir. I can't.
11 Q I'll come up here. Okay. So in a 90 degree --
12 MR. McMAHON: Your Honor, at this point I think
13 it's improper for Mr. Stull --
14 MR. STULL: 90 degree --
15 MR. McMAHON: -- demonstrate.
16 THE COURT: I think this is --
17 MR. McMAHON: If he wants to --
18 THE COURT: This is -- we're not going to --
19 MR. STULL: I'm trying -- I'm trying to find out
20 what his personal view is.
21 THE COURT: Well, we're not going to do it as a
22 demonstration.
23 MR. STULL: I -- I --
24 THE COURT: So would you please resume questions?
25 BY MR. STULL:
1064
1 Q Please describe a mule kick. 90 degrees, right?
2 A Yes, sir.
3 Q And kicking -- maintaining that 90 degrees or --
4 or straightening the 90 degrees as -- as the top of the
5 legislature was --
6 A I would more describe it as bringing your knee
7 forward and then thrusting it back, striking whatever
8 object you intend to strike. And that could be, you know,
9 almost at a downward motion.
10 Q Was it possible for me to kick Officer Engstrom in
11 his kneecap?
12 A You could have, yes.
13 Q And you're saying instead I kicked him in the
14 shins?
15 A That was my observation, yes.
16 Q Wouldn't the kicking in the kneecap -- kneecap be
17 a better target if you're intending to injure -- injure
18 somebody?
19 A I don't know what your intended target was, sir.
20 Q What was my intended target? I mean, in -- when
21 you're --
22 A I guess Officer Engstrom at any point on his body
23 below his waist.
24 Q And he was behind me?
25 A Yes.
1065
1 Q How did I know where he was behind me?
2 A Because we were going through a doorway, and he
3 was standing behind you escorting you with a wrist lock.
4 Q I thought he was carrying me from beside me?
5 MR. McMAHON: Objection, Your Honor. It's the
6 witness to answer. The Defendant testified.
7 THE COURT: That is -- that's just arguing.
8 MR. STULL: I'm sorry. Did --
9 THE COURT: That's just arguing. Just ask a
10 question.
11 BY MR. STULL:
12 Q Didn't you --
13 A What was your question?
14 Q You testified that you were on the left side,
15 correct?
16 A Correct.
17 Q I'm just -- I'm just going to try not to confuse
18 anybody.
19 A Okay.
20 Q And Officer Engstrom was on the right side?
21 A Correct.
22 Q Was I being carried sideways this way? I’m
23 orienting myself now that you're looking over my shoulder,
24 my head, my shoulder or was I being carried? As I was
25 going forward -- as I was going frontward where my legs

1066
1 were parallel to the direction I -- my -- my legs were 90
2 degrees perpendicular to the direction I was heading? Was
3 I in line by my -- my hip to the direction or as I lined up
4 more by my front going through the door?
5 A We would have been basically abreast. But as you
6 described it earlier, the size of the three of us together
7 we would have been incapable of exiting that doorway unless
8 we had jockeyed ourselves, correct, to get to a position
9 where we could go through the door, which then placed
10 Officer Engstrom behind you. And, yes, you were still
11 facing forward in front of the officer.
12 Q And were -- there was the hand on my wrist as a
13 wrist control, you said.
14 A Correct.
15 Q Was it happening through the doorway?
16 A I believe it was. If he -- whether he was
17 applying pressure or not I don't know. A wrist lock can be
18 anywhere from me simply holding your elbow and your wrist
19 and we walk together nicely to the car --
20 Q Sure.
21 A -- or if you are refusing to move forward and I
22 apply slight pressure to your wrist to gain that compliance
23 to have you move forward. Whether or not pressure was
24 applied while we were walking through the door I could not
25 be able to tell that because I was on your left side moving

1067
1 forward and couldn't see your wrist based on that location.
2 Q Did you see me, in fact, kick Officer Engstrom?
3 A I did.
4 Q In the direction you said you were heading, were -
5 - were you going forward?
6 A Yes. We were all walking forward.
7 Q And what caused you to be able to view, in your
8 field of vision, the kick of Officer Engstrom behind me if
9 I was beside you?
10 A The positioning as we jockey through the door,
11 everybody kind of gets off-set. And I can see and feel
12 your legs beside me as we're walking and as a peripheral
13 vision view of your legs.
14 Q Who was directing the -- the escort? Who was in
15 charge of driving the three of us? One of us had to be the
16 leader. One of us was, of course, me and I -- whether I
17 was being dragged or was walking or was kicking --
19 Q -- I wasn't deciding the direction. Is that true?
20 A Correct.
21 Q I wasn't deciding. Were you deciding the
22 direction to go?
24 Q Officer Engstrom made the choice of where this
25 particular prisoner was going at any particular moment?

1068
1 A And the route to the police car, yes, would have
2 dictated which direction we're going at the time.
3 Q Which side of the building -- which side of the
4 Council chambers -- the north side or the south side did --
5 did this escort take place?
6 A It would have been the south side, I believe.
7 Q If and maybe --
8 A If I'm trying to -- I don't go into City Council
9 chambers all the time, so I don't know -- once we go up the
10 elevator inside of the building I'm not certain.
11 Q To keep you from being turned around, there's
12 the -- we could actually refer to Officer Singh's diagram
13 up there.
14 A Okay.
15 Q Can you see that?
16 A Yeah.
17 Q The arc there is -- is kind of where the mayor
18 would be above that.
19 A Correct.
20 Q That -- that table there, right?
22 Q Did we go out the left side or the right side
23 relative to that arc which is the Council?
24 A We would have gone out the -- in looking at it,
25 the left side next to where the table is.

1069
1 Q I’m --
2 A The table where you were bent over.
3 Q I'm going to -- I'm going to walk over here and
4 help you by --
5 A Okay.
6 Q -- telling me which -- and -- and I'll do this so
7 we're still on the record. This side or this side?
8 A This side.
9 Q This side here?
10 A Yes, sir.
11 Q And then over to the elevator --
12 A Yes.
13 Q -- and down and below this, out through the exit,
14 the park plaza?
15 A Correct.
16 Q Did you hear during this transport Officer
17 Engstrom say, "Mr. Stull, -- myself or Barry Joe, I've
18 heard you say my name is Barry. It's actually Barry Joe.
19 It's a two-name name. Barry Joe or Hey buddy, "We're going
20 to now get in the elevator and when we enter the elevator
21 the three of us are going to stop going down the hall
22 towards the west and we're going to make a left-hand turn
23 into the elevator." Did you hear any of those type of --
24 of directions?
25 A No.
1070
1 Q So it was all silent body-language directional
2 indication as to where the prisoner should know how to go?
3 A Typically yes. In an escort hold the officer
4 escorts that person in the direction that they want to go
5 based on, you know, the direction they're either moving the
6 person's arm or directing that movement.
7 Q Or perhaps the application of the wrist lock?
8 A Possibly.
9 Q You're going the wrong direction now, so I could
10 use the wrist lock, because you're not complying to my --
11 A Possibly.
12 Q I was -- I was only being silent because you
13 testified that he never said --
14 MR. McMAHON: Objection, Your Honor.
15 THE COURT: The -- this is is not a question.
16 That is a speech.
17 MR. STULL: He --
18 THE COURT: There's a difference.
19 MR. STULL: Your Honor, he began to --
20 THE COURT: So ask questions of the witnesses.
21 Don't comment on his answers.
22 MR. STULL: He interrupted me, Your Honor.
23 THE COURT: Don’t tell him why you -- no. I'm
24 not. I'm telling you this.

1071
1 THE COURT: And whether he interrupts you or not
2 is not an excuse to engage in an argument with a witness.
3 BY MR. STULL:
4 Q In the escort process, have you ever escorted
5 somebody by yourself?
6 A Yes.
7 Q Have you ever spoken to them while you were
8 escorting them as to which direction you were intending to
9 go and where you were going?
10 A Yes.
11 Q Did that happen on November 25th, 2015?
12 A No.
15 MR. McMAHON: I have no redirect, Your Honor. I'd
16 ask that this witness be excused.
17 THE COURT: Very -- very well.
18 You may be excused.
21 THE COURT: This is a quarter to 5, so it's a good
22 time to break for the day.
23 Just well, if -- was that entered?
24 THE WITNESS: That was him -- his -- his --

1072
1 THE COURT: Okay. We'll return it to him.
2 MR. STULL: -- you can bring it by up here on your
3 way out. I just want to thank you. It's not a -- it's not
4 entered into --
5 MR. KELLEY: Thank you, sir.
7 MR. STULL: -- as an exhibit.
9 MR. STULL: Thank you, sir.
10 THE COURT: While we are adjourned for the evening
11 your notebooks will stay in the jury room back there. And
12 Mr. Gibson will see you in there to leave them there.
13 Remember not to talk to anyone about the case or discuss it
14 amongst yourselves. And we'll be back at work at 9:00 in
15 the morning. Thank you very much.
16 (Jury exits.)
17 (Discussion between Mr. Stull and his Legal
19 MR. McMAHON: I don't know if Your Honor thinks
20 she's got enough time to deal with the -- the ARM folks? I
21 don't if there's any hope of getting a 104 in or if we've
22 got to cut out a witness?
23 THE COURT: The what?
24 MR. McMAHON: The AMR folks -- Defense witnesses?
25 THE COURT: We're not dealing with any more

1073
1 witnesses. We're not going deal with that at all.
3 THE COURT: We're just -- the only thing that we
4 might have -- we're to do a lot of scheduling.
6 THE COURT: Tomorrow's Thursday. We can't have
7 trial on Friday. We have one witness who is reporting --
8 or not -- one juror who is reporting a medical appointment
9 on Monday and another witness who has an obligation on
10 Tuesday. So --
11 MR. McMAHON: State's case in chief is complete.
12 THE COURT: Okay.
13 MR. KELLEY: Is the State resting at this point?
14 MR. McMAHON: Yes. I'll do that in front of the
15 jury tomorrow morning, but, yes.
17 MR. KELLEY: And I've discussed this matter with
18 Mr. Stull. He's authorized me to file on his behalf a
19 Motion for Judgment of Acquittal. I could do that this
20 evening and get the written copies, so we wouldn't need to
21 take time tomorrow.
22 THE COURT: Well, it will be his motion.
24 THE COURT: Not on his behalf.
25 MR. KELLEY: Very well.

1074
1 THE COURT: He can --
2 MR. KELLEY: He did sign it.
3 THE COURT: -- he can go ahead and file it, and
4 copy it --
5 MR. KELLEY: Here's a copy for Mr. McMahon. And
6 I'm providing the original to Mr. Gibson.
7 THE COURT: Okay. The jury's going to come out.
8 MR. KELLEY: I'll wait.
9 THE COURT: And what -- what is the anticipated
10 time for Defense case?
11 MR. KELLEY: Well, depending on how the 104
12 hearings go, we've got three witnesses under subpoena at
13 this point in time.
14 MR. STULL: And -- and myself.
15 MR. KELLEY: And Mr. Stull. So I would say that
16 could be close to probably more than half a day it sounds
17 like.
19 MR. KELLEY: I don't want to be overly optimistic
20 about that.
21 THE COURT: All right. Well, we are, as you have
22 to understand -- going to be looking at difficulties on the
23 schedule. Okay. We'll get you --
24 MR. KELLEY: Couple of minor -- minor scheduling
25 issues if I could. We've got two witnesses. We'd like

1075
1 their subpoenas continued if we may? They're right
2 outside. Is that acceptable?
3 THE COURT: That's acceptable. Tell them to come
4 back in. Just tell them you --
5 MR. KELLEY: Gentlemen from AMR, please?
6 Do you if they're --
7 Please state your names, if you would?
8 MR. BEUTLER: Jake Beutler.
9 MR. JOHNSON: Arik Johnson.
10 MR. KELLEY: These gentlemen are under subpoena
11 for the Defense. We would ask that they return tomorrow
12 morning.
13 THE COURT: I’m afraid I will continue the
14 subpoena's gentlemen. I am aware that this is always a
15 burden, but we're trying to get through the case.
16 MR. KELLEY: Thank you, gentlemen. Be here at
17 9:00 tomorrow --
18 THE COURT: 9:00.
19 MR. KELLEY: -- and be back. Thank you very much.
20 Call me if you have questions down at -- yeah. He --
21 there's actually not enough around here for him.
22 MR. KELLEY: And this is a question that I think
23 Mr. Stull and I both have, and that is regarding the form
24 of his testimony. If he chooses to testify, would Your
25 Honor like him to respond to questions or do you have a

1076
1 preference of how that would go?
2 THE COURT: We can try it without questions, but
3 if it becomes just a long speech, then we're going to have
4 to have questions and then answers.
5 MR. KELLEY: Very well. That's all I have.
6 THE COURT: Okay.
7 MR. KELLEY: I have two cases at call tomorrow
8 morning at 8:30, but I don't see why they should interfere
9 with this at all.
10 THE COURT: Okay. Great.
14
15
16
17
18
19
20
21
22
23
24
25 ///
26
1077
13 Salem, OR 97302
14 970.405.3643
15
16
17 Date: April 26, 2017
18
19
20
21
22
23
24
25
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 1078 - 1306
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Thursday, September 22,
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707

Salem, OR 97302
970.405.3643
GENERAL INDEX
VOLUME 25 of 29
Discussion re: motion for judgment of acquittal.......... 1078

State rests.............................................. 1078
Court's ruling on motion for judgment of acquittal....... 1083
Discussion re: 104 hearing and medical records........... 1084
104 hearing held......................................... 1087
Testimony (104 hearing).................................. 1087
Judge's rulings re: witness Beutler...................... 1120
Defense's proffer re: witness Johnson.................... 1132
Judge's ruling re: witness Johnson....................... 1133
Defense proffer re: witness Regehr....................... 1146
Judge's ruling re: witness Regehr........................ 1156
Discussion re: Dr. Grimm's medical records............... 1157
State rests.............................................. 1172
Testimony (Jury Trial)................................... 1197
Jury charge conference................................... 1242
Defense rests............................................ 1257
State's closing arguments................................ 1259
Defense's closing arguments.............................. 1271
State's rebuttal arguments............................... 1289
Final Jury instructions.................................. 1292
Transcriber's Certificate................................ 1294

Salem, OR 97302
970.405.3643
WITNESS INDEX
104 HEARING: DIRECT CROSS REDIRECT RECROSS
FOR THE STATE:
(None called.)
FOR THE DEFENSE:
Jake Beutler ............ 1087
TRIAL TO THE JURY: DIRECT CROSS REDIRECT RECROSS
FOR THE STATE:
(None called.)
FOR THE DEFENSE:
Melissa Regehr .......... 1173 ... 1186 ... 1189
Barry Joe Stull ......... 1196
EXHIBIT INDEX
Offered Received
FOR THE STATE:
(None offered.)
FOR THE DEFENSE:
101 .............................. 1161 ........ 1172

Salem, OR 97302
970.405.3643
1078
1 PORTLAND, OREGON; THURSDAY, SEPTEMBER 22, 2016
2 -O0O-
4 (Outside the presence of the jury)
5 THE COURT: Good morning. We're on the record.
7 MR. MCMAHON: Good morning, Your Honor. Again, Eamon
8 McMahon for the State, M-c-M-a-h-o-n, Bar number 153879. Here
9 on day 4 of the Barry Joe Stull trial, 15CR53749. I believe at
10 this point this morning Your Honor was taking a motion for
11 judgment for acquittal under --
13 MR. MCMAHON: -- advisement. I don't know if you
14 were expecting argument from me or if you were ready to roll on
15 it.
16 THE COURT: If there is anything to be added to
17 what's in the paperwork, then fine. Otherwise -- well --
18 MR. STULL: Oh, yes, Your Honor. Does the State need
19 to rest because I don't believe it was formulized then?
20 MR. MCMAHON: The State's going to rest. I would
21 also ask --
22 THE COURT: Okay.
23 MR. MCMAHON: -- if I could rest in front of the
24 jury, just so they know.
25 THE COURT: Well, rather than bring the jury out for

Salem, OR 97302
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1079
1 you resting and then sending them back, I'm going to allow the
2 motions now.
3 MR. MCMAHON: Right.
4 THE COURT: I understand that you are in effect
5 resting. Is there anything to add to the written material?
6 MR. MCMAHON: It's your motion.
7 MR. STULL: Oh, on the motion for judgment of
8 acquittal? I'm sorry, because I thought we had two things
9 going on. No, Your Honor, not on that.
10 MR. MCMAHON: Your Honor, again, it's a high
11 standard. All reasonable inferences must be found in favor of
12 the State. With respect to Count 1, attempting to assault on a
13 public safety officer, there's court video that shows Mr. Skull
14 attempting to punch Officer Engstrom, clearing attempting to
15 cause physical injury. I think it's a reasonable for a jury to
16 infer, based on that, that he intended to cause physical
17 injury.
18 With respect to the second count, resisting arrest,
19 the elements of resisting arrest -- I'm just going to go ahead
20 and read it straight from the jury instruction, are that Mister
21 -- that someone intentional -- excuse me, intentionally
22 resisted a person known to him to be a peace officer in making
23 an arrest. Contrary to Mr. Stull's arguments in the motion,
24 you don't actually need to be told you're under arrest. It's
25 just whether or not it's -- I believe the definition is --

Salem, OR 97302
970.405.3643
1080
1 THE COURT: In custody. Once --
3 THE COURT: -- they attempt to take into custody, you
4 don't have to say anything. They don't have to say anything to
5 say, "You're under arrest." There are no magic words. So once
6 you are under custody, you can't resist.
7 MR. MCMAHON: And it's clear from the video, officers
8 were in uniform, marked Portland Police, identified themselves
9 as police, and attempted to take him into custody. Mr. Stull
10 resisted. There's video evidence of that. There's evidence
11 from testimony that a reasonable juror could conclude that
12 Mr. Stull attempted to arrest that effort to take him into
13 custody.
14 Finally, with respect to criminal mischief in the
15 second degree, I think Mr. Stull mischaracterized his personal
16 property. Personal property is not the property of a person,
17 it's just --
18 THE COURT: Anything that's not real estate.
19 MR. MCMAHON: And with that, Your Honor, the evidence
20 is that he broke two fixtures of in the back of the Portland
21 Police patrol vehicle. That is property of another. And,
22 again, a reasonable jury could find that, based on testimony
23 where officers testified that he was intentionally kicking at
24 those soft points to try and break them in a state of
25 agitation, that a reasonable juror could find that he had

Salem, OR 97302
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1081
1 violated the crime of criminal mischief second degree.
2 I have nothing further, Your Honor.
3 THE COURT: Anything further, Mr. Stull?
4 MR. STULL: Oh, I would just say that the jury knows
5 that the Defendant in this case is a person with a disability.
6 The jury has heard that the person with the disability was
7 identified as being in an agitated state within the first two
8 minutes of the -- of State's Exhibit 1 is the Davis video; is
9 that correct?
10 MR. MCMAHON: I gave you the list.
11 MR. STULL: Yeah.
12 MR. MCMAHON: You have the list.
13 MR. STULL: Yeah, I don't have it. I believe it's --
14 but, anyhow, but Mr. Kif Davis' video shows two things; a
15 request for an ambulance and identifying that the loud speech
16 was a product of the disability. And that was a product of the
17 adrenaline. The Portland Police responded. Officer --
18 Sergeant Axthelm gave the Defendant the order to sit down.
19 A contrary order was given by Todd Engstrom in the
20 form of his hand -- putting his hand on the Defendant. They
21 then, clearly, physically used -- whether it was being in
22 compliance or otherwise, subjected the defendant with a
23 disability to further triggering, which then was resolved
24 rather than the potentially lethal effects of that surge of
25 adrenaline by the damage done to the police car. Which we

Salem, OR 97302
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1082
1 could see was very strong kicking on -- in all directions. And
2 that was a necessary step taken to eliminate that fight or
3 flight -- those fight or flight chemicals which, to this
4 particular individual, could be lethal as evidenced by repeated
5 statements on the video that, "This could kill me. This could
6 kill me. This could kill me."
7 And this took place to the person that -- the jury
8 hasn't seen the evidence, but the -- it's clear that the City
9 of Portland agents engaged in absolutely none of their required
10 mandates under the Americans with Disabilities Act to engage in
11 a reasonable interactive process, to do an investigative
12 process, to make decisions whether somebody's a direct threat
13 after reasonable modifications have been implemented. And in
14 this case, they were totally -- being total ignorance of the
15 neurological condition, central pain syndrome, which the jury
16 has already heard.
17 THE COURT: The -- just I hate --
18 MR. STULL: If the police have said they were --
19 THE COURT: I'm sorry to interrupt.
20 MR. STULL: -- completely ignorant. They made no
21 investigation to find anything. The Defendant, at the time,
22 said he had medical records on him. The video shows that the
23 Defendant said he had been to the emergency room and he had
24 been given drugs. And he didn't want drugs. He wanted an
25 emergency ride. An ambulance wasn't summoned, and it was a

Salem, OR 97302
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1083
1 complete breach of the Defendant's civil rights prior to even
2 the interaction with the police, which --
3 THE COURT: Okay. I'm denying the motions. You're
4 not talking about the motions at all. The only question on
5 the --
6 MR. STULL: I'm invoking that --
7 THE COURT: No, you're not. The only questions on
8 the motion is whether there's any evidence at all to support
9 the State's position.
10 MR. STULL: Right. And I --
11 THE COURT: All you've been talking about are
12 evidence that hasn't come in.
13 MR. STULL: No.
14 THE COURT: Your defenses, your claims. Those are
15 not germane to the motion and --
16 MR. STULL: I -- I'm --
17 THE COURT: -- I tried to interrupt to point out what
18 is relevant. And you just continued to talk. So I'm just
19 going to kind of cut this short. There is sufficient evidence
20 to have a jury make the decisions. That's all -- that's the
21 only issue on these motions.
22 MR. STULL: And my objection, Your Honor, for the
23 record, is that the State's position, through the prosecution
24 of this case, is itself an ongoing continuation of that failure
25 to do the duty to provide the reasonable modification in

Salem, OR 97302
970.405.3643
1084
1 policies and practices. That's all I wanted to say. And
2 their --
3 THE COURT: Okay.
4 MR. STULL: That their position needs to be filtered
5 through that view. Thank you.
6 THE COURT: All right. Okay. All right.
7 MR. STULL: I'm finished on that.
8 THE COURT: Thanks.
10 THE COURT: Well -- good morning. And we'll get the
11 jury back and --
12 MR. MCMAHON: Your Honor, I think we're going to have
13 a 104 hearing with respect to Defense's witnesses.
15 MR. MCMAHON: As well as I think we're going to
16 discuss medical records and admission of that before receiving
17 Defense's case in chief.
18 THE COURT: Well, I suppose medical records is going
19 to be something that will come up. It wasn't something we
20 talked about yesterday. It's something that we'll talk about
21 now. But who would be the first witness, and we'll have -- if
22 we need a 104 for that witness then we'll have it?
23 MR. MCMAHON: My understand is, though, it's two
24 individuals from AMR, American Medical Response Ambulance, for
25 an event that occurred on November 22nd. Mr. Skull, correct me

Salem, OR 97302
970.405.3643
1085
1 if I'm wrong. The two witnesses --
2 THE COURT: Is that -- who is your first -- who is
3 your first witness? They've asked for preliminary hearings on
4 relevance of the witness, so we'll do that.
5 MR. STULL: Yes, Your Honor, we're going to proceed
6 with the American Medical Response paramedics who arrived on my
7 call on -- about 8:00 p.m. on November 22nd, which was Sunday.
8 And they are here to, one, validate this is their medical
9 report, which also includes that, most pertinent to the Defense
10 under the choice of evils, is their EKG which shows my heart
11 was absolutely wild in the ambulance ride, although, I was
12 unconscious. And when the pulse went not only with an abnormal
13 -- the waves are clearly abnormal on the EKG.
14 THE COURT: Well, we'll have them in here for a 104
15 hearing.
16 MR. STULL: Right. And --
17 THE COURT: And you can -- and you can even ask --
18 MR. STULL: -- so they're going to validate this
19 report.
20 THE COURT: I -- wait a second. We can -- we'll have
21 them in here.
22 MR. STULL: Sure.
23 THE COURT: You can ask them the questions you're
24 going to ask.
25 MR. STULL: Okay.

Salem, OR 97302
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1086
1 THE COURT: And we'll decide whether they're going to
2 be relevant --
3 MR. STULL: Right. Thank --
4 THE COURT: -- to the issues here.
5 MR. STULL: Thank you, Your Honor. And they've been
6 subpoenaed. And I'm looking for the author of this report.
7 THE COURT: Well, have the first one in and we'll put
8 him on the stand.
9 MR. STULL: Thank you. Thank you, Your Honor. For
10 purposes of this hearing, the -- the Defense calls Jokab,
11 J-o-k-a-b, Beutler, B-e-u-t-l-e-r, from what we call AMR. It's
12 American Medical Response, Your Honor.
13 THE COURT: Well, okay. Get him in here.
15 THE CLERK: Step on over. Please raise your right
16 hand. Do you solemnly swear under penalty of perjury that the
17 testimony you are about to give will be the truth, the whole
18 truth, and nothing but the truth?
19 MR. BEUTLER: I do.
20 THE CLERK: Please, have a seat. State your first
21 name and last name and spell your name for the record.
22 THE WITNESS: My name is Jake Beutler; J-a-k-e,
23 B-e-u-t-l-e-r.
24
25 ///

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1 WHEREUPON,
2 JAKE BEUTLER,
6 BY MR. SKULL:
7 Q Good morning, Mr. Beutler. How are you -- how were
8 you employed in -- on November 22, 2015?
9 A For AMR Multnomah County.
10 Q Could you tell us about your training and experience
11 to be -- did you have to have a license to do your -- a
12 professional license of any kind? Standard, do you have to --
13 A You have to have an associate's degree in the State
14 of Oregon to be state certified.
15 Q Could you tell us about what the process that is to
16 get your certification and what type of certification you have?
17 A It requires a two-year Associate's program, and then
18 an accredited medic program from the school of your choice.
19 And then an internship clinical experience. And then also the
20 licensing, so a state test and then a state practicum.
21 Q So how many years of training or schooling have you
22 had towards getting your certification?
23 A Three --
24 Q And --
25 A -- personally.

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1 Q And how many years have you currently been using that
2 to do your role as a paramedic?
3 A A year and a half.
4 Q At this point? We're talking about November 25th
5 (sic) --
6 A A year --
7 Q -- 2015.
8 A A year and four months.
10 What types of -- what types of equipment do you
11 operate within the -- your unit? Could you describe how you --
12 today you walked in without carrying anything. So what kind of
13 equipment do you have at your disposal or do you operate?
14 Could you tell us something about what you do in your job?
15 A We respond to emergency calls, so we show up in the
16 homes and residences. We have our jump bags, which include a
17 monitor, medication bag, airway bag, oxygen bag. And then if
18 it's not inside and the patient meets us at the backdoor, then
19 we have stuff inside the ambulance that we can use. We
20 basically have the same stuff that's on the wall in a bag,
21 basically.
22 MR. MCMAHON: And, Your Honor, at this point, the
23 State would -- you know, would waive any arguments about his
24 credential. I think we're just concerned about relevant
25 testimony. So if we could perhaps cut to --

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1 MR. STULL: Okay.
2 MR. MCMAHON: -- what Mr. Stull intends to offer and
3 go forward.
4 MR. STULL: If I -- if I can approach the witness,
5 Your Honor?
6 BY MR. STULL:
7 Q Do you have one?
8 A Yeah, I have one.
9 Q And just go -- go all the way to page -- did you have
10 the two?
11 A I have 3 of 16.
12 Q Yeah, you don't have this. This is the one I'm going
13 to offer. So here, just take one, I guess. And it's probably
14 the same for the most part.
15 A Sure.
16 Q And that goes in there somewhere, the second -- I'm
17 going to offer you -- if you could go to the EKGs in the back.
18 A Yes, sir.
19 Q I believe the EKGs you'll see in there are around --
20 A Sure.
21 Q Okay.
22 A There's several pages of them.
23 Q Okay. First, in your review this morning of that --
24 of the document I handed you, could you go ahead -- just first
25 identify what it is from the first page and such.

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1 A It would be a normal sinus rhythm.
2 Q Oh, no, excuse me. The document itself because my
3 copy, I just handed you, is different than what you brought in
4 yourself. So if you'd just -- if you'd just go to page 1 and
5 identify the document, first.
6 A Well, you handed me --
7 Q Yeah. And then you can go over the other part.
8 Yeah. But we need to know what --
9 A You handed me a copy of my chart.
10 Q So are you the author of that?
11 A Yes.
12 Q Okay. Now we can go to EKG, please. Fine. Thank
13 you. And, please, it's your report, isn't it?
14 A Yes.
15 Q Okay. So when I'm asking you these questions, just
16 refer to the appropriate portion in your report, if that's
17 okay.
18 A Sure.
19 Q Are you familiar with that?
20 A Yeah.
21 Q Okay. Please tell us all about what those pages --
22 what those lines on the graphs, how they were produced, when
23 they were produced, if there is some information on there that
24 you know, if it's like, this is a pulse or something like that,
25 that you can identify that because it's your report and you're

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1 the -- you know what those things mean, I hope. And so if you
2 could just maybe go back a couple pages, if you'd like, and
3 start and say what that process of how that was produced, those
4 particular --
5 A These EKGs, specifically?
6 Q Yes. Yeah, whatever they are.
7 A Okay.
8 Q What does EKG stand for, all those kind of things.
9 A Okay. So EKG is electrocardiogram. We take
10 stickers, wires, color-coordinated, and place them -- these
11 particular ones I placed on -- these are the limb leads, and so
12 they go either up top or your shoulders, collarbones, and then
13 also either on your hips or your lower extremities. This EKG
14 here -- sorry --
15 Q Oh, did I give you -- we could take care of two of
16 these at once. Sorry. I'm sorry.
17 A The EKG here shows a normal sinus rhythm, from what I
18 could tell. This EKG was put on you, sir, at 8:24 p.m., and
19 I'm not sure what else you would like me to say about it.
20 Q Okay. If you could just go from the first page of
21 the EKG --
22 A Uh-huh.
23 Q -- and describe what the lines are, the two parallel
24 lines, and whether they're --
25 A Okay.

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1 Q -- whether they're synchronized.
2 A Well --
3 Q Or whether -- how -- what the chronological, if it's
4 from right to left time increases, or if that's a time chart.
5 Please -- please tell us what all those mean.
6 A Sure. So the parallel lines are the exact same
7 timeframe. They happened at the exact same time. One is lead
8 2, one is lead 3.
9 Q Is that -- excuse me. Are we going from left to
10 right, top to bottom? There's two things happening at the same
11 time?
12 A Right. I said the two parallel lines.
13 Q Okay.
14 A Top one is lead 2. The bottom one is lead 3.
15 Q Okay.
16 A And then each one of those is the same amount of
17 time.
18 Q Okay.
19 A And they go from left to right.
20 Q All right.
21 A If you look at the bottom of the page, it tells you
22 how fast the EKG is running. So it was running at 25
23 milliseconds --
24 Q Okay.
25 A Millimeters per second is how fast the EKG is

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1 running.
2 Q And that's the -- that's the mechanism to probe the
3 -- the elect -- tell us what the electrocardiumgram (sic) is
4 doing through -- that this is a reflection of?
5 A It's reflecting your heartbeat. So there's three
6 parts to the EKG or each beat. There's a atrial contraction,
7 eventual contraction, and then a resetting of the heart. And
8 dispersed -- there's a thing called artifact, first of all,
9 which is something that happens when the patient is moving or
10 not sitting still. I mean, even the slightest motion of
11 certain muscle groups can make the artifact occur. So in the
12 initial rhythm document, which is page 9 of 15 you have here,
13 the first clear beat is like the fourth beat. And it shows a
14 PUA, which is your atrial contraction; your QRS, which is
15 normal; and then a TUA, which is also normal.
16 And so based on that information, and the rate, your
17 rate up in the top corner, your SPO2 is a hundred percent.
18 You've getting a hundred percent oxygen in your blood, and your
19 heart rate is 63. A normal sinus rhythm is between 60 and 80
20 beats a minute. So you are considered normal -- sinus rhythm
21 at that point, normal.
22 Q Okay. And if you could --
23 MR. STULL: Pardon me, Your Honor.
24 (Defendant whispers to the witness.)
25 THE COURT: Please, sir --

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1 MR. MCMAHON: Yeah, you're --
2 THE COURT: -- we're dealing with this as we would in
3 court. You wouldn't be able to come up and have a quite
4 conversation with the jury.
5 MR. STULL: I'm sorry. I'm trying to get him to --
6 THE COURT: No, just tell him what you want him to
7 look at, but do so out loud --
8 MR. STULL: I did that already.
9 THE COURT: -- and not whispering.
10 MR. STULL: I'm concerned -- I'm trying --
11 THE COURT: Okay.
12 MR. STULL: -- to point.
13 BY MR. STULL:
14 Q Okay. Could you, page-by-page, going from -- could
15 you read that to us page-by-page?
16 THE COURT: Well, no, he's not going to read it to us
17 --
18 MR. STULL: No, I mean, it's --
19 THE COURT: -- page-by-page.
20 MR. STULL: -- probative.
21 THE COURT: Just direct him to whatever you think is
22 going to be relevant here.
23 MR. STULL: I am. Your Honor, I'm trying to get him
24 to simply show whatever page of those -- because they are --
25 obviously, they don't look alike.

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1 THE WITNESS: They don't look alike --
2 MR. STULL: And I want to know what those --
3 THE WITNESS: -- because there's artifact. The first
4 page you were staying relatively still. And then the first
5 couple beats, like I said, there is artifact in them. This --
6 this first page I just showed you is initial rhythm. The
7 computer automatically -- automatically takes that initial
8 rhythm. You don't have to push any buttons or anything. It
9 records every patient initial -- it says it right in the
10 center, initial rhythm.
11 BY MR. STULL:
12 Q Is that -- is that that person, or is that just like
13 a -- the machine starting?
14 A This is this person.
15 Q Is that --
16 A This is --
17 Q -- me right there?
18 A This is you. The minute all four leads were hooked
19 up and --
20 Q Okay.
21 A -- it recognizes a heartbeat, it records it.
22 Q Okay.
23 A So --
24 Q And that's the beginning of the recording there on
25 some --

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1 A Yes.
2 Q Are those -- the jiggling, when on the initial left-
3 hand part of the stage --
4 A Right. That's artifact.
5 Q -- page --
6 A That is you moving.
7 Q That's like putting the wires on or something?
8 A That -- that's you moving --
9 Q Yeah. Right.
10 A -- because we already put the wires on.
11 Q Okay. And then it -- and then it --
12 A So then --
13 Q -- shows a stable rhythm?
14 A Stable rhythm. And then --
15 Q Page -- what --
16 A -- page -- page 10 of 15, which is the next page you
17 have here in the line --
18 MR. MCMAHON: And just --
19 THE WITNESS: -- there's artifact.
20 MR. MCMAHON: And, Your Honor, at this point, just
21 for clarification, I think we're referring to different
22 documents, specifically if it's going to be offered into
23 evidence. Mine, I'm looking at it, I've got a 16-page report.
24 I don't know if Mr. Stull provided me with an accurate copy of
25 not. I just need to be sure what he is referencing. I think

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1 there's a timestamp --
2 THE COURT: Okay. Let's -- okay. Why don't you just
3 look at what he's got there --
5 MR. STULL: Yeah, look at here.
6 THE COURT: -- and see if it's different.
7 MR. STULL: I'm going to -- I'm going to get what I
8 sent by email. I have it as a pdf. But I have provided this,
9 I believe, to --
10 THE WITNESS: So --
11 MR. MCMAHON: So I just want to kind of worry about
12 these -- and I'm sorry, Your Honor. If I may just -- okay. So
13 this is --
14 THE COURT: Just try to straighten out whether you've
15 got the same exhibit.
16 THE WITNESS: So this -- it has several pages of just
17 blank EKG. This is 8 of 15 he has here.
18 MR. MCMAHON: So I've got 8:23:36.
19 THE WITNESS: Okay. Yep.
20 MR. MCMAHON: And that's -- that's your listed as
21 page 15.
22 THE WITNESS: That's this page. Yeah.
23 MR. MCMAHON: Okay. And then --
24 THE WITNESS: Nine of 15 is the initial rhythm
25 document.

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1 MR. MCMAHON: 8:25. Okay.
2 THE WITNESS: Yeah, that's initial rhythm.
3 MR. MCMAHON: And then -- so this is essentially
4 your --
5 THE WITNESS: 8 -- vital signs, 8:28. Or sorry,
6 yeah.
7 MR. MCMAHON: 8:28. Okay. So great. All right.
8 That's -- like so I guess if you could just -- just for the
9 record if you would refer to it -- if you're referring to a
10 specific page, just by the time on the vital signs, that would
11 be good.
12 THE WITNESS: Sure.
14 THE WITNESS: Very good.
15 Okay. So the initial rhythm, like I said, the
16 artifact in there. The next page in the center it says -- it
17 says vital signs, and that was at 8:28:36. And this particular
18 page of rhythm is -- is there because I pushed the blood
19 pressure button. Okay. It -- the monitor takes it at its
20 increments of five minutes I believe. Don't quote me on that,
21 but I think it is five minutes. But it also will document the
22 rhythm in the six-second strip every time it takes a blood
23 pressure. That's why it says vital signs up -- up above the
24 time -- next to the time.
25 BY MR. STULL:

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1 Q Okay.
2 A This EKG also shows a normal sinus rhythm with a lot
3 of artifact. So you were continuing to move.
4 Q Okay.
5 A It's the exact -- the first couple beats are clear,
6 and then you can see as you move there's more and more smaller,
7 squiggly lines in between each beat. It's because it's
8 artifact. That's artifact. Then it keeps going.
9 So then the next page of vital signs at 8:33 -- 8:33
10 continues to have artifact, and then smooths out just a little
11 better. The reason why, on that page, 8:33:36, the first line
12 and the second line look different is because EKG is looking at
13 different aspects of the heart. Lead 2 looks across the heart.
14 Lead 3 looks up the heart. So that's why it looks different,
15 because you're moving a certain muscle group in the first lead
16 that isn't being moved in the second lead. So it looks
17 different. But it essentially showing the same electrical
18 output, essentially.
19 Q If I could clarify that. Does -- do the -- do the
20 changes -- if we compared, for example -- are you on page 10?
21 A I'm on page, vital signs, 8:33:36.
22 Q Well, I mean, the bottom of --
23 A It's 11 -- 11 of 15 in your document.
24 Q Okay. Yeah, okay. Comparing page 11 to page 10 --
25 A Okay. Yeah.

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1 Q -- you were talking about the current, one goes
2 across the heart and one goes from --
3 A Yeah.
4 Q -- the bottom?
5 A They're different -- yes.
6 Q They're going --
7 A Different aspects of the heart.
8 Q Okay. What are the differences on those? What I'm
9 seeing perhaps is four ways to look at this. There's the top
10 line across the heart on page 10, the top line across the heart
11 on page 11, and the bottom line, similarly, on page 10 and page
12 11. Could you tell us what's the difference in those two
13 pages?
14 A The amount you're moving is the amount of difference
15 in these two pages.
16 Q Okay. And --
17 A It's like I said, if you look through the artifact,
18 and don't just look at it as that's your heartbeat, on page 11
19 of 15, on the bottom line, there's a lot of artifact in that
20 first four seconds. But then you stopped moving, and you can
21 see the rhythm underneath it.
22 Q Okay. Yet --
23 A Yeah. And so that's also the same in this -- in page
24 10 of 15. There's really no difference. There's artifact in
25 the first line of page 11. There's also artifact in the -- in

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1 the line of page 10. There's artifact in the first line -- or
2 second line, or lead 3, in 11, and there's also the same in
3 page 10. There's no -- it's just the amount of what you're
4 moving.
5 Q Okay. And if you can continue from page 11, 12, and
6 through the rest of them to see what --
7 A 10, 11 -- okay. So then, like I said -- and like I
8 said, the way they're looking at the heart, it's still
9 documenting the same electrical outlet. They may look
10 different but it's exactly the same thing. So I don't have to
11 look at each individual lead or line --
12 Q Right.
13 A -- to know what the heartrate is. I can look at any
14 portion of any line, it's going to be the same information.
15 Q Right. But here --
16 A So I'm looking at page 12.
17 Q Certainly.
18 A And 12, lead 2 or the first line, for the first four
19 seconds is very normal. That's normal sinus. Your heartrate
20 is at 68.
21 MR. MCMAHON: I'm sorry, if I could interrupt you.
22 What's the timestamp on those vital signs?
23 THE WITNESS: 8:36 -- sorry, 8:38:36.
25 THE WITNESS: And then it looks different in the

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1 second line is because those leads are moving on -- those are
2 muscle contractions in the second -- in the second line there
3 on the page.
4 BY MR. STULL:
5 Q Should I --
6 A But essentially showing the same information.
7 Q Oh, I'm sorry. Muscle contractions in the heart?
8 A That's what an EKG is. It's electrical -- electrical
9 conduction, which is in turn a muscular contraction.
10 Q So -- thank you. What I'm clarifying is, you're --
11 when you say the -- and it's your word. When you say the
12 aberrations, these --
13 THE COURT: I don't think he said aberrations.
14 MR. STULL: No, he didn't. I --
15 THE COURT: He said artifacts, which is --
16 MR. STULL: Artifact.
17 THE COURT: That's different.
18 BY MR. STULL:
19 Q But these differences -- these differences, you're
20 calling them artifacts, they are different contractions in the
21 heart muscles that make those --
22 A No, artifact --
23 Q -- or --
24 A No, artifact is your -- like I said, these leads are
25 placed on muscle groups.

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1 Q Right.
2 A As you're moving, they -- it isn't a perfect system.
3 Q Right.
4 A So it picks up vibration and other things and
5 documents it on the EKG. Because --
6 Q Right.
7 A -- the computer doesn't know the difference between
8 the movement of your body versus the movement of your heart
9 sometimes. That's why we call it artifact. You can look at
10 other parts of the EKG, that's why there's multiple lines here.
11 So in case one is fuzzy, you can look at the second one, you
12 can see the same information that would be in the first one
13 that is now covered with artifact. So that's why, like on page
14 -- let's see, timestamp 8:38:36, the first line is very clear
15 but the second line is not clear. So if I was diagnosing this
16 rhythm, I would look at the first line because it is the most
17 clear line. There's no artifact in it.
18 Q And the artifact in the second line that you wouldn't
19 use, just tell us what could cause that?
20 A It's from your movement --
21 Q And --
22 A -- of your body.
23 Q Right. Okay. And if I could first maybe get one
24 thing -- one thing out of the way I heard you say.
25 A Okay.

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1 Q You have all those various pages. Could you just --
2 without looking at the artifact part, could you just see the
3 pulse rate that's happening at these different time --
4 A Yeah. A computer --
5 Q -- episodes?
6 A Well, the computer documents it up in the right-hand
7 corner for me.
8 Q So do you have like a number, like 60 or 80 on each -
9 -
10 A Yeah, it says --
11 Q -- on each page, like --
12 A It says 68.
13 Q Okay.
14 A Sixty-eight, but, like I said, if artifact is too
15 high, you won't be able to differentiate very well.
16 Q Okay. So go ahead --
17 A But his page up here, this is timestamp 8:30 --
18 8:38:36, your heartrate is 68.
19 Q Okay. And if you could do that with each of those
20 pages, and tell us what page number you are on, please, too.
21 A 8:30 -- 8:43:36 is the next one. Your heartrate is
22 61, and then that's the last documented one I -- when you take
23 the wires off or any one of the leads off, it stops recording.
24 So the last two pages are that of such.
25 Q Did you -- oh, excuse me. Did you start on page 9?

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1 A Well, the first two pages are the same way. It
2 records -- I have the wires --
3 Q Could --
4 A -- plugged into the machine.
5 Q Sure.
6 A The leads aren't on you, so it's trying to document
7 EKGs, but there's not -- there's no person there. So it just
8 puts a blank page there with --
9 Q Please -- sir, please do this. Please start with the
10 first page that you have the recorded number of the pulse at
11 the top of the page.
12 A Okay.
13 Q Identify the page by the page number, and then simply
14 go through the process --
15 A I'll identify --
16 Q -- of each page --
17 A I'll identify it by the timestamp because that's --
18 Q But the evidence has a page number at the bottom of
19 it.
20 MR. MCMAHON: Mr. Stull, you have given me a
21 different copy of the evidence. I'm asking him to refer to it
22 by date stamp so there's a clear record. You have given me --
23 MR. STULL: He can do that also.
24 THE WITNESS: Okay. So your page 9 of 15 --
25 BY MR. STULL:

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1 Q Thank you.
2 A -- his page of 8:24:31 --
3 Q Because the page 9 of 15 -- does page 9 of 15 have
4 the information you just gave this gentleman?
5 A Yeah. We have the same page --
6 MR. MCMAHON: It's not the same. I don't have what
7 -- the same printout, Mr. Stull. That's why I'm asking him to
8 verify.
10 THE WITNESS: Has the same information, just a
11 different page number.
12 BY MR. STULL:
13 Q But that's the exhibit --
14 A Okay. And so --
15 Q -- intended to be offered, so --
16 A -- initial rhythm page, 8:24:31, your page 9 of 15.
17 Q Okay. And the pulse?
18 A Your heart -- your heart rate is 63.
19 Q Okay. And the next page and the same, pulse, and
20 then on through those --
21 A The next page is vital signs, timestamp 8:28:36, your
22 heartrate is 80. The next page --
23 Q Could --
24 A -- 8:33:36, there's a lot of artifact in there, but -
25 - and it says your heartrate is a hundred -- 107, which if you

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1 look at the second part of the first line of the EKG, it
2 basically matches the second -- first page, and it says your
3 heartrate was 80. So I would render to guess your heartrate
4 would probably either be between 80 and 90.
5 Q Okay. And the next page? Identify the page number
6 and the pulse and the timestamp, please.
7 A Okay. So that was -- I was on page -- vital signs,
8 page 8:38:36, your heartrate is 68 again. Vital signs, page
9 8:43:36, your page 13, your heartrate is 61, and that is the
10 last one I have vital signs on. You page 14 and 15 are -- have
11 no vital signs on them because the monitor is no longer
12 connected.
13 Q So if we could show what's happening --
14 A We can't.
15 Q No. Please, I'm asking the questions. If we could
16 show what's happening by saying the pulse was, on these various
17 pages, 60, then it rose to 80, there's a potential 107, then to
18 60, again --
19 A Uh-huh.
20 Q -- is there an arch those goes up -- the pulse rate,
21 as you've interpreted from your report, did the pulse rate
22 start at -- in the 60s and go up higher to potentially 107, it
23 may potentially a misread, and then back to 60?
24 A By my -- by my chart, yes.
25 Q Thank you. And if you could refer to your early --

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1 earlier pages of your report, because we have been discussing
2 the EKG --
3 A Sure.
4 Q -- between pages 9 and the end, I believe. There
5 might -- there was some blank ones at the end, perhaps 15. Is
6 that still an EKG that's blank, or is there a signoff sheet
7 there?
8 A Page 15?
9 Q Yes.
10 A It's a blank.
11 Q Blank EKG. So there -- to clarify for the record,
12 because we're doing this audio, there are a number of blank
13 EKGs that are incorporated between page 1 of that, as we know,
14 the first page, and page 15, and we know the last page, there
15 are several pages that are in there as blank EKG pages because
16 that was a product of you starting your report and ending your
17 report which takes a couple of pages to do; is that correct?
18 A I'm sorry, I don't really understand.
19 Q The blank pages are in there as a product of what?
20 A Me removing the -- either you -- either somebody
21 kicking them off, or one pulling them off or me pulling them
22 off.
23 Q So the EKG report --
24 A Is --
25 Q -- has blank pages --

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1 A Because it was no longer --
2 Q -- be --
3 A -- being recorded.
4 Q And those are those blank pages?
5 A Yes.
6 Q Thank you, sir.
7 Now, getting back earlier, to the earlier part of
8 your report, that -- that shows the arrival on the scene and
9 those types of things?
10 A Sure.
11 Q Okay. If I can just ask briefly, what was the --
12 what was the primary call?
13 A We were called for an unknown 3.
14 Q And that was lights and siren code 3?
15 A Yes.
16 Q And looking to your report, what was your primary,
17 and then as we're at it, your secondary impression?
18 A Okay. Sure. What were they?
19 Q Your -- they are your report. What does your report
20 say as your primary and then secondary --
21 A Primary, behavior manic episode. Secondary,
22 behavioral psychotic episode.
23 Q All right. And can you look down in the -- your
24 report as to what I said I had?
25 A You say you have, if I can remember correctly, it's

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1 central pain syndrome.
2 Q Those three words, correct, central pain syndrome?
3 A Yeah, I'm trying to find it in my chart. I know it's
4 in there. I'm just trying to find it.
5 (Witness reviews report.)
6 A NS -- yeah, he has central pain syndrome. Okay.
7 Yeah.
8 Q So your impression was that it was a psychiatric or a
9 mental illness?
10 A Yes.
11 Q And I said it was central pain syndrome?
12 A Well, so that --
13 Q Is that what your report says? I'm referring to this
14 document, sir.
15 A Yeah. But --
16 Q Does your -- your report says you said --
17 MR. MCMAHON: And, Your Honor, I'd ask that he -- the
18 witness be allowed to finish the question. He's trying to
19 explain it.
20 MR. STULL: I'm trying to direct him to it.
21 THE COURT: It would be good if you would do that,
22 because it's his testimony that's important, not your
23 questions.
24 MR. STULL: I'm trying to be simple and just get
25 snippets, Your Honor, and move on.

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1 THE COURT: Well, it isn't simple if you're talking
2 over him, then.
3 MR. STULL: Oh, I'm sorry.
4 THE WITNESS: What -- what you're referring to is my
5 narrative, and that's when I -- when I synapsis or tell what
6 was went on the call that. I can't document other places in
7 the chart --
8 BY MR. STULL:
9 Q Sure.
10 A -- or things I think are more important than others.
11 Q Right.
12 A And so my impression, what you're reading --
13 Q Yes.
14 A -- is what my interpretation it is. It's not what
15 you tell me it is. It's my --
16 Q Right.
17 A It's my primary impression.
18 Q Right.
19 A Okay. You tell me you had central pain syndrome.
20 Q Okay. But the --
21 A That -- that belongs in a history, and in our
22 charting system --
23 Q Right.
24 A -- central pain syndrome is not an option in our
25 dropdown box.

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1 Q Okay.
2 A So I just wrote in my narrative, "Patient says he has
3 central pain syndrome."
4 Q Could you tell us the dropdown box options that --
5 that you have?
6 A Oh, there's -- there's hundreds of them.
7 Q Give us a few examples.
8 A Chest pain, breathing problem, osteoporosis, CHF,
9 renal failure --
10 Q Thank you.
11 A -- stroke --
12 Q Thank --
13 A -- seizure.
14 Q Thank you. And if I could move on. Then there was
15 -- there were a number of individuals on the scene at the time;
16 is that correct?
17 A Oh, yeah.
18 Q Tell us who was there?
19 MR. MCMAHON: And, Your Honor, I would object, again.
20 I think we're getting pretty far afield from the relevance.
21 THE COURT: I think we're going pretty far afield.
22 The point --
23 MR. STULL: Oh. No, that's fine.
24 THE COURT: -- of this hearing -- the point of this
25 hearing is very simple. It's simply to show whether this

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1 witness has or has not some relevant evidence.
2 MR. STULL: Yes, Your Honor. I'm sorry.
3 THE COURT: And if you would get to that and not just
4 wander around --
5 MR. STULL: I'm not wandering, Your Honor. I just
6 didn't want to bring in any new people that you don't know
7 about, and he does. And I just want to simply --
8 THE COURT: And what relevance would the fact that he
9 saw other people at that time?
10 MR. STULL: He interacted with them. He worked with
11 them.
12 THE COURT: No, his interaction with --
13 MR. STULL: He used their directive, and he just --
14 THE COURT: -- them is not going to be --
15 MR. STULL: No, Your Honor, I'm not going there.
16 Your Honor --
17 BY MR. STULL:
18 Q The question is, was I drugged into unconsciousness?
19 A You were never unconscious.
20 Q Was I given a drug?
21 A Yeah.
22 Q Okay.
23 A You were chemically restrained per our chemical
24 sedation protocol.
25 Q Okay.

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1 A Which I had --
2 Q Tell us what limiting or other factors the chemical
3 restraint has on the person. Why do you used it and --
4 MR. MCMAHON: Your Honor, like --
5 BY MR. STULL:
6 Q -- and who did it?
7 MR. MCMAHON: -- at this point, I think we're trying
8 to establish the relevance of this witness' testimony to the
9 events of November 25th. We haven't gotten there after, I
10 think, nearly half an hour of testimony.
11 MR. STULL: You're --
12 MR. MCMAHON: Like --
13 THE COURT: It is -- it is --
14 MR. STULL: Your Honor, please.
15 THE COURT: I agree this is very lengthy, and I'm --
16 I'm wondering what we are trying to establish with this
17 witness.
18 MR. STULL: I'm showing you this, Your Honor.
19 Another --
20 THE COURT: No, tell me.
21 MR. STULL: I'm telling -- telling you. Central pain
22 syndrome isn't in the drop box. This gentleman interpreted
23 central pain syndrome, which I was diagnosed with at Emanuel
24 Hospital, we have those -- that evidence, also, but -- before
25 and after this interaction with this individual. What I'm

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1 simply showing, Your Honor, that the EKG shows a lower pulse,
2 60, which is healthy, I probably have that right now, and it
3 went up to 80, and it went down to 60 at the time, that there
4 was no reason for there to be anything to make that pulse rise
5 other than the reverberation of the adrenaline, which has a --
6 it has a delayed thing, Your Honor. And any convulsions that
7 I've experienced were -- were after the event.
8 When I was at the Pioneer courthouse, where I got in
9 the ambulance, back in the day, my pulse was 90 on the Broadway
10 Bridge. It was 175 in Emanuel Hospital, because my condition
11 spikes. In here and in the best --
12 THE COURT: This witness --
13 MR. STULL: -- possible environments, this witness
14 knows that I was on a gurney, in an ambulance, on the way to
15 the emergency room, and there was still an arch of my pulse
16 increasing. And my personal experience and condition is, when
17 my pulse gets to a certain point, it's a product of the
18 adrenaline, and when it gets to that point it could kill me in
19 a matter of minutes if not abated. And I'm just simply showing
20 that we have a trained professional that operated a piece of
21 machinery that shows, in addition to the outward affects, which
22 this gentleman probably, genuinely, in his training and
23 experience, did perceive to be a psychiatric episode. And
24 because central pain syndrome isn't in the drop box, that's
25 why we have other people that are doctors that do know about

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1 that, including neurologists. But my --
2 THE COURT: Well, you're --
3 MR. STULL: The purpose of this is to show that at
4 the time of the event, at Portland City Council chambers, prior
5 to any request for Portland Police services, I knew that I
6 needed to follow the exit instructions that I received after
7 this gentleman and his colleague in the department took me to
8 the emergency room that night, Sunday night, on the 22nd of
9 November, 2015. I exited the emergency room with my abnormal
10 condition and instructions to return that it worsened. And on
11 the morning about 9:20 of November 25th, 2015, I invoked that
12 status. And I didn't get --
14 MR. STULL: -- that treatment.
15 THE COURT: Okay.
16 MR. STULL: It worsened my condition. And it's --
18 MR. STULL: The relevance is --
20 MR. STULL: -- the choice of needles.
23 THE COURT: Wait a second. You're going way beyond
24 anything this witness can say or will say.
25 MR. STULL: I'm not saying that.

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1 THE COURT: And I'm asking you --
2 MR. STULL: I'm telling you why he's here.
4 MR. STULL: Sorry.
5 THE COURT: Does he have anything to testify to in
6 this case? He has testified -- if I correctly understand --
7 MR. STULL: Yes, thank you, Your Honor.
8 THE COURT: -- it, you thought that the most likely
9 high pulse was around 90, right?
10 THE WITNESS: Yes, ma'am. And my pulse is well above
11 90 right now.
12 THE COURT: I imagine so. And is that a lethal or
13 near lethal condition?
14 THE WITNESS: No, that's --
15 THE COURT: Within the normal range?
16 THE WITNESS: A standard heartrate any day of
17 someone's, it can average between 60 and a hundred beats.
18 THE COURT: Okay.
19 MR. STULL: And, Your Honor --
20 MR. MCMAHON: I actually have a couple of --
21 MR. STULL: -- mine isn't. My pulse is normally not
22 50.
23 MR. MCMAHON: I have a couple of clarifying
24 questions, too, because I think there's some factual
25 information here that could further limit --

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1 THE COURT: Okay.
2 MR. MCMAHON: -- at least --
3 THE COURT: But let me see.
5 MR. STULL: Thank you, Your Honor. I'm sorry.
6 THE COURT: Is there anything that this witness can
7 testify to as to any -- anything that might be relevant to the
8 incident two days later?
9 MR. STULL: Yes.
10 THE COURT: Well -- and don't start -- what you have
11 been doing when I've asked you that, is you give me a long --
13 THE COURT: -- speech about things that have nothing
14 to do with this person's testimony or ability to testify. So
15 what can he say that adds to that?
16 MR. STULL: Your Honor, referencing even the drawing
17 there, there is an arch. On Sunday night there was an arch.
18 On Wednes -- today there would be an arch. This gentleman
19 expresses that he has -- his pulse has increased. My pulse
20 increasing to a certain point because the adrenaline mechanism
21 could be lethal for me. And that --
22 THE COURT: He has not testified to that.
23 MR. STULL: I'm testifying that.
24 THE COURT: I am -- no.
25 MR. STULL: I'm informing you that.

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1 THE COURT: This is a 104 hearing, so I want to know
2 what he can testify to.
3 MR. STULL: That there's a -- that there's an arch.
4 THE COURT: Well, his arch is within the range of
5 normal.
6 MR. STULL: I'm not normal.
7 THE COURT: It's nothing where -- lethal.
8 MR. STULL: My condition doesn't even come in his
9 drop box.
10 THE COURT: Well, if he can't testify to it, we
11 shouldn't --
12 MR. STULL: He can testify to the fact --
13 THE COURT: -- have him here under subpoena. And we
14 are not --
15 MR. STULL: Your Honor, he can't testify --
16 THE COURT: -- going to go over the same thing --
17 MR. STULL: He can testify --
18 THE COURT: -- in front of the jury.
19 MR. STULL: -- that I was taken to the emergency room
20 at Emanuel Hospital night because he responded as a paramedic.
21 He can also testify that between the timecode on the right
22 there for no other reason, because I was -- he says I was
23 lucid. I have no idea. We never got those for the fact that I
24 was -- he might have been interviewing me, interrogating me. I
25 woke up in the hospital emergency department as far as my

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1 recollection of Sunday night. So I don't know what --
2 THE COURT: And so --
3 MR. STULL: -- part even on Wednesday that I might
4 have missed if I -- but I think from watching the video there
5 are some points that show that I clearly skipped. But I want
6 to show that I have a medical condition. I reach -- I was
7 requested central pain syndrome transportation by this
8 gentleman here and his colleague. Instead, I got his
9 impression, which isn't my conditions, and I went to the
10 emergency room where I got my condition, which I have Emanuel
11 Hospital -- I was there Friday --
12 THE COURT: Okay.
13 MR. STULL: -- and I was here -- there Sunday, and I
14 didn't get there Wednesday. And when they sicken me -- I'm ill
15 right now. If they sicken me, it could kill me. And we know
16 that from the event that took place at the same hospital four
17 years ago or five -- in November of 2000 -- 2011, 175 beats a
18 minute, 90 on the Broadway Bridge. I was there involved --
19 THE COURT: He's not going to testify to that.
20 MR. STULL: No, he's going to testify about that.
21 MR. MCMAHON: I have --
22 THE COURT: He has nothing to say that is relevant to
23 the events of November 24th.
24 MR. STULL: Your Honor, they are --
25 THE COURT: I will release him from his subpoena, and

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1 we will not have his testimony.
3 THE COURT: He can't say anything that is relevant to
4 the incident involved here. So, now, I'm ruling. And when
5 I've ruled, it's not the time that begins the argument. It's
6 the time that ends it.
7 MR. STULL: My objection for the record, Your Honor,
8 is my choice of evils defense depends on my medical condition
9 at the time. The relevant --
10 THE COURT: On the 24th.
11 MR. STULL: On the 25th, that morning.
12 THE COURT: Or the 25th, whatever. But certainly not
13 on the --
14 MR. STULL: And what I'm saying --
15 THE COURT: -- on the -- on this earlier incident,
16 so --
17 MR. STULL: And on -- I'm telling about -- the
18 charges I'm here -- I'm only here, Your Honor, and everything
19 I'm doing here, Your Honor, is to defend myself against the
20 charges on November 25th, 2015. And any misinterpretation of
21 my role here, as a pro se litigant, is none different than my
22 requesting central pain syndrome transportation and him
23 thinking I am having a psychotic episode. So please allow me
24 to be who I am while I'm here. I know why I'm here. I'm here
25 to say, State vs. Matthews is specifically on point, and Mister

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1 -- I can't even remember his name I'm so sick. Mr. Kelley has
2 provided me, as my legal advisor, the case right here.
3 And I'm going to just speak from memory because I
4 don't have much time to say this. The window of relevancy
5 expands under the choice of evils defense. And it's
6 specifically on point. And I would like the Court to at least
7 review that. Because I never got to say, the reason I'm
8 presenting these documents as my medical records, and having
9 this gentleman show that there's an arch with my heartrate,
10 which we all know. There's no -- there's no issue with
11 discovery.
12 The only thing we have on him is -- he has a
13 different printout of -- I don't even know where he got his.
14 But my pages are numbered page 1 -- at 15 I got them, I
15 believe, from my previous legal advisor, which is not a firm
16 that I'm currently dealing with. But I got that document as
17 part of the discovery process. I believe it was subpoenaed. I
18 believe I have the documentation for that on me.
19 But that's not the point. The point is, I have a
20 condition. And my condition is something that was worsened,
21 and it gets into my mental state. It gets to my choice to tear
22 up the police car. All those things are under the relevancy
23 test set out, I believe by --
24 THE COURT: I have ruled.
25 MR. STULL: -- Mr. Kelley, by Johnson -- Lee

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1 Johnson's opinion here?
2 THE COURT: We are going to move on.
3 MR. STULL: Can you give me the case cite on that?
4 For the record --
5 THE COURT: Thank you for your attendance.
6 MR. STULL: For the record, please --
7 MR. MCMAHON: And, Your Honor, I would raise the same
8 104 motion with Mister -- and I'm sorry, I'm forgetting your
9 name.
10 THE WITNESS: A.J. Johnson.
11 MR. MCMAHON: Beutler. Beutler, sorry --
12 Mr. Beutler's was called. A.J. Johnson was also with AMR.
13 He's also been subpoenaed. I'd raise the same argument. I
14 don't know if we need to have him in here and do the whole
15 thing over again. But unless Mr. Stull can make a showing of
16 additional relevance, I think there's Mister --
17 THE COURT: Does he have different testimony?
18 MR. STULL: Who -- who --
19 THE COURT: No, he's -- he's --
20 MR. STULL: I'm not -- I have to clarify because one
21 of the two arrived at the door first and made interaction.
22 BY MR. STULL:
23 Q I believe it was your partner on there, wasn't it?
24 A No, in the reverse. With me and my -- I'm the
25 primary. Your house --

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1 Q No, the first contact.
2 A -- was on the left.
3 Q The first contact --
4 A Yeah, it was the left --
5 Q The first contact at that address?
6 A Was with me, yes.
7 Q Okay. Who called the police?
8 A My partner did --
9 Q Okay.
10 A -- because I was interacting with you.
11 MR. MCMAHON: And, again, Your Honor, any --
12 MR. STULL: So, then, I need to talk to his partner
13 because he called --
14 THE COURT: Well, what does he have to offer that's
15 any different than what we've just heard?
16 MR. STULL: He called the police.
17 THE COURT: Well, that is not relevant.
18 MR. STULL: How long -- please, sir.
19 THE COURT: No, no. Talk to me.
20 MR. STULL: I --
21 THE COURT: What is the -- that isn't relevant.
22 MR. STULL: The relevancy, Your --
23 THE COURT: What else can he testify to, the other --
24 MR. STULL: This fellow --
25 THE COURT: -- the other --

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1 MR. STULL: -- and his partner,
2 THE COURT: -- the other witness? Yeah.
3 MR. STULL: -- they can testify that they arrived by
4 an -- Your Honor, please, I'm going to say this in one
5 sentence. I requested emergency transport for central pain,
6 did not receive that transport upon arrival for some number of
7 25 minutes, and the police were called. They were there. The
8 Fire Bureau were called. They were there.
9 This gentleman was called. I want to know why the
10 police were called, and why calling the police delayed my
11 medical transportation, and nobody called Emanuel Hospital and
12 said, "Hey, was this guy there just for central pain syndrome,
13 like his exit -- exit document he has -- I have in my hand as
14 I'm making this call?" I got police preventing me from having
15 ambulance transport, and they gave me a drug. My pulse went up
16 even under those circumstances. And I knew all that when I
17 called 9-1-1. I just wanted to simply not die. I'm --
18 THE WITNESS: Your Honor, I can answer that question,
19 if he really wants to know.
20 THE COURT: Go ahead. Sure.
21 BY MR. STULL:
22 Q Time --
23 A So --
24 Q You said the timeline.
25 A So the reason why your transport took so long --

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1 Q Yes.
2 A -- it was for our safety. Okay? You came out of
3 your house hot and heavy trying to get in the back of the
4 ambulance without permission to do so. You were trying to get
5 into our ambulance without permission. We locked the doors to
6 the ambulance while we were both outside of it because we
7 didn't want you to get into the ambulance. And you became very
8 aggressive with us. You kicked our monitor. We were not
9 putting you in the back of the ambulance aggressive. So that's
10 when the police were called and the fire department showed up.
11 We restrained you chemically and secured you to a gurney. The
12 reason why your information, maybe your history, isn't complete
13 is because we were trying to keep you alive, and make sure that
14 you weren't going to hurt anybody, including myself. I'm not
15 going to be going through your bag when I have a fear of you
16 hurting me in the back of my own ambulance. Is that
17 understood?
18 Q Did I just say to you --
19 A You were taken to the hospital. You were secured to
20 an ER gurney where you continued to be unruly with the doctor.
21 The doctor couldn't even assess you. I was there, standing
22 there, listening to the whole thing.
23 Q Yes, and while --
24 A And you were discharged because you were being so
25 unruly that you would not be assessed. All --

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1 Q Let's --
2 A -- you kept saying is, "I'll see you in court."
3 That's all you kept saying.
4 Q To you?
5 A To everybody in the room.
6 Q Are you in court right now? Do you see me?
7 A Yes.
8 MR. MCMAHON: Objection, Your Honor. We're
9 clearly --
10 THE COURT: Okay. I think that we are --
12 THE COURT: -- clear here.
13 MR. STULL: Your Honor, have you read he Mathews
14 case?
15 THE COURT: If the other gentleman doesn't have any
16 different --
17 MR. STULL: He --
18 THE COURT: -- or more relevant evidence --
19 MR. STULL: The relevancy is --
20 THE COURT: -- then --
21 MR. STULL: -- I didn't call the police. I called
22 the ambulance. They called the police. The police were on the
23 scene for some 15 minutes --
24 THE COURT: I mean --
25 MR. STULL: -- before they drugged me.

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1 THE COURT: I mean relevant to the incident that
2 calls you here as a defendant.
3 MR. STULL: I was treated --
4 THE COURT: This has --
5 MR. STULL: His version --
6 THE COURT: And I'm trying to tell you --
7 MR. STULL: -- it's all hearsay, Your Honor.
8 THE COURT: -- this testimony --
10 THE COURT: -- would not help you before the jury.
11 MR. STULL: It certainly would, because you haven't
12 heard my testimony. And that's why I'm here. Your Honor, the
13 scope, if --
14 THE COURT: You may -- you may be excused.
16 THE COURT: You don't have to be here.
17 MR. STULL: I want to enter into evidence that as an
18 exhibit. That document the gentleman has in his hand, page 1
19 of -- through -- 1 of 15 --
20 THE COURT: You can give it to my clerk if --
21 THE WITNESS: This?
22 THE COURT: What he gave you, you can give to the
23 clerk.
24 MR. STULL: Exactly what I gave --
25 THE COURT: You take your own things.

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1 THE WITNESS: Oh, I'm sorry. I have the subpoena
2 information through --
3 THE COURT: Oh, the subpoena. Okay. Whatever --
4 MR. STULL: It's got a --
5 THE COURT: Was there -- was there an exhibit that
6 you handed him?
7 THE WITNESS: I brought in my own --
8 MR. STULL: I -- I --
9 THE WITNESS: -- my own copy of the chart.
10 THE COURT: Okay.
11 THE WITNESS: This is his copy of the chart he handed
12 me.
13 THE COURT: Okay. That's --
14 MR. STULL: I want --
15 THE COURT: The -- this copy we'll have as a Court
16 exhibit if you'd like.
17 THE WITNESS: His copy. Okay. It says that --
18 MR. MCMAHON: And just for the record, Your Honor,
19 the State --
20 THE WITNESS: Does this go to his lawyer?
21 THE CLERK: Yeah, that's the copy the backups came in
22 that I --
23 THE COURT: Yeah.
25 MR. MCMAHON: Your Honor, just for the record, the

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1 State would object.
3 THE WITNESS: He's -- it's over by the lawyer.
4 THE COURT: Oh, okay. Well, he's released from his
5 subpoena. I'm releasing him.
7 MR. STULL: I have every argument that I would do to
8 do this process if I could just go through the process. I have
9 everything and I'm not being heard by this Court. I'll make
10 that on the record. I am not being heard by this Court. To
11 dismiss a witness before I'm even to the point?
12 (Court/bailiff confer.)
13 THE COURT: Well, I don't --
14 THE WITNESS: I'm sorry, Your Honor, that is --
16 THE WITNESS: -- compensation for being subpoenaed
17 here today and yesterday.
19 THE WITNESS: And so it's required to be filled out
20 by the attorney.
21 THE COURT: Do you have -- there isn't an attorney.
22 I'm not sure he's going to fill it out.
23 MR. KELLEY: I'm prepared to address that, Your
24 Honor.
25 THE WITNESS: Okay. So I should hand it to --

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1 MR. STULL: My legal advisor, Mr. Kelley, would --
2 THE COURT: Oh, he would? Okay.
3 MR. STULL: -- like to address that.
4 MR. KELLEY: I'm prepared to do that. Yep.
5 THE COURT: He'll take care of it, then.
6 MR. STULL: The only thing -- the only thing I'd like
7 to do, sir, did you hand anybody here what I gave you?
8 THE WITNESS: Yes.
9 MR. STULL: And may I put a sticker on it, please?
10 THE CLERK: Okay.
11 MR. STULL: And make sure it's the one I gave him.
12 Because I --
13 MR. MCMAHON: Your Honor, I'd also like to -- I'd
14 also like to ask to excuse the other AMR personnel if Mr. Stull
15 can't make any additional proffer of relevant testimony.
16 THE COURT: I have asked a couple of times if the
17 other AMR person has anything different to add. All I have
18 heard is that he will testify to events in which --
19 MR. MCMAHON: Mr. Beutler --
20 THE COURT: -- you were delayed in your transport two
21 days before?
23 THE COURT: You were delayed in your transport two or
24 three days before the event that's relevant, and if he can't
25 tell us anything other than that, that's not going to be an

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1 issue here.
2 MR. STULL: Well, Your Honor --
3 THE COURT: And so I will release him as well.
4 MR. STULL: -- the --
5 MR. MCMAHON: Okay. So, Your Honor, just for the
6 record, that's Mr. Johnson. I'll have him step inside and have
7 him released, and then I'll -- I'll just have one moment with
8 them and I'll let them know what's going on.
9 MR. STULL: Your Honor, I -- I need to request that
10 he please be called. And I certainly didn't have interaction
11 with the emergency room doctor there at Emanuel. I'd just like
12 for you to refer to the chart.
13 THE COURT: But whether you called -- whether they
14 called the police three days before or not is not relevant to
15 the issues in this case.
16 MR. STULL: But what is at issue in this case, Your
17 Honor, is -- I'm sorry, my bag was destroyed or I would simply
18 take my copy of my exit stub from Emanuel Hospital and I would
19 enter that into the record. But my -- that was destroyed when
20 I was in custody, because I had it at City Hall on November
21 25th. And everything I had --
22 THE COURT: That has nothing to do with this witness.
23 What is this witness going to say that has any bearing on what
24 you did at City Hall or what you didn't do at City Hall?
25 MR. STULL: I was sick. You just want me to

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1 overhear, Your Honor. I told you on the record that I was
2 sick. And when I said that I was sick, it was the product of
3 my neuropathy, the pain condition, which we have identified,
4 I've requested transport for on his record, central pain
5 syndrome. That is a legitimate thing.
6 Mr. Kelley, could you please provide us with the
7 National Institute of --
8 MR. KELLEY: Health?
9 MR. STULL: National Institute of Stroke and
10 Neurological disorders, documents that I have given to
11 Mr. McMahon and yourself.
12 MR. KELLEY: I'm not sure which one you're referring
13 to, Mr. Stull.
15 THE COURT: I want you to understand, I am going to
16 quash this other subpoena and release this other gentleman. I
17 have given you several opportunities to tell me what he can --
18 MR. KELLEY: is this the one that you want?
19 MR. STULL: As to the list to the --
20 THE COURT: -- what he specifically can testify to.
21 MR. STULL: I'm sorry, Your Honor. I'm doing three
22 things right now, and I'm only going to do one. So if you let
23 me put a number on this, if Mr. Gibson can do that, I'll get
24 one of the --
25 THE COURT: Mr. Gibson can number it, but I am going

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1 to release him --
2 MR. STULL: I have a sticker.
3 THE COURT: -- and quash his subpoena.
4 MR. STULL: That was -- that was Mr. Jacobs -- what's
5 his name? I'm sorry.
6 MR. MCMAHON: Mr. Johnson. He is present in court,
7 Your Honor. I'd ask --
8 MR. STULL: No, this is the other fellow. I wanted
9 -- I want to get rid the sticker, Your Honor. I want to get
10 this out of your view.
11 THE COURT: Okay.
12 MR. STULL: So if you're not waiting.
13 THE COURT: All right. Well --
14 MR. STULL: I wanted -- I want to do two things. I
15 want to enter this document that he reviewed. That's what his
16 testimony, for the record, was covered.
18 MR. STULL: So just -- I want to get that into -- I
19 want you to move along with your process.
20 THE COURT: All right. Very well.
21 MR. STULL: I want -- I want us to get through it.
23 MR. MCMAHON: Mr. Kelley --
24 MR. KELLEY: Yes.
25 MR. MCMAHON: Okay. So, Your Honor, we're having

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1 Mr. Johnson excused. Mr. Kelley is signing his subpoena sheet
2 to confirm that he was here.
4 MR. MCMAHON: After this, Mr. Johnson will be
5 excused.
6 THE COURT: Okay. Thank you.
7 MR. KELLEY: I think I need to address this.
8 (Advisory attorney/witness confer.)
9 MR. STULL: We're not finished with this gentleman,
10 necessarily. His partner is free to go.
11 THE COURT: No, he is -- we are releasing this
12 gentleman as well. I asked you three times what this gentleman
13 -- at least three times what this gentleman --
14 MR. STULL: Your Honor, I didn't finish with the
15 first time --
16 THE COURT: -- could say that could contribute to --
17 MR. STULL: And I told you.
18 THE COURT: -- understanding what was done or not
19 done on the day in question at City Hall.
20 MR. STULL: I can tell you what was going on. What -
21 -
22 THE COURT: I'm not asking what was done. I'm asking
23 what he can testify as to what was done that day.
24 MR. STULL: Your Honor, if I could speak? We have
25 that exhibit number. Can you please tell me the exhibit number

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1 that I just put on.
2 THE CLERK: 104.
3 MR. STULL: 104.
4 MR. MCMAHON: The State -- just put on record, the
5 State objects to the admission 104 in evidence. It's not
6 relevant.
7 THE COURT: It's -- it's only going to be a court
8 record. It's not --
10 THE COURT: -- going into before the jury.
11 MR. STULL: No, that's fine. That's fine. Your
12 Honor, we're doing this a little backwards, and sorry to say
13 that. But I had hoped to do things forward, which was first to
14 be able to identify the fact that I wanted these witness was
15 because I have already notified that I'm doing a choice of
16 evils defense. That's part of it -- does he know about that?
17 Is that part of the request for jury instructions, that notice
18 was provided?
19 MR. KELLEY: Yes.
20 THE COURT: Everyone knows about that.
21 MR. STULL: Okay. I want to make that clear. And
22 that the scope of relevancy in a case that involves a choice of
23 evils defense is determined by the parameters set out in State
24 vs. Matthews.
25 And could you give us a site on that, please?

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1 MR. KELLEY: Okay.
2 THE COURT: But, sir --
3 MR. STULL: For the record.
4 MR. KELLEY: I'll give it for the record.
5 THE COURT: -- that witness -- neither of those
6 witnesses --
7 MR. STULL: I can do that.
8 THE COURT: -- could tell us anything about anything
9 except that you had an event a few days before in which you
10 asserted that you had central pain syndrome, and they are not
11 verifying that fact. All they --
12 MR. STULL: I --
13 MR. KELLEY: No.
14 THE COURT: -- can tell you -- all they could tell us
15 is what you asserted. What you asserted is not going to come
16 in as any evidence of anything.
17 MR. STULL: No. You're right. I agree. I
18 absolutely agree. And here's where I'm having the problem,
19 Your Honor. This morning is my chance to present my case. And
20 what you're -- I said at the beginning to the jury, black,
21 white, orange, lemon, apple. And if you want to say every time
22 I say orange is a color and I'm saying orange is a fruit, we're
23 never going to be in one agreeance, and you're going to be
24 seeing only what you can see by using orange as a color. And
25 I'm trying to say it's not that orange. It's orange that's a

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1 round ball that's a fruit you can eat. And every time I go
2 through the process, and we saw this gentleman today, he's
3 already telling about my interaction with the emergency room
4 doctor. I was in an agitated state. You think I didn't know
5 that when I called 9-1-1? You think I'm safe in the City of
6 Portland where they shoot people if I go out in an agitated
7 state? Certainly not. And we saw this at City Hall. And we
8 saw how the police responded to me.
9 And I cannot -- because there are so many people with
10 mental illnesses, and even at City Hall, all the people -- I
11 didn't know it at the time, all the other people were there
12 because they had an agenda item on people with mental
13 illnesses. I'm not a person with mental illness. I'm a person
14 with central pain syndrome. And it's -- just in itself, it's a
15 physiology, well-documented by the documents I have here from
16 Dr. Graham, may he rest in peace. He was a qualified expert
17 witness that the -- Oregon courts said that. And so he
18 diagnosed my physiology. And I have a rewired pain relay in my
19 -- spinal cord pain message relay system. And when it's phased
20 with circulating catapults, -- catapult means, adrenaline is
21 how we just say it, that causes a reverberation, and that fires
22 the pain relay off, like it has epileptic seizure, and it
23 cannot be controlled. And I know that it cannot be controlled.
24 And I cannot get medical treatment in Multnomah County, Oregon.
25 Because the policy of Multnomah County, Oregon, is this

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1 gentleman, of course he has some kind of attitude against me
2 that Mr. West has never expressed. There's something going on
3 with that guy where he even diagnosed me as having a psychotic
4 event. I wanted to get in his ambulance? This condition could
5 kill me. Of course, that's why I called 9-1-1 is I wanted to
6 get in his ambulance. But, oh, no, no, they can't do that,
7 because I'm crazy person that they're not --
8 THE COURT: Are there any more Defense witnesses?
9 MR. STULL: I want to call that witness to say that
10 he called the police on me because there's a police in
11 Multnomah County that they cannot transport people. And I knew
12 that on Sunday when I was at the City Hall where they also
13 effected that same policy. The Portland --
14 THE COURT: Who is your next witness?
15 MR. STULL: Mr. Johnson.
16 THE COURT: And Mr. Johnson --
17 MR. STULL: Or Beutler. He --
18 MR. MCMAHON: Mr. Johnson was -- they were both
19 excused, Your Honor. They were both of the excused witnesses,
20 Your Honor.
21 THE COURT: Oh, the other paramedic. Well, he's --
22 MR. STULL: And so -- so can we --
23 THE COURT: He's not -- that --
24 MR. STULL: For the same reason --
25 THE COURT: That testimony does -- he's gone.

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1 MR. STULL: Okay. Here's what I'm saying, Your
2 Honor, for the record.
3 THE COURT: And I gave you plenty of chances to tell
4 me what was relevant. You still haven't said anything --
5 MR. STULL: I didn't even get --
6 THE COURT: -- which was relevant --
7 MR. STULL: I've got all the reasons -- if medical --
8 THE COURT: -- to the events --
9 MR. STULL: -- information comes in and I can say it.
10 THE COURT: Okay. If you talk over me --
11 MR. STULL: Yeah.
12 THE COURT: -- you'll never get anywhere.
13 MR. STULL: Yeah, well --
14 THE COURT: So please listen.
15 MR. STULL: I will listen to you.
16 THE COURT: I want to know who your next -- if you
17 have another witness --
18 MR. STULL: I --
19 THE COURT: -- out in the hall, we will discuss that.
20 If you do not, and you simply want to testify, we will get the
21 jury back and you can testify.
23 THE COURT: But right now we're not doing anything
24 that is relevant to anything. We're not --
25 MR. STULL: Yes --

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1 THE COURT: -- going to persuade you.
2 MR. STULL: -- we are. We're preserving --
3 THE COURT: No, no.
4 MR. STULL: We're preserving my arguments --
5 THE COURT: I'm not going to -- listen.
6 MR. STULL: -- for appeal.
7 THE COURT: Listen to me. Listen to me. I have
8 certain rules. We have certain procedures. We have certain
9 steps in the case. Right now --
10 MR. STULL: My arguments of why this --
11 THE COURT: You are -- this isn't the time for you to
12 make an argument.
13 MR. STULL: I get to reserve it for appeal.
14 THE COURT: The appeal is pre -- your appeal is
15 preserved because you have made your offer of proof.
16 MR. STULL: I have not --
17 THE COURT: I have asked you --
18 MR. STULL: I have not --
19 THE COURT: No, and the argument is not necessary to
20 preserve it on appeal. You have already asserted that it is
21 relevant to your choice of evils defense, and you have made a
22 presentation of what you expect the evidence to be, and I have
23 ruled, and that is a complete record for the purposes of
24 appeal.

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1 THE COURT: And what you have argued --
2 MR. STULL: -- I --
3 THE COURT: -- has been your case.
4 MR. STULL: No, Your Honor.
5 THE COURT: You have argued about facts that this
6 witness wasn't going to testify to, nobody was going to testify
7 except for you. And it is not relevant --
8 MR. STULL: Your Honor, that's not --
9 THE COURT: -- to the admissibility --
10 MR. STULL: That's not a fair --
11 THE COURT: -- of that witness.
12 MR. STULL: -- assessment. I can't testify about the
13 EKG.
14 THE COURT: That's true.
15 MR. STULL: Okay. Your Honor --
16 THE COURT: And his testimony was that the EKG was
17 normal.
18 MR. STULL: No, he said it had -- what was his word?
19 THE COURT: Artifacts.
20 MR. STULL: Yes.
21 THE COURT: An artifact is not a medical abnormality.
22 It just means that the -- and he explained that, that the
23 measuring simply reflected the fact that you were moving around
24 on the table.
25 MR. STULL: Your Honor, I'm saying it showed a rise

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1 pulse. I never even got to --
2 THE COURT: A rise in pulse within a normal range.
3 MR. STULL: For a person that doesn't have central
4 pain syndrome. It's a neurological condition, Your Honor. And
5 then --
6 THE COURT: I am not going to argue this further.
7 I've asked you three times, do you have another witness?
8 MR. STULL: Your Honor, I'm trying to do the choice
9 of evils --
10 THE COURT: Yes or no?
11 MR. STULL: I do.
12 THE COURT: Do you have another witness?
13 MR. STULL: I don't know if she's available. But for
14 the purposes of the record, I will at least say I have -- the
15 Oregon Evidence Code citations in my hand about how this --
16 THE COURT: Call --
17 MR. STULL: -- how this witness' and everything
18 that --
19 THE COURT: -- another witness.
20 MR. STULL: Your Honor, for the record, please, give
21 me a chance to even say that you won't let me say it. I'm
22 saying to --
23 THE COURT: This is not the time to argue something
24 which I have already ruled on.
25 MR. STULL: The time to argue was before you disposed

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1 of it. That's when -- that's what I'm saying. You never gave
2 me the chance to give you the legal framework. Are you
3 familiar with State vs. Matthews? If you don't, you don't have
4 the scope of the relevancy to say that this isn't irrelevant --
5 this isn't relevant. I know the case law. I am not a -- I am
6 well informed. I am not a fool. I know why I'm doing this. I
7 know how I am doing this. I know why I have this piece of
8 paper in my hand. I know why I can say Lee Johnson is the --
9 is the author of the opinion in State vs. Matthews. I know all
10 this --
11 MR. KELLEY: The citation --
12 MR. STULL: -- stuff. And can we take a morning
13 break for -- at least?
14 THE COURT: I understand -- I understand --
15 MR. STULL: Okay. So --
16 THE COURT: -- what the defense of choice of evils
17 consists of, and the relevance of the things that tend to show
18 it either exists or not. Nothing that you have presented
19 through that witness was relevant to a choice of evils.
20 MR. STULL: You're wrong.
21 THE COURT: Nothing that you told me that you were
22 going to present through the other witness was relevant to a
23 choice of evils. I ruled. That witness is now gone.
24 MR. STULL: Yes, but what is still not into the
25 record -- and I'll let it go at this.

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1 THE COURT: And we've had the jury back there for
2 over an hour.
3 MR. STULL: Your Honor, under Oregon Evidence Code
4 803, subsection 3, the then existing mental, emotional, or
5 physical condition is relevant. The records of -- I can't read
6 your handwriting, sir. Oregon Evidence Code 803(6) is the one
7 I'm citing into the record. I'm also going to say, these are
8 relevant because my disability was the same on November 22nd,
9 2015 as recorded by AMR as it was at City Hall three days
10 later. And I will also say that their testimony shows that
11 there's a crack in the practice in the City of Portland, and
12 through AMR, which the other witnesses have testified, it's the
13 only ambulance service available, that even if there is a bank
14 robber, they can get medical treatment. But Barry Joe Stull
15 can't because it isn't safe in a room full of --
16 THE COURT: You are turning and talking to the
17 gallery. That's --
19 THE COURT: You're making a speech to the gallery.
20 MR. STULL: I will cite State vs. Matthews, it's 30
21 Or.App. 1133. The opinion was written by --
22 Court of Appeals?
23 MR. KELLEY: Yes, 1977.
24 MR. STULL: 19 -- Lee Johnson, 1977. Thank you. I'm
25 finished with that.

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1 My next witness is Correction Deputy Regehr.
2 MR. KELLEY: She needs to be called. She's working.
3 THE COURT: Do we need a 104 for this?
4 MR. MCMAHON: I think we do, Your Honor.
5 MR. STULL: Okay. So let me --
6 THE COURT: Well, let's discuss -- if we have a 104,
7 are we just going to have to go through this whole march again?
8 Because it's not saving us any time.
9 MR. MCMAHON: I know. Well, and it's -- and I think
10 the problem is that if this happened in front of a jury, I
11 think -- I don't think it's proper for this to happen in front
12 of jury. I would ask that Mr. Stull make a proffer as to the
13 relevant testimony he intends to elicit from this witness.
14 MR. STULL: Sure.
15 MR. MCMAHON: The Court can determine if there's a
16 relevant -- if there is relevancy and we can proceed on.
17 THE COURT: Okay.
18 MR. MCMAHON: If there's question --
19 THE COURT: Let's do it that way.
21 THE COURT: So what is the -- what's the proffer?
22 What do you propose to show through the witness?
23 MR. STULL: Your Honor, the witness -- I need some
24 water. Sorry. Excuse me, Your Honor. I'll -- the witness,
25 Corrections Deputy Regehr, is Multnomah County Sheriff's

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1 employee, who knows the difference between me when I'm ill and
2 me when I'm not. She knows that prior to my going to request
3 medical transport at City Hall by going through the Office of
4 Neighborhood involvement, that there was an event at which
5 Corrections Deputy Wood described, or having talked about and
6 laughing about, at the Justice Center, I misspoke at one point
7 on the -- on my rant at City Council as part of the videos,
8 that it was the Justice Center Jail, and it was actually the
9 entrance -- Third Avenue entrance where there is a event with a
10 couple of the facilities securities officers that responded
11 with Mr. Regehr and a lot of her colleagues, all armed. And I
12 deescalated the situation, and then it worked out fine and
13 we're all friends.
14 So I want to show that I have the ability to
15 deescalate a very intense situation that involved facility --
16 facility's security officers putting their hands on me, and my
17 getting the better of the situation. Which resulted in the
18 armed guards responding -- or armed corrections deputies, like
19 we have at the Christmas transport, and Ms. Regehr was one on
20 the scene that I said, "I'm going to talk to one person." And
21 I chose her. And because I talked to one person, there wasn't
22 a conflict of orders such as, "Don't move. Put your hands up."
23 There's two police officers, some of them -- one of them right
24 to shoot. And what we have at City Council, by the way, while
25 we're on that, is conflicting demands on me by Officer Engstrom

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1 that I received from a security, Mr. Axthelm.
2 But what must -- what Ms. Regehr can attest to, is
3 she knows the difference between me when I'm well and when I'm
4 sick. And when I'm sick, people think I'm a danger. And every
5 time they try to do something about that, I get the better
6 hand. And I don't do that because I know how to deescalate and
7 I could have deescalated any situation at City Hall the
8 following day had I not been treated as somebody who came to
9 talk to about a condition that nobody even knows about. So I'm
10 calling that witness, Your Honor, to show that I have the skill
11 to know how to handle a crowd when I have a disability by
12 saying to a crowd of professionals wearing guns, I can only
13 talk to one of you at a time. And if I am able to talk to one
14 of them at a time, we can all come to one peaceful resolution,
15 and we did that less than 24 hours before my arrest at City
16 Hall. I never got the chance to do it at City Hall.
17 MR. MCMAHON: And, Your Honor, general character
18 evidence, if the Defendant chooses to open the door, is
19 admissible. However, if it's -- that testimony is going to one
20 specific instance. Specific incidences of conduct are not
21 admissible, and I would object to the fact that he cannot admit
22 that testimony.
23 THE COURT: Well, that's -- that is definitely the
24 case. That a specific instance of conduct is not admissible --
25 let's see --

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1 MR. MCMAHON: Oh, Mr. Stull, do you intend to offer
2 anything else?
3 THE COURT: -- that tend to tell character evidence
4 and --
5 MR. STULL: Oh, no, no, it's not specific.
6 THE COURT: -- and character evidence is, also, not
7 admissible. Let's see.
9 MR. STULL: No, Your Honor, it's not. It's my
10 reputation of character. The reason I selected her was because
11 she -- and I had -- we're familiar with each other, and I
12 actually said on the --
13 THE COURT: Yeah.
14 MR. STULL: -- video --
15 THE COURT: 404 --
16 MR. STULL: -- that -- I said that, "You know what I
17 could do," because she did know what I could do. And one of
18 the things she knew I could -- what I could do was to resolve
19 the situation, and I did. So it's my reputation, and it's an
20 ongoing reputation, Your Honor. I spoke with her yesterday,
21 and she said that she remembered the incident without my
22 prompting her. And -- and I have -- I have a skill set, Your
23 Honor.
25 MR. STULL: She's going to offer opinion testimony

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1 for reputation.
2 THE COURT: Well, evidence of a person's character or
3 trait of character is admissible when it is an essential
4 element of a charged claim or defense. I don't perceive that
5 to be the case here. Evidence of a person's character is not
6 admissible for the purpose of proving that the person acted in
7 conformity therewith on a particular occasion, except evidence
8 of a pertinent trait or character offered by an accused or by
9 the prosecution to reflect the same. What makes the character
10 pertinent is an issue such as a question of in a situation
11 where character for aggression is pertinent to the defense of
12 who was the -- who struck the first blow in a mutual combat.
13 Or by the prosecution to rebut the same, or evidence of the
14 character trait of peaceful of the -- of the victim offered by
15 the prosecution to rebut evidence that the victim was the first
16 aggressor.
17 MR. MCMAHON: Well, Your Honor, if he wants --
18 MR. STULL: We would submit, Your Honor --
19 THE COURT: And, furthermore -- yeah. Yeah.
20 MR. MCMAHON: If he wants to open the door and have a
21 correction -- the corrections deputy just talk about his
22 reputation very generally, I think there is maybe -- if I
23 understand him correctly, he's saying it goes to
24 aggressiveness, which might be dealing with resisting arrest or
25 attempt to assault a public safety officer. If he wants to put

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1 a corrections officer or deputy on the stand and ask her about
2 his reputation within the courthouse, on his shoulders be it.
3 I think if he can't -- what he can't do is go into specific
4 definitions --
5 THE COURT: Yeah. I was just going to continue --
6 MR. MCMAHON: -- and instances.
7 THE COURT: -- so that we all are on the same page.
9 THE COURT: I'm still reading from 404(3). Evidence
10 of other crimes, wrongs, or acts -- evidence of other acts is
11 not admissible to prove the character of a person in order to
12 show that the person acted in conformity therewith. It may,
13 however, be admissible for other purposes such as proof of
14 motive, opportunity, intent, preparation, plan, knowledge,
15 identity, or absence of mistake or accident. None of which
16 seem to apply. And where character is -- in all case -- Rule
17 405. In all cases in which evidence of character or a trait of
18 character of a person is admissible, proof may be made by
19 testimony as to reputation, or by testimony in the form of
20 opinion. In other words, it cannot be proved by a particular
21 act or a particular instance. So even -- character witness --
22 of a character witness for -- I'm not sure what this is a
23 character trait of, but --
24 MR. STULL: Intent. It's going to show intent for --
25 THE COURT: No, no. It --

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1 MR. STULL: But that's the --
2 THE COURT: This does not show intent. Character --
3 this is a particular act, and that act does not show your
4 intent or anybody else's intent at a later time.
5 MR. STULL: Well -- yeah.
6 THE COURT: But --
7 MR. STULL: Go ahead, Your Honor.
8 THE COURT: -- in all cases in which evidence of
9 character or trait of character is admissible, proof may be
10 made by testimony as to reputation or testimony in the form of
11 opinion. In other words, you can ask the witness, "Do you have
12 an opinion about whether this person is truthful?" Because
13 truthfulness can be shown by character witnesses and character
14 for truthfulness can be show -- or untruthfulness can be shown
15 by way of impeachment. So -- and truthfulness character can be
16 shown by way of a response to impeachment. But if that were
17 admissible at all, it could only be, "Do you have an opinion
18 concerning the character for one thing," or do you --
20 THE COURT: -- have a reputation --
22 THE COURT: -- for that case.
23 MR. STULL: -- Your Honor, I would say even -- even
24 regarding that, that specific incident, that we're not getting
25 -- you'll be the gatekeeper on that to see that it happens.

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1 But, Your Honor, well, I'll --
3 MR. STULL: And 404, sub 4, Your Honor, special rule
4 for criminal defendants. In criminal actions, evidence of
5 other crimes as long as long as you're --
7 MR. STULL: 404 -- yes. It's -- I believe she just
8 read that.
9 THE COURT: If relevant --
10 MR. STULL: If relevant.
11 THE COURT: -- except as provided --
13 THE COURT: -- and so forth.
14 MR. STULL: And -- oh, yeah. I'm sorry.
15 THE COURT: So --
16 MR. STULL: The trait -- the trait, Your Honor, is
17 one --
18 THE COURT: So the question is whether it's relevant.
19 MR. STULL: -- of not being -- having the impression
20 of being aggressive when my -- and the reputation, you know,
21 people think I'm the bad guy, and it shows out there I'm really
22 not at all. And so -- so if we can have a -- if we can have a
23 reputation for truthfulness or not, we should be able to have
24 one for peaceful or not. And --
25 THE COURT: No, those -- that doesn't follow.

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1 MR. STULL: Versus aggression. The intent to --
2 THE COURT: Aggression only if --
3 MR. STULL: The intent to hurt people or not.
4 THE COURT: -- there's a -- there's a mutual combat,
5 and the question is --
6 MR. STULL: Right.
7 THE COURT: -- who initiated it.
8 MR. STULL: Right.
9 THE COURT: We don't have that here, because we have
10 -- the crimes that are asserted, assault --
11 MR. STULL: Right. Right.
12 THE COURT: -- attempted assault --
14 THE COURT: -- on a police officer --
15 MR. STULL: Right. Right. It has to do with my --
16 Your Honor, my -- my defense, and you haven't gotten my
17 testimony, it will show -- I've been certainly talking a lot
18 about my -- the point is, Your Honor, that less than 24 hours
19 later I was able to deescalate a situation where we have -- an
20 equivalent to this young man here saying about what happened in
21 the emergency department. And I know what happened at the
22 emergency department. One, I was drugged with a drug and I was
23 treated with the same thing that the guy wrote two days
24 earlier. It was the same fellow. So the ambulance attendant
25 was long gone by I ever got to the state where I could actually

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1 be -- you know, it was the treatment that I got that got me to
2 the state where I was a good fellow he delivered. And he -- I
3 certainly wasn't the fellow he picked up.
4 So I want this lady to say that I have a skill set.
5 And my skillset includes, as a coping mechanism for my
6 disability, the ability to say, "One person at a time," and I
7 can do that. And if I can do that, everything would be
8 resolved. I have the ability to only -- not only escalate, I
9 have the ability to deescalate. And I get right up to the line
10 to protect my -- my civil rights and other people's civil
11 rights. And I have the ability to back off of that line. And
12 I don't think I had that at the time of the arrest the next
13 time with the man that's handling it when I wasn't under
14 arrest, as he testified himself. So I just want -- this gentle
15 -- lady, with her gun and uniform, to come on in her. She's
16 transported me in shackles and she has walked -- I walked up
17 the staircase past her yesterday. So she gets to testify to
18 whether she's afraid of me, and how -- just her opinion about
19 me as an aggressor.
20 And that's all, Your Honor. Whether you want to let
21 her go or not, I can't do anything more. I've said everything
22 I can.
23 MR. MCMAHON: If he wants to offer her for the
24 limited purpose of his aggressiveness, the State will object --
25 the State would object to any -- to him going into, at all, any

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1 specific details saying, "Well, isn't it true I deescalated,"
2 or, "Isn't it true I did X, Y, and Z?" You can just ask her
3 about her general character, and not about the specific
4 instance when he inquires. And I would object to him using any
5 reference to that in any argument. What he can't do is put her
6 up there and be like, "Well, guess what, 24 hours before I
7 talked to her I deescalated a situation similar at City Hall."
8 So if he wants to talk about general character of
9 aggressiveness, State won't object to that.
10 MR. STULL: That's exactly --
11 MR. MCMAHON: Anytime he crosses the line --
12 THE COURT: Okay.
13 MR. STULL: We're in one agreement, Your Honor.
14 THE COURT: General -- we'll have her, then, only for
15 the general character for aggressiveness.
16 MR. STULL: You want to do it before the jury or
17 are --
18 THE COURT: No, we'll just --
19 MR. MCMAHON: No.
20 THE COURT: He's saying he doesn't have an objection
21 if it's only for that.
22 MR. KELLEY: That witness is working, Your Honor.
23 She's available. She requested if Mr. Gibson can call her at
24 extension 200 when she's needed.
25 MR. STULL: And we know about all of that, Your

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1 Honor.
2 THE COURT: We're -- we can call her. But if she's
3 not here now, we're going to get the jury in and we're going to
4 start with some testimony. We can interrupt testimony to have
5 her when she gets up here.
6 MR. STULL: Okay. Oh, and, Your Honor, we didn't
7 address the -- Dr. Grimm's medical charts. We get to offer it
8 and then they could -- here, let's do this.
10 MR. STULL: For the first part, I have these simple
11 three pages.
13 MR. STULL: And what -- what number are we up to on
14 the --
15 THE CLERK: 105.
16 MR. STULL: -- Defense exhibits?
17 THE CLERK: 1-0-5.
18 THE COURT: Okay. 105.
19 MR. MCMAHON: Mr. Stull, could --
20 THE COURT: Can we -- is there -- is there a
21 stipulation that Dr. Grimm is deceased?
23 THE COURT: Is there?
25 THE COURT: Okay.

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1 MR. MCMAHON: I will stipulate that Dr. Grimm is
2 deceased.
3 MR. STULL: And, Your Honor --
4 (Counsel/clerk discussions.)
5 MR. STULL: And I would allow -- first of all, I have
6 a number of copies. The State has had this document for a
7 while, I believe. Haven't you?
8 MR. MCMAHON: Yeah, I just want to see what --
9 MR. STULL: I'm going to --
10 THE COURT: So is Grimm's -- just Dr. Grimm's?
11 MR. STULL: Well, Your Honor, I think what we should
12 do is -- and Dr. Kolberg. It's not that.
13 THE CLERK: Okay. And if you could staple them
14 together as an exhibit, please.
15 MR. STULL: Oh, I'm going to let Mr. Gibson do it to
16 get this in the proper form.
17 Your Honor, the pages that we have, if I can offer
18 her -- offer to the Court to look at.
19 MR. MCMAHON: And it's my understanding of the
20 Court's ruling, that because he's an unavailable witness and
21 it's medical record, that the Court would admit those
22 documents.
24 MR. MCMAHON: I said, it's my understanding of the
25 Court's pretrial ruling that because it's an unavailable

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1 witness and because it's a medical record the Court was going
2 to admit that single medical record.
3 THE COURT: If there's no -- if there's no dispute
4 about authenticity --
5 MR. STULL: We're in the courtroom, it just occurred
6 to me, Your Honor.
7 THE COURT: -- we'll just go ahead and take it.
8 Okay. It will be admitted.
9 MR. STULL: Your Honor, for the purposes of the jury,
10 I'm -- I would allow you to review it. If you think that
11 there's anything that's potentially of the line of the evidence
12 code for being --
13 MR. KELLEY: It's in.
14 MR. MCMAHON: You're not -- at this point --
15 MR. STULL: It's in?
17 MR. STULL: Okay.
18 THE COURT: Wait a second. What is admissible are
19 contemporaneous observations, I think, when the person was
20 still alive. This is something that was done in 2006 about
21 attending him in 2000 -- in 1980.
22 MR. STULL: No, no, no, it's contemporary. That
23 chart was --
24 THE COURT: Well, wait a second. Wait, wait, wait.
25 MR. STULL: No, Your Honor, I do need to approach.

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1 You have your own copies, so if I could just reference it?
2 What --
4 MR. STULL: What we have is a sketch --
5 THE COURT: I -- no, I -- whether --
6 MR. STULL: -- made at that time. So it was
7 contemporaneous.
8 THE COURT: Made in -- it's dated 2006.
9 MR. STULL: It's date -- oh, Your Honor, the State
10 has already stipulated that this is in. There was no
11 objection.
12 THE COURT: No, it was on the representation that
13 these were his medical records. This isn't medical records.
14 This is a letter --
15 MR. STULL: No, it isn't. It's his chart. It's a
16 chart. It's his chart. It's not a letter. It --
17 THE COURT: I'm sorry.
18 MR. STULL: It's a chart and it says "Pain
19 Management". It's his report. "I attended" -- and then it
20 says "History", and then it gets to examination.
21 MR. MCMAHON: And for the record --
22 MR. STULL: "Ambulatory with much facial hair." And
23 then he goes, "I re-examined his lower back," and that would be
24 on September 28th. And, "See enclosed mapping," which would be
25 the picture, the sketch, and that's all on there. And he says

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1 on the -- his pain management, "Given that stress amplifies his
2 pain," and his proposal, that was all on this date when he
3 certainly was still alive. And then he requested --
4 THE COURT: Yeah.
5 MR. STULL: -- that I -- it's in a document that he
6 requested the attached document from 10/3/2006 that shows,
7 "Severe pain and severe nausea, and patient has successfully,"
8 blah, blah, blah. This is his writing at the time. And those
9 four pages are Exhibit 101. The State offers --
10 MR. MCMAHON: No, the State stipulated to the
11 authenticity.
12 MR. STULL: On the authenticity. I had misspoke.
13 MR. MCMAHON: The Court --
14 MR. STULL: Stull offers.
15 MR. MCMAHON: -- had ruled based on what the Court
16 was aware of, they would be admissible as a prior statement by
17 an unavailable witness because it was a medical record.
18 MR. STULL: It's a medical record.
19 MR. MCMAHON: Apparently -- and I guess my
20 understanding was, I -- apparently, upon finding out the time
21 of the medical record, it's my understanding that the Court is
22 now reviewing that to see if it constitutes a contemporaneous
23 medical record for the purposes of offering it and if it
24 satisfies that foundation for admissibility. And correct me if
25 I'm wrong, Your Honor. I'm just want to make sure we're

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1 getting the -- getting that straight on the record.
2 (Pause.)
3 MR. STULL: Your Honor, it was received without
4 objection.
5 THE COURT: That -- that's -- you know what?
6 MR. MCMAHON: There was an objection in a --
7 THE COURT: It was --
8 MR. MCMAHON: -- pretrial.
9 THE COURT: It was not available at the time we
10 talked about it, and this is not what I understood it to be.
11 And -- and when I look again at the rule, it seems as the
12 though -- the exception I was looking at would be a statement
13 concerning birth, adoption, marriage, divorce, legitimacy of a
14 relationship by blood, adoption, or marriage, ancestry, or
15 similar act of personal and family history. So it would be a
16 statement at or near the time of the transaction by a person, a
17 physician, to know the facts stated therein, acting in the
18 person's professional capacity in the ordinary course of
19 professional conduct, but about those things. A statement
20 concerning the foregoing matters, and death also. About those
21 things, which is not what this is about. And it also is --
22 MR. STULL: It's not --
23 THE COURT: -- clearly not a statement contemporary
24 -- contemporaneously to the time of the transaction. It's a
25 statement 20-some years after.

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1 MR. STULL: No, Your Honor. You can make -- you can
2 excise any part of that that you wish. What I'm seeking to
3 show, and I've already -- I've already been advised by legal
4 advisor, Oregon Evidence Code citation specifically, that if
5 something is more on point than anybody -- anything else that
6 is -- that is reasonably available, then it's in the -- the
7 hearsay exceptions when the witness -- or the declarant is
8 available, and, also, regardless of the declarant being
9 available. And the numbered section of that in the evidence
10 code itself -- I'm not looking at right now. I probably could
11 be if I had a chance to even get set up this morning, but I
12 haven't even opened up my bag and got myself organized. So
13 just speaking, to say that there -- I know the law on this, and
14 it -- it clearly meets the standard of being introduced as
15 evidence. And the only thing I did --
17 MR. STULL: -- Your Honor, this morning, was to point
18 out, if you think that there's anything that's potentially
19 prejudicial, such as saying that my landlord threw out my
20 medical marijuana garden --
21 THE COURT: No, that's --
22 MR. STULL: -- I'll excise that.
23 THE COURT: That's not anything I mentioned.
24 MR. STULL: No, I'm saying, I'm giving you -- Your
25 Honor, I've been kind this morning and given you the

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1 opportunity to clearly review the -- that document to see if
2 there's anything that's potentially so inflammatory, that even
3 though it's a diagnosis of a medical condition, maybe somebody
4 in there would be inflamed to know that I arrived to the
5 appointment by bicycle. Maybe -- I'm just giving you the
6 reason -- the opportunity to screen it for the scope of even if
7 it is relevant, there's a -- sometimes things that are relevant
8 are so prejudicial, it's not fair to the opposing party.
9 THE COURT: Well, it's -- that's -- there's nothing
10 here -- I would not do that. That's not my function.
11 MR. STULL: All right. I was just giving you the
12 opportunity, Your Honor, to review what it says.
13 THE COURT: I've reviewed what it says. I don't see
14 it to be within the exception that I had previously thought
15 that it was. It isn't. But I will -- and so the State has
16 objected to this or not? Because I -- if the State wants to
17 stipulate to medical records, I don't have any problem with
18 that, of course.
19 MR. MCMAHON: And, Your Honor --
20 THE COURT: But I'm also required to enforce the laws
21 of evidence, and I can't make an exception.
22 MR. MCMAHON: And, Your Honor, the State, again,
23 would just raise its objection in pretrial motions, and as to
24 its ruling, it was my understanding it was going to be
25 admitted, the State would renew that objection and would object

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1 to its admission. It is a medical record, but it's a medical
2 record that contains hearsay. And the hearsay rule or
3 exception that applies is statements for the purpose of medical
4 treatment or diagnosis. Now just generally speaking, the
5 Oregon Evidence Code is predicated on a notion of the
6 reliability. And the statements -- and the reason that medical
7 records are considered to be reliable is because people making
8 statement for the treatment of either their own treatment or a
9 relative or someone else's treatment, the -- the reliability is
10 inherent in that because the idea is, listen, they're getting
11 medical treatment; therefore, it would need to be accurate.
12 Because this is a statement by a doctor, not by a
13 patient, it doesn't satisfy that indicia of reliability.
14 There's not a reasonable opportunity to cross-examine on the
15 meaning and inferences within this report. And I think that
16 Mr. Stull, impermissibly, is going to attempt to go beyond the
17 limited confines of this document and comment on this
18 diagnosis. And I think that, you know, using --
20 MR. MCMAHON: -- this to buttress his claims about
21 central pain syndrome without the requisite indicia of
22 reliability is improper, and the document does not satisfy the
23 requirements for a medical record to be admitted.
25 MR. STULL: Your Honor, the stipulation by the State

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1 was not its authenticity. They --
2 MR. MCMAHON: Yes, it was, Mr. Stull.
3 THE COURT: Yes, it was.
4 MR. STULL: Can you correct that?
5 MR. KELLEY: They stipulated to the authenticity of
6 the document.
7 MR. STULL: They've already stipulated to the
8 authenticity of the -- of the document, Your Honor. And --
9 MR. MCMAHON: And, Mr. Stull, authenticity and
10 admission are not the same thing.
11 MR. STULL: Right. So I'm just saying that the
12 announces here isn't on the authenticity, because they
13 stipulated to that. The thing we can do is, we can see if it's
14 admissible, and I'm suggesting that if I could get my info -- I
15 could get a copy of the Oregon Evidence Code in front of me, if
16 I could -- I can't even --
17 THE COURT: I'm sure that there is. Yeah.
18 MR. STULL: Right. There is a specific exception,
19 Your Honor. And as I pointed out on the record once already
20 this morning, that's in the provision of the Oregon Evidence
21 Code that has to do with the exceptions to hearsay. And it's
22 under two of them. There are two in the evidence code. One is
23 whether the declarant is available and the other one is
24 regardless. But the -- but the point of it is, that I'm trying
25 to get the -- I'm trying to get the most -- if we could just

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1 get right to the point that's on point, is that these are the
2 best records available to -- for this particular issue. That
3 -- those documents include the word central pain syndrome. And
4 that's what we want to get into the record. I want the fact
5 that I went to a doctor and he put the word central pain
6 syndrome in as my diagnosis, then I'm satisfied with that. And
7 I would even be satisfied with simply taking this sketch out
8 that has the words central pain syndrome on it.
10 MR. STULL: But -- but the -- I'm not trying to load
11 the -- I won't get into the discussion of what central pain is,
12 or what central pain does, as much as I want to get into the
13 discussion that there is such a thing called central pain
14 syndrome, and it's a neurological condition, and it's --
15 there's nothing on that report about it being a psychiatric
16 condition. And everybody else thinks that it is because they
17 don't know what it is. And it's just not fair. I'm talking
18 about Oregon -- Oregon Evidence Code 803(26), is the -- my --
19 MR. MCMAHON: And with respect to the --
20 MR. STULL: -- legal assistant -- advisor is telling
21 me.
22 MR. MCMAHON: All right. I just want to get a couple
23 things clarified. So, Your Honor, first, with the record of a
24 hearsay exception when a declarant is unavailable, that's 804,
25 and there are special -- specific exceptions, but they are

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1 limited in nature. And it does not appear that this falls
2 under any of those exceptions -- well, I guess, perhaps --
3 except, perhaps, for 804.06. So I guess if Mr. Stull could
4 illuminate us on how it is admissible under 804.06.
5 MR. STULL: Are we saying a residual exception?
6 MR. MCMAHON: Actually, you know what, I'm seeing --
7 THE COURT: No.
8 MR. MCMAHON: -- I'm seeing a case here. And I'm
9 looking at Kirkpatrick. I don't know if Your Honor has
10 Kirkpatrick.
11 THE COURT: I have Kirkpatrick. I don't agree with
12 Kirkpatrick on every possible point. He does not sit on a
13 court which I am aware.
14 MR. MCMAHON: I apologize, Your Honor. I was
15 attempting to provide the Court with some authority. So I'm
16 sorry.
17 MR. KELLEY: Which provision are you looking at,
18 Mr. McMahon?
19 MR. MCMAHON: Page 925, 804.06, sub 3.
20 (Advisory counsel/Defendant confer.)
21 THE COURT: Well, I'm satisfied that 804 doesn't help
22 you. Because the exceptions provided are narrow and --
23 MR. STULL: Oh, this is exactly what I want here.
24 THE COURT: -- relate to -- and the only part that
25 could be pertinent relate to a statement concerning the

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1 declarant's birth, adoption, marriage, divorce, legitimacy,
2 relation by blood or adoption or marriage, ancestry, or other
3 similar fact of personal or family history. And that is
4 804(3)(D) and -- a statement -- (D)(B), a statement concerning
5 the foregoing matters, and death, also, of another person.
6 Well, wait a second, I'm -- (D). No, I think I -- I'm sorry.
7 I'm trying to do this on the fly and --
8 MR. STULL: Your Honor, if I could --
9 THE COURT: -- going down -- wait. Wait.
10 MR. STULL: Excuse me. Yeah.
11 THE COURT: I think I misaligned these. So (E) -- I
12 think I was right the first time. Yeah. The follow are not
13 excluded if the declarant is unavailable as a witness, (E)
14 would be a statement made at or near the time of the
15 transaction by a person in a position to know the facts stated
16 therein, acting in the person's professional capacity and in
17 the ordinary course of professional conduct. So that would
18 cover more than -- than those things. So that is still in
19 play. Now --
20 MR. STULL: Your Honor, if I might point you out to
21 -- I'm looking at law I am familiar with, and I have the actual
22 citation for you here. It's just Rule 803, and it -- at
23 (27)(A), and under A, capital B, a statement is more probative
24 on the point for which it is offered than any other evidence
25 that the proponent can procure through reasonable efforts. And

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1 then it goes on to qualify that, that the general purposes of
2 the Oregon Evidence Code and the interest of justice will best
3 be served by the admission of the statement into evidence.
4 MR. MCMAHON: You know, Your Honor, in the interest
5 of --
6 THE COURT: I don't need to go there.
7 MR. STULL: Okay. Thank you, Your Honor.
8 MR. MCMAHON: In the interest of expediency, if this
9 is the medical document you're going to submit --
10 MR. STULL: Sure.
11 MR. MCMAHON: -- upon further consideration, and
12 reviewing it, and I hear the Court, I'll stipulate to the --
13 THE COURT: Okay.
14 MR. MCMAHON: -- that 1, 2, 3, 4 pages --
15 THE COURT: We're not going to -- we're not going to
16 take in the application from a medical marijuana --
18 THE COURT: -- or the Marijuana Act Program.
19 MR. STULL: So if I could just --
20 THE COURT: So the first three pages.
21 MR. STULL: If I could just touch base with
22 Mr. Gibson.
23 THE COURT: Okay. So the first three pages will come
24 in as Exhibit -- we'll give it a proper exhibit number and a
25 stamp --

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1 (Defendant/clerk discussions.)
2 MR. STULL: And, Your Honor, for the -- for the
3 purposes of the --
4 THE COURT: -- a proper exhibit. So the last page
5 doesn't come in.
6 MR. STULL: -- of the originals --
7 THE COURT: That's just the application.
8 THE CLERK: Yeah, can you give me another copy?
9 MR. STULL: Yeah. Can --
10 THE COURT: Okay.
11 MR. STULL: Can we -- on the record, make sure that the
12 second page, it does say exhibit, can we just put another exhibit
13 sticker to cover that up so it doesn't say Exhibit A or 3 or
14 whatever. And, yeah, cover up that part where it says -- and
15 I'll go ahead and mark that as the same number so we don't --
16 THE CLERK: I got it.
17 MR. STULL: Okay. I just want it covered up so -- on
18 the record, saying that that page -- because that was in
19 another proceeding there.
21 MR. MCMAHON: And just for the record, Your Honor, if
22 Mr. Stull goes beyond the plain text of this document, I
23 reserve the right to raise any exceptions.
24 MR. STULL: No, I'm not even going to be read it.
25 THE COURT: Of course. Of course.

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1 MR. STULL: I'm not even going to read it, Your Honor.
2 (The documents referred to
3 are admitted into evidence
4 as Defense Exhibit 101.)
5 THE COURT: Of course. Fine. And I understand
6 Deputy Regehr is downstairs.
7 MR. KELLEY: She's here.
8 MR. STULL: No, she's right outside already.
9 THE COURT: Oh, she's up here? Okay. Then we can
10 get the jury in.
12 THE COURT: And have her testimony.
13 (Court/clerk discussions.)
15 (Jury in at 10:45 a.m.)
16 MR. MCMAHON: And, Your Honor, just to put on the
17 record, the State does rest. And yesterday's witnesses were
18 the State's final witnesses for its case in chief.
20 MR. STULL: Good morning, Your Honor. The Defense
21 calls Correction Deputy Regehr to the stand. And she's there,
22 so I'll -- Mr. Gibson, please.
24 solemnly swear under penalty of perjury that the testimony you
25 are about to give will the truth, the whole truth, and nothing

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1 but the truth?
2 MS. REGEHR: I do.
3 THE CLERK: Have a seat. State your first and last
4 name, and the spell your name for the record.
5 THE WITNESS: My name is Melissa Regehr;
6 M-e-l-i-s-s-a; last, R-e-g-e-h-r.
7 WHEREUPON,
8 MELISSA REGEHR,
12 BY MR. STULL:
13 Q Could you tell us how you're employed and your training
14 and experience, and those kind of things and --
15 A I've been a Multnomah County corrections deputy for
16 just over 18 years. We do have anywhere between 24 to 40 hours
17 of training every year on different topics, firearm usage, uses
18 of force, mental health, just a variety of stuff.
19 Q How are you currently employed?
20 A Multnomah County Sheriff's Office as a corrections
21 deputy. I work in the jail.
22 Q And, also, other institutions, maybe?
23 A I do work at the courthouse right now, but I do go back
24 and forth between the jail and the courthouse. So I do take
25 people to and from court.

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1 Q And corrections deputies, could you tell us a little
2 bit about the various sheriff employees so we know what a
3 corrections deputy --
4 A Of course.
5 Q -- compared to -- and the fact that court -- you're
6 doing some role on court security as -- not you personally, but
7 the plural you.
8 THE COURT: Let her testify to it.
9 BY MR. STULL:
10 Q Yes, please. But tell us about the security and all
11 the things you know.
12 A Okay. So the difference between with -- within the
13 sheriff's office, there are two divisions; the corrections
14 division and the law enforcement division. Law enforcement
15 division are deputies that work on the outside of buildings.
16 They're more with the public that you see roaming around in their
17 cars. Corrections deputies actually work inside of the jail with
18 custody of inmates, moving inmates to and from court, all within
19 the Justice Center. Or we do have a jail out by the airport
20 called Inverness Jail. We have two. And so you work inside that
21 confines, feeding, walking, questioning -- or asking -- answering
22 questions for inmates, all kinds of tasks happen.
23 Then you also have the ability, as a corrections
24 deputy, to put in for special assignments which are our transport
25 unit, which transports inmates from different counties throughout

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1 the state, or our court services unit, which is what I am in
2 right now. And we basically do court security. We're downstairs
3 when people walk in. We also take inmates to and from court. If
4 there's ever incidences in the courthouse or over at the Justice
5 Center in the lobby area, we will respond to those incidences.
6 Q And could you talk about your knowledge of me? Now,
7 we're going to talk about me. That was you, thank you. And do
8 we know each other?
9 A Yes.
10 Q Okay. And if you could tell how long -- this is --
11 basically, you're here to talk about me a little bit, and
12 whatever my character is.
13 THE COURT: Question. Just ask a question.
14 BY MR. STULL:
15 Q What's my character?
16 A What's your character?
17 THE COURT: I --
18 MR. STULL: Is that misleading?
19 THE COURT: Character for aggression.
20 BY MR. STULL:
21 Q Oh, my character for aggression.
22 A For aggression.
23 Q Right.
24 A Your character for aggression.
25 Q Yeah.

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1 A He does have a little character for aggression, but if
2 you can get him focused and calmed down, he will focus on one
3 individual and pretty much listen to that individual. It
4 depends. It can be a different individual each time, but with my
5 dealings with Mr. Stull, I've noticed that if one individual kind
6 of takes the lead in situations, then he will kind of focus on
7 that individual and listen to what that person is saying to him.
8 A little bit short tempered, but he does listen to -- like I
9 said, if you get one individual into that situation, he will
10 focus on them and answer all their questions and abide by their
11 orders, typically.
12 Q Engage in a dialogue?
13 A Yes, engage in a dialogue, very much so.
14 Q And how things --
15 A And --
16 Q How's that work?
17 A Well, it works good if you can get one individual to
18 engage him. Sometimes it takes a little bit of an effort on our
19 part, or work on our part, and a little bit of time to get
20 engaged with Mr. Stull. Just mainly because sometimes the
21 situations are a little bit ramped up and sometimes there's anger
22 between. So sometimes it takes a little time to calm the
23 situation down, but once -- a few minutes, maybe, will pass when
24 you get that in that situation, and somebody will typically try
25 to take the lead on talking to Mr. Stull, and giving directions

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1 so he can understand -- clear precise directions so he can
2 understand them and it's not coming from all different directions
3 and from different people.
4 Q Seen me well?
5 A Say that again.
6 Q Have you seen me when I'm well?
7 MR. MCMAHON: Objection, Your Honor. We're getting --
8 BY MR. STULL:
9 Q Like now, for example?
10 MR. MCMAHON: -- into specific incidences.
11 THE COURT: I will sustain the objection.
12 MR. STULL: Do you sustain it?
13 THE COURT: Yes.
14 BY MR. STULL:
15 Q Have you seen me when I'm sick?
16 MR. MCMAHON: Again, objection, Your Honor.
17 THE COURT: I think that's the same objection. The
18 same ruling.
19 BY MR. STULL:
20 Q Are you aware I have a medical condition?
21 A Yes.
22 Q Could you tell me about the changes in my behavior, my
23 interactions --
25 ///

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1 BY MR. STULL:
2 Q -- as you -- as you've observed?
3 THE COURT: I'm sustaining this objection.
5 THE COURT: The witness was called for one line of
6 testimony.
7 MR. STULL: Oh, it's just about my -- it had -- my
8 tendency towards aggression.
9 THE COURT: The --
10 MR. STULL: I understand that.
11 THE COURT: The character for aggression.
12 MR. STULL: Right. Right.
13 THE COURT: That's the only subject matter.
14 MR. STULL: That's all I'm saying.
15 BY MR. STULL:
16 Q And have you seen that change over -- first of all,
17 we've known each other for years; is that correct?
18 A Correct.
19 Q I don't know how many, but several?
20 A Correct.
21 Q More than -- well, this --
22 A Probably five or six, maybe seven.
23 Q Okay. All right. And could you tell where we first
24 met, or if you don't remember, because we see each other, right?
25 A It would be probably in the jail or booking is where I

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1 probably met you.
2 Q Maybe 2012?
3 A Maybe -- probably about 2012, maybe, yes.
4 Q All right. Did you know that's still on appeal?
5 A I'm sorry, what?
6 MR. MCMAHON: Objection, Your Honor. That's --
7 MR. STULL: Never mind. I'm sorry. I'm moving on.
8 THE COURT: I -- I'm -- that's stricken.
9 MR. STULL: I don't -- yeah.
10 THE COURT: The jury will disregard.
12 THE COURT: -- these random statements accompanying
13 questions, which is --
14 MR. STULL: No, that's fine.
15 BY MR. STULL:
16 Q And tell me how you seen my tendency toward aggression
17 or not in -- over these periods? Peaks and valleys? What --
18 MR. MCMAHON: Okay. Now, Your Honor, we --
19 THE COURT: Okay.
20 MR. STULL: Whatever --
21 MR. MCMAHON: -- are going into specific instances.
22 MR. STULL: -- she's allowed to testify, Your Honor.
23 THE COURT: I'm sustain -- I'm sustaining the
24 objection. We're not going to talk about specific. We're not
25 going to talk about specific --

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1 MR. STULL: No, no, no. General -- general. If
2 there's any changes. Not a specific date or instant, but if
3 there's change in --
4 THE COURT: If there's a change in general character
5 for aggression, is that what your question is?
6 MR. STULL: I'm trying to just see if there have been
7 episodic or --
8 THE COURT: Over time?
9 MR. MCMAHON: Okay. And here's -- I would object,
10 again, Your Honor, because he's saying epics, like specific
11 instances. He's --
13 MR. MCMAHON: -- going into how it changed from --
14 THE COURT: Okay. We're not going to go into specific
15 instances. It's only going to be about --
16 BY MR. STULL:
17 Q But general periods of time --
18 THE COURT: So --
19 BY MR. STULL:
20 Q -- without a specific event.
21 THE COURT: -- I guess the question is whether there's
22 been a change in his character over time.
23 MR. STULL: Can I ask that question?
24 BY MR. STULL:
25 Q Has there been a change in my character over time?

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1 A Well, at different times you are different behaved.
2 So, yes. So there's not -- not necessarily over time, but it's
3 just at different times when I've dealt with you you've been in
4 different stages, different stages of behavior. Whether or not
5 you're feeling bad or feeling good, that I don't know. From your
6 medical, I don't know medical stuff.
7 Q Yeah. Yeah.
8 A But I do know that your behavior has been different at
9 different times that I've dealt with you, yes.
10 Q Okay. And what's the most aggressive you've seen --
13 MR. MCMAHON: -- he's asking what's the most
14 aggressive.
15 MR. STULL: No, no, I'm saying --
16 MR. MCMAHON: He's going into specific instances.
17 BY MR. STULL:
18 Q More aggressive, less aggressive, what's my level of
19 being aggressive, if we can talk about it?
20 A Yeah.
21 Q My general tendency towards aggression? You know, at
22 -- what are these different, as you've already testified?
23 A In the sense of -- I don't quite understand what you're
24 asking. Your -- could you restate the question for me, just --
25 Q You said there were changes in my levels of -- we're

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1 here under the -- my tendency towards aggressive is why you're
2 qualified to be here is what I'm -- and so within that, you said
3 there were changes in difficult -- different times and stuff like
4 that. I'm just trying to get a range of --
5 A Okay.
6 Q -- of --
7 MR. MCMAHON: Okay. And, now, Your Honor, he's
8 asking --
9 BY MR. STULL:
10 Q -- if I'm allowed.
11 MR. MCMAHON: -- what the range was in different times,
12 in different instances.
13 MR. STULL: No.
14 MR. MCMAHON: And Mr. Stull has been clearly instructed
15 that this is general character, and not instances, not how it
16 changes.
17 MR. STULL: I'm trying to do that. I'm willing to
18 limit her testimony to that, Your Honor. I'm just trying -- I'm
19 not --
20 THE COURT: All right. Ask the question. Try to ask
21 the question in a short way rather than with a long --
22 MR. STULL: Right. No, I'm --
23 THE COURT: -- discussion approach. Okay?
24 MR. STULL: -- simply trying to do that. And I think
25 the witness needs to understand what I'm trying to do, also. And

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1 it's generally that --
2 THE COURT: Just ask the question. You don't need to
3 comment on my ruling.
4 BY MR. STULL:
5 Q How am I doing right now?
6 A You're doing good right now.
7 Q Okay. Other times --
8 A Very good.
9 Q Other times that I'm not doing --
10 MR. MCMAHON: Your Honor, he's asking about other times
11 and how he's doing.
12 MR. STULL: In these general changes. I'm not saying
13 specific. I'm just saying other times --
14 BY MR. STULL:
15 Q Have you seen me different than I am right now?
16 THE COURT: Okay. I'll let him say, just whether --
17 BY MR. STULL:
18 Q Have you seen me --
19 THE COURT: -- whether he sometimes does worse.
20 THE WITNESS: Yes, sometimes he is worse than now, yes.
21 THE COURT: Okay.
22 BY MR. STULL:
23 Q Yeah. And regarding aggressive, how would you
24 characterize what -- what that means as far as I'm concerned?
25 A What I define as aggression for your --

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1 Q As far as I am --
2 A -- behavior?
3 Q Yeah, my behavior. What you would -- if I have --
4 A Okay.
5 Q You mentioned something about temper or something like
6 that. So if you could just -- who am I? You're talking about my
7 character.
8 A Okay.
9 Q -- and my tendency toward aggression.
10 A Aggression. Okay.
11 Q So, please, in your experience as you've had, informed
12 by other experiences that you've had, you're talking about your
13 experience with me and your assessment of my tendency toward
14 aggression.
15 A Okay.
16 Q And without talking about specific days or events or at
17 -- they'll tell you.
18 A Okay.
19 Q They, you know, overrule -- but go ahead, just --
20 A Well, sometimes he can be very angry, yelling,
21 screaming. Sometimes he does not talk at all, or does not have
22 the ability to talk. Sometimes he's very calm, very -- just
23 responsive to all of our orders, our directions. Sometimes he is
24 not responsive to our orders and our directions. I've never seen
25 him get physical with any of us. It's more just verbal than

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1 anything else. Anything more? No. Do that.
2 Q You're in uniform and carrying your sidearm?
3 A Yes.
4 Q Do you feel safe right here with me here?
7 BY MR. STULL:
8 Q I feel safe with you leaving here, excuse for --
9 MR. MCMAHON: Objection, Your Honor. He's
10 commenting --
11 MR. STULL: All right. No further questions.
12 THE COURT: No, we're not doing that.
13 MR. STULL: I'm just saying I'm finished.
14 THE COURT: No, no.
15 MR. STULL: Your Honor, no further --
16 THE COURT: We're not.
17 MR. STULL: -- questions for me.
18 THE COURT: You can ask a question of the witness. If
19 there's an objection, you'll stop, I'll rule on the objection.
20 MR. STULL: All right. I'm sorry. Go ahead. Are we
21 finished with that? I have no further questions, Your Honor.
22 I --
23 THE COURT: Okay. Very well. Cross.
24
25 ///

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1 CROSS-EXAMINATION
2 BY MR. MCMAHON:
3 Q Very generally, are you aware of Mr. Stull's
4 reputation, not only as a corrections deputy but also, I guess,
5 within the larger law enforcement community?
6 A Yes.
7 Q What is that reputation?
8 A To be cautious --
9 Q Just what --
10 A -- be cautious around him, be aware of the situation,
11 that sometimes his temper can be very quick. We're just very
12 cautious when we're around Mr. Stull because we don't know
13 exactly how he will behave that day, how --
14 Q Does he have a reputation within the larger community,
15 not just your experience but within the larger community, to be
16 physically aggressive at times?
17 A I -- I am not aware of that. If it is, I don't know.
18 Q Okay. And you're sheriff -- you're a separate
19 community than the Portland Police, correct?
20 A I'm sorry, say that again.
21 Q You're separate from like the Portland Police, correct?
22 A Correct. Completely separate.
23 Q All right. But you're saying that's it fair to say
24 that someone doesn't know how to deal with Mr. Stull might not be
25 aware of that reputation on how you deal with at the jail?

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1 A Very much so, yes.
2 Q Okay. And he does become very loud and angry, you're
3 saying?
4 A At times, yes.
5 Q Okay. What's the angriest you've seen him?
6 A The angriest I've seen him? A specific time?
7 Q Yes, a specific instance.
8 A Probably the angriest I've ever seen him was -- I
9 believe it was around Thanksgiving of just last year. There was
10 a -- they were called down to the front of the Justice Center
11 lobby where they were having a -- dealing with Mr. Stull, the
12 FSOs, which is our facility security officers. They're the front
13 people at the front that like go into the jail, that run property
14 through the line scan and everything.
15 And so they called for some backup, and I showed up
16 there, and Mr. Stull was angry, defiant, not following orders,
17 but not really able to talk very well. And I noticed that Mr.
18 Stull started looking at me and kind of engaging with me at that
19 point. So I kind of took the lead on the situation, and him and
20 I engaged with each other for probably five minutes, maybe not
21 that long, but it was all just conversations.
22 He had calmed down at this point because I think he
23 realized that I was more there to help him and to listen to him.
24 And so then I just basically told everybody, "Hey, we're going to
25 let him get up and walk out, and his -- he's got some other

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1 business he wants to do." And I said, "Are you willing to do
2 that, Mr. Stull, just get up" -- because he was sitting -- "get
3 up and just walk out of the building?" And he said yes. And
4 so --
5 Q Okay. And -- and before that, when you say he had
6 calmed down, how aggressive or how mad was he being before that?
7 A He had kind of closed fists -- it was all kind of
8 nonverbal body language. He was very red. I believe he was
9 sitting on an FSO's foot at the time. But other than that, it
10 was just nonverbal cues that we get training for to watch, like
11 body language, how they're holding their hands, their fists,
12 whether they're clinched, open, whether their jaws are clinched.
13 I believe his jaw was clinched at the time. It's just images of
14 that.
15 Q Okay.
16 A I don't know what happened before that, because the
17 main issues were happening before I was able to get down there.
18 Q But he did appear to be aggressive and upset at that
19 point?
20 A Yes, very much.
21 Q Okay. Thank you. No further questions.
22 A You're welcome.
23 THE COURT: Okay. Redirect?
24
25 ///

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2 BY MR. STULL:
3 Q Did anybody get hurt?
4 A No.
5 Q Could anybody have gotten hurt?
6 A Depending on how things went, maybe, but I don't think
7 so.
8 Q You -- do you remember me saying, "If I pushed him over
9 he would break his foot"?
10 MR. MCMAHON: Objection, Your Honor. We're going into
11 other things he's saying.
12 BY MR. STULL:
13 Q I was sitting on his foot, you already testified to
14 that.
15 MR. MCMAHON: Objection; he's testifying, Your Honor.
16 THE COURT: I -- I --
17 MR. STULL: I'm -- that's --
18 THE COURT: Don't argue.
19 MR. STULL: I'm -- he's got an objection, Your Honor.
20 I'm sorry.
21 THE COURT: Okay? He made an objection.
22 MR. STULL: Well, I -- I'm sorry. We're --
23 THE COURT: He made an objection. I was just checking
24 a rule.

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1 (Pause.)
2 THE COURT: I'll let you ask that question.
3 BY MR. STULL:
4 Q Do you -- you stated the facility securities officer,
5 and if we can, once again, distinguish that there's the khaki
6 uniform?
7 A Correct.
8 Q And --
9 MR. MCMAHON: Your Honor, I'd like to object, and I
10 would like to be heard outside the presence of the jury on this
11 matter?
12 THE COURT: I think that -- yeah. We'll have the
13 jury --
14 MR. STULL: Oh, that's fine.
16 MR. STULL: It's not for the jury.
17 THE COURT: You inquired into a particular episode.
19 THE COURT: I'll allow him to redirect on that
20 particular episode.
22 THE COURT: But not --
23 MR. MCMAHON: So, Your Honor --
24 THE COURT: -- beyond it, so --
25 MR. MCMAHON: If I may be heard, Your Honor?

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1 THE COURT: Sure.
2 MR. MCMAHON: The reason for the inquiry into the
3 specific episode was to rebut general character evidence. And
4 essentially, her testimony was that he was being aggressive at
5 that point in time. Now, if his redirect can be confined to his
6 level of aggressiveness, but it can't go outside of it. It can't
7 go to what an FSO was doing, what an FSO was saying, what he said
8 to an FSO. So I would ask that that be restricted.
9 THE COURT: Well, it seemed to me that what he said to
10 the FSO, with the suggestion of a threat, was probably also part
11 of that general topic.
13 THE COURT: But this last question was what about --
14 MR. STULL: Yeah.
15 THE COURT: -- garb?
16 MR. STULL: Yeah. No, the -- first of all, Your Honor,
17 before I ask my final question, I simply wanted to distinguish,
18 for the sake of the jury, it's easy to understand they come in
19 here unlike we do, and there's the khaki uniforms, which are at
20 the site, and then she was part of a different color uniform with
21 guns. Different -- compared to -- right? Your arrival with the
22 other --
23 THE COURT: I do not --
24 MR. STULL: And I simply wanted to say --
25 THE COURT: -- understand why the uniforms have

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1 anything to do with the direct -- with the cross.
2 MR. STULL: Oh, well, here's -- here's what we have in
3 evidence already, is that I was there. I was sitting on the
4 FSO's foot. The last question was, my potential for aggression,
5 and that nobody got hurt. And then I explored that by saying
6 could somebody have been hurt. And then it was, what if I would
7 have pushed him over while I was sitting on his foot. And I did
8 say that, if she remembers, and I didn't do it. And then I left.
9 So I could have hurt the guy really badly, is all I was saying.
10 And we were -- and that's the end of it.
11 THE COURT: But that has nothing to do with what color
12 uniforms or --
13 MR. STULL: No, no, it's just --
14 THE COURT: -- who was wearing a gun or not.
15 MR. STULL: -- to distinguish between the fact that --
16 THE COURT: So you could ask --
17 MR. STULL: -- she had a -- had the -- I want the jury
18 to know, there's lesser and higher levels of security. And the
19 color of uniform that I interfaced with was khaki. And they'll
20 be at the library and whatnot. And then you'll have this lady,
21 who is armed -- certified armed firearm security. She's got a
22 gun because she's allowed to have one in here. The FSOs don't
23 have those.
24 THE COURT: I'm --
25 MR. STULL: But it's just to distinguish, when she came

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1 out, it was an effort to up the security. You might put a sign
2 on the door that says do not enter, and you might lock the door,
3 to make -- but I'm just --
4 THE COURT: Okay. I'm going to sustain the objection.
5 MR. STULL: Okay. I'll just say that it was a --
6 THE COURT: I'm sustaining the objection.
7 MR. STULL: -- facilities security officer's foot.
8 THE COURT: No, you don't have to say anything.
9 MR. STULL: No, I know, but I'm --
10 THE COURT: But I am sustaining --
11 MR. STULL: But I want to know --
12 THE COURT: -- the objection to the question.
13 MR. STULL: -- I could have pushed him over. That was
14 all. I could have pushed him over. That's all. So -- and I
15 didn't, and I left the building. That's all I want to say and we
16 will be finished with this witness.
17 THE COURT: Okay. You can make it clear that you
18 didn't push him over.
19 MR. STULL: Yeah.
20 THE COURT: But we're not going to go into whether she
21 had a gun or whether --
22 MR. STULL: No, no, no, no, no, no.
23 THE COURT: -- it was -- who was --
24 MR. STULL: They already know that. But it was a --
25 THE COURT: -- who was there or whether the colors

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1 were. Okay.
2 MR. STULL: -- lesser level of security officer. It --
3 THE COURT: So we'll get the jury and we'll get back on
4 the record, and finish this.
5 MR. KELLEY: You may want to ask her what is an FSO,
6 because I doubt the jury knows.
7 MR. STULL: She said FSO, and that's all --
8 MR. KELLEY: Yeah, but they don't know what an FSO is.
9 MR. MCMAHON: Listen, it's outside the scope --
10 MR. STULL: It doesn't matter. It's fine.
11 MR. MCMAHON: -- of the cross. Like --
12 MR. STULL: You know the question, and then it will be
13 done. Thank you.
14 (Jury in at 11:07 a.m.)
15 THE COURT: Okay.
16 REDIRECT EXAMINATION (CONTINUED)
17 BY MR. STULL:
18 Q Given that no one was hurt, could someone have been
19 hurt?
20 A There is a potential for it, yes, somebody always
21 getting hurt. Yes. There is always that potential.
22 Q And particularly the person whose foot I was sitting
23 on?
24 A Yes, if you would have pushed him over like you said,
25 you could have. Then, yes.

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1 Q All right.
2 MR. STULL: No further questions.
3 THE COURT: Okay. You may step down, and you are
4 released, I take it. Yes. Okay. Very well.
6 MR. STULL: Your Honor, as far as the exhibit that was
7 introduced --
8 THE COURT: It was received.
9 MR. STULL: -- the -- how do we present that?
10 THE COURT: It will go with the jury to the jury room.
11 You can argue about it in your closing argument. But do you have
12 another witness? Are you going to testify now?
13 MR. STULL: Yes, I was going to. But I wanted --
14 THE COURT: Okay. Take the stand.
15 MR. STULL: -- to make sure that that was --
16 THE COURT: It is in --
17 MR. STULL: I'm not going to talk about it much.
18 THE COURT: Well, let's not.
19 MR. STULL: But I'm going to --
20 THE COURT: And it's --
21 MR. STULL: Yeah, I'll --
22 THE COURT: Not in -- in your argument you can talk
23 about it.
24 (Defendant takes the witness stand.)
25 MR. STULL: All right. No, I'm not talking now. It's

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1 just -- I'm just going to take --
2 THE CLERK: Raise your right hand.
3 MR. STULL: Yes.
4 THE CLERK: Do you solemnly swear under penalty of
5 perjury that the testimony you are about to give will be the
6 truth, the whole truth, and nothing but the truth?
7 MR. STULL: Yes.
8 THE CLERK: Please have a seat. State your first and
9 last name, and then spell your name.
10 THE WITNESS: My name is Barry Joe Stull, S-t-u-l-l is
11 my last name. I was named Barry Joe, B-a-r-r-y, and my middle
12 name is spelled J-o-e. But that's how I was named, Barry Joe,
13 before I was born, and that's the way it fits in our little
14 convention of first name and middle name.
15 TESTIMONY
16 THE WITNESS: I have a disabling condition called
17 central pain syndrome. And I also have a long history of
18 engagement with any number of social justice activities. I'm a
19 performing musician. I've done everything from theater, to
20 dance, to protest march, to producing banners, to producing
21 events. I'm a -- I've been qualified in court to -- on the
22 history -- as an authority on cannabis. Not as a healthcare
23 professional, but just for my understanding and history. And I
24 don't want to talk too much about other than what the jury and we
25 all have access to, the video of the day, expect to express some

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1 points. Is that central pain is a neurological condition.
3 THE WITNESS: And -- excuse me.
4 MR. MCMAHON: He's testifying as an expert.
6 THE WITNESS: I'm --
7 THE COURT: You're not --
8 THE WITNESS: I'm not --
9 THE COURT: You're an expert witness.
10 THE WITNESS: No, but --
11 THE COURT: You cannot testify as to what that
12 condition is --
14 THE COURT: -- in general or where it comes from or
15 anything like that.
16 THE WITNESS: Well, we have -- no, I --
17 THE COURT: So I am sustaining --
18 THE WITNESS: All right. That's fine.
19 THE COURT: -- objection.
20 THE WITNESS: I'll move on. I'll move on.
21 The manifestation of my condition, the condition that
22 I'm enduring right now, although it's not November 25th, 2015,
23 it's a condition I've had for a long number of years, and I have
24 various coping mechanisms. And some of them are absolutely
25 goofing. I have nausea from my condition, and I can settle that

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1 by -- I cook up a pot of rice and I scramble some eggs, and maybe
2 throw some mayonnaise in with the eggs as I'm cooking them, then
3 I put in a lot of hot sauce. A lot. And the hot sauce and the
4 Capsaicin are a mechanism for me to quell nausea. And you say to
5 somebody, well, what do you do to settle your stomach? You eat
6 the hottest possible food you can. That's just not the way that
7 other people cope with their condition.
8 And my experience, living in the body that I have, is
9 that I can pretty much say that my condition -- and I've said
10 this any number of sets and settings, my condition goes to my
11 aura. And I'm not saying like, you know, anything other than we
12 have a zone. That even when we're close enough, we can feel each
13 other's body heat before we have contact. So my condition goes
14 all the way to that. And the way it -- my day can be molested by
15 my condition. It could be owing to a car accident in 1976 and
16 back surgery in 1980. I have a little spot that I can touch, and
17 I can feel it, but if it's light hair or pin pricking, I -- I
18 don't have that -- those sensations. And it's my understanding
19 that when people are poking around, that their -- for mapping is
20 -- they do, that that's one of the ways that they can plumb and
21 analyze my condition. But how it works for me, unless somebody's
22 trying to stick me with a pin and see that I can't feel it there,
23 is what I feel is a burning -- it's hard to say, aching pain.
24 This is basically the chronic pain. I get my pre-coffee moment
25 in the morning before everything is up and working that I don't

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1 have that pain.
2 And I have coping mechanisms for the pain, including --
3 including using cannabis to quell the pain. And I have secondary
4 -- primary and secondary products of that. Right now, I have a
5 little spot on my tongue that's sore because I have a little
6 bottom of tooth that's sharp. And I have a little spot of my
7 tooth is sharp because I clench my jaws against the pain like we
8 might see you bite the bullet or, here, give somebody this when
9 you're doing something in a movie, here, bite on this. You know,
10 we're going to cut your leg off or whatever. So gritting is a
11 product of that, and it's a product that tends to the point where
12 I have a broken tooth from clenching my teeth against that pain.
13 And the mechanisms that I use to live in a body where
14 it's -- every day is really problematic for me to get through
15 because I don't know who I might interface with who may worsen my
16 condition. And it could be as simple as this. And this is how
17 the physiology -- best expression I can give historically about a
18 sensation that I endure and have to be aware of is, everything
19 was fine. My bills were paid. I dropped off the bill in the
20 mailbox and I was walking back to my house a fine spring evening.
21 There's a couple ladies out for a walk, and they're crossing the
22 sidewalk, and there's no traffic, and everything is blooming,
23 springing. When one of them gets to the other side of the
24 sidewalk, she trips. And when her knees hit the sidewalk, as
25 we'd all be shocked in seeing, I get a physical sensation. And

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1 it's -- in it's worse stage, certainly not from watching somebody
2 skin their knees, but when other people cringe, and I can see
3 that this will happen to me. Watching a scene in the movie,
4 I'll get that sensation. And I can tell by that sensation and
5 what makes me able to be aware of it or not aware -- not happen.
6 I can, kind of as we -- as I do when I -- if I get a
7 sunburn, I do not take a hot shower on my sunburn. If I burn my
8 finger, I'm really aware of what -- putting that under hot water,
9 because it's sensitized. And so the same thing is something that
10 I have to endure with. And so my coping mechanisms are, I
11 exercise, ride my bicycle. I take the staircase two at a time,
12 because that allows me -- like that clinching of my teeth that
13 can make my face hurt, that allows me to get this out, to get the
14 tension of the fact that I'm under pain and my bodies being
15 attacked.
16 And when I have -- there's -- paradoxically, what I
17 have endured was, a sensation where an emotional shock was so
18 severe it felt like I got stabbed at this spot. And that was
19 informative when I talked to my healthcare professionals. I
20 would say, whoa, what happened? And I got -- and then there's a
21 whole other threshold that sometimes it doesn't even go through
22 me feeling like I got stabbed where it's beyond that. And I can
23 tell when I'm physically able to do things that I'm not otherwise
24 able to do, positions I can get in. Whether I can squat all the
25 way with my buttocks on the back of my sneaker tops, if I can do

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1 that, I know that these other things are going on. And I know
2 that -- from my trips around and being in healthcare
3 professionals, I know that this condition is something that's not
4 on the lists. People don't understand what it is. They don't
5 know what -- and interpret it as having a mental illness by
6 people. They'll say, "Why were you -- you know, are you bipolar,
7 or you just whatever," and then schizophrenic, and this, that,
8 and the other thing. And that's not it. And sometimes, although
9 I have a memory -- I can recite Pi to 32 decimal places,
10 3.14159265358979323846264338327950, and somebody told me the next
11 number is 2, but I haven't confirmed it, because I only wanted to
12 memorize Pi to the last zero.
13 And as a musician and as an artist, I have ways and
14 forms of expression. And the interesting thing that I'm
15 experience right now is I'm trying to get into the heart of the
16 impact on my condition. And you'll notice there's halt speech.
17 When I try to talk about my condition I can't talk about it. It
18 interferes with my ability to vocalize. I had some version of a
19 speech impediment when I was a kid. I know that -- I was playing
20 cards, working on S's and whatnot, and as a performing musician,
21 a singer/songwriter, singing my songs, other people's songs,
22 talking to people, I'm very experienced in vocal training and
23 listening skills. And it's really hard for me not to interrupt
24 people. I talk to another version of myself, even today doing
25 the same thing, where we were so excited about what the other

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1 person was saying that we wanted to share what we had to say.
2 And I have very high intelligence, according to what
3 people tell me and the things I'm able to do. But I can also be
4 so sick that I can't find my way out of an elevator because I
5 pushed the wrong floor button. And I've done that. And why are
6 you here? Where am I? Right? So I couldn't even push the right
7 button. I don't know where I arrived. So I have situations
8 where my ability to vocalize is so hampered that I can say one
9 thing over and over again, maybe, if it's something that I'm able
10 to say. Central pain syndrome is one of the big ones. And it's
11 a difficult environment for me to be in.
12 It was helpful seeing the video, and there are a couple
13 things in it, as -- as I saw that that kind of surprised me. One
14 of the ones was, there's a point where I was -- I hadn't
15 interfaced -- most of the people there at the City Hall on
16 November 25th new me. There's a number of regulars, meeting
17 people that due public testimony, that take social justice
18 activism -- actions. There's a protocol at City Hall where you
19 can sign up in advance and do your public testimony. This
20 morning across the river, being at 9:30, you could have signed up
21 right on the spot and given to testimony to Multnomah County
22 Board of Commissioners. But at the City Hall they have a
23 reservation, and people get there three minutes, five potential
24 spots. And people do that serially. And some people, just a
25 general, to flush out what the communication process at City

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1 Hall, because that's what -- people reserve a spot on any topic
2 whatsoever.
3 We had some rule changes over the -- several years.
4 You can't talk about a person. So I wanted to talk about my
5 father, and I signed up under Harry Stull -- I mean, Harrison
6 Marcus Stull, and they said, "We changed the rules. You can't
7 talk about a person anymore." So they changed the agenda item to
8 my father. At which point I went in and talked about my father,
9 Harrison Stull. I was allowed to do that, but you weren't
10 allowed to sign up and talk -- so the rule changes about those
11 kind of things. And we -- we interface with the staff and do
12 that.
13 And on the morning of November 25th, I'd been through a
14 number of stressful events that are evidenced even in the -- in
15 the video that I said at the time. But what I was really
16 surprised about was when -- and I believe it was Moses Wrosen, a
17 friend of mine, used to be my landlord. He was -- I heard him on
18 the audio saying on that taking -- regarding taking my
19 possessions, and had made sure that the police had gathered up
20 all the things that were mine at the time.
21 And he had walked up to me, maybe in an effort to calm
22 me down, and he put his hand on me. And my response was to
23 verbal -- vocalize, "I'm going to punch you in the face," I think
24 is what I said. But it's -- and his response was to say, "Okay.
25 All right, man." And he left me alone because he knew he had

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1 gotten in my zone, and my -- being touched and stuff like that,
2 you know. And the thing that really shocked me, not so much as
3 that, because you see how he took it. It wasn't a -- it wasn't a
4 threat because we've known each other for so long that we could
5 say things even worse to each other. I was just surprised that
6 it came out there in a place that I expressed -- the decorum.
7 I've been able to drop F bombs, but I don't drop -- I didn't drop
8 F bombs there. That's not one of the places that I would. Any
9 cursing -- I think I used God damn, and that was only after any
10 decorum issues had long resolved or been rescinded.
11 What surprised me was, there was a point where I
12 pointed around pointing to a building that's behind City Hall.
13 It's on this side of -- we're looking at the entrance of City
14 Hall coming from the east. And on the west side, I was pointing
15 to a building. And I said, "And my lawyer was up there 17 feet.
16 I want to get my peppermint patties." It's on the 19th floor.
17 So I was really surprised to watch that of myself. That I
18 actually, in the sentence, I was saying, "My lawyers up there on
19 the 19th floor. I watched on the video, "17 feet". I'd much
20 rather be the fellow that you are interfacing with right now than
21 the fellow that -- as you saw had the interactions with the
22 police. People don't understand my condition, central pain
23 syndrome. And when they interpret that I have a psychological
24 condition, a mental health issue, it makes my response to that
25 completely different.

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1 I was coming through the courtroom -- process one day
2 and I accidentally picked up a youngster doing one of the
3 activities here, training or otherwise. He's a young man, maybe
4 a young high school student or something, and he had the exact
5 same -- he had a briefcase type of thing that I did. And when I
6 picked his up he says, "Hey, that's mine." And I says, "Oh,
7 you're right."
8 MR. MCMAHON: Objection, Your Honor. I think we're
9 going into a totally unrelated area.
10 THE COURT: Sustain the objection.
11 THE WITNESS: I said -- I --
12 THE COURT: We're not going to talk about the
13 conversation --
14 THE WITNESS: No, No, I'm not. No, no.
15 THE COURT: -- you had with somebody else.
16 THE WITNESS: I was just talking about that --
17 THE COURT: Don't argue with me.
18 THE WITNESS: I'm not.
19 THE COURT: I sustained the objection to that
20 discussion of the event with somebody in the lobby.
21 THE WITNESS: I'm talking about how --
22 THE COURT: I know what you --
23 THE WITNESS: All right.
24 THE COURT: -- said.

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1 THE COURT: I sustained the objection.
2 THE WITNESS: So as one might do -- respond to being at
3 the airport and have -- they have signs that says, "Make sure
4 it's your luggage," because all of the luggage comes from the
5 same story. So sometimes, if people make a mistake, they respond
6 inappropriately because they had made that mistake. And I've
7 done that myself. And, you know, part of the thing is to
8 apologize and go back and, you know, rectify it. People have
9 apologized to me. People have apologized to me for their
10 employees making a mistake. And the frustration that I endure is
11 having a condition that gets worsened, and the evidence that it's
12 worsened is that I'm in an agitated state. And the solution to
13 that agitated state is to have a calm environment.
14 There's really not a -- too much of an option for me to
15 live life on the planet earth in a -- I have to have what we call
16 a salubrious environment. And I have coping mechanisms. I get
17 confused, as I mentioned, so -- so that I can't get my way out of
18 an elevator and then I'm dealing with people saying, "Who are you
19 and why are you here?" That's not always the best of things to
20 encounter when you're a fellow that looks like me. I don't
21 shave. I don't cut my hair. Other people do. You're not
22 looking at anybody that's any different than anybody that doesn't
23 shave and doesn't cut their hair. You don't even have to think
24 about why I would have that. I'm just a guy that doesn't shave
25 and cut my hair. I'm clean. I don't shave and cut my hair. So

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1 what's that mean to people who shave and cut their hair if I
2 don't? I don't know. I don't care. Obviously, because I don't
3 shave and cut my hair. So why do I care? Why do I care why you
4 do or why you think I should, or what that means that I don't?
5 that's none of my business. My business is to be a gentleman,
6 and my business is to be courteous, and I make the decision
7 whether I'm going to offer the assistance of a person in a
8 wheelchair to push them up and -- or not. Because that's maybe
9 what they need to do to be whole and get the confidence of being
10 able to do what they do. So I always say, "Hey, can I give you a
11 hand," if I perceive that they need a hand.
12 And my frustration is, because I'm in Multnomah County,
13 Oregon, the police is I can't get emergency medical treatment.
15 THE COURT: I sustain the objection.
17 THE COURT: I think that we would proceed better,
18 sir --
20 THE COURT: -- if you proposed a particular question,
21 and then answer that question.
22 THE WITNESS: Okay. I'm almost finished, Your Honor.
23 THE COURT: Well, I -- I'd hoped that -- I hope we can
24 proceed that way.
25 THE WITNESS: Yes.

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1 THE COURT: And I'm directly you to do so.
2 THE WITNESS: Okay. So the question is, what was I
3 going to do at City Hall November 25th? I was going to stand up
4 for what I felt was exclusion that I felt was completely wrong.
5 I was on the agenda less than a day before. Had a stressful
6 event. What was the purpose of being in City Hall the day
7 before? Seek emergency medical transport or at least to the
8 Multnomah County Health -- I'll restate that. I sought
9 information after how to get a Multnomah County Health Department
10 medical transport ride to my house. What makes you think that
11 that could happen in City Hall? Well, I'm familiar with the
12 Office of Neighborhood Involvement.
13 THE COURT: I think we're going beyond the questions.
14 What you were going to do that day.
15 THE WITNESS: I'm telling you.
16 THE COURT: And we don't need to discuss the validity
17 of the trespass itself.
18 THE WITNESS: No, I'm not.
19 THE COURT: So please don't.
24 THE WITNESS: I'm not. And I knew -- because of the
25 event that happened, the sitting on a guy's foot, I knew that

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1 other people were identifying me as a threat. Didn't think that
2 would happen when I went to the place and asked after how I could
3 get Multnomah County Health Department medical transport ride to
4 my house, like I saw my neighbor get that morning.
5 MR. MCMAHON: Your Honor, I'd object. We're pretty
6 clearly --
7 THE WITNESS: Right.
8 THE COURT: I think -- I'm sustaining that --
10 THE COURT: -- objection.
11 THE WITNESS: All right. I'll move on.
12 THE COURT: Sir --
13 THE WITNESS: So the next day --
14 THE COURT: -- we're not going to talk about --
15 THE WITNESS: No.
16 THE COURT: -- those events because they --
17 THE WITNESS: No.
18 THE COURT: -- don't have a bearing on the charges.
19 So --
20 THE WITNESS: They -- I'm talking about --
21 THE COURT: -- you're not -- I just sustained an
22 objection on that grounds, and you went right back to --
23 THE WITNESS: No.
24 THE COURT: -- the same place. So, please --
25 THE WITNESS: All right, Your Honor. I --

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1 THE COURT: Okay.
2 THE WITNESS: -- said that on -- what I was going to
3 do. What were -- Mr. Stull, what were you going to do at City
4 Hall November 25th at 9:30? One, I was going to get whatever I
5 could get accomplished there. Those are my constitutional rights
6 as I believed I had under Article I, section 8 of the Oregon
7 Constitution to express myself, and the other things that are in
8 that, and Article I, section 26, which it gives me a right to
9 inform my legislators. And even better, it gives us, as
10 Oregonians -- don't have it everywhere and that's why I live
11 here. It gives us Oregonians the right to gather to consult for
12 the common good. We get to hang out and make things better.
13 MR. MCMAHON: Your Honor, I'd object. We're kind of
14 going pretty far afield here from what's --
15 THE WITNESS: So that day --
16 THE COURT: Yeah. Okay.
17 THE WITNESS: I'll give you your objection.
18 THE COURT: Well, go back to that day, then.
19 THE WITNESS: So that day I was steamed up pretty good.
20 I'm in the entertainment business, be back stage, putting up the
21 stage, taking down the stage, it might be my stage because it's
22 event, I produced it and had somebody else do that stuff. But
23 I'm in the entertainment business, and the Vaudeville is how --
24 my category, and comedy; do a song, make some commentary, and do
25 another song.

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1 And that day I had a guitar that I got from a homeless
2 man, Thomas, and he wanted me to keep it. And those -- he said,
3 "I can't make any money. I can't make any tips playing this
4 guitar," and that motivated me to prepare the bucket that I
5 brought in that -- it was my gift to him. He calls me Uncle
6 Barry. And it said, "To Thomas, From Uncle Barry." November --
7 and I was -- November 25th, 2016, and it said on the front of it,
8 "One less bucket drummer." And it said on the side of it the
9 city code that allows street performers to perform without
10 violating the sidewalk management ordinance. And I had that
11 material with me.
12 And I also had written a song. And I'm not going to do
13 it. But I knew that that song was right up to the edge, because
14 I even spoke to an attorney to make sure that that was legit
15 because it was, you know, so inflammatory. And I knew I was
16 going to raise the issues of the fact that Charlie Hales was the
17 major, and the partnership agreement that's in -- the exception
18 of the sidewalk management ordinance was signed by him. Couldn't
19 find that in the archives. So a new person came to town and
20 wanted to perform as a street musician, that would be within the
21 rules. They can't get the rules to be within because I did that
22 diligent search. And Charlie Hales had signed that, and one of
23 the cosigners was a lady who passed --
24 MR. MCMAHON: Okay. Your Honor, at this point I would
25 object. We're going, again --

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2 MR. MCMAHON: -- pretty far afield.
3 THE COURT: We are going way beyond the --
4 THE WITNESS: No. Right.
5 THE COURT: -- events of that one --
6 THE WITNESS: So my events of that --
7 THE COURT: -- day.
8 THE WITNESS: My intent -- my intent to testify, my
9 three minutes, was to tie the fact that Charlie Hales had signed
10 that street musician agreement. He was now the major. That was
11 1994 he signed it, and we have that. It's the document that is
12 incorporated into our current -- when I walked into City Hall on
13 November 25th, 2015, there was a sign that sidewalk management
14 ordinance, and it says, "Portland City Code 14A dot," and it goes
15 on. And in that --
16 THE COURT: I think that we are well beyond --
17 THE WITNESS: I --
18 THE COURT: -- the scope of the original question,
19 which was why you went there.
20 THE WITNESS: Well, this --
21 THE COURT: That does not call for you to repeat all of
22 the testimony that you have planned to give, sir.
23 THE WITNESS: That's why I went there.
24 THE COURT: So it -- no. I -- fine. But that's -- I'm
25 sustaining the objection. This is going far beyond the issues

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1 that --
3 THE COURT: -- relevant to the case. If you will
4 please ask another question, and move on to the events of that
5 day.
6 THE WITNESS: All right. So I was aware City Council -
7 - I was signed up. I've done this. It wasn't my first
8 appearance between any of the council members. I had done it
9 when they changed office. I had done it when Charlie Hales had
10 changed office and came into office. But back in the previous
11 incarnation of being on council, he signed the document. And I
12 was going to raise that issue. And one of the cosigners was
13 Gretchen Kafoury. And I knew the department named after her --
14 THE COURT: I think we're getting beyond the question.
15 Why don't you ask another question of yourself and we will --
17 THE COURT: -- move on to something that day, not --
18 THE WITNESS: I'm talking about that day.
19 THE COURT: Well, and I'm not going to argue with you
20 about it.
22 THE COURT: I am asking you --
23 THE WITNESS: All right. I'll --
24 THE COURT: -- to move on. Ask another question.
25 THE WITNESS: I'm asking a question.

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1 THE COURT: Ask the question.
2 THE WITNESS: And Gretchen Ka -- who is Gretchen
3 Kafoury? Well, at the time, she had passed away, but she was on
4 that document that Charlie Hales signed when they were both on
5 City Council in 1994. And what about her was current?
6 MR. MCMAHON: Your Honor, we've been going over the
7 same thing again.
8 THE COURT: Okay. I am going to rule irrelevant your
9 opinions about Gretchen Kafoury.
10 THE WITNESS: I'm not talking about Gretchen Kafoury.
11 I'm talking about her name.
12 THE COURT: Well, the -- what the question -- the
13 question was what -- that you asked yourself, I think, was what
14 about her. And I'm --
15 THE WITNESS: I'm telling about her.
16 THE COURT: Well, I'm ruling that question to be
17 irrelevant.
18 THE WITNESS: That's fine.
19 THE COURT: The question is about --
20 THE WITNESS: I'll keep going on.
21 THE COURT: -- November 25th. Ask another question.
22 THE WITNESS: And what's Kafoury Court?
23 MR. MCMAHON: Your Honor, at this point I object.
24 THE WITNESS: What is Kafoury Court?
25 MR. MCMAHON: We -- he --

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2 THE WITNESS: What did you include as an attachment as
3 part of your November 25th, 2015 City Council communication?
4 MR. MCMAHON: Okay. Objection, Your Honor. Relevance.
5 THE COURT: Sustained. I'm going to ask the jury to
6 step into the jury room. We're going to have a discussion about
7 relevance.
9 MR. MCMAHON: He -- it --
10 THE COURT: Just to be clear, what makes something
11 relevant is evidence which makes it either more likely that you
12 are guilty or less likely that you are guilty of the crimes
13 charged.
15 THE COURT: So nothing about the testimony you are
16 about -- that you were about to give to the City Council, so far
17 as I can see --
19 THE COURT: -- makes it more or less likely that you
20 attempted to assault a police officer in the --
22 THE COURT: -- events that we watched --
24 THE COURT: -- or that you were -- that you were
25 committing criminal mischief --

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1 MR. STULL: Right.
2 THE COURT: -- in the events that we watched, or that
3 you were resisting arrest.
4 MR. STULL: Right.
5 THE COURT: You are not going to be repeating that
6 testimony or talking about matters that don't have a pertinence
7 to either whether you did or did not commit the acts that you are
8 charged with.
9 MR. STULL: I understand that, Your Honor. I'm -- if I
10 could just encapsulate. What I was doing was proving pretty
11 wrapped up -- Kafoury Court was vacant. The daughter had headed
12 up the -- it's all in the video, but had headed up the --
13 THE COURT: Well, let's say that Kafoury --
14 MR. STULL: -- outfit.
15 THE COURT: Yeah. But let's say that Kafoury --
16 MR. STULL: And I knew that.
17 THE COURT: -- Court was vacant --
19 THE COURT: -- and that that was -- that that was a bad
20 thing, and that that required discussion in City Council.
22 THE COURT: Why does that make it more likely or less
23 likely that you attempted to hit a police officer --
24 MR. STULL: I didn't.
25 THE COURT: -- or that you --

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1 MR. STULL: Yeah.
2 THE COURT: -- at -- or that you more likely or less
3 likely that you resisted arrest --
4 MR. STULL: Right.
5 THE COURT: -- when you were arrested?
6 MR. STULL: Well, you're --
7 THE COURT: Why -- or more or less likely that you
8 damaged the inside -- you intentionally damaged the inside of a
9 police car as charged? So what makes it more or less likely that
10 any of those events occurred, even if we take it as a given that
11 there were important things to say --
13 THE COURT: -- about Kafoury Court?
14 MR. STULL: I thought that they didn't want me to say
15 that because, at the time, in October, they had -- the City had
16 declared a housing state of emergency because there was a housing
17 crisis. The City had funded PCRI. PCRI was keeping the fire
18 department complex at Kafoury Court vacant for years. And
19 Deborah Kafoury gave PCRI an award for their success in helping
20 getting Veteran's into housing, which was exactly the opposite.
21 THE COURT: Regardless of your --
22 MR. STULL: And so I thought they were trying to --
23 THE COURT: You have --
24 MR. STULL: -- get me.
25 THE COURT: Regardless of whether they were trying to

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1 do that or not --
2 MR. STULL: Right.
3 THE COURT: -- I'm unaware --
4 MR. STULL: I'm focus --
5 THE COURT: -- that that is a defense --
7 THE COURT: -- that you did, in fact, intend to assault
8 a police officer.
9 MR. STULL: No, you're right. I thought they were out
10 to --
11 THE COURT: You -- if you were arrested, and the
12 evidence was that they --
13 MR. STULL: I thought they were out to get me.
14 THE COURT: -- had you in custody, so --
16 THE COURT: -- there's really plenty of evidence that
17 you were in custody --
19 THE COURT: -- and you resisted that.
21 THE COURT: It doesn't make it more or less likely that
22 you did resist that.
24 THE COURT: And certainly not more or less likely that
25 you damaged the interior of the police car.

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1 MR. STULL: Right.
2 THE COURT: So their motivation -- whether they wanted
3 you to speak or didn't want you to speak --
4 MR. STULL: Well, yeah. I thought they --
5 THE COURT: -- does not --
6 MR. STULL: -- were out to get me.
7 THE COURT: -- or whether they were out to get you --
8 MR. STULL: Right. She said --
9 THE COURT: -- the question is whether you did those
10 things or did not --
12 THE COURT: -- do those things.
14 THE COURT: That's the only question --
15 MR. STULL: Right, but --
16 THE COURT: -- whether you did or did not do the crimes
17 asserted.
18 MR. STULL: Right. So --
19 THE COURT: So we're not going to have more testimony
20 about the subject matter that you're going to speak on and more
21 about your --
22 MR. STULL: Okay. Could I --
23 THE COURT: -- theories about what the -- you're not
24 going to be allowed to testify about your theories about what
25 other people were thinking.

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1 MR. STULL: No. I was talking about myself. Your
2 Honor, I thought if I stacked up all --
3 THE COURT: Okay.
4 MR. STULL: -- these things the way that I did, that I
5 had -- I had a very likely -- my impression was that the --
6 whatever happened the day before was, in fact, a way to thwart me
7 from exposing all these scandals. And so I thought that the
8 police response and everything from it was inevitable. It was
9 predictable, and the fact that they would say I wouldn't come in
10 was predictable. And I didn't go in there to hurt anybody, but I
11 knew that I probably was going to go to jail then. And if I
12 wasn't going to go to jail then, I was going to get a -- go into
13 jail as soon as I got out of there and kicked in the door of
14 Kafoury Court number 5, which I had already posted on the
15 internet that I was going to do at 10:15 November 25th. I made a
16 public announcement that I'm kicking in that vacant apartment.
17 And that's part of the video.
18 So my impression at the time was that I was going to
19 get arrested at City Hall, or I was going to get arrested at
20 Kafoury Court, and -- because I couldn't really, in that state,
21 not get arrested. In the condition that I was in, I was going to
22 get arrested. I'd been arrested coming out of the hospital on
23 Sunday night. So I knew I was going to get arrested. I can't be
24 in the City of Portland with my medical condition without being
25 arrested. Because --

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1 THE COURT: And is this --
2 MR. STULL: So my mental state was, the cops were out
3 to get me. They came in. Nobody interfaced with me. Nobody --
4 I got conflicting information. I had a big guy put his hand on
5 me, which to me meant that I wasn't going anywhere, which to me
6 meant that I was under arrest or, as that moment happened, Your
7 Honor, what I said was, to him, as I reached over and I put my
8 hand on his gloved hand to -- and I'm pushing it off, and I'm
9 saying -- in response to him saying, "And when you get out of
10 jail, you're going to -- going -- getting arrested for assault on
11 a police officer," and I just took his hand off of mine, and I'm
12 sliding it off, and I say, "Do you want your thumb back?" And
13 that's what I said to Officer Engstrom.
14 THE COURT: Okay.
16 THE COURT: Here -- here, we're kind of going far
17 afield.
18 MR. STULL: But that's -- but --
19 THE COURT: It's -- pardon --
20 MR. MCMAHON: I'm sorry. Go ahead, Your Honor.
21 THE COURT: It's clear that we're -- I'm not
22 communicating.
23 MR. STULL: Yeah.
24 THE COURT: And what I'm trying to say is that what
25 makes -- we're here to try whether or not --

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1 MR. STULL: Right.
2 THE COURT: -- you attempted --
3 MR. STULL: Right.
4 THE COURT: -- to assault a police officer.
5 MR. STULL: Which I didn't, because it was
6 self-defense. And then -- and then whether or not I --
7 THE COURT: And --
8 MR. STULL: -- intended to break a --
9 THE COURT: If you would let me talk.
10 MR. STULL: Oh, I'm sorry, Your Honor.
11 THE COURT: Or whether or not you intentionally damaged
12 the interior of the police car --
14 THE COURT: -- or whether or not you actively resisted
15 being taken into custody --
17 THE COURT: -- those are the things that we're here to
18 try.
20 THE COURT: Those are the only things that we're here
21 to try. And I will continue to sustain objections to discussions
22 about matters outside that.
23 MR. STULL: It has to do with my mental state, my
24 mental -- my medical condition.
25 THE COURT: Well, but the only mental state which is

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1 relevant is your intent to do those things.
2 MR. STULL: Right.
3 THE COURT: Not whether you believed that the trespass
4 was correct.
5 MR. STULL: I know.
6 THE COURT: That's not a defense.
7 MR. STULL: No.
8 THE COURT: Not whether you believed that there was an
9 ulterior motive in trespassing you, and not whether you -- I got
10 to tell you -- maybe I shouldn't, but I got to tell you that if
11 you tell the jury that you had an intent to go damage other
12 property, it's not going to help you here.
13 MR. STULL: It's on the video.
14 THE COURT: Well, you want to -- you want to underline
15 that, I -- I don't know.
16 MR. STULL: It's on the video. That was -- it's called
17 civil disobedience.
18 THE COURT: Yeah, whether it's on the video or not,
19 but --
20 MR. MCMAHON: Right. We have a second matter, too.
21 There was at least -- there was a pretty audible comment by a
22 member of a --
23 THE COURT: Okay. No audible comments at all. And I'm
24 going to clear the courthouse. We've had this again, and again,
25 and again. Everybody knows that. Anybody that is speaking --

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1 I'm going to clear the gallery. I'm doing that now. So you can
2 leave now.
3 MR. MCMAHON: And, Your Honor, it appears that at least
4 one juror looked over and, again, like seemed to react to the
5 comment. I think it was like, "Oh, God."
6 THE COURT: Okay. Out. Out.
7 MR. MCMAHON: I'd ask that they be instructed to ignore
8 it.
9 THE COURT: I will instruct the jury to disregard
10 anything from the gallery, and I will tell them that I have
11 cleared the gallery because there were improper comments.
12 MR. STULL: And we're still on the record, Your Honor?
13 THE COURT: Yes. And we're getting the jury back.
14 MR. MCMAHON: So are we bringing the jury back?
15 MR. STULL: I'll expedite this, Your Honor.
16 (Jury in at 11:48 a.m.)
17 THE COURT: Before we start, I am going to instruct the
18 jury to disregard and not consider for any purpose any comments,
19 expressions, gestures, et cetera, from people who had been in the
20 gallery. I've asked them to step out because they have done
21 that. So we will -- we'll continue.
22 TESTIMONY (CONTINUED)
23 THE WITNESS: So owing to the various social
24 circumstances that I intended to exploit by appearing, as I did,
25 with my bucket, and with the topics and whatnot, I -- I have -- I

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1 have grassroots organizing weekend training on how you crack the
2 bureaucratic opposition to getting the word out. And I posted an
3 event, November 25th, 2015 at 10:15 a.m. I was going to kick in
4 the door of Kafoury Court. It was -- I think it was a taking a
5 day in jail with Barry Joe Stull. It was an apartment complex
6 that was vacant. And so my plan was to go to City Hall, and if I
7 didn't get arrested there for trespass, I was going to go up and
8 get arrested at the Kafoury Court Apartment complex. And I knew
9 the circumstances that was going on, the landlord and the
10 proposal to put in the other property and whatnot.
11 So that was fine. I didn't realize I'd get as sick as
12 I got. And I did ask for an ambulance. And I was really shocked
13 that they didn't even call for one. I call people's ambulances,
14 and, you know, you see somebody in trouble and you call an
15 ambulance. And -- I saw a fellow die of a heart attack because
16 my friend say, "Hey, that guys a drunk." And, no, he was having
17 a heart attack. He had urinated himself and he was disoriented.
18 So I'm really good about calling the ambulance for people. And
19 then when I do they say, "Is the person intoxicated or what?" I
20 said, "I don't know. I watched a guy die because some of my
21 friends said that they were" -- I didn't second guess my friends
22 with that attitude. But -- so I'm really -- I'm really -- I was
23 really incensed that if you have a condition like I -- if I have
24 a condition that's worsened by emotional stress, and I get
25 aggravated and sick, I'm in for trouble. I can't get medical

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1 treatment because they think I'm a threat, and paramedics aren't
2 allowed to transport me even to the emergency room where I've
3 been treated after these events.
4 So that day, I wasn't surprised that the police came
5 in. I was kind of -- I wasn't -- I was, of course, trying to
6 vent. Trying to keep from getting sicker, and one of the coping
7 mechanisms is laughter. And some of the things I said, they're
8 -- they're still pretty funny. I think all of the things that I
9 said were facts. The issue of murdering Amanda Fritz' hospital
10 was a -- husband. A hospital, what did I say -- was a conflation
11 in how it came out of mind. What I intended or what I was
12 expressing -- what I intended to express was that owing to having
13 a comb in my pocket and DNA. Should they wanted to prove that I
14 murdered Amanda Fritz' husband, this District Attorney over here,
15 that could happen. But just put the DNA out there. We don't
16 need the body. We got a comb. So that's my world. I live in --
17 I'm not exactly paranoid, but, yeah, I know that you got to watch
18 it.
19 So the -- when I said that the police officer we now
20 know is Sergeant Axthelm, "When are you going to clear the room?"
21 He says, "We're not clearing the room." And Amanda Fritz is
22 clearing the room. So he said, "Well, you're clearly not in
23 charge." He wasn't in charge. We know from -- you know, he's in
24 charge, and I know now. But I didn't know who was in charge.
25 And I had somebody well into this not calling for my

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1 ambulance. I've been in plenty ambulances to the emergency room,
2 so I know how to go to Emanuel Hospital by ambulance. And I was
3 -- clearly wasn't getting the ambulance, and I was told by a
4 sergeant, "Sit down." And then the next thing you know, there's
5 Todd Engstrom, and he's got his hand on my hand. And I saw this
6 guy come in. I know plenty of police. I do events, have them as
7 security. I MCed an event, we had to hire the police. It was
8 there idea. They wouldn't pass the permit to have it in a park
9 unless they were the security. So I interface with the police,
10 before and after events. So I know plenty of police officers.
11 And this particular guy, I saw him coming, he's big.
12 Didn't have any hair. Has a taser right here. Taser's go on one
13 hip, from my experience, gun goes on the other hip. But he's got
14 his taser right here covering up his name tag. That's the guy.
15 Do you see that guy? Do you see that guy with a bunch of
16 Sharpies over his name tag? You watch -- you see that woman with
17 a -- with her -- with her microphone over her name tag? That's
18 the ones I watch out for, because those are the ones that don't
19 want anybody --
21 THE WITNESS: My experience --
22 THE COURT: I'll sustain the objection. Now, would you
23 please ask yourself questions. You answer your questions.
24 THE WITNESS: All right. I will.
25 THE COURT: There will be an opportunity to object --

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2 THE COURT: -- to the question.
3 THE WITNESS: That's fine.
4 THE COURT: But we're getting into --
5 THE WITNESS: All right. I -- the question is, what
6 did you feel was the role of who we now know as Officer Engstrom?
7 Officer Engstrom, on my appearance, projected his large size, his
8 bald head, his clean head, his taser obstructing the name tag
9 that I tried to read, and he's putting his hand on me in such
10 haste that he didn't even put on his second glove. He was going
11 to hurt me bad. I knew it. Especially since he came up behind
12 the man with the strips who told me to sit down. I end up with
13 this man's hand on my hand as he's putting his gloved hand in
14 such haste, he doesn't have his other hand gloved, he says to me,
15 "And when you get out of jail you're going to be arrested" --
16 MR. MCMAHON: Objection, Your Honor; hearsay.
17 THE COURT: Well, I'm certainly not going to receive it
18 for the truth of the --
19 THE WITNESS: Truth of it.
20 THE COURT: -- matters stated, but I will receive it if
21 he offers it for its impact on him.
22 THE WITNESS: He says to me, "When you get out of jail,
23 you're going to be arrested for assault on a police officer."
24 And I say to him, as I take my other hand and slide his hand off
25 of mine, "Do you want your thumb back?" We're apes. We're

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1 primates.
2 MR. MCMAHON: Objection.
3 THE COURT: Okay. I'm --
4 THE WITNESS: Excuse me.
5 THE COURT: I'm sustaining the objection to that.
6 THE WITNESS: Why do --
7 THE COURT: We're not going to have a speech here.
8 THE WITNESS: I'm -- Your Honor, that's fine. I'll
9 move on.
10 THE COURT: Just the events, yeah.
11 THE WITNESS: Why did you say, Mr. Stull, on November
12 25th, with Todd Engstrom, gloved hand, on your hand, and his
13 other hand yet ungloved, why did you say, "Do you want your thumb
14 back?" We have apposable thumbs. So why is that important under
15 those circumstances? I don't think apposable thumbs should be
16 used to hurt people. That thumb, that hand, was on me. His hand
17 was on me. When my friend, I knew for years, touched me, I
18 didn't like it under those circumstances. If anyone of us, I
19 think, has somebody we don't know touch us --
21 THE COURT: Sustained. This is not the time for
22 theorizing about what anybody else would say.
23 THE WITNESS: All right. I'll talk about --
24 THE COURT: This is the time for you --
25 THE WITNESS: -- what I have --

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1 THE COURT: -- to testify about what you saw --
2 THE WITNESS: I will.
3 THE COURT: -- what you did, others --
4 THE WITNESS: I had --
5 THE COURT: -- did that you saw.
6 THE WITNESS: What about touching influences your --
7 THE COURT: I'm not trying to ask you --
8 THE WITNESS: No.
9 THE COURT: -- to rephrase the question.
10 THE WITNESS: I'll do it.
11 THE COURT: I'm telling you we're not going to have
12 testimony about your philosophy --
14 THE COURT: -- about apposable thumbs.
15 THE WITNESS: I'm not. I'm not. Thank you, Your
16 Honor, for --
17 THE COURT: Okay.
18 THE WITNESS: -- letting me get this far.
19 (Pause.)
20 THE WITNESS: I knew I was going to get hurt bad by
21 Officer Engstrom based on what he said, based on how he was so
22 aggressive that he was touching me. And I don't like to be
23 touched. I love to be touched. We all do. Touching is part of
24 the human experience. But if a person is talking to me and I
25 don't know who they are, I especially don't like to be touched.

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1 I don't offensively touch other people. I know that offensive
2 physical contact, that's a crime in Oregon. Verbalizing, you can
3 say anything you want, pretty much. Done it, right at the line.
4 The line is, we don't have fighting words, I think. So I have to
5 listen to anybody say anything at any time, and they can do the
6 same thing when I do it. But, no, we don't get to touch people.
7 That's the line. Say anything you want verbally. Don't touch
8 people. Touching people, offensive physical contact, is
9 criminal. So I don't like people I don't know coming up and
10 touching on me, especially if they're Officer Engstrom that day.
11 So he said to me I was going to go to jail after I got
12 out of jail. No. I was going to go to jail right then. And as
13 soon as he got more aggressive, I punched him, right her in his
14 ballistic vest, because I wouldn't be grabbing at his taser, I
15 knew, wouldn't be physically injuring him in any way. And that
16 was a room full of people. And people were going to get hurt. I
17 knew what was going to happen. I was going to punch Officer
18 Engstrom, and he was going to try to pull some moves on me, and
19 that was going to be very short lived because his other officers
20 would respond and I would be out of there. I didn't get out, or
21 where or when. I don't know. Apparently, it happened. Here I
22 am.
23 I didn't know that I would be subjected to so many pain
24 compliance holds. I'm a musician. I use my hands, my wrists to
25 play different things, you know. I had a wrist lock on me. I

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1 had -- put handcuffs twisted on my wrist. Twisting them. I'm
2 feeling it. I'm saying it. State vs. Gaines, it's a Supreme
3 Court case, it's kind of a joke for me.
4 THE COURT: We're not going to have a discussion --
5 THE WITNESS: No.
6 THE COURT: -- of law or evidence -- or --
8 THE COURT: -- anything of that sort.
10 THE COURT: So if you just move on to facts.
11 THE WITNESS: The fact is -- the fact is, is State vs.
12 Gaines is something I --
13 THE COURT: No, the fact is not about a statue --
14 THE WITNESS: It was a statement.
15 THE COURT: -- a case --
16 THE WITNESS: It was my statement. It was one of my
17 vocalizations that I made that day.
18 THE COURT: I am telling you --
19 THE WITNESS: Fine. Fine.
20 THE COURT: -- your test -- you can testify about the
21 events of that day, certainly.
22 THE WITNESS: That was -- that was why I was
23 vocalizing. But I was vocalizing as I could, as under my mental
24 state --
25 THE COURT: No, but you don't --

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1 THE WITNESS: -- physical state.
2 THE COURT: -- explain why your view of the law --
4 THE COURT: -- applies.
5 THE WITNESS: The name. The name, State vs. Gaines.
6 That's all. I'm not talking about what it is or what it isn't.
7 THE COURT: Please disregard what the witness has said
8 about the law.
10 THE COURT: I will instruct you regarding any of the
11 law --
12 THE WITNESS: Absolutely.
13 THE COURT: -- that you need to know that is
14 pertinent --
15 THE WITNESS: That's not --
16 THE COURT: -- to the case.
17 THE WITNESS: Your Honor, I don't --
18 THE COURT: Testify.
19 THE WITNESS: I am testifying. The things that I said
20 were -- at that day, it's part of the rant, and which continues
21 after I'm -- I'm saying rant to say my performance art piece, I
22 think three minutes playing the guitar, get out of there would
23 have been okay with me. But, no, we instead we had what was
24 going because I was waiting for the ambulance to come. And so,
25 anyhow, getting to what I was vocalizing, was I vocalized a

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1 couple of things. And one of the things I said was, "Why would
2 this make any sense? It's April fool." Because, the other
3 thing, Stull vs. Hoke, April 1st, 1998, that's when my case on
4 the -- back -- coming back down from the Supreme Court. And
5 State vs. Gaines has my case in it. So if it's just -- in that
6 regard, that's --
7 THE COURT: Are you talking about what you said on that
8 day?
9 THE WITNESS: Yeah. At that day, I said, "State vs.
10 Gaines."
11 THE COURT: Well, you can quote yourself --
12 THE WITNESS: I said, "Stull" --
13 THE COURT: -- as to what you said at that day. But --
14 THE WITNESS: Right.
15 THE COURT: -- I do not want any discuss to the jury
16 about what your view is of the law.
17 THE WITNESS: No, no, no, no, no. It's just a -- it's
18 just a fact that I mentioned Stull vs. Hoke and the -- who it
19 involved prior to the police interface. And then after the
20 police interface, I said a couple things. I said -- I said, "Do
21 you know about my -- my case, Stull vs. Hoke? And the April
22 fools was that I did that. I'm mad. Who -- them, people in the
23 room, people not in the room, people are mad I did that.
24 MR. MCMAHON: Objection, Your Honor. We're going into
25 something --

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1 THE WITNESS: I know that. So, anyhow --
2 MR. MCMAHON: -- clearly beyond the scope.
3 THE COURT: I sustain the objection.
4 THE WITNESS: I'm moving on.
5 THE COURT: You cannot testify --
6 THE WITNESS: No.
7 THE COURT: -- about what other people --
8 THE WITNESS: No, I'm sorry. I'm --
9 THE COURT: -- thought or --
10 THE WITNESS: -- moving on, Your Honor. I'm moving on.
11 THE COURT: Okay. Please. And the jury can disregard
12 that.
13 THE WITNESS: So getting to the tussle, the tussle with
14 the -- you know, the responding to the, "This guy is going to
15 hurt me bad," what am I going to do? I'm going to push him away
16 from me. That's not going to work. He's going to say that's
17 resisting something or other. And what am I going to do? I'm
18 going in. I'm diving in. I'm going into the warm hands of many,
19 many police officers. Many. Or maybe to carry me out of there.
20 That's okay. That's policy. I actually said that -- prior to
21 the Amanda Fritz clearing the room, I said, "When are you going
22 to carry me -- when you going to clear the from? When are you
23 going to carry me out of me? I'm not afraid to get arrested."
24 And I just might change that attitude. But I was having my
25 wrists blocked, and then Officer Engstrom decides to move me from

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1 where I'm kind of like okay to over to the table, all done by a
2 pain compliance hold. I'm laying down on the table. If I wanted
3 to kick him, yeah. I didn't. I could have kicked him bad in the
4 -- what they say is the bad place. I didn't.
5 And trust me, with central pain syndrome, his pain
6 compliance holds simply do not work. They make me feel pain, but
7 they don't make me comply. Because I resist. It's passive
8 resistance. That's what happens nowadays. Before, it would --
9 things were different. But now, if you don't do, go where they
10 want, or whether you --
12 THE WITNESS: -- my experience that day --
13 MR. MCMAHON: We're getting into commentary on law.
14 THE COURT: I will sustain the objection.
15 THE WITNESS: My experience that day was -- my role --
16 once Officer Engstrom put his hand on my hand, when I wasn't
17 under arrest, when he put his hand on my hand, my role was to be
18 carried out of there, go to jail, have a trial. Where my part
19 didn't work out so well is Officer Engstrom decided that he was
20 going to hurt me, and he did, all the way to the police car.
21 Never said, "Go this way." Never said, "Go that way." Going
22 through the doorway, feet are being -- I'm being dragged and my
23 feet are kind of flailing because there's been this been on
24 working -- going on minutes at that point of the work on my
25 wrist, my right wrist. And when I'm kind of kicking, spazzing

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1 out in pain, I hear from behind me, "And he kicked me." Get
2 taken down, placed in the police car, see the paramedics standing
3 next to the ambulance parked behind the police car, get placed in
4 the police car.
5 Sergeant Price, I believe, was there. Officer Engstrom
6 was there. And they go from the curb over to the decorative
7 fence, chatting it up. I'm in the police car. I know that my
8 triggers have all been triggered. And I know that this is beyond
9 the part where I might have a shocking event or somebody talks to
10 me. That's one version of -- if I hear something, as I
11 mentioned, I have that stab.
12 And at that point, it was heart failure. That's what I
13 was looking forward to, heart failure. I had all that
14 adrenaline, all that flight or fight chemicals, and there was
15 nobody to fight and nowhere to go. So I tore the hell out of
16 that police car. I did as much damage in that police car as I
17 possibly could. Because I knew, as soon as I started damaging
18 the police car -- first of all, I wasn't going to be in a police
19 car for the rest of the day. When I was done, no other officer -
20 - nobody was going to arrive on the scene in that police car on
21 that calendar day, because I was the last person in there they
22 were even going to be able to use it for, because I would find
23 some way to decommission that police car. Whether it was to pull
24 out a wire that needed to be put back together, in this case, it
25 happened to be the seatbelts, because they're getting better at

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1 reinforcing their cars. And I'm making that as an informed
2 statement.
3 And that felt better. It felt better seeing the
4 looking on Todd Engstrom's panicked face. He's fumbling for the
5 key to get in the car and take me the two blocks into the jail.
6 They weren't off chatting anymore, having their ha-ha-ha-ha
7 moment, "Look what we just did with Barry Joe Stull. He had to
8 come. He'll now learn to -- now he'll learn." I already
9 learned. I learned that if I don't vent that fight or flight, it
10 could kill me.
11 And I already learned that any action I take against
12 another human being will be termed as aggressive behavior. Well,
13 it's not. I can hurt people bad. The strength of 10, an
14 incredible amount of strength. It scares me to think that I
15 could be that strong and do those many things. Laying on my back
16 and break the seatbelt mechanism off the roof of the car.
17 Couldn't do that today. I did it then, obviously. Strength of
18 10, fight or flight, got rid of all that. Has to be managed in
19 my experience. You can do it nonviolently, breaking cop's police
20 car and putting it out of business for the day. Not do, take
21 your chances with whatever is going to happen. Grant it, by --
22 do it on a person, go beat somebody up. That's a way to get your
23 stress out. I don't use that. I'm not that. I have the
24 extraordinary capacity for physical violence. Capacity. That's
25 why I'm kind. That's why I have coping mechanisms. Talk to

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1 people, find out where they are at.
2 If I see somebody that's having some kind of a moment,
3 I'll talk it out with them to find out where they are at, find
4 out what's going on. Certainly, never threaten to kill anybody.
5 I don't have to. I can just do it. Don't have to be there. Be
6 over here. I grew up where we had guns all over the place. We
7 took guns to school to learn how to shoot them. Where I grew up,
8 the first day of hunting season, buck season was a holiday. We
9 got half school that day, because people went out and shot guns
10 and stuff.
11 We knew how to -- I know how to do stuff. I know how
12 to turn -- improvise weapons. I mentioned that I turned my
13 clothing into, quote/unquote, clubs of steel. Bent the jail door
14 at the Justice Center. Clubs of steel. I got to see that door
15 again, and it's bent. Looks like it got run over by a truck.
16 It's a door. It's not a person. Fight or flight. Can't run,
17 don't want to fight because it's against your philosophy. I can
18 do self-defense. I've done -- I've done citizen's arrests. I
19 can, you know, if appropriate, use force. But I don't hurt
20 people more than I need to in custody, and I had that happen that
21 day with Todd Engstrom, as I predicted.
22 So I really don't have any more testimony, except I do
23 want to, while I'm still here, talk about the exhibit.
24 THE COURT: No.
25 THE WITNESS: If I --

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1 THE COURT: Not unless there are exhibits --
2 THE WITNESS: Just describe --
3 THE COURT: -- that you can identify and --
5 THE COURT: -- you're not just going to use this as an
6 argument.
7 THE WITNESS: No, no.
8 THE COURT: You'll get a chance to argue. So --
9 THE WITNESS: Well, I just want to say what it is.
10 Yeah.
11 THE COURT: -- what exhibit did you want to identify?
12 THE WITNESS: Oh, the --
13 THE COURT: Is it one that you can?
14 THE WITNESS: Oh, Dr. Grimm. Isn't that one --
15 THE COURT: No, you can't talk about that.
16 THE WITNESS: I was just going to -- can I describe it,
17 what it is?
18 THE COURT: They're going to have it.
19 THE WITNESS: Okay. That's all I need to do.
20 THE COURT: Okay.
21 THE WITNESS: So I don't think we -- I think I'm done
22 with my testimony.
23 THE COURT: Okay. We're going to take our noon break
24 now. We'll do cross when we get back.
25 THE WITNESS: All right. Thank you, Your Honor.

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3 (Witness exits the witness stand.)
4 THE COURT: And Mr. Gibson will see the jury to the
5 jury room where you'll leave your notebooks. Remember not to
6 begin to talk about the case amongst yourselves, certainly not
7 with anyone else.
10 THE COURT: No.
11 MR. STULL: Oh, I'm sorry. Sorry.
12 THE COURT: Wait until the jury is all out.
13 MR. STULL: Your Honor, I have to use the --
14 THE COURT: Wait.
15 MR. STULL: Oh, I didn't know they went that way.
16 THE COURT: Wait until -- hold on.
18 THE COURT: Just hold on.
19 MR. STULL: Thank you. Okay. Your Honor, I need to
20 urinate. Could I be back in just a few minutes?
21 THE COURT: You can -- you can step out and come back.
23 MR. MCMAHON: Do we have anything else we need to do,
24 or is that --
25 THE COURT: Yes, we do.

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1 MR. STULL: I'll be right back.
2 THE COURT: We need to talk for a moment about
3 instructions.
4 MR. MCMAHON: Oh, okay. To that end, Your Honor, I
5 have provided a special request.
6 THE COURT: I'll --
7 MR. MCMAHON: -- for an instruction. I have another
8 copy for Mr. Kelley.
9 MR. KELLEY: Is this different than the standard
10 instructions?
11 MR. MCMAHON: It is.
12 (Pause.)
13 (Parties confer.)
14 THE COURT: Well, my understanding, and you can -- now
15 that you're back, Mr. Stull --
17 THE COURT: -- we were -- I just wanted to talk briefly
18 about the instructions, because we'll be moving on to instruct.
19 And I have altered, on the functions of Court and jury, I have --
20 there is a line that says, "The lawyers' statements and arguments
21 are not evidence. If your recollection differs from the lawyers'
22 recollection, you must rely on your own memory." So I've altered
23 that to fit the case so that they -- "your verdict on the
24 evidence and these instructions. The parties' statements and
25 arguments are not in evidence unless in testimony, on the stand,

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1 under oath. If your recollection of the evidence is different
2 from the parties' recollection, you must rely on your own memory
3 of the evidence."
4 And then I just moved the location of the definition of
5 physical injury from page 6 up to page 3 so it immediately
6 follows the -- the relevant criminal definition. I see that
7 there is a special limits, handwritten and just handed to me.
8 I'll use the uniform instead. And then I can take out 5 and 6 of
9 the instruction that ends on page 5, starts on page 4, evaluating
10 witness testimony, because we didn't have testimony about
11 truthfulness, and we did not have testimony of a conviction for a
12 witness. I'm taking out Defendant not testifying because, of
13 course, he did.
14 And on the prior conviction instruction, we talked
15 about that a little before because there was a discussion about
16 him previously been arrested. And my understanding was the
17 Defense wanted a cautionary on that. And what I thought I would
18 use would be -- would go like this. "The Defendant's prior
19 arrest of conviction, if you find that the Defendant has previous
20 -- been previously charged or convicted of a crime, you may not
21 use this evidence for the purpose of drawing the inference that
22 because the Defendant was charged or convicted of a previous
23 charge -- crime, the Defendant may be guilty of the crime charged
24 in this case." That's -- that's cleansed of the suggestion about
25 impeachment, because there weren't any impeachment -- impeachment

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1 -- impeachables, as I understand what the State said. So we're
2 not using impeachment.
3 MR. STULL: Correct, Your Honor, that's the State's
4 understanding as well.
5 THE COURT: That's a Defendant protective instruction.
6 I won't give it if the Defendant objects. And then less
7 satisfactory evidence, State's burden of proof. I'm not giving
8 that because we don't have the circumstances in which that's
9 appropriate when there's some evidence -- when there is some
10 indication that evidence existed, the State had and they didn't
11 produce. So we're not going to do that.
12 MR. MCMAHON: I'd object to witness false in part, Your
13 Honor. I don' think there's a sufficient basis to give it.
15 THE COURT: He's objecting to false -- witness false in
16 part.
17 MR. STULL: Okay.
18 THE COURT: I can take that out unless there's an
19 argument that there is some basis.
20 MR. STULL: There's just one -- just one other thing
21 briefly before I proceed any further, Your Honor.
22 MR. STULL: Oh, Your Honor, actually, if you could go
23 back to witness false in part. Evidence that somebody lied in
24 their testimony, there's a conflict between assertion and Officer
25 Engstrom as what he said with his hand on my hand.

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1 THE COURT: Well, I'll leave that in if you want it.
3 THE COURT: They could also, you know, find that it was
4 -- they can find either person was lying. And so if you want it
5 in, we'll leave it in.
6 MR. MCMAHON: Just real quickly, Your Honor. I think
7 we've got both inferences and direct or circumstantial evidence.
8 And I know it's the commentary indicates it's usually disfavored
9 to give both and just to pick one. I -- my preference is for
10 inferences and not direct and circumstantial evidence.
11 THE COURT: It is one or the other. Do you have any
12 preference?
14 MR. KELLEY: I'm sorry, which of the two are you
15 requesting, Mr. McMahon?
16 MR. MCMAHON: I'm requesting inferences and not direct
17 or circumstantial. And, Mr. Stull --
18 MR. STULL: Oh, he's taking one out.
19 MR. MCMAHON: -- the commentary on the Uniform Criminal
20 Jury Instructions --
21 (Pause.)
22 MR. STULL: Yeah, I think that direct or circumstantial
23 evidence needs to be in, just because there's a series of events
24 and interaction that have --
25 THE COURT: Yeah, I don't know that there's any

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1 circumstantial evidence in this case, is the problem. Was there?
2 MR. MCMAHON: I have -- I don't think there is. I
3 think everything on the video and witness testimony.
4 MR. STULL: Oh, the fact that I have a medical
5 condition that caused my behavior or it -- it contributed to the
6 events, going to that.
7 MR. MCMAHON: Why is that more appropriate --
8 THE COURT: It's not -- well, it's not ordinarily
9 circumstantial evidence. But --
10 MR. STULL: Well, for -- it --
11 THE COURT: Circumstantial evidence is such as question
12 is -- and this is from the civil instructions. But anyway, the
13 question is whether there was a plane. Somebody could testify
14 they saw a jet plane, and somebody can testify they saw a white
15 trial that jet planes usually use. That's circumstantial
16 evidence.
18 THE COURT: The direct testimony is there was a jet
19 plane. Either way it's testimony that a jet plane flew. So
20 that's the definition -- I mean, that's the example of what's
21 circumstantial, what's not circumstantial.
22 MR. STULL: I was just thinking that the diagnosis from
23 the that long ago was still having an impact the -- you know, the
24 condition diagnosed that long ago is still something to be
25 considered on the day of this event those many years later.

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1 THE COURT: I haven't given -- well, I personally
2 prefer inferences. Inferences and reach conclusions from the
3 evidence. If you also want circumstantial evidence, I'll put
4 circumstantial evidence in --
5 MR. STULL: Yeah.
6 THE COURT: -- as well.
7 MR. STULL: Yeah.
8 THE COURT: Okay.
9 MR. STULL: Yes, please.
10 THE COURT: Then I'll leave them both in.
12 THE COURT: And moving on. The definition of voluntary
13 act or omission, I am not at all sure why we're giving this
14 instruction at all, but we're certainly not -- is there any
15 particular reason that we're giving that instruct -- suggestion
16 in that instruction?
17 MR. MCMAHON: I don't think there's any factual
18 information on the record, especially given Mr. Stull's recent
19 testimony, that brings into question any issue of voluntary act
20 or omission.
21 MR. STULL: Your Honor, there's -- Mr. Kelley can
22 address this point.
23 THE COURT: If he's speaking for you, otherwise he can
24 advise you --
25 MR. STULL: Yes, he is.

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1 THE COURT: -- and you can address that point.
2 MR. STULL: He is. And to let you know, this is his
3 forte, and it's not mine at all. That's why I have the legal
4 advisor.
5 THE COURT: And that's why people ordinarily do have
6 lawyers to represent them. But you chose not to. So --
7 MR. STULL: Right.
8 THE COURT: -- he can advise you, but he's not going to
9 speak for you.
10 MR. STULL: Well, right.
11 MR. KELLEY: I would be brief, Your Honor.
12 MR. STULL: All right. That's fine.
13 MR. KELLEY: Could I speak for Mr. Stull?
14 MR. STULL: Yeah, but he --
15 MR. MCMAHON: Well, Mister -- yeah, that's --
16 MR. KELLEY: Okay. All right.
17 MR. STULL: He can speak with my permission, if you'll
18 allow it, Your Honor.
19 THE COURT: No.
20 MR. STULL: Okay.
22 MR. STULL: All right. That's fine. But then he's
23 going to tell me about it.
25 MR. STULL: Oh, yeah, there is the missed -- the issue

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1 of whether my medical condition causes me to act involuntarily.
2 THE COURT: There's been no -- no testimony of that at
3 all.
4 MR. STULL: Okay.
5 THE COURT: The most I would give, and I can't think of
6 any reason not to, except that it says (indiscernible), is 1 and
7 2. But there's no issue about omissions, or conduct, or act, or
8 culpable medical -- mental state. Those are definition which are
9 useful for the Court and understanding other criminal statutes.
10 But they are not useful for the jury or defining words that the
11 jury is never told to use. So I can tell them that an act is
12 bodily movement, and a voluntary act is a bodily movement
13 performed consciously. So that's what I'll give them.
14 On the defense of choice of evils, it's my concern that
15 there is not evidence in the record that the conduct actually was
16 necessary.
17 MR. STULL: Oh, the --
18 THE COURT: And in the -- in order to give an
19 instruction as to defense, there has to be something in the
20 record that would entitle a jury to follow it.
21 MR. STULL: Your Honor, I think that the choice of
22 evils is expressed in its name, that there are two things that
23 you are choosing amongst. And the choice here was whether I
24 would vent my adrenaline surge in the police car by damaging the
25 police car, or whether I would have a heart attack. I'm using

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1 the word heart attack. It's really circulatory failure. But I
2 testified to that effect.
3 THE COURT: Well, you testified that --
4 MR. STULL: That the --
5 THE COURT: -- you were afraid of it.
6 MR. STULL: Right.
7 THE COURT: But you don't have the qualifications to
8 testify that it as manic -- as a medical possibility that either
9 of those things could actually have occurred.
10 MR. STULL: Well, the -- I think the -- and I think
11 it's the State vs. Matthews, the incident was that the fellow had
12 something -- an interaction with a police officer, and he had to
13 get home because he thought his mother -- his sick mother was
14 going to have -- have some kind of consequences, and to depart
15 the scene or whatever it was, was the choice -- was the choice,
16 and that -- I think that's the Matthews case.
17 But, Your Honor, just so you know what I'm not saying,
18 I'm not saying -- and we already have this in the case law --
19 that you can break a police car because you were wrongfully
20 arrested. That is not the kind of theory that I'm going on. I'm
21 saying that I have a physiology, that the choice there, since I
22 was in a parked vehicle not getting medical treatment that I had
23 requested at that point for somewhere getting close to an hour,
24 and I didn't seem like I was getting any closer to the jail where
25 I was offered the wonderful services of medical treatment over

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1 there. So I was trapped in the car. I was sick. I was sicker,
2 certainly, than I had already been at the point that I identified
3 that I needed medical treatment, and --
4 MR. MCMAHON: Excuse me, Mister -- Mr. Stull, I can
5 forestall some of this. I will not -- I think because there is
6 the slight potential for a meniscal of evidence to potentially
7 the choice of evils, I think that that's appropriate. I would
8 object to duress, because I think duress is ill-applied here.
9 THE COURT: Duress doesn't apply, no.
10 MR. MCMAHON: Yeah, since there's not a person acting
11 out --
12 THE COURT: All right. We'll leave this in.
13 MR. STULL: Yeah.
14 THE COURT: But you have to know what crime you're
15 asserting that it --
16 MR. STULL: Duress, Your Honor --
17 THE COURT: No, no, no.
18 MR. STULL: -- what we're taking out --
19 THE COURT: Wait. No.
20 MR. STULL: I'm sorry. I didn't know which one we're
21 talking about.
22 THE COURT: We're not talking about duress. We're
23 talking about choice of evils.
24 MR. STULL: Oh, that would be for the --
25 THE COURT: You have a blank that you have to fill in.

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1 MR. STULL: That would be for the third count, Your
2 Honor, the criminal mischief only.
3 THE COURT: Okay. Okay. Now, as to duress, duress
4 requires some evidence that you were forced to do the things --
5 MR. STULL: No, no, Your Honor. I --
6 THE COURT: -- that you -- were done by somebody else's
7 coercion.
8 MR. STULL: I don't need duress.
9 THE COURT: Okay. We'll take duress out.
12 MR. MCMAHON: So, Your Honor, on the next three, we've
13 got three, defense of physical force, defense of person, defense
14 of physical force involving peace officers, and self-defense,
15 resisting arrest. The first two aren't -- well, the second one
16 is in a case involving a police officer using deadly force, so
17 that's totally --
18 THE COURT: Most of it is about that, and I wouldn't
19 discuss deadly force. And there was no evidence here that any
20 police officer knew that the arrest was not lawful, nor, indeed,
21 no evidence suggests that it wasn't. So it just seems to me that
22 the only part that could be relevant is, "That a police officer
23 is justified in using physical force on a person being arrested
24 when -- and to the extent that he reasonably believes it
25 necessary to make an arrest."

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1 MR. MCMAHON: Sure, we can leave that part, and I think
2 that's appropriate.
3 MR. STULL: Yep, that's fine.
4 THE COURT: Okay.
6 MR. MCMAHON: The defense of physical force, defense of
7 person, I think it's redundant to give both that and the
8 self-defense, resisting arrest. Since this is a resisting arrest
9 case, I think it's appropriate to just use that.
10 THE COURT: I'll take it out. The one is more
11 specific, and it seems to be --
12 MR. STULL: Okay.
13 THE COURT: -- applicable to what's charged here.
14 Now --
15 MR. STULL: I --
16 THE COURT: -- with respect to that defense, there was
17 an improved instruction in State vs. Yen Lin Wan, and that
18 followed almost exactly the same kind of approved instruction by
19 -- in the Supreme Court case relevant. So -- at 347 Or.App. 194.
20 So what I will give is the instruction in State vs. Yen Lin Wan,
21 which I believe to better than this one. That instruction says,
22 "If the Defendant believed and a reasonable person in Defendant's
23 position would have believed, that the use or imminent use of
24 force against him exceeded the force reasonably necessary to
25 effect the arrest, then he was entitled to defend himself from

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1 that force. And the burden of proof is on the State to prove the
2 -- to disprove the existence of self-defense."
3 MR. MCMAHON: The State has no objection.
4 THE COURT: The important point is that whether a
5 reasonable person would so believe. Not whether the Defendant so
6 believed.
7 MR. MCMAHON: I got that. No objection.
8 MR. STULL: No objection, Your Honor. Thank you.
9 THE COURT: Okay.
10 MR. MCMAHON: I think that addresses the entire jury
11 instructions, correct?
13 THE COURT: So that gets us through. Are there any --
14 is there anything else that we need to --
15 MR. MCMAHON: No, Your Honor.
16 THE COURT: -- do with instructions? Anything else
17 with instructions?
18 MR. STULL: Pardon me, Your Honor. I was hearing
19 Mister -- Mr. Kelley here.
21 MR. STULL: Oh, the request -- oh, for the record,
22 Defense's request for a special jury instructions was definition
23 of a physical injury, was in addition to and not instead of the
24 Uniform Trial Court Rules of --
25 THE COURT: I'm not going to give that. That's a

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1 comment on the evidence.
2 MR. STULL: That's fine. Thank you, Your Honor.
4 MR. MCMAHON: Thank you, Your Honor. 1:30?
5 THE COURT: 1:30.
7 THE COURT: Okay.
8 (Lunch break was taken from 12:39 p.m. until 1:39 p.m.)
10 MR. MCMAHON: I think he may have one of them. I'm not
11 sure if it was on there.
12 THE CLERK: I do not have one of them.
14 MR. STULL: I have it and I'm sorry about the errors on
15 there.
16 MR. MCMAHON: The State's objecting to the admission.
17 It's not been properly authenticated no proper foundation has
18 been laid.
19 THE CLERK: It's on -- it's fine. The record is on.
20 Go ahead.
21 THE COURT: All right. What's the issue?
22 MR. MCMAHON: Mr. Stull, are you attempting to offer
23 101 into evidence, or the three?
24 MR. STULL: Yes. Yeah, we could put in the record.
25 MR. MCMAHON: The State objects. There's not been

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1 proper foundation laid. It has not been properly authenticated,
2 and there has not been a sufficient finding that it is -- that it
3 does, in fact, qualify as a public record that would warrant its
4 inclusion into the record.
5 THE COURT: Okay. What is 101? Could I have a copy?
7 THE COURT: Could I have a copy?
8 MR. STULL: -- Barry Joe Stull, pro se. I have a
9 document. It's dated December 1st, 2015. It was referenced on
10 the -- as part of the testimony simply because somebody tried to
11 take it over and give it to me over at the --
12 THE COURT: Could I have a copy of it?
13 MR. STULL: Oh, yes. I didn't know you didn't have it.
14 (Pause.)
15 THE COURT: This is on December 1, 2015?
16 MR. STULL: Well, it discusses the events on the
17 November 25th, 2000 --
18 THE COURT: Well, it's --
19 MR. STULL: It's the city's report and permanent
20 exclusion from City Hall based on the city's report. And it's
21 characterized as -- they're asking for the Multnomah County
22 medical transport information. The information desk lists
23 something to the effect of requesting the city provide me
24 transport in it. It specifically -- specifically, in this
25 instance, contradicts what the city zone security guard, James

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1 Wood, said about it. And it's a public record, and it's a
2 business document, and I do have my original served to me, copy
3 of it. Actually, it was served to me by -- as it says in the
4 accompanying report, Corrections Sergeant Shaut, S-h-a-u-t, the
5 Multnomah County Detention Center, and the relevance is that it
6 shows city's really going to extraordinary lengths to stir up a
7 bunch of froth out of nothing in order to exclude me from my
8 access to public testimony.
9 THE COURT: Okay. I'm -- I am excluding it.
10 MR. STULL: Okay. Well, we'll just enter it into the
11 record. Thank you. I'm prepared to rest, Your Honor.
13 MR. STULL: Which I know I have to do in front of the
14 jury.
15 THE COURT: Well, first of all he has to put on the
16 record he's not going to cross-examine.
17 MR. MCMAHON: And, Your Honor, I would just -- I think
18 just in terms of particularly jury instructions, I would request
19 that the Court instruct and -- before he close. Is that
20 permissible, or do you prefer to instruct after he does?
21 THE COURT: I prefer to instruct after.
23 THE COURT: And are you going to cross-examine or not?
24 MR. MCMAHON: No.
25 THE COURT: Okay. Very well. Then -- and you've

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1 rested?
3 THE COURT: Okay. Then we'll get the jury back. I
4 left my draft jury instructions back here, and I want to have
5 them in front me so I can do that. So --
6 (The Court exits the courtroom.)
7 (Parties/clerk discussions.)
8 (The Court enters the courtroom.)
9 THE COURT: Just one second. I wanted to get a sense
10 of how long closings are going to be, just for the sake --
11 MR. STULL: Mine's going to be really brief, Your
12 Honor. I'm -- I mean, for me, you know. So maybe 15 minutes.
14 MR. STULL: Ten minutes. I don't know how long long
15 is, so, you know, but -- so --
16 THE COURT: Well, how many --
17 MR. STULL: -- I'm saying -- I'm saying maybe --
18 THE COURT: Do you have any sense of how many minutes?
19 MR. STULL: I don't see how I could take -- possibly
20 take longer than 10 or 15 minutes.
21 THE COURT: Okay.
22 MR. STULL: And that includes anything to do -- I don't
23 think I'm going to be showing the video or the audio. I'm just
24 going to be talking.
25 THE COURT: Okay.

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1 MR. STULL: Which you know I talk a lot, and I'm just
2 going to do that.
3 THE COURT: Okay. And how about you, Mr. McMahon?
4 MR. MCMAHON: I'm going to play clips of videos, but I
5 don't imagine it will take longer than half hour, 40 minutes or
6 so.
7 THE COURT: Okay. All right. Very well. Let's get
8 the jury back.
9 MR. STULL: Okay.
10 (Jury summoned.)
12 THE COURT: Very well. We have had all of the evidence
13 in the case. Both sides have rested their cases. We're now
14 going to hear closing arguments. Remember that closing arguments
15 are meant to assist you in understanding the arguments offered by
16 each side. They are not intended to change or to supplement the
17 evidence. So none of the statements that are made by the parties
18 at this time is testimony. If you didn't hear it in the
19 testimony under oath from the stand, then you disregard it. So
20 we start with the State, in view of the State's burden of proof.
22 And may it please the Court, counsel, ladies and
23 gentlemen.
24 At the beginning of this big trial, I said something.
25 You deserve a (indiscernible), and the theme was Barry Stull lost

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1 control. Nothing has changed. Because sometimes themes and
2 stories change with evidence as things come out. They adapt.
3 And I think it is clear from the evidence, the testimony,
4 Mr. Stull's behavior in court, that he didn't lose control on
5 November 25th, 2015. He knew exactly what he was doing. He knew
6 what to expect. He knew what he was going to do, and he reveled
7 in it. So he reveled in that same attention, the show, the
8 spectacle, just like he did in court over the past week.
9 It is clear from the evidence and, more importantly,
10 from Mr. Stull's own words that you heard this morning, that he
11 knew he was excluded from City Hall and he went down there
12 looking for a fight. You heard him say, "I knew I was going to
13 be arrested. I was going to get arrested either there or when I
14 kicked in the door at Kafoury Court." He knew exactly what he
15 was doing. Despite him telling you about this amazing, "Oh, I
16 need a" -- he called it a lugubrious environment, nice and calm.
17 "I was stressed out that day. I didn't want to aggravate it."
18 But then at the same time, he said, "No, I went down there with
19 the purpose of getting arrested. I had this song. I had it
20 checked out by a lawyer because it was so inflammatory. I wanted
21 to make sure I wasn't breaking the law because I was singing it."
22 He was going to have his moment.
23 Now, you'll see this video, and I've moved it up to
24 about the 21-minute mark. You've already listened to its
25 entirety once, because the first 20 minutes of that video is just

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1 Mr. Stull doing, on November 25th, what he did here today, create
2 a scene. Getting himself worked up and reveled in it, in the
3 attention from the audience, and the fact that he got to be the
4 center of attention. Everyone had to pay attention to him, had
5 to focus on him. And then in that speech, he kept getting worked
6 up, and worked up, and worked up. And despite the statements of,
7 "Oh, you're triggering my disability," at the very beginning of
8 that video, it happens at about the second minute, did he leave?
9 Did he walk out? Did he follow that exclude order that he knew
10 was in place? No. He stayed there and he continued to talk, to
11 rant, to revel in that moment. And he got worked up then, just
12 as you saw him get worked up in court a couple of times.
13 MR. STULL: Your Honor, I object.
14 MR. MCMAHON: And then he advanced --
15 THE COURT: About what?
16 MR. STULL: The demeanor of the Defense counsel has
17 nothing to do with the witness or the evidence.
18 THE COURT: Overruled. This is an argument.
19 MR. MCMAHON: You saw as he advanced at Officer
20 Engstrom, yelling at him, pointing at him, walking towards him to
21 the point where the Judge had to order him back. He got worked
22 up then just as he did in that City Hall. He spun this tale of
23 how everyone's out to get Barry Joe. "They're all out after me.
24 Here I am, nonviolent," even though, as you heard, again, in his
25 testimony, "I've got the strength of 10 men. I can kill people.

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1 I create weapons."
2 But, oh, no, Barry Joe would never aggress -- he would
3 never be aggressive. He was never the instigator. I would
4 invite you to pay careful attention -- and I'm going to play the
5 video right now because I think it is critically important to
6 look at and to see what happens, to see the guy who has Sergeant
7 Axthelm, here, walking around Mr. Stull, telling him, "You don't
8 want -- we've got an ambulance outside. You can just walk out
9 and we'll get you in that ambulance, and you will go home, and
10 you will deal with that pain syndrome." But Barry Stull wanted
11 the attention, and he wanted to be the center of that room, all
12 eyes on him. And that's exactly what happened.
13 (Whereupon, an audio/video recording, State's Exhibit 1
14 was played in open court and transcribed to the transcriber's
20 charge. Hey, why did I hear on the radio, "Assistant" -- or
21 "Acting Chief"? What happened to Chief O'Dea? What happened to
22 Chief O'Dea?

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4 drummer."
8 MR. COHEN: Yes.
12 MR. COHEN: Okay.
15 the public --
20 MR. STULL: Hey.
21 MR. COHEN: Two now. We're going to get the press out
22 now, too.
23 (Pause in recording.)
24 MR. MCMAHON: And I want you to notice something.
25 He's not talking to the audience. He's talking to the camera.

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1 He knows it's on. He knows what he's doing. He wants this. He
2 wants this competition. He wants people to get loud. He wants
3 people to ache for him on his fantasy of violence, and his
4 (indiscernible) and complex idea of what's going on in the City
5 of Portland, the crazy things that are happening there. But what
6 you will notice, in the rear, is people said -- everyone except
7 for Barry refuses to engage. They try to deescalate, to calm
8 down. You heard testimony from Officer Engstrom that they were
9 trying to deescalate. And they didn't use any strikes, low
10 blows, or -- except Mr. Stull characterization, to gain
11 compliance. They used the least level of force possible, and
12 they only used that force after Mr. Stull punched a police
13 officer. Right up until that point, they were going to walk him
14 out, get him contact with that (indiscernible) respond, get him
15 in contact with that ambulance. But it was Mr. Stull who
16 continued to aggravate the situation, to make it more aggressive,
17 to fight to make it worse, and to draw that attention to him. He
18 got wound up. He got caught up in this fervorous frenzy of
19 anger, of agitation, and he took it to the next level. He
20 refused the clear offers for help, the 20 minutes to try and get
21 him out of that room. He's pulling, and Barry Stull, and Barry
22 Stull, turned it into a violent confrontation, at which point the
23 officers had no choice but to take him into custody. He punched
24 a cop.
25 (Whereupon, State's Exhibit 1 continued)

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5 record.
7 SGT. JOHNSON: Sit down, Mr. Stull. Sit down,
8 Mr. Stull.
11 MR. DAVIS: No.
12 SGT. JOHNSON: You're out. 69 him.
19 MR. STULL: No.

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3 (Recording pause.)
4 MR. MCMAHON: And that exchange, where Officer Engstrom
5 walks up, in a calm voice tells him, "Calm down, Barry."
6 Mr. Stull advances, rushing towards them. And, again, Officer
7 Engstrom puts his hands up, (indiscernible) him by the back of
8 the hand, "Barry, we're going to take you outside. We're going
9 to take you to the ambulance. We're going to get that help you
10 want." But watch what Mr. Stull does, riled up, the center of
11 attention, reveling in this scene he has created, Mr. Stull makes
12 it violent.
13 (Whereupon, State's Exhibit 1 continues.)
23 MR. DAVIS: No.

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1 MR. COHEN: You're out of here, now.
3 MR. COHEN: You're out.
5 MR. COHEN: Now you're done.
7 (Recording ends.)
8 MR. MCMAHON: After that punch, the officers don't
9 throw him to the ground because they're worried about the pain.
10 The officers don't pull out their taser because they don't think
11 that's appropriate. The officers don't use any compliance
12 because they don't feel that's appropriate. They don't pull out
13 their guns. They don't pull out their pepper spray. They grab
14 him, try to prevent him from hitting them, take him to a safe
15 place in the area that they've got, and they cuff him. They
16 don't cuff him with just one set of handcuffs. They put two
17 handcuffs on him to accommodate the fact that he can't close his
18 arms behind his back. They make every attempt to deescalate that
19 situation.
20 Watch as Officer Engstrom is like, "We're going to call
21 you the ambulance. We're going to get it," in a calm, low voice.
22 You can see it on the video. Mr. Stull, somehow, in his mind,
23 converted that calm, reassuring tone into, "I'm going to take you
24 to jail, and then I'm going to put you in jail for assaulting a
25 peace officer." Watch that video as many times as you need to.

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1 It's clear that Officer Engstrom tried to deescalate the
2 situation and resolve it peacefully. But, again, Barry Joe
3 wouldn't let him. Barry fought. Barry struggled. He tried to
4 get away from the officers, pulling, clenching, to the point
5 where three of them had to take him into custody as opposed to
6 the normal two-person custody
7 Now, there's another video, and I think this one is
8 especially telling. Because in that video you can actually see
9 Mr. Stull's face. And you can see the look of anger and rage.
10 And you can see the fact that this wasn't him blacking out. This
11 wasn't him simply losing control. This was him lashing out in
12 anger, that he meant to try and hit that police officer, and that
13 he tried to cause that police officer physical injury. What else
14 can you -- what else can you infer? From a man taking a closed
15 fist and punching someone's head and neck. It is clear from
16 Mr. Stull's actions. Again and again, he was given an
17 opportunity to disengage, to walk away, to end the encounter, but
18 he couldn't, because to do that he would give up the spotlight,
19 he would relinquish his position at the center of attention in
20 this grand theater he insert -- he had created in the City Hall
21 council chambers.
22 Ladies and gentlemen, look at Mr. Stull's face. He is
23 angry. And in that anger, he lashed out and punched a police
24 officer. And after that officer placed him in custody, they
25 walked him out to that patrol car and he kicks, what they

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1 describe as a mule kick, twice to the shin. Now, you've seen all
2 the evidence, all the photographs, and literally, Officer
3 Engstrom wasn't injured when he was kicked in the shins, but it
4 is important to document everything that happened that day,
5 because it was clear that they would soon end up in another
6 theater being (indiscernible). Mr. Stull's fantasies are on
7 display in this entire video. The fact that he was certain he
8 was going to be arrested. He testified, and I'll be frank with
9 you, I mean, his testimony, I was surprised, you saw it. I
10 didn't expect that. It's just a second act in this play he has,
11 this misguided attempt to have his voice heard.
12 And we absolutely have a right to make our opinions and
13 our voices heard. Even if we may not agree with them. Even if
14 they may seem silly or absurd. But what we don't have the right
15 to do is to break the law, to resort to physical violence when
16 people step in and tell us what the rules are. And Mr. Stull
17 clearly has a problem with authority. He can't deal with the
18 fact that someone wants to tell him what to do. And that even
19 those people with authority were trying to get him help, he is
20 almost physically incapable of acknowledging what they are trying
21 to do, and he's just looking for an opportunity to lash out, and
22 that's exactly what he did.
23 He lashed out at a police officer. He lashed out and
24 kicked them again as they were taking him into the patrol car.
25 And once he was in the patrol car, in his own words, mind you,

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1 and I wrote them down because I thought they were important, "I
2 tore the hell out of it, and did as much damage as I could. I
3 wanted to teach them a lesson. I wanted to decommission that
4 police car. I wanted to take it out of rotation." He then went
5 on to say, "I get (indiscernible). I can improvise about this."
6 All of these, frankly, somewhat discriminating
7 statements and violence and anger that are manifested in his
8 actions on November 25th, it is clear from the evidence that,
9 contrary to the fantasy that Mr. Stull has constructed, where
10 somehow in that exchange Officer Engstrom was the aggressor, that
11 somehow in that exchange Sergeant Axthelm was the one who
12 provoked it, that somehow in that exchange he was justified in
13 punching a police officer, and that somehow in that exchange, and
14 that in his experiences with the sheriff's office, that, oh,
15 Barry Joe would never be aggressive.
16 Now, ladies and gentlemen, it's clear that Mr. Stull
17 has opinions. But it's also clear that he knew exactly what he
18 was doing. He wanted to be heard. He wanted to be the center of
19 attention, and he got his wish. And when his time in the
20 spotlight was over, he got angry, he lashed out, and he broke the
21 law. He attempted to cause physical injury to Officer Engstrom.
22 He resisted efforts to take him into custody, and he tried to
23 damage that police car, the property of the City of Portland to
24 teach them a lesson. Those are the facts you've heard.
25 After Judge Robertson instructs you as to what the law

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1 is, I would ask that you apply those facts to that law, and
2 convict Mr. Stull on all three charges. Thank you.
5 I'm beginning by processing, as I do this, so we can
6 all understand that the Defendant in this case does, indeed, have
7 some capacities. And the first thing I want to draw your
8 attention to is the testimony of Officer Engstrom, specifically
9 one point, and then I'll go around. And I'm not going to be
10 showing the video, but we may -- might very well leave that one
11 up there for the -- what I'm about to tell you. Officer Engstrom
12 said that there's a pressure point above by the ear, he said.
13 That sometimes it's a nerve and they press on that, he says, as
14 police officers do.
15 He trains police officers, you'll recall, he testified.
16 And so when he trains police officers he probably, inferentially,
17 he trains them to do the things that he knows about, and one of
18 the things he knows about is this little spot where you can push.
19 And you might try that when you get to the jury room, if somebody
20 wants to volunteer to see how much that hurt. But he does that -
21 - pain is distracting -- hopes to distract the person, and then
22 maybe he can get them -- or whatever else he wants to do. He
23 acknowledges it, that the reason he does that specific thing is
24 because pain is a distracting.
25 Let me -- before I turn this off, you're going to have

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1 access to all of these documents, all the videos, everything you
2 need. I'm not going to show you what we've already watched so
3 many times. That's not why I'm here. I'm here to make closing
4 arguments. I'm here to say, this angry face right there, the
5 video is paused at a perfect moment.
6 So a police officer, he's got one glove on. The other
7 glove is not on him. You can probably see it laying on the table
8 there. Because he's in such a hurry. His supervisor here, and
9 this gentleman here, Officer Singh, and this gentleman here,
10 Michael Cohen, and this is James Wood. Every one of these people
11 testified. (indiscernible). Oh, my God, can you imagine this
12 poor man, Officer Engstrom, who (indiscernible). He's not going
13 to be able to put somebody in jail, two counts of felony assault
14 on a police officer. Poor gentleman got kicked twice to charge
15 somebody after you arrest them. Two counts, he mentioned, right
16 here in his hand. He testified in his hand, two felony counts of
17 assault. Felony assault, twice. Right there I'm not under
18 arrest. He said so himself, right at that moment, right there, I
19 am not under arrest. In fact, what I'm saying, "Where is the God
20 damn ambulance?" You watched that. I'm not going to repeat
21 that. You can see that yourself. But that's the moment that the
22 State is focused on.
23 What time is that? There's a time code on here.
24 9:44:49, I believe. 9:44, I'm (indiscernible). You also see at
25 the very beginning of the video, about 9:20, 9:25. So this man,

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1 he representative of the State's case, wants you all to believe
2 the 20 minutes -- fully 20 minutes after I asked for an
3 ambulance, "We will call you one." Because Officer Singh says he
4 doesn't (indiscernible). He's going to me one. We don't have to
5 worry about that because he's not in charge. Todd Engstrom is
6 under the supervision of Sergeant Axthelm. Now, right there,
7 he's taking charge, like he took charge, as you'll see later, to
8 transport -- as Officer Singh testimony -- testified, transport
9 the prisoner out of the building. That's what he thought. Then
10 you're going to see that prisoner right here on this tape.
11 Officer Engstrom planted wrist lock. There's an
12 opportunity to mule kick. That is the opportunity. You're going
13 to see one thing. You're going to see that leg of mine, with my
14 lethal force feet, not kicking him. But instead, having that
15 option, because I'm such a vicious mad dog, improvisor of
16 weapons, losing that opportunity, I'm going to kick him in the
17 shin. And then after I lose the opportunity to completely stop
18 him from being a police officer, or at least as one who takes
19 (indiscernible) control, missing that kick opportunity and
20 affecting the mule kick, his words, mule kick, losing that
21 opportunity, I then proceed to go into the police car where I
22 snap off the metal fixtures on the roof while I'm still
23 handcuffed behind my back.
24 It's fair to say -- this is not testimony. It’s
25 argument. It's not testimony. But I heard some things that I'm

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1 going to rebut. Barry Joe Stull is not afraid of getting
2 arrested, part of the testimony. And that (indiscernible)
3 getting arrested. You can go across the street right out here,
4 it says on the wall -- we can go to the street that that name --
5 that quote is named after, right beside the river, Martin Luther
6 King, Jr. Boulevard, named after, I assume, Martin Luther King,
7 Jr. The quote over there says, "Injustice anywhere is a threat
8 to justice everywhere." Maybe not inside the jail. A letter
9 from the Birmingham Jail. (indiscernible) is not in jail. So you
10 can see that.
11 Another street in Portland is Rosa Parks. She got
12 (indiscernible). They say her feet were sore. Oh, her feet were
13 so sore she didn't want to stand up to give her seat away. No,
14 she was (indiscernible). And she was heavily involved with an
15 organization. That was a planned action. She knew she was going
16 to be arrested. Rosa Parks knew she was going to be arrested.
17 She didn't know she was going to get a street named after her in
18 Portland, Oregon, but she knew she was going to get arrested.
19 Martin Luther King, Jr., knew. He didn't know he was going to
20 get assassinated, but yet -- he didn't know he was going to get
21 assassinated, he was coming. He said so. "I paid for the
22 microphone." (indiscernible). You saw it. Martin Luther King
23 (inaudible.)
24 The Defendant here never said, even here, someone's
25 going to shoot him. He said, "They've been trying to kill me."

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1 How do you know that? Well, not going to be arrested, not going
2 to be arrested, not going to be arrested, not going to be
3 arrested, you're going to be arrested. I mentioned black, like
4 an orange, a man. Went the other direction. Well, what
5 direction is it? It's political. An apple and an orange. It's
6 black and white (indiscernible). There's no question it's an
7 orange. You saw what it was. Or what color is it? It's orange,
8 too. The only likening we have here, is you all have to agree.
9 That's the way it works. The Judge will tell you all that. The
10 three options in your all agreeing is agree unanimously for the
11 State, agree unanimously for the Defense, or agree unanimously
12 (indiscernible). Agree with them, that they reached their burden
13 of proof. The Judge will tell you what that all means.
14 (indiscernible). Agree with the Defense that they having, render
15 a not guilty verdict. If you can't agree, (indiscernible) it's
16 not unanimous. Judge will tell you what that means. But it
17 means that (indiscernible). It's not over.
18 So I want you to do what I know that you're capable of
19 doing, rendering a decision of not guilty on all these counts.
20 (indiscernible). First of all, you're going to have the exhibits
21 in this case, the photographs. If you're going to agree, you
22 can't (indiscernible). Take me off the job. This isn't some
23 back alley up in north Portland. This is the man who is on the
24 job. This photograph is a product of the State's case. I didn't
25 make this photograph. You can't read his name because it's

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1 blocked by a taser. Oh, who is this guy? He's the guy that
2 testified that his version of de-escalation is to not use a
3 taser. He decided not to use a taser, he'll just keep his hand
4 on it. He doesn't need his eyeglasses to read. They just keep
5 people from poking him in the eye, (indiscernible) of the hair.
6 You'll see it in the video, grabbing my beard the first thing.
7 He doesn't have a beard. (indiscernible).
8 He trains police officers to defend themselves from
9 other people and fights, right? What else does he do? He uses
10 force. Appropriate use of force is to use a wrist lock, he says.
11 How long? It doesn't matter because you're going to see the
12 whole process of excessive use of force means that Sergeant Price
13 has 72 hours to complete the report based on who he interviews.
14 Didn't interview me. Expected me to call him at the jail. Okay.
15 That didn't work out. That testimony, that couldn't even serve
16 paperwork without me in jail. I'm supposed to call so they could
17 have their 72 hours. What is the 72 hours? Well, since the day
18 was Thanksgiving. The report -- it was done. It was not.
19 What's in that use of force report? No injuries. Who? Not him.
20 Not him. Oh, but later he remembered that he was injured. He
21 came in after lunch and said so. Something about a bruise on his
22 arm. (indiscernible). But he did make sure that when he came in
23 here, correct, and he let us all know because that was the issue
24 I was asking him about. So if you believe that that bruise on
25 his arm was caused by me, you can believe that the

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1 (indiscernible) were caused by me, because you have the exact
2 same foundation for that belief. It's all comes from the guy,
3 the day that happened, he filled out the form saying no injuries.
4 Now, I'm going to compare a couple things here. We've
5 got this angry, angry, angry, saying, "Where's the God damned
6 ambulance?" "Oh, we'll get you one." Isn't that teasing? Isn't
7 that how you tease somebody, a dog? "Here. Here. Oh, come on.
8 Come on. Come on. Come on. Come on. Come on." Sergeant
9 Axthelm, "When are you going to clear the room?" "We're not
10 going to clear," and as you see the room is being cleared. Plain
11 and simple. Plain and simple you're about to see. Then I say to
12 him he's not in charge. But what did I say, "Where's the
13 ambulance?" "We'll get you one." That doesn't matter anyhow.
14 It doesn't matter. It doesn't matter if I need medical
15 attention. Because here is the way it works. You saw it work.
16 Mr. Cohen, telephone in. What did he say? "Barry Joe Stull is
17 here and he's really worried up, fired up." Something to that
18 effect. I don't need to quote him. I don't to because you have
19 the evidence if you even want to consider it. I don't think you
20 even need to consider it. I just need to come down with a non --
21 not guilty verdict and then you can get out of here.
22 But look at that fellow? Now, I'm sorry about my hair.
23 You'll see in the video, I came in wearing a hat. At the very
24 beginning, 25 -- 20 minutes. You've got the time codes. Don't
25 count on that. Because this is -- this is everything. I can say

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1 it like this. Ladies and gentlemen, 1 million years, it doesn't
2 matter, the time. You have to rely on, what I said, right there.
3 The only performance alleged here in the courtroom, the orange.
4 That orange right now -- right now, this orange has nothing to do
5 with this case on November 25th. Nothing. It does not even come
6 into your mind because it's not entered into evidence in any way.
7 And neither is the statement that I wasn't going to get arrested,
8 ever. Oh, (indiscernible), but based off (indiscernible).
9 People (indiscernible).
10 MR. MCMAHON: Objection, Your Honor; facts not in
11 evidence. It's improper commentary.
12 MR. STULL: Okay.
13 THE COURT: You just got to argue based on the
14 evidence.
15 MR. STULL: I'm doing that, Your Honor. I'm sorry.
16 Look at this. What do we know about this picture right
17 here? This didn't happen yet. (indiscernible). Here, two
18 blocks away, as promised by Officer Engstrom, two blocks away,
19 "Oh, we were just going to talk and try to get you to respond,
20 and then we're going to see" -- or it might have been Sergeant
21 Axthelm (indiscernible). "We're just going to see. We might --
22 oh, no, we're going to have the paramedics check him out." They
23 were having that conversation. And who is going to get access to
24 medical treatment in jail? The same person that's not getting
25 access to the ambulance, for the same reason, because there's no

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1 reason. There was no reason. You thought this out. Here's what
2 we know. I come in, they say, "You're excluded." I say to him,
3 "That's bullshit." They had their chance. They had their
4 chance. See this is all they want, "We're not going to arrest
5 you." That could have been, "We're going to let you testify.
6 You got your bucket. You got your guitar. We're going to let
7 you testify." They could have made that decision, too, and they
8 didn't.
9 So I continue to (indiscernible) my anger, saying to
10 this gentleman, Mike Cohen, about the exclusion, "That's
11 bullshit." And then I'm going to turn around in a few minutes, a
12 few seconds actually, and I'm going to say to the gal sitting
13 over here at counsel table, "I have a disability.
14 (indiscernible) an ambulance." I said that to Officer Engstrom.
15 I said, "I need to go to the Emanuel Hospital." You don't see me
16 go over (indiscernible). When I got of the emergency room, blood
17 on my shoulder from being drugged. I don't need drugs. I need
18 my ambulance. I need an ambulance ride.
19 You can see (indiscernible), my ambulance ride. Step
20 up on the (indiscernible). I need an ambulance ride.
21 (Inaudible.) And what was right behind there? What was right
22 behind? My ambulance. Looks a lot like a police car to me, but
23 maybe I was confused. Because right behind that was the actual
24 ambulance. And we know from the testimony of all of the parties,
25 (indiscernible) simply this. With Mr. Cohen, (indiscernible).

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1 Once Mr. Cohen makes a call to the police, Mr. Cohen can't call
2 an ambulance for me. He says (indiscernible). Police didn't
3 call an ambulance. They don't even -- not one of those people
4 (indiscernible).
5 The next question was (indiscernible) -- Dr. Grimm
6 knows all about that in his chart, and you're going to have it.
7 I suggest you look at the picture, there's a sketch. And it's a
8 sketch that describes this is what this did. (indiscernible).
9 Don't even bother with that. Don't bother with it. Don't even
10 bother with that. Just look on there for three words. Three
11 words, and that is central pain syndrome. You heard that. You
12 heard that. Central pain syndrome. Those three words, central
13 pain syndrome.
14 7Twenty minutes later -- I mean, 20 minutes earlier,
15 you heard it right here, central pain syndrome. What does
16 central pain syndrome sound like? It's English. It sounds like
17 central pain syndrome. Who didn't hear it? Who didn't hear it?
18 (indiscernible). It can be considered, as I mentioned, I'll
19 think you'll find (indiscernible) on the tape. What was the
20 (indiscernible) going to do? (indiscernible). Says who?
21 Sergeant Axthelm, He's like, "(indiscernible) voices don't
22 matter. Yours do." Mine was, apparently, it wasn't really
23 planned, but the plan was that I would be transported out this
24 way. I end up on that table there. (indiscernible). And
25 Sergeant Engstrom -- or excuse me, not Sergeant Engstrom, it was

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1 Sergeant Price. No, wait. Let me say that again. Sergeant
2 Engstrom, no, Sergeant Price. No, it's Officer Engstrom and
3 Sergeant Price. And Officer Engstrom was on my left side, as he
4 said, escorting me when I was kicking. And Sergeant Price was on
5 my left side when I was escorted and when I was kicking. And
6 nobody was on my right side through the main glass door, all the
7 way to the police car, which explains, of course, why it didn't
8 happen. It didn't happen.
9 So I did (indiscernible). Mr. Kelley, as you know, is
10 my legal advisor. (indiscernible). Mr. Kelley wrote down some
11 fine notes. When did Sergeant Axthelm get here? When did he
12 call? When did he leave? Where did he get this information?
13 Pays attention to (indiscernible).
14 So what did you pay attention to right now? I hope you
15 remembered, that of all these police officers, including Sergeant
16 Price, this is the man in charge. He said so himself. He said
17 so. This moment right here is a product of, and this gentleman
18 is in the process of saying that the fellow photographing, the
19 other camera, he points -- he's under arrest. We heard him and
20 the diagram. We're not entering that as an exhibit, but here we
21 have my walking away when this man got in the way.
22 (Indiscernible) hadn't even engaged with him because
23 the fellow said that I was in the way of him arresting Mr. Davis.
24 Right before that, you can hear this clearly, Sergeant Axthelm
25 says to me, that angry fellow right there, said, yeah, the person

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1 in charge tells me to sit down. I can't. I can't sit down.
2 Todd Engstrom is pulling my hand. How can I sit down? I'm not
3 under arrest. He says so. Todd Engstrom says I'm not under
4 arrest. How can I sit down? Like this man, his supervisor said,
5 "Sit down," to me, and I can't because he's holding -- now, I'm
6 not under arrest, he's holding me. And the witness testimony was
7 that this man said to this man, according this man, "When you get
8 out of jail you're getting arrested for assault on a police
9 officer."
10 Well, what's it take to get arrested for assault by a
11 police officer when the police officer is Sergeant -- or, I mean,
12 Todd -- Officer Todd Engstrom? What does it take to get arrested
13 for assault on a police officer if the officer is Todd Engstrom?
14 What does it take to get arrested for assault on a police officer
15 when the officer is Todd Engstrom? Officer Todd Engstrom. He
16 was the only person that was interested (indiscernible). What
17 does it take for a person to be assaulted (indiscernible). Not
18 all physical contact. He has physical contact --
19 MR. MCMAHON: Objection, Your Honor; it misstates the
20 law.
21 THE COURT: I instruct as to the law. This gentleman
22 cannot instruct you as to the law. Disregard arguments
23 attempting to --
24 MR. STULL: I'll rephrase that, Your Honor.

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1 MR. STULL: I'll simply say this. Not all forms of
2 physical touching are illegal. Some forms of physical touching
3 are illegal for any number of exceptions in the law. I mean,
4 think of any -- I mean, think of all the different ways when
5 somebody be unlawfully touching another person. And among all
6 the ways that people can legally touch each other and unlawfully
7 touch each other, assault is one of those. (indiscernible). So
8 when they say it's assault, the Judge will give you the jury
9 instructions, the charging documents say that that they have
10 here, the charges, we have the jury forms, they'll tell you what
11 crimes you can consider. If it's not on the list, you don't get
12 to think that, oh, they did this.
13 We have to have a process here. I hope you understand
14 that I'm not here for (indiscernible). My friend was being
15 harassed. I had to say (indiscernible). But I certainly don't
16 want you to be mischaracterized in it. What did I do? I came
17 over here, and who objected? The same man who tells you that I
18 don't mind being arrested. This man wasn't going to arrest me.
19 This man wasn't going to arrest me. Nobody wanted to arrest me.
20 This man wants to arrest me.
21 Resisting arrest, what's that mean? We don't know. We
22 don't know. Does it mean when this man says, "Sit down," and
23 when this man starts up and saying, "We'll call you an ambulance.
24 Just calm down"? Would you say to a starving person, "Do you
25 want a cookie?" "We'll get you one." "What's in the bottom of

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1 the bag? That's not -- that's not a problem. We're going to get
2 you one. Just (indiscernible). So I want you to check their
3 lies. Didn't hear central pain syndrome.
4 MR. MCMAHON: Okay. And, Your Honor, at this point I
5 would object. To qualify something as lies, that's clearly
6 improper vouching, and it's impermissible for witness comment.
7 THE COURT: It is improper vouching.
8 MR. STULL: I'm sorry. I don't want to mischaracter --
9 THE COURT: And I order the jury to disregard any
10 characterization of another witness' testimony as true or false.
11 He can -- or lying or not lying. It --
12 MR. STULL: Yeah. I misspoke. You know, I didn't lie
13 when I misspoke. (indiscernible) mischaracterization, not a lie.
14 However, getting back to the point, Officer Engstrom said he
15 didn't hear central pain syndrome. He didn't hear any cries of
16 pain. That was just yelling. I hope the fellow who's training
17 people to use force in the City of Portland doesn't say, "You can
18 use force on them up until the point you hear crying in pain."
19 Because he never heard crying in pain. Nothing. Nothing. It's
20 on that -- in his presence, right when he gets here, that's a cry
21 of pain. And central pain syndrome, he didn't hear that either.
22 But he is the reason we're all here. Because I injured him, he
23 says. Or I attempted to injure him, he says.
24 What was the call for? Mr. Wood, James Wood, this
25 fellow here, he's got the video with -- not this one. This one

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1 has the time code. It starts, the video, with him sitting on the
2 phone and kind of look -- kind of frustrated. Why? Because he's
3 on hold for 10 minutes calling a nonemergency (indiscernible).
4 Well, that doesn't work out too well, so he calls Mr. Cohen. He
5 called Mr. Cohen, then he calls 9-1-1, said that, "Barry Joe
6 Stull is here." Didn't like the testimony (indiscernible).
7 Mostly verbal. Mostly verbal. No weapons. Whoops, you know
8 what just happened? The trap has sprung, no medical treatment
9 can be given to this man because Portland Police are involved.
10 Until the place is secured, even though the ambulance was there,
11 they said, we can't let them come in -- as Officer Singh
12 testimony, you can't let them come in to a dangerous situation.
13 People, when you watch this, other people sitting in
14 the gallery in this 20 minutes I'm not getting the ambulance.
15 Did any of them act like they're in a non-safe environment? You
16 see them sitting in the chair. They're doing things. They're
17 reading magazines. They're listening to on St. Charles Johnson.
18 Charles Johnson interrupted, and I said, "Mr. Johnson" -- it's
19 there, about the Chief O'Dea. It's in there. Nobody's
20 threatened. You can tell people aren't threatened. Look,
21 they're sitting around doing their thing. The only people who
22 were threatened were the Portland Police. And they're the
23 gatekeeper for the paramedics. They -- the paramedics can't come
24 into a dangerous situation. Why is it dangerous? Todd Engstrom
25 is what is dangerous.

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1 See that is the difference. (Indiscernible). There's
2 a difference. You see a part in there -- you've seen
3 (indiscernible) here. What you all hear isn't the case. This is
4 -- we're defending a case. We're defending a case. But, still,
5 you've seen me in this courtroom get upset. Walk to fast towards
6 a witness so that I had to be stopped. Good thing I didn't have
7 to be restrained and everything. I want you to look at all of
8 the evidence. And I challenge you -- I challenge each one of you
9 to look at the evidence the way he presented it. And look at
10 that one extra time. He doesn't have a case. He's got Todd
11 Engstrom, Sergeant Price fills out the use of force
12 (indiscernible). I'm not sure, but as near as I can tell.
13 There's no way -- there's no way, the whole -- it doesn't count.
14 Department of Justice, legal mandate. Officer Engstrom didn't
15 realize the document -- didn't even -- was familiar with it. He
16 said that, "Oh, they change it about three years ago," he said.
17 And I rebutted it. What's it say? It says legal mandate. Well,
18 what did they get from the other officers? 940, 940, 940.
19 What's that? It says Department of Justice. Well, why don't we
20 go to the Department of Justice. Reporting no injuries. No
21 injuries turns into two felony assault on a police officer.
22 Guess who was here this week? This guy and this guy.
23 (indiscernible). You can always count on (indiscernible). And I
24 have a very serious condition, and that document from the doctor,
25 qualified to use it. Every one of those police officers. I

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1 don't want to repeat myself too much, but nobody knew what
2 central pain syndrome was, and nobody bothered to call. The
3 blood on my arms from a trip to Emanuel Hospital emergency
4 department. Does anybody call them to see what that's about?
5 MR. MCMAHON: Okay. Objection, Your Honor. That's
6 facts not in evidence. I would ask that the jury be instructed
7 to disregard.
8 MR. STULL: Oh, I will say that --
9 THE COURT: Yes.
10 MR. STULL: Again, I'll say that another way.
11 THE COURT: The jury is instructed not to speculate
12 about things that were not shown in evidence.
13 MR. STULL: We will do this. No one called to inquire
14 of anyone in any way to explore what central pain syndrome is.
15 That is in evidence. They expressly said that. They made no
16 further inquiries to find out what central pain syndrome is.
17 So as you see, people have influences on other people.
18 You'll see Moses Wrosen touch me. He's my friend. And I said,
19 "I'm going to punch you in the face." And then a cop touched me
20 right there. I'm not under arrest. He's got his supervisor
21 saying, "Sit down." Who am I supposed to listen to? Not Todd
22 Engstrom. He's not a supervisor. And even if I wanted to sit
23 down, I (indiscernible). You can't follow two people at once.
24 And the Defense witness says, this person with a disability can
25 deescalate if he has one person to interact with, to be heard

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1 out, understood. Everything is fine. Nice and (indiscernible).
2 According to Officer Singh, this whole -- the reason that they
3 were talking to me is because he had to because I was in the way
4 of Kif Davis getting arrested. That's what happens. Otherwise,
5 could have been anywhere else doing anything else.
6 Ladies and gentlemen, we have one person missing of
7 being on trial in this case. We have the wrong defendant. You
8 get to decide who the defendant is. And it's not me.
9 MR. MCMAHON: Okay. And, Your Honor, I'm going to
10 object at this point. This is wholly improper and completely out
11 of line.
12 THE COURT: That -- well, I -- what was your objection?
13 MR. MCMAHON: That -- relevance. It's improper. It's
14 facts not in evidence. It's prejudicial. Accusing an officer of
15 being a defendant is --
16 THE COURT: Well -- well, it is not true that the jury
17 can charge anybody or decide the criminality of anybody. The
18 only issue is going to be the charges against this Defendant.
19 MR. STULL: Against me. Well, let me do it this way,
20 Your Honor, if you'll bear with me. I'm getting close, within
21 the next minute. I'm just supposed to be here to defend the
22 Defendant that's not supposed to be here. Who is going to take
23 responsibility for this? It's not going to be me. This person
24 didn't call for an ambulance, did they? This person didn't
25 follow his supervisor. Is this the wrong person? Could be.

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1 "I'm not going to clear the room." The room is cleared because
2 Amanda Fritz said so. We know (indiscernible) from the evidence.
3 They built a case that says State vs. Stull. It should be State
4 vs. Engstrom.
5 And I'll sit down. Orange, you can eat it.
6 The case is over, Your Honor. I'm done with my
7 arguments.
9 MR. STULL: Thank you for your service.
11 Mr. McMahon.
12 MR. MCMAHON: Mr. Stull (indiscernible). He got to be
13 heard. He got his moment of notoriety he wanted. He got to
14 stand up before you in the same manner, make the same disjointed
15 argument, ran by the same disjointed theories and ghosts. It's
16 his world. What exactly is going on in Mr. Stull's head?
17 Because in Mr. Stull's head, Officer Engstrom apparently should
18 be the defendant. In Mr. Stull's head, this document, the
19 Defense -- Defense 101, (indiscernible).
20 This is the document you saw, Dr. Grimm. It's from
21 2006. It's about medical marijuana. In Mr. Stull's head, that
22 permission for medical marijuana card somehow became a get-out-
23 of-jail-free card. In Mr. Stull's head, Officer Engstrom telling
24 him, "We have an ambulance outside," somehow becoming Officer
25 Engstrom having been assaulted. In Mr. Stull's head, he wants

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1 to teach them a lesson by kicking and breaking the back of a
2 patrol car. In Mr. Stull's head, he's just (indiscernible).
3 But, ladies and gentlemen, it is your job to strip away
4 these fantasies, these illusions, and look simply at the facts
5 and the law. Now, the law is straightforward and clear. With
6 respect to attempted to cause -- or attempted to assault a public
7 safety officer, you must find that Barry Joe Stull -- and I'm
8 reading from the instruction that the Judge will provide, that
9 Barry Joe Stull attempted to cause physical injury to Officer
10 Engstrom, that he knew he was an officer, and Officer Engstrom
11 was acting in the course of his duties. You have that.
12 We respect to resisting arrest, you must find that
13 Barry Joe Stull intentionally resisted a person known by him to
14 be a peace officer in making an arrest. And you will be
15 instructed that an arrest doesn't require the magic words, "You
16 are now under arrest." It's simply someone -- and, again, I'm
17 reading from the definitions that the Court will provide. An
18 arrest is to place a person under actual or constructive
19 restraint or to take a person in custody for the purpose of
20 charging that person with an offense.
21 Mr. Stull was placed under arrest when he punched
22 Officer Engstrom. He resisted that, and he fought back so hard
23 that three officers had to restrain him. When you strip away Mr.
24 Stull's fantasies, and you look only at his action, you'll end up
25 with a clear record of what happened that day. And what happened

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1 that day is this. You can see the anger in his eye as he strikes
2 that officer. Watch as he fights and struggles and strains to
3 get away from them after they had placed him under arrest.
4 (Whereupon, video recording is played in open court at
5 2:44 p.m., ending at 2:45 p.m.)
6 MR. MCMAHON: And Mr. Stull's head, everyone except for
7 him bears responsibility. In Mr. Stull's head, this is an
8 officer assaulting him. In Mr. Stull's head, he's the star of
9 the show. He wants that spotlight. He wants that attention and
10 he wants that validation. And he worked himself up -- he worked
11 himself up on a -- remember, he worked himself up this week.
12 You saw how aggressive he was in the video. You saw
13 him show signs of that aggression here in the courtroom. It is
14 clear that Mr. Stull, on November 25th, 2015, went to that
15 City Hall chamber, knew he was going to make a scene, knew he was
16 going to be arrested, knew that one way or the other he was going
17 to make those cops take him into custody. And when he did, he
18 fought back and he fought back hard, punching an officer,
19 straining, trying to get away, and then trying to break up a car
20 to teach them a lesson, in the lone twisted logic of his anger.
21 Now, ladies and gentlemen, make no mistake about
22 Mr. Stull. What he did, though hard to understand and seeing him
23 babbling, it was maliciously and intentionally. You heard him
24 repeatedly talk. During his statement, "Yeah, I punched him.
25 Yeah, I tried to get away. Yeah, I kicked and I tried to break

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1 that car. I tried to take it out of commission." Make no
2 mistake, Barry Joe Stull knew what he was doing that day,
3 intended to attempt to assault a public police -- or a police
4 officer, intended to resist arrest, and intended to break that
5 police car. (indiscernible) to take him out of the spotlight,
6 and look only at the facts and the law. And I would ask, after
7 you look at those facts and that law, that you find Mr. Stull
8 guilty of attempting to assault a public safety officer,
9 resisting arrest, and criminal mischief in the second degree.
10 Thank you.
12 THE COURT: Okay. We're going to take just a few
13 minutes, brief break, and then when we come back I will instruct
14 regarding the law and you'll retire for your deliberations.
15 You're not there yet. Yeah.
17 (Break was taken at 2:48 p.m. until 2:57 p.m.)
18 (Within the presence of the jury.)
19 THE COURT: It is your sole responsibility to make all
20 the decisions about the facts in this case. You must evaluate
21 the evidence to determine how reliable or how un -- or how
22 believable that evidence is. When you make your decisions about
23 the facts, you must then apply the legal rules to those facts and
24 reach your verdict. Remember, however, that your power to reach
25 a verdict is not arbitrary. When I tell you what the law is on a

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1 particular issue or how to evaluate certain evidence, then you
2 must follow these instructions. Don't allow anything that I have
3 said or done in the course of the trial to indicate that I have
4 formed a belief about how this case should be decided. Keep in
5 mind that a Judge is required by law to give certain instructions
6 in every criminal case.
7 When I've sustained objections to evidence or ordered
8 that evidence be stricken or excluded from your consideration,
9 then you must follow these instructions. Do not consider such
10 matters during your deliberations. Base your verdict on the
11 evidence and on these instructions.
12 The parties' statements and arguments are not evidence
13 unless in testimony on the stand and under oath. If your
14 recollection of the evidence is different from the parties'
15 recollection, you must rely on your own memory of the evidence.
16 In deciding this case you are to consider all of the evidence
17 that you find worthy of belief. It's your duty to weigh the
18 evidence calmly and dispassionately, and to decide this case
19 based on its merits. Don't allow bias, sympathy, or prejudice
20 any place in your deliberations. Don't decide the case based on
21 guesswork, conjecture, or speculation. Don't consider what
22 sentence might be imposed by the Court if the Defendant is found
23 guilty.
24 Generally, the testimony of any witness whom you
25 believe is sufficient to prove any fact in dispute. You're not

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1 simply to count the witnesses, but you are to weigh the evidence.
2 Keep in mind that each party is entitled to the considered
3 decision of each juror. Therefore, you shouldn't give undue
4 weight to another juror's notes or memory if they conflict with
5 your recollection of the evidence. The Court has provided
6 written jury instructions for your use. When you use these
7 instructions, don't place undue emphasis on a particular
8 instruction, but rather view the instructions as a whole.
9 In this case, the Defendant is charged with the crimes
10 of attempting to assault a public safety officer, resisting
11 arrest, and criminal mischief in the second degree. In summary,
12 those charges allege as follows: That the said Defendant, Barry
13 Joe Stull, on or about November 25, 2015, in the County of
14 Multnomah, State of Oregon, did unlawfully and intentionally
15 attempt to cause physical injury to Todd R. Engstrom, a person
16 the Defendant knew to be a peace officer, while Todd R. Engstrom
17 was acting in the course of official duty, contrary to the
18 statutes in such cases made and provided, and against the peace
19 and dignity of the State of Oregon.
20 That the Defendant -- the said Defendant, Barry Joe
21 Stull, on or about November 25, 2015, in the County of Multnomah,
22 State of Oregon, did unlawfully and intentionally resist Todd
23 Engstrom, a person known by the Defendant to be a peace officer,
24 in making an arrest, contrary to the statutes in such cases made
25 and provided, and against the peace and dignity of the State of

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1 Oregon.
2 The said Defendant, Barry Joe Stull, on or about
3 November 25, 2015, in the County of Multnomah, State of Oregon,
4 did unlawfully and intentionally damage personal property, the
5 property of the City of Portland, the said Defendant having no
6 right to do so nor reasonable ground to believe that the
7 Defendant had such a right, contrary to the statutes in such
8 cases made and provided, and against the peace and dignity of the
9 State of Oregon.
10 The Defendant has entered a plea of not guilty to these
11 charges. A plea of not guilty is a denial of every fact alleged.
12 The Defendant is innocent unless and until the Defendant is
13 proven guilty beyond a reasonable doubt. The burden is on the
14 State to prove the guilt of the Defendant beyond a reasonable
15 doubt. Reasonable doubt is doubt based on common sense and
16 reason. Reasonable doubt means an honest uncertainty as to the
17 guilt of the Defendant. Reasonable doubt exists when, after
18 careful and impartial consideration of all the evidence in the
19 case, you are not convinced to a moral certainty that the
20 Defendant is guilty.
21 Oregon law provides that a person commits the crime of
22 attempting to assault a public safety officer if the person
23 intentionally attempts to cause physical injury to another person
24 knowing the other person to be a peace officer and while the
25 other person is acting in the course of official duty. In this

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1 case, to establish the crime of assaulting a public safety
2 officer, the State must prove beyond a reasonable doubt the
3 following four elements.
4 1) The act occurred on or about November 25, 2015;
5 2) Barry Joe Stull intentionally attempted to cause
6 physical injury to Todd Engstrom;
7 3) Barry Joe Stull knew Todd Enstrom to be a peace
8 officer, and;
9 4) Todd Enstrom was acting in the course of official
10 duty.
11 Physical injury. The term physical injury means an
12 injury that impairs a person's physical condition or causes
13 substantial pain. Attempt. A person attempts to commit a crime
14 when he intentionally engages in conduct that constitutes a
15 substantial step towards the commission of that crime.
16 Oregon law provides that a person commits the crime of
17 resisting arrest if he intentionally resists a person known by
18 him to be a peace officer in making an arrest. In this case, to
19 establish the crime of resisting arrest, the State must prove
20 beyond a reasonable doubt the following two elements.
21 1) The act occurred on or about November 25, 2015, and;
22 2) Barry Joe Stull intentionally resisted a person
23 known by him to be a peace officer in making an arrest.
24 Definitions. An arrest is to place a person under
25 actual or constructive restraint, or to take a person into

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1 custody for the purpose of charging that person with an offense.
2 A peace officer is a member of the Oregon State Police, a
3 sheriff, a constable, marshal, municipal police officer,
4 investigator of the Criminal Justice Division of the Department
5 of Justice, or investigator of a District Attorney's Office, and
6 other persons as may be designated by law. Resists means the use
7 or threatened us of violence, physical force, or any other means
8 that create a substantial risk of physical injury to any person,
9 and includes but is not limited to behavior clearly intended to
10 prevent being taken into custody by overcoming the actions of the
11 arresting officer. The behavior does not have to result in
12 actual physical injury to an officer. Passive resistance does
13 not constitute behavior intended to prevent being taken into
14 custody.
15 Criminal mischief in the second degree, intentional
16 damage. Oregon law provides that a person commits the crime of
17 criminal mischief in the second degree if, having no right to do
18 so nor reasonable ground to believe that the person has such a
19 right, the person intentionally damages property of another. In
20 this case, to establish the crime of criminal mischief in the
21 second degree, the State must prove beyond a reasonable doubt the
22 following three elements.
23 The act occurred on or about November 25, 2015;
24 2) Barry Joe Stull intentionally damaged property of
25 another, and;

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1 3) Barry Joe Stull had no right, nor reasonable ground
2 to believe that he had such a right, to damage the property.
3 Definitions. Property is any article, substance, or
4 thing of value, including but not limited to money, tangible and
5 intangible personal property, real property, chosen action, or
6 evidence of debt or contract. Property of another is property in
7 which anyone other than the Defendant has a legal or equitable
8 interest that the Defendant had no right to defeat or impair,
9 even though the Defendant may also have had such an interest in
10 the property.
11 Intentionally and with intent. A person acts
12 intentionally or with intent when that person acts with a
13 conscious objective to cause a particular result or engage in
14 particular conduct. When used in the phrase intentionally
15 attempt to cause physical injury, intentionally means that a
16 person acts with a conscious objective to attempt to cause
17 physical injury. When used in the phrase intentionally resist a
18 peace officer in making an arrest, intentionally means that the
19 person acts with a conscious objective to resist an arrest. When
20 used in the phrase intentionally damage the property of another,
21 intentionally means that a person acts with a conscious objective
22 to damage the property of another.
23 A person acts knowingly or with knowledge if that
24 person acts with an awareness that his or her conduct is of a
25 particular nature or that a particular circumstance exists. When

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1 used in the phrase a person known by the Defendant to be a peace
2 officer in making an arrest, known means that the person acts
3 with an awareness that the individual is a peace officer making
4 an arrest. When used in the phrase a person the Defendant knew
5 to be a peace officer, knew means that the person acts with an
6 awareness that the person is a peace officer. Knowledge is also
7 established if a person acts intentionally.
8 The term witness includes every person who has
9 testified under oath in this case. Every witness has taken an
10 oath to tell the truth. In evaluating each witnesses' testimony,
11 however, you may take -- you may consider such things as, 1) the
12 manner in which the witness testifies; 2) the nature or quality
13 of the witness' testimony; 3) evidence that contradicts the
14 testimony of the witness; 4) evidence concerning the bias,
15 motives, or interest of the witness.
16 In deciding this case, you may draw inferences and
17 reach conclusions from the evidence provided that your inferences
18 and conclusions are reasonable and are based on your common sense
19 and experience. If you find that the Defendant has been
20 previously charged with or convicted of a crime, you may not use
21 this evidence for the purpose of drawing the inference that
22 because the Defendant was charged with or convicted of a previous
23 crime the Defendant may be guilty of the crime charged in this
24 case.
25 When a witness testifies about statements made by the

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1 Defendant you should consider such testimony with caution. In
2 reviewing such testimony you should consider, among other things,
3 the following. 1) Did the Defendant make the statement, and if
4 so, did the Defendant clearly express what he intended to say?
5 2) Did the witness correctly hear and understand what the
6 Defendant said? 3) Did the witness correctly remember and relate
7 the Defendant said? 4) Did the witness intentionally or
8 mistakenly alter some of the words used by the Defendant; thereby
9 changing the meaning of what was actually said? If after
10 weighing such factors you conclude that the Defendant said what
11 he intended to say, and that the witness to the statement
12 correctly understood, remembered, and related to you what the
13 Defendant said, they you are authorized to consider such
14 statements for what you deem them to be worth.
15 There are two types of evidence. One is direct
16 evidence, such as the testimony of an eyewitness. The other is
17 circumstantial evidence; the proof of a chain of circumstances
18 pointing to the existence or nonexistence of a certain fact. You
19 may base your verdict on direct evidence or on circumstantial
20 evidence or on both.
21 A witness who lies under oath in some part of his or
22 her testimony is likely to lie in other parts of his or her
23 testimony. Therefore, if you find that a witness has lied in
24 some part of his or her testimony, then you may distrust the rest
25 of that witness' testimony. Sometimes people who are not lying

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1 may give incorrect testimony. They may forget matters or may
2 contradict themselves. Also, different witnesses may observe or
3 remember an event differently. You have the sole responsibility
4 to determine what testimony or portions of testimony you will or
5 will not rely on in reaching your verdict. For criminal
6 liability, Oregon law requires the performance of a voluntary act
7 or omission. An act is a bodily movement -- a voluntary act is a
8 bodily movement performed consciously.
9 The defense of choice of evils has been raised.
10 Conduct that would otherwise constitute an offense is justifiable
11 and not criminal when the Defendant's conduct is necessary as an
12 emergency measure to avoid an imminent injury. And, 2) the
13 threatened injury is of such gravity that, according to the
14 ordinary standards of intelligence in morality, the desirability
15 and urgency of the Defendant's avoiding the injury clearly
16 outweigh the desirability of avoiding the injury sought be
17 prevented by the law that makes criminal mischief in the second
18 degree a crime. The burden of proof is on the State to prove
19 beyond a reasonable doubt that this defense does not apply.
20 Defense of physical force involving peace officers. A
21 peace officer is justified in using physical force on a person
22 being arrested when and to the extent that he reasonably believes
23 it necessary to make an arrest.
24 Self-defense, resisting arrest. Barry Joe Stull has
25 raised the defense of self-defense to the charge of resisting

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1 arrest. If Barry Joe Stull believed, and a -- this should be
2 reasonable. That's a typographical error. We'll correct it --
3 and a reasonable person in his position would have believed that
4 the use or imminent use of force against him exceeded the force
5 reasonably necessary to effect the arrest, then he was entitled
6 to defend himself from that force. The burden of proof is on the
7 State to prove beyond a reasonable doubt that this defense does
8 not apply.
9 When you return to the jury room, select one of your
10 members to act as the presiding juror. The presiding juror has
11 no greater voting weight but is to preside over your
12 deliberations and be he spokesperson for the jury. You should
13 then deliberate and find your verdict. If it becomes necessary
14 during your deliberations to communicate with me, do so in
15 writing. I will consult with the parties before responding.
16 No one except for you, the jurors, is to be involved in
17 your deliberations. Therefore, do not tell anyone, including me,
18 how many of you are voting not guilty or guilty until you have a
19 reached a lawful verdict or have been discharged. This being a
20 criminal case, each and every juror must agree on the verdict.
21 When you have arrived at a verdict, the presiding juror will sign
22 the appropriate verdict form. After you have reached your
23 verdict, signal the bailiff. The Court will then receive your
24 verdict.
25 I will swear the bailiff, and then excuse the

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1 alternate. Do you solemnly swear that you will take charge of
2 this jury and keep them together until they have arrived at their
3 verdict, and that you will not allow any communications to be had
4 with the jury except to determine whether they have arrived a
5 verdict, and that you will not communicate to anyone the state of
6 their deliberations or the verdict arrived upon, and that you
7 will execute all of these duties to the utmost of your ability in
8 accordance with the Rules of Court and the statutes of the State
9 of Oregon?
10 THE CLERK: I do.
12 Now, we do have seven jurors seated. The seventh juror
13 is the alternate juror. It's my obligation at this moment to
14 excuse the alternate. However, I am -- and that is Ms. Walsh. I
15 will ask you, however, to provide Mr. Gibson with your contact
16 information and ask you not to discuss this matter. If it is
17 necessary to -- if we lose a juror, it's necessary to replace the
18 juror so that they can reach a verdict, we may need to call you.
19 We will call you as soon as a verdict has been received so you'll
20 know at that time that your services won't be further required.
21 But thank you very much for serving as our alternate. It was our
22 insurance policy against a loss of a juror, and then having to
23 mistry the case and try it again. So thank you very much.
24 And the other jurors, you will retire at this time to
25 deliberate. We'll provide you with a substitute page for the

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1 typographical error on page 6. And, also, you'll have all of the
2 exhibits with you to examine and reexamine as you wish while you
3 deliberate. So Mr. Gibson will see you to the jury room, and
4 also collect that connect information from Ms. Walsh.
5 MR. MCMAHON: There is one minor typographical error on
6 page 3. Under the definition of attempting to assault a public
7 safety officer, it says, "In this case, to establish the crime of
8 assaulting a public safety officer," I believe that should read,
9 "attempting to assault a public safety officer."
10 THE COURT: We can -- we can correct that and --
12 THE COURT: Okay.
14 THE COURT: Mr. McMahon --
16 THE COURT: -- could you tell me where that was, again?
17 MR. MCMAHON: Yeah. Page 3, it's in the -- sort of the
18 header of the -- right here.
19 MR. STULL: Third line done.
20 MR. MCMAHON: The crime of assault on public safety,
21 that should be attempting to assault.
22 THE CLERK: Do you need the record for anything else?
23 THE COURT: Oh.
24 MR. MCMAHON: Nothing from the State, Your Honor. I
25 have no exceptions to the jury instructions.

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1 Mr. Stull, do you have any exceptions to the jury
2 instructions?
3 MR. STULL: No, I just wanted to put on the record that
4 the correction has been made to the other page, too, page -- an
5 additional page, I should say, page 3.
6 THE COURT: I'm not sure what -- we have a correction
7 on page --
8 MR. STULL: The one that -- the one that you just said.
9 THE COURT: -- 6, and a correction on page 3.
10 MR. STULL: Yeah, page -- yeah.
11 THE COURT: And I'm going to do that, and we'll give
12 the substitute --
13 MR. MCMAHON: No objection of --
14 MR. STULL: No objection to either of those
15 corrections, Your Honor.
16 THE COURT: Okay.
17 THE CLERK: The record is off.
20
21
22
23
24
25 ///

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3 I, Tami S. Mayes, CET-547, court-approved
4 transcriber, certify that the foregoing is a full and
5 correct transcript from the official electronic sound
6 recording of the proceedings in the above-entitled matter.
10
11
12 ___________________________________
13 Tami S. Mayes, CET-547
16 Salem, OR 97302
17 970.405.3643
18
19
20 Date: April 8, 2017
21
22
23
24
25

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STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 1307 - 1315
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Friday, September 23,
2016, at the Multnomah County Courthouse, Portland, Oregon.
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707

Salem, OR 97302
970.405.3643
GENERAL INDEX
VOLUME 26 of 29
Verdict.................................................. 1307
Jury polled.............................................. 1307

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970.405.3643
1307
1 PORTLAND, OREGON; FRIDAY, SEPTEMBER 23, 2016
2 -O0O-
4 THE COURT: I have been informed that the jury has
5 reached a verdict.
6 Who is the presiding juror? Okay. Very well,
7 Mr. Montgomery. I'll read the jury's verdict.
8 We the jury, duly impaneled and sworn in the
9 above-entitled case, do find our verdict upon the following
10 counts submitted to us as follows:
11 Count 1, attempted assault of a public safety
12 officer, guilty.
13 Count 2, resisting arrest, guilty.
14 Count 3, criminal mischief in the second degree,
15 guilty. Signed by the presiding juror, Scott Montgomery.
16 Is there a request to poll the jury?
17 MR. STULL: Yes, Your Honor. The Defense
18 requests --
19 THE COURT: Very well. Polling the jury simply
20 assures that we have the numerical verdict that we require.
21 So I'll just you each in turn, yes or no, whether the
22 verdict which I read was the one for which you voted in its
23 entirety.
24 Mr. Scott? Mr. Montgomery?
25 JUROR MONTGOMERY: Yes.

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2 UNIDENTIFIED JUROR: Oh, yes.
7 THE COURT: Very well. That is the unanimous
8 verdict. Judgment will be entered on it. I want to thank
9 you all for the attention and for the integrity that you
10 brought to this process. Jurors do the hardest work that
11 anyone does in this courthouse because you make those hard
12 decisions about the facts from conflicting evidence. And
13 that is indeed hard. And we respect you and we value your
14 work, under compensated as it is. And I hope that it's
15 been a interesting and fulfilling experience. It's one of
16 the most important things that we can do as citizens.
17 So thank you very much. Your service has been
18 completed for the 24-month cycle. You may be back with us
19 again. But in any case, we hope that you've found this to
20 be an interesting and as important a case as -- every case
21 is important to the people that are involved and so every
22 case is a big case. So thank you very much. You have
23 your letters.
25 MR. STULL: Your Honor?

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1 THE COURT: We'll wait until Mr. Gibson comes --
2 MR. STULL: Oh, okay. Yeah. That's fine.
3 THE COURT: -- back because he's got to -- we need
4 him to run the record and --
5 MR. STULL: Okay. That's fine. Thank you. I
6 wasn't clear on the protocol.
7 THE COURT: Yeah. Right. We'll just wait until
8 he's back.
9 MR. STULL: That's fine. Sure. Thank you, Your
10 Honor.
11 (Pause.)
12 (Discussion on other matters.)
13 THE COURT: All right. Very well. Now, we're
14 still on the record. And the next question is 24 hours --
15 setting it for sentencing or waiving that and going to
16 sentencing.
17 MR. STULL: Yes, Your Honor. Barry Joe Stull, the
18 Defendant, pro se.
19 THE COURT: Forty-eight hours. Forty-eight hours.
20 I'm sorry.
21 MR. STULL: Kevin Kelley is my legal advisor. And
22 first of all, I would ask for a delay. And there are a
23 number of reasons to do that. I have a court proceeding
24 that's pending right now, a trial that's relating to the --
25 coming out of the emergency hospital at Emanuel on the

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1 Sunday before this Wednesday, November 25th. And that
2 trial is before Judge Skye. And we have our next
3 appearance on the 27th. There's quite a little bit of
4 pretrial --
5 THE COURT: Well, and any --
6 MR. STULL: -- work on that that needs to be done.
7 And I would also like to get before the Court the materials
8 I have prepared regarding how I believe this process, due
9 to the City of Portland and Multnomah County Circuit Court
10 not engaging in any sort of a process to even inquire after
11 a reasonable accommodation, I still believe that violates
12 the ADA and, as I mentioned at the beginning of the trial,
13 O.R.S. 65 -- 659A.142. And I believe the State of Oregon
14 is also participating in that. And I believe that's an
15 issue that needs to become before the -- come before the
16 Court before the sentencing is done.
17 And I -- just so I -- I should note -- let you
18 know that I went into custody from Portland City Hall on
19 November 25th and I was released about 11 p.m. on February
20 9th. And when I did come out, I got my property receipt
21 that I should have gotten certainly before the 60-day
22 deadline for me to claim my property. My goods were
23 missing. They were destroyed on February 4th by the
24 Portland Police Bureau. And there's still a matter of
25 what's going on regarding my interface with Portland Chief

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1 of Police Michael Marshman and the conduct of his officers.
2 So I would at least request I would say through to
3 the beginning of October to come back to you. That will
4 give me a time to brief some of this and it would give me a
5 time to see what these other agents are -- agencies are
6 going to do about it.
7 The Oregon Bureau of Labor and Industries, of
8 course, has statutory authority over the disability
9 discrimination. I think it was -- this is all a continuing
10 process since 9:25 a.m., November 25th of 2015. As a
11 person with a disability, I think the fact that I have been
12 subjected to -- I think we're in the neighborhood of 24
13 court appearances on my part since that arrest in less than
14 a year. It's just incredible the amount of bureaucratic
15 hampering that I've endured.
16 As we mentioned the other day during the
17 proceeding, when I got discovery from the State the files
18 were completely jumbled. They were -- nothing was numbered
19 in a way that any person could reasonably expect to
20 identify those things for themselves. I still after all
21 this process have a file that when I open it up, it's a
22 file folder that has 15 files in it that each have three or
23 four and none of those files, except for the exception of
24 one that says Bureau of Emergency Services and the other
25 one says 911, none of those files is identified in any

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1 manner. It could have simply been this is a picture of
2 Officer Engstrom, this is a picture of Officer Engstrom
3 number two, this is a picture of Officer Engstrom number
4 three. Instead I got -- as we went through -- the Court on
5 the record, we went through how I was given these things in
6 numbers and fashions and files that were as complicated as
7 the State could possibly do it.
8 MR. MCMAHON: Your Honor, I'd ask that we just set
9 it over and, you know, he can be heard.
10 THE COURT: We're going to find a time. He's not
11 waiving his two days, so we'll set it at another time after
12 that. So what time do we have available after two days?
13 (Court/Clerk discussion.)
14 THE CLERK: 10 a.m. on the 21st?
15 THE COURT: Okay.
16 MR. MCMAHON: The issue with that is that
17 that's -- I'm going to have trial readiness that morning --
18 THE CLERK: Okay.
19 THE COURT: All right. Well, we can --
20 MR. MCMAHON: -- and I'm not sure --
21 THE CLERK: 1:30?
22 MR. MCMAHON: -- if I'm going to clear --
23 THE COURT: 1:30?
24 MR. MCMAHON: Yeah. Okay.
25 THE COURT: 1:30 will be good.

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1 MR. STULL: 1:30, October 21st?
2 THE COURT: Yeah. When I say we've set extra
3 time, that doesn't mean I intend to spend any more time on
4 this matter than is germane to sentencing for -- on the
5 jury verdict.
6 MR. STULL: Sure.
7 THE COURT: And so I'm not suggesting --
8 MR. STULL: You'll --
9 THE COURT: -- that we're going to take an hour
10 because it really should not require an hour.
11 MR. STULL: No.
12 THE COURT: I just -- based on experience in the
13 case, I don't want to be --
14 MR. STULL: I fully --
15 THE COURT: -- caught without (indiscernible).
16 MR. STULL: I fully anticipate that the Court will
17 be discharging this case.
18 THE COURT: I don't necessarily expect the same.
19 The things that you have frequently offered are not in fact
20 germane to your -- to whether or not you should be
21 sentenced on these cases. So I will look at what you file
22 and so we'll consider it then. But I don't want you to
23 assume anything.
24 MR. STULL: Oh, no, no. I said I anticipate it.
25 THE COURT: You anticipate it?

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1 MR. STULL: Yeah.
3 MR. STULL: I anticipated an ambulance
4 (**10:43:52), too, but didn't get that.
5 THE CLERK: Okay. Give me a moment. I'll write
6 the order.
8 (Proceedings concluded at 10:44 a.m., recommencing
9 in Volume 27, October 21, 2016.)
10
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25 ///

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13 Salem, OR 97302
14 970.405.3643
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17 Date: April 12, 2017
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 1316 - 1325
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Friday, October 21,
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707

Salem, OR 97302
970.405.3643
GENERAL INDEX
VOLUME 27 of 29
October 21, 2016 Proceedings Page No.
Proceedings Set Over..................................... 1316

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970.405.3643
1316
1 PORTLAND, OREGON; FRIDAY, OCTOBER 21, 2016
2 -O0O-
4 MR. MCMAHON: Good afternoon, Your Honor. Eamon
5 McMahon for the State, M-c-M-a-h-o-n, bar number 153879, here
6 in the case State v. Barry Stull, 15CR53749. Mr. Stull is
7 present, representing himself with the assistance of a court, I
8 guess, aide or legal guide --
9 MR. KELLEY: Advisor.
10 MR. MCMAHON: Advisor. That's the word I was looking
11 for. Now is the time and place set for sentencing. I'll let
12 Mr. Stull interject here in a second. But I did want to advise
13 the Court that on Monday of this week I received a packet of
14 documents from the City of Portland. That packet of documents
15 was responsive to a subpoena served in the companion case to
16 this for Mr. David Davis (phonetic). I reviewed those
17 documents. I saw them I think first on Tuesday, maybe Monday,
18 late Monday. But Tuesday and Wednesday I reviewed those
19 documents.
20 On Thursday I sent an email to Mr. Kelley and Mr. Stull
21 informing them of the presence of that documents and asking how
22 best to provide those documents to them. I heard back from Mr.
23 Kelley. But again, since Mr. Stull is representing himself, I
24 wanted to hear back from Mr. Stull before I disclosed those
25 documents.

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1 I spoke to them briefly today and provided copies of
2 the documents. There are internal investigation logs of
3 interviews with several witnesses in that packet of information
4 that do contain some information with respect to the events of
5 November 25th. I'm not sure how Mr. Kelley and Mr. Stull want
6 to proceed. It might make sense to set over the proceedings so
7 that they have a chance to review those documents and make any
8 motions, if they have any, on the information contained in that
9 packet of documents.
10 So with that, I'll turn it over to Mr. Stull and
11 Mr. Kelley.
12 MR. STULL: Good morning, Your Honor. I was -- I
13 learned about this all yesterday. I don't know what this
14 material is. I do, based on my brief looking through it,
15 scanning it, I do recognize the names of these folks. And I
16 have no clue as to, other than seeing that this apparently is
17 part of some of the police accountability process where there
18 was a recording and a transcript, I have no idea of what this
19 is and --
20 THE COURT: What the --
21 MR. STULL: -- what bearing this places on the case
22 today. I just learned about it yesterday afternoon, expecting
23 to come in here this morning. I can't --
24 THE COURT: What the suggestion was, if you would
25 like more time to review it and figure out --

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1 MR. STULL: Oh. Oh, certainly.
2 THE COURT: -- what you want to do --
3 MR. STULL: Sure. Yeah.
4 THE COURT: -- then we can set this over.
5 MR. STULL: And to meet with Mr. Kelley. Yeah, set
6 it over.
7 THE COURT: That's what he suggested.
8 MR. STULL: Yeah.
9 THE COURT: Okay. We'll do that.
10 MR. STULL: Okay. Yeah.
11 MR. MCMAHON: Would two weeks work for you, Mr. Kelley
12 and Mr. Stull?
13 MR. STULL: It's up to Mr. Kelley's schedule at this
14 point.
15 MR. KELLEY: Two weeks from today?
16 MR. MCMAHON: Yes. If that would work for the Court,
17 of course.
18 MR. KELLEY: Okay. Mr. Stull will be in court on a --
19 THE COURT: Just a --
20 MR. KELLEY: -- on a pending misdemeanor. I don't
21 know if it might make sense to do it one of those days --
22 MR. STULL: Sure.
23 MR. KELLEY: -- if possible.
24 THE COURT: Well, it kind of depends. We've got --
25 well, let's see.

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2 MR. KELLEY: I will be at a CLE on the 4th. And I'm
3 sorry, it's a (indiscernible) year. I've already signed up for
4 it.
5 THE CLERK: So the 4th does not --
6 MR. KELLEY: That does not work for me.
7 THE COURT: It looks like we could do it in the
8 morning on the 3rd, though.
9 MR. KELLEY: Well, it is a three-day CLE, unfortunately.
10 THE COURT: Pardon? I don't know. I --
11 MR. KELLEY: Does the Court have the 17th available
12 by any chance? Mr. Stull will be here for call that day, that
13 morning.
14 THE COURT: Well, let's look.
15 THE CLERK: We have a half an hour.
17 MR. MCMAHON: Yeah, that's -- and -- if it's a
18 morning setting, I can't guarantee that I'd be available to be
19 here because of potential trial settings.
20 MR. KELLEY: Okay. What about setting it on the day
21 of his other trial? Does that make any sense at all?
22 MR. MCMAHON: Not really.
23 THE COURT: Well, he's not going to be here --
24 MR. KELLEY: No? Okay. I could do it -- almost any
25 time the week of the 14th I've got open.

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2 (Counsel confer.)
3 THE CLERK: So you said the 17th, November 17th?
4 MR. KELLEY: That is his call date on his pending
5 case, yes.
6 THE CLERK: Okay.
7 MR. KELLEY: Yes.
8 THE CLERK: Well, so he (indiscernible).
9 THE COURT: Yeah.
10 MR. KELLEY: His --
11 THE COURT: Other than Fridays, it's a slot at 8:30.
13 THE COURT: I can't just --
14 MR. MCMAHON: Would November --
15 THE CLERK: Thursday, November 3rd (indiscernible)
16 8:30 --
17 MR. KELLEY: The CLE that I've signed up for is the
18 2nd, 3rd, and 4th.
19 THE CLERK: Oh.
20 MR. KELLEY: It's a three-day CLE.
21 MR. MCMAHON: Would the --
22 THE CLERK: The 1st?
23 MR. KELLEY: The 1st I've --
24 THE CLERK: That's Tuesday of that week.
25 MR. MCMAHON: I'm in trial the 31st through the 3rd

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1 and then again on the 7th through the 10th and potentially the
2 14th. Is there a way we could potentially do it on the 18th?
3 THE CLERK: No.
5 THE CLERK: Well, the 18th (indiscernible).
6 THE COURT: I don't -- no. (Indiscernible) so we
7 can't do that.
9 MR. KELLEY: I was considering requesting -- and
10 please correct me if you have any objection at all, Mr. Stull.
11 His trial is on the 21st of November on his remaining case.
12 And I know that may not be before Your Honor, but it might make
13 sense to know what's going on.
14 THE COURT: I can guaranty you it won't be before me.
16 MR. MCMAHON: Would the 23rd -- I don't know if
17 everyone is --
18 THE CLERK: No, nothing that week.
19 MR. MCMAHON: Oh, nothing -- I'm sorry. I didn't
20 hear that. Well, so the 10th is a Thursday, but it's a
21 Thursday before a long weekend, so.
22 THE CLERK: The 10th of?
23 MR. MCMAHON: November.
25 MR. MCMAHON: So that would be like essentially --

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1 THE CLERK: We don't have that available.
3 THE CLERK: So we're looking to December now.
4 (Indiscernible).
5 MR. MCMAHON: Yeah. If I -- if it's morning, I can
6 essentially make myself available for trial that day. Let me
7 make sure that that's (indiscernible).
8 THE CLERK: The week of the 28th of -- the week of
9 November 28th we have 8:30 that week on Monday, Tuesday, and
10 Thursday.
11 MR. KELLEY: I can do Monday. I start a trial on the
12 29th.
13 THE CLERK: So the 28th?
16 THE COURT: What was wrong with the 17th? Just
17 remind me.
18 MR. KELLEY: The 17th of November?
19 THE COURT: Yeah.
20 MR. MCMAHON: In the morning?
22 MR. KELLEY: Mr. Stull has call. But if the Court's
23 willing to accommodate that --
24 THE CLERK: Yeah. He's --
25 MR. KELLEY: -- we can be here that morning.

Salem, OR 97302
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1 THE CLERK: He's got call at 8:30 that morning for
2 another case.
3 MR. KELLEY: I could --
4 THE CLERK: We could just do it anyway.
5 THE COURT: Well, we can set it there anyway. And
6 why don't we -- he's -- it's just call.
9 MR. MCMAHON: Yeah. He'll just be reporting and
10 getting a judge, so.
12 MR. KELLEY: I will contact the DA and report ex
13 parte perhaps for call if that's acceptable, if we can do that.
14 THE CLERK: I mean, here's the thing. I can tell
15 them -- he's participating pro se on that case (indiscernible)?
16 MR. KELLEY: Yes.
17 THE CLERK: I can tell --
18 MR. STULL: With Mr. Kelley as legal counsel.
19 THE CLERK: Right. I can tell them that he needs to
20 be here for a sentencing but that I could pass on whatever
21 you're --
22 MR. KELLEY: Perfect.
23 THE CLERK: -- (indiscernible).
24 MR. MCMAHON: That --

Salem, OR 97302
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1 MR. MCMAHON: I think that'll work great.
2 THE CLERK: Does that work?
4 MR. KELLEY: So we can report here at that time?
5 THE CLERK: You could. So --
6 MR. KELLEY: Very well.
7 THE CLERK: -- 8:30 on November 17th.
9 THE CLERK: Is everybody on board?
12 THE CLERK: Okay. Thank you.
13 MR. KELLEY: Thank you. And we are to come here
14 rather than to trial?
15 THE CLERK: Right here.
16 MR. KELLEY: Perfect.
17 THE CLERK: Yeah.
19 THE CLERK: Well, we'll make sure that they
20 (indiscernible).
22 THE COURT: Thank you all.
23 MR. MCMAHON: Thank you very much, Your Honor.
24 (Proceedings adjourned at 1:43 p.m., recommencing in
25 Volume 28 on November 17, 2016.)

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13 Salem, OR 97302
14 970.405.3643
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17 Date: April 12, 2017
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Salem, OR 97302
970.405.3643
STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 1326 - 1349
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Thursday, November 17,
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707

Salem, OR 97302
970.405.3643
GENERAL INDEX
VOLUME 28 of 29
November 17, 2016 Proceedings Page No.
Sentencing............................................... 1326

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1326
1 PORTLAND, OREGON; THURSDAY, NOVEMBER 17, 2016
2 -O0O-
4 THE COURT: Okay. Give me a second to get my
5 computer --
6 (Pause)
8 MR. MCMAHON: Good afternoon, Your Honor. Eamon
9 McMahon for the State, M-c-M-a-h-o-n, bar number 153879. We're
10 here in the matter of State v. Barry Joe Stull, 15CR53749. Now
11 is the time and place, I believe, set for sentencing.
12 Just briefly, before I turn it over for Mr. Stull's
13 appearance, a packet of documents was turned over to Mr. Stull
14 at the last sentencing hearing. Those documents did have some
15 written statements from individuals in this case. I have not
16 received a filing or notice from Mr. Stull that he intends to
17 file any motions based on that packet, though I do understand
18 he will likely file a motion for a new trial on disability
19 grounds. It sounds like there has been no filing or no
20 representation with respect to that packet of documents in that
21 disclosure. With that being understood, the State would like
22 to proceed to sentencing at this point.
23 MR. KELLEY: Mr. Stull is present, Your Honor. He's
24 out of custody. I am here as his legal advisor. Kevin Kelley,
25 bar number 033539. I believe Mr. Stull would like to make his

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1 own representations to the Court, so I'll turn it over to him.
2 MR. STULL: Good morning, Your Honor. I should
3 probably let you know what's going on in my life right now.
4 October 19, 2016, I got a Court of Appeals ruling on
5 consolidated cases dating from my arrest beginning at Emmanuel
6 Hospital and -- in July of 2012. I was arrested July --
7 initially, Emmanuel Hospital's security called the Portland
8 Police, who took me to OHSU where their doctors weren't as
9 informed as the ones at Emmanuel Hospital.
10 And I was arrested coming out of OHSU. Two hours in
11 over-tight handcuffs. I was transported down the hill. My
12 property was all taken from me. I was released on Saturday
13 afternoon without any of the coping mechanisms for my
14 disability.
15 I went by ambulance to Emmanuel Hospital on July 17th
16 where I was arrested. I got out. I reported to Troy Thompson
17 (phonetic), who was present and violating a restraining order
18 outside of City Hall. He was present. He had a warrant for
19 his arrest. He was violating my restraining order. And I was
20 arrested by the Portland Police. That was my second arrest on
21 July 17, 2012. I was arrested then twice on July 19, 2012.
22 And for the purposes of this hearing, I'm just going
23 to reiterate by quoting this --
24 THE COURT: Well, why don't you --
25 MR. STULL: Because --

Salem, OR 97302
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1 THE COURT: -- tell me what the citation is, what the
2 case citation is, and then I will read it --
3 MR. STULL: Oh, the appellate opinion?
4 THE COURT: -- if it is relevant to my sentencing.
5 Yeah.
7 THE COURT: If it is --
8 MR. STULL: I don't -- it's -- I don't know the -- I
9 don't know the published --
10 THE COURT: Show it to --
11 MR. STULL: I don't have the advance sheet --
12 THE COURT: Show it to your attorney so that he
13 can -- or your advisor so that he can tell me what --
14 MR. STULL: It's Barry Joe -- it's State of Oregon
15 versus Barry Joe Stull, aka Barry Joe --
16 THE COURT: Well, tell me what the date is of the
17 opinion.
18 MR. KELLEY: You can give her the --
19 MR. STULL: Oh, I can give you the --
20 MR. KELLEY: -- (indiscernible) the A number.
21 MR. STULL: I can give you the A number. It's Court
22 of -- Oregon Court of Appeals.
24 MR. STULL: The control is A153698.
25 THE COURT: What's the date?

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1 MR. STULL: October 19, 2016. And --
2 THE COURT: I can get it from that.
3 MR. STULL: Okay. And I'm going to quote here about
4 my --
5 THE COURT: Just hold on. Just hold on just a
6 second.
7 MR. STULL: Okay. Sure.
8 THE COURT: Because, you know, I don't really like to
9 be read to from cases.
10 MR. STULL: Oh.
11 THE COURT: I prefer to look at the cases in context.
12 MR. STULL: Oh, sure. But --
13 THE COURT: Just hold on.
14 MR. STULL: -- I'm only referring to it as a -- what
15 happened in 2012 and what happened in 2015, this case right
16 here could serve as a script --
17 THE COURT: Could you stop talking for just a second?
18 MR. STULL: Sure.
19 THE COURT: If you want me to read something, then
20 you have to stop talking for (indiscernible).
21 MR. STULL: Well, if you can find it. I --
22 THE COURT: If you want to quote something from the
23 case, you got to let me --
24 MR. STULL: Yeah. Sure.
25 THE COURT: It's just that simple.

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1 (Pause)
2 MR. MCMAHON: Your Honor, I do have the Oregon App
3 pin cite if you --
4 THE COURT: Oh, okay. Go ahead.
5 MR. MCMAHON: It is 281 Or. App. 662.
6 (Pause)
7 THE COURT: What relevant to the sentencing here
8 should I be looking at?
9 MR. STULL: Oh. I only have the page, you know,
10 printed out on --
12 MR. STULL: -- four pages originally. I can't give you
13 a page cite, Your Honor. But I don't think you need to read
14 this. I just think what would be helpful is if you could see
15 where I'm coming from as the person you're going to sentence
16 today for these events that happened in 2015. Because I'm going
17 to say that I'm still the same person enduring the same
18 environment that I stated at the time of the trial in 2012 on
19 these other things. And it's that, I believe, a pattern of
20 conduct by the police that began long before the arrests at issue
21 in the trial. And I stated that the testimony would show a
22 pattern of police refusing to aid me when I requested assistance
23 as a crime victim and when I was in need of medical care.
24 Instead of assisting me "Defendant asserted the police would
25 arrest him." That's me. "According to defendant, that pattern

Salem, OR 97302
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1 of actions exacerbated his emotionally sensitive neuropathic pain
2 condition. Defendant claimed that that aggravation of his
3 condition caused him to act in ways that led to his arrests for
4 trespass and criminal mischief."
5 THE COURT: And the court --
6 MR. STULL: I didn't get my defense --
7 THE COURT: And the court in that case -- I'm finding
8 it difficult to understand why that's helpful here because the
9 court in that case found that you were properly convicted --
10 MR. STULL: Oh, sure.
11 THE COURT: -- of the crimes charged and --
12 MR. STULL: Certainly. Certainly.
13 THE COURT: -- rejected your assertions.
14 MR. STULL: Okay. And I'll --
15 THE COURT: So I'm not going to find -- I'm not going
16 to find that the Court of Appeals was wrong. You were properly
17 convicted. You committed those crimes.
18 MR. STULL: Right. And here's the problem. I'm a
19 person with a disability. Okay? And what we have done here --
20 and we've seen it in this courtroom on this case. We have the
21 Portland Police deciding that I didn't need an ambulance, the
22 same Portland Police that testified they didn't know at all
23 what central pain syndrome was and they also testified that
24 they weren't doctors. So this creates this -- an ongoing --
25 and if this continues, if the district attorney continues to

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1 prosecute and the Court continues to rule that the fact that I
2 have this disability plays no role and the fact that this --
3 that the mandated -- under the Oregon laws, ORS 16 -- ORS
4 659A.142, disability discrimination by public accommodation,
5 which would be the Multnomah County District Attorney's Office,
6 and by the state government, which would be the -- your
7 services, Your Honor, and your court clerk here, that would be
8 the State of Oregon. And what continues to happen and will
9 continue to happen is I will be exposed to something that
10 triggers my disability. Which on the video which was part of
11 the evidence I said within the first minute or two. Twenty
12 minutes later when the Portland Police arrived and I had my
13 interaction and we saw the frozen me screaming, "Where's the
14 God damn ambulance, where's my God damn ambulance," this is
15 going to happen.
16 If you take a person who's ill and deny them the
17 medical attention that they need and allow them to get sicker
18 and sicker and sicker -- when I know that in 2011 my pulse was
19 175 beats a minute for 45 minutes of exclusive critical care to
20 prevent circulatory failure. I could have died. I was
21 conscious through that entire experience.
22 And prior to that, I had told the ambulance attendant
23 that came out to an event where I was a crime victim, I said I
24 need emergency transport to Emmanuel Hospital. So from -- we
25 left Pioneer Courthouse Square. Crossing the Broadway Bridge,

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1 my pulse was 90 beats per minute. At Emmanuel Hospital in
2 October of 2011, as I mentioned, 45 minutes of exclusive
3 critical care to prevent circulatory failure. I can die from
4 this. I have a neurological condition that I can die from.
5 Having the police subject me to everything that we've
6 seen -- including my appearance here this morning, with all due
7 respect, Your Honor -- there's many other things that I would do
8 that would be more healthful. The more salubrious environment is
9 what I'm seeking. And I am not going to get it as long as the
10 State of Oregon and Multnomah County District Attorney's Office
11 refuses to even accept that as a person with a disability this --
12 there's this reasonable accommodation or reasonable modification
13 to policies. And that -- and I gave the Court the case cites on
14 that. There's nothing in Oregon history because Oregon
15 obviously, according to this October 2016 opinion, doesn't care
16 if I have a disability. It only cares that we keep the train on
17 the tracks. And that train on the tracks is headed for a cliff.
18 And I -- on my walk here, I see all the people that
19 are on the front page of the "Willamette Week" because they're
20 resisting. I know what they're resisting. They're resisting
21 this system that grinds people to dust.
22 If we look at that case opinion, we can see the
23 product of this system. What's it say? Barry Joe Stull, aka
24 Barry Joe Stully. That aka was a product of the Portland
25 Police and the Multnomah County District Attorney and the State

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1 of Oregon in 2009. Aka Barry J Stull. I don't know why that
2 would be an aka. Perhaps because there's no period after the
3 middle initial J? I don't know. And aka Barry Jo Stully,
4 where somebody left the middle "E" off of my middle name, which
5 was assigned as yet another aka. The same people that gave
6 this opinion that you say shows I was rightfully convicted are
7 the same system that produced all those aka's.
8 THE COURT: When you speak to the Court you stand.
9 MR. STULL: Thank you, Your Honor. No disrespect
10 intended.
11 THE COURT: Now, the -- what this opinion --
12 MR. STULL: I've been in front of plenty of judges
13 and they don't all ask that. So I will give you the decorum
14 that you want in your courtroom.
15 THE COURT: It's the decorum that's required by the
16 local rules. Now, I don't --
17 MR. STULL: It hasn't been enforced by other judges,
18 Your Honor. And I appear in front of plenty of them.
19 THE COURT: I bet.
20 MR. STULL: I'm just letting you know.
21 THE COURT: You know, I don't care. I really don't.
22 I do enforce the rules here. And the opinion -- the opinion --
23 MR. STULL: Would you like me to repeat what I said
24 while I was sitting -- seating?
25 THE COURT: No. No, I certainly don't. The opinion

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1 that you asked me to look at says that your appeal failed
2 because "The trial court repeatedly questioned defendant about
3 the relevance of the witnesses' testimony --
4 MR. STULL: Right.
5 THE COURT: -- and after hearing the defendant's
6 reasons multiple times, determined that the testimony would not
7 have been materially relevant."
8 MR. STULL: Right.
9 THE COURT: "Defendant, both below and on appeal, has
10 not shown how the testimony would be exculpatory or relevant.
11 He merely asserts that the police actions caused him to act in
12 ways that resulted in the arrests and charges at issue."
13 MR. STULL: Well, that's because I can't --
14 THE COURT: "We conclude that the determination by
15 the trial court was permissible the (sic) -- a permissible,
16 legally correct outcome."
17 MR. STULL: Sure. And that's what I petitioned
18 for --
19 THE COURT: And those are exactly the same things
20 that you're telling me that the Court of Appeals has already
21 said were appropriately --
22 MR. STULL: Right. And --
23 THE COURT: -- vetted in the other case as --
25 THE COURT: -- being irrelevant to similar charges.

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1 MR. STULL: That --
2 THE COURT: Why should I have to go through it again?
3 MR. STULL: Why should I have to go through it again?
4 That's the point I'm making. I'm the person with the
5 disability. I --
6 THE COURT: Well, look.
7 MR. STULL: If I got sick right now --
8 THE COURT: Look --
9 MR. STULL: -- and I called an ambulance, what do you
10 think would happen?
11 THE COURT: Well, I am -- what I want to direct your
12 attention to is sentencing. You have been convicted by a jury.
13 You chose a jury trial.
15 THE COURT: The jury found you guilty.
17 THE COURT: You are guilty.
18 MR. STULL: And that's because --
19 THE COURT: And I'm not going to reassess that.
20 MR. STULL: No.
21 THE COURT: I'm not going to go back over it.
22 MR. STULL: And I'm going --
23 THE COURT: And I don't want to hear your defense
24 once again.
25 MR. STULL: No. I'm saying --

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1 THE COURT: It has not pertinence to what we're doing
2 now.
3 MR. STULL: It absolutely does.
4 THE COURT: What we're doing now is finding the
5 consequences of that behavior.
6 MR. STULL: And here's what I'm trying to elucidate.
7 This violates my rights as a person with a disability. This
8 Court did not allow the jury to hear my medical testimony. I
9 have a physiology. If you exclude the relevant evidence and
10 then say that it doesn't matter that I have a physiology,
11 you're at the same time -- and it's a plural you -- you're at
12 the same time saying --
13 THE COURT: If you want to appeal my evidentiary
14 rulings, you know obviously how to do it.
15 MR. STULL: I am going to --
16 THE COURT: Please do it.
17 MR. STULL: Just so you know --
18 THE COURT: But I'm not going to sentence you based
19 on a finding that in some way I was wrong on the evidentiary
20 rules. It is just water under the bridge. We're going to talk
21 about the appropriate sentence for the three misdemeanors of
22 which you were convicted.
23 MR. STULL: Okay. So let me tell you where I'm at
24 today. I have an interface right now pending -- they expect my
25 call today -- with the Portland Police Internal Affairs based

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1 on what we know was Office Engstrom's cooked, booking me on
2 felony cases that didn't exist, his testimony that he didn't
3 give me any verbal commands when he used a wrist lock to direct
4 me all the way out the building into the police car. It's an
5 excessive force issue. They also breached the United States
6 Department of Justice settlement. They told them that there
7 were no injuries and then they actually at the same time
8 were -- had me booked on felonies for intentionally injuring
9 somebody.
10 Now, I could have avoided all of this, Your Honor.
11 In January the plea offers -- offer was plead guilty to a
12 single misdemeanor -- and a no contest would have been okay --
13 a single misdemeanor of attempting to injure a police officer.
14 And I would have had two years bench probation. Now, I was in
15 custody of the justice center.
16 THE COURT: No, you wouldn't.
17 MR. STULL: I was not getting medical attention. And
18 I refused --
19 THE COURT: What you were talking about was the
20 recommendation. There is no guaranty.
21 MR. STULL: Yes, of course. Of course. However --
22 THE COURT: And that's --
23 MR. STULL: -- I refused that so I could go through
24 this entire process. Because these processes need to be
25 brought to light. Somebody must resist. These police officers

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1 are lying, they're cheating, and they're hurting people badly.
2 And as I speak to you, Your Honor, my wrist hurts from what
3 happened to me a year ago next week. And that was what I am
4 facing right now.
5 Now, I've already done --
6 THE COURT: So --
7 MR. STULL: -- 77 days in custody. I've already lost
8 all the possessions I had at the time of the arrest because
9 those were destroyed before I got out of custody. My wallet I
10 had had for 30 years. When I graduated from college at
11 Portland Community College in 1996 with highest honors, I had
12 my student ID card. That's a keepsake that I don't have any
13 more. When I went to the Library of Congress and did research
14 that subsequently circled the globe, one of my trips there I
15 got a reader's identification card from the Library of
16 Congress. I lost that because of this case.
17 Now, the day that I was arrested, the day that I
18 was -- the jury came down with a verdict, and through the
19 entirety of this experience, the non-profit affordable housing
20 apartment where the totality of that research that I did, my
21 research for the book, that apartment has been vacant. It's
22 affordable housing. The City of Portland gave that landlord $8
23 million in 2013. And 4066 NE Grand is probably vacant right
24 now. Affordable housing stock, I've said to the chief of
25 police and to the new chief of police, this is organized crime.

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1 So there's nothing about this process or this system
2 that's anywhere close to what this society deserves. When I
3 went up there actually to visit the vacant apartment the day of
4 the verdict coming back, I could hear the Black Lives Matter
5 protest in the distance. So I have been fighting government
6 and racist police corruption in this city that has a
7 well-deserved reputation for being racist and corrupt. And I
8 don't know what to do.
9 Because when I go to a probation officer or I go to a
10 parole officer and they see the kind of charges that I'm facing
11 and they see the kind of bad guys that they interact with all
12 the time -- I had a parole officer tell me in 2004 -- she said,
13 quote, "This case is a turd." And that case -- I wouldn't use
14 that language. She did as an employee of Multnomah County
15 Community Corrections. Because she knew that it was bogus.
16 And I think we all know that this stuff that's going on here is
17 pretty bogus.
18 So I don't know what you all want me to do as a
19 person with a disability. If you want to give me a sentence,
20 I'll go back to jail. The guys that -- I walk into this
21 building, they -- the jail staff, the corrections --
22 THE COURT: If you have no comment about sentencing,
23 please --
25 THE COURT: -- sit down and --

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2 THE COURT: -- let me hear from the State.
3 MR. STULL: -- the corrections deputies greet me by
4 name --
5 THE COURT: If you have no comment about
6 sentencing --
7 MR. STULL: -- when I come here.
8 THE COURT: -- please sit down and I'll hear from the
9 State.
10 MR. STULL: I have nothing to lose. I have nothing
11 to gain.
12 THE COURT: Okay. Please sit down.
13 MR. STULL: I will. That's my statement.
14 THE COURT: Please sit down.
15 MR. STULL: I have nothing to lose and I have nothing
16 to gain.
17 (Counsel confer)
18 THE COURT: Okay. No.
19 MR. MCMAHON: Your Honor, and just before I get into
20 sentencing recommendation, I do want to make clear that I did
21 turn over a packet -- and I put that on the record last time --
22 a packet of statements taken by -- it looks like an IPR
23 investigator from some of the witnesses in this case. And I
24 turned that over to Mr. Stull. I also emailed him with some
25 information about one of the witnesses, Mike Cohen. Based on

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1 what I was able to discern from Mr. Stull's statements, there's
2 not a motion pending on those statements or that information.
3 And I just want to make that clear for the record that we
4 provided him with that and we gave him time to review it. It
5 doesn't sound like that's the basis for any of his motions for
6 a new trial or anything like that. And I just want to make
7 that clear for the record.
8 I would now move into essentially the sentencing
9 argument. My request is for two years of formal probation. I
10 think clearly here there are some ongoing issues and I think it
11 would be good for Mr. Stull to have a heightened level of
12 supervision and potentially engage with -- and I think I'd ask
13 for a mental health evaluation and potentially treatment per PO
14 if PO feels that it's appropriate. It sounds like there are
15 some issues here that have been ongoing both with his medical
16 and then potentially destabilization. We would be asking for
17 restitution in the amount of $48.68 for the damage to the
18 Portland police car. We would ask that he obey all laws as
19 well during the pendency of that probation. And I think those
20 are the terms, as well as obey any police commands if they are
21 lawful orders if he's contacted by police.
22 And beyond that, I think that's the State's
23 recommendation. I think formal probation can address what I
24 believe to be some pretty clearly indicated ancillary issues
25 with Mr. Stull here. And with that, I'll --

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1 THE COURT: Is Mr. Stull on probation now?
2 MR. MCMAHON: It does not appear that -- no, he's not
3 on probation currently. He has had past convictions. They
4 were mainly misdemeanors. There are a couple of criminal
5 mischiefs and a criminal trespass, too, from 2012. There's a
6 harassment violation from 2012. He does have a possession of a
7 controlled substance felony from 2004, as well as a
8 manufacturing and delivery of controlled substance, this was
9 marijuana, from 1990. So he does have some felony convictions
10 in his past. But I think based on Mr. Stull's behavior in
11 court and throughout these proceedings, I think a heightened
12 level of supervision is appropriate.
13 THE COURT: Perhaps so. Have you verified that
14 probation/parole would accept formal probation on these
15 charges?
16 MR. MCMAHON: I believe they would since it's an
17 attempted assault of a public safety officer and a resist.
19 MR. MCMAHON: That's my understanding. If they
20 don't, they'll tell us.
22 MR. MCMAHON: If they don't, they'll tell us and send
23 it back. But I think that --
24 THE COURT: I know they will. But the point is --
25 MR. MCMAHON: Avoiding -- yeah.

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1 THE COURT: -- I don't believe that bench probation
2 would do any good here.
3 MR. MCMAHON: And I do believe that they would take
4 him with the attempt assault and the resist.
5 THE COURT: Yeah. (Indiscernible) verification
6 (indiscernible).
8 MR. STULL: Pardon me, Your Honor. I do have to
9 correct his misstatement. I have no convictions for delivery
10 of marijuana ever. I have five felony convictions for
11 marijuana. And I was protected under the Medical Marijuana
12 Act. And we have changed the laws. And I just wanted to
13 straighten out the record here. I would point out that the
14 2012 harassment case was done at the time when we had what we
15 euphemistically called guilty court where -- which presiding
16 Judge Brewer found --
17 THE COURT: I don't think it was called guilty court.
18 MR. STULL: -- found in the -- found was the practice
19 that the county had of reducing cases to violations. That was
20 a violation case. So that 2012 harassment case was one that
21 was done under a practice that was found unconstitutional since
22 then. And by the -- I don't know how we pronounce Ms.
23 D-E-N-O-I-T's last name, but it was Lori (phonetic) Denoit in
24 that case.
25 So I just want to clarify for the record that, yes, I

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1 do have felony convictions for marijuana. We have changed the
2 laws on that. And I would also point out that even in the case
3 on appeal from 2012 there was an incident of them arresting me
4 and taking marijuana, which my neurologist testified was the
5 type of thing that would actually quiet down these uncontrolled
6 firings of my physiology.
7 So that's all I had to say. I'm just saying that I
8 don't want to be painted with the same brush that gave me all
9 those aka's. You know, that I've been a good citizen.
10 Unfortunately, the thing that's my best medical treatment is
11 something that we still have quite a controversy in the United
12 States about. And that's all I have to say.
13 MR. KELLEY: Your Honor, if I may protect the record
14 briefly? In regard to Mr. McMahon's statement that Mr. Stull
15 will not be filing a motion for a new trial, my reading of the
16 statutes is that that needs to be filed within ten days of
17 judgment, which presumably would be today, a judgment of
18 conviction. Mr. Stull may file a motion (indiscernible).
19 MR. MCMAHON: Okay. Thank you for clarifying that.
21 MR. KELLEY: He did serve 77 days on charges that
22 were dropped. We would request a sentence of discharge.
23 THE COURT: I'm not going to enter a sentence of
24 discharge, just to begin with.
25 (Pause)

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1 THE COURT: Mr. Stull, just so you know, you were
2 convicted and it was, you know, a while back. It was in
3 1990 -- let's see, 1990-something, of felonies of manufacture
4 and delivery of controlled substance.
5 MR. STULL: No, I wasn't, Your Honor. I have the
6 paperwork right --
7 THE COURT: Look, I --
8 MR. STULL: I have that verdict right here, Your
9 Honor. I was not convicted of delivery of any controlled
10 substance ever in my life.
11 THE COURT: Be that as it may be -- (indiscernible)
12 court records are wrong. But be that as it may be, I'll -- I
13 will -- I'll impose two -- I will sentence on the assault on
14 the -- what is it? Assaulting a public safety officer, which
15 is -- let's see.
16 MR. KELLEY: He does have the verdict form showing
17 not guilty on that charge, Your Honor.
18 THE COURT: Oh.
19 MR. KELLEY: He showed it to me just now. I showed
20 it to the State.
21 THE COURT: I am looking at it on this other case in
22 1990.
23 MR. KELLEY: He's got it right here.
24 MR. STULL: Yeah. That's the verdict --
25 THE COURT: That's not exactly -- I'm -- what I see

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1 is -- in the court records is a conviction.
2 MR. MCMAHON: I think it's -- I think that was a
3 conviction for manufacturing and not a conviction for
4 distribution.
5 THE COURT: Well, it says manufacture and deliver.
7 THE COURT: But, you know, what it was, I don't care.
8 It's 1990. It's --
9 MR. STULL: I just want to --
10 THE COURT: -- 20 years ago. It's not like that's
11 going to make a big difference here. But in any case, the --
12 we have guilty on attempted assault of a public safety officer,
13 Count I. And on Count I, that attempted assault of a public
14 safety officer, I'll enter a sentence of two years of formal
15 probation with restitution of $48 -- well, no, I guess the
16 restitution is under the criminal mischief. So two years of
17 formal probation, mental health diagnosis and treatment as per
18 PO, standard terms of probation which include obey all laws.
19 And on Count II, resisting arrest, two years formal probation,
20 concurrent conditions. Count III, criminal mischief in the
21 second degree, two years formal probation. Because the first
22 one is formal probation, otherwise it certainly wouldn't be.
23 Concurrent conditions and restitution of $48.68. As to Count
24 I, a condition -- a special condition will include compliance
25 with all probation, so compliance with the restitution order

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1 will also be a condition that way of the first count sentence.
2 Statutory fees.
3 MR. MCMAHON: And, Your Honor, I'm pulling out a
4 restitution order.
5 MR. STULL: Who is that restitution to, please?
6 MR. MCMAHON: The City of Portland.
7 MR. STULL: What was that for?
8 MR. MCMAHON: The broken seatbelt (indiscernible).
9 THE CLERK: Do you (indiscernible) attorney's fees?
10 THE COURT: It was --
11 MR. MCMAHON: He doesn't have any because it's a --
12 THE COURT: He's represented -- well, I guess we
13 initially had attorney's fees. Let's see what that was. If
14 there's an existing judgment on that I wouldn't disturb it.
15 Let me see. Maybe it was a -- I don't know whether he was in
16 custody or not.
17 MR. MCMAHON: Because he's a legal advisor,
18 technically, so I don't know. Actually, I don't know.
19 (Indiscernible).
20 MR. KELLEY: I think I bill just as if I was an
21 attorney, his attorney. I'm appointed on this matter.
22 THE COURT: Well, I guess counsel was appointed in
23 custody. But I'll waive attorney's fees. (Indiscernible).
25 Volume 29 on January 5, 2017.)

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13 Salem, OR 97302
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17 Date: April 12, 2017
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STATE OF OREGON, )
) Multnomah County
) No. 15CR53749
vs. )
BARRY JOE STULL, )
) Pages 1350 - 1367
______________________________________________________________

ROBERTS, Judge of the Circuit Court, Thursday, January 5
APPEARANCES

1021 SW 4th Avenue
Portland, OR 97204
(503) 988-3162

Hillsboro, OR 97124
(503) 648-0707

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GENERAL INDEX
VOLUME 29 of 29
January 5, 2017 Proceedings Page No.
Defense's Motion for New Trial........................... 1352
Court's Ruling on Motion For New Trial................... 1364

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1 PORTLAND, OREGON; THURSDAY, JANUARY 5, 2017
2 -O0O-
4 THE COURT: Would you like to call the case?
5 MR. MCMAHON: Yes. Thank you, Your Honor. And good
6 morning. Eamon McMahon for the State, M-c-M-a-h-o-n, bar
7 number 153879. We're here in the matter of State of Oregon v.
8 Barry Joe Stull, 15CR53749. Defendant is present out of
9 custody. He's representing himself pro se. He's also
10 accompanied by his legal advisor, Mr. Kevin Kelley. Now is the
11 time and place set to address Defense's motion for a new trial.
12 THE COURT: I wondered if you could advise me,
13 Mr. Kelley --
14 MR. KELLEY: Yes.
15 THE COURT: -- whether you represent Mr. Stull or not.
17 THE COURT: Because if you don't represent him, you
18 cannot appear for him and you could not file this motion for
19 him.
20 MR. KELLEY: I'm reading the statutes that apply to
21 legal advisor, Your Honor, and I am his counsel on the case
22 under the statute. Counsel includes a legal advisor appointed
23 under 135.045. I also was advised by my client regarding some
24 specific stipulations from Judge Marshall at the time that I
25 was appointed. I was not present when the substitution --

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1 THE COURT: I --
2 MR. KELLEY: -- was granted.
3 THE COURT: If there's a document -- otherwise I'm
4 not going to listen to somebody telling me what some other
5 judge said. So if there's a document or an order that
6 indicates that some special conditions apply, I'll be glad to
7 look at that.
8 MR. KELLEY: I can tell the Court that I am his
9 counsel. Under the Oregon Criminal Code, ORS 135.050, counsel
10 includes a legal advisor.
11 THE COURT: Yes. But the question is whether --
12 well, I'll hear the arguments, but I still think that this is
13 irregular. So are you going to argue the motion?
14 MR. KELLEY: I believe Mr. Stull is prepared to argue
15 the motion.
17 MR. MCMAHON: And, Your Honor, I would just briefly,
18 before Mr. Stull begins the motion argument, 135.050, my read
19 of it is that the definition of counsel as -- including a legal
20 advisor, it's just for the purposes of whether or not someone
21 qualifies for one and whether or not it will be paid for by the
22 state, not that individual as a legal advisor has the capacity
23 to act as counsel. I think the issue here is Mr. Stull wants
24 to have his cake and eat it, too. Have a lawyer when he wants
25 it and represent himself when he wants it. I think he doesn't

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1 get to do that.
2 THE COURT: I think he has to be (indiscernible).
3 And he can't be both. But as I say, while I believe that the
4 motion was therefore improperly filed and I don't believe that
5 it's properly before me, I'll nevertheless entertain the
6 arguments made here.
7 MR. STULL: Thank you, Your Honor. Good morning,
8 Your Honor. Today I'm chewing gum in the court because I have
9 a neuropathic pain condition.
10 THE COURT: You can chew gum.
11 MR. STULL: Thank you. And I may not look at the
12 Court as I speak because I have a neuropathic pain condition
13 and I find this a hostile environment. But I do respect the
14 procedure that I'm in right now.
15 Now, as a preliminary matter, February 9, 2016, I had
16 quite an extensive hearing before Judge Marshall addressing a
17 number of things. One, of course, was the dismissal of the
18 felony charge, which you know is going to trial. It was a
19 product of my being overcharged at the time of the arrest. And
20 so now we've had the verdict. We've had the sentencing.
21 I'm a person with a disability. All my bills are
22 paid. I have zero income. I'm paying none of my supervision
23 fees for the Multnomah County Community Corrections. I am
24 paying none of my restitution. That has already been dealt
25 with procedurally.

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1 And my status at the time of the verdict, preparing
2 for the sentencing, was that I was moving on to the Court of
3 Appeals. I was going to do my time and I was going to appeal
4 what I felt was a wholesale violation of the -- my rights as a
5 person with disabilities and frankly simply as a defendant able
6 to challenge the lawfulness of the charges against me. And I
7 say, and I continue to say, that when a law violates a person's
8 civil rights, the enforcement of that law violates the person's
9 civil rights and the execution of that law through any branch
10 of the state government or county government violates both
11 state and federal law. And that's my policy and that's my
12 procedure.
13 So where we're at this morning is that being competent
14 to represent myself and knowing that the Oregon Evidence Code
15 will be used illegally as a vehicle to deny my civil rights as a
16 person with a disability, I was prepared to go through this whole
17 process. So my status today is I have to make one phone call on
18 January 24th. I have to make one phone call on February 24th.
19 And I have to go at 8:00 in the morning and be one of three
20 people that gets to have a mental health evaluation which was
21 ordered by the Court. Upon executing that process and getting
22 that mental health evaluation, Multnomah County Community
23 Corrections can offer me no mental health treatment whatsoever.
24 So really I'm two phone calls away from living my life, having my
25 two years' probation age out after one year, having this all be

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1 dismissed well, well, well prior to what I perceive will be a
2 favorable ruling on my behalf in first the Oregon Court of
3 Appeals and if necessary the Oregon Supreme Court.
4 So on February 9th, knowing I was going to have
5 problems with subpoenas of evidence, that the Evidence Code
6 would be specifically targeted to use against me as a person
7 with a disability to keep my medical records and my prior
8 history of having a -- my disability out of the evidence, I
9 knew that was all going to happen. So I first went through a
10 series of Multnomah defender attorneys which were so delinquent
11 in their vociferous assistance as they were authorized to do
12 and paid for, frankly, under Judge Marshall's February 9, 2016,
13 order. And I was appointed as a legal advisor Mr. Kelley. And
14 we have done quite well.
15 However, at the time I expected to be sentenced --
16 and as I said, two phone calls away from being free of this
17 case -- I didn't expect to have discovery. That's been
18 frankly -- having that and reading those documents sickened me
19 because they were continued falsehoods and prejudicial,
20 unfounded claims about my character, about my medical
21 condition. And had I known that James Wood (phonetic) had
22 characterized me as having Posttraumatic Stress Syndrome when
23 the actual reality is I have a neuropathic pain condition and
24 we in this environment, as we know here in this courtroom, have
25 an ongoing practice of me seeking medical attention after being

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1 a crime victim, having the Portland Police and the Multnomah
2 County District Attorney's Office and the Multnomah County
3 Circuit Court drag me -- I'm saying dragging me.
4 I'm here this morning against my will. If I didn't
5 show up I'd have a warrant for my arrest. I have to go this
6 afternoon to another case and if I don't show up there I'll
7 have a warrant for my arrest. I will once again be placed into
8 the arms -- the loving arms of people that have guns and kill
9 people with disabilities as so evidence by the ongoing
10 settlement agreement with the United States Department of
11 Justice. (Indiscernible) --
12 THE COURT: Excuse me.
13 MR. STULL: -- what happened. So this morning --
14 THE COURT: Excuse me to interrupt.
15 MR. STULL: This morning --
16 THE COURT: But the only thing that I have on my
17 docket is your motion for a new trial. You wouldn't --
18 MR. STULL: Absolutely. And I'm challenging --
19 THE COURT: And you would not be -- you would not
20 have been arrested if you decided not to come.
21 MR. STULL: Well, regardless, the motion would have
22 been denied as far as a default was concerned because frankly
23 you don't even accept that Mr. Kelley has the authority to file
24 this motion. And he certainly does. And I expected coming in
25 here that what was going to happen was Mr. McMahon was going to

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1 produce whatever he could and you were going to agree with him.
2 And I was going to have that before the Oregon Court of Appeals
3 within 30 days of the date this judgment and this order is
4 entered.
5 I haven't been treated fairly since I came into this
6 courtroom and you allowed my neurologist to be quashed as a
7 witness. So I am -- I know what's going on here. This is a
8 railroad. It's a Multnomah County Circuit railroad. And I've
9 been in it now for decades.
10 Mr. Kelley is fully authorized to file the motion.
11 If you disagree with that, that's fine. The Oregon Supreme
12 Court case defiles -- defines the act of filing is mine. And
13 that was a product of me going in front of a notoriously
14 drunkard Lee Johnson who didn't even have a record. And I had
15 to do his ruling over after I paid the fee to have a recording
16 so I could have a record to even win in the Oregon Supreme
17 Court and subsequent to that the Oregon Court of Appeals.
18 So this entire process is an outrage. I am protected
19 under Oregon law, federal law. And Mr. Kelley is my metric
20 equivalent of a service animal. He's here because I'm a person
21 with a disability and he's here to serve me and effect that I
22 have justice. And so when I get a surprise that sickens me to
23 hear what people are characterizing me as and I get that from
24 Mr. McMahon, I'm too sick to even meet that ten-day deadline.
25 And I am entitled under Oregon Revised Statute

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1 659A.142 and its corresponding Oregon Administrative Rules --
2 in Oregon Administrative Rules Chapter 839 Division 3 and
3 Division 6, I am entitled to reasonable modifications of
4 policies and procedures. And one of the ways we judge this, if
5 this is all facially neutral, which I will say no it isn't,
6 but if this is facially neutral and it has a disparate impact
7 on persons with disabilities, then it is illegal regardless of
8 any intent or regardless of any motive or lack of motive. If
9 these things discriminate against me as a person with a
10 disability, they're unlawful. And that's my policy with
11 regards -- to assert my civil rights.
12 And Mr. Kelley is authorized by me since I am too
13 sick to further engage in this to make any further arguments
14 defending what I said already. I'll sit down, Your Honor.
15 Good morning.
16 MR. MCMAHON: Well, Your Honor, the State's
17 position -- I think I'll kind of address the three things I
18 laid out in my motion very briefly -- or my response to the
19 motion very briefly. First and foremost, Mr. Kelly is not his
20 legal counsel. I think -- and here we're sort of blurring the
21 line. He's his legal advisor. And Mr. Stull gets to make all
22 the decisions and must file all motions, objections. And
23 again, Mr. Stull and Mr. Kelley were repeatedly informed by the
24 Court during trial that only Mr. Stull could make those legal
25 motions and objections. And in this instance, Mr. Stull didn't

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1 sign it with Mr. Kelley, didn't sign an affidavit, didn't do
2 anything. This is entirely brought about by Mr. Kelley and as
3 such it's improper since he's not his legal counsel.
4 It's not legal counsel part of the time. It's not
5 legal counsel for stuff I don't understand. It's either you
6 represent yourself and you take all the perils with that -- and
7 there's a validly executed waiver that Mr. Stull agreed to
8 that. He agreed to take on those risks. And here we see the
9 result of that risk where he did not properly file it and the
10 motion is not properly before the Court.
11 That being said, moving to the merits of the motion
12 filed by Mr. Kelley, I think that if the Court were to adopt
13 Mr. Kelley's motion and say that it was filed by Mr. Stull,
14 it's clear here that it doesn't meet the standard for a new
15 trial. The standard is that there must be newly-discovered
16 evidence which such party could not with reasonable diligence
17 have discovered and produced at trial. Mr. Stull did not
18 undertake reasonable diligence. Again, a risk of him
19 representing himself.
20 And I think here we are in a somewhat unique factual
21 posture that shows us the comparison of the dangers of when
22 someone represents themself and when someone is represented by
23 a party. Because we have the exact same set of documents for
24 Mr. Stull's and for Mr. Stull's former co-Defendant. Mr.
25 Stull's co-Defendant was represented by a party -- was

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1 represented by an attorney. That attorney sent a subpoena and
2 got those records.
3 Mr. Stull represented himself. Mr. Stull did not
4 endeavor to submit a subpoena for those records. He did not
5 produce them. Reasonable diligence in this case actually did
6 produce these records. Mr. Stull did not undertake that
7 reasonable diligence. And as a result, it doesn't satisfy the
8 standard required for a new trial.
9 Finally, even if the Court does find that reasonable
10 diligence would not have uncovered the records, the Court must
11 still review the records and indicate whether or not there's
12 information in there that would likely lead to a result in a
13 new trial. Mr. Stull has in his argument really only pointed
14 to one thing, and that's stating that he was going through PTSD
15 and not a Central Pain Syndrome is his main area of contention.
16 Mr. Stull has not made any showing that that would have in any
17 way materially affected the outcome of the verdict.
18 And I think for these reasons, I think for each
19 and -- each of those separate reasons, the motion should be
20 denied. And I would ask the motion for a new trial be denied.
21 MR. KELLEY: To try and answer the Court's original
22 question to me, Your Honor, I have referred to the Oregon Rules
23 of Professional Conduct 2.1 for an advisor. And it reads, "In
24 representing a client --." So an advisor, according to the
25 Professional Rules, it would appear does represent a client.

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1 The Criminal Code says that I am his counsel, which would
2 contradict what Mr. McMahon has said. I would respectfully ask
3 the Court to consider the merits of the motion.
4 THE COURT: Okay. Anything further on the merits?
5 MR. KELLEY: Well, what Mr. McMahon has ignored is
6 the State's burden to produce that -- those documents in
7 discovery in advance of trial. He wants to shift the burden to
8 the Defense to subpoena them.
9 THE COURT: But on this motion --
10 MR. KELLEY: He was -- right.
11 THE COURT: -- the burden is on the movant to show a
12 basis for a new trial.
13 MR. KELLEY: That is true.
14 THE COURT: So they have -- you have to show
15 substantive rights that were violated.
16 Mr. KELLEY: Sure.
17 THE COURT: And furthermore, I am troubled by the
18 fact that it's evident that if this was discovery that wasn't
19 produced earlier, it certainly came to the attention -- your
20 attention well before judgment was entered in the case. And we
21 haven't heard anything about it until this motion was filed
22 more than ten days after that judgment was entered.
23 MR. KELLEY: The statute doesn't allow a motion for a
24 new trial until judgment has been entered.
25 THE COURT: Well, it might -- I mean, if the

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1 judgment -- if the motion for a new trial is based on newly
2 discovered evidence or a procedural irregularity, then you
3 would expect either of those matters to be brought to the
4 Court's attention as soon as you hear about it, not several
5 months -- not more than two months later if it in fact affected
6 material rights.
7 And what are -- and your argument doesn't show what
8 material -- what difference any of this would make. And I will
9 note for the record that we had -- that nothing in these things
10 looked like they reflect anything that was -- I didn't look at
11 it carefully. For one thing, what you gave me, it was largely
12 illegible. But you need to bring to my attention what was the
13 effect, if any, whether something is exculpatory in all of this
14 or something like that.
15 Do remember that we had film that was played to
16 the -- or what passes for film, digital images played to the
17 jury of the whole event.
18 MR. KELLEY: True.
19 THE COURT: So are you saying that there was some
20 note in there about what somebody observed that would
21 contradict what was shown by the video?
22 MR. KELLEY: Well, the credibility of the witness is
23 always at issue.
24 THE COURT: The credibility of the video?
25 THE DEFENDANT: The credibility of witnesses, the

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1 State's witnesses, is always at issue. That's an issue for the
2 jury to decide in every case. And --
3 THE COURT: But what did they say that could have
4 been undermined by anything in the material? And this is
5 something that should have been part of the motion is telling
6 me what was significant about it.
7 THE DEFENDANT: I understand. And I think I'd like
8 to let Mr. Stull address that, if I may.
9 THE COURT: If he can speak to that, he should --
10 MR. STULL: It's already on the record. I already
11 said that had I known what these people had in their
12 testimony -- or in -- this was a important police -- I'll just
13 use the catchall of police conduct review. It was an
14 administrative process. It was a City of Portland process.
15 And it contained statements regarding the views of these
16 witnesses and how they mischaracterized me.
17 And I certainly have the ability to when Mr. Woods is
18 on saying that my statement on video was that this experience
19 of -- that I had with the previous landlord that Deborah Kafori
20 (phonetic) gave an award, left me broke, sick, and hungry.
21 Well, no, no. It left me broke, sick, and homeless. And in
22 that same witness's testimony, not in court because I couldn't
23 even ask him about that, he characterized me as also saying
24 that I had Posttraumatic Stress Disorder.
25 And there was nothing in that video that shows that I

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1 have Posttraumatic Stress Disorder. Posttraumatic Stress
2 Disorder isn't my neurological condition that I could die from.
3 Posttraumatic Stress Disorder is in fact a psychological
4 condition. And I am developing a psychological condition
5 because I have a physiology and I'm subjected to this ongoing
6 abuse of my civil rights.
7 I should not even have to be here on this. I
8 wouldn't even be here on this if the City of Portland and the
9 State of Oregon -- this was all -- this case was at city hall.
10 There's no doubt that the City of Portland was involved and the
11 G4R security guards who were witnesses here were involved. And
12 the Portland Police were involved. And their testimony that
13 are in this record would have changed my ability to portray how
14 they viewed me and how things went down.
15 And, Your Honor, we're really perseverating here
16 because you denied all my defenses under -- as a person with a
17 disability under State vs. Maribet which clearly allows me to
18 challenge the lawfulness of these arrests against my interest.
19 I'm still a person that for some 20 minutes was denied an
20 ambulance because the policy is they can't let me get in the
21 ambulance if I'm unsafe. So I get to die because my condition
22 is one where I can't calm down.
23 And so I'm going to calm down right now because I
24 already told you if I had this I wouldn't be so sick right now.
25 We would have raised it. We raised it timely. This was in

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1 fact in front of -- before the Court because I got my copy
2 right here in this courtroom where Mr. McMahon said, oh, Mr.
3 Stull, we're going to give you a chance to postpone sentencing
4 today. It was on the day of sentencing that I got this
5 discovery. This is a discovery violation.
6 And all due respect to Mr. Kelley, I don't know how
7 he could come in following the delinquent -- so delinquent that
8 they were actually fired by their -- by the State of Oregon and
9 me, the prior public defenders that I had. This case should
10 have been over long, long ago because it should have been
11 dismissed. And I can't seem to get anybody to let go of this
12 case and this prosecution against me any more than I could get
13 a dog to let go of my leg once it was a pitbull and it clamped
14 down. You know, you have to hit them on the head with a
15 hammer. And I'm not going to hit this Court on the head with a
16 hammer. The Court's the one with the hammer and I'm the one
17 with a pen. And I'm just going to take this all with a paper
18 trail and the court of public opinion through the appellate
19 record.
20 And I do not want to perseverate. I am beating a
21 dead horse. I have not been given justice since the day I
22 walked in this courtroom and I don't anticipate getting it now.
23 THE COURT: I think that's enough. If he's
24 representing himself, he's done it. I'll deny the motion.
25 MR. MCMAHON: All right. Your Honor, it's my

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1 understanding Mr. Stull intends to appeal. If I could, I
2 guess, push on the Court's patience and give just a brief --
3 and request just a very brief oral recitation of the reasons
4 for denial of the motion? Because I do understand Mr. Stull
5 intends to appeal.
6 THE COURT: Well, very frankly, there was no showing
7 that this material affected -- late provision of this material,
8 if it was late, affected any substantial right of the
9 Defendant. That's something that the movant needs to show.
10 And furthermore, it was in the hands of the Defense from
11 October 30th at the very latest. And judgment wasn't entered
12 in the case until November 17th. So if there -- if there was a
13 motion to be made, it can't be on -- I mean, it should have
14 been raised in some form by a motion to not enter the verdict
15 or a motion in arrest of judgment or a motion for mistrial or
16 something promptly, not over two months later.
17 Furthermore, the motion, if it was validly filed on
18 behalf of Mr. Stull -- although Mr. Stull sought permission to
19 appear as his own attorney and was granted that permission as
20 his own representative in this action. Nevertheless, it was
21 filed by the legal advisor. But if it was properly filed, when
22 it was filed it was filed more than ten days after the judgment
23 was entered and, as I say, more than two-and-a-half months
24 after the material was brought to the attention of the Defense.
25 So --

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1 MR. MCMAHON: Thank you, Your Honor. I appreciate
2 it. Thank you, Your Honor.
3 THE COURT: -- for all those reasons I'm denying the
4 motion.
6 (Proceedings concluded at 12:02 p.m.)
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23
24
25 ///

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13 Salem, OR 97302
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17 Date: April 12, 2017
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Transcript Checklist for 67135
User ID: bela.lemmon Attorney: Brett J. Allin
April 27, 2017
Barry Joe Stull
Multnomah 15CR53749
A164154
Case Type: JT
Pages: 1355
Transcript Filed: 4/26/2017
Record Settlement(s): 5/11/2017
Designation(s):
Appellant designates the record in its entirety, including the trial court file, all exhibits offered
and/or received into evidence, and the entire record of the oral proceedings.
Questionnaire returned? Yes No

Comments:
Designated dates transcribed? Yes No N/A

Comments/additional dates transcribed: Record designated in its entirety
Consecutive pagination? Yes No

Comments:
Plea transcribed?1 Yes No N/A

Comments:
Pretrial hearing(s)?2 Yes No N/A

Comments:
Audio/Video exhibit(s)? Yes No N/A

Comments: a number of audios not transcribed due to being inaudible. Emailed VW on 4/27/17
re please request original exhs and please transcribe everything
Voir dire (if designated)?3 Yes No N/A

Comments:
Opening statements?4 Yes No N/A

Comments:
Closing arguments?5 Yes No N/A

Comments:
Jury instructions?6 Yes No N/A

Comments:
1
Record designated in its entirety
2
3
4
5
6
Verdict? Yes No N/A
Comments: p 1295
Sentencing? Yes No N/A

Comments:
Transcriber Statement Regarding Record
Dear Transcriber,
Please check one or more of the boxes below to indicate whether the transcript you have prepared is
complete or whether there were any designated proceedings, or portions thereof, that you were not able
to transcribe. Please return the completed form to the Office of Public Defense Services with the
transcript and Provider Fee Statement.
9 Complete Transcript
_________________________________________________________________________________
Missing Recordings
Audio recordings of some or all of the proceedings listed in the Designation of Record are
missing. Specifically, there are no recordings of the following proceedings:
_________________________________________________________________________________
9 Inaudible Portions
Portions of the audio recordings are inaudible for at least 15 seconds and could not be
transcribed. The inaudible portions are noted on the following transcript pages:
x 9/19/16: Jury selection from pages 446, line 5 through 485, line 9 -- difficult to hear
attorneys and jurors throughout the entirety of jury selection.
x 9:19:16: Opening statements by both attorneys were different to hear as they appeared to
not be standing by a microphone.
x Mr. McMahon, Plaintiff attorney, was oftentimes not appearing to stand by microphone,
so he was difficult to hear.
9 Audio or Video Recordings Played in Court

Audio and/or video recordings were played in court, as noted on the following transcript pages:
(Please indicate if you were unable to transcribe the records.)
x 9/21/16: Exhibit 50 played in open court and not transcribed due to being inaudible, page
910, lines 16 and 17.
x 9/21/16: Exhibit 51 played in open court and not transcriber due to being inaudible, page
911, lines 13 and 14.
9/21/16: State's Exhibit 1 played in open court sporadically through page 924, lines 8 and
9 through page 958, line 5 and page 977, lines 11 through 12 through page 999, line 20
and not transcribed due to being inaudible.
9/21/16: State's Exhibit 2 played in open court and transcribed with inaudibles: page 959,
line 3 through 976, line 21.
Other:
_________________________________________________________________________________
Date: April 26, 2017
Transcriber: Valori Weber

Barry Joe Stull Archive: 67135 - Transcript

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Transcript Checklist No. 2 for 67135

Questionnaire returned? Yes No

Designated dates transcribed? Yes No N/A

Consecutive pagination? Yes No

Plea transcribed? Yes No N/A

Pretrial hearing(s)? Yes No N/A

Audio/Video exhibit(s)? Yes No N/A

Voir dire (if designated)? Yes No N/A

Opening statements? Yes No N/A

Closing arguments? Yes No N/A

Jury instructions? Yes No N/A

Verdict? Yes No N/A

Sentencing? Yes No N/A

9 Audio or Video Recordings Played in Court

Date: May 11, 2017

Transcriber: Valori Weber

FOR THE COUNTY OF MULTNOMAH

TRANSCRIPT OF PROCEEDINGS ON APPEAL

BE IT REMEMBERED that the above-entitled matter

FOR THE PLAINTIFF-RESPONDENT:

FOR THE DEFENDANT-APPELLANT:

Thomas MacNair, OSB #961620

Barry Joe Stull, out of custody

Weber Reporting Corporation

1 PORTLAND, OREGON; MONDAY, SEPTEMBER 19, 2016

3 (Call to Order of the Court at 2:23 p.m.)

4 UNIDENTIFIED SPEAKER: We're on page 28, line 1,

5 and it's an add-on. He's also an add-on. Barry Stull.

6 (Discussion being held between individuals that is

8 MR. COULTER: We're asking for Jane Fox on the

9 misdemeanor and Kasia Rutledge on the felony, Judge.

10 MR. STULL: My attorney on this case is Harry

11 Carson, (indiscernible), Michael E. Rose, and (indiscernible)

12 who is with the United States Department of Justice. And I

14 confused. He's a supervisor of (indiscernible) at Schwabe

15 Williamson & Wyatt.

16 I'm a person with a disability. And this entire

17 thing is an ongoing civil rights violation. That's why I

18 can speak R. Jonas Geisert's (ph) name, and the --

19 especially the United States Department of Justice vs. City

20 of Portland, their settlement agreement, paragraph 130 on

21 page 45, specifically articulates retaliation. And

22 everything that's happened to me this week has since --

23 MR. COULTER: (Indiscernible).

24 MR. STULL: -- everything that's happened this

25 week since my conversation with Geisert on his voicemail.

Weber Reporting Corporation

1 So the arrest at -- the arrest at Emanuel Hospital

4 the microphone. You're very loud and it's actually -- it's

5 quite sensitive. Why don't you just stand normally.

6 MR. STULL: Oh, okay. I haven't been able to make

7 a phone call since I went into custody. It's been over 48

8 hours. So I said my attorney on this case is Harry Carson.

9 THE COURT: No, I heard you, sir.

10 MR. STULL: Okay. I couldn't tell if you were

11 hearing or if I was over-blasting the microphone. I'm sorry.

12 THE COURT: No, I can hear you. That's --

13 MR. STULL: Okay.

14 THE COURT: Okay.

15 MR. STULL: And I'm -- what's the (indiscernible)

17 THE COURT: Let me -- can I ask you a couple of

18 questions. Is Harry Carson, is that a continuing