Opposition Brief — Ernest Lee Dean, aka Earnest Lee Dean, Petitioner v. Oregon

Supreme Court briefNov 20, 2017

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No. 17-5343

IN THE SUPREME COURT OF THE UNITED STATES

ERNEST LEE DEAN, aka EARNEST LEE DEAN,

Petitioner,

STATE OF OREGON,

Respondent.

RESPONDENT'S BRIEF IN OPPOSITION

ON PETITION FOR WRIT OF CERTIORARI TO THE

OREGON COURT OF APPEALS

ELLEN F. ROSENBLUM

Attorney General

BENJAMIN GUTMAN*

Solicitor General

JACOB BROWN

Assistant Attorney General

1162 Court St. NE

Salem, Oregon 97301-4096

Telephone: (503) 378-4402

jacob.brown@doj.state.or.us

Attorneys for Respondent

'Counsel of Record

QUESTION PRESENTED

A detective testified without objection about the concept of "serial

robberies" and its application to the investigation of defendant's crimes. In

closing argument, the prosecutor referred, also without objection, to defendant

as a "serial robber." Did the prosecutor's comment or the trial court's failure to

give a curative instruction sua sponte violate petitioner's rights arising under

the Fifth and Fourteenth Amendments, or the Federal Rules of Evidence?

TABLE OF CONTENTS

QUESTION PRESENTED

INTRODUCTION

JURISDICTION

STATEMENT OF THE CASE

REASONS TO DENY REVIEW

This court lacks jurisdiction because the decision below was

based upon an adequate and independent state ground.

This case does not warrant review.

The issue is not squarely presented because the record

does not support many of petitioner's predicate

assertions

Petitioner's arguments fail on the merits, there is no

open question to answer, and there is no split of

authority to resolve.

CONCLUSION

APPENDIX

Excerpt of Trial Transcript— Testimony of Det. Brett Hawkinson

App-1

Excerpt of Trial Transcript — Prosecutor's Initial Closing Argument

App-108

Appellant's Opening Brief (without attachments)

App-129

Appellant's Pro Se Supplemental Brief (without attachments)

App-136

Respondent's Answering Brief (without attachments)

App-144

TABLE OF AUTHORITIES

Cases

Adams v. Robertson,

520 U.S. 83, 117 S. Ct. 1028, 137 L. Ed. 2d 203 (1997)

Ailes v. Portland Meadows, Inc.,

823 P.2d 956 (Or. 1991)

7, 10

Anders v. California,

386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967)

Howell v. Mississippi,

543 U.S. 440, 125 S. Ct. 856, 160 L. Ed. 2d 873 (2005)

Smith v. Phillips,

455 U.S. 209, 102 S. Ct. 940, 71 L. Ed. 2d 78 (1982)

State v. Balfour,

814 P.2d 1069 (Or. 1991)

State v. Brown,

800 P.2d 259 (Or. 1990)

State v. Powell,

206 P.3d 321 (Wash. 2009)

State v. Tilden,

288 P.3d 567 (Or. Ct. App. 2012)

State v. Wyatt,

15 P.3d 22 (Or. 2000)

United States v. Prantil,

764 F.2d 548 (9th Cir. 1985)

Constitutional and Statutory Provisions

2, 7

i, 1, 6

i, 1, 5, 6

28 U.S.C. § 1257(a)

Fed. Rule Evid. 101(a)

Or. Rev. Stat. § 163.225

Or. Rev. Stat. § 164.225

Or. Rev. Stat. § 164.405

Or. Rev. Stat. § 164.415

Or. Rev. Stat. § 166.270

Or. Rev. Stat. § 166.382

US Const, Amend V

US Const, Amend XIV

Other Authorities

Or. R. App. P. 5.45(1)

iii

RESPONDENT'S BRIEF IN OPPOSITION

INTRODUCTION

Petitioner asks this Court to grant certiorari to consider the question of

whether the prosecutor's comments regarding the term "serial robber," and the

trial court's failure to give a curative instruction sua sponte, violated

petitioner's rights arising under the Fifth and Fourteenth Amendments or the

Federal Rules of Evidence. But that question is not squarely presented by this

case. First, this Court lacks jurisdiction to review this case. Defendant's

arguments were unpreserved on direct appeal, and thus the federal claims

advanced here were neither addressed by, nor properly presented to, the state

court that rendered the decision challenged. Rather, the state court decided the

matter based upon the adequate and independent grounds of state preservation

requirements. Second, even if this Court has jurisdiction, this case does not

warrant certiorari. The record does not support several matters material to

petitioner's legal arguments, his arguments are wrong on the merits, and there is

no open question to answer or split of authority to resolve. This Court should

therefore deny the petition for writ of certiorari.

JURISDICTION

This Court has jurisdiction over "[final judgments or decrees rendered

by the highest court of a State in which a decision could be had," where a

"right" is "specially set up or claimed under the Constitution" or "statutes" of

the United States. 28 U.S.C. § 1257(a) (alterations supplied). But as explained

below, this Court lacks jurisdiction because the federal claims advanced here

were neither addressed by, nor properly presented to, the state court below.

STATEMENT OF THE CASE

The State of Oregon charged petitioner with several offenses for his

commission of two robberies occurring ten days apart in the Portland area.'

(See Trial Court File ("TCF"), Indictment at 1-4). In the first robbery,

petitioner, wearing dark clothing and a mask, entered the Silver Cloud Inn in

Portland at 3:30 a.m. on September 5, 2013, tied up the hotel clerk and a

deliveryman with plastic zip ties, threatened the clerk with a gun and a bomb,

and demanded money from the hotel cashier drawer and safes. (See Trial

Those offenses included 17 total counts of first-degree robbery, Or.

Rev. Stat. § 164.415; second-degree robbery, Or. Rev. Stat. § 164.405; seconddegree kidnapping, Or. Rev. Stat. § 163.225; first-degree burglary, Or. Rev.

Stat. § 164.225; felon in possession of a firearm, Or. Rev. Stat. § 166.270; and

unlawful possession of a destructive device, Or. Rev. Stat. § 166.382. (TCF,

Indictment at 1-4).

Transcript ("Tr") 216-26, 376-80). Similarly, in the second robbery, petitioner,

wearing black clothes and a mask, entered the Holiday Inn in Gresham at

around 3:00 a.m. on September 15, tied up the hotel clerk with plastic zip ties,

threatened him with a gun and a bomb, and demanded money from the hotel fill

and deposit boxes. (See Tr 257-68).

At trial, a detective testified about the concept of "serial robberies"--in

which a suspect employs similar methodology to rob similar victims over

time and its application to the investigation of petitioner's crimes. (See

Appendix ("App.") 4-19,21-64). Petitioner did not object to the detective's

testimony about serial robberies or request a curative instruction. (See App. 1107).

In closing argument, the prosecutor recounted the detective's testimony

about serial robbery and argued that petitioner's crimes fit that investigatory

paradigm. (App. 108-12). Specifically, she argued that, in both incidents,

petitioner had carefully planned and executed the robberies by picking isolated

victims (hotel clerks, working alone at night), wearing gloves and a hat to

conceal his identity, securing his victims with plastic zip ties, and threatening

his victims with both a gun and a bomb. (App. 109-111). Finally, she argued

that it was precisely the uniqueness of petitioner's criminal methodology that

led to his apprehension, and that especially when combined with the unique

items discovered in petitioner's possession after his arrest, such as plastic zip

ties and clothing similar to that worn by the robbery suspect—demonstrated his

guilt beyond a reasonable doubt. (App. 111-12). Petitioner did not object to

the prosecutor's argument about serial robbery or request a curative instruction.

(See App. 109-28).

The jury found defendant guilty of all 17 counts as charged. (TCF,

Verdict at 1-5). The trial court sentenced petitioner to 300 total months'

incarceration. (See Cert. Pet., at App. A (Judgment), 1-17).

Petitioner appealed his convictions to the Oregon Court of Appeals.

(TCF, Notice of Appeal). Petitioner's appellate counsel filed a Balfour' brief

the Oregon analog to an Anders' brief in which counsel explained that he had

"thoroughly reviewed the record," "discussed the case with trial counsel and

[petitioner]," and that, despite that exhaustive review, appellate counsel had

See State v. Balfour, 814 P.2d 1069,1080 (Or. 1991) (specifying

procedure for appointed appellate counsel who "determines that there are no

meritorious issues for appeal" despite "thoroughly" "review[ing]" "the record"

and "discuss[ing] the case with the trial counsel and the client") (alterations

supplied).

See Anders v. California, 386 U.S. 738,744,87 S. Ct. 1396,1400,

18 L. Ed. 2d 493 (1967) (specifying that if appointed appellate "counsel finds

[the] case to be wholly frivolous, after a conscientious examination of it,

[counsel] should so advise the court and request permission to withdraw," and

that such request must be accompanied by a brief identifying any arguably

meritorious issues) (alterations supplied).

"not identified any arguably meritorious issue on appeal." (App. 134)

(quotation marks and citation omitted; alterations supplied).

Petitioner then filed a pro se "supplemental brief' in which he argued, as

he does here, that the prosecutor made "[i]mproper closing argument" by

"referring to [petitioner] as a serial robber," and that such argument violated his

Fourteenth Amendment due process rights.4 (App. 142) (alterations supplied).

He conceded that he had failed to object or make argument on that basis in the

trial court. (App. 139). He requested that the Oregon Court of Appeals review

his unpreserved argument for plain error.' (App. 139).

The state responded that petitioner's concededly unpreserved argument

did not qualify for plain-error review. (See App. 150). Specifically, the state

argued that petitioner failed to present any cogent analysis in support of his

contention; that the trial court did not plainly err because, at the very least, it

was not legally "obvious" that the trial court had a duty to intervene sua sponte;

Petitioner subsequently moved to remove appointed appellate

counsel and to proceed pro se, and the Oregon Court of Appeals granted that

request by order dated May 12, 2016.

Petitioner actually requested that the Oregon Court of Appeals

review his unpreserved contention for "manifest constitutional error." (App.

139) (emphasis removed). "Manifest constitutional error" is the plain-error

review standard employed by the neighboring jurisdiction of Washington State.

See, e.g., State v. Powell, 206 P.3d 321, 327-28 (Wash. 2009) (explaining that

Washington courts will not consider an argument for the first time on appeal

absent a showing of "manifest constitutional error," and describing standard).

and that, even if the trial court plainly erred, the appellate court should not

exercise its discretion to correct the error because any error was harmless in

light of the overwhelming evidence of petitioner's guilt

including DNA

evidence and a taped confession. (App. 151-58).

The Oregon Court of Appeals affirmed without written opinion and the

Oregon Supreme Court denied review. (See Cert. Pet., at App. B (Appellate

Judgment), App. C (Order Denying Review)). This petition followed.

REASONS TO DENY REVIEW

In his petition for writ of certiorari, petitioner asks this Court to answer

the question of whether the prosecutor's comment in closing argument, and the

trial court's failure to give a curative instruction sua sponte, violated his rights

arising under the Fifth and Fourteenth Amendments and the Federal Rules of

Evidence. (See Cert. Pet. l-6). But this Court lacks jurisdiction because

defendant's arguments were unpreserved and thus the decision below was based

upon an adequate and independent state ground. And even if this Court has

jurisdiction, several factors militate against granting certiorari.

This court lacks jurisdiction because the decision below was based

upon an adequate and independent state ground.

As an initial matter, this Court lacks jurisdiction because the decision

below was based upon an adequate and independent state ground. This Court

has jurisdiction over Itlinal judgments or decrees rendered by the highest court

of a State in which a decision could be had," where a "right" is "specially set up

or claimed under the Constitution" or "statutes" of the United States.

28 U.S.C. § 1257(a) (alterations supplied). But "[u]nder that statute and its

predecessors, this Court has almost unfailingly refused to consider any federallaw challenge to a state-court decision unless the federal claim 'was either

addressed by or properly presented to the state court that rendered the decision

[that it has] been asked to review."'' Howell v. Mississippi, 543 U.S. 440, 443,

125 S. Ct. 856, 858, 160 L. Ed. 2d 873 (2005) (per curiam) (quoting Adams v.

Robertson, 520 U.S. 83, 86, 117 S. Ct. 1028, 137 L. Ed. 2d 203 (1997) (per

curiam), and collecting cases) (alterations supplied).

Petitioner's federal claims were neither addressed by, nor properly

presented to, the state court that rendered the decision challenged. Petitioner

made no argument below about the Federal Rules of Evidence, and thus, no

state court had an opportunity to consider that question. (See App. 139-43).

In at least one case, this Court has declined to "decide . . . whether

[its] requirement that a federal claim be addressed or properly presented in state

court is jurisdictional or prudential," because, "even treating the rule as purely

prudential, the circumstances . justiffled] no exception" to that rule. See

Adams v. Robertson, 520 U.S. 83, 90, 117 S. Ct. 1028, 1031, 137 L. Ed. 2d 203

(1997) (per curiam) (alterations supplied). Similarly, here, even if the properlypresented rule is merely prudential, no circumstance justifies departing from

this Court's well-established requirement that federal claims be addressed by, or

properly presented to, the state court that rendered the decision challenged.

And regarding petitioner's constitutional arguments, petitioner did not object to

the prosecutor's comment or request a curative instruction in the trial court, and

his arguments on appeal were concededly unpreserved. (See App. 109, 139).

See also State v. Wyatt, 15 P.3d 22, 27 (Or. 2000) (to preserve a claim of error

for appellate review in Oregon, a party must object below on a basis "specific

enough to ensure" that the trial court can "identify its alleged error" and

"correct" it "immediately"). Thus, as the state explained in its answering brief,

petitioner's argument was reviewable only for plain error, which, in Oregon,

requires that the asserted error be "(1) an error of law, (3) 'obvious,' that is, 'not

reasonably in dispute,' and (3) apparent from the face of the record." (App. 155

(quoting State v. Brown, 800 P.2d 259, 265 (Or. 1990) and citing Or. R. App. P.

5.45(1)).7 Moreover, an Oregon appellant who seeks plain-error review must

The version of Or. R. App. P. 5.45(1) in effect at the time of

petitioner's appeal provided, in pertinent part:

No matter claimed as error will be considered on appeal unless the

claim of error was preserved in the lower court and is assigned as error in

the opening brief in accordance with this rule, provided that the appellate

court may consider an error of law apparent on the record.

The rule has since been amended to effectuate minor changes in phrasing; the

substantive requirements have not changed.

explain "why an error satisfies the requisites of plain error and, further, why

[the appellate court] should exercise [its] discretion to correct that error." (App.

155 (quoting State v. Tilden, 288 P.3d 567, 571 (Or. Ct. App. 2012))).

(alterations supplied). But petitioner failed to meet even that threshold

requirement, and thus, the state argued, the appellate court should reject his

unpreserved contention for that reason alone. (See App. 155).

In any event, as the state further explained, petitioner's argument did not

satisfy the strictures of Oregon plain-error review because any error was, at the

very least, not "obvious." (See App. 155-56). That is, because the prosecutor's

comment merely referred to uncontested evidence in the record, it was not

obvious that the comment was improper or that the trial court had any duty to

intervene sua sponte. (See App. 155-56).

Moreover, even if the trial court had committed plain error, the case did

not warrant the exercise of the appellate court's discretion to correct the error,

because, as explained at length in the state's answering brief, any error was

harmless in light of the overwhelming evidence of petitioner's guilt. (See App.

156-58 (reviewing evidence received at trial, including DNA evidence and

petitioner's taped confession)). See also Ailes v. Portland Meadows, Inc., 823

P.2d 956, 959, 959 n. 6 (Or. 1991) (an Oregon appellate court must determine

whether to exercise its discretion to correct plain error, and, in so doing, should

consider such factors as "the gravity of the error" and whether "the ends of

justice" support review).

Thus, the sole issues before the state appellate court were whether the

trial court plainly erred, and, even if it did, whether the case warranted the

exercise of the appellate court's discretion to correct the error. By affirming

without written opinion, and by denying review without any further analysis,

the Oregon Court of Appeals and Oregon Supreme Court expressed their

decisions that petitioner's unpreserved arguments did not warrant such review.

Because petitioner's failure to meet Oregon procedural requirements for plainerror review was an adequate and independent basis for the state court's

decision, this Court lacks jurisdiction to review that decision.

Finally, petitioner may argue that the state appellate courts were silent as

to petitioner's underlying arguments, and thus, the state court may have passed

on the federal question presented here. But when the "highest state court is

silent on a federal question" urged in a petition for writ of certiorari, this Court

"assume[s] that the issue was not properly presented" to the state court, and the

petitioner "bears the burden of defeating" that presumption "by demonstrating

that the state court had a fair opportunity to address" the question. Adams, 520

U.S. at 86-87, 117 S. Ct. 1028 (internal quotation marks and citation omitted;

alterations supplied). Petitioner has not done

and cannot do—so here.

In short, because the state court rejected petitioner's unpreserved

arguments on state procedural grounds, the federal question was not properly

presented to the state court. This Court should deny certiorari for lack of

jurisdiction.

This case does not warrant review.

Even if this Court determines that it has jurisdiction, it still should deny

certiorari because this case does not warrant review. First, the issue is not

squarely presented because petitioner's arguments rest on a number of

assertions that are not borne out by the record. Second, petitioner's argument is

wrong on the merits, and review would neither answer any open question nor

resolve any split of authority.

The issue is not squarely presented because the record does not

support many of petitioner's predicate assertions.

Petitioner's legal arguments rest on a number of factual and procedural

assertions that are unsupported by the record. For example, petitioner contends

that he was "not indicted as a serial robber" and that "[t]he elements of serial

robbery could have been included in the indictment or the jury instructions."

(Cert. Pet. 2) (alterations supplied). But there is no such crime as "serial

robbery" in Oregon. That concept was, as explained, only an investigatory

construct employed by the police in solving petitioner's crimes. Thus, the jury

did not find petitioner guilty of an uncharged offense. Nor did the prosecutor,

by referring to unchallenged evidence in the record, "instruct[]" the jury in a

manner contrary to the trial court's instructions. (Cf. Cert. Pet. 7).

Petitioner also contends that the prosecutor's "comment was very

damaging" because there were "other hotel robberies unsolved" that were

"published in the newspaper" and "received extensive media coverage"—

including reports of "a possible serial robber"—during petitioner's trial. (Cert.

Pet. 6). But petitioner cites nothing in the record for his assertion about media

coverage during his trial, let alone reports of a "possible serial robber," and the

state has been unable to locate anything in the record supporting that assertion.

Additionally, petitioner argues that, "in closing argument, the prosecutor

walked over to the defendant" and "pointed at him" before making the

challenged statement. (Cert. Pet. 7). But the record does not reflect that the

prosecutor made any such gesture. (See App. 109).

Finally, petitioner appears to argue that the "trial court compounded the

prejudice by overruling" his objection in the presence of the jury. (Cert. Pet. 8).

But petitioner did not object and thus the trial court could not have done so.

In any event, because a number of factual and procedural assertions

material to petitioner's arguments are, at the very least, not clearly supported by

the record, this case does not furnish an appropriate opportunity to address

those arguments.

Petitioner's arguments fail on the merits, there is no open

question to answer, and there is no split of authority to resolve.

Finally, this Court should deny certiorari because the question presented

does not warrant this Court's attention. For one, petitioner's arguments fail on

the merits. This Court has long recognized that "the touchstone of due process

analysis in cases of alleged prosecutorial misconduct is the fairness of the

trial[.]" See Smith v. Phillips, 455 U.S. 209, 219, 102 S. Ct. 940, 947, 71

L. Ed. 2d 78 (1982) (so observing). But petitioner identifies no authority and

the state is aware of none

supporting the proposition that a prosecutor's

argument is improper (let alone so improper as to deprive a defendant of a fair

trial) when that argument does no more than refer to uncontested evidence in

the record. To the contrary, as the Ninth Circuit has observed, "[c]ourts must

allow the prosecution the freedom to strike 'hard blows' based on the evidence

and all fair inferences therefrom[.]" United States v. Prantil, 764 F.2d 548, 555

(9th Cir. 1985) (citation omitted; alterations supplied). No court appears to

have endorsed a contrary position.

Nor could the prosecutor's comment or the trial court's failure to take

action sua sponte have violated petitioner's rights arising under the Federal

Rules of Evidence. By their own text, those rules apply only "to proceedings in

United States courts." Fed. Rule Evid. 101(a). It would serve no purpose to

grant certiorari merely to confirm that clear limitation.

CONCLUSION

This Court should deny the petition for writ of certiorari.

Respectfully submitted,

ELLEN F. ROSENBLUM

Attorney General

(k)

BENJAMIN G I TMAN

Solicitor Gen- al

benjamin.gutman@doj.state.or.us

JACOB BROWN

jacob.brown@doj.state.or.us

Assistant Attorney General

Attorneys for Respondent

State of Oregon

J113:mb8/8627217

APPENDIX

APP - 1

J. Russell - ReD

399

Yes, that's correct.

It happened?

Yes.

Do sometimes mistakes happen?

Yes.

MS. PLANK: No further questions.

THE COURT: Okay. You may take your microphone

off, sir, and step down.

Thank you.

Push the gate open. You have all your stuff?

Let's keep going. Call your next witness, please.

MS. PLANK: The State's next witness will be

Detective Brett Hawkinson.

BRETT HAWKINSON,

called as a witness by the State,

having been duly sworn, testified as follows:

THE WITNESS: I do.

THE CLERK: Please be seated.

THE WITNESS: State your name and spell it.

THE WITNESS: My name is Brett, B-R-E-T-T. And my

last name is Hawkinson, H-A-W-K-I-N-S-O-N.

APP - 2

B. Hawkinson - D

400

DIRECT EXAMINATION

BY MS. PLANK:

Mr. Hawkinson, how are you employed?

I am a detective with the City of Portland,

Oregon.

How long have you worked in law enforcement?

Oh, I was hired by the City of Portland as a

police officer in November of 2001. Prior to that I was

assigned to the Police Corps Academy. Did my training then.

And I worked as a police cadet, which is a nonsworn, like

assistant since 1988. And that was in Lynnwood, Washington.

How long have you been a detective?

I was promoted to detective in August of 2007.

It's difficult math for me on the spot, so I'll let you

calculate that.

Okay. And what's the difference between a patrol

officer and a detective with respect to the Portland Police

Bureau?

Police officer, patrol officers, their primary

responsibility in the city of Portland is to respond to 9-1-1

calls. You get a call for service, you respond, you help out

the citizen. You take care of the business. You patrol at

nighttime. You look and deter a crime.

Detectives, on the other hand, are more like

linebackers. So we actually receive reports taken from

APP - 3

B. Hawkinson - D

401

patrol and we initiate investigations as a result of that.

So a patrol officer will take down initial

information of a crime that occurred, and if they're not able

to resolve it right then and there, depending upon what type

of crime it is, it will get assigned for follow-up to an

investigator; i.e., a detective.

Would it be fair to say that part of the labor

division between patrol and detectives is that cold cases go

to detectives?

Yes. That's very accurate.

And when you and I use the word "cold case," can

you describe what does that mean to you?

The term "cold case" is -- it refers to a case

where an incident has occurred, time has passed, and the

investigation then begins, as opposed to -- the opposite of a

hot case, I suppose, would be a case that a police officer

stumbles -- stumbles upon, is dealing with it right then,

they make the arrest, and they're done with it that night.

They've resolved the issue.

Now, you mentioned that you work on the robbery

detail.

Q. How long have you worked in the robbery detail?

2009.

Yes, that's correct.

I've been a robbery detective since January of

APP - 4

B. Hawkinson - D

402

Q. How many robberies would you estimate -- with

respect to the city of Portland -- are reported in a week?

Lots. All robberies. We get -- I think we could

take anywhere from -- oh, average number is 1,300 a week --

I'll give you a monthly number. A little over 100 a month.

correct?

Portland.

We're just talking the city of Portland. Is that

That's -- I'm only talking about the city of

And of those 100 robberies reported a month, if

you had to estimate, what percentage are unsolved?

Oh, unfortunately, more are unsolved than are

solved. What percentage? 50, 60 percent are maybe unsolved.

40 percent are resolved in some manner.

Okay. So with that sort of baseline understanding

that most robberies go cold and are unsolved, what sorts of

steps does the detective division try to implement to solve

these cold robberies?

Well, we track robberies. Robbery is an

interesting crime in that oftentimes they're serial in

nature, depending upon what type of robbery. There's a large

spectrum when it comes to robbery, because there's different

types of robberies.

One thing that we do --.we do -- I do is I track

robberies and I categorize robberies and we look for patterns

APP - 5

B. Hawkinson - D

403

and trends. Part of the patterns and trends includes modus

operandi. Like what does the offender -- what does the

robber do while they're committing that robbery? How are

they doing it? Do they use certain words? Are they using a

certain weapon, certain style? Did they wear particular

clothing or the same type of clothes over and over again?

Are they brandishing or using a unique weapon? Physical

characteristics. Are the physical characteristics of this

robber the same as the physical characteristics of the robber

that was reported last week and the robbery that was reported

the week before?

And then you try -- from that information, you try

to develop a pattern. And then by developing that pattern,

the more information that overlaps and is the same, you call

that the pattern, and then you link those crimes together.

So when the robber -- the robber is eventually caught, then

you investigate all of those back robberies as part of that

18 .

pattern to see if you can identify and find additional

evidence which will then lead you to complete and solve that

pattern.

Part of that investigation could be getting the

robber, when you're talking to the robber, when you've caught

that robber, to confess to those other robberies. Part of

that could he finding the specific items used during the

commission of that robbery -- i.e., you know was a specific,

APP - 6

B. Hawkinson - D

404

special type of gun brandished? Was certain clothing worn?

Special, unique clothing worn? Shoes? Right? Shoes are,

for us, very, very important.

Video surveillance. What does the surveillance

from these robberies show us? Are the movement patterns

consistent from one robbery to the next robbery to the next

robbery.

These are all tools that we use to try to link and

solve these older cases.

How about the robbery targets themselves? Do you

look at patterns of those?

Absolutely. One of the -- again, it falls kind of

under modus operandi. We find that rob -- robbers tend to

prefer the same targets because they're familiar with those

targets, like, you know, a subway robber, right? There's

guys that they --- they frequent subways.

Video poker establishments. Those are -- those

are very commonly robbed areas and common serial -- serial

robberies, because they're cash businesses. There's usually

one employee there. They're easy targets. Guys go in, they

repeat, and, you know, eventually -- you know, we usually,

hopefully solve them.

With respect to sort of linking all these

patterns, do you also meet or at least have communication

with outside agencies?

APP - 7

B. Hawkinson - D

405

Absolutely. That's -- that's crucial to

developing patterns, because it's been my -- my experience

that robbers don't recognize city boundaries. They're

regional. They'll go wherever. You know, just because City

of Tigard draws a line and says, "This is our city and that's

your city, Portland," doesn't mean that the robber doesn't go

into Tigard, won't go into Gresham, won't go into Multnomah

County unincorporated, Washington County.

So as a result, we have a regional robbery meeting

that takes place monthly in which, as investigators, we share

cases. We share our unsolved cases, and we share our solved

cases as well. "Hey, we've identified this person. We made

an arrest. This is what he did. This is how he did it.

This is what he was wearing. This is the type of instrument

he used. This is what he drove," right?

And so we go back and we look, "Oh, I have a

robbery where the bad guy was seen driving away in a green

Honda. Hey, that matches. How tall is he?"

"Oh, he's the same height."

Oh, hey, now we're getting a little closer. "What

was he wearing at the time of arrest?"

"Oh, he was wearing black striped pants."

"Oh, this is -- this is looking really good."

So then you'll start taking a look at that and

seeing what you can do to progress your case based off the

APP - 8

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other information from the other agency.

How often do you collaborate with Gresham?

Detective Tony Cobb is on speed dial on my phone.

So weekly. I'd say weekly. It averages out weekly. I've

worked with him directly on cases. Like him and I are there

making the arrest at the same time.

We've actually never done an interview together.

We usually separate out duties, but...

Would you say that that's by far your most common

interagency overlap, Portland to Gresham/Gresham to Portland?

Sheriff.

It's a tie between Gresham and Clackamas County

And what would you describe, based on all your

agency meetings and sort of your robbery detail and when you

sit down.

You already video poker establishments. Are there

certain types of targets that are more common than others?

Yes. Cash establishments tend to be the most --

the most common places. They deal in cash. So Plaid Pantry,

Subways, 7-Elevens, Mini Marts, banks. That's actually my

primary job is to investigate bank robberies. Banks are

robbed because, well, what do banks deal with? They deal in

cash, which is a common stolen commodity and is useful. So

banks.

Other common businesses would include -- I'll say

APP - 9

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store -- like department stores, but with an asterisk because

those are oftentimes shoplifts that escalate into violence.

So it's not the same type of robbery that you're really

trying to focus on.

Primarily those video poker.establishments seem to

be really popular. Banks.

We don't see as many check cashing places.

Occasionally we get a pharmacy that will get -- that will be

robbed. Not necessarily for cash but for Oxycodone or

OxyContin. That's something that we track and we look for.

How about motels or hotels? How commonly are

those robbed?

Not that often. We get motel robberies. They

happen infrequently. Maybe -- typically for us in the city

of Portland we'll get one or two.a year. They're usually a

big deal when it happens. We -- and we investigate those.

We look into them, because they tend to almost always occur

at night. They're usually preying on an alone clerk. You

know, they have the potential of being very, very violent, so

we try to jump on those cases as quickly as we can.

So you said one or two a year out of how many

total robberies a year do you receive?

We -- on average -- we get a fluctuation between

11- and 1,300 a year, like since I've been there. Kind of up

and down.

APP - 10

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SO out of -- let's just use the high number, 1,300

a year, I'd say we maybe see in the city of Portland one or

two.

Q. And how -- how common are robberies where the

robbers are with a gun?

They're less common with a gun than they are with,

say, an implied gun -- i.e., put my hand in my pocket -- than

with, say, a knife than with -- the general trend is the

deadlier weapon, the more dangerous or the scarier the

weapon, the less common it is.

So would it be fair to say it's not uncommon, but

it's not the most common type of robbery?

It is not our most common type of robbery.

How about robberies with a bomb? How often do you

see those?

I can't say never, but I can say it's pretty darn

rare. It's definitely eye-opening and it's like, wow.

So, let's see, since I've -- again, I've been a

robbery detective since 2009, and I can think of, right now,

off the top of my head, in Portland alone, I can think of

two.

Two since 2009 with a bomb?

That's correct.

How about the number of robberies where the robber

uses a gun and a bomb?

APP - 11

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409

Well, now we're down to one.

Q. And are you describing the robbery that was

investigated in the city of Portland on September 5th, 2013,

when you say one?

Yes.

Did you also receive information about a similar

robbery occurring in Gresham?

Yes, I did.

So does that make for the county that you're

aware, two?

In the same year, yes. Two.

And since 2009 are those the only two that you're

aware of occurring in Multnomah County?

With a gun and a bomb, yes.

Can you describe what you mean when you use the

term "take-over style robbery"?

A take-over style robbery, when we use that term,

it refers to absolute 100 percent control over the victims in

the establishment.

So that trend, it's -- it's rare. It usually

involves immobilization or hiding of the victim in some way.

Binding the victim up. Tying them up. Putting them on the

floor. Directing them from one location to the next.

Most of our

we'll call them a stick-up. Most

of our stick-ups, old-fashioned stick-ups where the robber

APP - 12

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goes to the counter, you know, makes the demand for money,

the clerk accesses the money, hands over the money to the

robber, and the robber makes a quick escape.

Take-over robbery is more controlling than that.

You're not allowing your victim access to the cash. The

actual robber is controlling the movement of the victim to

hand over the cash and/or taking the cash themselves.

And, again, it typically involves immobilization

and/or hiding of the victim -- like locking them in a closet

somewhere or making them cower in a corner, laying them on

the floor. Those -- when they hit that level, we refer to

that as a take-over.

How often do we see take-over style robberies in

Multnomah County?

Not often. When they do, they're -- they're a big

deal. They're high -- they're high-stress cases. They're

the ones that really -- they're eye-popping for us because,

again, this is now another level of violence that's being

notched up, so they're very concerning. So my blood pressure

would always be super high if we were always investigating

those kinds of robberies all the time.

Q-

When did you first become aware of or assigned to

the robbery that occurred at the Silver Cloud Inn on

September 5th, 2013?

That was on September 5th, 2013, when I first

APP -13

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became aware of it.

I actually -- my first initial awareness was

getting dressed that morning and turning on the news. And

there it was. There the news was reporting this -- a robbery

had happened at the Silver. Cloud.

I remember my first thought being, Aww, great. I

guess we'll have some work to do when I get in that morning."

When did you get assigned to that case?

Well, "assigned" is an interesting word.

Detective Russell was assigned it initially off the bat, but

Detective Russell's my partner, so I went out with him on

September 5th and helped him do an area canvas.

So I'll take ownership of that case as of

September 5th, but I didn't get real direct -- I didn't get

directly involved as a lead until much later in 2014.

So you were working on the case, though, as early

as literally the day of September 5th, 2013?

Absolutely.

When were you first notified about the robbery

occurring at the Holiday Inn in Gresham on September 15th,

2013?

I believe I learned about that either September

15th or 16th. May have been the next day. And, again,

learned about it through -- I may have been reviewing with

dispatch reports. You know, it's typical, what we'll do is

APP - 14

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in the morning we look back at the calls dispatched overnight

and we look at robberies. And then from looking at the

overnight robberies, you triage them. Like, oh, what kind of

-- you know, that's this type of robbery. That's this type

of robbery. That's that type of robbery. And I remember

seeing that type of robbery, thinking, oh, uh-oh. Now we're

starting to see a pattern.

Okay. So you already mentioned you believed that

these cases were connected. Why did you think that?

Well, a number of reasons. No. 1, the suspect

description. The suspect was described with a similar build

in the Silver Cloud as was in the Holiday Inn. The

methodology, or modus operandi, was very unique in that the

subject threatened and used a bomb and a firearm in -- during

the commission of that robbery, which is a very unique

signature.

And interesting -- seeing the video surveillance

from both robberies, and there was interesting and unique

clothing worn by that robber, specifically a -- what I call a

Fargo style hat but some people call it an Elmer Fudd hat.

But it's a hat that's like a winter hat that has like these

flappy ears on it. I don't even know where I could buy one

if I wanted one. So that was a unique signature as well.

Oh, and -Q.

Let me --

APP - 15

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-- of course --

While you're talking about the surveillance, let

me slow you down.

Sorry.

I'm going to show you what's been marked as

State's Exhibit 39 through 43.

And pretty shortly after the Gresham robbery on

the 15th did you compare the surveillance from the Silver

Cloud to that of the Holiday Inn?

Yes.

I'm going to show you what's been marked State's

Exhibit 39 through 43.

Exhibits 38, 39, and 40 --

Okay.

15-

-- are those the types of images from the

surveillance that you looked at from the Silver Cloud Inn?

Yes.

Exhibits 42 and 43. Are those the still images

that you looked at from the Gresham Holiday Inn robbery?

Yes.

Have these images been altered in any way?

No.

Are these the images that you also used in forming

your opinion that this was the same robber?

Yes.

APP - 16

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MS. PLANK: State would move to admit State's

Exhibit 39 through 43.

MR. DAY: No objection.

THE COURT: Received.

BY MS. PLANK:

All right. I'm going to show them to you in a

bigger format so you can maybe better describe the hat that

you're talking about.

Is this still image that you reviewed from the

Silver Cloud robbery?

Yes, it is.

Now, when you described the Elmer. Fudd style hat

or hat with earflaps, does this -- does this image show what

you're talking about?

Yes, it does.

Did you believe that this is an earflap coming

Yes.

How about this right here?

What you're referring to on the screen there is a

down?

fuzzy flap that flaps up like in front of the hat and back.

I'm familiar with the hat because it was an

authorized uniform police hat of the Portland Police Bureau

at one time, and I always wanted to get one and wear it on

patrol, but I couldn't find one.

APP - 17

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Moving to the next still. Is that just another

angle of that hat as you described it?

Yes.

How about the top? Is this the top that you look

for? Is it -- I mean, appears just black.

Yes, it's a black long-sleeved, tight-fitting top.

How about the pants?

The pants appeared to me to be navy blue BDU-style

pants. When I say "BDU," it stands for battle dress uniform.

It's a pant that's commonly worn by military and police.

They have cargo pockets on the side. They tend to have a

bottom that you can

wanted to tuck into shoes if you wanted. They're a tactical

pant. They're meant to allow for free, nonrestrictive

movement and have access to utility items in a convenient

nature.

you can tighten to make them, if you

Now, moving down.

Is this one of the stills from Gresham?

Yes.

Would you agree it's not nearly as good quality?

Correct.

Q. What were some of the items that appeared similar

to you?

It appeared to me that the hat was the same. It

appeared to be the flappy -- the floppy-eared style,

APP - 18

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Fargo/Elmer Fudd hat. A black, tight long-sleeved dark top.

And it appeared that the subject was wearing dark shoes and

BAB pants.

Would you agree that the gloves look different?

The gloves did appear to be different.

Looking back up again at -- the gloves from the

Portland case, do you agree that they appear to have like a

dark palm and a lighter top?

Yes.

And that the gloves maybe a blue, light color?

Yeah. In my opinion, that was a blue color. I

thought perhaps it was a vinyl glove or a latex glove.

And this next being just a different angle, that

same Gresham surveillance?

Yes, it's a different angle.

Now, as part of your training with detectives, are

you also trained to look at the way suspects move in trying

to come up with an identity of a person?

Could you clarify "how they move"?

Well --

A. Meaning like movement patterns?

Yes.

Yes. I -- I -- as a detective, I have watched,

studied, reviewed I can'say hundreds -- I'm almost probably

to the thousands of videos surveillance. That's -- you know,

APP -19

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video surveillance is a robbery detective's best friend,

because it captures the event right there and you get to see

-- you don't have to rely on the witness's memory. You get

images and you get to see for themselves what people could

have seen.

And so as part of that, you learn to watch, to see

how people move. You can identify people who -- like if they

have a particular limp. If their right-handed or

left-handed, how they wield a certain weapon. How they carry

their movements and their manners. So absolutely.

So were there things about -THE COURT: Counsel, we're going to take a break

in about a minute, so unless you have just one more follow-up

question to finish this.

Okay. We're going to go ahead and break at this

point, ladies and gentlemen. So I'm going to ask that you

leave your notebooks here, step into the jury room with my

clerk. We'll let you know whether you have a walk-around

break in just a moment or two.

If you'll go ahead and step in.

And, Detective, if you'll just wait till the

jurors step out, I'd appreciate that.

THE WITNESS: Yes, Your Honor. Thank you.

(Jurors exiting courtroom.)

THE COURT: You can take your microphone off

APP - 20

Colloquy

418

because you'll be taking a break too.

You can step down.

Okay. We're going to take about a 15-minute

break, so the question is whether Mr. Dean wants to take a

break.

THE DEFENDANT: No, Your Honor. I'm good.

THE COURT: Deputies, are you okay with it?

Be about 15 minutes.

All right. So we'll keep Mr. Dean here. We'll

let the jurors walk.

MR. DAY: Hey, Judge, I don't know if now's the

time to talk briefly about -MS. PLANK: Well, there's a couple -- there's a

couple of items of --

THE COURT: Why don't we stay on the record.

Let's have the jurors go ahead and walk. We'll

just stay on the record and talk for a little bit.

MS. PLANK: One, I'd submitted my first stab at a

revised version -THE COURT: Right. And I did want to talk to you

a little bit about that, but thanks for starting that.

MS. PLANK: Yeah.

THE COURT: It may be, given how fast this case is

starting to move, that we may not have that much time to

change it, but that's -- are there other subjects as well

APP - 21

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and battery with a dangerous weapon." I think that's what I

understood.

MS. PLANK: There will be no testimony about that.

(Jurors enter courtroom.)

THE COURT: All right. Ladies and gentlemen,

thank you for your forced patience. We've been working on

other matters. And we're ready to proceed with you.

Thank you, sir.

MS. PLANK: Thank you, Your Honor.

THE COURT: Okay. I think you're still examining.

DIRECT EXAMINATION

BY MS. PLANK: (Continuing)

Detective Hawkinson, we looked at these

surveillance photos. Now, in both of those photos the

suspect appears to be fully-- fully clothed and fully gloved.

In an instance like that where you're dealing with

a suspect who's covered basically all parts of their body, is

it difficult to produce a lead on a suspect's identity?

Yes, it is. When the -- (indiscernible) to make

facial recognition, fingerprint evidence -- potential

evidence is eliminated as a possibility. So absolutely.

It's no longer an issue of putting out a picture of a guy on

the news to see if you can identify him, but as -- it could

be anybody.

APP - 22

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Q•

Now, while you were working on these cases,

simultaneously was evidence being worked at the crime lab?

Yes.

Using that information and some stuff from outside

agencies, did you develop a potential suspect of Ernest Dean?

Yes.

Before you ever contacted Mr. Dean, did you look

at any photos of him or any, like, DMV information? Anything

like that?

Yes, I did.

Based on Mr. Dean's recorded height and weight,

did you believe he at least matched the general physical

descriptors?

Absolutely.

Then did you apply for search warrants for Mr.

Dean's hotel room, his vehicle, and a storage locker in his

name?

Yes, I did.

And were these warrants granted?

Yes, they were.

When were these warrants executed?

These warrants would have been executed on -- part

of the delay -- I just want to look up the actual date.

Friday, February 21, 2014.

And did you also have contact with Mr. Dean on

APP - 23

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Friday, February 21st, 2014?

Yes, I did.

Q•

Do you see the person by the name of Ernest Dean

seated here in the courtroom here today?

Yes, I do.

Is he seated next to defense counsel wearing a

white shirt and a multicolored tie?

Yes, he is.

During the search of Mr. Dean's vehicle, did you

locate anything that you believed to be of evidentiary value?

Yes.

Specifically, did you locate any binoculars?

Yes, we did.

And these binoculars, why did you believe that

they were of evidentiary value?

Binoculars are a tool that can be used for

scouting locations, to be able to watch and observe from far

away without being detected by a business's video

surveillance.

I'm going to show you what's been marked as

State's Exhibit 44.

Do you recognize that?

Yes, I do.

What is that?

This is a photograph of a pair of binoculars in

APP - 24

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the back or rear seat of a green Ford Explorer that was

registered to Mr. Dean.

MS. PLANK: State would move to admit State's

Exhibit 44 into evidence.

MR. DAY: No -- yes. No objection.

THE COURT: Received. Pardon me. Received.

BY MS. PLANK:

8 •

let me back up.

Where was Mr. Dean's motel room?

1.1

It was located at the Unicorn motel, which is

located in the city of Portland along SE 82nd Avenue.

Did you receive any items in Mr. Dean's -- well,

And did you locate any items of potential

evidentiary value in that motel room?

No, I don't -- yes, we did, actually.

I'm going to show you State's Exhibit 45.

What is that?

This is a picture of

THE COURT: Not -- not received yet.

THE WITNESS: Oh, I'm sorry.

It's a picture of a black bag, which has multiple

tools in it. A battery, a drill, and -- inside of a black

bag.

BY MS. PLANK:

And did you seize that bag full of tools?

APP - 25

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Yes, we did.

Is that a fair and accurate representation of the

bag with tools that you seized?

Yes.

Q•

And why did you believe this bag of tools was

potentially evidence in this case?

A. There was allegations in this case that a bomb was

made. And making bombs requires extensive use of tools.

MS. PLANK: State would move to admit State's

Exhibit 45 into evidence.

MR. DAY: Can I just take a --

THE COURT: Received.

BY MS. PLANK:

Q•

I'm going to go through these one at a time here.

Did you then come to find out that Mr. Dean was in

possession of a storage locker?.

Yes.

How did you come across that information?

A number of ways. The first -- we conducted a

search of Mr. Dean's person, and inside his wallet we found a

card that said the name of the storage business on it with a

combination and information. And then we also had a

conversation with his girlfriend who confirmed that.

Q•

And then did Mr. Dean himself subsequently confirm

APP - 26

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435

Q. And did you search that storage unit?

Yes, we did.

I'm going to show you what's been marked as

Yes. And Mr. Dean himself told us he had one.

State's Exhibit 46. Do you recognize that?

Yes. This is a photograph of the inside of the

storage locker with all the items in place as it was.

Showing you what's been marked as State's Exhibit

47. Do you recognize that?

Yes. This is a picture of like -- it's like a

blue ice chest type container or -- with a handle on it that

contains zip ties and some -- many other items inside of it.

Is that a fair and accurate representation of the

items located in the storage locker?

Yes.

Showing you now what's been marked as State's

Exhibit 48. Do you recognize that?

Yes, 1 do. It's a photograph of the zip ties

located inside of the blue container.

Showing you what's been marked as State's Exhibit

49. Do you recognize that?

Yes. These are preloaded zip ties made --

configured in a manner which is consistent used for

handcuffing people, which were also located in the same blue

container.

B. Hawkinson - D

436

recognize that?

Now, I'm showing you State's Exhibit 50. Do you

Yes. It's a picture of some clothing items that

were in the bottom of the same blue container.

Did you seize those clothing items2

Yes, I did.

Why did you seize those clothing items?

They to me were consistent with the clothing worn

by the robber in the reported robberies.

MR. DAY: No objection.

MS. PLANK: State would move to admit Exhibits 46

through 50 into evidence.

THE COURT: Received.

BY MS. PLANK:

State's Exhibit 51 through 55.

State's Exhibit 51, please tell me what that is?

I'm going to show you now what's being marked as

That's an additional picture of additional

clothing found in the bottom of the aforementioned blue

cooler-like bag, including a black thermal top.

Show you what's been marked as State's Exhibit 52.

Do you recognize that?

Yes. It's a photograph of black electrical tape.

And was that seized?

Yes.

APP - 28

B. Hawkinson

437

Whey was that seized?

Again, there's -- purported that a bomb was used

as part of the robberies, and we could use that as evidence

of that crime.

Show you State's Exhibit 53. What is that?

It's a container of super glue. A picture of a

container of super glue.

And was that also located in the storage locker?

Yes, it was.

And why did you seize it?

11.

Super glue can be used by suspects to conceal

their fingerprints and cover them up, so we believe that

maybe they have been used in those series of robberies.

Could it also be part of a bomb-making equipment?

Yes.

Show you State's Exhibit 54.

This is a blue pair of BDU pants that we also

located in the storage unit.

And show you State's Exhibit 55. (Indiscernible.)

Yes. This is a picture of the black bag we

located, opened -- in the open position that had a black pair

of Nike sneakers with blue soles.

MR. DAY: No objection.

THE COURT: All right. And those numbers are?

MS. PLANK: (Indiscernible.)

APP - 29

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THE COURT: All right. Received.

BY MS. PLANK:

State's Exhibits 56 through 60.

Can you please tell me what State's Exhibit 56 is?

I'm going to show you what's being marked as

Yes. This is a photograph of a glove located

inside Mr. Dean's storage unit. It is black with light gray

on the top, and we believed it was consistent with the gloves

worn in the Silver Cloud robbery.

Showing you now what's been marked as State's

Exhibit 57. Can you tell me what that is, please.

This is a photograph of blue latex gloves that

were located inside Mr. Dean's storage unit.

And why did you seize those blue latex gloves?

Believed that they were consistent with the gloves

worn in the Holiday Inn robbery in Gresham.

Showing you what's been marked as State's Exhibit

58, What is that?

This is a photograph of a hat that we located

inside Mr. Dean's storage unit. The hat I would describe as

an Elmer Fudd or Fargo style hat. It has a cloth front

flipped up to the front. It has long floppy ears on the

side. And it is dark in color.

Did you believe that that hat fit with the one

seen An the two robberies?

APP - 30

B. Hawkinson - D

439

Yes.

Showing you what's been marked as State's Exhibit

59. What is that?

This is a cell phone with electrical components

that was located inside Mr. Dean's storage unit

And I'm showing you State's Exhibit 60. Can you

please tell us what that is.

It's a photograph of another cell phone located

inside Mr. Dean's storage unit?

Were there, in fact, several cell phones or cell

phone components located in that storage unit?

Yes, there were.

And why did you seize those as evidence?

Because I know that cell phones can be

have

been and can be used as bomb-making material.

And in Mr. Dean's interview with you, did he, in

fact, tell you he was using cell phones in the fabrication of

the bombs he had used?

1_9

Yes.

MR. DAY: No objection.

MS. PLANK: State would move to admit State's

Exhibits 56 through 60.

THE COURT: Received.

BY MS. PLANK:

Q•

I'm showing you what's being marked as State's

APP - 31

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Exhibits 61, 62, and 63.

Can you please tell me what State's Exhibit 61 is

a photo of?

This is a picture of a piece of mail located

inside of the storage unit rented by Mr. Dean. It's

addressed to Ernest L. Dean, Moving & Labor, LLC, with an

address of 650 NW Irving Street in Portland, Oregon. The

mail's from Wells Fargo.

Showing you what's been marked as State's Exhibit

62. What is that?

This is a photograph of another piece of paper

located in Mr. Dean's storage unit. It's an IRS billing

summary showing that he owes $655.96 from overdue taxes in

2003 from the Internal Revenue Service, addressed to Mr.

Ernest L. Dean.

Q•

Show you what's being marked as State's Exhibit

63. Can you tell me what that is?

Yeah. This is a birth certificate from the state

of Missouri. It's in the name of Ernest Lee Dean, with date

of birth March 26th, 1973. And it was located -- also

located in Mr. Dean's storage unit.

So if I'm understanding you correctly, these three

exhibits which you've described as either pieces of mail,

pieces of government mail, or birth certificate were all

located in the storage unit?

APP - 32

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441

Yes.

And why did you seize these three pieces of

personalized pieces of mail from the storage unit?

It's to show that Mr. Dean exercises dominion and

control over the storage unit.

Did you find anyone else's personal items in that

storage unit other than Mr. Dean's?

No, I did not.

MR. DAY: And I have no objection to those.

MS. PLANK: State would move to admit State's

Exhibits 61 through 63.

THE COURT: Received.

BY MS. PLANK:

And, finally, a bit out of order, what's been

marked as State's Exhibit 18 (indiscernible) admitted. Do

you recognize that?

Yes. It's a photograph of a very realistic

replica firearm, which turns out to be a pellet gun, that was

located in Mr. Dean's storage unit. It's out of a black bag.

MS. PLANK: State would move to admit State's

Exhibit 18.

MR. DAY: No objection.

THE COURT: Received.

BY MS. PLANK:

(Indiscernible.)

APP - 33

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All right. Sorry to repeat myself, Detective, but

the jury can see -- you mentioned the search warrant was

executed on Mr. Dean's vehicle.

What type of vehicle was that?

Q. And inside that Ford Explorer, are these the

It was a -- mid-90s green Ford Explorer.

binoculars you reportedly located.

Yes.

You mentioned a search warrant was also executed

in Mr. Dean's motel room.

Yes.

Q. And you described some tools that you seized from

that motel room. Are these the tools you were describing?

Yes.

How would you describe the condition of Mr. Dean's

motel room?

Oh, it was -- it was immaculate. It was one of

the cleanest motel rooms that I've searched. Yeah, very

organized.

Would it be fair to say that the items in the

motel when you searched, they consisted of pretty much

personal articles -- articles of clothing and these tools?

Yes.

And now the storage unit. Is there a photo of the

storage unit.

APP - 34

B. Hawkinson - D

443

Yes.

And this is the storage unit in Mr. Dean's name

that he stated belonged to him?

Yes.

It's hard to tell from that photo how big that

unit is. Can you describe for us?

Yes. It's kind of a smaller-sized unit that had

like an opening -- like an opening sliding door. I would say

the door was approximately arm's -- it's about arm's length

or a little wider in either direction, and depth-wise it went

back about 10 to 12 feet.

Is this a close-up of one of the items you located

inside the storage unit?

Yes.

And are these, in fact, the clear zip ties that

you located inside the storage unit?

Yes, they are.

These -- where were these located?

Those were inside the previously pictured bag.

They were loose, just sitting in the bag. They were in

there. They're locked, opened, ready to go.

Did these zip ties appear consistent with those

that recovered from the Gresham robbery that were preloaded

but not used.

Yes.

APP - 35

B. Hawkinson - D

444

64.

Show' you what's being marked as State's Exhibit

What is inside State's Exhibit 64?

These are the zip ties that were located in the

previous picture inside the blue bag inside Mr. Dean's

storage unit.

So those are the actual zip ties that you located

inside the storage unit?

Q. Would you mind removing what you described as the

preloaded zip ties.

Yes.

MS. PLANK: State would move to admit State's

Exhibit 64 into evidence.

THE COURT: Received.

BY MS. PLANK:

16 .

zip ties?

That's correct.

And this package of zip ties, was it already

Is this again just a close-up photo of the unused

opened when you found it in the storage unit?

Yes.

Now, we heard you when you were going through the

photos describing articles of clothing.

What is this exhibit?

That's a photograph of the same blue bag that we

APP - 36

B. Hawkinson -

445

were going through that's down a layer after removing the zip

ties. That shows, like, some sweatpants and a black top.

How about this?

That's the next layer down after removing those

items of clothing that you saw. Underneath that was this

black -- black thermal long-sleeved type top.

Let me show you what's been marked as State's

Exhibit 65.

Do you recognize that?

Yes.

Is that the same black top that's featured there?

Before you pull it out of the bag -- is that the

same black top that's featured in that photo?

MS. PLANK: State would move to admit State's

Yes, it is.

Exhibit 65 into evidence.

MR. DAY: No objection.

THE COURT: Received.

BY MS. PLANK:

And why did you seize that particular shirt?

Can you please pull it out.

T believe this shirt was consistent with the shirt

worn in both the Silver Cloud and Holiday Inn robberies in

Portland and Gresham.

Q•

Is this the tape you were describing?

APP - 37

P. Hawkinson -

446

Yes.

The super glue?

Yes.

This, State's Exhibit 18, where did you find this?

This was located in a black duffel bag which was

also in Mr. Store -- Mr. Dean's storage unit.

Showing you what's been marked as State's Exhibit

66. Can you please tell me what that is?

This is like a zippered -- it's a zippered small,

little baggie, which is in the photograph, which contains the

replica firearm, which is also in the photograph.

MS. PLANK: State would move to admit State's

Exhibit 66 into evidence.

MR. DAY: No objection.

THE COURT: Received.

BY MS. PLANK:

Can you pull that out?

Sure.

So this is the Airsoft pistol?

That is actually a pellet -- I believe it's a

pellet gun.

That you located in Mr. Dean's storage locker?

Yes.

Where was that located in relation to, like, the

black -- the black shirt and the zip ties? Was it all kind

APP - 38

B. Hawkinson - D

447

of bunched together?

It was very close. It was in a separate bag that

was next to the blue bag. There was like a black -- like a

duffel bag. It was inside the duffel bag.

So there was one bag containing unused zip ties;

preloaded zip ties; that black, thin long-sleeved T-shirt.

That is correct.

And then next to it was this?

In -- yes, in another bag, yes.

All right -- there we go.

What's this a photo of?

Those are blue BDU-style pants.

And were these seized?

Yes, they were.

And why did you seize these?

I believed these pants were consistent with the

pants worn in the Silver Cloud and Holiday Inn robberies

located in Portland and Gresham respectively.

Showing you what's been marked as State's Exhibit

67. Can you tell me what that is?

I be]ieve them to be the blue BDU pants.

The actual pants that we see in that photo?

That is correct?

MS. PLANK: State would move to admit State's

Exhibit 67 into evidence.

APP - 39

B. Hawkinson - D

448

MR. DAY: No objection.

THE COURT: Received.

BY MS. PLANK:

Q. Can you describe for us what that is and where you

found it?

Yes. Those are a black pair of Nike shoes that

were located in a black duffel bag.

And where did you seize

well, you say black

duffel bag. Was that in the storage locker also?

Q. And that black duffel bag, where was it in

That was also located in the storage locker, yes.

relation to the bag full of zip ties and clothing?

It was next to it. There's a blue -- the blue big

bag and then there was the black duffel bag, which is located

right next to it.

Was that pellet gun inside this bag?

I believe so, yes.

And these particular shoes, did you believe they

looked consistent with those seen in the surveillance video?

Yes, I did.

What is this a picture of?

That's a picture of a -- it's like a dark glove

with a -- with a lighter gray top on it. It was located in

Mr. Dean's storage unit.

Where in the storage unit were those located?

APP - 40

B. Hawkinson - D

449

I believe they were located in one of those bags.

Sorry.

I believe it was located inside the -- in a black

bag.

Like one of the same bags with all the other stuff

that you'd seized?

Yes.

And what are these?

Those are a blue pair of latex gloves which were

also located in Mr. Dean's storage locker.

Why did you seize this pair of gloves and this

pair of gloves?

Each pair of gloves I believed were consistent

with the gloves worn by the robber in the Silver Cloud

robbery and again in the Holiday Inn robbery. The blue latex

gloves, I believe, were consistent with the gloves worn by

the robber in the Holiday Inn Gresham robbery. And the

dark-over-gray gloves were consistent with the style of

gloves worn by the robber in the Silver Cloud robbery.

Showing you what's being marked as State's Exhibit

69. Those gloves we just looked at, are they contained

inside State's Exhibit 68?

Yes.

Also contained in State's Exhibit 68, are there

other sets of textured gloves?

B. Hawkinson - D

450

Yes.

Were all of these gloves seized from Mr. Dean's

storage locker?

MS. PLANK: State would move to admit State's

Yes, they were.

Exhibit 68 into evidence.

MR. DAY: No objection.

THE COURT: Received.

Ladies and gentlemen, I want to say this next.

I'll forget later. During deliberation when you look at the

11.

exhibits that have more than one thing, I want to make sure

you take it out of the bag, you put it back in the hag. Make

sure they all go in the right bags.

Go ahead.

BY MS. PLANK:

What is this that we're looking at?

This is a picture of an Elmer Fudd or Fargo-style

winter cap that we located inside Mr. Dean's storage unit.

I'm going to show you what's been marked as

State's Exhibit 69.

Can you tell me what's inside State's Exhibit 69,

please.

This is picture of the same winter-style hat as in

the picture located on there. This is that same hat. It's

located in its own little handy zip container.

APP - 42

B. Hawkinson - D

451

MS. PLANK: State would move to admit State's

Exhibit 69 into evidence.

MR. DAY: No objection.

THE COURT: Received.

BY MS. PLANK:

Detective, that particular item, can you please

remove it, show us the bag you're talking about.

Was that what you located initially inside the

storage locker?

Q. And then can you please open it and show us what's

inside.

Yes.

And is that how you found that particular hat? It

Was inside that little bag?

That is correct.

And was that little bag inside anything else?

Yes. The little bag was inside the blue bag that

we've seen pictures of that was open.

What else was inside that blue bag?

There were the zip ties. There was the black

tight-fitting shirt.

And that hat?

And this hat.

Are these the cell phones you were describing?

Yes.

APP - 43

B. Hawkinson - D

452

And various cell phone components?

Yes.

Q. How many broken apart cell phones would you

estimate you located?

I believe there may have been up to three or four.

I believe there was a flip phone also in there.

Q. And are these the pieces of personal mail that you

described?

Yes.

Bank mail, mail from the government, and a birth

certificate?

Yes.

Detective, did you locate all of these items in

Mr. Dean's storage locker prior to interview with him?

Yes, I did.

Inside that storage locker did you find any

articles of women's clothing?

No, I don't believe we did.

Q•

Did you find anything that was very obviously

.possessed by somebody other than Mr. Dean?

No, we did not.

Did you, in fact, interview Mr. Dean on the same

date that you executed the search warrants?

Yes.

Q•

Did you read Mr. Dean his Miranda rights?

APP - 44

B. Hawkinson - D

453

Yes, I did.

Did he indicate he understood them?

Yes, he did.

Did Mr. Dean initially tell you he wished to speak

to an attorney before speaking with you?

Yes.

Did he later then recontact you?

Yes, he did.

When he recontacted you, did he make comments to

you about wanting to clear his conscience?

Yes, he did.

Did he also make comments about it's a messy

condition he's in and he wanted to get it off his chest?

Yes.

Did you ask him specifically any questions about

whether or not he had used a real firearm in any of these

robberies?

Yes, I did.

➢etective, I'm going to begin playing for you

what's being marked as State's Exhibit 70. I don't believe

Defense counsel has any objection at this time.

MR. DAY: I do not have objection.

BY MS. PLANK:

Q. Now, Mr. Dean, when you were asking him about

whether or not he had used a real gun, did you ask him that

APP - 45

B. Hawkinson - D

454

because what you'd found was, in fact, not a real gun?

That is correct.

Did Mr. Dean indicate, though, that he had been in

possession of weapons beyond that -- that BB gun that you'd

found?

Yes, he did.

Q. And the date at which you were interviewing

Mr. Dean, this 5 1/2 months after the robberies that occurred

in Portland and Gresham?

Yes.

When you spoke to Mr. Dean, did he, in fact, tell

you that in addition to that pellet gun he had at one point

been in possession of a real gun?

Yes.

(State's Exhibit 70 being played 4:06 p.m.)

(Not able to be transcribed.)

BY MS. PLANK:

Detective, are you familiar with firearms?

Yes.

The firearm he's described a 9 mm Luger, smaller,

would that look just like the fake gun that you retrieved or

would it look different?

Q. What would be the differences between a real 9 mm

It would look similar but different.

Luger versus that gun?

B. Hawkinson - D

455

shooting a real bullet as opposed to a pellet.

Well, one, what it's able to fire. A -- you know,

No. I meant visibly, if you were just looking at

it?

A. The gun -- the gun that we introduced into

evidence today is a replica Walter handgun, which is

different than a Clock. It's a totally different make.

They're both semiautomatic firearms and they're both black.

Clock makes a black -- black 9 mm semiautomatic handgun. So

they're similar in that they're square shaped, they have

square ends. They have like a canted handle with, like, you

know, with a little -- some angular handle that comes back

towards you. They're similar in that regard.

Would the Luger have a potentially longer barrel

than what --

Yes. A Clock would have a long -- could have a

longer barrel, yes.

Q. Would that be one of the obvious differentiating

points between that fake gun and a Clock?

Yes.

(State's Exhibit 70 resumes playing at 4;12 p.m.)

BY MS. PLANK:

All these other robberies that Mr. Dean has

described, the (indiscernible) sack bandit, the man who got

caught in the (indiscernible) Wilsonville, are these actually

APP - 47

B. Hawkinson - D

456

real people that you're aware of?

Yes. Two of which I was the lead investigator on.

(State's Exhibit 70 resumes playing at 4:16 p.m.)

BY MS. PLANK:

you ask the question, "Tell me what tools you used."

Detective, at the beginning of that clip we hear

Why didn't you just outright say, "Hey, did you

use a gun and a bomb?"

1 didn't -- I didn't outright ask that because

when I interview suspects, I like for them to provide

intimate knowledge of the crimes. And so by asking, you

know, "Did you use a gun?" I outwardly right off the bat,

feel that that's giving them that information; I'm feeding

that to them. Whereas, if I hold my cards back, I can then

corroborate statements that they make to me.

Do you then start specifically asking him about

the Silver Cloud robbery particularly?

Yes.

(State's Exhibit 70 resumes playing at 4:18 p.m.)

BY MS. PLANK:

When he says "You have a picture of it," what's

what's Mr. Dean referring Co?

The still of the surveillance video from the

Silver Cloud Inn.

So you'd shown him one of the stills from the

APP - 48

B. Hawkinson - D

457

Silver Cloud?

Yes, I had.

And finally -THE COURT: The question and answer didn't quite

track.

MS. PLANK: I'm sorry.

THE COURT: The tense didn't. I think you'll find

out if and when he showed it.

BY MS. PLANK:

When Hid you show him a still from the Silver

Cloud Inn?

Previous to that point in the interview.

Prior to him making that statement?

That is correct.

I should ask you also, would it be fair to say

these clips were jumping around in the interview?

Yes.

Had you shown Mr. Dean the photo of the still of

himself from the surveillance from the Silver Cloud pretty

near the beginning of the interview?

Yes, I did.

At this point in time when he's describing it as a

Halloween mask, prior to him saying it's a Halloween mask,

had you been referring to it all along as a hockey mask?

I think I'd just been referring -- I don't

APP - 49

B. Hawkinson - D

458

remember if I actually even called it by a name itself at

all. I think I try to use as little detail as possible. I

want to have him elaborate on the detail.

Did you at a later point in the interview ask Mr.

Dean why he targeted motels?

Yes, I did.

(State's Exhibit 70 resumes playing at 4:22 p.m.)

BY MS. PLANK:

Did you again at a later point in the interview

try to direct Mr. Dean back to more specifics about the

Silver Cloud robbery itself?

Yes, I did.

Q. And why were you trying to get specifics about

that particular event as opposed to just generalized

information about why motels?

Because in a confession, specific information is

useful. It shows that that one person who I am talking to

has intimate knowledge that only the robber or the

investigator or the victim would know, because they were

there at the time.

The other long way of saying it shows you got the

right guy?

Yes.

(State's Exhibit 70 resumes playing at 4:24 p.m.)

BY MS. PLANK:

APP - 50

B. Hawkinson - D

459

Now this particular clip --

THE COURT: Which will be the last clip you'll be

examining about today, but go ahead.

BY MS. PLANK:

Was that clip significant to you -- a significant

moment in the interrogation?

Yes, it was.

That information about sneaking in behind the

Oregonian, had that been in the news or disseminated publicly

in any way?

No, it had not.

And that specific information about removing the

deliveryman's wallet, looking at it, and then putting it back

in his pocket, does that even appear in the police reports?

No, it does not.

MS. PLANK: That will be my last question, Your

Honor.

THE COURT: Okay. Ladies and gentlemen, we're

going to stop for the day, pick up again as close to 9 a.m.

tomorrow as possible.

I'd like you here -- have you here at five of

9:00. That will help us to get to our next steps as quickly

as possible.

So with that, I'll ask that you leave your

notebooks here, step out with my clerk to the jury room.

APP 51

B. Hawkinson - D

480

we have to do. We're still on the same target.

We're going to -- we're going to finish with the

evidence this morning, but we're not going to be ready for

closing arguments and other legal issues until about three

o'clock. You're going to end up with a break in between

whenever it is we stop this morning -- and maybe later this

morning -- and three o'clock. I just want to let you know.

That's just -- otherwise, we'd have you here waiting as

compared to out on a break. So we're going to plan for it

accordingly.

So that's to let you know where we are.

Okay. Let's -- you're still under oath from

yesterday, sir.

THE WITNESS: I understand, Your Honor.

1.6

BRETT RAWKINSON,

called as a witness by the State,

previously sworn, testified as follows:

DIRECT EXAMINATION

BY MS. PLANK: (Continuing)

Thank you, Detective. I'm going to try and pick

us up where we last left off, which is right in the middle of

some of our audio/video clips from Mx. Dean's interview.

Okay.

APP - 52

B. Hawkinson - D

481

I believe, actually, specifically, Detective, the

question that was our last one before we broke was the

statements that Mr. Dean had made about following the

Oregonian deliveryman in and taking his wallet, but then

deciding to leave it with him.

Why were those significant points during the

interrogation?

Because that's information that until I had

reviewed the video surveillance myself, I was not aware of

that information. It was not contained in any of the police

reports. So until I seen that in the video surveillance, I

wasn't aware of it.

So the only people that were aware of it were

Detective Russell, myself, the victim, and the robber.

Now, with respect to the Silver Cloud, did Mr.

Dean give you a pretty detailed explanation about sort of the

surveilling he did of his target?

Yes.

(State's Exhibit 70 resumes playing at 9:49 a.m.)

BY MS. PLANK:

This time frame Mr. Dean provided, between 3:00

and 4:00, did those correspond with our robbery time frames?

Yes, they did.

Did Mr. Dean describe to you the clothing he had

worn during the robberies?

B. Hawkinson - D

482

Yes.

Now, to be fair, prior to his description of the

clothing, had you. told him about the items you'd found in the

storage locker?

Yes, I had.

(State's Exhibit 70 resumes playing at 9:50 a,m.)

BY MS. PLANK:

Those comments about getting off from a job, had

Mr. Dean discussed with you a business he'd actually owned at

the same time frame that these robberies were going on?

Yes. Mr. Dean had told us he'd owned and operated

a business called Moving & Storage LLC.

And were you able Lo verify that that actually was

a real business that existed?

Yes.

And actually inside the storage locker did you

find anything to corroborate that Mr. Dean did, in fact,

during the same time period as the robberies, own a moving

business?

Yes, I did. There was a Wells Fargo card in the

name of Moving & Storage LLC. Business paperwork that was

related to that business as well.

(State's Exhibit 70 resumes playing at 9:53 a.m.)

BY MS. PLANK:

And at the time of Mr. Dean's arrest, did you, in

APP - 54

B. Hawkinson - D

483

fact, find that he was living at the Unicorn motel?

Yes.

Did Mr. Dean also make statements about the

Gresham robbery?

Yes, he did.

Were they less specific than the Silver Cloud?

Yes, they were much less specific.

(State's Exhibit 70 resumes playing at 9:54 a.m.)

BY MS. PLANK:

Detective, did you confirm that the Gresham

Holiday Inn does, in fact, have those $164 suites?

Yes.

How about the bomb? Did you ask Mr. Dean about

the bomb?

Yes, I did.

(State's Exhibit 70 resumes playing at 9:56 a.m.)

BY MS. PLANK:

Let me stop you there. I know that you just asked

specifically about Silver Cloud, but some of your questioning

where you say, you know, "Hey, maybe there's some you didn't

use a real bomb."

Are you asking questions like that necessarily

because you believed that he didn't use a bomb in both of

these robberies? Or are you asking questions like that at

points in the interview to see if the defendant will disagree

APP - 55

B. Hawkinson - D

484

with you?

I'm looking to see if he will latch on to the idea

that he did not use a bomb and only implied a bomb. Trying

to give him that opportunity of out.

When he disclosed to me that it was a real bomb,

my response "No shit" -- pardon my French -- was that was a

genuine surprise. We were investigating this case with the

theory that it was an implied bomb, and so to hear this out

of his mouth to me, it was a shock.

So you had just assumed that he had something else

in the bag, was telling these victims it was a real bomb?

That is correct. That was my assumption, and

apparently it was incorrect.

(State's Exhibit 70 resumes playing at 9:58 a.m.)

BY MS. PLANK:

Detective, do you personally have any knowledge or

experience about explosive devices?

I have some knowledge, but very limited

well,

experience igniting, no, but I have knowledge.

As part of your training as a law enforcement

officer, you all trained to deal with potential explosive

devices or bomb threats, things like that?

Yes.

Now, the particular device that Mr. Dean described

with the black powder, cell phone, the type of piping, the

APP - 56

B. Hawkinson - D

485

type of wiring. Would that all be capable of making an

actual functional explosive device?

Yes.

Q. And specifically the detonator created by the cell

phone, I don't personally understand necessarily how that

works, but is that an actual method by which a bomb can be

detonated?

Absolutely.

Did you have conversations with Mr. Dean about how

it was he was able to get away from these crime scenes

without being detected?

Yes.

(State's Exhibit 70 resumes playing at 10:02 a.m.)

BY MS. PLANK:

Now, this description that Mr. Dean gave you about

leaving a vehicle parked maybe a block or two away, could

that potentially explain why none of the perimeters and none

of the K-9 searches were ever fruitful in these robberies?

Yes.

And then, finally, Detective, at the conclusion of

the interview, was Mr. Dean allowed to call his significant

other?

Q. Was the recorder still going and were you actually

Yes.

still watching Mr. Dean while he was speaking to his

APP - 57

B. Hawkinson - D

486

significant other?

Yes, I was.

And why is that that you're continuing to record

and continuing to watch?

Well, he's in custody. You know, he's under

arrest. He's not free to just walk around the floor. We're

doing it near where the recording devices are. He's not

handcuffed. So there's a safety issue that's involved with

that.

And I told him. I gave him that warning that he

was being watched.

And prior to his conversation with his significant

other, had Mr. Dean made various statements throughout the

interview about, you know, basically wanting to come cleah,

wanting to get this off his chest?

Yes.

And did he make a statement that you personally

observed, not directly to you, but that you observed to him

making to his significant other about having basically told

- 20

the detectives everything?

Yes.

(State's Exhibi_ 70 resumes playing at 10:04 a.m.)

BY MS. PLANK:

Is that the statement to his significant other --

Yes.

APP - 58

B. Hawkinson -

487

-- the conclusion?

Now, would it be fair to say that this entire

interview lasted much, much longer than what we've played

here?

Much, much is accurate

But these are edits -- are these edits themselves

accurate representations of those portions of the interview?

Yes.

MS. PLANK: State would move to admit State's

Exhibit 70 into evidence.

MR. DAY: No objection.

THE COURT: Received.

BY MS. PLANK:

Now, Detective, I want to talk to you a few things

that we didn't hear but they were also present in the

interview.

Do you recall Mr. Dean explaining to you that he

had a pattern for hew he would deal with the clerks and the

•

employees inside a motel?

Yes, I do.

What -- what did he tell you was his sort of his

game plan when he got in there?

He said it was all business. And when he would go

into a hotel he would get them on the floor. He would use

zip ties to tie them up. He would always ask for the key

APP - 59

B. Hawkinson - D

488

because he doesn't want just the register money; he wants

what's in the safety -- like the safety deposit box with the

safety boxes, because that's where the big score was.

Did he talk to you about taking the individual

employees', like, wallets and purses?

Yes.

Q. Did he explain to you why it was he would take

their purses or would look their wallets?

He did that as a form of intimidation for the

victim, to let them know that he knew.

Q. And when you say "to let them know that he knew,"

you mean -A.

Where they lived. Their personal information.

How to contact them. He felt that it was more controlling.

During a clip that we had in here, Mr. Dean

described that he had had a real gun, but that he'd gotten

rid of it prior to his arrest?

Yes.

Q. Based on the time frames that he was describing,

did you understand that to mean that he was in possession of

a real gun with two clips at the time in September that he

committed both of these robberies?

Yes.

Did Mr. Dean ever talk about, you know, why the

elaborate cover -- head-to-toe cover-up?

APP - 60

B. Hawkinson - D

489

Yes. He told me it would make it hard to identify

him. If the victims can't see his face, makes an easier

clean getaway.

Did Mr. Dean tell you specifically, you know, why

use a gun and a bomb? Why both? Why two?

He said that he'd done research and he read of how

these -- how robbers would just go use a gun or a fake gun

and they'd get taken over. He felt that by having the bomb

and the gun, the bomb would cause the motel clerks to have to

think about the safety of their patrons and also give them an

extra -- it gives him an extra layer of protection in case

they decide to go for the gun, that he has the fallback of

the bomb.

Did you at the conclusion of the interview also

take confirmatory swabs from Mr. Dean that there forwarded to

the lab and used to confirm the DNA match to those Gresham

flex ties?

Yes, I did.

At some point -- you already testified to this,

hut, you know, at some point during the interview, you list

out all of those items in the storage locker that you found.

The BDU pants, the Elmer Fudd hat, the zip ties, the black

shirt. You list those all out to Mr. Dean. Is that correct?

Yes.

At any point did Mr. Dean say, "Hey, that stuff's

APP - 61

B. Hawkinson - D

490

not mine. The other stuff in the storage locker, that's

mine, but that stuff, that is not mine"?

No, he never, ever had any disownership over those

For some of those items did he actually

items.

specifically state "Those are mine"? Like the pellet gun?

Yes.

Any other items that he specifically said, "Yeah,

those are mine"?

Q. And all of the items that you found that you

Not that I remember at this time specifically.

believed matched the clothing worn in those two robberies,

all those items that you found in the storage locker, were

they scattered throughout the locker, or were they all

contained together?

They were all contained together in two different

containers. One was the large cubical blue bag -- it seemed

like a cooler. Had a handle on it

bag.

and then a black duffel

Did Mr. Dean at any point ever say, "Hey, I'm

storing my buddy's blue cooler and black duffel bag in that

storage unit"?

No.

Did Mr. Dean ever say anybody else's stuff was in

that storage unit?

APP - 62

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491

No.

Q•

And that pellet gun that Mr. Dean specifically

stated was his, was that in one of those containers with all

the other robbery items?

Yes, it was in the black duffel bag.

Now, we heard testimony prior to you from folks

from the lag that they tested DNA from a remote control, zip

ties from the Silver Cloud Inn, and zip ties from the Holiday

Inn. We looked at a whole bunch of exhibits, both photos and

physical exhibits of the items found in Mr. Dean's storage

locker. Did you submit any of those items found in

Mr. Dean's storage locker to the lab for analysis?

No, I did not.

Why not?

It was found in Mr. Dean's storage locker. The --

the incident happened in September. We recovered these items

in February. There's no way to tell who's handled those

items between the date of the incident and February.

Furthermore, what would that information really

tell me if we did do a DNA analysis on that -- on those

items? It would tell me who handled those items between the

time we see it on a video and the time we recover it, but

that's not nearly as useful as an actual item of evidence

located within the crime scene at the time of the crime

itself -- i.e., a flex cuff left behind at the scene.

APP - 63

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492

Q•

Is it fair to say that you didn't submit those

items also because Mr. Dean had stated that storage locker

was his.

Yes.

Basically stated all of that stuff was his?

Absolutely.

And had Mr. Dean stated that he had committed

these two robberies?

Yes.

At that point all of those items -- do you think

the crime lab would have even accepted -- given that

information, accepted those for analysis?

I don't think they would have. They would have

called me and asked why. We would -- they probably would

have --

MR. DAY: Objection. Speculation.

THE COURT: All right. Sir, I want to make sure

you're not just guessing. If you're talking about things

based on your experience and knowledge, you,can answer the

question, but I don't want you to just guess as to what they

might have done.

THE WITNESS: Absolutely.

Based on my experience, the lab is very tight as

to what they will test. And I find it difficult to submit

items of evidence for DNA analysis on other cases. And so I

APP - 64

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493

felt it would be very unlikely that they would test those

items.

Did you have any question after your interview

with Mr. Dean about the ownership of that storage locker?

I'm sorry, I missed the question.

After your interview with Mr. Dean, did you have

any doubt in your mind that anyone other than Mr. Dean

controlled that storage locker?

No, there was no doubt in my mind --

Pardon me.

It was Ernest Dean's storage locker.

After you interview with Mr. Dean, did you have

any doubt in your mind about the ownership of the items

inside the storage locker?

There was no doubt in my mind at all that those

were -- that was Mr. Ern -- Mr. Dean's hat, those were Mr.

Dean's gloves, Mr. Dean's dolly. Every item in that storage

locker belonged to Mr. Dean.

MS. PLANK: I have no further questions, Your

Honor.

THE COURT: Cross-exam.

MR. DAY: Thank you, Your Honor.

APP - 65

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CROSS-EXAMINATION

BY MR. DAY:

So everything in that storage locker was directly

related to Mr. Dean? Yes?

Yes.

You didn't find anybody else's IDs in there. Is

that correct?

I did not.

Didn't find Ms. Fang's ID or purse in there, did

We actually looked hard for Ms. Fang's purse and

you?

ID, but we did not locate that in the storage locker.

Q. Were you the first on the scene at the serving of

the search warrant at the storage locker?

First on the scene?

Q. Who served -- who opened the storage locker?

Oh, I was there when the storage locker was

opened. I forget who used the key. May have been -- it may

have been Sergeant Santos that opened it, but I was standing

right there with my camera.

And how many officers were there with you?

Well, had myself, Sergeant Santos, Detective

Mudrick, Detective Russell, Detective Frantz --

And --

-- and Lieutenant Wilbur.

APP - 66

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495

So that was about seven?

Yes, that's -- yes.

And do you recall -- withdrawn.

Who took possession of all of the items that were

recovered from there what time?

Detective Mudrick served as the -- as the evidence

custodian in my presence. When an item was located, I'd

photograph it and he would take possession.

Q. And who maintained control after that?

Did he maintain possession or did it go to

somebody else?

Q. And then do you go down to that evidence room and

It went to Portland Police Evidence Division.

get the cuffs and then send them off to OSP yourself?

I did not do that myself, no.

Who does that?

We have several ways do it. I do not know if

Detective Russell did it in person or we completed a --

because he can -- the way our agency is, we're fortunate

enough to have enough support staff that I can fill out the

request form, interoffice to them, and they will deliver it

from evidence to the Oregon State Police Crime Lab, which

saves me a lot of time.

Unicorn motel?

You -- and you -- he was staying at a motel, the

APP - 67

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496

I was? I'm sorry?

Mr. Dean, he was at that time --

Yes.

-- located at the Unicorn motel?

Was he staying there with anybody, to your

knowledge?

Q. And what was it -- did you find anything of

In the room, no.

interest or evidentiary value at that location?

Related to this investigation?

Related to this case, yes.

No. With the exception of tools.

The tools we're talking about were found at that

location, not at the storage locker?

That is correct.

And were these -- what officers were with you at

the motel?

There was detective Sergeant Santos, myself,

Detective Mudrick, Detective Brent Christensen. I believe

Detective Tracy Chamberlain. Special Agent Michael Palmer of

the FBI. Lieutenant Wilbur. Detective Frantz.

Q. Would you say this case got a moderate amount of

publicity or more than moderate amount?

I think moderate. Well, it got a lot of initial

publicity, and then it was moderate after that.

APP - 68

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497

Did you bring the tools that you got from the

Unicorn motel? Do we have those in the courtroom today?

I do not believe so.

We just have the picture?

(Indiscernible background conversation.)

BY MR. DAY:

out earlier.

Did you make any kind of a receipt or notation in

your report about what was contained in that bag?

I believe I may have called it "miscellaneous bag

of tools." But I will look and see what words I used.

Sorry. I meant to get these couple of pictures

I mean, does the specific items -- the tools

specifically are relevant, are they not?

Yes.

Q-

And you're alleging these tools are used to do

I'm sorry?

What are you saying these tools are used do?

I believe these tools are capable of making bombs.

Did you find your list of what tools were in that

what?

bag that were used for making bombs?

I did not.

I'll give you another minute to find your receipt

on that, then?

APP - 69

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498

Okay.

(Pause.) From my recollection -- I'm not finding

it right now. My recollection tells me it was a bag of

miscellaneous tools, and we took all of the tools.

Okay. What is your training or experience

regarding the composition or manufacturing of explosive

devices?

Okay. Well, I've had conversations with members

of the Portland Metropolitan Explosive Disposal Unit, EDU.

I've had personal conversation with Ron Stankey of

the Federal Bureau of Investigation who is certified bomb

technician.

Went to the basic police academy and learned about

responses to explosive devices. That cell phone

the things they teach and train you to do is you turn your

police radio off and you turn your phone off before you

respond to check a suspicious device. And we do that because

your cell phone and your radio may trigger that -- may

trigger the.detonation. It's standard police protocol for

that.

Q•

And the cell phones that you found here, they were

intact cell phones

Yes.

-- the three cell phones?

one of

Do you know anything specifically about the wiring

APP - 70

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499

of bombs?

I know specifically that in order for a bomb to

happen that it needs an enclosed space, it needs an

explosive, and it needs a mechanism to cause that explosion

within that enclosed space.

Electricity, a spark initially. That's why static

electricity can cause a bomb to go off when you're screwing

the end of a pipe bomb. A spark metal on metal can cause

that spark, which would cause then, if it's a closed -- if

it's a closed container at that point, it can cause immediate

combustion, and the explosion, which would cause the bomb to

go off.

So -- so I know that you need spark, you need

something that's capable of flammability, and you need it in

an enclosed space for that to happen very fast and rapidly.

Did you find any incendiary devices in the storage

Did not.

Did you find any incendiary devices at the Unicorn

Did not.

Q-

Did you find a piping -- piping at the storage

No.

Did you find any piping at the Unicorn motel?

unit?

motel?

unit?

APP - 71

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500

I did not.

Did you -- and is your recollection of the case

and your understanding of the case that what was presented to

at both of these hotels was something along the lines of a

box, a small box?

described, as a -- yeah, I believe it was described as a box.

To your recollection, did any of the victims

mention a pipe bomb?

It was described -- yes, I believe it was

No. The words "pipe bomb" weren't -- was not

So, this is State's Exhibit 45 on the screen that

used.

we're looking at. And is this the bag that we're talking

about?

Q. And can you clearly see from where you are --

Yes.

-- the contents of the bag?

Yes.

And what is it from in that bag that you're

Yes.

alleging is used and how is it used in the construction of a

bomb?

I have to be -- okay.

Well, the battery attached to the bottom of the

drill is relevant. It's capable of providing a power source.

APP - 72

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501

The screwdrivers are capable of using -- of

drilling the holes necessary into the pipe bomb to have the

wiring attached to the -- whatever the detonator would be.

The -- let's see, there's, like, an electric screwdriver

there. There's a drill. The drill is capable of drilling

metal components which allows, you know, to construct the

pipe in a way to where you can then put in the powder.

Those cords are capable if you were to strip them

down, take off -- strip them. Those cords are capable of

conducting current, so you could take a cord apart and use

that as a way of having current transport from your power

source to your item to be detonated.

Yeah, that -- and that's about it.

Q. Did I ask you if you found any powder in that

location?

devices.

Un-huh.

So powder I would -- I didn't find anything that

I think you asked me if I found any incendiary

would go boom that I saw.

No -- nothing resembling gunpowder, is what I'm

getting at.

Q• And what was your understanding of Mr. Dean's

business?

I did not see anything resembling gunpowder.

APP - 73

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502

A. He was involved in a moving and -- a moving

company.

Involved or owner of?

Well, owner, but involved because he did many of

the moves himself.

That's the kind of business where one might also

do the work that one's hired people to do?

Absolutely.

Saves a little money, right?

Absolutely.

Now, would you agree that people that work in the

moving industry or moving capacity, when they're working in

teams, there's going to be -- there's going to be physical

contact?

Yes.

What was your understanding as to how many

employees Mr. Dean had?

He -- well, my -- my understanding is I was aware

of -- I was aware of three, but there -- he had stated that

at one point I think he had over 65 employees.

And you verified that he had this corporation

Yes, I verified that he did -- he did indeed --

-- that that's a fact?

-- earned -- he earned money too and went to --

and --

APP - 74

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503

people would call. He had a -- in fact, he even -- he has a

phone number and an ad on craigslist, and when you call it,

it's -- it was a functioning phone number, leave messages,

and he even called us back to arrange a move. That's part --

that was part of the investigation.

What is this Airsoft -- now this is not a real gun

that I'm holding. Is that correct?

That is -- well --

State's Exhibit No. 66?

It is not a real firearm, but it does indeed shoot

a projectile.

Okay. Is it loaded right now?

I hope not.

Usually there's like a

you want to check that?

I saw you being very gingerly with it yesterday.

a strip in there. Do

Now I'm concerned. I --

Well, I was concerned as well yesterday.

You should check that right away --

Yeah.

-- Detective.

It's -- the problem is I don't know how it really

-- well, see --

THE COURT: Well, if you're not sure --

THE WITNESS: There's nothing in it.

APP - 75

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504

THE COURT: I want you to only check it in a way

that is safe to check it.

THE WITNESS: Yeah. It's -- it's not functional.

BY MR. DAY:

This has got some weight to it. Would you agree?

Absolutely.

What is this a replica of?

It's a Walter brand handgun.

Now, how -- I'm sorry, what is a Walter brand

handgun? What does that mean?

Well, it's the make -- I believe it's -- I believe

it tells you on the firearm itself what it's a replica of,

but --

that?

I'm not a gun guy at all. So I have a simple

Oh, yeah. Could you take a look and let me know

questions.

Yeah. So -- so it says on here "Call Walter," and

it has the Walter brand logo. Walter is a firearm

manufacturer. They're German in origin. Obviously they have

an import into the United States, because they're allowed to

have and sell those firearms in the United States.

So this is a very, very real looking replica of a

Walter.

Q•

And so what caliber of gun would this be?

APP - 76

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505

It could be any sort of caliber. It could be

well, that one specifically or -- or the

That.

-- Walters in general?

the

Walter makes 9 mm. They make -- I believe they

have a 40 caliber, and I believe they have a 45 caliber.

Any -- any model of semiautomatic handgun, it

could be either one of those.

Let me ask you. So this basic structure that is

in evidence that I'm looking at, I know there are variations,

but it could he a 9 mm. It could be a 45. Could it be any

number of calibers that go into this kind of square-looking

gun?

Yes.

Q. And then the Beretta -- or not Beretta -- the

Luger --

A.' Luger.

IQ-

-- that we've been talking about a little bit, I

had in ray mind a certain picture kind of, you know, and so

then I went and looked at some pictures.

A Luger doesn't look a whole lot different than

this. Is that correct?

Luger --

The 9 mm Luger.

Luger -- Lugers do. Clock --

APP - 77

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I'm sorry.

Clocks --

Clock 9. We're talking about the Clock 9 mm?

A Clock --

I mean, the word "Luger" was put on the end of it,

was it not?

It was. Not by me. By someone else.

Okay. So you're saying that doesn't even exist?

Luger is a reference to the type of -- to 9 mm

okay. Luger makes -- Ruger makes a firearm. It's a long

history that I'm almost not qualified to even talk about.

Well, yeah. And we don't -- I can

I think

we're good there.

Okay.

My basic question is the Clock 9

The Clock looks different.

Looks different than this?

Yes.

More -- okay.

Yes. But I mean if you were to see a Clock, which

I could show the jury if I made it safe

On-huh.

-- because I have one on me.

Un-huh.

Or -- and you were to look at a Walter, you could

APP - 78

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see that they -- they appear to be two different types of

handgun,

But as far as basic structure and basic generic

description, you know, the (indiscernible) quite a bit.

Detective, can you please show us your firearm?

THE COURT: Is it safe for the courtroom?

THE WITNESS: I will make it safe, Your Honor.

THE COURT: All right.

THE WITNESS: Would you look and verify that

that's empty, please.

BY MR. DAY:

Well, it looks so to me.

Okay. So this is my duty that is issued to me by

the Portland Police Bureau.

And can you just hold those to yourself --

Yes.

-- so the jury can see.

Oh, yeah.

Now, would you agree that certainly in a stressful

situation, if somebody is pointing a black firearm at you,

it's going to be difficult to say if it's a Glock or if it's

MS. PLANK: Objection. Calls for speculation.

THE COURT: I think the way the question's framed

doesn't really -- it's just what's your opinion. I think you

APP - 79

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can --

THE WITNESS: Unless the person is very

experienced with firearms -- I think I would be able to tell

because I handle a Glock regularly. I would know a Glock if

I saw a Glock.

But, yes, I think to many people in a stressful

situation it would be difficult to tell the difference

between -BY MR. DAY:

I was curious. We see --- know from straight on

THE COURT: You need to step out of the way so the

jury --

BY MR. DAY:

think

I'm curious as well to see what the barrel, I

I would like for you to show the barrel --

Like the barrel length?

It's scary to see a gun pointed at us, but that's

what we're asking -- that's what I'm asking you to do, is

point --

Okay.

Point at me if it makes you feel better.

THE WITNESS: Do I need to fill out a use of force

report?

THE COURT: I think you're okay here.

B. Hawkinson - X

509

THE WITNESS: Okay. So with the information, my

finger's not on the trigger.

Just so you have a vantage point. This feels

weird.

I'm sorry. Is that enough?

BY MR. DAY:

Thank you. Yes.

Okay.

That's good. Thank you.

THE COURT: You might leave it just safe for the

courtroom, please.

THE WITNESS: Okay. I will. It's holstered up.

It won't be a problem.

BY MR. DAY:

Would you agree that Mr. Dean never admitted to

using a real gun at either of these two hotels?

I disagree. He --

MR. DAY: Objection. Asked and answered.

THE COURT: I'm sorry.

MR. DAY: Well, he's answered the question.

So -- I guess if you want to explain.

THE COURT: You can explain your answer.

THE WITNESS: When I -- once he -- once Mr. Dean

had told me that he used a real gun -- because I gave him the

out of it being the Airsoft. And when he told me it was a

APP - 81

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real gun, I strived to try to narrow -- pinpoint which ones

were real and which ones were Airsoft. And he told me at the

beginning, early on, it was a real gun. And September 5th

was early on.

BY MR. DAY:

But your -- now, your interview of him, he alluded

to some other things, and your interview with him went on for

how many hours?

Oh, I believe time-wise, probably two, three

hours.

Q. And -- well, do you know about how much time what

we heard here in court, about how much time that was of

interview?

A fraction.

So what is your goal when you interrogate a

defendant, suspect? What is your goal going. into that

interrogation?

Find out the truth.

Would you also say one of your goals is to

minimize the impact on the victims?

Absolutely.

Q. And would you agree that the accomplishment of

that goal is best met if cases do not go to trial?

Absolutely.

And best way to ensure the cases do not go to

APP - 82

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trial is to obtain a confession?

I believe confessions are useful in -- in

providing -- in order for cases to resolve before they get to

a point where they're in a courtroom.

So your goal is the truth?

My goal is the truth.

And then you had some other strong considerations

as well? The victim, getting the case to resolve, things

like that?

1.0

Yes. But ultimately it's about the truth.

So when you

in terms of obtaining the truth,

what are the means that you use in obtaining the truth in an

interrogation?

I -- I like to ask -- and I try to ask open-ended

questions. And I like to line up the answers I have with the

information that I know. And that's really the -- then

compare it to witness statements, you compare it to the

evidence that I'm aware of, and you -- basically you line up

the statement that you're taking with all the facts that you

know, and you make that comparison to see if it's truthful or

not.

And in terms of getting information, do you play

the role sometimes of good cop as well as bad cop?

I don't believe in good cop/bad cop, per se.

There's not -- I don't -- I actually don't use the tactic of

APP - 83

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512

there's a mean guy in the room over here and then there's a

really nice guy over there.

My preferred tactic -- excuse me -- is just to try

to be nice and -- and, you know, I like to sell conscience.

I like to sell regret and remorse. I like to -- that's

that's the one I really -- that's my crutch. I kind of stick

with conscience an awful lot. Probably more than I should.

So you -- would you say try to befriend them in

some way or build a rapport?

A. Rapport building is part of not only the interview

process, but just -- just having a -- being in the presence

of the suspect in and of itself. I mean, even a victim and

even the witnesses, absolutely you develop a rapport. Part

of -- part of good customer service.

Q. And then did you spend some time being really

clear with him about how much trouble you thought he was in?

Yes. In this case, at some point in the

interview, yes, I had to tell him

In fact --

-- he's in trouble.

Q. -- that -- that moment happened when -- you met

with him in a few segments you could say. Is that correct?

Yes, being called segments.

Q•

And so at the end of this first. segment, we'll

call it, he told you he wanted a lawyer. Is that correct?

APP - 84

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That is correct.

And up until that point he didn't tell you

anything about anything. Is that correct?

That is -- that is not correct.

Okay. Leave it there.

Okay.

And what was your response when he said he wanted

an attorney?

To explain to him where we were at with the

investigation. That we had seized evidence. That he was

looking -- I read him an arrest warrant that we had for him,

and we placed him in a holding cell.

So you --

Oh -- and I let him call -- make a phone call to

his -- his girlfriend, but she didn't answer. But we

had told him no matter what happens during this interview,

I'll let you call her regardless, and I followed through with

that.

So he invoked. And you -- fair enough? That's

his right. You took him -- let him go back to his cell?

Correct.

Some time later -- about how much -- how long was

it before he was trying to get your attention again?

He knocked on the door about eight minutes after

we put him in the cell.

APP - 85

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Okay. And expressed that he wanted to talk with

you, come clean and that kind of thing?

He told another -- yes, he told another person

that he wanted to talk to me, so I came back and I spoke to

him and he said he wanted to come clean.

Q. And at the same time that he's making this

request -- well, did he also ask for a cigarette?

Yes.

And did you tell him "I can work on that, but it's

not any kind of an exchange"?

I made it very clear that, yeah, I'll let you make

we'll take a smoke break, but it's not

know -- first of all, I have to go track down cigarettes.

It's going to be a while, and, you know, even if you take the

smoke break, it has nothing to do with you talking to me.

It's going to be independent.

Q. And how many cigarettes did he have on the smoke

break?

Maybe two.

Three?

Perhaps three. Two or three.

I mean, you

He was sucking them down pretty fast.

Q. And did you continue to question him or conversate

with him about this case while he was having a cigarette?

We engaged -- we -- we were talking, but I tried

APP - 86

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to minimize what we were talking about until we were done

with our Smoke break and back in the room.

So my question is: Did you continue to question

him or have conversation with him about this case while on

this cigarette break?

It's a "yes" or "no" question.

I'm trying to think. When you say this case

The case we're talking about, the charges that

we're looking at today.

Yes.

So you spoke with him about this case.

And where did you go for the cigarette break?

Downstairs. At the central precinct we have a

parking garage. So it's down in the basement level, There's

a bunch of police cars down there. That's where we went.

Q. Was anybody else with you when you went down there

with Mr. Dean?

Yes. Lieutenant Chris Wilbur, Sergeant Joe

Santos, and Detective Maury Mudrick.

Q. And did you record your conversation that you were

having with him during that smoke break?

Yes.

Did you have some conversation or some back --

some -- any words exchanged with Mr. Dean -- withdraw that.

From the time you started recording, did you have

APP - 87

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any unrecorded conversations with Mr. Dean?

No.

Before you started recording, did you have any

conversations with Mr. Dean?

No.

What was Mr. Dean's -- how would you describe his

overall state of mind in your presence?

A. Smooth. Articulate.

State of mind was smooth and articulate?

Okay.

Yeah.

Did he express some

Yes.

And what's your understanding of the emotional

some emotional stress?

stress that he was under at the time?

Seemed to me that he was -- he was concerned about

Iona, and he seemed to me like he was trying to have like a

-- well; going hack to the -- trying to think of the word

that you used. You used the term "segments" or -- so there's

segments of this interview. There's an initial interview,

there's an invocation, there's a holding cell, and then

there's a smoke break and then there's a second interview.

In the first interview seemed nervous,

apprehensive. After the invocation he seemed -- he seemed

tired, relieved. Like -- and so was there some emotional

APP - 88

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stress? Perhaps, but it was -- it seemed to be of that

finally coming to terms with holding onto something for a

long and finally like spilling a secret. That's --

Was --

-- what it seemed to me.

Was he more relaxed after the cigarette break?

Yeah, I think that's a fair statement.

Did he state on a number of occasions that he

needed to contact Iona?

Yes.

During the cigarette break did he say something

that suggested that he'd had a suicidal thought that day?

Earlier that -- yes.

And what was that?

He had made reference to -- he had told me that

he, looking back on it, he wished he had reached for a cell

phone and pulled it out on the officers when they went to

arrest him.

The result being what?

Well, the result would prob -- would perhaps be

suicide by cop if the officers chose to fire and didn't

recognize the cell phone -- recognize the cell phone as a

cell phone and thought to be a weapon.

Would you agree that any of these weap -- any of

these tools could be used in the course of a moving company

APP - 89

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business?

Yes.

Would you agree that zip ties as well could be

used in the course of a moving company business?

Yes, they could.

Would you agree that latex gloves could be used in

the course of a moving business?

Latex -- yeah, they could.

Sometimes things are icky.

Yeah. I think you would use

Sometimes.

-- cloth gloves.

And you saw another kind of glove that would be

applicable to a moving company business?

Yes.

You -- how long did you follow Mr. Dean before he

.17

was arrested?

Me personally? I probably followed him for just

maybe a few hours the night before he was arrested, and only

again an hour before he was arrested.

The time it took to drive from Unicorn motel to

North Lombard and about Denver and using I-84 as your route

at about ten o'clock in the morning.

Q. And how about anybody else that was following him

on this case? Are you aware of anybody else following him?

APP - 90

B. Hawkinson - X

519

We had started our surveillance on Wednesday. We

were trying -- and the reason we started Wednesday is we

weren't able to locate -- we didn't know where he was. As

you can imagine, when people are staying in motels they're --

they don't have addresses on record.

So we got lucky in that a -- one of our units

found his car in a motel room and we learned he was

registered there on -- I believe it was the Wednesday of the

week that he was arrested.

So we started a continual surveillance operation

from that point on.

For about -- is that three, four days?

Yeah, with -- with break -- like breaks at night.

Like we'd put him to bed and we'd call it good.

With breaks at night?

Well,

except for Thursday night.

Well, Wednesday we -- Wednesday we didn't have

enough people. We were short resources. You know, John

Russell and myself were busy investigating and working the

case. That left the rest of my unit to handle the

surveillance portion, and we just did not have the bodies

when we start juggling courtroom appearances, vacations,

sick. Those kinds of things.

Mr. -- Mr. Dean was not engaged in any kind of

illegal activity at the time he was apprehended?

APP - 91

B. Hawkinson - X

520

Correct.

This Elmer Fudd hat. Haven't you seen those

around Portland?

Not often.

Really? Okay. You got to get -- well, withdrawn.

Ask you a couple more questions and I'll be done.

At a basic level, would you agree that the bullet

is the most dangerous part of a gun?

No. At the basic level, I think the trigger is

the most dangerous part of a gun, provided the gun is loaded.

Would you agree that a gun that is loaded is far

more dangerous than a gun that is not loaded?

I have to. Of course, yes.

You don't have to.

Well, I'd be foolish not to.

You can talk about.

Yeah.

Okay. Have any evidence at all that the gun

that's alleged to have been used on September 5th and

September 15th had a -- was loaded?

Yes. Mr. Dean's statement was that he had two

clips with the gun. I don't see the value in keeping an

empty clip.

Let me ask you this: Did you specifically ask him

if he had a loaded weapon on September 5th when he's alleged

APP - 92

B. Hawkinson - X

521

to have committed that robbery?

I did not ask that specific

Did you specifically ask him did he have a loaded

weapon on September 15th when he's alleged to have committed

that robbery?

I did not.

Okay. And your job to get the truth, right?

Yes.

Okay. My apologies. Just looking for one -- one

thing.

(Pause.)

In the storage locker did you find a real gun?

No.

Find any ammunition?

No.

Find any holsters?

No,

Find any magazines?

I believe only of the reading kind. None related

to firearms.

Find anybody's Social Security cards?

I believe -- oh, Social Security cards. I don't

know if Mr. Dean's Social Security card was in there, so

don't believe so, no.

Q•

Find any -- other than Mr. Dean, did you find

APP - 93

B. Hawkinson - X

522

anybody's driver's license?

Q. Find anything that might be called a replica of an

No.

explosive device?

No.

Did you find a ski mask?

A. We found a black shirt that was configured in a

manner that we believed was used as a masking device, but not

a ski mask in and of itself.

Other than that extension cord we see there, did

you find any wiring?

I did not find any of his wiring.

Did you find anything that you,would call a bomb?

No.

Did you find a grenade?

Did not find a grenade.

Did you find a rocket having a propellant charge

of more than four ounces?

I did not find any sort of rocket, four ounces,

two ounces. No rockets.

Find anything having an explosive or an incendiary

charge of more than a quarter ounce?

No.

There's a few others I'll leave alone.

MR. DAY: I don't have any further questions.

APP - 94

Colloquy

523

Thank you.

THE COURT: About how long redirect do you have?

Just roughly?

MS. PLANK: Probably 15 minutes.

THE COURT: Anybody need a break before we do

that?

Yes?

Okay. All right. We're going to take about a

ten-minute break.

So, ladies and gentlemen, if you could leave your

notebooks here, we'll send you back to the jury room for a

short break, then we'll come back and finish.

(Jurors exit courtroom at 10:52 a.m.)

THE COURT: You may step down, sir.

Okay. And based on what you've seen so far, do

you plan to put on any witnesses after you finish with your

redirect?

MS. PLANK: Just one.

THE COURT: Who's that going to be?

MS. PLANK: The investigator (indiscernible.)

THE COURT: All right. Okay. So we

MS. PLANK: (Indiscernible.)

THE COURT: Okay. Unless

I suppose unless

there's a stipulation.

MR. DAY: I missed that last part.

APP - 95

Colloquy

524

MS. PLANK: I said Detective Ober is going to

called (indiscernible) one jail call and one statement that

Mr. Dean and Mr. Lathrop were confirmably in the same area.

MR. DAY: (Indiscernible.)

THE CLERK: (Indiscernible) stay on the record?

THE COURT: Yes. Just a moment.

(Indiscernible background conversation.)

MS. PLANK: I was going to put him on after.

THE COURT: Is he here?

MS. PLANK: He's in the building.

THE COURT: Right. Okay. All right.

MS. PLANK: He might be outside.

THE COURT: And, Mr. Dean, do you need a break?

THE DEFENDANT: No, Your Honor.

THE COURT: Okay. The other question -- you know,

we're going to finish this next examination, you know,

probably by about 11:30 or so. I'm going to then be needing

the lawyers to go through some legal issues.

Are you planning -- do you want to stay for that?

You're welcome to. I just wanted to give you the option.

THE DEFENDANT: Your Honor, I'll stay for it.

THE COURT: Okay. Yeah, that's fine.

All right. Okay.

So if you want to let the jurors

was the second bathroom repaired?

what about the

APP - 96

B. Hawkinson - ReD

525

THE CLERK: Yes. Yes.

THE COURT: What do you think would be faster,

leave him? Or walk back?

Yeah, short walk.

Okay. So we're going to keep everybody else here.

(Recess taken from 10:55 a.m. to 11:05 a.m.)

THE COURT: You may begin.

MS. PLANK: Thank you.

REDIRECT EXAMINATION

BY. MS. PLANK:

Detective, you testified on cross-examination that

you did not find any incendiary or bomb components in your

search of Mr. Dean's storage locker. Is that accurate?

That is accurate.

Q•

Did Ms. Dean himself explain why it was that you

did not find any bomb components?

Yes, he did.

What did he tell you exactly?

It's a little cut up on the audio.

He told me that -- well, he told me two things.

The first thing was he told me that he had it in another

storage unit that I would never find. And the other thing he

told me is that those -- those items were in the Willamette

River. Everything was in the Willamette River.

APP - 97

B. Hawkinson - ReD

526

Did Mr. Dean, during his questioning, actually

tell you that several of the items that he considered to be

highly inculpatory, really bad evidence against him, when he

was done using them, he broke them up and threw them away?

Yes.

Did he actually tell you in other parts in that

interview that he had thrown a lot of evidence into the

Willamette?

Yes.

A question was posed by Defense regarding the

description that victims gave of the bomb and whether they

described it as box?

Correct.

Did the victims actually specifically say that

whatever he had held out as a bomb was contained inside

another plastic bag?

Yes.

So they -- they saw a plastic bag containing

something that Mr. Dean told them it was a bomb?

I would take it further. They saw a bag that

contained -- that contained an item which had a bomb in it.

So whether or not it was a pipe or a box -- I

mean, what they described was an object in a bag?

Correct.

And because it was in a bag -- is that one of the

APP - 98

B. Hawkinson - ReD

527

reasons that you thought it's probably just something he's

pretending is a bomb?

Yes.

And was it actually Mr. Dean who corrected that

idea on your part?

Absolutely.

Mr. Dean's moving business. Did you actually have

a fairly lengthy conversation with Mr. Dean about his moving

business?

Yes, I did.

You had at one point mentioned that there was a

description of 65 employees. Did you actually do some

background investigation of that moving business?

Yes, I did.

In reality, did you find it looked like there was

really only one other stable employee whose name you were

able to obtain?

There were two that --

Two?

-- I -- whose names that I was able to obtain.

Those two other individuals whose names you were

able to actually confirm as being associated with that moving

business, do they match the skin tone, height, and build of

the robber we see in the surveillance the way that Mr. Dean

does?

APP - 99

B. Hawkinson - ReD

528

Not at all.

Q. And in your investigation of this moving business,

did you form the opinion that it actually appeared that

Mr. Dean wasn't actively moving very much at all during the

time period of these robberies?

That's correct.

Did Mr. Dean himself make a statement to you

during the interview that he was -- his moving business was

making zero money?

That is correct.

He did tell me that his moving

business was not profitable, and he was barely staying

afloat.

Q. And that one of the ways he was making money was

by robbing motels?

Yes.

Speaking about the interrogation, you admitted

that one of your goals is to try and create a case that's

strong enough that it won't ever go to trial.

That's my goal in every case that I have, yes.

Do you personally as an investigator have any

control over whether or not a trial is eventually held?

I have no control whatsoever.

You also stated that you wanted to gather the

truth. Is that why you try to avoid leading questions?

Yes.

APP - 100

B. Hawkinson - ReD

529

Can you kind of elaborate what the problem is with

using leading questions?

A. The problem with using leading questions is you

are -- well, one, I can -- I can be accused of coercing the

person talking to me on the other side and spoon feeding them

the, quote, right answer or the answer I want to hear.

In reality, when I'm looking for a response to a

question, I just -- I want -- I want facts. And I want --

I'll take as many facts as I can. And, again, I compare

those facts from the statement made to me with the fact --

the other facts that I have -- I've learned from my

investigation.

Is that why -- just using some examples of things

we heard -- you use questions like "What tools did you use

during these robberies?" as opposed to "Hey, did you use a

gun and a bomb?"

Correct.

And did you wait for Mr. Dean himself to then

volunteer, "Oh, yeah, I used a gun and a bomb"?

Yes.

Q•

And specific to this particular investigation,

were there actually a couple points during the interrogation

where you had given Mr. Dean what I'm going to call sort of

an out, a less inculpatory explanation, and he corrected you,

such as the bomb. You know, "That was a fake bomb, though,

B. Hawkinson - ReD

530

right?" "No, no."

That is correct. That happened in that

conversation.

You testified that Mr. Dean, very early on in the

interview, asked for a lawyer. Did you take any statements

from Mr. Dean after he said "I would like to speak to a

lawyer"?

No, I did not.

Did you recontact Mr. Dean or did Mr. Dean

recontact you?

Mr. Dean recontacted me.

And were the first words out of his mouth, "I can

see you're a good man. I want to clear my conscience. I'm

tired of running"?

Yes.

Throughout the rest of the interview, did you tell

Mr. Dean about six other times, "Look, you don't have to talk

to me"?

Yes.

And what was Mr. Dean's response when you said

That he wanted to continue to talk.

Did Mr. Dean express at various points during the

that?

interview genuine, you know, remorse?

Yes.

B. Hawkinson - ReD

531

The smoke break that defense counsel described,

were you and Mr. Dean talking about all kinds of things that

didn't even necessarily relate to this investigation?

Yes.

Did you talk about what types of tequilas you like

to drink?

Q. Were there even points during the interview where

Yes.

Mr. Dean and investigators were kind of laughing together?

Yes.

And was every single piece of your interaction

with Mr. Dean recorded and turned or to the State and Defense

counsel?

Yes, it was.

Mr. Dean's comment that, you know, he'd thought

16 •

about maybe having the police kill him that day as opposed to

being taken into custody. As part of a larger context of

that portion of the interview, did Mr. Dean state that in a

context of "I want to kill myself right now," or was it more

in a context of "I know everything I've done has caught up

with me right now"?

It was definitely the latter context. It was not

made as a statement -- a suicidal statement where I felt this

need to have him evaluated by -- if anything, it was a

statement of remorse.

APP -103

B. Hawkinson - ReD

532

Defense counsel asked you if Mr. Dean was engaged

in any illegal activity at the time he was arrested. You

stated no.

At the time that Mr. Dean was arrested would it be

fair to say that he was engaging in actions that were

consistent with somebody who was obviously trying to lose the

police?

Yes.

And did Mr. Dean, in fact, effectively lose his

police tail a few times?

Yes, he did.

Q. And did you discuss that with him during the

interview?

I did.

And did Mr. Dean state that he knew the police

were following him and he was trying to shake them?

Yes.

Fair to say you did not find that white Halloween

I did not find the white Halloween mask.

Did Mr. Dean explain why it was you did not find

mask?

that white Halloween mask?

Yes, he told me he tore it up and threw it away in

the garbage.

Talking specifically about the firearm. Did Mr.

APP - 104

B. Hawkinson - ReD

533

Dean make a statement which was "Early on I was using a real

9 mm handgun"?

Yes.

And that September 5th, 2013, robbery, was that

literally the first robbery?

Yes.

No real gun was found?

That is correct.

Why did Mr. Dean say no real gun was found?

Mr. Dean told me that the real gun was with

someone else, and Mr. Dean declined to tell me who that real

gun was with.

Did Mr. Dean very specifically during the

interview tell you that when he was in possession of that

real firearm early on, he always carried a loaded clip with

it?

Yes.

Now, the type of handgun that Mr. Dean described

that he'd been in possession of, would that type of handgun

take a clip?

Yes.

Is that what would essentially constitute the

handgun being loaded, was having a clip with it?

Yes.

Would you agree that someone who, like myself,

APP -105

B. Hawkinson - ReD

534

doesn't know much about firearms, that the most obvious

difference between your real 9 mm handgun and this fake gun,

the most obvious difference is the barrel length, if you were

to look at it?

Yes.

But the real handgun has a barrel that's about

that much longer?

Yeah. It might be a little bit less, but yeah.

I was sitting further back than everyone else.

I'm sure everyone here saw it, but the real handgun has a

longer barrel length?

That is correct.

Now, looking at that, State's Exhibit 66.

Would you also take a look at the handgun that is

shown in the surveillance videos.

This being the surveillance from the Silver Cloud?

That is, yes.

And granted, it's not crystal clear.

But does that qun in Mr. Dean's hand appear to

have a longer barrel than what's admitted as State's 66, the

fake gun found in the storage locker?

Yes.

And the Gresham surveillance, even worse quality,

admittedly. But does that, just based on where Mr. Dean's

hand is on the trigger, does that also appear to have a

APP - 106

B. Hawkinson - ReD

535

longer barrel length than the fake firearm found in the

storage locker, State's Exhibit 66?

Yes.

Throughout your interview with Mr. Dean, did he

ever tell you anything that was obviously a lie?

No.

Did he tell you many details throughout the

interview that were actually confirmable truths?

Yes.

Based on the way he was acting or the context in

which it was described, did you believe, when Mr. Dean was

describing how he had created those explosive devices, did

you believe that what he was describing was an accurate

representation of a real bomb that he had used in these

robberies?

Yes, I did.

And based on Mr. Dean's unwillingness to tell you

the location of that firearm, did you believe, coupled with

the surveillance videos and his statements about the clip and

the description of the firearm, that Mr. Dean had been in

possession of a real loaded firearm at the time he'd

committed those robberies?

MS. PLANK: I have no further questions, Your

Yes.

Honor.

APP -107

S. Ober - D

536

THE COURT: Thank you, sir. You may take your

microphone off and step down.

THE WITNESS: Thank you, Your Honor.

THE COURT: Please call your next witness.

MS. PLANK: Your Honor, the State's next witness

will be investigator Steve Ober.

THE COURT: Thank you.

STEVE OBER,

called as a witness by the State;

having been duly sworn, testified as follows:

THE WITNESS: I do.

THE CLERK: State your name and spell it.

THE WITNESS: Steve, S-T-E-V-E, Ober, 0-13-E-R.

DIRECT EXAMINATION

BY MS. PLANK:

Mr. Ober, how are you employed?

I am an investigator with the Multnomah County

District Attorney's office.

Have you at various points done some minor work in

conjunction with the robbery cases against Mr. Ernest Dean?

I have.

Q. Have you also within the past four months been

APP - 108

Jury Instructions

586

of a firearm.

Count 15 is Robbery in the First Degree. Same

date, same victim. Question is with a firearm. And then

even though you may have answered it already, if you find the

defendant guilty, you also have to answer the specific

question: Did the defendant use or threaten the use of a

firearm?

Count 16 is identical to Count 15 except instead

of a firearm, it's the explosive device, but you still must

answer the question about firearm if the defendant is found

guilty of that charge.

Count 17, the last count, is Robbery in the Second

Degree as to Mr. Ocheltree on September 15th. No questions

as to that one.

It's a long verdict form. There's a lot of things

to go through, but that's what you need to do.

So at this point in time I think it's realistic to

think we're going to get the State's opening argument in.

Probably that's all.

So we're going to do our best to -- and also if

five o'clock comes and you're not finished, we'll pause and

you'll finish it in the morning.

MS. PLANK: Understood, Your Honor.

THE COURT: You have your microphone all set?

MS. PLANK: Thank yoU very much.

APP -109

State's Closing Argument

587

Ladies and gentlemen, I'm sure you've heard more

in the last four days than you ever cared to about what the

term "serial robber" means, what it is, or how the police

determine when they think they have one.

You heard from the detective it's defined by law

enforcement as someone who commits multiple robberies using

the same modus operandi, MO.

This set of events that you all heard about is a

serial robbery. Mr. Dean, seated before you, is the face of

a serial robber.

A serial robber is someone who picks specific

targets. In this case, it was motels that, as you heard,

were far away from police stations, and, in this particular

case, were operated by only one clerk at night, no security

outside. Places like the Silver Cloud and the Holiday Inn in

Gresham.

You heard that there was detailed planning that

went into these events. YoU saw evidence of some of that.

Binoculars, even still all the way in February, sitting in

Mr. Dean's car. Gloves so no fingerprints would be left.

Zip ties that were preloaded so that Mr. Dean could get in

and get out as fast as he could when he committed one of

these offenses. A hat so that these witnesses wouldn't be

able to identify anything. All the way down to the color and

texture of his hair.

APP- no

State's Closing Argument

588

Careful execution. You heard the time of day. It

wasn't just randomly picked at night. It had to be at least

3:00 in the morning, because Mr. Dean wanted to avoid the

possibility of running into anybody that was coming home from

the bars at 2:00, 2:30 in the morning. You heard him

specifically say, "I always hit them between 3:00 and 4:00 in

the morning."

The movement directly back to the lock boxes. You

heard Mr. Dean say, Hey, I like motels, because not only do

they have a till, but they have these drop boxes. There's

two keys. The clerk has one and the others are there, and

they keep all the revenue from the banquets, the restaurants.

The lock boxes, the two-key system. You heard not

just Ms. Fang, but Mr. Ocheltree describe that -- it sounds

like all motels operate on the same system. Two keys have to

be used to access these boxes.

Tying people up in the back so that no patron

would happen to come in and see what was going on. On the

offhand chance that somebody staying in one of these motels

came in through the door at 3:00 in the morning, they weren't

going to see that there was a robbery in progress.

Tying people up in the back room.

Immediately entering with a gun drawn and a bomb

in hand. You can see the proximity and you'll, I'm sure,

watch the video, Mr. Dean and how he enters that front door,

APP -111

State's Closing Argument

589

weapon already drawn. Weapon already drawn.

In this particular case, careful planning did

prevent apprehension for a while. Mr. Dean had sufficient

time to leave the scene of both of these robberies. He had

strategically parked vehicles about a block away. If you

recall his own statement was: That way there would be no

make of car that anybody could connect me with, and the only

information they would have is that I just strolled away from

the scene.

He completely covered all parts of his body so

that nobody could identify him.

Wearing gloves means no fingerprints. Very little

chance of DNA.

Tying the victims up not only made it such that

they couldn't' resist, but it also made it so that it would

delay their calling 9-1-1. They had to at least get their

hands free before they could do anything.

He had a gun and a bomb to prevent any victim from

fighting back, but there is never such thing as a perfect

crime. And Mr. Dean did make missteps that eventually led to

his apprehension and us being in court before you folks.

1) He picked a target that was too unique. You

heard the detective say maybe one or two robberies at a motel

out of 1,300 a year. They're unique.

2) He used a weapon combination that the detective

APP -112

State's Closing Argument

590

said he's never seen before, a gun and a bomb. They knew

right away this was the same person.

He wore the same clothing. If you look at those

photos, even though the one from Gresham is admittedly

blurry, you can see it's the same hat that he's got on.

One of the biggest missteps, leaving two of the

unused zip ties behind in that Gresham robbery. Because

those ties hadn't been placed on victims, they hadn't been

overwhelmed with the victim's DNA. That left trace amounts

of DNA that could be tested by the lab and could be connected

ultimately to Mr. Ernest Dean.

The final misstep -- large misstep being keeping

what I'll refer to as the robbery kit. The bags in the

storage locker that contained the hat, the shirt, the

blue-pocketed pants, the zip ties -- some of them already

preloaded into cuff formation. The fake gun, the black

shoes.

Let's talk about the evidence in this case. The

DNA. And you heard about touch DNA. You heard all the law

enforcement officers say: Hey, look when I submitted this

stuff, I didn't have any expectation that there would be any

testable amounts of a suspect's DNA, but we had no leads. We

had nothing. We submitted it to the lab sort of as a Hail

Mary. That's what you do when you've got nothing."

Robbery No. 1, Portland, 9-5-2013. Two sets of

APP -113

State's Closing Argument

591

used zip ties that were both cut up. These ties were

unfortunately thrown in the trash.

What's of note here is that even the victim's DNA

on one of those ties doesn't show up in a level that's a

detectable form.

There are some minor untestable profiles that are

seen. It could be Mr. Dean.

Robbery No. 2, the Gresham robbery on September

15th, 2013, one of the sets of used zip ties -- remember

there was only one victim, so only one set of used zip ties

comes back to the victim only. Now, we know somebody put

them there. It shows you some of the limitations, of DNA

science.

But what's important -- and as Chrystal Bell

stated, is actually -- you know, makes sense -- is that they

were able to get DNA off of the unused zip ties. They were

able to get them off the unused zip ties because they hadn't

been overwhelmed by other people's -- the victim's DNA,

These unused zip ties, one was a Mr. Dean cannot

be excluded, but one of them was a true match -- a 1 in 10

billion match to Mr. Ernest Dean.

Now, the physical evidence -- the binoculars, the

tools -- like I said, the two robbery kits containing all

these items that were inside, that's additional physical

evidence that you'll have photos and the items themselves if

APP -114

State's Closing Argument

592

you choose to pull them out of the bags and look at them.

This is a piece of important physical evidence

that I'd encourage you to take a look at. You heard the

detective testify that there were several pieces of cell

phones in that storage locker. I assure you Defense counsel

is going to argue to you that these were not real bombs.

Recall the question was asked on

cross-examination: Did you find any incendiary pieces? The

question was never asked on cross-examination: Did you find

any of the pieces consistent with the fabrication of those

bombs? such as the detonation device that Mr. Dean described,

which was a cell phone component.

Physical evidence -- this is from the Silver

Cloud. Here's the hat found in Mr. Dean's storage locker,

which Mr. Dean stated was his.

Here's the entire get-up -- again, the Silver

Cloud -- the hat, the shirt, the blue pants, all located

the same bag together in Mr. Dean's storage locker. Even the

gloves was located in that storage locker.

Again, the Gresham robbery -- clarity's not as

good. The hat. What appears to be the same shirt. Blue

latex gloves. You can see that these pants, although dark in

color, are lighter shades on the top. They look consistent

with those same dark blue pants. And black shoes.

Again, an argument can be made, "Hey, how would

APP -115

State's Closing Argument

593

you know that those are the same black shoes that were used

in the robbery? Well, somebody consider that these black

shoes were in that same bag with all of the other robbery kit

and robbery items.

The physical evidence. The zip ties at the Silver

Cloud and those preloaded zip ties that were found at the

Holiday Inn look just like the zip ties that were located in

Mr. Dean's storage locker.

Bomb making components. Again, tools, super glue.

But the thing of most importance I'd like to call your

attention to, the broken apart cell phones and multiple cell

phones.

Again, I suspect Defense is going to argue that's

a fake gun. No gun was found. Everyone agrees, no gun was

ever found. I submit to you that this firearm seen in these

photos is not the pellet gun that was located later in

February. And I believe that you'll be able to tell it's not

when you get it back in the jury room and have a chance to

handle it yourself, because I believe you will determine that

the barrel of that gun is much shorter than that seen in

these photos.

The confession. The admission to both the Silver

Cloud and the Holiday Inn robberies, but not just a

confession, a confession that contained intimate details:

Following the Oregonian man in. Not just following him in,

APP - 116

State's Closing Argument

594

but saying "I knew that was the first stop and he delivers

papers later." These are items -- this is intimate knowledge

that would only be gathered by following Ronald Skidmore

around on his route.

Going through the lock boxes, describing the two

keys that's required to get into them.

That little detail about "Hey, I took the

Oregonian man's wallet out, but then I put it back." You

heard Mr. Skidmore say that very same thing.

Using a white Halloween mask. You Listen to the

interview you hear the detectives keep calling it a hockey

mask.

Halloween mask."

Ronald Skidmore that said, "No, it looked like a

Scream 3, I think, is how he described it.

It was Mr. Dean himself in his statement that

said, "Yeah, it was a Halloween mask. I got it at the Dollar

Store."

The Holiday Inn. Fewer details, but still

(indiscernible) has got going through the lock boxes. And

remember he said, "I prefer the Holiday Inns that have the

$164 suites," which is exactly what the Holiday Inn in

Gresham is.

The Kidnapping in the Second Degree. We'll got

through the specific charges now.

Keep in mind, you'll get all of this in writing.

The judge has just read it to you. But let's talk about

APP -117

State's Closing Argument

595

these elements as they apply to the evidence in this case.

1)that the act occurred in Multnomah County.

That's not disputed.

2) that the act occurred on or about September 5th

for the Silver Cloud, or the 15th for the Holiday Inn.

Again, these are not disputed.

3) that Ernest Dean, without consent or legal

authority, took Judy Fang, Ronald Skidmore, and Daniel

Ocheltree from one place to another; and that he had the

intent, when doing so, to interfere substantially with their

personal liberty.

THE COURT: Counsel, I want to -- what is it

you're showing the jury now? Are you showing the

instructions that I have? Or a different version?

MS. PLANK: This is with just all of the victims'

names put together.

THE COURT: Okay These are not the instructions.

I want to make sure you understand that, ladies and

gentlemen. That's not the way they're written. And, you

know, I don't know if they're tracking word-for-word. These

are for illustration purposes. You are bound by my

instructions. I haven't seen those. So it's always risky to

(indiscernible) that part.

MS. PLANK: Well -- and, ladies and gentlemen, the

elements here will track the statutory language. What's

State's Closing Argument

596

different is I've combined all of the victims' names to the

for the sake of brevity on the slide.

The taking from one place to another. The State

must prove that the victims were taken from places that are

different. Taking someone from the corner of this room to

right there is not sufficient for a kidnap, admittedly. But

I submit to you taking someone, even if it's only a few feet,

from a place where you can be seen by a public person or

anyone walking by, to a place where you're hidden, like

behind the counter of a motel, that is a substantially

different place.

Mr. Ronald Skidmore, he was taken -- admittedly,

not very far. But he was taken from a place where he was

free to walk around, out in the public area of the lobby, to

back behind that counter. It's significant that Mr. Skidmore

told you, As soon as I got back behind the counter, I thought

it was, quote, curtains for me.

Ms. Judy Fang, she was taken a distance back to

those back managers offices, b

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