349 P.3d 597
Or. Ct. App.2015Background
- Defendant was convicted by a jury of solicitation to commit aggravated murder (among other convictions) for soliciting the same victim previously in 2009; earlier conviction and investigation facts involved payments to an informant, firearm with serial removed, and related evidence.
- While incarcerated after the earlier trial, defendant discussed the victim with cellmate Barnes, offered addresses and payment plans, and was recorded asking Barnes to “take [the victim] out.” Barnes cooperated with authorities.
- At trial the state sought to admit evidence of defendant’s prior 2009 conviction and related interrogation/investigation under OEC 404(3) (other-acts) to prove intent; the state acknowledged the evidence was highly prejudicial but argued probative value outweighed prejudice under Johns balancing.
- Defendant conceded relevance to intent at the in limine hearing but objected that admission would be unfairly prejudicial and sought a limiting instruction; the court admitted the other-acts evidence after applying the Johns factors and gave a limiting instruction during trial and before deliberations.
- On appeal defendant argued (1) under Leistiko and Pitt the evidence was inadmissible to prove intent absent a stipulation or a conditional-relevance instruction and (2) admission violated due process as unfairly prejudicial. He also challenged nonunanimous juries and sought new counsel in a pro se supplemental brief.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of other-acts to prove intent under Leistiko/Pitt | Evidence of prior solicitation is relevant to intent and admissible | Admission improper because defendant never stipulated and court failed to give conditional-relevance instruction | Defendant failed to preserve this Leistiko/Pitt claim on appeal; appellant did not request plain-error review, so court did not reach plain-error analysis |
| Due process / unfair prejudice balancing of other-acts evidence | Johns-factor balancing supports admission; probative value not substantially outweighed by prejudice | Evidence was highly prejudicial and minimally probative, denying a fair trial | Trial court did not abuse its discretion; admission affirmed |
| Challenge to nonunanimous jury verdicts | N/A (state defended trial practice) | Nonunanimous verdicts unconstitutional | Rejected without further discussion; Bowen cited |
| Denial of request for substitute counsel (supplemental pro se brief) | N/A | Trial court abused discretion by denying substitute counsel | Rejected without published discussion |
Key Cases Cited
- State v. Leistiko, 352 Or 172 (Oregon Supreme Court decision on conditional relevance of other-acts to prove intent)
- State v. Pitt, 352 Or 566 (Oregon Supreme Court case addressing other-acts evidence and intent)
- State v. Johns, 301 Or 535 (Oregon Supreme Court factors for assessing probative value of prior misconduct for state of mind)
- State v. Williams, 357 Or 1 (Oregon Supreme Court holding that OEC 404(4) supersedes OEC 404(3) and relevant evidence under 404(4) is subject to OEC 403 balancing)
- State v. Bowen, 215 Or App 199 (Oregon Court of Appeals decision cited regarding nonunanimous jury verdicts)