434 P.3d 331
Or.2019Background
- Defendant was convicted after trial of multiple offenses: two Siuslaw Bank robberies (June 8 and August 3), kidnapping and murder of Celestino Gutierrez (to steal his car for the August robbery), and related firearms offenses; jury returned death sentence on aggravated murder.
- Key witnesses (Breckenridge and Crabtree) testified for the state under immunity/plea conditions; physical, forensic, and GPS evidence tied defendant to both robberies and the murder.
- State indicted all offenses in a single charging instrument; defendant demurred and alternatively sought severance on joinder and prejudice grounds.
- After conviction, defendant raised 131 assignments of error on direct review; the court addressed several significant unresolved legal questions (joinder pleading, death-qualification, concurrence instructions, penalty-phase questions, and alternate-juror undisclosed bias).
- Trial court denied demurrer/severance, refused concurrence instruction on robbery theories, allowed death-qualification in jury selection, and declined to grant a new trial after discovery of an alternate juror’s undisclosed bias.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Taylor) | Held |
|---|---|---|---|
| Proper joinder / sufficiency of indictment pleading | Factual allegations and cross-references in the indictment adequately show offenses are of similar character or part of a common scheme, so joinder proper. | Indictment failed to expressly allege statutory bases for joinder under ORS 132.560(1)(b); demurrer required. | Affirmed: factual allegations suffice to allege bases for joinder; joinder was possible given related robberies and the murder-for-car scheme. (Warren framework applied.) |
| Severance / substantial prejudice from joinder | Evidence of August crimes would have been admissible in separate June-only trial; no specific prejudice shown. | Joint trial unfairly permitted other-acts evidence and propensity inference; urged severance. | Affirmed: generic fears of propensity are insufficient; defendant failed to show case-specific substantial prejudice. |
| Concurrence instruction on robbery theories | n/a (state proceeded on robbery proofs) | Jury must be instructed to require juror concurrence on which alternative theory of robbery proved (joining/alternative means issue). | Declined to decide the broader rule; on this record refusal harmless — no reasonable likelihood verdict differed given defense strategy and evidence. |
| Death-qualification of jurors | Death-qualification permitted; federal and Oregon precedent allow excluding jurors who cannot impose death. | Death-qualifying produces conviction-prone juries; constitutional challenge under state/federal provisions. | Rejected: Lockhart and Oregon precedent control; defendant failed to develop record to overturn those precedents. |
| Penalty-question re: "continuing threat" (propensity) | Jury may consider future dangerousness as part of sentencing determination; statute asks about probability defendant would commit violent acts. | Second statutory question punishes defendant for propensity to be violent, violating Eighth Amendment (status/proclivity). | Rejected: considering future dangerousness at penalty phase is constitutionally permissible (Simmons; Robinson distinguished). |
| Jury consideration of death during Governor’s moratorium | Court instructed jurors that moratorium grants temporary reprieves but jurors should assume death sentences will ultimately be carried out. | Moratorium would mislead jurors and violate Caldwell by making them think final responsibility lies elsewhere. | Rejected: preliminary instruction cured Caldwell concern; jurors were told their decision mattered and death could be carried out. |
| Undisclosed bias by alternate juror (post-judgment) | Alternate juror’s email revealed extra-judicial knowledge and fixed death-penalty view; urged presumption that presence of biased alternate tainted verdict -> new trial. | Trial court’s remand questioning showed alternates did not participate in deliberations and no evidence that alternate disclosed bias to empaneled jurors. | No new trial: biased alternate would have warranted exclusion for cause, but no evidence she influenced deliberating jurors; court declined to extend presumption of prejudice to an undisclosed biased alternate absent proof of exposure. |
Key Cases Cited
- State v. Warren, 364 Or. 105, 430 P.3d 1036 (2018) (joinder: state must show joinder possible and allege basis; factual allegations can suffice)
- Lockhart v. McCree, 476 U.S. 162 (1986) (States may death-qualify juries in capital cases)
- Robinson v. California, 370 U.S. 660 (1962) (punishing status is cruel and unusual)
- Simmons v. South Carolina, 512 U.S. 154 (1994) (future dangerousness is relevant at capital sentencing)
- Caldwell v. Mississippi, 472 U.S. 320 (1985) (sentencer must not be led to believe responsibility rests elsewhere)
- Remmer v. United States, 347 U.S. 227 (1954) (private communication with juror is presumptively prejudicial)
- State v. Sundberg, 349 Or. 608, 247 P.3d 1213 (2011) (outside influences/anonymity may create great risk of prejudice)
- State v. Pratt, 316 Or. 561, 853 P.2d 827 (1993) (no new trial where alternate’s improper comment did not reach deliberating jurors)
- State v. Ashkins, 357 Or. 642, 357 P.3d 490 (2015) (concurrence instruction analysis; harmlessness test for instructions)