*1 Argued 6, 2007,judgment and sentence of and submitted November of conviction 31, 2008 death affirmed December OREGON,
STATE OF Respondent, v. DAVIS,
MICHAEL ANDRE Appellant.
(CC S053071) SC 020633788;
Robin the cause for With her on the briefs were argued appellant. Director, Swenson, Gartlan, Executive Peter Chief Ingrid Allen, Defender, Defender, and Meredith Public Deputy *4 Office of Public Defense Services. General, Salem, Thompson, Attorney
David B. Assistant the cause With him on the brief were respondent. argued General, Williams, Mary H. Solicitor Hardy Myers, Attorney
552-c Thompson, Kaye Timothy General, and McDonald, David B. Sylwester, Vogelsong, Attorneys A. and Heather Assistant General.
LINDER, J. opinion. Walters, J., concurred and filed an *5 552-d
LINDER, J. Phillips 3, Gerald and Belinda 1991,
On November Flannigan found dead in Room 24 at the Ara’Bel Motel were investigated Portland. Detectives the case several again up murders, 1996, weeks after the but came investigation Following with no solid leads until 2002. the its charged case in state Michael Andre Davis (defendant) Edgar Lee Foreman with several counts of aggravated Phillips Flannigan.1 murder for the deaths of unsuccessfully trial, Before defendant and Foreman moved charges ground preindictment delay. to dismiss the *6 charges against trial, The cases severed were for and the prejudice. Foreman were dismissed without case The contin- against jury ued and, 28, defendant on a 2005, October found guilty penalty-phase proceeding, him of all counts. After a the trial court sentenced defendant death.
The case is now before this court on automatic and judgment direct review of defendant’s of conviction and sen- 138.012(1). assign- tence of ORS death. Defendant 14 raises organizes categories: error, ments of which he into four (1) (2) (3) pretrial during issues; trial; issues raised constitu- (SB) (4) tionality (1997); of Bill Senate 936 and constitution- ality Oregon’s death-penalty of view, scheme. In our four of (1) assignments defendant’s of merit error discussion: defen- defen- defen- denying dant’s assertion that the trial court erred in (2) preindictment delay; dant’s motion to dismiss for dant’s assertion that the trial court erred in denying defense (3) counsel’s motions to withdraw; defendant’s assertion that denying the trial court erred in trial based on the ment to the defendant’s motion for a mis- prosecutor’s opening reference in his state- testimony appear of a witness who failed to (4) trial; and defendant’s assertion that the trial court erred 1 originally 16,2002; The July state indicted and defendant Foreman on due to case, developments 8, further 2002, in the that indictment was On dismissed. November collectively eight aggra defendant and Foreman were reindicted on counts of felony aggravated vated murder with a firearm and four counts of murder with a firearm, individually felony and Foreman was indicted two additional counts of review, operative purposes pleading subsequent murder. For this is indictment of for those first 12 counts.
554 police refusing the contents of evidence of to admit reject report.2 below, set forth we For the reasons and sen- and, therefore, affirm convictions of error claims of death. tence PROCEDURAL BACKGROUND
I. FACTS AND light most favorable to the evidence in We view jury guilty. See State state, found because (2006), 489, den, P3d 272 cert Bowen, 487, 135 340 Or v. standard). (2007) Sunday, (stating On US manager the Ara’Bel Motel noticed 3,1991, the November registered open. That room the door Room was was Flannigan. manager looked and saw a The inside to Belinda immediately manager against the man wall. bloodied entering police police. Upon room, found called Flannigan. Phillips Belinda the bodies Gerald the lead on the Hill served as detective Detective joined case, and and Yamasaki her. Detectives Norman videotaped photographed and Detectives and criminalists investigators extensively. room, found the scene Inside casings, fired from shell all of which had been four .45 caliber the same (The spent pistol, spent three fourth bullets. body.) Investigators Phillips’s found also bullet later recently purchased personal food found several items fingerprints products, in the found no useful room. but parked gold Benz in front of also Mercedes Police Room which tested fingerprints, belonged Phillips’s wife, *7 nothing up Detective Hill interviewed came with useful. but reported heard 21, that had the resident of Room who she gunshot noise that sounded like a sometime after loud night pinpoint p.m. before, could not the exact 10:00 but time. state the bodies when the medical the medical
Based on the of investigator scene, at the examiner’s arrived p.m. placed the time of death between 8:20 and examiner assignments and have each of other of error each We considered assignments supporting arguments. of either have been Those other error of defendant, against previous this resolved were not discussed court in cases and review, the issues preserved for are not well taken. Further discussion of would or bench, defendant, public, the the bar. benefit or p.m. 2, 10:20 on 1991. The medical examiner November performed autopsies Flannigan Phillips on both and on partially Phillips’s digested Based November 4. on the foodin concerning stomach, the time combined with information Phillips eaten, that last had examiner concluded medical 8:20 Phillips p.m. p.m. that had died and on between 10:20 November 2. The medical examiner undigested unable use the Flannigan’s
food in stomach to assess time of her death, because the had medical examiner no information about last when she had eaten.
According outgoing telephone record of calls occupants from the Ara’Bel Motel, the Room 23 made two early morning 3, 9-1-1 calls in the hours November 1991. The first had occurred 2:55 and the a.m. second had reg- occurred at 2:58 a.m. Olivia and Paul Gattermeir were istered to Room each had 9-1-1 and of them called report “pops” gunfire coming like sounded from room tape recording next door. Detective Hill obtained a 9-1-1 calls and later interviewed about call. Olivia her Hill memorialized the content of that report interview in written report 7,1991. November That recounts that Olivia told Hill that she and Paul had back come from dinner p.m. p.m. between 8:00 they and and 10:00 on November 2 “pops” approximately had heard loud 30 to 45 minutes after dinner, returned from well before the 9-1-1 first placed. recording missing call was of the 9-1-1 calls was at the time that defendant was indicted never has been recovered. shortly Hill
Detective interviewed defendant after Flannigan the murders and learned that he met had some- (Five Spot Spot), time in October 1991 at the Five Tavern living where time, she worked. At the defendant had been Flannigan began dating, with Foreman. Defendant they eventually Bynum, apartment both moved into the of Eddie According
one defendant’s associates. to defen- Flannigan’s days Flannigan dant, six murder, before did not apartment return to the at the end of her shift.3 Defendant Flannigan relationship later learned her resumed into [3] Registration Room 24 on October records from the Ara’Bel Motel 30,1991, three days before her murder. show Flannigan checked *8 Flannigan Phillips. to ex-boyfriend, returned her
with clothing. days apartment retrieve her Bynum’s later to three Flannigan apartment when at the Defendant, who was returned, told her get she her clothes when could that she argued They debt, about repaid owed him. that she $500 clothing. Flannigan her left on foot without and According Hill, on interview with to defendant’s Flannigan argument, following had called morning apartment Bynum’s him that she and informed at defendant early apartment clothing. arrived at the She needed her according Toyota defendant, she said to that, in a afternoon they bought talked Phillips said that her. Defendant had Flannigan cloth- some of her retrieved while, that for a little ing, night, defen- Later that for work. she then left and that again. Flannigan speak Spot to with to the Five dant went Flannigan had told Hill Defendant further (the day 2, 1991, on November 4:00 a.m. called him at about murders) Flannigan spoken for and had and that he p.m. that approximately day, Flannigan and 1:00 Between noon three hours. Bynum’s apartment. to see defendant went Flannigan’s park, They apparently car broke to a but drove evening, they get Flannigan so to had to work down. called Bynum picked Bynum them a ride. asked him for Flannigan up dropped Ara’Bel Motel. off at the Bynum planned had Hill that he and Defendant told profes- night go a local a friend’s house to watch to game television, that he decided but sional basketball apartment Bynum dropped go him off at their home instead. Bynum p.m. p.m. Defendant said that and 6:45 6:30 between during apartment halftime, between him at the had called missing p.m., p.m. him that he wasn’t to tell and 8:30 8:00 gone anything out. cable TV connection because the p.m., p.m. he 10:00 and 10:30 said between Defendant Safeway bought Bynum’s store, beer cars to a drove one apartment. cigarettes, pack to the and returned and a Bynum there. A short time returned, When apartment a friend. at the later, Foreman arrived to the then went Foreman, friend, According nightclub. defendant, Diner, York New remained there They closing, a.m. was about 2:30 until which Denny’s Lyon’s then then tried to eat at a restaurant and at a According restaurant, but the restaurants were too crowded. Bynum’s apartment defendant, he returned between and 4:00 a.m. on 3:00 a.m. November 3.
Bynum’s to Hill statements were consistent with He confirmed that he and defendant statements. dropped Flannigan had off at the Ara’Bel Motel between p.m. p.m. Bynum 6:00 and 6:30 on 2. also con- November telephoned apartment firmed that he had at the defendant during game, halftime of the which was basketball sometime p.m. p.m. Bynum that, 8:00 and 8:30 further between stated p.m. p.m., he returned when home between 10:15 and 10:30 apartment defendant was not at Bynum’s and had taken one permission. Bynum cars without called Foreman to but, ask whereabouts, did, about defendant’s he defendant carrying walked a 40-ounce bottle of beer.
Detective Hill 6, interviewed Foreman on November that, 2,1991, 1991. Foreman stated on November he and two Lowery Payne planned go friends —Josh Erik and to —had game the basketball at halftime and watch it in the arena. they get that, told Foreman game, they Hill when could into the Spot p.m. went to the Five and between 9:00 Flannigan p.m., dancing. 9:15 where was Foreman and his Spot Flannigan left friends the Five soon after finished her p.m. p.m., Safeway shift, around and 9:30 9:45 went and to a they dropped and store then to a that, 7-Eleven store. After Payne University off at Portland, went to a Bynum’s apartment McDonald’s, and then went to sometime p.m. p.m. pick up between 10:30 and 11:30 defendant. group, including Foreman stated that the defendant, then went to the New York Diner and remained there until it at closed about 2:30 a.m. Foreman Hill that, told after leav- ing they attempted Lyon’s Diner, the New York to eat at and Denny’s, then but restaurants were too crowded. they Bynum’s Foreman stated that took defendant back to apartment between a.m. 3, 4:00 and 4:30 a.m. on November 1991.
Following up story, on Foreman’s Detective Hill Lowery Lowery’s descrip- 8, interviewed on November 1991. description, tion of events was consistent with Foreman’s at Bynum’s defendant up picked they including November 11:00 p.m. and p.m. 10:30 between apartment at the him off they dropped him until were and On several 3. a.m. on November 4:00 at around apartment for an Payne Hill contact attempted occasions, Detective him. not locate interview, could but inter- 1991, Detective Norman On November Spot, of the Five who Cline, regular patron Gary viewed Norman Cline informed Flannigan. knew defendant 31, 1991, days two before of October evening on the Flannigan death, he had seen Flannigan’s Flannigan During argument, lot. in the parking arguing anymore to see him did not want that she told the Five Spot. her at him to visit did not want that she hearing after visibly upset Cline, defendant According to defen- but couple, up Cline walked information. talk said that he would inside and go Cline to back dant told inside. went back him later. Cline *10 that defen- that he knew informed Norman Cline week, during prior arguing had been Flannigan dant and defen- her with relationship off breaking was Flannigan that did that she had told a bartender Flannigan that dant, and had also Cline anymore. at the Five Spot defendant not want to get with defendant breaking up was Flannigan heard that Cline further boyfriend, Phillips. her old together with back had argued after defendant informed Norman ending Flannigan around” over Flannigan, “moping he was that dancers like defendant Cline told relationship. their any- about it worry it and to not not worth Flannigan were defendant, he had said to that more. Cline told Norman don’t wise you up.” ass if here, your I’m beat gonna “Come out and defendant fol- out the door then started to walk Cline defendant outside, Cline heard As continued lowed. ask, ‘You know and then on a pistol the hammer back slide a .45 caliber it sounded like replied that is?” Cline what they got confirmed. When defendant right,” ‘You’re pistol. lot, defendant parking and into the the door just outside it said, good thing then “It’s a Cline, who pistol showed out of the cartridge ejected Defendant loaded.” isn’t said, door, and near ground landed on the which weapon, friends.” thing we’re good “It’s “Well, replied, it is.” Cline gun back, then tucked the into his behind his Defendant belt he and and Cline went back inside.4 Cline told Norman that pistol he knew that defendant’s had was a .45 caliber because he spent military time in the where he seen .45 caliber pistols. automatic largely statements,
Based on Cline’s Norman person, obtained a warrant to search defendant’s Foreman’s (where resided)5 residence then and defendant Foreman’s generally SUV, the vehicle in which Foreman drove defen- around. 25, 1991, dant On November Norman and seven spent searching hour weapon, other officers an and a half three those for a ammunition, areas .45 caliber associated and unsuccessful, however, other items. The search was and the any did officers not seize evidence. investigation Then, of the case stalled. in late person Sammy apparently
1996, a Grihm, named who facing charges, unrelated criminal disclosed information to police about defendant’s involvement in the murders.6 Grihm staying Spann, been sister, had who was in a in Portland with Tina
sporadic relationship with defendant and had years with him lived for several in the mid-1990s. Grihm told detectives he had overheard two conversations in which Flannigan Spann Phillips, talked defendant about killing defendant had admitted them. according Specifically, Grihm, the first conver- Spann something sation, of, had said to the effect you people,” “I know those killed two and defendant “yeah,” confirming replied that he had. Grihm further reported just that defendant had said two victims Cline, According pick up cartridge did after their exchange parking Spot. hearing pretrial in the the Five lot of At the on defendant’s preindictment delay, go motion to dismiss for Norman testified that he did not *11 interviewing during investigation the to look tavern for it after Cline the ofthe case cartridge proba 1991. November Norman admitted would have been a evidence, numbers, manufacturer, piece especially ejection if pattern tive its and casings those of matched found Room 24. 5 1991, subsequent 11, In a with conversation Detective Hill on November Bynum defendant, breaking up Flannigan, likewise told Hill that after with had Bynum’s apartment out of and moved back in with Foreman. 1996, plane In killed in Detective Hill was crash while on vacation. Other investigation. detectives therefore took over the Flannigan had and wine from the store had returned initially, he Defendant also said “all laid out.” and food referring Phillips, punk,” going to to “the but not shoot was Phillips him. Defendant him, came at shot when Flannigan slapped afterwards, and, shot then said that he that he told the detectives later her in the head. Grihm twice spoke Spann statements and that she about defendant’s people. killed She told that defendant had two confirmed Courtesy place had taken Grihm that murders Inn.7 conversation, in Grihm had heard
The second which Flannigan, killing to was shorter. Grihm defendant admit Spann bedroom, come and order into heard defendant you’ll Spann something replied better, “I or of, to the effect replied: you “Yeah, did I kill me like that bitch.” Defendant going yeah, I times, lie, it, two I ain’t did I shot that bitch period[.]” it, did those
After Grihm related conversations Spann Spann. not detectives, the detectives interviewed did Spann agreed polygraph up to a back Grihm’s statements. Ultimately, examination, were but the results inconclusive. they suspected believe, were unsure who to but detectives being embellishing. truthful and that Grihm was investigation point, At that of the case stalled again. April until The next break in the case did not come time, inmate 2002. At that detectives learned from an in the Oregon Penitentiary State that defendant had admitted to Flannigan inmate, Teal, that he had killed another Ronald May Phillips. interviewed Teal on 2002. Detectives he Teal informed the detectives that had been defendant’s together. weightlifting partner prison when were in Flannigan Teal said that defendant had told him that had Bynum purchased $70,000 stolen from Mercedes Phillips. According Teal, Benz for defendant characterized referring Bynum, Eddie,” as a hit man for “Fast himself in detail he had and defendant described how murdered detectives Flannigan Phillips. interviewing Teal, After Courtesy murders, the Ara’Bel Motel was renamed the Sometime after Inn. *12 again determine whether he interviewed defendant stood by original that he had made in 1991 to statements end, Hill. that Detective went line line Detective To Winn through report interview, Hill’s defendant’s and of defendant report in confirmed that his statements that were correct. Bynum, Detectives also contacted who was then drug They trafficking. under indictment for interviewed him Initially, Bynum confirmed 5, on June 2002. the statements day, he that had made to detectives in The next 1991. how- Bynum attorney negoti- ever, and his met detectives to with agree deal in in ate a which the state would to a reduction Bynum’s drug charge exchange trafficking sentence on the participation against for his case defendant for the Flannigan Phillips. meeting, Bynum and murders At that changed story regard: reported in one he that he could not telephoned during remember whether had he defendant half- game. Bynum longer Thus, time basketball no corrob- p.m. p.m. orated defendant’s on the accuracy from whereabouts 8:00 to 8:30 night Bynum of the murders. otherwise confirmed the original Bynum
of his added, however, statements. that, after the detectives, 1991 interview with he asked Flannigan Phillips defendant whether he had killed and and Bynum said, “Yeah, defendant I killed them, Cuz.” further reported that defendant made a to the reference fact that Bynum’s family easily Flannigan be could killed as and Phillips Bynum interpreted were killed. that comment aas threat. July
On 8, 2002, detectives interviewed another George part inmate, weightlifting Modaff, who had been defendant’s prison.
circle Modaff confirmed that Teal was regular partner workout and that defendant and very Teal were close. Modaff further informed detectives having that, on one occasion, defendant had talked about problems pimp girl, referring with a black and a white Phillips Flannigan, got told Modaff “I them motherfuckers.” Modaff learned from defendant that both reported victims had been shot. Modaff also their weightlifting grew Stanley circle to include Ford and Eddie why Lee Davis. Modaff asked defendant he had let Ford and join group, replied something Davis and defendant to the keep your your of, effect “You friends close, and enemies even by that, meant what he asked defendant closer.” Modaff explained Davis’s he had killed a member of Phillips family. Investigators later confirmed Lee to Eddie Davis. related developments, light Winn Detective
In of those new Payne, down who had been efforts to track renewed night whom Detective murders, but on the 1991. discov- interview in Winn could not locate for an Hill Payne Finland, and Helsinki, interviewed was in ered Payne telephone bim 2002. informed on October over the *13 night murders, had been that, on the of the he the detective Lowery, per- defendant, and fifth with a in Foreman’s SUV that had remember, could and Foreman son, whom he Payne driving. defendant had been stated that been extremely Flannigan angry upset had sto- and over that $500 buy a car man. Accord- from him and used to for another len ing “ranting raving” Payne, while was and to defendant loading Flannigan, going kill he was he was to about how telling pistol that, in the and the others vehicle .45 caliber they “ya’ll they dropped where,” at know once him off “get place seen” within the next 45 minutes some to be better to establish an Lowery Payne and
alibi. that Foreman remembered killing Flannigan. out of After tried to talk defendant dropped failing they effort, in that defendant off between p.m. Payne p.m. where, was also 9:00 and 10:00 at motel Flannigan taking Payne aware, known for men. was dropped within remembered that defendant wanted to be that time the Five off Flannigan at finish her shift frame because would Payne Spot that, around then. told detective they only got motel, at once car. arrived out
Payne said he of that remembered events night rarely anyone upset because he had seen before raging going images and the of defendant about how he was Flannigan, loading gun talking kill and to having while about get away, Payne
45 minutes to stuck in his mind. was actually go through so convinced that defendant would killing Flannigan that to his he demanded to be taken back dormitory University of after at the Portland Finally, dropped Payne at the motel. told the detective off shortly he in the that, after had learned murders about telephone news, Foreman called him and then handed the to Payne defendant, threatened to kill if he talked to the who police. Payne explained any that, call, after that he avoided police. contact with
Payne testify from to returned Portland Finland grand jury date, before the 7,2002. on November Also on prosecutor Lowery.8 and detectives reinterviewed Lowery, describing 2, events of November previously revealed several details he had not told police. Specifically, failing get he said after into the game halftime, basketball he and Foreman had met defen- parking dant in the of a lot bar across the street from the p.m. According p.m. Ara’Bel Motel between 10:00 9:00 Lowery, briefly defendant and Foreman then talked both gone up Lowery pay were minutes. to 10 did not attention they got to where went. car, When Foreman back into the “disco[m]bobulated Foreman was said, and confused” and referring defendant, [defendant], “Fuck let him do what- going ever he’s to do. out of We’re here.”
According Lowery, they then drove to the University Payne dropped defendant, of Portland without off dormitory, at his While and went to the York New Diner. they phone, there, were defendant called Foreman his cell pick up Bynum’s apartment. left to him at On the *14 way, Lowery just Foreman told that defendant had killed two people. They picked up defendant and returned to the New they stayed closing. looking Diner, York where until After for place Bynum’s some to eat, took defendant back apartment. Lowery police also told detectives after ini- tially interviewed defendant about the in 1991, murders Lowery agreed and Foreman constructed an alibi and to tell police everything happened the truth about that had night, trip parking but leave out the to the lot across from Lowery the Ara’Bel Motel. said that defendant later thanked 8 Lowery’s 7, 2002, day jury grand hearing, interview on November testifying grand Lowery Portland, was not jury, recorded. After before the left but 2003, January 28, again. he returned on to be interviewed Detective Winn was present pretrial hearing, at both interviews. At defendant’s his based on recollec interviews, Lowery’s Thus, tion of Lowery’s those Winn testified about statements. statements, record, part police as related in the in of consist statements made to after defendant had been indicted. Lowery, Payne, providing
him also testified an like for alibi. grand jury 7, 2002.9 on November before the grand jury 8, defendant on November The indicted aggravated eight a murder with firearm 2002, counts of felony aggravated a firearm murder with counts of and four explained Flannigan Phillips. As in of the murders for lengthy pretrial proceedings, the case after below, detail against jury 11, on October to trial before went jury found defendant 2005, and, on October 2005. Following penalty-phase proceeding, guilty all counts. of court sentenced defendant death. the trial
II. DISCUSSION earlier, noted address four of defendant’s As we preindict- assignments First, of error. we discuss whether delay required grant trial court to ment the trial Second, to dismiss. we address whether court motion denying to withdraw. in defense counsel’s motions erred prosecutor’s reference Third, we discuss whether testimony expected opening of a statement to the witness appear required a mistrial the witness failed to for when Finally, we defendant’s claim that trial trial. address refusing to admit evidence of the contents of a court erred police report. Delay Preindictment
A. argues assignment error, In his first denying that the trial court erred in his motion to dismiss for preindictment delay. expressly has This court not identified applies of a motion to what standard review the denial preindictment delay. posi parties Both take the dismiss for ruling this court the trial tion that reviews court’s errors Additionally, agree that standard. of law. We disputed extent that the trial court resolved factual issues in ruling, express making its we will not disturb the trial court’s text, to the described in the detectives also inter In addition individuals people either come with defendant over viewed several other who had into contact detail, admitted, years varying degrees and to whom defendant that he *15 through that defendant had had committed the murders or had heard others com mitted the murders.
565
implicit
findings
long
findings
sup
or
factual
as those
are
ported by the evidence.
Gladden,
See Ball v.
Before defendant moved to dismiss the indict ground 11-year period ment on the that the between the date of the murders and the date of his indictment violated his right process to due under the Fifth and Fourteenth Amend support ments to the United States Constitution.10 In of his urged “may motion, defendant that the state have acted to gain advantage” improperly delayed tactical or otherwise indicting urged delay him. Defendant further prejudice ability resulted in actual to his to mount an effec support prejudice, tive In defense. of his claim of defendant potential identified several items of evidence that were no items fell into two longer evidentiary available to him. Those (1) categories: procured by police items in 1991 that now (2) missing; are items or information that defendant through diligent claimed should or could have been obtained investigation, longer not, but were and are no available.
Following pretrial hearing, an extensive the trial findings prosecution’s court made detailed of fact about the investigatory during 11-year period efforts between the making findings, murders and the indictment. After those legal the trial court identified the standard that it believed applied to defendant’s motion and concluded that defendant showing necessary had failed to make for dismissal ofthe charges against prosecutorial delay: him based on prejudice “Ibelievethe standard is substantial and that * * * delay, negligence, effect, either recklessness, court, argued In the trial theory defendant also for dismissal on the that the delay indicting rights speedy state’s him violated his to a trial under both Article I, Oregon Constitution, section and under the Sixth Amendment to the review, United acknowledges States Constitution. On purposes defendant speedy guarantees, of both the state and federal elapsing prior trial "the time to an charge arrest or a formal determining is not taken into consideration in whether a given speedy Serrell, 216, 219, 507 has been trial.” State v. 265 Or P2d (1973); Marion, 307, 313, 92 455, 30 see also United States v. 404 US S Ct L Ed (1971) (“[i]n view, however, 2d 468 speedy provision our the Sixth Amendment trial ” application putative has no way ‘accused,’ until the defendant in some becomes an indictment). case, which predicated occurs after In only this defendant’s claim is delay court, that occurred before his arrest and indictment. In his brief to this presses only process argument. his federal due advantage. tactical being intent[,] purpose had the
or *16 H= * what I case, having factually found particular
“In this hugely a years eleven is found, recognizing that have long First of motion to dismiss. time, deny going I am conspir- a here. There was all, negligence even find I cannot really tragic. kind of that was acy of circumstances one could things that “I a distinction between draw might have been done or retrospect should have argue in weight to investigation. Those are issues of in an been done proceeds and if the case investigation when given to the be are cross-examined. to trial and witnesses solidity [defendant’s] of “I find that due to * * * Everyone’s statements fell alibis[.] Mr. Foreman’s police that the together. I don’t see together and held [defendant] in the sense that investigate obligation an * * * suggested[.] has Hill was in time until ’96when Detective point “At that it until 2002 really developed, and was not nothing killed change; that witnesses came stories started to people’s that forward whose motives That’s a— I will not comment on. a fact finder at trial issue. any there was hint other
“But it not until then that was sug- relationship that would have than that of a broken fact, was, person in who had com- [defendant] gested mitted the murders. it, being time frames suspected “I’m but the people sure basis, be, reason, there was no no they
what were known in faith good the State could have said really, upon which proved [defendant] at that time could have beyond committed the homicides person who reasonable doubt. delay find that the was intentional or
“So I would not signifi- prejudice Substantial means negligent. reckless or ability another the of cant. It means that somehow or compromised himself has been [defendant] to defend virtually way in that makes it through no fault of his own to defend himself. impossible different from what only thing
“The in this case that is investigation quality happens many cases terms the loss of the 911 passage of time has caused is that tape. We do know the time. We do have interviews with caller, companion.[11] and the caller’s
“I could not find that supporting absence of testimony evidence other than the of other witnesses of alibi[,] seizing things [defendant’s] [t]he not from Room in the pictures, testimony Ara’Bel of which we have and the criminalists, prejudice constitutes a substantial [defendant].” quoted specif-
As the shows, material the trial court ically delay indicting found that the state’s defendant was negligent. not intentional, reckless, Instead, or the trial court delay found that the was due to the state’s reasonable efforts investigate to bring charges. the case and to obtain sufficient evidence to addition,
In the trial court concluded that substantially prejudiced defendant had not been defense of the case.12 in his *17 making findings After conclusions, those and party trial court asked if either wanted further factual find- ings any bearing on issues on the motion to dismiss. The state requested finding probable that the court make a as to when cause existed to believe that defendant had committed the issue, murders. On that and based on the evidence adduced hearing, probable at the the state submitted that cause did agreed not exist until the summer of2002. The trial court and affirmatively probable developed found that cause between April police Bynum, and June 2002, of when reinterviewed Lowery, Davis, and Foreman. The trial court further explained that the “real break” in the state’s case came in 11 investigator Defendant’s interviewed both Paul and Olivia Gattermeir August September 2003, respectively, concerning their observation of the Motel, including placement events at the Ara’Bel their of the 9-1-1 calls. Both inter pretrial views were hearing recorded and admitted into evidence at the on defen dant’s motion to dismiss. 12 urges applied Defendant legal prejudice that the trial court a test for that placed great defendant, by requiring too a burden on defendant to show that it was “virtually impossible legal to defend himself.” If that were the standard that the applied, agree trial court we would that was incorrect. When trial court’s com legal toto, however, ments about the standard are considered in we understand the trial prejudice court to have followed the substantial and actual standard articu by events, although lated federal courts. In all findings we defer to the trial court’s fact, prejudice is, end, legal question. historical an assessment of in the a Later opinion, analyze in this prejudice we defendant’s claim of without deference to the legal trial court’s recital of the standard. 568 defendant had
April learned that the state 2002, when making committing to Teal. After the murders admitted findings, the trial court denied additional those delay. preindictment for to dismiss motion parties’ fundamental court, in this On review legal applies dispute to determine when that test is over process delay preindictment a federal due the level of rises to agree regard, parties the test has violation. In prejudice prongs: the reasons for the substantial two disagree, parties delay. a defendant however, whether The intentionally delayed government must show indicting impermissible purpose, such an the defendant for advantage. Citing Barken, 412 U.S. v. a tactical as to obtain (9th minority 2005), represents a Cir which 1131, F3d argues among courts, circuit the federal view necessary the test. element of misconduct is not intentional analysis requires urges, the correct bal Instead, defendant any prejudice delay against ancing actual the reasons for delay those the which lie at the base “offends defendant to determine whether to fundamental conceptions justice (internal quotes political institutions.” Id. our civil and citations (4th omitted); Angelone, 900, 905 94 F3d see also Jones v. test). 1996) (following state, similar other Cir among majority the lower federal on the view hand, relies requires can demonstrate a defendant who courts, which gov prejudice that the to his defense to further show actual advantage intentionally delayed gain or a tactical ernment e.g., improper purpose. See, v. other U.S. to advance some (5th 1996), den, cert Crouch, F3d 1511-12 Cir (1997) discussing (citing cases and rationale US 1076 majority legal adopting of the federal test endorsed *18 courts). circuit only has addressed a claimed
This court
once before
delay.
preindictment
process
That
on
due
violation based
ago,
years
Serrell,
in State v.
265 Or
occurred more than 30
(1973).
case,
In that
the defendant sold
216,
“[I]t is note here that the statute of limita- rights fully appellees’ respect tions does not define the Thus, occurring prior to the events to indictment. Government concedes that the Due Clause Process of require Amendment would dismissal indictment Fifth of pre-indictment delay it were shown at trial that the in this if prejudice rights case caused substantial to a appellees’ trial and the delay was an intentional device to fair gain advantage However, tactical over the accused. we need not, now, and could not determine when and in cir- what prejudice pre-accusation cumstances actual resulting from delays requires the dismissal of the Actual prosecution. prejudice may to the of a defense criminal case result from necessary delay; shortest and most no one suggests every delay-caused detriment case to a defendant’s abort a prosecution. should sound criminal To accommodate the justice rights
administration to the of the defen- a necessarily dant to fair trial will judg- involve delicate ment based on the circumstances of each case. It be would juncture at attempt unwise this to forecast our decision in such cases.”
(Internal
added.)
omitted;
citations
emphasis
After quoting
Marion,
from
this court
in Serrell declared
any
“[i]n
(his
event,” the defendant’s only assertion of
inabil-
prejudice
offense)
ity
recall his whereabouts
on
date of the
inadequate
burden to
carry
demonstrate
substantial
prejudice
Serrell,
his defense.
As the Supreme described, Court Marion gov- ernment conceded in that case that an intentional delay for purposes securing tactical would suffice. advantage Court implicitly accepted concession, but ultimately went on to decide the case based the defendants’ failure to actual Likewise, establish to the prejudice delay.13 due 13 Marion, years elapsed government In three between when the became alleged Marion, filing aware of the criminal acts and the indictment. 404 US dismiss, because, asserted, delay at 308. The defendants moved to was due government’s negligence investigating to the or indifference case. Id. 310. *19 that Serrell, accepted proposition the implicitly this court advantage satisfy would to a tactical delay intentional secure Marion, As of test. in the reasons-for-the-delay prong the an adequate in Serrell did not make however, the defen- court resolved this showing prejudice, of actual Thus, that neither him for reason. against dant’s claim a Serrell resolved, other, one the whether Marion nor way or in delay arise when excessive due violation can process other than inten- something due to indicting a defendant is Marion, Indeed, misconduct. prosecutorial tional reserved the of “when expressly question Court Supreme from resulting pre- actual prejudice in what circumstances of the requires prosecu- dismissal delays accusation fore- that be tion[,]” reasoning attempt it would “unwise” and the single its based on the limited record cast decision US case before it. 404 at 324-25. Marion and Serrell were decided, years
A few after Lovasco, Court United States v. 783, 431 US Supreme (1977), 2d deferred 796-97, 2044, again 97 Ct 52 L Ed S had a issue: Court nor lower court has any “[N]either this signifi- to consider the constitutional opportunity sustained The Court therefore delay.” cance of various reasons for courts, it to the in the first declared that would “leave lower that instance, the task of the settled principle[ ]” applying due process inquiry viz., controls the that affords protection — conceptions jus- for ‘fundamental “only” violations “those political tice which lie at the base of our civil and institu- ” Serrell, Id. noted, since this already tions[.]’ 797. As has claim again process court addressed due based court has not addressed delay. This therefore preindictment other than an delay, whether reasons preindictment advantage, may intentional to obtain a tactical rise delay concluding government district after that the The court dismissed the indictment have facts soon the occurrence of the acts and must been aware relevant after delay. prejudice three-year Supreme to the The that there must have been due Id. rejected argument, speedy then the defendants’ Amendment trial Court Sixth argument to the under the Due Process Clause. Id. at 313-23. turned Ultimately, defendants’ held that the Court the defendants failed demonstrate delay preindictment prejudice actual to the violated the Due Process Clause: “No proved, showing alleged defense is or and there is no conduct advantage appellees intentionally delayed gain some over Government tactical or to harass them.” Id. at 325. process Supreme level of a due violation. has the Neither done Court so. engaged task,
The lower federal
have
courts
split
camps.
major-
and,
however,
noted,
have
into two
ity requires
showing
government intentionally
delayed
indicting
gain a
a defendant either to
tactical
*20
advantage
equally impermissible purpose.
or for some
See,
view).
e.g.,
(discussing majority
Crouch,
tial the
becomes,
actual
to the defendant
greater
necessity
delay
the reasonableness and the
for
prejudice.
will
have
be to balance out
However,
despite
degree
prejudice,
judgment
of actual
for a
in
culpability
dismissal,
favor of
there must be
on
some
government’s part
in
either
the formofintentional miscon-
negligence.”
duct or
(citations omitted).
Mays,
Although
split
549 F2d at 678
that
authority
place many
of lower federal court
has been
for
years,
Supreme
the United States
Court
thus far has
declined to
States,
resolve it. See Hoo v.
1035,
United
484 US
(1988) (White,
1035-36, 108
S Ct
L
J.,
98 Ed 2d 777
dis
certiorari)
senting
(acknowledging
“signif
from denial of
disagreement
proper
icant
in the lower courts over the
test”
grant
stating
“con-
resolve the
he
certiorari to
that would
important ques-
among
tinuing
the Circuits
this
conflict
law”).
tion of constitutional
ordinarily
landscape,
legal
task
our
Given that
prediction
that
of the federal test
be make our best
would
Supreme
endorse,
that Court’s
based on
Court would
proc-
understanding
precedents
theof
due
and our informed
Making
prediction
complicated
principle
is
involved.
ess
Supreme
aptly
by
observed,
court
the fact
one
has
opinions
some
Lovasco each “contains
Court’s
Marion and
majority
give
language
minority
can
to both the
comfort”
at 1510.
Crouch,
federal court
84 F3d
lower
views.
requiring
delay
majority
an
intentional
view,
The
improper purpose,
advantage,
gain
as to
a tactical
sets
such
doing
high. But
so
consistent with the Court’s
the bar
is
provide
primary
limitation
admonition
statutes
against
prosecutions
protection
the Due
stale
play
protecting a
Process Clause has “a limited role”
preindictment delay. Lovasco, 431
defendant from excessive
(describing
789; Marion,
We likely require predict Supreme Court is us to what test the adopted the lower federal endorse. Under either test middle-ground any them, test courts, as well as between process of a due defendant cannot succeed on his claim violation. effectively concedes, the record con-
As
delayed
intentionally
tains no evidence that
indicting
the state
impermissible purpose,
defendant for an
such as to
gain
advantage.
a tactical
Even if the evidence on that score
disputed
find-
were
ings
it is not—the trial court’s factual
—and
any
intentially delayed
that the
defeat
conclusion
state
amounting
prosecutorial misconduct. Defen-
for reasons
majority
process
dant’s due
claim
under the
therefore fails
regardless
prejudice.
test,
he
of whether
suffered actual
See
(due process
prein-
Crouch,
Defendant
under
runs into
minority “balancing”
adopt.
test that he invites us to
As we
open-ended
major-
described,
have
ity
that test is more
than the
may
delay
test in terms ofthe reasons for
that a court
con-
prejudice inquiry
equally
sider. But the
exacting.
under the two tests is
prove
A defendant must
that he or she suffered
non-speculative prejudice”
delay by
“actual,
from the
show-
ing “exactly
preju-
how the loss of evidence or witnesses was
(citations
quotes
Barken,
dicial.”
As we described claim of sub- prejudice groups potential stantial is based on two items of (1) longer procured by evidence that are no available: items (2) police missing; in 1991 that are now items or through information that should or could have been obtained diligent investigation longer not, but were and no can be Taking category first, obtained. the second defen- items police dant’s list of unavailable items or information that *22 certiorari). (White, J., dissenting at 1035-36 from denial of We therefore find no guidance holding in the Court’s later characterizations of its in Lovasco and Marion. 574 (1) trajectories investigate includes bullet
failed to
or collect
(2)
crime scene and
from the
24;
from Room
trace evidence
(3) fingerprints
Foreman;
defendant and
the cars driven
(4)
casings
scene;
ofthe motel
found at the
interviews
on shell
(5)
cartridge
guests
occupied
24;
near Room
rooms
who
detectives defendant had
that Cline had told
ammunition
ejected
(6)
clothing
ground
Spot;
near the Five
onto the
evening
2,
had worn on the
November
that defendant
(7)
Safeway personnel
defen-
where
1991;
interviews
cigarettes.
purchased
that he had
beer and
dant stated
failing
or
faults the state for
to interview
Defendant also
may
investigate
people
have had
other
who
otherwise
Flannigan
Phillips.
motives to kill
or
likely
however,
Much,
all,
evidence,
if not
of that
or months after the crimes were
became unavailable weeks
disappearance
dissipation
or
of that
Thus,
committed.
investigatory steps
taken,
rather
evidence was a result of
delay qua delay
bringing
Accurately
the indictment.
than
directed to the
characterized, defendant’s claim seems
be
preserve potentially
failure
or
useful evi-
state’s
dence. Such a
to collect
commonly
“negligent
referred to as
claim—
investigation”
require
showing
of bad faith on the
—would
process
part
arise,
state’s
before a due
violation would
which
Youngblood,
defendant does not assert. See Arizona v.
488
(1988) (so
51, 57-58,
Ct
L Ed 2d
US
holding).15
109 S
assuming
any
events,
In all
even
of the items or
information that defendant lists became unavailable because
11-year charging delay,
prejudice
defendant’s claim of
unavailability
on the
of those items and information is
based
speculates
purely speculative.
example,
For
testimony
Safeway
might
provided
clerk
have
that could
similarly speculates
defendant. Defendant
have exonerated
that
might
night
of the Ara’Bel on the
of the murders
inhabitants
consistently
theory.
have testified
with defendant’s
police
is
evidence that
did not
The same
true of
items of
15Thus,
properly
to the extent that defendant’s claim is more
characterized as
delay
inadequacies
investigation
in the
rather than the
in that
one based on
state’s
investigation,
open-ended balancing
the more
test
he cannot have
benefit of
by minority
preindictment delay.
used
of circuits for claims of
*23
clothing,
pursue
investigation
defendant’s
in their
as
—such
trajectories,
cars,
in the
and so on.
trace evidence
bullet
possible
potential
items of evidence
Those
witnesses
light they
light
might
case,
on the
and the
shed
have shed
they might
might
to defendant. Or
have
have been favorable
evidentiary
they might
value, or
have bolstered
had no
speculation.
against
Any
requires
defendant.
conclusion
case
“[b]ecause the
Defendant therefore is left to contend that
discovered and
record demonstrates that the state could have
preserved
in
of reasonable
that evidence
the exercise
presumed
diligence,
he
to be
the loss of the evidence should
prejudicial
ability
present an
to defendant’s
effective
added.)
(Emphasis
Serrell, however,
defense.”
Marion and
require
presumed,
actual,
that a defendant
not
both
show
prejudice. Marion,
324-25; Serrell,
Simply identifying items and information of evidentiary police theoretically undetermined value that the satisfy could does not have obtained burden prejudice. demonstrate actual (items category police
As to the first of evidence lost), possession emphasizes had the their and later recording loss of of the 9-1-1 calls that early morning Gattermeirs had made in the hours of argues recording 3,1991. November would have Defendant that the 9-1-1 “given rise to a reasonable inference that Flannigan midnight, was shot sometime after when defen- theory dant’s whereabouts were accounted for.” Defendant’s recording support is that the substance of the lost could claim that a.m., shots were fired around 3:00 the time undisputed calls, 9-1-1 when defendant has an alibi.16 recording The loss of the does not establish actual prejudice, again, is, because the asserted value ofits contents entirely speculative. theory requires Defendant’s the court to presume though Phillips that, even was murdered around recording qualified exculpa Defendant does not claim that the lost 9-1-1 as tory evidence, Brady such the loss would establish a violation of defendant’s process rights regardless good due of whether the state acted in or bad faith. See (1963) Brady Maryland, 83, 87, 1194, 10 (regardless v. 373 US 83 S L Ed 2d Ct government’s good faith, government or bad violates a defendant’s due process rights exculpatory preserve if it does not disclose evidence or fails evi defendant). might dence that exonerate the Flannigan autopsy p.m., concluded,
10:00 shortly a.m., 5 hours after 3:00 about until before murdered Phillips’s of the calls—as the substance death. Whether theory timing support opposed is to their —would record, however, suggests Nothing that the unknown. regard. support in that To the con- contents would shortly trary, Hill interviewed Olivia Gattermeir Detective report in a that interview after the murders and summarized pretrial purposes. Detective Winn also admitted for that was during pre- calls ofthe 9-1-1 testified about substance According hearing that evi- defendant’s motion. trial timing explained of their dence, that the the Gattermeirs they had heard the did not coincide with when 9-1-1 calls “pops,” fact, heard the shots between *24 investigator p.m. p.m. addition, In a defense 8:30 and 10:45 trial, and located and interviewed the Gattermeirs before night. Apparently, had recalled the events of that both both were available Nothing sug- testify at trial. in the record recording gests of 9-1-1 calls differed content anything police that the Gattermeirs later told or would from testify. circumstances, if called Under those have said that the contents of the lost without some basis to believe recording theory, the unavailabil- would bolster ity recording of the 9-1-1 does not establish actual and sub- minority prejudice, required under either the or stantial majority preindictment delay. for federal tests prejudice if the on which defendant relies is
Even placed purposes sufficient to on the scale for of the minor- be weigh very lightly. ity balancing That, test, it at most would delay weigh turn, mean that the reasons must would against Mays, heavily in defendant’s favor and the state. 549 (balancing sliding F2d at entails a scale in which test prejudice “the more the actual to the defendant substantial greater necessity becomes, the the reasonableness and the be). delay” law, Here, however, for the must as a matter of delay indicting i.e., reason for the state’s defendant — sufficiently investigate proba- need to the crimes and obtain bring charges tip the scales at all. ble cause to —does Supreme explained The Court has that the time nec investigate essary good “inves to in faith crime—so-called tigative delay” “fundamentally delay unlike undertaken —is government solely gain advantage ‘to tactical over the ” (quoting Lovasco, accused.’ 431 US at Marion, 404 US 324). concep- at Prosecutors do not deviate from fundamental justice they tions of probable when defer indictment until have prosecutors
cause. Id. 795-96. Neither are obli- gated probable to seek an indictment as soon as cause exists. investigative delay deprive Id. Good faith therefore does not process, [the] might a defendant of due “even if defense have prejudiced by lapse been somewhat of time.” Id. at 796. Despite showing Ninth Circuit inis accord. whatever prejudice may good investigative make, faith delay process. does not violate due Moran, 759 F2d at 783 (investigative delay deprivation does not constitute a of due process, might even when a defendant have been somewhat prejudiced by delay); United Walker, States v. 601 F2d (9th 1979) (same). 1051, 1055-57 Cir In other words, the Supreme may open general question Court have left significance the in delay” “constitutional of various reasons for bringing charges against a defendant, Lovasco, 431 US at good 797, but it has foreclosed faith efforts to investi- one— gate violating process. a basis for due Id. at 796. —as findings Here, the trial court made extensive factual delay, about the state’s reason for none of which defendant challenges, supported by and all of which are the record. The expressly trial charging court delay found that the in this investigation case occurred because the stalled shortly again murders, after the and then stalled in 1996— each constructing time due to defendant’s skill in an alibi. Significantly, the trial court further found that the state did *25 probable April have shortly cause until at least point before defendant was indicted. That was the at which police learned from Teal that defendant had made incrimi- nating prison. admissions empha- while in As the trial court only key sized, change then did several witnesses their sto- particular, Bynum, Lowery, ries. In Payne came forward incriminating they previously information in 2002 that had then, withheld. Until defendant’s and Foreman’s accounts provided by were consistent with information Bynum Lowery, creating a solid alibi for defendant.
From evidence, the trial court described the lengthy delay “conspiracy as a of circumstances” caused solidity [defendant’s] and Mr. Foreman’s alibis.”
“the waiting specifically state, until found that trial court gain intentionally defendant, act to did not 2002 to indict advantage The trial act in bad faith. or otherwise tactical neg- expressly, state act found, that the did not further court findings recklessly. ligently Those refute defendant’s or “passively permitted] evidence that the state assertions exculpatory to the to unavailable due to become it knows be “simply stopped investigating passage for no of time” and findings apparent effect, court’s establish In the trial reason.” delay lengthy preindictment case was investigate good to efforts result of the state’s faith gather and to needed evidence. case minority following majority In either the or sum, properly adopted by courts, the trial court lower federal tests on defendant’s claim motion to dismiss based denied majority delay. preindictment test, Under the intentionally delayed impermis- that the state for an to show gain advantage. purpose, Defen- a tactical such as sible showing. attempted Under neither to nor made such dant majority minority tests, defendant has failed both ability prejudice and substantial to his demonstrate actual defend Finally, against charges delay. result of the as a arguably prejudice, if some actual even suffered delay constitutionally permissible for a reason: bring investigate probable sufficient cause to and obtain charges. reasons, For the trial court did not err. those Counsel B. Withdrawal of challenge the trial
We turn next to defendant’s permit representation trial to with court’s refusal to defendant’s two counsel Defense coun draw from their of defendant. withdraw, and each time the trial court sel twice moved to review, that the denied the motions.17On defendant contends 17 approximately time motions to At the same that defense counsel made their withdraw, did moved for of counsel. Defendant so defendant also substitution relationship attorney-client he to be a in the based on what considered breakdown motion, court-appointed new that was so severe as to warrant counsel. On each inquired attor the reasons for defendant’s dissatisfaction with his trial court into ney fairly nonspecific. the extent identified and found them to be To that defendant counsel, seeking court particular new the trial found that defendant reasons for having strategy and counsel for to do with trial was dissatisfied with his reasons
579
trial court
because
that
erred
the circumstances
counsel
making
“per
established]
relied on in
their
a
motions
se
attorney-client
relationship
in the
breakdown
is so
[could
provide adequate
not]
severe
counsel
assistance of
rulings
counsel.”
the trial
We review
court’s
for abuse of dis-
Langley,
247, 258,
cretion. See State v.
(1992),
Or
839 P2d
314
692
(1993)
recons,
28,
adh’d to on
Or
Defendant has a
Oregon
under
I,
11,
counsel
both Article
section
of the
Constitution and under the Sixth
to the
Amendment
United
observed,
States Constitution.18 As we have
under both the
guarantees,
right
state
federal
“the defendant’s
is not
just
lawyer
only,
lawyer
provides
to a
in name
but to
who
adequate
Smith,
515,
assistance.” State v.
123
526,
Or
(2005).
provisions
Thus,
P3d 261
both
secure for a defendant
“adequate performance by
pro
counsel of those functions of
person
upon
fessional assistance which an accused
relies
perform
counsel to
on his behalf.” Krummacher v. Gierloff,
(1981);
867, 872,
290 Or
Washington,
(1984)
was expressed attitude had “seri that defendant’s their concern ability provide [their] ously assistance of effective disabled denying withdraw, the trial motion to In that first counsel.” court found fully prepared for trial counsel were
that defense adequately protecting capable inter defendant’s of and were cooperation that defendant’s lack also found ests. The court attorneys from defen and stemmed deliberate was with unhappiness frank assessment defense counsel’s dant’s with against defense defendant, which evidence ofthe unfavorable counsel duty to defendant. had a to communicate begun, trial had defense later, after the A few weeks They reported withdraw. their motion to counsel renewed disagree counsel’s decisions continued that defendant disagreements strategy that those witnesses, and and including flare-ups” by “angry defendant, had resulted epithets” his counsel. Coun- toward use of “racial represented defen- conference with that, in one further sel per- for his counsel feared one of defendant’s dant, at least safety. told the trial court: Counsel sonal Honor, ‘Your I understand the Court’s reluctance to However, Mr. new counsel. I am stren- provide Davis with uously my requesting that the Court allow withdrawal as totally I am completely professionally compro- counsel. any in terms further this man. He going mised for has my safety, cause for me feel concern for own con- given my co-counsel, for safety negative cern concern jury this to a implications present that all of would a case of this nature.”
The trial court denied the motion second to with- ruling, question In so court draw. the trial did not the sincer- ity of counsel’s concerns. Neither did the trial court doubt relationship that the defendant and his was between counsel thought, however, strained. The trial court deliberately manipulating attorney-client relation- ship simply order to “throw a wrench in the trial bad where coming addition, evidence has been expressly in.”19In the trial court fully prepared found that defense counsel been professional representation zealously, in their and had effectively, professionally represented *28 throughout although the words, case. In other the strain defendant his strain real, between not counsel was undermining representation counsel’s actual defendant. appeal,
On defendant does not take issue the argues, findings. however, trial court’s He that defense coun sel’s statement were afraid of defendant felt “professionally compromised” per is evidence se of a serious attorney-client relationship, requiring breakdown in the adopt trial court to allow counsel to We withdraw. decline to per proper question such a se rule. whether, to ask is attorneys during represented two Tie who defendant trial were not the first attorneys appointed represent attorneys previously to him. Two other been appointed represent defendant, successfully and defendant had moved for their attorney-client relationship. substitution based on an asserted breakdown A attorney appointed, successfully third was then and defendant also sub moved for represented of that stitution counsel. The two counsel who defendant as the trial near, represented through ultimately proceedings, and who drew him the trial attorneys appointed. expressing fourth were the and fifth so In concern that defen deliberating undermining counsel, relationship dant was his with his trial expressed doing response “mounting court its belief that defendant was so in to the against him.” evidence ade- counsel
given involved, defense circumstances professional assistance quately performed functions of “those perform upon on counsel to relies accused which an the trial case, In this at 872. Krummacher, 290 Or behalf.” fully adequate in their counsel were that defense court found despite that defen- representation defendant, the strain hostility created. toward them dant’s denying court, in that the trial moreover, note,
We defense counsel withdraw, did not foreclose the motions to from they progressed, renewing again the trial if, motions their effectively. represent impossible defendant found it again, full record of however. The arise The issue did not entirety. We it in its have reviewed us, is and we trial before nothing does neither on this record—and have identified suggest anything point coun- that defense —to during representation of the trial became the remainder sel’s compromised that counsel were unable or was so deficient adequately. represent said, are As have we we urges. per unwilling rule that defendant se to endorse affirmatively counsel’s must reveal that Instead, the record compromised, ability represent in fact client was their resulting abridgment consti- a criminal defendant’s in “an Langley, right record Or at 258. The to counsel.” tutional abridgment case. Conse- an in this such does not establish quently, did not abuse its dis- that the trial court we conclude denying motions to withdraw. counsel’s cretion Opening Statement C. Prosecutor’s defendant’s assertion Next, we consider denying a mistrial based his motion for erred in trial court description opening prosecutor’s statement of in his testimony particular expected witness, of a Adonis Thompson happened, Thompson. at trial. never testified As it opening prosecutor’s statement, that the Defendant contends *29 testimony anticipated prosecutor detailed in which later was not admitted subjected cross-examination, to deprived him of a fair trial. purposes apply, legal
The
standards
relatively
presented,
the trial
settled. We review
are
issue
court’s denial of the motion for a mistrial for abuse of discre-
pros-
Bowen,
tion.
ments are to of what the believethe evidence will be at trial.” prosecutor presented opening The then statement. That descriptions anticipated statement testimony included planned of several witnesses whom the state call, to includ- ing Thompson. respect Thompson, prose- Adonis With to jury expected Thompson, cutor told the that he who knew prison, testify defendant in that defendant had admitted to committing Thompson expected say the murders. was also complained Thompson that defendant had that another prisoner, police, Teal, had “snitched” on him to and defendant Thompson testify wanted up Teal, ill, who was had made story get prison early. prosecutor, out of while holding piece paper jury hand, in his detailed for the *30 allegedly had written that defendant of a note
contents Thompson: Thompsongave the note what the note. Here’s us “Adonis my lawyers. ‘Say,my I told says: I told brother, this is what you you and were RonaldTeal with was OSCI
them that walking that he had him and he said the track with around pen- dying in the to die get and didn’twant that he was shit and going itentiary, Because me and out. to lie on he was so my you, penitentiary. Thank die in the want to he didn’t brother.’ ” opening gave parties statements, their After the personally he prosecutor court that the trial advised the had served appear subpoena Thompson that awith prosecutor contact with in continual had remained the Thompson’s complied Thompson
attorney, had not that but prosecutor subpoena. to issue a asked the court The the expressed contempt concern that Defense counsel warrant. opening Thompson prosecutor in his referred to had the Thompson’s despite were that statements the fact statement, “good prosecutor for his the trial court asked The unknown. faith bringing going you’re that] [to him in to be believe basis optimis- prosecutor explained quickly.” that he remained The appear, Thompson his conversations based on that would tic with Thompson’s, attorney Thompson’s relative of and with a close message Thompson had that a as well as voice answering prosecutor prosecutor’s machine. The left on the thought days couple just Thompson an needed extra that day. made next Defense counsel in the area the and would be the court at that time. motion to no formal appeared, Thompson proceeded. never The trial and the case was After sides rested he testified. both so never jury, a mistrial. Defen- moved for the submitted to improperly testimony argued Thompson’s that dant opening during prosecutor’s jury placed state- the before response, prejudiced it. In that defendant was ments and good prosecutor faith belief that he had had asserted testify, Thompson had as based on events would particular, opening up In statements. to the time unfolded prose- represented prosecutor trial court that to the attorney Thompson about a week and his met with cutor had custody Thompson began. was in time, At that trial before signed cooperation formal an unrelated matter and agreement prosecution. Thompson, who assured the with the appear going prosecutor trial, risked he would agreement. prosecutor prison if he further violated that The approached, the trial court as the trial date told prosecutor attempted Thompson, to contact without success. opening Thompson’s statements, however, Just before ney attor- phoned prosecutor Thompson informed him prosecutor day opening contact would after state- prosecutor representation relied on ments. ing in mak- opening Thompson appear did statement. When expected, prosecutor help investigators, enlisted the *31 girlfriend’s who staked out known and his his last residence point, police Thompson may residence. At some learned that gone Vegas. prosecutor to Las The have contacted the Las Vegas Department they request notify Police to that him if Thompson’s learned whereabouts. As to the defendant’s prosecutor explained note, about concern the the that he had possession incorporated in note, not been instead but opening its contents in his on statement based his recollec- request, prose- of what it tion had stated. At the court’s the everything cutor affirmed under that that oath he had stated regarding Thompson’s to the court his efforts to secure testi- mony was true. response prosecutor’s
In his statement, to the defen- challenge pros- did dant not take with or issue otherwise the good argue, ecutor’s faith. Defendant to however, continued opening Thompson’s that the statement’s reference expected testimony, including alleged the note from defen- highly prejudicial. dant, was Defendant stated he was asking going “not for a instruction, curative because that’s ring double the bell.”
The trial denied court motion for a mis ruling, findings pros trial. In so the court made two to the (1) good prosecutor good ecutor’s faith: faith had belief Thompson’s appearance pre that he had secured when he (2) opening prosecutor statement; sented and made a good Thompson following faith effort to locate his failure to appear pursuant subpoena. prose to the As to whether the opening prejudiced defendant, cutor’s statement the court given testimony sim- at least seven witnesses noted that ilar what concerning Thompson offered, all would have regarding allegedly had made that defendant statements defen- The trial court offered in the murders. involvement following opportunity curative instruction: for the dant any “My jury thought simply statements to tell testimony opening regarding Mr. Adonis made in they’re Thompson acceptedas true and to dis- are to be any regard was not a referenceto him becausehe witness this case.” choosing instruction, curative
Defendant declined that closing argument: to address the matter instead prosecutor] opening [the ‘You there was to comein here he he read the Thompson. statement heard going yet here, another another witness witness you [defendant] fact, And, it. did tell [Defendant] him, a letter a letter. wrote to was wrote you. guy’s letter name Adonis Thompson? you you Have seen an Adonis Have here?” seen a introducedinto evidence letter argues prosecutor’s appeal, On Thompson’s expected testimony concerning were statements weight unduly prejudicial because those statements added subject case that was not to cross-examination state’s argu support trial.20 In of his thus denied defendant a fair principally Cupp, v. ment, relies on Frazier 394 US (1969). pros 1420, 22 Frazier, In 731, 89 S L Ed 2d 684 Ct *32 expected opening the tes in summarized ecutor statements Supreme timony a 733. As Rawls, of codefendant. Id. at the prosecutor’s summary remarks, the the of Court described testimony emphasized, only took a few Rawls’s was not description minutes, of and was sandwiched between piece prosecutor Id. also referred to a of other evidence. The holding paper that he was to refresh his recollection about prosecutor something stated, which, the later Rawls had acknowledged, jury might the have believed was a written 20 court, now also In contrast to defendant’s statements the trial intentionally pros prosecutor acted bad faith because contends that might appear Thompson aware that not trial. Defendant’s ecutor argument regarding been alleged preserved, prosecutor’s not and we bad faith is do (court (2000) 335, 341-47, Wyatt, v. Or 22 not consider it. See State P3d court). preserved not in the trial declined to consider issue by unsuccessfully statement Rawls. Id. at 734. The defendant opening moved for a mistrial at end of statements (evidently likely because the defense knew that Rawls would testify). prosecutor not Id. When the called to the Rawls during privilege against trial, stand Rawls asserted his self- Id. incrimination. The defendant renewed his for a motion again mistrial, and the trial court denied it. Id. proceeding Supreme
In a habeas before the Court, argued prosecutor’s opening the defendant that the state- concerning testimony weight ment Rawls’s added to the subject state’s a form cross-examination, case in not thus violating right his constitutional of Id. confrontation. The Supreme disagreed. emphasized Court Id. at 735. The Court alleged impropriety during opening that the occurred state- jury opening ments and that the was told that the statements are not to be considered evidence. The Id. Court also noted “vitally important part that Rawls’s statement not a of prosecution’s explained: case.” Id. Court “It may opening be some remarks included an or closing prejudicial statement could so finding be that a error, error, or even constitutional be would unavoidable. But objective here have than summary we no more an prosecutor reasonably evidence which the expected pro- * * * duce. Certainly every variance between the description advance presentation and the actual consti- error, tutes reversible a proper limiting when instruction has given.” been
Id. 736. rely attempts case,
In this on Frazier distinguishing Specifically, it. defendant asserts that prosecutor’s prejudicial, statement here was far more prosecutor Thompson’s testimony because the detailed appeared alleged to read from note from defendant. We disagree appreciable differences in the two cases are enough to dictate difference in outcome. important Supreme
The most factor in the Court’s part decision in Frazier was that the statements were prosecutor’s opening tiary phase part statements and not of an eviden- emphasized opening trial. The Court pose danger right statements less to a defendant’s to a fair *33 588 placed is before the than when inadmissible evidence
trial ordinarily jury jury during will be able to trial because “the during the the evidence introduced limit its consideration possibility not the Id. at The Court did foreclose trial.” 736.21 prejudi- opening “so in an statement could be that remarks finding require error. Id. 736. as to a of constitutional cial” happen acknowledged, “[m]any things might the Court As pres- during prevent the the of the trial which would course in Id. It of the evidence described advance.” entation all unwilling “every that variance to declare therefore was description presentation the the advance actual between limiting proper error, a instruc- constitutes reversible when particular, given.” In the has been Id. Court was unwill- tion ing objectionable part the reference to do so when was pros- “objective summary prosecutor’s of evidence which the nothing reasonably expected produce” and more. Id. ecutor Frazier, Here, as was true in the reference to testimony during prosecutor’s Thompson’s occurred the “objective summary” during opening statements about the produce. prosecutor expected that the Also in evidence describing Thompson’s prosecutor’s the Frazier, statements among descriptions expected testimony of were included the special expected testimony witnesses; of several other no expected testimony emphasis placed Thompson’s was on or establishing guilt. as the its value Just trial gave jury pur- the an instruction the court Frazier about pose opening statements, so, 735, too, id. at did the trial jury opening in this court case advise the statements Finally, something case were not evidence. this involves 21 reason, Jones, v. P2d For that this case differs from State 279 Or (1977), denied where court held that defendant was a fair trial based this Jones, during rape prose prosecutor’s a examination of two witnesses trial. In testimony rape from two that the defendant had committed cutor elicited witnesses disregard “many jury to times” before. Id. at 61-62. The trial court instructed the those statements and denied the defendant’s motion for mistrial. Id. at 62. Later trial, record; during prosecutor offered evidence of the defendant’s criminal rape any prior any or sex offense. Id. In no record offered conviction conviction, prosecutor reversing explained persisted this court insinuating previously rape, knowing had that he committed case, held, prior prej proof rape no convictions. Id. at 63. In such a this court pervasive was so that the defendant was denied fair trial. Id. The curative udice suffice, testimony prejudicial did because was so “as a instruction matter, rung, unrung practical an instruction.” the bell once cannot be such Id. (internal omitted). quotation marks at 62 Specifically, Frazier did not. the trial court in this case give offered to a curative instruction that would have been Thompson’s testimony, tailored to the statements about one *34 gone jury that would have so far as tell to to assume that the statements were not true. Defendant declined that instruction.22 prosecutor’s balance,
On we conclude that the sum- mary Thompson’s expected testimony of cannot be said to prejudiced have so defendant as to have denied him a fair by trial. The trial court therefore did not abuse its discretion denying defendant’s motion for a mistrial. Report
D. Exclusion Detective Hill’s “9-1-1” of assignment The final of error that we address is sustaining defendant’s claim that the trial court erred in objection hearsay testimony concerning state’s Detective police report missing Hill’s written recording about the contents of the appeal, of the Gattermeir 9-1-1 On calls. by sustaining objection,
claims that the trial court erred inability because his report deprived to examine Norman about Hill’swritten opportunity present complete
him of an
right
process.
defense and therefore violated his
to due
See
Holmes v. South Carolina, 547
319, 320,
US
1727,
126 S Ct
(2006) (trial
authority
deceased
the time
trial,
of
had written a
about her
concerning
interview with Olivia Gattermeir
the substance
report
ofher
9-1-1 call. That
was mentioned
the trial court
during
pretrial hearing
on defendant’s motion to dismiss
preindictment delay,
for
in relation to the court’s conclusion
prejudiced by
that defendant was not
the loss of the 9-1-1
recording. The trial court also mentioned defendant’s own
Supreme
The
specific
Court in
limiting
Frazier noted that a “more
instruc
might
tion
have
general
been desirable” in
pretrial
addition to the
instruction that
opening
evidence,
statements are
requested.”
not
“but none was
recorded recording. for the 9-1-1 evidence rely on own did however, trial,
At to have he seek Gattermeirs; neither did of interviews report into evidence. admitted written Hill’s Detective Norman, Detective of retired Instead, on cross-examination questions answer certain asked Norman defendant designed Detective Hill’s written of the contents to reveal Specifically, to read to report. asked Norman defense counsel report, Hill paragraph in which from Hill’s written himself a explanation the sounds Gattermeir’s had described Olivia night coming murders, from Room on heard she and then asked Norman he “had reason believe whether reported like to 9-1-1 which sounded that sounds pops[.]” been question objected ground that the state proceed- hearsay, recessed the and the trial court called jury. presence ings the matter outside to discuss *35 instructed chambers, the court After conference during jury ignore any cross- Norman’s references to “pop”sounds: examination to going Folks, are to take break “THE we COURT: Any tape. point. a 911 sub- There has been talk about
this yet. tape Statements is not in evidence stance of that you disregard going regarding pops time. The at this I’m to ask attorneys discussion I have a further and will questions ona dis- be formulatedbased that. And will about cussionwe’ll presence your on the issue have outside of evening, going tape. take a we’re So for this that 911 break.” parties day, resumed the trial court and
The next the trial court asked issue, of the and their discussion they parties The state handle the matter. wanted to how objection, argued hearsay that, if the further its but renewed any about the information inclined allow court was report interview of about his of Hill’s written contents Olivia “entire should admit the Gattemeir, then the court proposed end, To that the interview. context” of paragraphs 2 and allowed to read Detective Norman be that report page record, which, in into the from Hill’s 3 of a certain provide of the the “full content” view, would
591 however, report. prosecutor responded, the para- matter, that defendant graphs suggested “would take the out of context” and if suggested, again, the court was going in, to allow the information it was to have the appropriate “entire context” of the conversation into evidence: put put
“And here’s what I mean To 2 paragraphs that. listener, and only jury, would leave this with an impression, if understanding, call, not an that the which we agree a.m., do was made at 2:55 the information would be pop, pop then that the they’re or they whatever sounds were and pop, described as would gen- have occurred in that frame, eral time in the 2:55 time frame.
“That is not the entire context of the conversation that’s Gattermeir, [Olivia] preceding para- because the graph enlightens us as to when she and her husband did pop, hear that pop. And how it’s described is that says— she I’m going summarize, fairly and I think I can sum- marize. says But she she and her husband went to dinner on November 2nd at p.m., between 8 and 10 p.m. on the Upon dinner, 2nd. their return from Mr. Gattermeir preparing to take a shower. And period of time then is 30 to 45 minutes after their return from dinner.
“That’s when heard the pop, pop. So in the context of what entirety, is said in its pop, pop is heard in that general 8 to 10 period 2nd, time opposed to 2:55 3rd, a.m. on the completely two things. different State, “And again, so the general objection we have a hearsay, but if going the Court’s to overrule and allow this in, information it entirety, should come in in its part.” not in The trial court ruled that it would not admit any selective portions of the or report testimony about selective portions report, given state’s objection the fact * * * the information “does appear to be hearsay.” The *36 court observed that defendant had not identified any excep- tion to the rule that hearsay The trial court applied. never- theless offered defendant that opportunity argue “due process requires somehow this evidence comes in.” Defen- dant responded that he was not prepared to make that argu- ment, but asked
“to argument that, reserve further on whether this comes under the residual hearsay clause ofthe exception, whether processrequires its due to its of introduction due allowance apparent unavailability [DetectiveHill] loss and the of
ofthe evidence. argument that, we if I reserve on I think “So could point.” just moveon at this could—we could by reiterating that it would sustain court concluded hearsay objection, raise the defendant could but that state’s again so Defendant in the trial if defendant chose. issue later testi- either did not renew his effort introduce Norman’s subject report. mony Hill’s or the contents of on argues pretrial the trial Now, court’s prejudice by ruling undue the loss that he did not suffer i.e.,— recording subsequent mid- trial court’s of the 9-1-1 —and evidentiary ruling not elicit that defendant could i.e., trial Norman’s — report, description of or have selec Hill’s written portions report into admitted evidence—were tive contradictory. of
Defendant contends that net effect rulings “deprive only complete of his two was to process. Despite the trial and thus violated due defense” raise so, however, do defendant did not court’s invitation to process argument or due for the trial court to address argument therefore Defendant’s constitutional is decide. unpreserved. objection hearsay encompassed
Even if defendant’s process objection, the trial did not err. Defendant’s due court deprived “only complete defense” claim he was of his rests on his assertion in the absence the actual 9-1-1 recording, report only provided Hill’s written him with may proving Flannigan’s death occurred means have predicate an at a time when he had alibi. The report not defen flawed, claim is however. Hill’s written seeking only to establish when the Gatter dant’s means investigator “pop, pop” heard sounds. Defendant’s meirs by phone, had contacted and interviewed the Gattermeirs they question, they apparently could the events in recall however, not, Defendant did were available as witnesses. investigation any way. seek to use his own fundamentally, however, More defendant was only presenting portions of the selective entitled insist
593 sought report. When about isolated defendant ask Norman objected report, in the and when the state statements doing deprived context, so the statements of their only paragraphs in the offered introduce two selected unwilling portions report. other Defendant was to include provided explanation added for the context Gattermeirs’ they ofwhat heard and when had heard it. Even assum- right ing process that defendant had a due to examine report, report Norman about the or to itself introduce recording lost, because the 9-1-1 had been selectively preclude to do and of entitled so admission equally portions report. cir- other cumstances, relevant Under the evidentiary
the trial court did in its not err ruling.
III. CONCLUSION reject For the set above, reasons out we defendant’s arguments. We affirm therefore defendant’s convictions and the sentence of death. judgment of conviction and sentence of death
are affirmed. concurring. J.,
WALTERS,
I concur in the court’s
affirm
decision to
respect
assignment
and,
conviction
with
to each
of error that
reasoning. Although
discusses,
the court
I concur with its
I
also concur in the court’s decision
affirm
defendant’s sen-
explain
fully.
death,
of
I
tence
must
more
many arguments
Defendant raises
as to the con-
stitutionality
penalty
previously
of the death
that this court
rejected.
participate
has
I did not
in those decisions, although
my right
I reserve
them,
to reconsider some or all of
I
constrained,
feel
case,
at least
this
the doctrine ofstare
requires
balancing
That
decisis.
doctrine
of the “undeni-
importance
stability
legal
able
of
rules
decisions” with
“important
past
need to be able to correct
errors.”
Meyer
Stranahan v. Fred
Inc.,
38, 53,
331 Or
Recently, jurists many who had voted times to affirm constitutionality sentences death have reassessed the light experiences penalty its admin their the death evolving objective standards of evidence of istration decency. 1520, 1551, Rees, _ US _ , S Ct See v. Baze (2008) (stating (Stevens, concurring) J., Ed 2d 170 L pointless penalty represents experience, “the death in his only marginal contribu of life with and needless extinction (citation purposes! ]” any public social or tions to discernible omitted)); State, _ So 2d _ , _ , 2008 WL Doss v. 2008) (Miss (Diaz, dissenting) (drawing J., 5174209, *15-16 *38 despite experience judicial upon to conclude that and state arbitrary disproportionate sentences, state to limit or efforts system Eighth concerns—it “does answer Amendment them”). exacerbates prec emphasized pull of has that the This court also ” “ strong, Stranahan, ‘is it is not inexorable.’
edent
but
(quoting Hungerford
Sanitarium, 235
v.Portland
Or
Or at 53
(1963)).
degree
any
415,
binds future spirit [that opinion’s] agreement of the times or the subsequent upon judgment its tribunals correctness as a (internal existing or law.” of the actual Id. omitted). statement quotation emphasis citations, marks, ruling strength of an earlier is bond authority directly proportionate to moral intellectual understanding our continues to inform of that earlier that holding. opportunity urge presented so, I When with the to do experience constitutionality imposing our this court consider state’s penalty anew. death and to examine its