*1 Argued September 5, 1989, judgment guilt phase and submitted affirmed as penalty phase and reversed as to the case remanded to the circuit court for resentencing April 3, 1990 OREGON,
STATE OF Respondent, MONTEZ, MARCO ANTONIO Appellant.
(TC C8708-34702; S35291) SC P2d
566-a *4 566-b Muniz, Salem,
Paul J. De argued appellant. the cause With him Garrett, on the briefs were Susan Bischoff and G. Seidemen, Hemann, Muniz, P.C., Robertson & De Salem. Fussner, Salem,
Jonathan Attorney General, Assistant argued respondent. response the cause for him on the With General, Linder, were Dave Frohnmayer, Attorney Virginia L. General, Peterson, Kelley Solicitor Ann Farmer and Brenda J General, Attorneys Assistant Salem.
566-c Before, Peterson, Justice, Linde,* Carson, Chief Jones, Gillette, Fadeley, Van Hoomissen and Justices. HOOMISSEN,
VAN
J.
judgment
guilt
affirmed as to the
phase and is
reversed as to the
phase, and the case is remanded to
the circuit court for resentencing consistent with this opinion.
Wagner,
See State v.
(1990);
Gillette, J., dissented and filed an opinion, in which Fadeley, J., joined. J.,
Fadeley, dissented and filed an opinion.
* Linde, J., 31, 1990. January retired
566-d *6 HOOMISSEN, J.
VAN
a judgment
review of
and direct
This is an automatic
of death.
and sentence
murder
aggravated
conviction
conviction
of his
reversal
163.150(1)(f). Defendant seeks
ORS
this court
Alternatively,
requests
he
murder.
aggravated
conviction
affirm defendant’s
sentence. We
his death
vacate
as
judgment
the trial court’s
We reverse
murder.
aggravated
this case for resentenc
and remand
sentence
to defendant’s
(1990);
also
see
Wagner, 309 Or
I. SUMMARY Straub, accompanied by 20, 1987, Candice On June in Portland. Motel men, a room at the Continental two rented the motel to a fire at day, firefighters responding The next in one of body on a bed nude and bound discovered Straub’s flammable had doused with body the motel’s rooms. Her been later that she had been afire. It was determined liquid and set strangled to death. later, told
A defendant Marco Montez few weeks Edmo, living he had been Annie a woman with whom body rid of the of a Pocatello, Idaho, helped get that he had Aikens, Tim in this the co-defendant woman in Portland after that statement to the case, strangled reported her. Edmo had July arrested in Pocatello police. Pocatello Defendant was notified police The Pocatello charges. 12 on unrelated Idaho report. of his arrest and of Edmo’s police the Portland *7 to to Pocatello Portland Detective Goodale flew himself to introducing after July defendant. On interview rights a constitutional defendant, defendant Goodale handed CMiranda) read. Goodale then form, defendant advice which four defendant, after each of the stopping read to the form if he understood. ask defendant rights, individual Miranda to form did, and he initialed the that he responded Defendant stated it to him. Defendant right beside each as Goodale read speak to and that he would rights that he understood his Defendant does rights form. signed Goodale. He the advice understood, of, and volun- he advised dispute was Goodale for talking to tarily rights his Miranda before waived time on July the first 15. response questions, In to Goodale’s defendant at first any
denied involvement in Straub’s murder. He stated that he they had met Aikens in Portland and that had worked together day cannery. for a at a Aikens had met Straub at the cannery, accompanied and she had Aikens and defendant to a drop-in they center in Portland when returned from work. sleeping After hours, for a few the three went to breakfast and separating. to a second hand store before Aikens and Straub park, went to the Motel; Continental and defendant went to a where he remained until Aikens contacted him later. At that time, Aikens told defendant that he had left Straub at the something motel and that he wanted to show defendant there. go Defendant, however, declined to to the motel. Aikens then “problem,” said that he had a after which defendant and plans Aikens then made to leave town. explained Goodale asked if Aikens had the nature of “problem.” replied, lawyer Defendant “I think I need a get up.”
talk about the rest of it asked defendant if “he was Iso don’t linked Goodale telling us that he wanted an attor- ney anymore.” and did not want to talk with us Defendant’s reply again was no. Goodale advised defendant that he had the right lawyer lawyer present to have a and to have his at during questioning. time He asked defendant “if that’s replied what he wanted?” Defendant that “that was not what willing he wanted.” Goodale asked defendant he “still was According replied, talk with us?” Goodale, defendant “I will talk to without one.” response questions by
In Goodale, to further defen- gone dant admitted motel, that he had to the where Aikens body had showed him Straub’s dead in the bathtub. Aikens told defendant that Straub had that he had hit him, refused to have sex with
her, and that she had fallen and hit her head. Defendant stated that he had then left the motel. Defendant setting stated that Aikens had later admitted the motel room fire, afire. Defendant at first denied involvement in the but he helped body later admitted that he had Aikens move Straub’s participated setting from the bathtub to a bed and had motel room afire. Defendant admitted that it had been his plan killing room, to burn the he but still denied Straub or having sexual relations with her. voluntarily polygraph submitted to tests *8 told defendant July polygrapher 16 and 17. When the polygrapher defendant told the deception,
the tests indicated anymore, poly- to him and the that he did not want to talk over to Goodale. grapher turned defendant back of defendant. questioning Goodale resumed his incriminating Defendant related more details about Straub’s death, he still insisted that Aikens alone had killed although cell, shortly then returned to his but thereafter her. Defendant bring he asked a to tell Goodale to return and “to jailer tape recorder.” arrived, again Goodale he advised defendant of
When rights. his Miranda Defendant then admitted that he had participated in Straub’s murder. He stated that he and Aikens beaten, raped, had and sodomized Straub and that when she resisted, pushed causing had Aikens his fist into her anus her profusely. to bleed They legs then tied Straub’s arms and gagged put behind her back and her and her in the bathtub. Defendant stated that he and Aikens became concerned that might report they Straub them to the police, and decided to kill looping neck, her. After a towel around each man Straub’s pulled one They placed body end until she was dead. then her bed, fluid, afire, on the lighter doused it with set it and left. they Defendant admitted that burned the motel room to destroy any evidence that could link them to the crime. then asked Goodale knew what would happen in Oregon. explained to defendant Goodale Oregon homicide laws. Defendant then said that he was will- ing plead guilty hoped to murder but that he would not be sentenced to death. defendant,
On August again spoke Goodale with who stated had conscious when he and that Straub been placed Aikens carried her into the motel bathroom and her in had the bathtub. He also admitted that he rather than Aikens placed his fist in Straub’s anus.
Indictment Defendant was with three alternative counts charged aggravated guilt murder.1 The state’s three theories were (ORS 164.325) charged Degree Defendant also was with Arson in the First (ORS 166.085). Corpse Abuse of a He was convicted of both crimes and sentenced. appeal. in this Those convictions and sentences are not at issue intentionally and Aikens had killed Straub: that defendant (Count I) perpetrators their identities as to conceal degree kidnapping, degree rape, degree first crimes of first first sodomy, degree degree abuse, assault; first sexual and fourth (Count II) intentionally torturing her; in the course of *9 III) (Count in the course of and in the furtherance of first rape, degree kidnapping, degree degree sodomy, first first and degree first sexual abuse.
During opening statement, his defendant’s counsel deny jury partici- told the that “Mr. Montez does not that he pated strangulation and that he aided in the death of Candice partici- Straub,” and that “There is no doubt that Mr. Montez pated Timothy strangling Candy in, Aikens, in with Straub.” explained try persuade Defendant’s counsel that he would to jury that there that was doubt defendant had committed rape, sodomy, kidnapping, assault, sexual abuse or and that there was no evidence that Straub had been “tortured.” Coun- concluded, sel will submit to Montez is in “[w]e * * * Mr. Aggravated guilty guilty fact of He is not of Murder. despite guilty Murder, particular himself, he said he is not of that what * ** get [W]hen offense. we done with this case and and rape we’vediscussed these matters of sex and violence and you’ll sodomy unspeakable things, and all those other kinds of guilty Aggra- guilty find of He’s not of Mr. Montez Murder. vated Murder.”
During closing argument, again defendant’s counsel jury deny told the that Straub was that defendant did not strangled argued death, act had to but he defendant’s argued He that defen- been the result of “a drunken mistake.” dant had wanted to come back Oregon plead to from Idaho to consequence guilty aggravated to murder and to take the jury that defendant had what he had done. He reminded the independent raping evi- denied Straub and that there was no sodomy, argued had failed to dence of and he that the state prove opening that Straub had been “tortured.” Counsel’s fairly closing argument as statement and can be characterized only asking jury guilty murder, but to find defendant testify guilty “aggravated” murder. Defendant did not at his trial. aggra- all three counts of
Defendant was convicted on guilt phase In the vated murder in the of his trial. questions affirmatively answered two of the phase jury (B).2 163.150(1)(b)(A) Thereupon, the trial posed by ORS to pursuant ORS of death court entered a sentence 163.150(1)(f) 163.150(1)(e)]. ORS [former
II. OF ERROR ASSIGNMENTS
A. Phase Guilt assignments of error Defendant makes fourteen We discuss each guilt phase to the his trial. will relating necessary. to we deem assignment the extent Suppress to Motion first that the trial court erred in contends suppress his he made to Detec denying motion statements July 15,1987. He beginning argues Good- tive Goodale right by continuing counsel ale defendant’s violated right had to counsel. He question him after he asserted Arizona, primarily upon relies Edwards v. US S 89, 734 (1981) Kell, 1880, 68 Ct L Ed 2d 278 *10 (1987), applicable Edwards is to P2d 334 which held that 12, I, Oregon and Constitution. Article sections 11 following findings The made of fact: trial court * * * * * * freely All of statements were made “1. Montez[’s] voluntarily. and Joseph did Bureau Detective Goodale
“2. Portland Police
* * *
any promises or
to
Montez
not make
threats
induce
* * * to make statements.
request
attorney in
did
an
an
Defendant Montez
“3.
Joseph
interview
Portland Police Bureau Detective
with
15,
July
Defendánt Montez’s
Goodale on
1988 [sic].
attorney
equivocal
regarding
remarks
an
were
and
a reason-
questions
subsequent
Detective Goodale’s
were
attorney.
inquiry whether or not Montez wanted an
able
statements,
subsequent
une-
In
Montez’s
he
defendant
quivocally
attorney.”
he did
an
said
not want
finding
trial
fact.
by
We are bound
court’s
of historical
Foster,
518,
(1987); State v.
529,
Or
The trial court ruled: * * *
“THE COURT: suppress “I in will all the matters connection with two suppress I will as to the lie detector matters. And that all questions by raising Counsel for Mr. Montez. consider equivocal. highly approve by “And I the examination that was conducted what it was and affirm him and Officer Goodale to determine ahead, request right go that it was not fact a to I’m counsel. And satisfied that all of the other statements freely voluntarily appropriate were and made after advice of rights.” requests to suspect custody unequivocally a
When
further
lawyer,
request
granted
talk to a
must be
Isom,
587, 592-93,
questioning must cease. State
Kell,
supra,
State v.
(1988);
P2d 524
The trial court found as fact that defendant’s made, voluntarily that Detective Good- freely ments were speak, or threats to induce defendant promises ale made no July 15, and that request lawyer did not that defendant regarding attorney “equivocal.” remarks an were defendant’s ques- subsequent found as fact that Goodale’s The court also or not Montez inquiry “a reasonable whether tions were sup- attorney.” is evidence in the record wanted an There *11 port the trial court’s conclusions. defendant did not trial court that agree
We with the lawyer. ques Goodale’s to talk to “unequivocally” request therefore, intent, of defendant’s seeking tions clarification “interroga constitute further permissible were and did not intended questions, “badgering.” tion” or Goodale’s neutral was extent defendant only clarify to and to what whether counsel, invoking right probe beyond his did not lim- permissible inquiry. ited and
Having determined that defendant was asking lawyer time, talk to a at that Goodale him again advised he had the to have a right lawyer lawyer and to have his at present any during time the interview. then Goodale asked defendant “if that’s what he wanted.” Defendant replied “that was not what he wanted.” Goodale then asked defendant willing he was “still to talk to us.” replied, “I will talk to without one.”
The trial court found that defendant had “une quivocally said he did not want attorney” implicitly an and concluded that defendant had waived his right to counsel. We agree with that conclusion. require Edwards does not suppres sion of of defendant’s statements. Defendant’s motion to therefore, suppress, properly was denied.3
Voir Dire Defendant next contends that the trial court erred during voir dire in excluding prospective jurors Don Muench Mary Kavet, both of expressed whom had opposition to penalty, the death and in denying defendant’s motion to exclude for cause prospective jurors Boley Michael and Vern Olson, both of whom had expressed support for the death penalty. argues He excusing jurors that in Muench and Kavet and in refusing jurors to excuse Boley Olson, the trial court denied him his an right impartial jury violation of I, Article section of the Oregon Constitution and the Sixth and Fourteenth Amendments of the United States Constitu- tion.
Challenges for cause based on actual
gov
bias are
by
erned
ORCP
That
57D(1)(g).4
provides:
rule
July 15, 1987,
admissible,
Because we find that defendant’s
statements were
we
argument
subsequent
“poisoned” by
need not address his
that his
statements were
his
Mendocino,
231, 237-39,
(1979)
earlier statements. See State v.
288 Or
“Challenges on or more of cause be taken one for following grounds: the
[*] * * * bias, on is the a state mind “Actual which existence of of action, the in to the or to either part juror, the reference of court, a sound which the in the exercise party, of satisfies discretion, try and juror impartially the issue the cannot rights party chal- prejudice to the substantial the without of lenging. may be taken the cause challenge A for actual bias for chal- paragraph, in on the trial of such mentioned this but although appear juror challenged has lenge, that the it should expressed opinion upon the merits of the cause or an formed read, may opinion juror the have heard or such from what the challenge, the but not of itself be sufficient to sustain shall circumstances, satisfied, that the must be all the court from try disregard opinion impar- juror cannot such and the issue added.) tially.” (Emphasis respect for error in this is general testing
The
rule
would
or
prospective juror’s
prevent
whether
the
views
sub
person
of the duties of the
stantially impair
performance
the
115, 175, 752
Wagner,
as a
v.
305 Or
P2d
juror.
selected
State
Witt,
(1988); Wainwright
412, 424, 105
v.
469 US
S Ct
1136
see
(whether
(1985)
prevent
844,
juror’s
L Ed 2d
the
views
83
841
substantially
performance
juror
of
duties as
impair
oath);
and his
Adams v.
accordance with his instructions
(1980) (in
Texas,
38, 44, 100
2521,
Ct
Whether a
biased
juror
determined
exercise of its
to be
the trial court
fact
That court
D(1)(g).
advantage,
discretion. ORCP
has the
lack,
seeing
challenged prospective
which we
juror
demeanor,
observing
juror’s
apparent
intelligence
candor, all of
are
in the
challenge
which
factors
trial of a
cause. State v.
104 Or at
Brumfield, supra,
528.
trial
court’s
as
judgment
prospective juror’s
qualifica
to a
ultimate
great weight.
tions is entitled to
The court’s decision will not
be disturbed absent a finding of an abuse of discretion. State v.
523, 528-29,
Nefstad,
(1990);5
309 Or
A prospective juror’s approval of
opposition
to the
penalty
death
alone is not determinative of whether the juror
may serve as a juror or must be excused.
question
whether
prospective
juror’s views would prevent or sub
stantially impair
performance
of his or her duties if
selected as a juror. State v. Nefstad, supra,
536;
309 Or at
State
Wagner,
v.
supra,
175;
Leland,
Juror Muench Don Muench had moral and essentially stated that he Nefstad, supra, In explained 309 Or at we that this court does not review de novo a trial court’s ruling challenge on a based on actual bias. We accord great weight try finding prospective juror to a trial court’s as to whether a can a fact impartially. case feelings impossible religious for him make it that would penalty. repeatedly He law on the stated that followthe death imprisonment appropriate thought sen- he life was more juror’s questionnaire aggravated murder. His asked: tence for imposi- strong feelings question such on the “Do have [penalty] phase in the second tion of the death impartial?” you would unable to be fair trial that be and question, answered “Don’t know.” Muench “disagree(d)” questionnaire, stated On his Muench that he following with the statements:
“(c) if I vote in some cases could for the death sentence jury.”
were on Although thought he he could be fair Muench also stated that prosecutor challenged impartial, cause, him for persuaded The court was not trial court excused Muench. impartial juror fair and or that Muench would be he penalty. The court stated: would be able to vote for the death questions “THE answered the on both COURT: He’s couple the coin a of times. sides of * * [*] [*] *14 frankly
“THE I’m at a know what his COURT: loss to question. His position is. answers seem accommodate [*] * * * questions that
“THE answered COURT: But he’s other might impose death that he able to indicate not be personal religious beliefs. because of his and * * * * Well, opinion going I’m
“THE I’m of the COURT: very question challenge. This is a serious to allow the other out.” think his answers cancel each support trial record to There is evidence court’s. prevent or substan- viewswould determination Muench’s performance juror. tially impair find no error. as a We
Juror Kavet Mary opposi Kavet was not excused because of her penalty. tion to the death The record shows that she was excused for cause because she stated that she did not want to any gruesome depicting see or hear evidence violence. She this,” stated that she “couldn’t handle a case like that she and that she “impaired listening would be evidence,” to the did not think she could be fair to defendant or to the state. charged, Because of the nature of the crimes the evidence to be necessarily gruesome introduced at trial included evidence of violent crimes. Defendant and the state were entitled to have every juror hear and consider all the relevant evidence. prosecutor challenged Kavet for cause because of expressed unwillingness her to view and consider relevant objectionable, evidence that she found and the trial court excused her for that reason. There is evidence in the record to support the trial court’s determination that Kavet’s views prevent substantially impair performance would her as a juror. We find no error. Boley
Juror argues prospective juror Defendant Michael Boley (1) juror was unsuitable as a because of his views favor- ing penalty, (2) personally the death because he was biased against defendant because he knew someone who had been (3) murdered, and because he held some incorrect views of the challenged Boley peremptorily. law. Boley Because jury, only “prejudice” did not serve on the to defendant remaining peremptory challenge was that defendant had no later jury. Brown, excuse Paul who did serve on the being prolix, quote portions At the risk of we those Boley’s 55-page parties voir dire examination which the this court deem relevant:
«* * * * * [defendant’s BY counsel]: “EXAMINATION MR. GROVE Okay. “Q Do what know kind of case that we’re dealing today? with here Yes, “A I do. charged aggra- “Q You knowthat Mr. Montez is with *15 aggravated murder,
vated three countsof murder? “A Yes. — you things I’m now
“Q going And I need to ask some okay? things penalty, maybe some later about death and that, to do you I understand it’s awkward for me And want to penalty been a potential before there’s ever to talk about a regard potential charges. So the fact finding guilt in to the you penalty doesn’t have talking I’m about the death that my guilt. anything do with belief about Mr. Montez’ Okay. “A society you you our would
“Q I think had indicated think imposed if were more often? be better the death “A Yes. proposi-
“Q you strongly agreed particular that And with tion, wondering society And I’m what would be better off. you society in terms think your thoughts are on that of how people. What would be be better we executed more would actually accomplished by doing that? Well, apt people I be less to do such
“A think more would type know, you situa- do the crime or do the crimes. You [sic] heard, apt tion, people be less to do what I’ve would from be, thing you They good would see that it wasn’t them. you, know, going committing murder or what have out and just they I penalty for that. And feel that and there is a stiffer should do more it. people that sit there for
“There’s a lot of on death row money away, years going years years and and that’s tax probably and I Maybe guilty. A lot are you know. some aren’t right they doing more of it maybe should start a little think now.
“Q a deterrent effect? So think there’s Yes, I “A do.
“Q Okay. Anything else? know, mean, you mean, I people,
“A I some No. stuff, they should be really think brutal murder commit they they person away same as did to with the done something. murdered or punishment; strong supporter capital
“Q You’re right? “A Yes.
U* * * * * “Q your questionnaire you And in most said murderers ought penalty? to receive the death *16 (Witness head)
“A I Extenuating nods believe that. cir- cumstances, mean, know, though, you I things might a lot of self-defense-type thing maybe, you be like in a know. Murder mercy gentleman you know, might, help where an older along than, know, goal you wife to meet her might, sooner she laying dying if something she’s there in bed or like that. But they murderers, are often found I just helping as but think he’s point. Maybe a ought loved one at that there to be different that, penalties life, taking but it’s still I a feel.
“Q steps imposed What kind of would be in a situation that, mercy killing? like a Well, again,
“A depends it on the circumstances. Like a mercy killing, guess, you know, I there should be some kind of penalty. people’s lives, You shouldn’t take again, but then it mean, shouldn’t be as stiff something. as to be executed or I I maybe couple years there can see prison a something. know, parole years, You I really seven don’t I know. can’t say. <<* * * * * Now,
“Q you feelings, you have if I correctly, understand that unless you there’s some kind of extenuating what call circumstance, penalty that the ought imposed; death to be right? “A Yes.
“Q Upon a conviction for murder? Yes, sir,
“A that’s true.
“Q aggravated For murder. “Well, you you let me ask automatically this: Would impose penalty the death on a conviction for murder if there extenuating were not circumstances described?
‡ ‡ ¤ ¤ Honor, object Your I to the form of “[PROSECUTOR]: question. I juror think the is entitled to know what the law question is. The is whether he can follow the law. I would ask that Counsel read the juror statute to the so that he can question. answer that
“THE COURT: power Because he wouldn’t have the sentence if straight anyway. it were a murder attitudes, I inquiring which I am about
“MR. GROVE: scope voir dire. permissible think is within think you can voir dire but I think do “THE COURT: [I] question. incorrect that’s an right. All
“MR. GROVE: (continuing) “BY MR. GROVE: — your your opinion let’s talk about “Q Would it be upon convic- your opinion that Would it be personal belief. murder, extenuating circumstances as was no there tion for automatically them, penalty death that the you described imposed? should be circumstances, No, If other guess not. there were
“A yes. possibly, then aggravated murder? upon conviction for
“Q How about so, yeah. “A I believe automatically should be
“Q That the death *17 extenuating circumstances? imposed unless there were so, yeah. “A I believe penalty isn’t Now, explained you, I the death
“Q to as Okay? imposed conviction. automatically “A Yeah. — let aggravated murder “Q If conviction for you there is a — of the burden then the State has go this with
me over to the that the answers beyond doubt proving a reasonable Okay? the three yes. These are question ought to be three you, if I could. go those with questions. me over Let cause the “A, the defendant whether the conduct deliberately and with was committed of the deceased death of the deceased expectation that the death the reasonable result, okay? would another the defendant
“B, probability that there is a whether constitute that would acts of violence criminal would commit you that one? society? Do understand continuing to threat “A Yes. evidence, the C, by whether if raised
“Q And it’s unrea- killing deceased was in of the defendant conduct by any, if provocation, response to the sonable one? you followthat Do deceased. again? one you read that
“A Can evidence, “Q by If it’s raised whether the con- Sure.. killing duct of the defendant the deceased was unreasonable response provocation, any, if to the the deceased. Okay. “A
“Q got You that?
“A Yeah. “Q you any particular feeling Do have about the fact that penalty automatically imposed upon the death is not a convic- aggravated tion murder? be, really. but, you know,
“A I Not feel that it should majority people in, guess. really I I have vote it don’t why actually. see it’s
“Q Okay. here, “As I indicated there’s a for aggravated conviction — murder, okay, jury given then the is there’s evidence taken okay? again, questions And these three are submitted jury, okay? questions beyond Each of proved those has to be jury yes reasonable doubt before the can answer to those — questions, they unanimously have to have to answer yes questions, okay? to those Okay.
“A “Q you case, juror you If were this able would be you personal opinion, your set aside personal feeling, about imposition of the death in a situation like this? Yes,
“A I believe I could. “Q Okay. you How difficult would it be for to do so? Well, difficult, “A probably not too but there’s still that part you think, well, might little would like to something happen might happen. see more than don’t know. I guess say. all I that’s can “Q Okay. And asking questions the reason I’m these *18 your questionnaire, your responses questions
that to the indi- you’re strong supporter cate that okay? a real penalty, the death you expressed your And also at one time that were at principle least of a eye eye? kind believer of an for an “A Yeah. “Q you okay you If kill it’s for to be killed. Is that basi-
cally it is? what
“A Yes. “Q Okay. asking questions So the I’m reason these you you could be fair a case or not think determine whether your personal feelings, strong personal given your like this feelings. but, could, know, you might think points I I some it “A difficult, yeah.
be a little Okay “Q — See, my mean, yeah, I know I think I “A I don’t could. —
— well, halfway a I know Dave’s mother ran house don’t prison, okay? people coming up just out of She lived below Community College. Portland campus?
“Q Which My Sylvania campus. “A She was schoolteacher. money people that grandmother. And she loaned nieces’s [sic] helping halfway was of Dave’s was this house that she some Well, got prison. one of she wouldn’t loan friends out time, money and he in and her. Shot them one came murdered her house shotgun her several times with a and then burned somebody I that to a So couldn’t believe that would do down. lady like nice that.
“Q your This mother-in-law? was No, my grandmother, “A Dave’s this was neice’s [sic] —they they finally [Sterling’s] guess And I did catch mother. eventually happened him or guy. I knew what never really I felt he should anything, but I felt bad about it. did, I no got penalty. he have have death Whether idea.
“Q you was? Do know what his name No, “A idea. I have no you ago this was?
“Q long Do know how years ago, I “A It three to believe. was about four caught? Okay. got “Q you guy think But got caught. “A I he know got
“Q you lady murdered? Did know Yes, “A I did. her?
“Q How did know well yard helped I her her Fairly “A did work for well. Dave Her wasn’t around. around obviously house. husband helped She jail. So we her around the house. was schoolteacher, very was independent and she was a woman said, community. pretty tragic in the It like friends was a *19 and school my neice was at happened, have thing to [sic] mean, your her, I that to up kid came and said little some way find dead, her. a somebody murdered What grandma is she than hurt her a lot harder deep down inside it I think out. today. be, that she still carries but I’m sure ever made out carry feelings about you? you still “Q about Do How this?
“A Yeah.
“Q Rage kind of stuff? Well, somebody being friend just angry was a “A that she — life, he help whether trying to in his whether it be to and do he would back and really good, that bad or that come was money. pretty tough. just like that It was something over situation, anything happen besides In did else “Q that robbery? murder and house, Well, they guess, I to mask
“A burned down their crime.
“Q was How old she? 61,59,60, right in there.
“A I believe she somewhere was Okay. house was “Q She was shot to death before the burned? Yes, she was.
“A any your anger “Q possibility feelings of Is there case, you’re going this chosen about that are to come out juror? as a Honor, again, object Your I Once “[PROSECUTOR]: question. question or not this
the form of whether juror able to will be follow the law. Well, no, appropriate I think “THE COURT: this is an * *
question, *. Go ahead. (continuing) “BY GROVE: MR. your anger
“Q possibility feelings Is there situation come out this case? about that would know, could, but, you I “A I follow the law the best would like that possibility revealing evidence and stuff there’s know, you, you just pictures have it’s I saw whatever but, that, yeah, I’m my yeah might. I sure brain that click possibility. there’s a bit, okay, put it to “Q Okay. go Let me a little back case, okay, may way, okay? be evidence in this
you There this you that would be angry, okay? nature that could make particularly And more case this involves the murder of a young lady year on June 21st last who was found Continental Motel. Have ever heard about this Continen- tal Motel before? at,
“A don’t even know where it’s no. rate, “Q anyAt they the crime scene was such that found body, okay. her She was bound with her hands and tied feet her, hog-tied that, okay? behind is the term that’s used for *20 Okay. “A
“Q gagged. She was had She some bruises on her head. sexually by having object She had been abused an placed in death, force, okay? Strangled her rectum with to and after happened, Okay. that had burned. she was All dead. After that, itself, right? It’s the kind of evidence taken even any personal experience, person without angry.” could make a (Emphasis supplied.) question,
This was not a a but recitation of fact. juror The gave perfectly which logical any answer did not reveal preju- against dice defendant. yes.
“A I how person angry, can see that would make a — “Q The statute aggravated there’s conviction for — you I murder this case read the and statute that statute questions you kind of talks about the evidence or the kind of making have to answer it doesn’t talk about a decision anger.
“A Correct. revenge any “Q Or for or retribution reason. or for other “Now, you I the reason outlined evidence for is that here, given question some there’s similarities particular you you think situation do still could be fair?” (Emphasis supplied.) to question patently improper. juror was It asks com- specific
ment in how he advance on would react to evidence. juror respond question How is a to to a which asks what the juror’s showing reaction would be to evidence that the murder a young “hog-tied,” gagged, victim was woman who had been beaten, sexually strangled, body abused and and whose there- destroy attempt after had been burned an the evidence of criminal homicide? why brought I yeah. kind of tough, That’s might be
“A It up you. it Well, appreciate that. yeah, and I
“Q honesty, yeah. tough, yes. In all may be “A It Judge would may point, it be “Q some At sympathy for feelings, your personal you to set aside instruct you victim, your feelings of bias for the or the defendant have, anger, feelings of you might any prejudice might have based thing, and make a decision sort of and that retribution you by Court. Do given to the law as solely the facts and to do that? you you’d be able think
“A I think so. that, do Okay. possibility couldn’t
“Q Is there a that I’ve outlined? given the situation Honor, form of object to the Your “[PROSECUTOR]: through gone this Possibility. I think we have question. before. standard, course, Well, be would
“THE COURT: possible.” anything is possibility, because probability, not Inquiry as court’s comment. understand the trial do not We However, trial court immedi- appropriate. bias is possible possible into bias. inquiry and allowed ately gears shifted *21 Well, that, I’m I think I understand but “MR. GROVE: — that, if not a chal- explore least in terms of to at entitled cause, a not I want to exercise lenge in terms of whether or for are challenge. I think those kinds of attitudes peremptory inquiry. jury proper for Well, I it. purpose would allow
“THE for that COURT: (continuing) “BY GROVE: MR. you be fair possibility exist that couldn’t
“Q that So does you personal feelings? and set aside Yes, is. “A there happen? likely than not to
“Q Is that more know, fair, but, possibility that you “A I I could be think know, benefit of always give I the man the might I not be. You people be fair think, I’d to doubt, though. I know want I me, I’ll fair with them. and be with you might Well, possibility exists that you “Q think the not be fair? Honor, object. Your I This has been
“[PROSECUTOR]: asked and answered. I
“THE think specific COURT: he’s stated a answer specific question. that
“BY (continuing) MR. GROVE: it,
“Q Let rephrase strong me then. is pos- How sibility? guess up, yes. “A I it could come On a from scale one to
ten, know, three, you a four. Okay. now, “Q you I guess But as sit there I understand talking hypothetical question. we’re about a Do think that chance, just you, from what I’ve outlined to is than less 50/50 happen?” that could Counsel now has converted a statement of into a question fact fact, of reaction question into a of overall fairness. The juror may been equating well have his reaction of anger — fairness he questions when answered this last series of how juror would react to specific gruesome evidence juror whether be uncomfortable can fair if with such facts. “A Yes.
“Q Okay. Honor, challenge
“MR. GROVE: Your I juror would cause, represented for based on the fact that he’s to us that possibility there is a substantial he could be fair case, this I graphic and think that the most case that was response his last I terms of scale of one to ten. And case, given challenge think a the nature of this for cause appropriate would be at this time. possibility
“THE in the COURT: Still think it’s area challenge. your not sufficient a basis understand position.”
If question Boley was whether would defendant juror give a trial, fair rather specific than whether reaction to evidence verdict, might possibility affect of unfairness of 3 or Boley’s ability casts fair scale sufficient doubt on to be *22 Boley as to have right to warrant defendant to excused dire, however, voir stop cause. The did here.
Boley specifically thereafter answered he would defen- be fair to both the instructions follow the court’s position earlier retreated from his and he dant and the state doubt. ‡ ‡ ‡ ‡
<<:fc may dealing principles we be with “Q One confession, solely person based you convict a can’t
okay? Okay.
“A independent “Q some evidence that There has be occurred, right? crime all right.
“A All you you like that? “Q Do think see the reason for a rule you If have to have evidence to “A he confessed then him? convict committed,
“Q Independent crime was evidence that the that the crime occurred. confesses, mean, know, somebody you they
“A I I feel I feel. did the crime that that’s how — Okay. maybe “Q go through Let me I can this with you you applies. somebody If into a and show how it walks murder, police says okay, you I station and committed a can’t person solely convict a based on that statement.
“A Okay, I can see that.
“Q got body, okay? You’ve to have a “A Yeah.
“Q somebody says rape, If I committed there has to be independent some that that crime occurred or sod- evidence abuse, omy kidnapping, okay? sexual “A I understand.
“Q you following Are me on that?
“A Yeah. otherwise, you may you think
“Q though So even feel do your personal feelings and follow the you’d able to set aside be — you? given you, if I’ve outlined it to law as as “A Yes. Judge?
“Q given If in fact that law is Yeah, I “A believe could.
a* * * * * *23 “Q Now, Okay. you probably I think from understood looking questionnaire at the Judge and from what Crookham you, told that in potentially a trial of this nature are there two
phases. The only purpose, phase first has one the first of the person trial. That’s to guilty determine whether or not the — or innocent Right. “A — —
“Q situation, of the crimes In the crimes. that in phase trial, phases trial, that of the in both of the the State has proving the burden of beyond each element of each offense any you agree reasonable doubt. Do with that? agree
“A I that’s it what should be. — “Q The principles other one other that we deal person in with a criminal trial is that a who’s a accused of crime obligation testify and chooses to have a trial has no in trial, okay? you against that And any can’t hold him that as guilt. evidence Okay.
“A
“Q you Can do that?
“A Yes. “Q Okay. you might good Do think why there be reasons person testify a wouldn’t at his own trial that nothing have guilt do with or innocence? No, mean,
“A why, I I why don’t see testify. he wouldn’t “Q Okay. you particular Would be able to set aside that question tion, your simply Judge’s mind and follow the instruc- you you’re if he instructs that not to consider that determining guilty not whether or he’s or innocent? Yes,
“A I could.
“Q Okay. You’re sure? “A To my I knowledge, yes, the best of think I could. “Q Okay. this, you And I the reason ask that’s constitu- right, okay? tional That’s one that’s been around for 200 years. obligation There’s never been a criminal trial or person explain. always accused to The burden is on the prove guilt, okay? State to
“A Yeah. “Q any If there’s conviction on of those counts of murder, aggravated okay, then there would be the second trial. — well, gone you, you I’ve over okay? that with We start can trial, use the evidence from first but burden doesn’t beyond prove a reason- the State to still on change all. It’s at yes. Do answered should be questions those able doubt way? disagree with it. prove have to State should I still think “A No. your pardon? “Q begI —prove have to
“A The State should trial, you’d put the phase of the got “Q if we So say, proof and switch the proof. wouldn’t You to their State murder, he aggravated well, convicted of guy has been this penalty? get the death why he prove to us should should mean, I I think the Yeah, that. I I could do “A think I it, would yeah. I don’t think prove still have to State should — being guilty, wouldn’t my if he was convicted switch he prove that have to way, like he should say other *24 years what- hundred penalty or a get the death shouldn’t be, imprisonment. would life ever it ‡
‡ we first you I that is when Okay. reason ask “Q you general, talking crime about when we were started off about, well, people should be I think something don’t said may be that a years, and it murder for seven going down for is some- aggravated murder life on a conviction sentence understanding your personal from what thing much different you get that be, may to okay? also be that might And it you have to make phase trial and particular [penalty] you to set aside decision, instruct Judge the would meaning of a life personal you might have about any belief release, parole or work matters of not consider sentence and like things that. you’d that? you be able to do
“Do think Yes, I so. “A think able to? you wouldn’t be any possibility
“Q Is there “A No.
U* * * * * evi- [mitigating] willing listen to
“Q you Would be any? if there was dence
“A Yes. being mitigating? it as
“Q And consider Yes, could, yes. I “A weight? amount of mean, you give a fair
“Q I would “A Yes.
<<* * * * * “Q testimony Some of the in this case could come from police you you’d give officers. Do think credibility them more any than other witness?
“A No. “Q In determining questions these under the death statute, penalty you do think the age defendant’s be should considered?
“A No. “Q Judge If you instructs age, you consider his will do that? guess to,
“A I if I yes. was instructed “Q In making determination, questions that kind of you, that I’ve outlined to severity talks about the extent and prior you defendant’s criminal conduct. Do think that’s something you ought to look at? “A You mean what he did before I suppose that? Yeah. so, really but it shouldn’t bearing have being on what he’s I guess jury that, tried for. should know no. “Q you impose Before penalty, you before decide penalty impose?
what No,
“A they don’t believe should know that. “Q If Judge you instructs to consider extent and [the severity prior conduct], defendant’s criminal will do it?
“A Yes. “Q Now, Okay. in talking about the death *25 maybe thing quite you, you one I didn’t ask do think there are any crimes appropriate that the death would be result, where death didn’t as a result of the crime itself? No, “A I don’t think so. —
“Q Okay. only you only You would would reserve that for the crime where death was a result of the crime? Yes,
“A
«* * * * Defense finally counsel returned to the basic question of fair- ness:
“Q [By you Mr. And I’ve outlined to the nature of Grove] experience. Would personal your own you have case and this in case? juror this sitting as a you feel comfortable comfortable, guess I yeah, but if I’d be “A I don’t know — — mean, I mean I do it. I could you probably response, your I “Q And if understand could be fair? Yes, I could be fair.
“A couldn’t, given you possibility exists “Q But the happened has your feelings and what your experience and before?
“A Yes. Honor, questions I further have no GROVE: Your
“MR. my challenge for cause. juror. I would renew * * U* * * my challenge upon deny I based
“THE will COURT: prior ruling.” eliminating Boley, questioned then prosecutor challenge for cause. for a
any grounds valid * * * you prepared to take an “Q Are [By Prosecutor] you prepared to follow that oath juror and are oath as a you by Judge? the law as instructed follow Yes, I am. “A you doing prevent from
“Q anything would Is there that, following law?
“A No. sides, both to the you to both
“Q Okay. And will be fair and to the State!” defense equivocation. answered without
Again juror Yes, I would. “A feelings! You under- your personal “Q you set aside Will case, do with have to trying it doesn’t we are this stand that you past. Are happened that have other cases particular case! it to this apply
prepared the law follow Yes, “A I would. doing feelings your personal aside
“Q And can set that, following the law? I best could.” Yes, try do the I
“A would. would supplied.) (Emphasis
592 Boley penalty fact that favored the death would not necessarily disqualify serving him from as a juror unless his views would have prevented substantially impaired the supra, State v. Nefstad, performance juror. of his duties as Wagner, supra, State v. 526; 175-76; at State 309 Or Or at 305 Leland, supra, v. Or question at 625. The then is whether there evidence to support record the trial court’s Boley conclusion that could as a and impartial juror. serve fair is such There evidence.
Boley stated that state should have the burden of justifying sentence, a death even after a has been defendant guilty aggravated describing found murder. While himself strong as a death supporter penalty, he that agreed extenuating might circumstances make death inappropriate specific always case. He stated that he gives people the benefit of the trial, doubt because if he were on he want people would to be fair with He repeatedly him. stated could might he set aside he opinion hold and decide evidence, the case on the and that he would follow the trial court’s they pre- instructions even when conflicted with viously held regard views. With to defendant’s incriminating statements, Boley personal stated that he could set aside his law feelings about the and follow the court’s instructions. Boley volunteered the information about the murder of his years brother-in-law’s mother several earlier without any prompting thought from defense counsel because he it might be He stated that he set his per- relevant. could aside sonal feelings about that event and decide this case based on the evidence questions adduced at trial. Defense counsel’s Boley about whether certain might evidence in this case make Boley “angry” they objectionable were because asked for a evidence, i.e., specific Boley would comment on whether be angered by “hog-tied,” murder was evidence victim “sexually abused,” context, “strangled,” and “burned.” In Boley’s responses improper appear appro- questions those priate; they gave disqualifying no basis for him as a juror.
Boley’s voir dire examination does not establish that he was biased defendant or he personally against was unable follow the law. The trial court was entitled to believe, obviously believe, Boley’s impar did assertions of tiality and that he would the court’s follow instructions. for grounds law about were Boley’s former views as he able to follow the long him cause so was excusing Wagner, supra, See as to the law. State court’s instructions 540, P 175; 63 Or Humphrey, at (1912). *27 one to the odds
Boley that on a scale from ten stated and aside his three, not be fair set were “a four” that he could he However, Boley stated that personal subsequently feelings. the feelings and follow personal be able to set aside his would he that state had affirmed the Again, trial court’s instructions. penalty phases and of the proof guilt the of on both the burden he not hold it defendant against He stated that would trial. he would to and testify, defendant chose not and that listen response questions In from weigh mitigating evidence. his Boley the answered that he would set aside prosecutor, as and personal juror that he follow his oath feelings, would law, as he fair court’s instructions to the and that would be to both sides. upon Boley’s conclude of entire voir dire
We review examination, support is that there evidence in the record to as a fair Boley the trial court’s determination that could serve juror. supplies The basis this court impartial and record no for Boley trial not to excuse to conclude that the court’s decision for error. cause was reversible error. We find no peremptory challenge to
Defendant used his eleventh Boley. remove Olson
Juror contends the trial court erred in during juror dire to excuse Olson denying motion voir Vern He that he had read a argues cause. that Olson admitted story jury about selection after the court had newspaper coverage all to avoid media of the prospective jurors instructed argues further: case. Defendant voluntarily ignored intentionally Olson “[JJuror respect This for and failure to
court’s instruction. lack prima comply with court’s instruction is evidence facie again, juror ignore disregard the court would opportunity.”6 given the story newspaper judge and that it issue trial that he had read the The stated nothing judge prejudicial to defendant.
contained that the found
Olson stated that he recalled the trial court instruct- ing prospective jurors look at old news articles about defendant but that he had not realized that instruction applied also to current coverage media about the trial. After admonishing Olson that it had jurors instructed to avoid all case, media coverage the court found that his conduct breach,” merely was a “technical and it denied defendant’s motion to excuse Olson for cause. implicitly record shows the trial court
accepted as truthful Olson’s statement that he had not real- applied ized that the court’s instruction papers. to current Thereby, the court also implicitly found that Olson had not intentionally disobeyed the court’s instruction. Olson’s unin- tentional breach the court’s instruction did not require dismissal for cause as a matter law. There evidence in record to the trial support court’s determination that Olson could serve a fair and impartial juror support as and to court’s denial of defendant’s motion to excuse Olson for cause. find no We error.
Defendant used his peremptory twelfth and chal- last *28 lenge to remove Olson.
Juror Brown also in Defendant contends that the trial court erred denying his motion dire during voir to dismiss for cause police why officer Paul Brown. Defendant cites numerous reasons Brown cause, should have been excused for but none of them required that Brown be of reject excused as a matter law. We defendant’s and principal argument that “common sense Brown, officer, experience” suggest police human could impartial juror any not serve as a fair and in case. As this with prospective inquiry try is whether the officer can juror, case and follow trial court’s State impartially instructions. Wagner, v. 305 Or at supra, 175. any personal he could aside
Brown answered that set was prejudices and a fair trial. The trial court give defendant The accept impartiality. entitled to that assertion court implicitly conscientiously perform found that Brown could duties of Brown’s voir dire juror Nothing if in selected. refusing indicates that the trial court abused its discretion excuse for find no error. Brown cause. We peremp- his last already used had Because defendant jury. defendant’s served on challenge, Brown tory Motion Mistrial erred the trial court contends pros- ground mistrial on for a his motion denying misconduct. ecutorial dis to the sound mistrial is addressed
A motion assess position in the best who is judge, trial cretion of the This defendant. to the potential prejudice rectify court that the trial can be said only when it reverse court will Farrar, v. 132, 164, 786 State Or its discretion. has abused Jones, 242 Or 427, 433, 410 P2d State (1990); P2d 161 (1963). Hoffman, 98, 108, P2d 741 (1966); the state’s during occurred following exchange Goodale: examination of Detective — make how about say he statements “Q Did he did — talking it? about how did he start much truth or how much * * * * go interview Annie repeatedly asked me to
“A Montez any anal Pocatello, if he had had I asked Montez Edmo him if he had doing I asked Annie and he denied that. sexwith — Annie attempted to choke Detective, go that. please; please don’t into “Q will for the Court. object. I have a matter GROVE: “MR. recess, a ten-minute “THE Let’s take about COURT: (Whereupon,the fol- gentlemen, for the afternoon. ladies and presence open court out of the lowingproceedings were held jury:) ‡‡‡‡ Honor, third time at this is the GROVE: Your
“MR. prior criminal conduct or Montez’ that evidence of Mr. least *29 has been criminal that could be considered prior conduct last nature of the I think that the injected into this trial. question, particularly when it related — person not who to a Edmo, preju- case, is so Annie in this one not the victim was mistrial at grant choice but Court has no dicial that the I so move. time and would this
<<* * * * * Well,
“THE right. COURT: All in view of the entire record, deny I’ll the motion.”
The state concedes that the relevant testimony was inadmissible at that stage of the trial. prosecutor had fact, recognized that and he had immediately attempted to stop testimony. Goodale’s Defendant does not argue that the prosecutor deliberately sought the objectionable testimony from prosecutor’s Goodale. The question was not phrased to elicit such testimony, and the record shows that Goodale vol unteered the testimony unexpectedly. On this record we find prosecutorial no misconduct and thus no error in the trial court’ denial of defendant’s motion.
Indictment contends the trial court erred denying his motion for a judgment of acquittal and oral demurrer ground on the that Count I of the indictment is not definite and certain and fails to state a crime. He argues that Count I fails to state the crime of aggravated murder because it does not allege all of the elements of the crime or crimes defendant intended to conceal.
Count alleged indictment in part that defen dant and Aikens unlawfully intentionally,
“did in an effort to conceal the identity Timothy Montez, perpetrators Aikens and Marco of the crimes Kidnapping Degree[7] Rape in the First in the Degree, Sodomy First Degree, the First Sexual Abuse in the Degree First and Assault Degree, the Fourth cause the Straub, death of being, another human to-wit: Candice * * *” strangling the said Candice Straub to death 132.550(7) provides
ORS that an indictment must contain:
“A
constituting
statement of the acts
the offense in ordi-
nary
language,
repetition,
and concise
without
such
person
manner as to
understanding
enáble a
of common
* * *”
intended;
know what is
Cohen,
525,
In
(1980),
An
language
indictment
in the
of the
gener
statute
ally
Nussbaum,
is
87, 91,
sufficient. State v.
261 Or
491 P2d
(1971);
Tracy,
349, 354,
State v.
246 Or
“The murder was committed an effort to conceal the crime, commission of a identity or to per- conceal the petrator aof crime.”
In case, this the indictment lists the various crimes of which defendant was charged. The indictment identified Count I as MURDER”; “AGGRAVATED specifically Count I referred 163.095(2)(e). to ORS It necessary was not for the indictment to allege all of the elements of the crime or crimes defendant intended to conceal in order sufficiently state the crime of aggravated murder in Count I. We conclude that Count I is sufficiently definite and certain and adequately it states the crime aggravated Cohen, murder. State v. supra.
Furthermore,
the proper time for defendant’s objec
tion to the indictment was before
pre-trial
trial. A
demurrer
would have given both
timely
the trial court and the
state
opportunity to review the indictment
and to make
neces
sary corrections before trial. See ORS 135.610 et seq. Defen
dant’s objection at the end of his trial was untimely, and the
trial court did not err in denying
acquittal
his motion for
that ground.
Holland,
See State v.
666-67,
277 P2d
(1954);
Smith,
497, 507-08,
182 Or
Defendant next contends that the trial court erred in denying his judgment acquittal motion for a on Count II. He argues that there was insufficient evidence for a reasonable trier beyond of fact to find a reasonable that he inten doubt tionally “tortured” Straub. part: II of the indictment reads in
Count
* * *
unlawfully
defendants
did
and inten-
“The said
tionally
being,
human
to-wit: Can-
cause the death of another
death,
Straub, by strangling
dice
the said Candice Straub
* *
torturing of Candice Straub
the course of intentional
here,
produce
that the state failed to
Defendant’s contention
physical pain,
any evidence that Straub suffered intense
Lewman, the medical examiner testified as to
ludicrous. Dr.
Further,
her
pain
injuries.
that Straub suffered from
misses the mark because the statute
defendant’s contention
not on
pain,
focuses on a defendant’s intent
to inflict intense
*31
quantum
actually
by
of
suffered
a victim.
pain
concerning
Defendant’s
own statements
his and
thereto, pro-
Aikens’
of
and her reaction
treatment
Straub
beyond
find
jury
vided sufficient evidence for a reasonable
inflicting
objective
reasonable doubt that defendant had the
of
Straub, apart
on
from his intent
to murder her.8
pain
intense
by detailing the
purpose
No useful
will be served
cruelty
perpetrated
acts of
defendant and Aikens
on
explicit
in the
they
Viewing
Straub before
murdered her.
the evidence
state,
Harris,
703,
favorable to the
288 Or
light most
in
721,
(1980),
P2d
we are satisfied that the evidence
798
that defen
jury
the record is sufficient for the
to have found
(and
“tortured” Straub
that she suffered
intentionally
dant
acts).
intense
as a result of his
See State v.
pain
Cornell/
Pinnell,
31-32,
(1987);
741 P2d
see also State v.
304 Or
(1989);
332, 339,
State v. Krum
King, 307 Or
Defendant contends the trial Count III of the indictment denying his oral demurrer to it failed to state a crime. ground part: reads in Count III of the indictment defendants, together part the same acting as “The said 21, 1987, County transaction, in June on about act and unlawfully intentionally Multnomah, Oregon, and State of did Goodale, prior he had commit to his admission that In his statements to one of Aikens, characterized Aikens’ defendant himself he had earlier attributed ted acts as torture. conduct toward Straub Rape in Kidnapping Degree, in First the crimes of
commit Sodomy Degree, in the First and Sexual Degree, the First course of and Degree Abuse in the First and the said defendants were furtherance of said crimes which intentionally personally and committing, the said defendants being, human to-wit: Candice did cause the death of another Straub, crime, participant by strangling not a in the the said death, contrary Straub to to the Statutes such Candice provided against peace dignity cases made and and Oregon.” the State of argues alleged there were no acts rape
Count III which would constitute the crimes of in the degree, sodomy degree, first in the first and sex in the abuse only first He degree. argues alleging further that those crimes specifically any name fails to describe conduct or circum- stances which him the statute bring defining within those crimes and that Count III therefore is it deficient because lacks statement how indicating or to whom the named criminal acts occurred. III
Count of the indictment was based on ORS 163.095(2)(d). That statute provides: 163.115(1)(b),
“Notwithstanding per ORS the defendant sonally intentionally committed the homicide under the 163.115(1)(b).” circumstances set forth in ORS provides ORS 163.115 in part:
“* * * criminal homicide constitutes murder: «4c *32 * * * [*]
“(b) by person, acting When it is committed either persons, alone or with one attempts or more who commits or any following commit crimes in and the course of and person in attempting committing furtherance of the crime the is or commit, during flight the immediate there- from, person, participant any, the or another there be causes person participants. the death of a other than one of the 4; «4c 4: 4c 4c “(H) Any felony in degree sexual offense the first defined * * *” chapter;
in this
Count III ORS language tracks 163.115(1) (b)(H) and, record, on this that is sufficient.
Furthermore,
objection
defendant
raised this
for the
Thus,
first
time at
the end of his trial.
his demurrer was
it.9 See
untimely,
overruling
and the trial court did not err in
Holland,
Smith,
supra,
State v.
State v.
666-67;
202 Or at
supra,
Guilt Phase Instructions
Defendant
contends
the trial court erred in
instructing the
on Count I.
jury
took no exception
to the instruction at trial. He asks us nevertheless
to consider
7.19(5)
his assignment of error under
ORAP
sub-
[the
former
stance of which is now found in ORAP
as an
5.45(2)]
error of
apparent
law
on the face of the record. We decline to do so.
Upon
record,
examination
say
of the entire
we cannot
that the
alleged
justice
error is manifest and that
the ends of
will not
otherwise be satisfied unless we
assignment.
consider
Hitz,
State v.
Or
State v.
(1988);
Defendant contends that the trial court in fail erred ing to the following instructing include statement the jury as to the definition of “torture” as the term is used in ORS 163.095(1)(e):
“However, every physical pain, infliction of intense though even an intentional act known the actor to be intensely painful, qualifies as torture.”
The trial court instructed the jury: “And the term ‘torture’ as used here the statute charge intense, physical pain the intentional infliction of upon unwilling prove an victim. The state must objective pain inflicting apart defendant had the from intent to cause the death of the victim.” Cornell/Pinnell, supra,
In 31-32, 304 Or at we required concluded that torture elements of intentional finding “separately that a intended to inflict perpetrator physical pain unwilling apart intense on an from the victim” requested murder itself. Defendant’s instruction added noth ing given by Accordingly, to the instructions the trial court. identify any prejudice alleged Defendant does not these deficiencies from murder, identity aggravated He indictment. knew the state’s three theories of victim, date, here, place surprises and the time and of the murder. There were no and defendant claims none. *33 give to that instruction. refusing court err in the trial did not Francis, (1978) 626, State 621, 588 P2d 284 Or ought it to refused unless properly is (requested instruction proposed); it very terms in which was given have in the been Cody, (1925) (court State v. 509, P 983 520-21, 241 116 Or language in the requested to instructions required give not therein). correctly law is stated though asked even Mistrial trial court erred fail- Defendant contends that the sponte sua prosecutor’s from the record the “to strike ing testify to and to remain on defendant’s failure comment sponte sua give a curative instruction failing silent” and or declare a mistrial. prosecutor argued
During closing arguments, his repeatedly changed story, establishing had that defendant had been that defendant’s earlier statements Goodale and, thus, unlikely untruthful it was that defendant’s complete truth. The later statements to Goodale were prosecutor concluded: Honor, gentlemen, just I last
“Your
ladies and
have one
you
thought that
to leave
and that what hasn’t
want
with
is:
you
he told
about
this case? What is there
this case
you
unexplained
has
yet
think that is
that he doesn’t feel he
about,
yet
had to talk
assume for a moment
that he has
to admit? Please do
you.”
still know all of it. Thank
Instead, he
object
Defense counsel did not
to that statement.
final state-
responded by arguing essentially that defendant’s
complete.
ments to Goodale had been truthful
first
the trial
argues
Defendant now
for the
time that
sponte
sua
quoted argument
erred in
to strike
failing
court
improperly
had
commented
ground
prosecutor
on the
that the
White,
on
testify.
He relies
on defendant’s failure
(1987)
333, 341-42,
(prosecutor’s remarks
303 Or
Demurrer Defendant contends that the trial court erred in over- ruling his arguments demurrer to the indictment. His raise separate thirteen state and federal constitutional challenges Oregon’s penalty death constitutional statutory of the challenges previously scheme. Several have been rejected by require this court and no extended discussion.10 proceed We to consider issues impression of first or issues unique to the indictment this case.
a. Validity of Ballot
6
Measures
and 7
Defendant argues
7,
that 1984 Ballot Measures 6 and
which enacted the Oregon
death
scheme for aggra-
murder,
vated
are invalid because Measure 6 included no
financial estimate and because Measure 7’s financial estimate
satisfy
requirements
did not
the
of
ORS 250.125. That
former
provided:
statute
expenditure
public
“When a state measure involves
of
money by
state,
raising
reduction of state revenues or
of
by
by imposing any
incurring
funds
indebtedness,
the state
tax or
State,
Secretary
of
with the assistance of
Treasurer,
Depart-
State
the Director of the Executive
Revenue,
Department
ment and the
of
shall estimate the
revenues,
expenditure,
amount of
reduction in state
tax reve-
required
nue or indebtedness and interest which will be
provision
meet the
if
measure
it is enacted. The esti-
or,
recurring
mate shall state the
annual amount involved
if
amount,
recurring
the measure does not involve a
annual
by
total amount. The estimate shall be certified
at least two of
section,
the officials
named
and not later than the 90th
day before the election at which the measure is to be voted
upon,
based,
upon
it shall be filed with the data
which it is
Secretary
printed
The
shall be
with the
of State.
estimate
pamphlet
the voters’
and on the ballot unless the measure
$50,000
only
expenses
exceeding
involves
administrative
year” (Emphasis
per
supplied.)
10
Farrar,
Wagner,
132,
5,
(1990);
See State v.
State
309 Or
Former ORS 250.125 no for defen inaccurate, incomplete, dant’s contention that an or omitted provides grounds invalidating financial estimate for an ini subsequently tiative measure that has been enacted people Oregon. remedy, any, violation of ORS 250.125 is confined to relief that must obtained injunctive be prior to an election at which a measure is to be voted upon. Such relief would not be available the electorate has after approved measure. Republican
b. Form of Government argues procedure, that the initiative under people which the of Oregon bypass legislature both the and the governor laws, to enact IV, somehow violates Article section Constitution, of the United provides: States which guarantee every “The United States shall State in this Republican Government, Union a protect Form of and shall Invasion; against each them Application and on *35 (when Legislature, Legislature or of the Executive the cannot convened) against be domestic Violence.” The Supreme United States provided Court has no practical guidance as to what constitutes a “republican form government,” of that, because that Court has held within the government, federal guarantee enforcement of the assigned not to the federal political courts but to the branches. See Teleph. Teleg. Oregon, 118, States & Co. v. 223 US Pacific 224, (1912) 32 S Ct L (challenge 56 Ed 377 to a tax license measure). by Thus, enacted an initiative arising claims under IV, 4, Article present section do not justiciable controversies in federal courts.
That
may
does not mean that
the states
not adjudi
cate the compatibility of state law
the guarantee
with
clause.
This court addressed that
regard
Oregon’s
issue with
ini
Portland,
system Kadderly
118, 144-45,
tiative
v.
44 Or
74 P
710,
(1903) (initiative
P 222
and referendum does not abol
ish
destroy
republican
government,
form of
or sub
Portland,
stitute another in
See
place).11
its
Kiernan v.
57 Or
454, 469-80,
(1910);
379,
Oregon
111 P
However,
meas
a
to a
initiative
extremely
obviously
under the
involves
ure
Guarantee Clause
important
questions.
as
It is
examina
well as difficult
not an
lightly,
Oregon’ssystem
especially
to be
when
tion
undertaken
legislation
long
as
been
See
of initiated
such has
sustained.
Oregon
supra,
Portland,
469-80;
v.
57 Or at
v.
Kiernan
Pacific
supra,
Kadderly
Co.,
166;
&
Or at
v. Port
States Tel. Tel.
require
supra,
land,
c. Former
argues
provision for
that the ORS 163.150
phase
phase
guilt
penalty
aggravated
a
murder/death
penalty prosecutions subjects
jeopardy
defendants
former
purposes
Oregon
I,
Constitu
of Article
section
Amendment
the United States Constitu
tion and
Fifth
argues
statutory requirement
jury
He
that
tion.
intentionally
a vic
must first find that a defendant
tim and then must decide that defendant
murdered
deliberately mur
requires
jury
victim
the same issue
to determine
dered
disagree.
do
involve the
Those determinations
not
twice. We
Wagner, supra,
at
146-48.
same issues. State
questions
jury
answer in the
must
capital
aggravated
phase
murder.
of a
case are
elements
*36
jury
weigh
they present
in
Rather,
that a
must
considerations
aggravated
determining
convicted of
a defendant
whether
penalty phase
does
or not. The
murder should be executed
only
appropriate
guilt;
sen-
it determines
redetermine
merely
hearing
penalty phase
of the
a continuation
A
tence.
proceeding
separate
threat-
collateral
same trial and not a
process
Consequently,
ening
a new or different sanction.
jeopardy clause.
12’s,
I,
former
does not violate Article section
jeopardy
proceedings
for
former
constitute
Nor do bifurcated
purposes of the Fifth Amendment. See
Brady,
Swisher v.
204,
2699,
(1978).
US
98 S Ct
d. to Confrontation argues (4) (d) that because OEC 101 exempts sentencing from all proceedings except OEC rules rules, 163.150(2) privilege Article V ORS denied him a fair and sentencing I, reliable in violation of Article section Oregon (confrontation), Constitution12 and the Sixth Eighth (cruel (due and punishment) unusual process) Fourteenth Amendments of the United States Constitution. 101(4)(d)
OEC does not violate defendant’s confron rights.13 tation The specific fact that rules of evidence that implement constitutional guarantees do not apply in sentenc ing proceedings deprive did not defendant of the constitu rights tional 163.150(1)(a) themselves. ORS expressly provides that no evidence shall be received in violation of the Oregon or federal constitution, both of which guarantee the right to confrontation. Defendant does not contend any that evidence by submitted the state violated his confrontation rights. I, 11, provides: Article section prosecutions, “In right public by all criminal the accused shall have the trial an impartial jury county committed; in the in which the offense shall have been to be counsel; by heard against himself and to demand the nature and cause of the accusation him, thereof; copy face, have to meet the witnesses face to and to compulsory process obtaining favor; however, provided, have witnesses person, capital cases, accused in other than and with the consent of the judge, may by jury by judge trial elect to waive trial and consent to be tried alone, writing; provided, however, the court such election to be jury may guilty guilty, circuit court ten members of the render a verdict of or not except guilty murder, degree only save and a verdict of of first which shall be found by verdict, otherwise; further, provided existing a unanimous and not provisions prosecutions laws and constitutional relative to criminal shall be con- prosecutions tinued and remain in effect as to all for crimes committed before taking effect of this amendment.” (OEC) Oregon generally apply sentencing pro Evidence Code does not ceedings. 101(4)(d). However, agreed OEC the state to be bound the OEC in this express opinion applicability generally capital case. We no as to the OEC’s sentenc
ing proceedings.
e.Inadequate Remedy Post-Conviction 163.150(1) Defendant that argues (g) ORS [formerly 163.150(1)(f)] provision for direct and automatic Supreme post-conviction review to the Court denies him penalty death stat disagree. provision relief. We No utory precludes exercising rights scheme defendant from post-conviction seq. under the relief statutes. ORS 138.510 et may petition post-conviction relief Defendant grounds post-conviction stated in the relief after he statutes 138.510(1). exhausts appeal his direct rights. ORS briefly assignments We now address defendant’s already error which are similar or identical to those have we rejected considered and in our earlier cases.
f.Unnecessary Rigor statutory Defendant argues penalty the death I, 13, Oregon scheme violates Article section of the Constitu- tion, provides: which arrested, person in jail,
“No or confined shall be treated unnecessary rigor.” with Moen, an rejected argument
We
identical
g.Selective Application
163.095(2) (e)
argues
Defendant
that ORS
is uncon
prosecutors might
“arbitrary, hap
stitutional because
make
charge
hazard and ad
decisions
whether to
concerning
hoc
person
aggravated
‘regular’
with
murder
concealment or
the same
He asserts that such
upon
murder based
conduct.”
I,
20,
prosecutorial discretion violates Article
section
clause) and
Oregon
(privileges
Constitution
and immunities
of the Fourteenth Amendment.
equal protection
clause
Farrar,
this
in State v.
rejected
argument
We considered and
Batchelder,
v.
h.Article
Sections 15
40,
I, section
argues
Defendant
that Article
Protection Clause of
Oregon
Equal
Constitution violates the
penalty
the death
exempting
the Fourteenth Amendment
I,
and 16.14 We
challenges
from
under Article
sections 15
v.
rejected
Wagner, supra,
in State
305 Or at
argument
Farrar,
138-42. See
i.
I,
argues
although
Article
section
penalty
excludes the
from
operation
death
itself
of Article
I,
16;
section
exempt
section
does not
death
statutes
*38
of
operation
from
section 16. This court considered and
rejected
argument
Wagner,
much of defendant’s
in State v.
supra,
approved imposition
penalty
the death
for intentional mur
during
ders committed
the course of a dangerous felony. Tison
Arizona,
137, 107
1676,
v.
481
(1987).
US
S Ct
j. Cruel and Unusual Punishment Defendant argues that ORS violates 163.150 Article I, 16, (cruel section of the Oregon Constitution and unusual punishment) Eighth and the prohibition against Amendment punishment cruel and by failing adequately unusual to narrow the class of murderers be to the subjected who can death penalty. disagree. Gregg 153, v. 428 Georgia, We See US 168-88, 2909, (1976); 96 L 859 Wagner, S Ct 49 Ed 2d State v. 142-45; Moen, supra, 305 Or at State v. Or at supra, 309 97-98. 14 15, I, provides: Article section punishment principles “Laws shall for the of crime be founded on the of
reformation, justice.” of and not vindictive I, 16, provides part: Article section punishments inflicted, penalties “Cruel and unusual all shall be but shall be
proportioned to the offense.” Impartial Jury k.Right an argues prospective that the Defendant exclusion prevent penalty might opposition jurors the death whose following denied him an from the court’s instructions them guilt penalty phases impartial jury trial in in the of his Oregon I, 11, of section Constitution. violation Article Wagner, disagree. supra, 175-76; 305 Or at We See 57D(1)(g). supra, Leland, 623-26; at ORCP v. State Meaningful Appellate Review 1.Lack argues Oregon statutory that the scheme Defendant appeal providing to this court denies him for automatic direct appeal Appeals “right” to the Court of to an intermediate Wagner, supra, non-capital criminals. In State available Oregon provides Or at 167-71we held that scheme adequate appellate Eighth review under Amendment Oregon I, 40, of the Constitution. See State v. Article section (direct (1980) P2d 412 automatic Quinn, Or appellate capital Supreme review is sole review Court cases). argues persons also sentenced to scope criminal are to a broader of review than
death entitled argument generally. We understand his to be defendants *39 jury’s findings. We de review of the he is entitled to novo Wagner,supra, rejected argument this in State v. identical penalty scope appellate 169, 178. review in The death Or at in criminal cases. is the same as all other cases m.Vagueness Sentencing in Statutes Oregon penalty that the death contends Defendant argues, unconstitutionally vague because, he the is scheme 163.150(2)(b)(A) vague. “deliberately” in ORS is as used word We Wagner,supra, argument rejected v. 305 Or at in State this 163.150(1)(b)(B) argues is that ORS 146-48. Defendant jury perform unconstitutionally vague requires it a because prediction dangerousness, task, a future defendant’s reliably. psychologists done We some state cannot be which rejected Wagner, supra, argument Or in State v. at this supra. Farrar, See v. 150-55. State 163.150(1) argues vague that Defendant ORS expressly jury is to the statute does not state how a because clearly requires unan- negative return a answer. statute “no” “yes” questions; imous answers to all thus a answer any question penalty. on will defeat the death single juror Moreover, by defendant, the trial objection without court jurors any all could on jury agree instructed if question, question the answer to that must be “no.” sum, Oregon
In scheme is not death unconstitutionally Oregon under either or the “vague” Wagner, supra; State v. United States Constitutions. Farrar, supra.
B. Penalty Phase Mitigating Evidence Defendant in contends the trial court erred give refusing requested on mitigating instruction evi Penry Lynaugh, primarily dence. He relies upon 492 US _, 2934, 106 (1989). 109 S Ct L Ed 2d 256 requested following instruction mitigating evidence: REQUESTED
“DEFENDANT’S JURY INSTRUCTION NO. 16 may any
“You type circumstances, consider of mitigating to, including but mitigating not limited about circumstances any defendant or the way circumstances of the case in your diminish culpability defendant’s A mitigating mind. (two) factor need not be reacted to the set issues forth presented questions you. may You decide to answer one questions two “no” even the other evidence would “yes” justify a answer. “Mitigating circumstances are those circumstances such do justification as not constitute a or excuse of the offense question, mercy, may but which fairness and be considered extenuating reducing degree as culpability of moral mitigating defendant’s conduct. A circumstance need not be proven beyond a reasonable doubt. include,
“Mitigating circumstances but are not limited to: age. “1. The defendant’s *40 severity prior
“2. extent and of the defendant’s criminal conduct. pressure
“3. The of extent the mental and emotional under 610 acting
which the defendant was at the time of this inci- dent. may mitigation, any feelings mercy, sym-
“You in consider swayed pathy compassion you. may in You or that arise not be public by any prejudice against by or bias the defendant or opinion.”15 explained Wagner, supra, in State
For the reasons 7-20, to the circuit court for a Or at we remand this case 309 Farrar, Or phase. supra, See State v. at penalty new Miranda, 130-31; 176-78; supra, Or at State v. Moen, Or at 93-95. supra, 309 assignments
Defendant raises three other of error in phase proceed with of his trial. penalty connection We arise they may those issues because on remand. discuss Prior Evidence Crimes the trial court erred in contends that testimony phase by from refusing to exclude defendant’s concerning Annie Edmo and Detective Goodale prior crimes. Edmo testified uncorroborated admissions her “he had killed before and he that defendant had told by time offered was a three loser.” No other evidence was testified prove defendant had “killed” before. Goodale state prior crimes. How- defendant had admitted a number (in ever, corroborating evidence the form the state introduced jury: The trial court instructed the probability, meaning question a is “The second is: Is there it asked the law not, likely acts of violence than the defendant would commit criminal more society. continuing a threat to that would constitute terms, employ here, “Defining ‘probability’ it means we it’s some of these as everyday dealings, ordinary meaning given and in its or affairs and to be use likely ‘probability’ everyday means that more than not the term such affairs will occur the future. that a certain event you mitigating determining circumstances “In this issue are to consider age, including but to the defendant’s the extent not limited received evidence prior conduct, severity the extent of of the defendant’s criminal acting pressure under the defendant was at the time mental and emotional which killing was committed. — oh, ‘mitigation’ you beyond I should define as “If decide a reasonable doubt downgrading. meaning less it’s a to make less severe or harsh. So deciding proven ques- two “In the State has the affirmative of the whether doubt, you Conversely, you beyond yes. each must answer tions reasonable prove any more of the has failed to the affirmative of decide that State doubt, question beyond questions then answer each no.” reasonable must *41 orders, testimony) or on judgment charging instruments of only some of the admitted crimes. argues the rationale of ORS
Defendant 136.425(1) to applies prior crimes evidence introduced sen 136.425(1) tencing proceedings. provides: ORS “(1) defendant, A or admission of a whether confession an otherwise, judicial in given of or proceedings the course cannot be against in evidence the when was defendant it nor made threats; produced by under is the influence of fear a con- only to warrant the conviction the fession sufficient of defen- proof dant without some other has crime been added.) (Emphasis committed.” 136.425(1) a sufficiency
ORS
addresses
evidence to sustain
conviction
does not apply
penalty phase jury
here. A
is not
required to
a
prior
Rather,
“convict”
defendant of
crimes.
jury
must
answering
questions required by
decide
ORS
particular
163.150
a
whether
defendant should
should
or
not
receive
death sentence. Because defendant’s confessions of
prior
highly
jury’s
crimes were
relevant to the
consideration of
questions,
those
confessions,
we conclude that
those
even
uncorroborated,
admitted
properly
were
during
phase
Wagner,
defendant’s trial. State v.
supra,
OEC 404 propensity general rule. OEC pro states the pensity rule: person’s “Evidence of a character is not for the admissible
purpose providing person conformity that the acted in * * particular added.) therewith (Emphasis on occasion general 404(3): This is propensity rule restated OEC crimes, of other wrongs
“Evidence acts is not admissible prove person to person the character of a in order to show that the * * *” in conformity (Emphasis acted therewith. added.)
Thus, Oregon Evidence Code proscribes character evi- conduct, only prove to past dence when offered when predict offered to behavior. future issue,” is “in of pertinent
When character evidence crimes) specific (e.g., instances of is admissible prior conduct 405(2)(a). prove such character or character trait. OEC 404(1), person’s of a character or trait of OEC evidence Under of a issue” when it is an essential element character “in future predict claim or defense. When offered charge, behavior, prove a quality is offered to character evidence 163.150(1) (b)(B) independently makes relevant which ORS i.e., dangerousness. degree To the penalty assessment: future character, the defen- dangerousness depends that future placed “in has been issue.” dant’s character on the that such evi- objected ground Defendant also record, disagree. On we OEC dence violates OEC 403.16 this provides: relevant, may pro- if its “Although evidence be excluded substantially outweighed by danger of bative value is *42 issues, misleading prejudice, of the or the unfair confusion by presenta- jury, delay of undue or needless or considerations tion of cumulative evidence.” proffered
If be to block the OEC 403 were held to available case, by defendant in this that grounds argued evidence on the proof character when the blocking would be tantamount to (future a dangerousness) has to be substantive law declared it provable fact.17
Penalty Phase Instructions in erred that the trial court Defendant contends following instruction: refusing give to the you has made the find the Defendant “To extent that crime, to a constitute a confession statements that decide evidence, proof, other you may such without not consider themselves, has that a crime been the such than statements committed.” 136.425(1) nor other eviden- supra,
As neither ORS noted prior of admissions to crimes tiary requires corroboration rule proposed defendant’s instruc- sentencing in thus proceedings, law, the court which an statement tion is incorrect balancing fact, perform determined that OEC 403 In the court did an trial substantially prior prejudicial to crimes did of defendant’s admissions effect outweigh probative value. their issue,” may “by 405(1), proof be testi “in also is Under OEC when character opinion.” testimony mony reputation form an as to Francis, supra, to 284 Or at properly give. declined 626. also the trial court erred in
Defendant contends that give following to instruction: failing presumes “The law the accused will not commit crim- that presumption That inal acts of violence the future. follows probability the Defendant unless and until the of the commis- proven beyond sion such criminal violent acts is a reason- upon probability prove able doubt. The burden is State committing of the Defendant violent criminal acts to con- continuing society beyond stitute a threat a reasonable doubt.” argues legal this instruction follows from the
presumption person that a is innocent until proven guilty. He 136.415, relies provides: on ORS which presumed “A defendant a criminal is inno- action be contrary proved. cent until the is In the case of reasonable guilt satisfactorily doubt whether of the defendant shown, acquitted.” the defendant is entitled to be 10.095(6), He also relies on requires ORS which a trial court jury: instruct person
“That
criminal cases a
is innocent of a crime or
proves otherwise,
wrong
prosecution
guilt
until the
shall
beyond
be established
reasonable doubt[.]”
jury
The trial court
instructed the
state must
prove beyond a
probability
reasonable
that there
doubt
was
defendant would commit criminal acts of violence that would
*43
constitute a continuing
society,
informing
threat
to
thus
jury that the state had the
of the
proof
burden of
and
standard
proof required.
Wagner,
of
No
was required.
more
State v.
Farrar,
supra,
153, 177;
178;
Or
supra,
at
State v.
309 Or at
Francis, supra,
Or at
requested
626. Defendant’s
nothing
only
instruction added
and would have served
to con
fuse the
A
that a
murderer will
jury.
presumption
convicted
basis
commit criminal acts of violence in the future has no
States,
in law or
245 US
common sense.
Greer v. United
Cf.
559, 560-61,
(1918) (trial court
38 S Ct
III. Conclusion assignments all of of have considered defendant’s We every Any thereof. argument support and made error opinion in this has assignment argument not discussed considered and is either without merit or moot. We find been phase to the of his trial. find error as to guilt no error as We to penalty phase trial. We reverse as phase only.
IV. Decision phase is judgment guilt The affirmed as to the is penalty phase, reversed as to the case remanded to resentencing opinion. with this the circuit court for consistent Wagner, Penry Lynaugh, See State v. see also 5; supra.
GILLETTE, J., dissenting. that, rec- legal Because I believe under the standard been juror Boley Michael should have ognized by majority, cause, respectfully I dissent. excused for has, candor, set majority with commendable out (309 voir dire. pertinent portions Boley Or at dire, 577-93) During that voir Boley after had established counsel strong penalty, he was a believer in the death defense your given if fair in a case like this juror asked the he “could be feelings, your strong personal feelings[?]” Boley personal but, know, answered, could, points some it “I think I difficult, might yeah.” be a little doubt, following expression this Immediately sua acquaintance. of an sponte the murder Boley brought up about that carrying feelings anger still acknowledged He — uncertainty Boley’s subjects two crime. It is clear that these of the murder of ability fair and his memories about his to be — Defense coun- Boley’s mind.1 the relative are connected your feelings any possibility that sensibly asked, “Is there sel ability juror be fair. A his own It is serious doubts about manifest this had by later, when, question Boley response defense this short time made clear case, surrounding concerning gruesome in this he stated: the death facts counsel gruesome might tough as as described to defendant the facts were “It be be fair [to added.) why you.” (Emphasis yeah. brought up counsel], it That’s kind of *44 in case?” would come out this situation anger about that of answered, Boley know, could, but, you I
“I the the best would follow law like that possibility revealing evidence and stuff a there’s know, you, you just pictures have it’s I saw or whatever that but, that, might. yeah, yeah I I’m not sure my brain that click possibility.” a there’s “possibility”: an to the explore
Counsel made effort * * * strong pos- is How that COUNSEL:] “[DEFENSE sibility? * * * ten, you On a scale from one to “JUROR BOLEY: know, three, four.” questioning by defense counsel
Further from the prosecutor produced the assurances especially — given the form in juror leading that he follow the law would questions expected virtually put, all these were with the which self-evident, responses any so other would have been answer rehabilitation, last Yet, spite all the astounding. pro- question and answer revealed the to which this degree his own juror competency had doubts about his spective serve: your And can set aside PROSECUTOR:] “[THE that,
personal feelings following the law? doing Yes, try I I do the would. would BOLEY:] “[JUROR best could.” has prospective juror have is a who What we here being strong feelings appropriate about death very murders, his own volunteers existence for most who on still he under the murder of someone knew circumstances he will be him, expresses the likelihood that anger and who low being law as as set and follow the feelings able to aside pro- declined Yet, to excuse in ten. the trial court as six now of this court majority cause spective juror are such decisions ground affirms decision discretion,” and will trial “sound court’s committed abuse.” except for “manifest be reversed as is far governed, so Disqualification jurors pertinent case, to this by ORCP 57D(12)(g).2 pro That rule vides:
“Challenges may for cause be taken on one or more of followinggrounds: <<* * * * * *45 bias,
“Actual which is the existence of a state of mind on part juror, action, of the in reference to the or to either party, court, which satisfies the in the exercise of a sound discretion, juror try that the cannot impartially issue and prejudice without to the rights party substantial of the chal- lenging. challenge mentioned in this A may for actual bias be taken for the cause paragraph, but on the trial of such chal- lenge, although appear juror it should challenged that the has expressed opinion upon formed or an the merits of the cause juror may from read, what the opinion have heard or such shall not of itself be sufficient to sustain challenge, but the satisfied, circumstances, court must be from all the that the juror disregard cannot opinion such try impar- and the issue tially.”
Obviously, the application of this rule leaves much in the hands of the trial judge. The judge sees and hears the testi- mony potential of the juror. He is position best determine whether bias, identified, existence of a once so infects the potential attitude of a juror that in fairness to a party the juror should not sit on that case. the primacy But the trial judge’s role does not mean that we have no role to play.
The trial only court’s explanation of its rulings deny- ing defense motions to juror excuse this came the following statements: Well,
“THE standard, COURT: of course would be probability, possibility, not anything possible. because is
U* * * * *
“THE
gravamen
COURT:
still think
pro-
[I]
[the
spective juror’s
possibility
answers
in the
area and
is]
challenge.”
sufficient
afor basis of
I understand from these statements
the trial
felt
judge
that it had to be established
being
probable
as
more
than not
57D(1)(g)
136.210(1).
applicable
by
ORCP
State
is made
to criminal trials
ORS
Nefstad,
523, 531,
a fair might 4 on verdict, unfairness of 3 or possibility of affect ability Boley’s to be fair doubt of 10 casts sufficient a scale Boley excused for have right to defendant to as to warrant dire, however, stop here. The voir did not cause. fol- specifically answered that he would “Boley thereafter fair to both the defendant instructions and be the court’s low position of from his earlier and he retreated the state doubt.”
standard or the correct standard recognized record whether the court this i.e., if his of discretion it, we cannot know exercise applied 57D(1)(g). required by ORCP discretion” as was “sound *46 affirmatively judge from the only statements that we have sig correctly evaluating judge indicate was not it is Thus, although hearing. he was nificance of the evidence prospective from the true there were later statements really was juror indicated that juror might have i.e., off his doubts and rehabilitated, really that he had shaken we cannot know job juror, that he could do his as a determined statements, thought or instead judge the trial relied on those if them irrelevant yet juror had not prospective because the fairly couldn’t sure he fifty-one percent admitted that he was hear the case.3 crime, did not defendant, disgusting
This however which he was entitled impartial the fair and jury have federal constitutions. Oregon and under the statute respectfully dissent. opinion. J., dissenting in this Fadeley, joins —Boley judge there believed would be no What is clear is that the trial need to disqualification, judge understood to be the test for unless the what the trial describe testimony Boley’s Boley judge did not meet that test. but felt believed Y, J.,
F
dissenting.
ADELE
I dissent for the
stated
dissenting opin
reasons
in the
Moen,
45,
(1990)
ions
309 Or