*1 5, 2002,judgmеnt Argued September and submitted of conviction sentence April 10, July affirmed reconsideration denied death OREGON, OF STATE Respondent, v. OATNEY, JR.,
BILLY LEE Appellant. S45850)
(C973456CR; SC
Janet Assistant her With respondent. the cause and filed brief argued 211-a Attorney L. Hadlock,
on the brief were Erika Assistant Hardy Myers, Attorney General, General, and Michael D. Reynolds, Solicitor General. Durham, Carson, Justice, Gillette,
Before Chief Riggs, Balmer, Muniz, De Justices.*
BALMER, J. opinion.
Durham, J., dissented and filed an *3 * Leeson, J., 31,2003, participate resigned January in the decision and did not of this case.
227-b *4 BALMER, J. on automatic
This case is before us and direct review of defendant’s convictions for counts of mur- eight aggravated der and sentence of death. Defendant trial court challenges trial, penalty of his rulings pretrial, guilt, phases or, alternative, of his seeking reversal convictions vacation of his sentence of death and remand for resentenc- below, For ing. the reasons set out we affirm the convictions for aggravated murder and the sentence death.
I. FACTS
Because the
found defendant
we review
guilty,
v.
evidence in the
most favorable to the state. State
light
(1999).
Or
Thompson,
248, 250,
During stop investigation moving one of the and Johnston officers saw defendant police asked a duffel inside the van as if to conceal it. The officer bag con- look into the and defendant bag, for consent to a found, other a among things, replica sented. The police set, .45, knife, lock-pick Colt a stun a dart a gun, gun, large duct invento- scissors, tape. police and a roll of pair did not defendant, ried the items and returned them to but him detain further. *5 1996,
On the victim’s 9, badly decom- September was found in Park. In a posed body Champoeg subsequent defendant, interview with the Tualatin learned of police Johnston’s September 2,1996, They arrest. listened to tapes of Johnston’s telephone conversations with defendant from and jail learned that defendant have might been involved the victim’s disappearance.1 weeks, Over the next few Tualatin police interviewed defendant several times. They also searched defendant’s and match- apartment found blood the victim’s ing blood on the The Tualatin carpet.2 police con- tinued to keep under surveillance. After obtaining a search warrant, searched defendant’s van. police Among items, other they found the items from the duffel bag that the Milwaukie had found police during September 1996, stop.
Meanwhile, as a result of the continuing investiga- tion of the victim’s death, the state charged Johnston with one count of aggravated murder. Johnston pleaded guilty aggravated murder, and, in for exchange his cooperation testimony, the state agreed to seek the death penalty.
Defendant was ultimately charged with counts eight of aggravated murder. trial, At both defendant and Johnston testified. Johnston testified while he staying with defendant at defendant’s apartment, defendant said that he had a date victim, with the left the apartment, brought the victim back with him later that While Johnston evening. was on the telephone room, another he heard defendant’s stun gun being used. Johnston returned to the room living and saw the victim on the floor with defendant his holding stun gun to her neck. Johnston and defendant then tied up the victim and took her to the bedroom. cut off her They clothes with scissors and both of them and sodomized raped her. After her to forcing give them the identification personal number to card, her bank defendant sent Johnston out to get police suspected using that Johnston and defendant were a code dis plans dispose cuss property. example, of the victim’s For discussed two men dispose “camping their possibility having “garage desire to stuff’ and the type code, sale.” they suspected Police were familiar with that which that defen prison together previous dant and Johnston had learned while in offenses. premisеs, Defendant had vacated the and his former landlord had consented to the search. using money When ATM card. from an the victim’s
some blood on her returned, he saw victim had Johnston moving. was not Johnston testified that face and victim him had hit and choked the had told that defendant [have with] “just me.” Defendant she wouldn’t sex because just [victim] won’t her, he had to kill but “the said that tried plastic bag over the Defendant and Johnston then held a die.” stopped breathing. head until she victim’s argued had lied Defendant at trial that Johnston penalty. Defendant testified his to avoid the death while defendant was that Johnston had killed victim away apartment. According he had defendant, from the day. following He murder until the not learned of the victim’s up helped murder cover testified that he had Johnston *6 being implicated in the murder he been afraid of because apartment. it in his because had occurred eight counts of defendant of all convicted separate sentencing proceeding, aggravated a murder. In deliberately, that defendant had acted determined continuing society, posed defen- and that a risk defendant dant should receive judge then
a death sentence. The trial convictiоn, the a sentence of death. After entered court sentenced possibility of Johnston to life without the parole. assignments of We error.
Defendant now raises assignments we error, and each of those have examined reject assignments merit dis- of error each one. Three turn to them. cussion, and we now II. JURY INSTRUCTIONS GUILT-PHASE Preliminary Discussion A. assigns trial court’s “accom- as error the
Defendant particular, plice-witness” and, the instruction instructions “an Johnston was that, law,” a matter of that stated “as charged accomplice of the crimes witness in the commission judge gave jury the follow- this indictment.”3 The trial ing accomplice-witness instructions: refer, col which we obj group instructions to ection is to three Defendant’s lectively, “accomplice-witness” instructions. law, matter of as a Willford
“You are instructed that Johnston, III, accomplice Nathaniel is an witness in (The in this charged of the crimes indictment.” commission instruction.) accomplice-witness-as-a-matter-of-law testimony accomplice “You view an witness’s should instruction.) (The credibility with distrust.” “The in and is not accomplice of an of itself be, sufficient in addi- support a conviction. There must tion, evidence, circumstantial, slight sоme other however other than the con- of an that tends to nect the defendant This with the commission of the crime. by other evidence or corroboration need not be sufficient conviction, support itself to thing it must but tend to show some- just more than that a crime was committed. It must also connect or tend to connect the defendant with the com- (The instruction.)4 mission of the crime.” corroboration noted, trial, As at he and Johnston had testified that defendant had committed the crimes Defendant together. alone, testified that Johnston had committed the crimes his admitting own as to culpability only helping dispose some of the victim’s his property, cleaning up apartment remove evidence of murder, the victim’s and related conduct after the victim had been killed. Defendant first argues when the trial court instructed was an j ury Johnston law,” court, witness “as a matter of the trial effect, directed a verdict of guilty instructing defendant had committed the crimes with Johnston. along *7 Second, defendant even if that instruction did argues not amount to a directed verdict of “the trial court guilty, instructed the that the crime in fact com- effectively was mitted,” thus a trial depriving right defendant of his to Third, on each element of the that argues offenses. defendant the instructions invaded the accomplice-witness factfinding role of the jury by his assertion improperly undermining Johnston alone had killed the victim. Defendant contends it is reversible error a trial court to the accom- give a them. plice-witness requests instructions unless defendant 4 Jury Those instructions were based on the Uniform Criminal Instructions currently 1057(2), 1056, 1055, respectively. numbered as relies on
As
arguments,
for his
authority
(1989), in
Simson,
State v.
“By the law, court effeс- as a matter of the trial plices the crime crime the was in fact commit- tively instructed the all right his trial on deprived ted. This defendant of Normally, accomplice-as-a- charge. elements of presents problem, because matter-of-law instruction no A will requested the defendant. in order to that a crime was committed implication risk case, But, veracity in this doubt on the of his accusers. cast only veracity of those doubt on the it could serve cast no received trade- favored him. Defendant whose off.”
Id. at 109-10.5 also noted: court rule, instructions that, as a these general
“We think by the defendant.” given requested be unless ought rule,” argu- Id. n to that points “general 110 10. Defendant at it in his case. have followed trial court should ing instruc- accomplice-witness court gave When the trial contends, objection, defendant tions over defendant’s respects three error trial court committed reversible described above. “accomplice-as- issue in that case as the instruction at Simson referred note, however, issue the instruction at We a-matter-of-law” instruction. here, “accom we to as the at issue which refer same the one case Simson, (quot аt 105 n
plice-witness-as-a-matter-of-law” 308 Or instruction. See instruction). ing accomplice-witness
283 it is arguments, help- addressing Before the accomplice-witness-as- for giving to discuss the reason ful situations appropriate and the a-matter-of-law has been long of testimony accomplices it. The give which of concern about both because viewed with suspicion, admission, has his or her own who, by a veracity of witness an accom- because of concern that crime, committed a the person testify falsely against be induced to plice might the crime by promises he or she committed with whom basis for Those concerns are the immunity.6 leniency 136.440,7 contained in ORS now statutory requirement, anof testimony convicted on the solely a defendant cannot be corroborate evidence must witness; rather, other accomplice 10.095(4)8 out ORS sets testimony. witness’s accomplice a that it a court should instruct the additional rule that an accomplice. distrust testimony should view with court a trial statutory requirements, To those implement an testi- accomplice’s instructs it should view on the basis of with distrust and that it cannot convict mony testimony alone. accomplice instruc and corroboration credibility
To make the a jury a trial court also instructs ordinarily tions meaningful, witness, so that the will who is an regarding accomplice distrust is to be viewed with testimony understand whose 6 regarding origins the testi of the common-law rules and the statutes Note, 17 mony accomplice early Oregon and the cases are discussed witnesses (1938). Or L Rev 118 provides: ORS 136.440 “(1) upon of an A cannot be had conviction by to connect the defendant unless it is other evidence that tends corroborated if it is not sufficient
with the commission of the offense. The corroboration merely of the the offense or the circumstances shows the commission of commission. “(2) section, ‘accomplice’ witness in a criminal means a As used in this action, criminally liable who, according is adduced in the action to the evidence * * *." ORS 161.155 and 161.165 for the conduct of the defendant under part: provides, ORS 10.095 by specified court, stat- jury, subject in the cases the control of the “The them, except ute, judges addressed to effect or value of evidence are the however, are, They to be thereby declared to be conclusive. when it is proper court on all occasions: instructed "* ** * *
“(4) ought distrust.” to be viewed with ofan That the and must be to convict defendant. corroborated in order (2) provides “accomplice” that an Subsection ORS 136.440 according who, is “a in criminal to the evi witness action criminally action, dence adduced in the liable for the con ORS duct ofthe defendant under ORS 161.155 and 161.165.”9 *9 provides solicits, aids, or commands, 161.155 that one who person abets another commission of a crime is crimi nally person. liable for the acts of that Under those defini person “accomplice” tions, has there can be no unless another v. 286 Hull, committed a crime. As this court stated in State (1979), person “accomplice” 516, 595 Or P2d 1240 a is an 511, purposes requirement for of if “the evidence the corroboration legally justify is sufficient to an indictment of or information charged against accomplice to a witness as an the offense necessarily against defendant, not to convict the witness of it.” statutory
Having grounds for credibil discussed the ity definition of and corroboration instructions and the determining “accomplice” purposes of when such instruc given, appropriate roles tions be we next consider the should deciding judge an whether a witness is оf the accomplice dispute regarding whether witness. If there is no accomplice is, evi is an sufficient a witness witness —that necessarily charge, convict, to the wit dence exists to ness of the crimes with but not charged which the defendant is —then may law, a of determine, court as matter trial accomplice. If, however, 286 Or at Hull, is an 517.10 witness 9 persons whose is nec of conduct ORS 161.165 relates to victims crimes and, inapplicable essarily thus, here. to the issue discussed incidental to crimes is provides, part: ORS 161.155 person criminally person the conduct another constitut- “A is liable for
ing a crime if: " ** * ** “(2) crime promote of the to or facilitate the commission With intent person: “(a) crime; person or commit or such other Solicits commands “(b) person in attempts agrees or to aid abet such other Aids or or abets or crime; planning committing the or “(c) crime, fails to Having legal duty prevent of the a the commission legally required to make.” person is make an effort law, course, determines, that a witness as matter Of if the trial court solely may on the basis accomplice, be convicted then the defendant are in is an whether a witness regarding the facts decides, then must prove and the dispute, corrobo the witness is an in order require Sam, 266, 127 Id. at 515 State v. Si 63 Or (citing Wong ration. (1912)).11 P 683
B. “Directed Verdict” Argument Defendant’s we address to defendant’s first
Turning arguments, directed, effect, a verdict his that the trial court argument state, expressly rejected Simson guilty. According the same makes here. We argument agree. Simson, argument this' court the defendant’s rejected accomplice-witness-as-a-matter-of-law amounted to directed verdict:
“We believe that the understand that the deter- would make guilt mination was its to and we doubt would have understood the instruction be given an order to find the defendant the instructions guilty, [, generally 511].” as a whole. See State Hull 286 Or v.
Simson,
308 Or
Or
Gibson,
at 109. See also State v.
*10
(1968) (erroneous
244,
That
as well.
the
reasoning applies
Viewing
here
as
that the
did
whole,
judge
instructions
it is
trial
apparent
not instruct
the
that it
find that defendant
jury
should
the
the
jury
committed
crimes. The trial court instructed
and
the elements
crime
in the indictment
alleged
of each
jury
relevant
of
It instructed the
legal
the
definitions
terms.
all
of the
the state had the burden
elements
proving
witness,
testimony
accomplice-witness
should
of that
none of the
instructions
given.
accomplice-witness
number
cases involve the defendant’s
be
A
of this court’s
concluding
witness
an accom-
that the
erred in
that a
was not
assertion
trial court
allowing
plice,
corrobo-
to be
even in
absence of
thus
the defendant
convicted
(1937)
463-76,
See,
rating
Coffey,
e.g.,
Defendant’s reliance on Simson is misplaced in more fundamental reason: The “accomplice” incriminated, the defen- that case rather than exculpated, Simson, in in dant. The instructions accomplice-witness directed the words, they other were erroneous because to the defen- view with distrust favorable in i.e., that the defendant was not involved the crimes dant, can- “Instructing they in the indictment. alleged testi- convict defendant uncorroborated upon itself mony ‘accomplice’ testimony makes no sense when Simson, Or at does not in the crime.” implicate instructions Thus, Simson, 109. the accomplice-witness and harmful to the defen- were both legally inapplicable contrast, Johnston’s Here, testimony directly impli- dant.12 cated defendant. reasons, we hold that the accom-
For the foregoing amount instruction did not plice-witness-as-a-matter-of-law case. to a directed verdict of guilty That the Instruction Told C. Argument Defendant’s That a Crime Had Been Committed Jury the accomplice- Defendant’s sеcond argument —that “effectively instructed witness-as-a-matter-of-law committed” —is based the crime was fact *11 that the instruction this court’s in Simson holding on Oregon appears only an court the case in which We note that Simson to be erroneously gave accom an a conviction because the trial court ever has reversed the situation —not plice-witness-as-a-matter-of-law Simson involved instruction. alleged accomplice that present of the defendant in case—of of an this by prosecution, highly to the defendant. but was favorable was introduced the his trial right jury case the defendant in that deprived The state argues indictment. alleged element on each because, here, defendant’s is distinguishable that Simson crimes, for the denying responsibility while testimony, own Thus, according the crimes had occurred. that confirmed inwas that a crime concedes state, because defendant the deprive not improperly did committed, the instruction fact on that issue. his to a trial right jury defendant of state has the In a criminal prosecution, We agree. elements doubt all a reasonable beyond the of proving burden offense was fact that the offense, including of a charged the accom- Simson, giving this court held committed. was objection instructions over the plice-witness the jury instructed “effectively the instructions error because thus committed,” “depriv[ing] the crime was in fact of the on all elements his to a trial right defendant of testi- contrast, Here, Or at 109-10. charge.” killed the had told him that Johnston fied that Johnston had vic- in his victim. Defendant also admitted he had aided and that tim had been killed in his apartment evi- destroying and cleaning up apartment Johnston her returning and dence, property, of the victim’s disposing testified to her Because apartment. vehicle that the crimes occurred, he admitted those crimes had instructions any before the court gave been committed element Simson, circumstances, unlike In those jury. accomplice- dispute, crime was not a matter of the instruct improperly did not witness instructions had been committed. the crimes Undermined the Instruction That Argument
D. Defendant’s His Defense if the that, even argument third
Defendant’s to a directed not amount instructions did accomplice-witness “accom- that Johnston was verdict, instructing effect, told court, in trial law,” as a matter witness plice aided, or commanded, soliсited, Johnston had murder, of aggravated commission someone abetted evidence on the based possible participant, other only case, how- theory Defendant’s trial, defendant. at alone. crimes had committed that Johnston ever, was *12 accomplice-witness- According defendant, the court’s trial therefore, was, error, because as-a-matter-of-law theory. it undermined that the circum-
Several this court’s cases discuss of may a be to instruct stances in which it error “accomplice “accomplice” as a witness is an or an witness” law, matter now to those cases. As noted of and we turn above, court on facts of Simson, this held based give accomplice-witness case, it was instruc- error including accomplice-witness-as-a-matter-of-law tions, “general instruction, and in a footnote the rule” stated given accomplice-witness be unless instructions should not requested by Simson, a Or at 110 n 10. In defendant. 308 error however, above, as discussed instruction was testimony cast on favored because it the defendant. This court held doubt witnesses whose cautionary “that the accom- only given plice-witness the Or at instructions should be when testimony impliсates ‘accomplice’ the defendant.” 308 directly testimony implicated Here, 104. of Johnston’s course, support defendant, and thus Simson does not claim of error. respective roles of Hull, this court discussed the determining judge is an whether witness
accomplice be witness whose must corroborated. above, As set out in Hull is not whether noted the standard being an there sufficient evidence to convict the witness of probable “whether there is defendant, but [the] charge the offense for which cause to the witness with added). (emphasis trial[.]” at is on 286 Or defendant Here, guilty already pleaded had course, Johnston charged. signifi had been More murder for which defendant cantly, had commit testified that he and defendant Johnston together. court not have to deter ted the The trial did crimes together; it had had acted mine that Johnston and defendant only probable on cause—based there was conclude that together. they this did As act Johnston’s —that bearing no on the elements Hull, “if facts court stated charge dispute, are in the issue needed to the witness ques liability potential is a under ORS 161.155 ofthe witness (empha by at 517 to be decided the court.” 286 Or tion law added). court for the trial Hеre, sufficient evidence existed sis that Johnston was an law, determine, as a matter of the trial court witness, and that determination with Hull. was consistent 534 (1969), 448 P2d Gibson,
In State v.
252 Or
in instructing
the trial court had erred
this court held
.a matter of
“accomplice
that witness was
The defendant
law,” but
the error was harmless.
convicted of
force and violence.
robbery by
Gibson was
Wright,
the defendant and an accomplice,
state alleged
and robbed
the victim out of a bar and beaten
followed
beating,
him. The defendant admitted participating
*13
the defen
robbery.
but denied
in the
Before
participating
was
of both the
and
trial, Wright
beating
dant’s
convicted
The trial
after
that
robbery.
judge,
instructing
distrust,
of an
was to be viewed with
in
that,
law,
stated
“as a matter of
I instruct
this case
you
is an
of the defendant Monte
Larry Wright
Gibson.”
In this the characteristics that made in In con- present. instruction Gibson erroneous are not “an accom- trast instruction that explicit Wright in this plice Gibson,” of the Monte the instruction defendаnt in the case was that Johnston was an witness “accomplice Thus, commission the crimes in this indictment.” charged the instructions here on the kind of witness Johnston focused instruc- was, credibility of the corroboration and purposes tions, rather than on the between Johnston relationship instruction, Moreover, defendant. unlike the Gibson or even instruction here did not refer to defendant name “defendant,” as but referred to the crimes only alleged indictment —crimes had pleaded guilty. to which Johnston the explicit The instruction this case does not suffer from accom- statement the defendant were witness and the Gibson plices the commission of the crimes made instruction erroneous. concluded that the instruction here was not
Having Simson, Hull, reasons any error for described Gibson, we turn to defendant’s that the instruction argument the jury’s factfinding nonetheless intruded on improperly witness,” because, role an by calling “accomplice Johnston in fact an the instruction that Johnston was suggested and, therefore, it that defendant was “accomplice” implied Gibson, As noted in our discussion of culpable, well. “accomplice instruction stated was an here that Johnston law, as a than an “accomplice,” witness” matter rather Gibson, did not instruction, unlike in assert However, mention defendant. correct Johnston acted alone in ing regarding facts whether as an murdering the victim or acted with defendant together at trial. Because those facts were “accomplice” disputed were court’s the trial statement disputed, argues, witness in law, as a matter of Johnston was an “accomplice in the indictment” was the commission of the crimes charged it conclude that error, because it told the must the reasons together. Johnston and defendant acted For follow, reject argument. we partic error to determining give whether it was deter read as a instruction, ular the instructions are whole Barnes, law. v. mine whether state the State they accurately (1999). 327, P2d Defendant is correct 329 Or instruction, the accomplice-witness-as-a-matter-of-law allow would viewed alone and as abstract proposition, *14 status as conclude, from the of Johnston’s description juror witness,” stating that the trial court was “accomplice an with the crimes necessarily another had committed person itself an accurate However, Johnston.13 the instruction was аbove, Johnston, as was law, of because noted statement the law. The instruction still as a matter of accomplice witness the other with if, be error even when considered might instructions, accept the the jury it somehow required “accomplice” potential the use of the word The mischief that arises from If the trial any accomplice-witness can avoided. of the instructions be formulation law, then as of it is an witness a matter court determines that a witness dis may jury testimony be viewed with instruct the that the of that witness must corroborated, telling jury is an the the witness and must trust be without “accomplice of as a matter law. witness” defen- acted with together had that Johnston state’s theory that Johnston acted theory than defendant’s dant, rather how- gave, the trial court instructions alone. The other to determine whether was jury ever, made clear that defendant a reasonable doubt beyond had proved state indict- in the charged the crimes of of each element was guilty the jury’s it was the jury instructed The judge ment. the facts about make all the decisions “sole responsibility evidence was to “evaluate and that the jury in this case” evidence or how believable how reliable to determine at instructions accomplice-witness In addition to the was.” of other instructions a number here, gave the trial court issue of wit- testimony should evaluate jury as to how the made by statements nesses, hearsay including convic- with criminal witnesses testimony by defendant and tions. instruc- accomplice-witness-as-a-matter-of-law 40 pages four lines out of the
tion consisted of less than form. and the verdict trial devoted to instructions transcript corrobo- and credibility immediately by It was followed the accom- context, and in ration instructions. Both literally jury told the plice-witness-as-a-matter-of-law be was to the kind witness who that Johnston was only must be corrobo- viewed with distrust and whose must conclude jury rated. It did not tell the Moreover, together. had acted Johnston and defendant aiding instructions on standard given was although the definition not instructed on and it was abetting, any particular it to make required and was “accomplice,” term. of that meaning application decision based on the the accomplice-witness after immediately Finally, that defen- the jury the trial court instructed instructions, guilty until proved unless and dant innocent presumed a reasonable doubt. beyond trial be, must whоle, they
Considered as a of its role fairly apprised instructions court’s of proving met its burden the state had whether determining indict- the crimes alleged that defendant was guilty have understood reasonably ment. The could not question consideration the from its instructions remove together. had acted Johnston whether *15 292 understood, have from the instruc-
Instead, the would jury that, its evaluation of whole, depending upon tions as a could defendant’s evidence, accept theory all the it it Johnston had acted alone or could the state’s accept theory had acted For that that Johnston and defendant together.14 reason, the instruc- accomplice-witness-as-a-matter-of-law undermine at tion did not defendant’s improperly position trial that Johnston acted alone.
III. OF THE INDICTMENT SUFFICIENCY error, defendant asserts that assignments two a death sen constitutionally impose the trial court did not tence because the indictment did not an offense allege discussing made him for the death Before eligible penalty. it be first to examine argument, helpful will scheme. ORS 163.105 Oregon’s sentencing death-penalty convicted of murder aggravated that a who is provides person 163.150, death, to life sentenced, “shall be to ORS pursuant [,] or parole without of release imprisonment possibility 163.150, turn, pro life ORS in specifies imprisonment.” for a conviction cedures for the sentence determining the jury four aggravated murder, including questions to receive a death must answer for a affirmatively person 163.150(1)(d) 163.150(1)(b)(A) sentence. ORS and ORS the state that, imposed, for a death sentence to be require doubt find a reasonable jury beyond must and the must prove If a returns a “deliberately.” acted affirmative the question verdict special answering set out in ORS the three other questions deliberateness 163.150(1)(b)(B) court sentences the (D), to then the trial “required instructions The dissent asserts that the trial court’s * * * accept [Johnston] was an the court’s factual determination (Durham, J., dissenting), and, alone,” consequently, Or at 303 had not acted ‘accomplice’ in the crime accept [Johnston] was an “bound As discussed charged against That is incorrect. the defendant.” Id. at 301. acted text, that Johnston make a “factual determination” the trial court did not murder, only committing that there was sufficient person but with another in the commission charge of defendant Johnston as the evidence accept Moreover, either not bind the murder. the instructiоns did per with another that Johnston acted “factual determination” dissent’s asserted text, the any the reasons discussed to that effect. Por son or inference testimony was only witness whose Johnston as the kind of instructions identified of corroboration. with distrust and was need to be viewed scheme, a defen statutory Under that to death. on notice upon murder indicted for aggravated dant sentences. possible is one of the conviction, the death penalty receive a *16 he cannot that, because argues Defendant that he acted the determines death sentence unless of the crime is an element deliberateness deliberately, a sentence. the state seeks death murder when aggravated indictment it must be the such, maintains, pleaded As he If the state a doubt to a jury.15 and reasonable proved beyond indictment, “element” in the defendant fails to that allege cannot submit to a properly then the trial court argues, case, In this the indictment the of deliberateness. question vic- that conduct that caused the did not defendant’s allege Therefore, “committed deliberately.” tim’s death had been submitted the defendant, to the court according improperly sentencing jury during of deliberateness question follows, that argues, of his trial. It further phase he to the death eligible penalty. receive v. New is based on argument Apprendi
Defendant’s (2000), L 435 466, 2348, 530 US 120 S Ct 147 Ed 2d Jersey, 2428, 153 L Ed 2d Arizona, 584, 122 and v. 536 US S Ct Ring (2002). con below, this court has previously 556 As discussed that Apprendi sidered and rejected interpretation However, defendant advances here. defendant asserts He further reading this court’s oí Ring supersedes Apprendi. his position extends to argues Ring Apprendi support for as a basis a that the indictment this case cannot serve that defendant’s con allege death sentence because it did not “committed duct that caused the victim’s death had been deliberately.” the proposition
Defendant relies upon Apprendi crime the maximum for a penalty fact that increases any if seeks the is a element of that crime the state functional 468, US at the defendant increased In 530 penalty. Apprendi, which was offense, punisha- to a pled guilty “second-degree” extended 10 A statute by years prison. separate ble five to murder, through aggravated four counts one In indictment for intentionally” causing charged of the vic “personally the death defеndant with and charged through eight, with “unlaw indictment tim. In counts five intentionally” causing fully of the victim. the death maximum if statutory
the term imprisonment beyond
of the evidence
trial
a
judge
by
found
preponderance
animus. Id. at
crime had
motivated
racial
468-69.
been
factor,”
held that
Supreme
“sentencing
Court
crime,
it
the maximum
for the
penalty
because
increased
beyond a reasonable
to “be submitted to a
and proved
Id. at
As a
for that
Court
holding,
doubt.”
490.
basis
an ele-
charge
prove
determined that a state’s failure
ment
an increased
violated
impose
punishment
necessary
it,
guar-
Fourteenth Amendment
with
a defendant’s
and,
Id.
of notice and
trial.
at 476.
right
antee
his
concedes that this court rejected
argu-
Defendant
above,
v. Terry,
ment under
summarized
in State
Apprendi,
(2001).
held
Terry,
333 Or
Defendant however, the error is for review. He argument argues, Supreme on of After the the face the record.” “apparent contends, beyond it is defendant Ring, Court’s decision was deliberateness that, because dispute reasonable death without indictment, he was sentenced to charged a offense. Defendant death-eligible first with being charged sentence, to his this on the basis of vacate court, Ring, asks of a conviction, entry judgment and remand reverse indictment, crime which charged for the death. punishable by murder not asserts aggravated whether the issue There is no reason to address of deliberate- unalleged decide the issue allowing first of the record” without is error on the face ness “apparent turn to all. We therefore it was at determining whether error argument. the merits defendant’s who had been found a concerned Ring in the course of an armed occurring murder felony guilty on the however, charge pre deadlocked robbery; jury, statutes, sentencing the applicable meditated murder. Under murder could not be sen first-degree a convicted of person find court made additional death unless the trial tenced to fаctors. statutory aggravating at least one of certain ings in which new evidence was sentencing hearing Following had been that the defendant introduced, including court made victim, the trial who had shot the person the defendant those additional and sentenced findings United affirmed. The death. The Arizona Court Supreme that the defendant’s reversed, holding States Court Supreme trial violated the Sixth Amendment’s death sentence defen punishment because the maximum guarantee verdict was life jury’s have received based on the dant could factors the aggravating alone found imprisonment; judge death penalty. Ring, the defendant for the eligible that made 608, 122 Ct at 2443. 536 US at S law, the jury, under Oregon
Defendant admits factors court, aggravating not the determines whether murder defendant eli- are that make an aggravated present hold- reason, For that the specific for the death gible penalty. violated the the death sentence ing Ring Nonetheless, defen- trial here. right inapposite aon Court’s determination dant argues Supreme this analysis undermines issue in preliminary Ring requires Terry distinguish Apprendi court used in mur- of aggravated be considered an element deliberateness in the indict- charged must be dеr death that punishable ment. argument noted, rejected this court Terry,
As capital aggravated element of that “deliberateness” is an *18 The court in the indictment. charged that must be murder Terry that the defendant noting Apprendi by distinguished range punish- statutory within the had received a sentence had the defendant while, in Apprendi, ments for the crime than the greater term of imprisonment been sentenced to a 188-89. In 333 Or at Terry, for the crime. maximum statutory distinguish Apprendi sought the State of Arizona Ring, rejected analysis. Supreme using Court The a similar stating: argument, ApprendVs argument that' ‘the
“This overlooks inquiry effect, form, but of effect.’ is one not relevant ‘the expose circumstance] aggravated required finding [of an [Ring] greater punishment [d] than that author- to a first-degree jury’s guilty The Arizona ized murder verdict.’ penalty of death statute ‘authorizes a maximum explicitly only statutory provisionrequiring sense,’ cross-references in a formal for it finding aggravating ofan penalty. imposition If death circumstance before Apprendi opening argument, prevailed Arizona wouldbe reduced on its ‘meaningless formalistic’rule of to a statutory drafting.” (alterations orig Ring, 604, 122 Ct at 2440-41 536 US at S omitted). inal; citations argues Ring, passage from Based on charged indict- in his have been that “deliberateness” should exposed finding to a him deliberateness a ment because punishment greater punishment could have than the guilty imposed Because alone. on the verdict based been charged indictment, defen- in the was not “deliberateness” question delib- acted whether defendant maintains, dant jury. properly erately Without was not submitted jury, no proper asserts, the he submission deliberately. authority find that he had acted Ring argument. reject does defendant’s We specifically charged require be “deliberateness” question be sub can of deliberateness before the indictment mitted to a Ring Supreme jury. discuss did not Court the Court proposition relies, and defendant now on which defendant] “[the specifically does not contend noted that Ring, constitutionally 536 US defective.” his indictment was Ring issue of a n addresses Ct at 2437 4. 4, 122 at 597 n S right that make capital on the facts to a trial Oregon’s eligible Under sentence. for a death the defendant sentencing factual determina those scheme, a makes fac made the case, that, in his Defendant admits tions. tual determination deliberately. that he acted
297 summary, Ring, in case, in unlike trial this any punishment impose court did not on defendant jury’s special penalty phase answers in the verdict did require. Ring support argument not Neither does defendant’s Contrary that the indictment was defective. to defendant’s Ring require analy- assertion, does not revision ofthis court’s Apprendi Terry. sis of that is set out in State v. Defendant’s death, therefore, sentence of process does violate defendant’s due rights. or trial
IV. CONCLUSION assignments Based on our review of the three of assign- error discussed above and of each of defendant’s other opinion, ments of error not discussed this we conclude that guilt penalty phases there was no reversible error in the defendant’s trial. judgment
The of conviction and sentence of death are affirmed. dissenting.
DURHAM, J., majoritys analysis I dissent from the and conclusion respecting accomplice-witness instruction that the trial gave jury. court to the 10.095(4), requires statute,
A ORS court, a trial “on the proper give requires all occasions,” an instruction that “view[ ] testimony with distrust” the of an accom- plice.1 provides, part: ORS 10.095 jury, subject “The court, to the controlofthe in the cases specifiedby judges statute, are the ofthe effector value of except thereby them, evidence addressed to declared to be conclusive. when it is They are, however, be proper
instructed courton all occasions: "* ** * * “(4) accompliceought That the of an to be * * *[.]”
viewedwith distrust states, majority prohibits As the ORS 136.440 also conviction on the uncor accomplice. separately analyze roborated of an I do not the effect ORS 136.440 on this case. trial courts to refrain
This court has admonished
10.095(4)
ORS
“unless
giving
from
an instruction
under
Simson,
102,
v.
Or
by the defendant.” State
requested
(1989).
court,
110 n
As the and as the parties agree, majority a record trial presents of the in defendant’s guilt phase about role in the victim’s factual Johnston’s sharp dispute believed, that, murder. evidence if The state introduced 2 Gibson, robbery prosecuted after and a drink state Gibson Gibson victim, ing companion, Wright, Landa. or both of the beat and One kicked money. Wright aggressors accused each also Landa’s billfold Gibson took by robbery. Addressing assignment the trial had erred other of the adding an court accomplice explicit accomplice statutory wit to the an identification of the instruction, ness this court stated: supplied by part against “Since a of the state’s Gibson had been evidence testimony testimony required Wright, to instruct that the of the court was accomplice giving the instruction of an was to be viewed with distrust. After law, statute, added, a I instruct the words the court ‘and as matter then of of accomplice
you Larry Wright Monte in this case that is an Gibson.’ instruс- interprets the the instruction as an “The addendum to robbery Wright guilty then they to the if believed tion they guilty.” must find the defendant also added). (emphasis at 243-44 252 Or had acted and defendant that Johnston
would establish evidence introduced the victim. Defendant together killing acted that Johnston had believed, if would establish alone in the victim. killing the fol- the court delivered rested, the parties
When of an testimony instructions that related lowing jury accomplice: law, a matter “You are instructed that as Willford Johnston, 3rd, witness in the accomplice is an
Nathaniel You charged in this indictment. commission the crimes testimony with dis- witness’s should view in and of itself is not trust. The of an be, in addi- There must support sufficient to conviction. circumstantial, tion, evidence, slight some other however accomplice that tends to con- other than the of an the crime. This nect the defendant with the commission of other evidence or corroboration need not be sufficient conviction, it must tend to show some- support itself to thing but It must just more than that a crime was committed. also connect or tend to connect the defendant with the com- mission of the crime.” added.)
(Emphasis Defendant to the addendum embodied objected instruсtions, above, the first sentence of those emphasized “cut the heart out asserting *21 that “Mr. Johnston by defeating theory defense” the defense would not have [Johnston] did this crime alone and so he challenged been Mr. It is clear that the Oatney’s accomplice.” an Johnston, law, as a matter of instruction identified of the crimes charged witness in the commission accomplice argued indictment defendant. Defendant against the the State in that proving that the instruction “assisted the crime and was, fact, helping Mr. at the scene of Oatney out.” the outset,
At I to note that I with agree the wish “accom- that a as an qualifies stated view witness majority’s 10.095(4) suf- term, that if the evidence is as ORS uses plice,” charged against indict the witness for the crimes ficient to demonstrates, my defendant. As the discussion following the failed that the court’s instruction concern centers on the fact legal meaning “accomplice” that distinctive convey dif- on the and, thus, rely materially the jury required jury I also the join major- of that term. meaning ferent common trial courts can avoid the problem ity’s suggestion in a instruction jury arises from the word using “accomplice” the requires jury the that the law simply by informing jury that other еvi- with distrust and view witness’s 335 Or at testimony. dence must corroborate witness’s n 13. that an accomplice- This court’s cases demonstrate interfere with the jury’s responsibil- witness instruction can or inno- relating guilt to determine the facts ity pertinent instruction accomplice-witness cence. That is so because an inferences to draw multiple can permit require of which assist evidence, about the state’s one or some For guilt. example, state in the defendant’s establishing driver, was with Simson, defendant, charged a truck the thieves stole his truck. Three of theft when several people trial, implicate at the defendant’s but did not testified gave in the crime. The trial court held This court objection. instruction over the defendant’s error: legal instruction was giving were accom- “By instructing the witnesses law, the trial court effec- plices in the crime as a matter of crime was in fact tively instructed the deprived right of his to a committed. This charge. Normally, the accom- trial on all elements of the problem, presents no plice-as-a-matter-of-law A by the defendant. requested because the instruction is a crime was com- implication defendant will risk the veracity of his accusers. mittеd in order to cast doubt on the only But, case, it to cast doubt on in this could serve him. Defendant veracity of those whose favored received trade-off.10 no
“10
rule, these instructions
general
We think
as a
by the defendant.”
ought
given
requested
not to be
unless
301 Simson, interpreted accomplice In this court in fashion. the instruc- Although instruction a commonsense tion did not state that the crime fact had been literally reason- committed, difficulty the court had no that drawing that the able inference from the statement in the instruction in the crime. Simson teaches witnesses were accomplices that, when instruc- considering accomplice the propriety tions, the court takes into account not the words of the only instructions but also the reasonable inferences convey. words Gibson, noted, this court examined already trial,
whether court erred in instructing “ associate, ‘is an Wright, defendant Monte Gibson in Gibson’s trial for robbery. [ ]’” Or at 244. Gibson had admitted that he and had been Wright in the accomplices battery, lesser crime assault and he of that crime. This court concluded that guilty was. instruction, the addendum identifying as Gibson’s Wright accomplice, erroneous, “was but the error was harm- less.” Id. at 245. The Gibsоn court did not under explain why, circumstances, the error was I discuss the harmless. Gibson harmless error conclusion in later in this opinion. created the addendum instruction problem this case more addressed in closely problem resembles Simson, Gibson than that in Simson. Unlike the facts in and, conse- conceded that a crime occurred the state no quently, accomplice-witness gave undue assistance of its case. proving aspect
Gibson lends that, to defendant’s support argument case, under the facts of this of an addendum instruc- delivery tion witness as a matter identifying purported Gibson, of law constitutes error. As in the instruction legal here bound the the state’s witness was an accept in the crime defendant. The “accomplice” charged against word understood “accomplice” following commonly has assume, jurors applied: definition we must wrongdoing : one that “[0]ne associated with another principal either as participates with another in a crime * * accessory Third ed (unabridged Webster’s New Int’l Dictionary 1993). The factual in Gibson inference addenda this case context of eviden- reasonably conveyed, *23 record, was in that the witness had the tiаry participated another and that other actor had joint crime with actor the the named been defendant.
The to Gibson majority attempts distinguish by that, Gibson, out in the instruction pointing challenged as an and linked Wright accomplice described expressly name, with the defendant Gibson whereas the Wright by here stated that Johnston was an accomplice and did not name.3 The major- witness mention defendant by is in it fails to my view, because ity’s argument unavailing, that arise from acknowledge fully the reasonable inferences is about the nothing magical the instructions’ words. There in It not ORS phrase “accomplice appear witness.” does 10.095(4), the no defini- gave special trial court the phrase “accomplice for it. The word wit- tion “witness” nothing does the reasonable inference phrase’s ness” to alter who with participated that Johnston a witness had in in the indict- another actor the crimes committing charged Moreover, the here ment. the fact that addendum instruction name is On this significant. did not mention defendant record, one have associated with only person possibly could one person in victim: defendant. killing Only Johnston ],” in in this to which named the “crimes charged indictment! some of Thus, although the instruction referred: defendant. here from those in the words of addendum differ in each is Gibson, in the factual message addendum indistinguishable. full to effect acknowledge
The
failure
majority’s
case
accomplice
operates
Johnston
an
in this
labeling
in
than
enact-
legislature’s purpose
defeat rather
support
10.095(4).4
10.095(4)
legislative pol-
ORS
ORS
embodies
ing
with distrust “the
ought
determination that a
view
icy
accomplice
majority
legal
of an
The
asserts
Johnston met
definition
that
crime,
portrayed
witness to a
Johnston as an
and that the addendum
Simson,
dissenting opin
accomplice.
this
court noted
not as
distinction,
ultimately
Appeals
but
on the same
ion in the Court
had relied
dissenting opinion.
rejected that
The
reasons for
majority
concluding
states several
of the addendum instruction
this case
delivery
I
those reasons.
was not an error. With
do not
respect,
accept
instruction,
“viewed
majority acknowledges
alone and as an abstract
would allow a
proposition,
juror
as an
conclude, from
of Johnston’s
status
description
witness,’
the trial court was
‘accomplice
stating
another
had committed the crimes with
person necessarily
*24
added).
majority
Johnston.”
I that all the instruc- jury we must examine agree the accurately tions to determine whether state together they inference, the convey law. The addendum instruction does in com- observes, the that Johnston did not act alone majority However, the murder. Id. at 291. the addendum mitting that inference about accept the to required jury “allow” the merely Johnston “as a matter of It did not law.” errs in inference, majority that and the jury agree with in that the only permissive addendum was asserting regard. the instructions to which
None of the other jury instruc- refers the addendum majority effectively negated instructions tion. The most that we can about those other say subjects is about the the they spoke generally state’s burden of and the role as the factfinder. proof jury’s
The assertion that the addendum instruc majority’s tion took four lines of the is beside the up only transcript I point. Finally, cannot with the assertion agree majority’s it the addendum instruction did not tell the conclude that and defendant had acted must Johnston above, As noted if indeed had been together. Johnston then defendant murder, only possible involved whom could person murdering with Johnston have acted the text of the majority disregards victim. both and the factual record in notwith asserting addendum law, court’s matter contrary instruction as a standing theory could accepted * * *." still have “defendant’s had acted Id. Johnston alone at 292.
I turn to the trial court’s error question whether defendant. The court does not that an presume harmed error harmful The record instructional defendant. demonstrate the error have led may must due law regarding convict defendant to misstatement of See testimony. discretion or jury’s accept reject inculpatory (1967) (instruc- Rawls, 330, State v. Or P2d 574 error, tion conclusive intent was presumption regarding on of a defen- reject part because entitled to or all or accept evidence). dant’s state’s case, above, testified that In this as noted He had acted the victim. did killing Johnston alone until after that he took action to aid Johnston any concede However, by identify- Johnston had committed murder. a matter law ing Johnston as witness as instruc- of the crimes the addendum charged, commission conclude, confor- authority tion restricted jury’s had acted that Johnston testimony, mance with defendant’s *25 in Rawls acknowl- murdering alone in the victim. court of a differ- slight there edged might only possibility he misstated the ent from an instructional error that outcome for newa role, but nevertheless remanded factfinding jury’s obtain here. trial. The same result should above, concluded Gibson, as noted this court erred deliver- on of that the trial court had case, the facts instruction, but accomplice-witness addendum ing the its never disclosed the error was harmless. The court from the However, for I infer that conclusion. reasoning facts were that Gibson court’s discussion that the decisive accom- had been Wright conceded he of assault and in the commission of the lesser plices charge the assault and had occurred battery, robbery during instruction had victim, the addendum battery the defen- made no mention of the crime or crimes for which dant and and that the defen- Wright been accomplices, objected dant had not to the form of the addendum instruc- tion.
Those unique aspects present of Gibson are here. The court’s identification of Johnston as an wit- ness as a matter of law to conclude may have led that, contrary to defendant’s Johnston did not act testimony, Brown, 347, 355-56, alone. See State v. P2d 310 Or (1990) (lack of instruction on causation have led may convict without on motivation necessary finding murder; “[t]he prejudice because the miss- profound, death”). element ing makes the difference between life and else Nothing record demonstrates the error was harmless.
For the I foregoing reasons, dissent. respectfully