STATE OF OREGON, Respondent, υ. JESSE CLARENCE PRATT, Appellant.
CC 86-00328-CR; SC S38102
In the Supreme Court of the State of Oregon
Argued and submitted February 23, judgment of conviction and sentence of death affirmed June 17, 1993
853 P.2d 827 | 316 Or. 561
Virginia L. Linder, Solicitor General, and Brenda J Peterson, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent. With them on the briefs were Theodore R. Kulongoski, Attorney General, and Timothy A. Sylwester, Assistant Attorney General, Salem.
Michael D. Schrunk, Multnomah County District Attorney, John C. Bradley, Deputy District Attorney, and David L. Hattrick, Deputy District Attorney, Portland, filed a brief for amicus curiae Michael D. Schrunk, Multnomah County District Attorney.
Tom Ryan, Portland, and Hubert Duvall, Jr., Eugene, filed a brief for amicus curiae Oregon Criminal Defense Lawyers Association.
GILLETTE, J.
Fadeley, J., dissented and filed an opinion.
This criminal case is before this court on automatic and direct review of a judgment of conviction and sentence of death for two counts of aggravated murder. It is the second time that the case has been before us. This court previously reversed defendant‘s initial conviction and sentence of death and remanded for a new trial. State v. Pratt, 309 Or 205, 785 P2d 350 (1990). On retrial, defendant again was convicted on two counts of aggravated murder and sentenced to death. On this second appeal, defendant assigns a total of 20 errors that allegedly occurred during the guilt and penalty phases of the trial. Defendant and the state also have briefed and argued a question of whether the indictment in this case was properly handed down, where fewer than seven grand jurors considered the case and handed down the indictment. We affirm the judgment of conviction and the sentence of death.
FACTUAL SUMMARY
Defendant was charged with two counts of aggravated murder in the death of Carrie Love. One count alleged that defendant murdered Love in the course of attempting to rape her; the second count alleged that he murdered her in the course of maiming her.1
Defendant and Love left Seattle on June 16, 1986. On June 17, a passerby discovered a sleeping bag and a pillowcase in a ditch beside Highway 97 north of Klamath Falls. The pillowcase contained Love‘s purse and identification. The passerby turned the items over to the Oregon State Police. The next day, the police found Love‘s nude body at a truck turnout along Highway 97 south of the location where her purse was found. Love had been stabbed, asphyxiated, and run over by a vehicle.
On June 19, defendant telephoned his office in Seattle while an Oregon State Police officer was present. Defendant told the officer that he was on his way to Phoenix. The Oregon State Police sent a teletype message to police agencies in the western states requesting that defendant be arrested and his truck seized. Later that day, defendant was stopped and arrested by the Arizona Highway Patrol.
Following a jury trial in early 1988, defendant was convicted on both counts of aggravated murder and sentenced to death. On automatic review, this court reversed defendant‘s conviction and sentence and ordered a new trial, because the guilt phase of the first trial was tainted by prejudicial evidence of a prior crime. State v. Pratt, supra. On1
GRAND JURY ISSUE
1. We discuss first the question raised by the parties concerning the number of grand jurors who indicted defendant. While this case was awaiting oral argument in this court, the Court of Appeals, sitting in banc, decided Goodwin v. State of Oregon, 116 Or App 279, 840 P2d 1372 (1992). In Goodwin, a post-conviction relief case, a six-member majority of the Court of Appeals held that, when a person is indicted for a crime,
Following the Goodwin decision, the parties in this case discovered that only six grand jurors were in attendance when the grand jury indicted defendant on the two counts of aggravated murder at issue here.3 Thus, the rationale of the Goodwin decision — if that decision was correct — would call for dismissal of the indictment in the present case. Consequently, the parties filed a joint motion asking this court to determine that issue. We conclude, however, that we cannot reach the issue in this case, because the issue was not raised in a timely manner.
As noted, defendant previously was tried and convicted under the present indictment. This appeal arises out of his conviction following retrial. At no time before the briefing
Procedures for attacking the sufficiency of an indictment are provided in
An assertion that fewer than the requisite number of grand jurors participated in handing down an indictment is specifically identified as a ground for a motion to set aside an indictment.
“(1) The indictment shall be set aside by the court upon the motion of the defendant in either of the following cases:
“(a) When it is not found, indorsed and presented as prescribed in
ORS 132.360 ,132.400 to132.430 and132.580 .”
(Emphasis supplied.)
“A grand jury may indict or present facts to the court for instruction as provided in
ORS 132.370 , with the concurrence of five of its members, if at least five jurors voting for indictment or presentment heard all the testimony relating to the person indicted or facts presented.”
It is true that the foregoing statutes do not speak to a challenge based on a constitutionally, rather than a statutorily, inadequate number of grand jurors. However, we think that the parallel between the latter kind of contention and the former is so complete that
PRETRIAL MOTIONS
Suppression of Evidence
Before trial, defendant moved to suppress all physical evidence and all statements obtained after his arrest in Arizona, on the ground that that arrest was unlawful. The trial court denied the motion, and defendant assigns that ruling as error. Defendant argues that his arrest was unlawful, because the Oregon State Police did not obtain an arrest warrant before defendant was arrested in a public place by the Arizona Highway Patrol, even though there was sufficient time to do so. Because we decided that question adversely to defendant on his first appeal, we conclude that the trial court committed no error in denying defendant‘s motion.
Before his first trial, defendant sought to suppress the same evidence that is the subject of the present motion. At that time, he argued that his arrest was unlawful because the arresting officer in Arizona lacked a reasonable belief that the Oregon State Police had information sufficient to establish probable cause for the arrest. On review of the trial court‘s denial of that earlier motion, this court held that the Arizona officer‘s reliance upon a teletype message requesting defendant‘s arrest was reasonable. State v. Pratt, supra, 309 Or at 216-17. In a footnote, however, the court noted:
“We do not decide whether a warrantless arrest is still appropriate when there has been sufficient time to obtain a warrant. It may well be that the failure of police to obtain a warrant promptly when they have time to do so would invalidate an otherwise valid warrantless arrest. That issue is not presented by this case because a warrant was obtained not long after the teletype was sent out, and, in any case, defendant has not raised the issue.”
Defendant has failed to understand the full import of that footnote. In that footnote, while acknowledging that some future case possibly might present the issue whether an otherwise valid warrantless arrest could be invalid because the police had failed to obtain an arrest warrant when there was sufficient time to do so, this court also expressly stated that it did not find the problem to be presented by the case at hand “because a warrant was obtained not long after the teletype was sent out.” State v. Pratt, supra, 309 Or at 217 n 9.
The doctrine of “the law of the case” precludes this court from reconsidering that decision:
“It is a general principle of law and one well recognized in this state that when a ruling or decision has been once made in a particular case by an appellate court, while it may be overruled in other cases, it is binding and conclusive both upon the inferior court in any further steps or proceedings in the same litigation and upon the appellate court itself in any subsequent appeal or other proceeding for review.”
Simmons v. Wash. F. N. Ins. Co., 140 Or 164, 166, 13 P2d 366 (1932); see also State v. Keelen, 106 Or 331, 336, 211 P 924 (1923) (applying doctrine of “law of the case” in a criminal case). The trial court did not err in denying defendant‘s motion to suppress.
Change of Venue
Before jury selection began, defendant moved for a change of venue pursuant to
GUILT-PHASE ASSIGNMENTS OF ERROR
Impeachment Evidence
During its case-in-chief, the state called as a witness Danny Randolph, who testified about incriminating statements that defendant allegedly had made to Randolph while they were incarcerated together in the Klamath County Jail. On direct examination, Randolph testified that he had been convicted of more than one felony. On cross-examination, the defense elicited further details regarding Randolph‘s convictions in order to impeach his testimony:
“Q. Mr. Pratt, or I mean Mr. uh, Randolph, you said that you have been convicted of uh, several felonies. Are you convicted on uh, June twelfth, 1979 in Missouri of a robbery?
“A. Yes.
“Q. And were you convicted in uh, also of a burglary in second degree in uh, August the thirtieth, 1979?
“A. Yes I was.
“Q. Were you also convicted of [the] charge of stealing from a person?
“A. Yes I was.
“Q. Are you [the] same Danny Randolph that was convicted in Klamath County * * * of a theft in the first degree count one, ex-convict in possession of firearm count two?
“A. Yes I am.”
The state objected to the admission of the documents on the grounds that they were cumulative and that they contained more information than the crime and date of conviction. The trial court sustained the objection, and defendant assigns that ruling as error. We conclude that no error was committed.
Defendant argues that, under
“For the purpose of attacking the credibility of a witness, evidence that the witness has been convicted of a crime shall be admitted if elicited from the witness or established by public record, but only if the crime (a) was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, or (b) involved false statement or dishonesty.”
(Emphasis supplied.) Defendant contends that the trial court had no discretion to exclude the documents under
In State v. King, supra, 307 Or at 337, this court stated: “In the context of evidence presented pursuant to
A brief review of the history of
In 1986, however, the people of Oregon, through the initiative process, approved Ballot Measure No. 10, the “Crime Victims’ Bill of Rights.” Or Laws 1987, ch 2, § 1. That ballot measure deleted the balancing test from
“The purpose of this ballot measure is to declare to our legislature and our courts that victims’ rights shall be protected at each stage of the criminal justice system. We reject the notion that a criminal defendant‘s rights must be superior to all others. By this measure we seek to secure balanced justice by eliminating unbalanced rules.”
Id. § 2.
Even before the enactment of the Oregon Evidence Code, a trial court could, in its discretion, reject evidence that was cumulative. See, e.g., Welch v. U.S. Bancorp, 286 Or 673, 709, 596 P2d 947 (1979) (trial judge properly exercised discretion in excluding cumulative evidence).
We conclude, therefore, that a trial court, in exercise of its discretion under
Juror Misconduct
A week into the guilt phase of defendant‘s second trial, it came to the court‘s attention that one of the alternate jurors had made several comments about the case to other jurors and to court staff. The court questioned each of the jurors and the court staff individually. That questioning revealed that the alternate juror had made several comments wondering what had happened to Carrie Love‘s suitcase, a
After the court had questioned all jurors and cautioned the alternate juror not to talk about the case any further, defendant moved for a mistrial. The trial court denied the motion, finding as follows:
“Relating to the motion for mistrial that the Court has had under advisement over night, the Court finds that the remarks of the alternate juror in question did not introduce any extraneous information into the trial and the remarks that he did make were overheard by very few of the jurors and the principal one about what happened to her suitcase did not indicate any prejudice toward the defendant.
“The most damaging of the statements, that is that no one deserved to be treated like this, referring to the autopsy photographs, were made to the bailiff and were not overheard by other jurors.
“The statement was a premature comment about the possible provocation which is the issue in question three in the penalty phase and they should not have been made, but it did not introduce any prejudice toward the defendant to any of the jury because they did not hear it.
“The irregular event which caused each of the jurors to be interviewed in chambers I don‘t believe caused prejudice against the defendant.
“The motion for mistrial is denied.”
Defendant assigns that ruling as error.
“A motion for mistrial is ‘addressed to the sound discretion of the trial judge,’ who is in the best position to assess and to rectify the potential prejudice to the defendant.” State v. Farrar, 309 Or 132, 164, 786 P2d 161 (quoting State v. Jones, 242 Or 427, 433, 410 P2d 219 (1966), cert den 498 US 879 (1990). In determining whether a mistrial should have been declared, this court reviews for abuse of discretion. State v. Smith, 310 Or 1, 24, 791 P2d 836 (1990).
In this case, the trial court carefully assessed whether the comments by the alternate juror could have
Motion for Judgment of Acquittal
After the close of the state‘s evidence and again at the end of the guilt phase, defendant moved for a judgment of acquittal on count two, arguing that the state had failed to show that the murder occurred during the course of the maiming of the victim. The trial court denied the motion, and defendant assigns that ruling as error.
We need not decide that issue, however, because, even if defendant were correct, the insufficiency of the evidence as to count two did not affect his conviction on count one or the resulting sentence of death. See State v. Langley, supra, 314 Or at 269 (trial court‘s error in denying defendant‘s motion for acquittal held to be reversible error; however, remaining aggravated murder convictions affirmed). Indeed, defendant does not suggest any manner in which the submission of count two to the jury might have affected adversely his conviction or sentence on the charge of aggravated murder in the course of an attempted rape, and no such adverse effect is apparent to this court. Even if this court were to reverse defendant‘s conviction on count two, he still would stand convicted of one count of aggravated murder, and the sentence of death would remain. Accordingly, we decline to address the sufficiency issue further.
Defendant assigns as error two rulings of the trial court related to jury instructions. First, defendant complains of the instruction that the court used to define “reasonable doubt.” During voir dire, at the close of the guilt phase, and at the close of the penalty phase, the court read essentially the same instruction, as follows:
“Reasonable doubt means an honest uncertainty as to the guilt of the defendant. It‘s based on reason and common sense. Proof beyond a reasonable doubt is such proof as you would be willing to act upon in the most important of your own affairs.”10
Defendant excepted to that instruction, offering in its stead an instruction that would have replaced the second sentence above with the following sentence, drawn from Uniform Criminal Jury Instruction No. 1006: “Reasonable doubt exists when, after careful and impartial consideration of all the evidence in the case, you do not feel convinced to a moral certainty that the defendant is guilty.”
Defendant argues that, without the additional sentence that he offered, the instruction given by the court “failed to define for the jury what ‘reasonable doubt’ means.” That argument is wrong. The court‘s instruction expressly stated that “[r]easonable doubt means an honest uncertainty as to the guilt of the defendant.” The additional sentence employing the phrase “moral certainty” was not necessary to define the meaning of “reasonable doubt.” Cf. State v. Williams, 313 Or 19, 37, 828 P2d 1006 (“We do not endorse or require the use of the phrase ‘moral certainty’ “), cert den 506 US 858, 113 S Ct 171 (1992).
Moreover, as this court stated in State v. Williams, supra:
“Unless a reasonable doubt instruction misleads the jury to believe that it can convict on a lesser degree of proof than that required, the court will not find error. *** For an instruction to constitute reversible error, it must have prejudiced the defendant when the instructions are considered as a whole.”
Defendant also assigns as error the trial court‘s refusal to give his requested jury instruction on weaker and less satisfactory evidence. We have fully considered this claim and conclude that a full explication of it in these pages would add nothing to the body of law on the subject. On the facts of this case, the trial court did not err.
Jury Deliberations
During deliberations following the guilt phase, the jury sent a note to the trial court asking why this was “the second trial.” Defendant moved for a mistrial, arguing that the jury was considering “inside information that didn‘t come out during the trial” and that this information was “entering into their deliberations.” The trial court denied the motion and instructed the jury as follows:
“Members of the Jury, I have the note that one of you handed to the Bailiff in which you inquire about a second trial. It — it is not material to your decisions in this case for you to have the answer to that. Please make your decision based on the evidence that‘s come before you here in the courtroom and the Court‘s instructions.”
Defendant assigns that ruling as error.
As previously noted, “[a] motion for mistrial is ‘addressed to the sound discretion of the trial judge,’ who is in the best position to assess and to rectify the potential prejudice to the defendant.” State v. Farrar, supra, 309 Or at 164. This court‘s scope of review on whether a mistrial should have been declared is one of abuse of discretion. State v. Smith, supra, 310 Or at 24.
PENALTY PHASE ASSIGNMENTS OF ERROR
Former Jeopardy
Before trial, and again after the state had rested its penalty-phase case, defendant moved to exclude the death penalty from consideration based on alleged official misconduct during the original trial. The court denied that motion, and defendant assigns that ruling as error.
The facts of the alleged incident of official misconduct are as follows. At defendant‘s first trial in 1988, the lead police investigator in the case, Oregon State Police Detective Cooper, spoke to three jurors following the guilt phase while escorting them to their cars. The next day, Detective Cooper told the prosecutors about his contact with the jurors, and the prosecutors notified the trial court and defense counsel. Defendant moved for a mistrial or, in the alternative, for a directed life sentence.
At a hearing on defendant‘s motion, Detective Cooper and the three jurors testified. Detective Cooper testified that he had responded to a juror‘s question by stating that “[defendant] is probably the most dangerous person I have worked.” Two of the three jurors indicated that they had heard this remark. The third juror testified that she had heard nothing that Detective Cooper said about defendant, but that he had told her, “[I]f you feel you made the right decision, then, you know[,] don‘t think you could have done otherwise.”
After the hearing, the trial court denied defendant‘s motion. Nevertheless, the court dismissed the two jurors who
On appeal from the first trial, defendant assigned as error the denial of his motion for mistrial. This court did not reach that assignment of error, because it reversed the case on other grounds. State v. Pratt, supra, 309 Or at 217. The issue then arose during this second proceeding.
After a hearing, the trial court denied the motion to remove the death penalty from the jury‘s consideration. After the state had rested its penalty-phase case, defendant renewed the motion, and the court denied it again:
“The court personnel responding to the requests of some of the jurors to have an escort to the dimly lighted parking areas did not specifically ask Detective Cooper to be an escort.
“Detective Cooper was an official of the prosecution. Detective Cooper in the course of conferring with the State‘s trial attorneys revealed the improper contact with two jurors. Detective Cooper did not report it as something that he recognized as improper. The brief inadvertent harmless contact between Detective Cooper and the third juror * * * did not necessitate that juror‘s dismissal and is not the kind of prosecutorial misconduct that would justify dismissal of the penalty phase with prejudice.”
Defendant contends that the trial court erred. According to defendant, Detective Cooper‘s conduct during the first trial was such that “the state and federal constitutional prohibitions against double jeopardy precluded submitting a possible death sentence to a second jury.”
In this case, the trial court did not make findings that indicate a violation of the Kennedy standard, nor do the trial court‘s rulings in either the first or the second trial allow us to infer that the court would have made such a finding if asked. In the first trial, the trial court did not grant a mistrial, instead concluding that any possible prejudice from Detective Cooper‘s conduct could be cured by replacing two of the jurors with the alternate jurors. During the second trial, in denying defendant‘s motion to exclude the death penalty from the jury‘s consideration, the trial court impliedly affirmed the ruling at the earlier trial. Moreover, the actual findings of the court during the second trial, which are set out above, imply a contrary finding — i.e., that Detective Cooper did not “knowingly act[] in an improper and prejudicial manner, indifferent to the mistrial that could be expected to result.” We reject defendant‘s argument that
We also reject defendant‘s argument under the Double Jeopardy Clause of the Federal Constitution. The Supreme Court of the United States has held that the federal Double Jeopardy Clause13 bars reprosecution in cases like the present one only when “the conduct giving rise to the successful motion for a mistrial was intended to provoke the defendant into moving for a mistrial.” Oregon v. Kennedy, 456 US 667, 678, 102 S Ct 2083, 72 L Ed 2d 416 (1982) (emphasis supplied). There is nothing in the record to show that Detective Cooper acted with indifference to provoking a mistrial, let
Death Row Evidence
During the penalty phase, the state called as a witness Bart Lousignont, a former inmate who had been incarcerated with defendant for a time in the Klamath County Jail. On cross-examination, the following exchange occurred:
“Q. I think you said something in one of your statements that people looked up to [defendant] when he was brought in but later when they found out what he was charged with uh the rape part, he wasn‘t a big man anymore. Is that what you said?
“A. Uh, basically everybody kind of flicked him a little bit of crap for it, yeah.
“Q. Okay. Because they, because of the allegation of rape?
“A. Because of the — the allegation of rape, yes.
“Q. And isn‘t that, isn‘t that accurate of what you said, he wasn‘t a big man anymore?
“A. Uh, I don‘t know how to say it. It is like he is and he ain‘t, you know?
“Q. Pardon?
“A. I don‘t know how to explain it. It‘s like he — he‘s still a threat because everybody knows that he‘s been on death row and he didn‘t have a whole lot to lose but. I don‘t know. See I use to kind of kiss Pratt‘s ass too until I found out about it, about the — the rape charge on him. And see I — I — I — I can‘t even be locked up with him now. You know they won‘t even put the two of us together.
“Q. Okay, but my question is, in this statement you wrote out a part of a statement didn‘t you? You said later everyone learned that he raped that girl. At that point [defendant] was nothing more than a rape-o that killed someone. He wasn‘t a big man anymore. Isn‘t that what you wrote out?
“A. Yeah, they don‘t look up to him like he‘s a big murderer anymore.”
(Emphasis supplied.)
Defendant‘s cross-examination of Lousignont then continued for what amounts to five pages of transcript. After re-direct and re-cross examination amounting to seven more pages of transcript, Lousignont was allowed to step down. Following a ten-minute recess, Lousignont underwent further brief examination outside the presence of the jury. After that further examination, defendant moved for a mistrial based on the witness‘s testimony that defendant had been on death row. The court took the motion under advisement, then ruled as follows:
“Well I‘ve read the authorities that were cited by both parties. [The] Court found that the prosecution didn‘t participate in causing the remark to be made and the State did not capitalize on the disclosure in any way. There‘s no reason to believe that the defense provoked the disclosure in order to cause a mistrial.
“*****
“The State caused their witnesses to be instructed not to divulge anything about the prior trial and the conviction, including the witness Bart Lousignont who made the disclosure. The State satisfied its duty to try to prevent the disclosure by doing so. The disclosure came as a result of cross examination.
“After considering the direct testimony of the witness Lousignont and the cross examination, [the] court‘s finding is that the defense depended on a witness with three felony convictions to not only understand but to follow the rules. And then questioned him about the very reason the defendant had been looked up to by the other inmates. This resulted in the unfortunate disclosure.
“The court finds that it was inadvertently invited similar to the occurrence in State v[.] Hamilton, [4 Or App 214, 476 P2d 207 (1970)]. Several times during the trial the jury has learned that this is a retrial for aggravated murder. It‘s inevitable that a jury on a retrial would not [sic] learn of this. There‘s a comment about that in State v[.] Coe, [750 P2d 208 (Wash 1983)]. The remark was isolated and made in passing and I don‘t believe the disclosure that the defendant had
been on death row was so damaging as to warrant a mistrial of the penalty phase.
“Therefore the motion for mistrial is denied and the alternative motion for a directed sentence of life imprisonment is denied.”
Defendant assigns that ruling as error.
As we have noted already, this court reviews the trial court‘s ruling on a motion for mistrial for abuse of discretion, because the trial court is in the best position to assess and rectify any potential prejudice to defendant. In State v. Farrar, supra, 309 Or at 164, this court held that the trial court did not abuse its discretion in denying a mistrial where a state‘s witness had mentioned a polygraph examination, “because [the reference] was isolated and made only in passing, the results of the test were not disclosed, and the state never argued that the test had any significance to the witness‘s credibility or to any other issue in the case.”
Although the inadvertent testimony in this case was of a different, possibly more prejudicial, nature than the testimony in Farrar, the considerations that guided the decision in Farrar are also present here. The trial court found specifically that the mention of defendant being on death row was “isolated and made in passing” and that the state “did not capitalize on the disclosure in any way.” The trial judge, who was present throughout the entire trial and who heard the inadvertent testimony in its full context, concluded that the evidence was not so damaging as to warrant a mistrial: We find no abuse of discretion in that ruling.
Other Assignments
Defendant makes several other assignments of error. We have considered all of them. We conclude that none is well taken and that discussing any at length would not aid bench or bar in future cases.
CONCLUSION
The judgment of conviction and sentence of death are affirmed.
The Oregon death penalty statute did not meet federal constitutional muster at the time that the homicide in this case occurred, according to the Supreme Court of the United States. That court vacated a death sentence imposed under that statute and remanded the case to this court in Wagner v. Oregon, 492 US 914, 109 S Ct 3235, 106 L Ed 2d 583 (1989).
After Wagner v. Oregon, supra, was decided, this court added 100 words to the 1984 statute in an effort to permit use of the deficient statute to impose death. See State v. Moen, 309 Or 45, 102-04, 786 P2d 111 (1990) (Fadeley, J., dissenting), and State v. Wagner (II), 309 Or 5, 20, 786 P2d 93 (1990) (Linde, J., dissenting). This court had no authority to do that.¹ Only the legislative branch (which in the case of an initiated statute includes the voters) may enact penal laws. See State v. Isom, 313 Or 391, 395, 837 P2d 491 (1992) (“the power of punishment is legislative“).
That being true, the statute is deficient as it applies to the death penalty in this case. Accordingly, life in prison is the penalty supported by the 1984 statute, as enacted, that survives the decision rationale in Wagner v. Oregon, supra. I dissent from the majority‘s approval of a sentence other than that authorized by the surviving portion of the Oregon statutory law applicable at the time of the murder in this case.
¹