Lead Opinion
Defendant appeals his convictions of 13 counts of aggravated murder and his sentence of death for causing the deaths of six women. Defendant challenges both the guilt and penalty phases of his trial. Because we conclude that no reversible error was committed in the guilt phase, we affirm defendant’s convictions for aggravated murder. However, under this court’s decision in State v. Wagner,
SUMMARY OF FACTS
The jury found defendant guilty. We therefore set forth the facts in the light most favorable to the state. State v. Rose,
On August 31,1987, a hunter discovered a woman’s body underneath some matted ferns in the Molalla Forest. He called the police and later took them to the body. Over the course of the following week, the bodies of six more women were found in the same general area. All the bodies were naked and in various stages of decomposition. Six of the seven women were identified; the seventh remains unidentified.
The State Medical Examiner performed autopsies and determined the cause of death of each of the women to be homicidal violence of an undetermined type. The medical examiner estimated that the bodies had been in the forest from one to three months. Because of the decomposition of the bodies, the medical examiner could not rule out strangulation as a cause of death and could not determine whether the various wounds to the victims had been inflicted before or after death. The medical examiner described the injuries to each identified victim as follows:
(1) Gyles: Six stab wounds to the lower back. The bone of one lower leg had been sawed through, and the foot had been sawed at ankle level.
(2) Mock: Deep stab wounds to the lower back region. Both feet had been sawed off at the ankle and were found underneath the body. There were multiple saw marks on the right thigh bone just above the knee.
(4) DeVore: The body was totally skeletonized. The upper back revealed stabbing injuries.
(5) Adams: There were stab wounds to the back, and the right foot had been severed at the ankle.' The hands were bound by a dog collar with the arms above the head when the body was found.
(6) Hodges: The remains were scattered by animals. The legs below the knees were not found. The lower back revealed stabbing injuries.
At the site where the bodies were found, officers found various items. Approximately 38 miniature bottles of a particular brand of vodka, a cardboard sleeve that would hold 10 miniature vodka bottles, and 34 orange juice containers were found at the crime scene. A knife with human tissue on it was found near two of the bodies. Additionally, investigators found several items that had been tied into knots, including pantyhose, shoelaces, rope, and a cloth. They also found a dog collar, in addition to the one that was binding Adams’ hands, and pieces of wire.
Defendant already was in police custody as a suspect in another killing when the seven bodies were found in the Molalla Forest. In that other killing, which had occurred in the early morning hours of August 7, 1987, the victim was Jennifer Smith, a prostitute. Defendant had picked up Smith in Portland and had driven with her to a 7-Eleven store and then to the parking lot of a Denny’s restaurant on McLoughlin Boulevard in Clackamas County. Defendant asked that Smith allow him to tie her up so that he could massage her and masturbate. Smith removed her clothes. Defendant then tied her with shoelaces that he had in his pickup truck. Smith was tied so that she was on her knees facing the back of the seat with her hands and feet tied behind her against the dashboard.
At about 2:30 or 3 a.m. on the morning of August 7, several witnesses near the Denny’s parking lot heard a
Defendant drove to his small engine repair shop in Woodburn. There was blood all over the passenger side of his truck. He attempted to wash off the blood with a shop rag and sponge. He burned his blood-soaked clothing and a tennis shoe and some clothing belonging to Smith in a wood stove in the shop. The police arrived at defendant’s shop at 5:35 a.m. Defendant’s pickup truck was parked in front and its radiator was still warm. The police saw blood in front of the shop door. Defendant, who was inside the shop, was arrested. He had a strong odor of alcohol and told a detective that he had “bought some miniatures at the liquor store.” Defendant had purchased a 10-pack of vodka miniatures — the same brand of vodka as the bottles found at the Molalla Forest crime scene — from the Woodburn liquor store the previous evening.
Smith bled to death from stab wounds to her chest. She also had stab wounds in her abdomen, in her breasts and nipples, and a complex v-shaped stab wound on her back. The stab wounds were consistent with the knife with which defendant fled and which was found behind the nearby building around which defendant ran. Smith had numerous defensive injuries to her hands and arms, and her wrists showed recent bruises that could have been caused by the knotted shoelaces that defendant had used to bind her.
Near the Denny’s parking lot, the police recovered the knife that defendant had dropped while running. That knife was the same model as the knife later found at the Molalla Forest crime scene. The police found knotted shoelaces, one of Smith’s tennis shoes, and most of Smith’s clothing near where defendant’s pickup truck had been
In defendant’s truck, the police found a bungi cord, a green pull tab from a juice container similar to the containers later found at the Molalla Forest crime scene, numerous blood stains, and several human hairs. Some of the blood stains found were made by type O blood of the same subtype as Smith’s blood. Type 0 blood of the same subtype as defendant’s blood — a subtype that is inconsistent with Smith’s blood subtype — also was found in defendant’s truck. Other blood stains were found in the truck on the passenger seat, seat back, and floor that were types O and A. Cervantes and Adams also had type O blood; Gyles’ blood was type A. Of the human hairs found, several were macroscopically and microscopically similar to Mock’s hair, two hairs were consistent with Cervantes’ hair, and two hairs were consistent with DeVore’s hair. The police also noted that the passenger side door panel, ceiling, and seat were cut.
While the state’s investigation of the Molalla Forest killings was continuing, defendant was indicted, tried, and convicted of aggravated murder for causing the death of Jennifer Smith. During the guilt phase of that trial, the court refused to permit the introduction of evidence regarding the Molalla Forest victims. The state did not offer that evidence during the penalty phase of the Smith homicide trial. In the penalty phase, pursuant to ORS 163.150 (1987), see note 9, post, the jury was asked three questions:
“[1] Was the conduct of the defendant, Dayton Leroy Rogers, that caused the death of Jennifer Lisa Smith committed deliberately and with the reasonable expectation that the death of Jennifer Lisa Smith would result?”
*362 “[2] Is there a probability that the defendant, Dayton Leroy Rogers, would commit criminal acts of violence that would constitute a continuing threat to society?”
“[3] Was the conduct of the defendant, Dayton Leroy Rogers, in killing the deceased, Jennifer Lisa Smith, unreasonable in response to the provocation, if any, by the deceased, Jennifer Lisa Smith?”
The jury answered “no” to the first two questions, and “yes” to the third. Thus, although the jury concluded that the killing was unreasonable in response to any provocation from the victim, it did not conclude that defendant had acted deliberately when he killed Smith, and it did not conclude that it was probable that he would commit criminal acts of violence in the future that would constitute a continuing threat to society. Defendant therefore was not sentenced to death for the aggravated murder of Smith.
Shortly thereafter, defendant was indicted for the killings of the six identified Molalla Forest victims. The six indictments charged defendant with two counts of aggravated murder for each of the victims. The aggravated murder charges were based on murder in the course of torturing each victim, ORS 163.095(l)(e), and aggravated felonymurder for murder during a kidnapping, ORS 163.095(2)(d) and 163.115(l)(b)(E) and (F). The indictment concerning the death of Cervantes also charged defendant with a third count of aggravated murder, for murder in the course of sexual abuse. ORS 163.095(2)(d) and 163.115(l)(b)(H).
At trial, the state presented evidence of defendant’s killing of Smith, including defendant’s testimony in the Smith murder trial. Additionally, the state presented evidence that the six Molalla Forest victims were prostitutes and offered the testimony of 11 other prostitutes who had “dated” defendant. The prostitute witnesses testified about defendant’s conduct during their encounters with him. There was testimony concerning defendant’s habit of mixing vodka from miniature bottles into small plastic orange juice containers. Several of the prostitute witnesses testified that defendant took them to areas in or near the Molalla Forest. They also testified about defendant’s violent sexual proclivities, including, inter alia, (1) tying their hands and feet tightly behind them; (2) threatening to cut their breasts, feet,
The jury convicted defendant on all 13 counts of the six indictments concerning the deaths of the Molalla Forest victims. The jury then answered the penalty-phase questions “yes,” thereby requiring the trial court to enter judgments of conviction and sentence of death. ORS 163.150(l)(f).
ISSUES RELATING TO PRETRIAL MATTERS
In his first assignment of error, defendant contends that the trial court erred in denying his motion for a change of venue. He argues that prejudicial pretrial publicity made it impossible for him to receive a fair trial, thus violating his rights under Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. With regard to change of venue, ORS 131.355 provides:
“The court, upon motion of the defendant, shall order the place of trial to be changed to another county if the court is satisfied that there exists in the county where the action is commenced so great a prejudice against the defendant that the defendant cannot obtain a fair and impartial trial.”
We review the trial court’s denial of a motion to change venue to determine whether the trial court abused its discretion. State v. Little,
The trial court carefully presided over the extensive jury selection process and was satisfied that the impaneled jurors could and would base their verdicts on the evidence presented. The trial court’s determination that the jurors in the present case would be impartial is entitled to great weight. State v. Montez,
Defendant next contends that the trial court erred in denying his motion for an order authorizing expenses for a pretrial public opinion poll. He wanted the poll in order to gauge the extent of pretrial publicity in Clackamas County about him and his connection to the Molalla Forest killings and the Smith homicide, in order to determine whether to seek severance of the six indictments for trial or whether he could receive a fair trial in Clackamas County.
Defendant argues that the denial of his motion violated his rights under ORS 135.055(3) and his constitutional rights to adequate assistance of counsel, freedom from cruel and unusual punishment, and due process, citing Article I, section 11, of the Oregon Constitution, and the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. We first address defendant’s statutory argument. Stelts v. State, supra,
ORS 135.055(3) provides in part:
“The person for whom counsel has been appointed is entitled to reasonable expenses for investigation, preparation and presentation of the case. The person or the counsel for the person may upon motion, which need not be disclosed to the district attorney prior to conclusion of the case, secure approval and authorization of payment of such expenses as*366 the court finds are necessary and proper in the investigation, preparation and presentation of the case * * *.”
This court has not decided what the appropriate standard of review is for atrial court’s denial of an expense request under ORS 135.055(3). The Court of Appeals has concluded that the decision whether to allow an expense request “will depend on the facts and circumstances of the particular case and must be committed to the sound discretion of the court to which the request for expenses is directed.” State v. Acosta,
The trial court denied defendant’s request for the expenses for the opinion poll, concluding that it was ‘ ‘satisfied that the individual voir dire of prospective jurors and the additional peremptory challenges will permit the selection of a jury unaffected by pretrial publicity. ’ ’ Implicit in the court’s conclusion was that a pretrial public opinion poll was not “necessary and proper [for] the investigation, preparation and presentation of the case.” ORS 135.055(3) (emphasis added). The trial court did not abuse its discretion in so finding.
As to the constitutional claims,
Defendant next contends that the trial court erred in denying his challenge for cause of all prospective jurors who knew of his earlier conviction for the aggravated murder of Smith. Specifically, defendant contends that “knowledge of the conviction was so prejudicial that it demonstrated an actual bias from which a prospective juror could not be rehabilitated.” Because five of the jurors at trial were aware of defendant’s conviction for the Smith murder, defendant asserts that he was not tried by an impartial jury, in violation of Article I, section 11, of the Oregon Constitution and the Sixth and Fourteenth Amendments to the United States Constitution.
Defendant’s contention is not persuasive. Although it is questionable whether the court committed error by refusing to excuse those five jurors,
In his next assignment of error, defendant contends that the trial court erred in denying his challenge for cause of juror Morgan. He argues that Morgan’s responses on voir dire indicated that she strongly approved of the death penalty and thus could not be an impartial juror, because she would vote to impose the death penalty if defendant were convicted. For essentially the same reasons, defendant also assigns as error the trial court’s refusal to excuse juror Burklund.
With respect to both Morgan and Burklund, defendant’s only argument is that they would have been biased in the penalty phase if defendant were convicted. Defendant never has contended that either juror would not be impartial during the guilt phase of his trial. Because defendant’s sentence of death is being vacated and defendant will be receiving a new penalty-phase proceeding before a new jury, he has suffered no harm by the court’s refusal to exclude Morgan and Burklund for cause. Thus, even if the trial court’s denial of defendant’s challenges to Morgan and Burklund for cause was in error, an issue we need not and do not decide, any error was harmless.
Defendant also assigns as error the trial court’s granting of the state’s challenge for cause of prospective juror Rohm, on the basis of her expression of opposition to the death penalty. The standard for excluding juror Rohm for cause is whether her views concerning capital punishment “would ‘prevent or substantially impair the performance of [her] duties as a juror in accordance with [her] instructions or [her] oath.’ ” State v. Nefstad,
“A challenge for implied bias shall be allowed for any of the following causes and for no other:
a* * * * *
“ (2) Standing in the relation of * * * master and servant * * * with the:
“(a) Defendant;
“(b) Person alleged to be injured by the offense charged in the accusatory instrument; or
“(c) Complainant.
“(3) Being * * * in the employment of any person referred to in paragraph (a), (b) or (c) of subsection (2) of this section * *
Defendant argues that the state is the complainant in this case and that, because each of the three challenged jurors was employed by the state — Thomas as a maintenance worker on a bridge crew with the State Highway Division, Somers with the Motor Vehicles Division, and Green with the Oregon Health Sciences Center — the statute mandates their exclusion for cause for implied bias.
In determining what the term “complainant” means in the context of ORS 136.220, we look to the legislation itself. The term “complainant,” which was added to the statute in a
ORS 136.220(3) lists three types of relationships — familial, business partnership, and employment — that give rise to an implied bias sufficient for disqualification. ORS 136.220(3) suggests that the complainant, one of the “person[s]” referred to in ORS 136.220(2)(c), is not the state, because “person” does not ordinarily include the state. See ORS 174.100(4) (defining “person” broadly, but not so broadly as to include the state). Because the complainant is a “person,” and the state is not a “person,” the state is not the complainant referred to in ORS 136.220.
Other provisions support this reading of ORS 136.220. In ORS 135.165, the legislature has distinguished between the complainant and the state, thereby implying that the complainant is not the state. That statute provides:
“The complainant may employ counsel to appear against the defendant in every stage of the preliminary hearing; but the district attorney for the county, either in person or by some attorney authorized to act for the district attorney, is entitled to appear on behalf of the state and control and direct the prosecution.” ORS 135.165 (emphasis added).
In defining the parties in a criminal action, ORS 131.025 provides that “the State of Oregon is the plaintiff,” not that the state is the “complainant.” The statutory definition of a “[c]omplainant’s information” as “a written accusation, verified by the oath of aperson,” ORS 131.005(4), in contrast to a “[djistrict attorney’s information,” which is “a written accusation by a district attorney,” ORS 131.005(9), also suggests that the legislature did not intend the term “complainant” to mean the state. Although it is clear that the complainant is not necessarily the victim of the crime — ORS 136.220(1) and (2)(b) separately refer to “the person alleged to be injured by
In the present case, there is no contention that any of three jurors challenged for implied bias under ORS 136.220 was employed by the district attorney or any of the grand jurors who returned the indictment. Thus, none of the three jurors could be challenged for implied bias under ORS 136.220, and the trial court did not err in denying defendant’s challenge on that ground.
Further, because defendant has not asserted that any of the three jurors was actually biased or incapable of being an impartial juror, there can be no successful contention that defendant’s state or federal constitutional rights to a fair and impartial jury were violated. See State v. Montez, supra,
ISSUE PRECLUSION
In defendant’s next assignment of error, he argues that the trial court erred in denying his motion to declare him ineligible for the death penalty.
Pursuant to ORS 163.150(l)(b) (1987),
“One, was the conduct of the defendant, Dayton Leroy Rogers, that caused the death of Jennifer Lisa Smith committed deliberately and with the reasonable expectation that the death of Jennifer Lisa Smith would result?
“Answer. No.
“Two. Is there a probability that the defendant, Dayton Leroy Rogers, would commit criminal acts of violence that would constitute a continuing threat to society?
“Answer. No.
“Three. Was the conduct of defendant, Dayton Leroy Rogers, in killing the deceased, Jennifer Lisa Smith, unreasonable in response to the provocation, if any, by the deceased, Jennifer Lisa Smith?
“Answer. Yes.”
Because one or more questions were answered “no,” defendant was not subject to the death penalty for the aggravated murder of Smith. The sentencing jury in the present case was asked the same three statutory penalty-phase questions with regard to the deaths of the Molalla Forest victims and answered each question “yes,” and defendant therefore was sentenced to death.
Defendant argues that the state was precluded from relitigating the second question, i.e., the issue of his future dangerousness, because the Smith homicide sentencing jury had answered that question in the negative. Defendant argues that all the elements necessary for the application of
In State v. Dewey,
“That only is determined by a former judgment, decree or order which appears upon its face to have been so determined or which was actually and necessarily included therein or necessary thereto.”
In discussing the application of issue preclusion in the criminal context, the Dewey court stated:
“Where the second prosecution is for another offense, ‘the previous judgment is conclusive only as to those matters which were in fact in issue and actually or necessarily adjudicated. Thus an acquittal of the charge of seduction does not adjudicate the question of sexual intercourse although that was one of the issues in the case, since the acquittal might have been due to the failure to establish other facts essential to a conviction.’ ” State v. Dewey, supra,206 Or at 508 (quoting 2 Freeman on Judgments 1364-65, § 648 (5th ed 1925).
See also State v. George,
The federal prohibition against double jeopardy prevents the state from seeking the death penalty in a retrial of a
There is also an issue preclusion component of the federal Double Jeopardy Clause. ‘ ‘ [W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson,
The question here is whether the issue decided in the prior trial for the Smith homicide is the same issue that was presented to the jury in this case. The sentencing jury in the Smith case was instructed (as was the sentencing jury in the present case) as follows with regard to the second penalty-phase question:
“The second question asked by the law is:
*376 “Is there a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society?
“In determining this issue, you must consider any mitigating circumstances received in evidence, including, but not limited to, defendant’s age, the extent and severity of the defendant’s prior criminal conduct, and the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed.”11
The issue presented by the second question in the present case differs from the second-question issue in the Smith case, because the sentencing jury in each case had to determine whether, based on everything in defendant’s life to that point in time (including “the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed”), defendant likely would be dangerous in the future. See State v. Moen,
In the present case, the second-question issue was, based on defendant’s conduct and character up to the time of trial and the convictions and the circumstances of the aggravated murders of the six Molalla Forest victims,
Because the second-question issue by its nature involves a temporal element — the future — and is based on a broad inquiry into a defendant’s life bounded only by the present, the point at which the jury decides the issue, the issue to be decided changes continuously with time. Issue preclusion therefore is not available to defendant. The trial court did not err in denying defendant’s motion to be declared ineligible for the death penalty.
ISSUES CONCERNING THE TRIAL
Defendant’s next assignment of error concerns the trial court’s admission of evidence of other crimes and bad acts committed by defendant. Before trial, the state sought a ruling from the court concerning the admissibility of evidence
The trial court considered the state’s offer of proof and issued a letter opinion, in which the court made preliminary findings of fact regarding the predicates for admissibility of other crimes evidence. The court concluded that some of the state’s proffered evidence would be admissible. Because there is evidence to support the trial court’s findings, there was no error in admitting the other crimes evidence.
Defendant next contends that the trial court erred in overruling his demurrer to, and in denying his motion in arrest of judgment on, the third count of the indictment concerning the death of Cervantes for aggravated felony murder based on the commission or the attempt to commit the felony of sexual abuse in the first degree. Defendant argues that Count III of the indictment concerning Cervantes’ death is indefinite and uncertain, because it does not set forth the theory of culpability for the felony underlying the aggravated murder charge. Defendant also asserts that, because the statutes authorize a conviction for aggravated felony murder for a murder committed during attempted first degree sexual abuse, ORS 163.095(2)(d) and 163.115(l)(b)(H), and because attempted first degree sexual
There is no constitutional infirmity in Count III of the indictment concerning Cervantes’ death. There is nothing irrational about the legislature’s determination that those who commit intentional murder in the course of committing or attempting to commit a first degree felony sex crime should be subject to possible imposition of the death penalty. Nor was it irrational for the legislature to include an attempt to commit a first degree felony sex crime, but not completed second or third degree felony sex crimes, in that classification. Rather, the legislature implicitly concluded, and could rationally conclude, that, because the difference between an attempted and a completed crime may be due to circumstances beyond a defendant’s control, an intentional murder committed during an attempt to commit a first degree felony sex crime is more repugnant than an intentional murder committed during the course of a second degree felony sex crime.
With respect to defendant’s argument that imposition of the death penalty for what he characterizes as “aggravated misdemeanor murder” amounts to cruel and unusual punishment in violation of the state and federal constitutions, defendant’s argument essentially is one of proportionality.
Article I, section 16, of the Oregon Constitution provides in part:
*380 “Excessive bail shall not be required, nor excessive fines imposed. Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.”
The Eighth Amendment to the United States Constitution provides:
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
The standard for determining whether punishment is cruel and unusual is whether “the punishment [is] so proportioned to the offense committed as to shock the moral sense of all reasonable men as to what is right and proper under the circumstances.” Sustar v. County Court of Marion County,
Finally, with respect to defendant’s claim that Count III of the indictment is indefinite and uncertain because it does not specify the state’s theory or the elements of sexual abuse, such a recitation of the elements was unnecessary. In State v. Montez, supra,
Defendant also assigns as error the trial court’s denial of his motion for mistrial based on a contact between one of the trial jurors and the mother of one of the victims in a courthouse rest room. Whether to grant a mistrial is a determination committed to the sound discretion of the trial court. As this court stated in State v. Smith,
“Our scope of review on the issue of whether a mistrial should have been declared is one of abuse of discretion: ‘We have consistently held that a motion for a mistrial is addressed to the sound discretion of the trial judge.’ State v. Jones,242 Or 427 , 433,410 P2d 219 (1966). See State v. Farrar,309 Or 132 , 164,786 P2d 161 (1990) (Trial judge is in the best position to ‘assess and rectify the potential prejudice to the defendant.’). The question thus is not whether this court would have granted a new trial to defendant, but whether the trial court abused its discretion in refusing to do so.”
Defendant argues that the trial court abused its discretion in denying his motion for mistrial.
Specifically, defendant contends that the trial court should have declared a mistrial after juror Sesko had a brief encounter, during the trial, in a courthouse rest room with the mother of one of the victims. On the fourth day of the guilt phase of the trial, while Sesko was washing her hands, she was approached lay James, the mother of victim Hodges. James told Sesko either that she wanted “to thank” her or that she “appreciate^] what [Sesko was] doing.” James did not identify herself and Sesko did not respond to James’ comment. Juror Sesko then left the rest room and reported the contact to the bailiff.
The following morning, in chambers and out of the presence of the jury, the court questioned Sesko and James separately. Both Sesko and James gave essentially the same account of their encounter in the rest room. Sesko testified
The trial court did not abuse its discretion in denying defendant’s motion for mistrial. The trial judge was in the best position to assess the potential prejudice to defendant and to rectify it. State v. Farrar,
In another guilt-phase assignment of error, defendant contends that the trial court should have instructed the jury that all the elements of the underlying felony had to be proven beyond a reasonable doubt in order to convict defendant of aggravated felony murder. He argues that the court’s instructions were incorrect and prejudicial because they allowed the jury to convict on less than proof beyond a reasonable doubt as to the elements of the underlying felonies and could have resulted in a verdict that was not unanimous. The state asserts that defendant’s proposed instructions were incorrect because, inter alia, they improperly would have required the jury to find that defendant had committed
The trial court’s instructions told the jury that it must find each of the elements of aggravated felony murder beyond a reasonable doubt, including
“That the defendant either alone or with one or more persons committed or attempted to commit the [underlying felony];
“And that in the course of and in the furtherance of the [underlying felony], which the defendant was committing or attempting to commit, the defendant personally and intentionally caused the death of [the victim], who was not a participant in the crime.”
The trial court’s instructions then described the elements of each of the underlying felonies — kidnapping in the first degree, kidnapping in the second degree, and sexual abuse in the first degree — without reiterating that the state must prove the elements of the underlying felonies beyond a reasonable doubt. The instructions proposed by defendant concerning the aggravated felony murder counts reiterated the burden of proof before describing the elements of the underlying felonies.
The instructions given by the court accurately stated the law. The court was not required to give the burden of proof instructions in the particular form requested by defendant. State v. Montez, supra,
Defendant’s last guilt-phase assignment of error is an attack on the sufficiency of the evidence and the trial court’s denials of his motions for judgments of acquittal. Defendant’s primary contention is that there was not sufficient evidence to establish beyond a reasonable doubt that he tortured, kidnapped, or sexually abused any of the Molalla Forest victims. In State v. King,
“In ruling on the sufficiency of the evidence in a criminal case, the relevant question is whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Harris,288 Or 703 , 721,609 P2d 798 (1980). It is not proper for us to hold that there is a reasonable doubt because of conflicts in the evidence. After a verdict of guilty, such conflicts must be treated as if they had been decided in the state’s favor. After the conflicts have been so decided, we must take such decided facts together with those facts about which there is no conflict and determine whether the inferences that may be drawn from them are sufficient to allow the jury to find defendant’s guilt beyond a reasonable doubt. Our decision is not whether we believe defendant is guilty beyond a reasonable doubt, but whether the evidence is sufficient for a jury so to find. State v. Krummacher,269 Or 125 , 137-38,523 P2d 1009 (1974).”
Accord State v. Walton,
Defendant argues that there was no evidence that any of the victims was tortured. The aggravating factor of torture, ORS 163.095(l)(e), requires a separate specific intent to inflict intense physical pain, apart from the intent to do the acts causing death. State v. Cornell/Pinnell,
Defendant misconceives the limitation on other crimes evidence reflected in OEC 404(3). As this court concluded in State v. Johns,
In the present case, the physical evidence — specifically, the condition of the mutilated bodies — indicated repeated stabbing and cutting wounds in addition to severed limbs. There was testimony that the infliction of those wounds would have caused intense physical pain to a victim who was alive and conscious. Other evidence established that defendant used cutting devices intentionally to inflict intense pain to prostitutes with whom he had encounters. In fact, several of the prostitute witnesses testified that defendant stopped inflicting pain when they stopped resisting him and exhibiting their pain. An inference may be drawn from that evidence that defendant intended to cause pain as a separate objective because, when his victims no longer appeared to be experiencing such pain, he stopped causing them pain. The other crimes evidence was admissible to prove that he had the same separate objective intentionally to cause intense pain to the Molalla Forest victims by inflicting stabbing and cutting wounds to them before killing them. See State v. Walters, 311
With regard to the aggravated felony murder/ kidnapping counts, there was sufficient evidence from which the jury could infer that defendant intended to deceive the Molalla Forest victims into accompanying him to the remote site in the forest where they were killed. Although several of the prostitute witnesses testified that they willingly accompanied defendant, they did so because of his promises not to harm them. When defendant in fact did harm them after tying them up, several of the prostitute witnesses testified that defendant refused at first to untie them and take them back to the city. One prostitute testified that she jumped out of defendant’s pickup truck naked in order to escape from him. Although the witnesses’ encounters may have begun consensually, defendant’s conduct afterwards is indicative of both his intent to deceive those women initially and his intent to confine them against their wills. See State v. Amell,
Finally, with respect to the aggravated felony murder/sexual abuse count concerning the death of Cervantes, it was reasonable for the jury to infer that defendant cut off her nipple in order to gratify his sexual desires and that
Because there was sufficient evidence to support the jury’s verdict on each of the 13 counts of aggravated murder, the trial court did not err in denying defendant’s motions for judgments of acquittal. In sum, we have considered all of defendant’s guilt-phase assignments of error, including those not specifically discussed herein, and have concluded that no reversible error was committed by the trial court.
ISSUES RELATING TO THE PENALTY PHASE
Defendant’s other assignments of error concern the penalty phase of his capital trial. Because defendant’s sentencing jury was not asked the so-called “fourth question” — whether the death penalty is appropriate for this defendant, considering all aspects of his life and crimes — this court’s decision in Wagner II, supra,
Defendant’s remaining penalty-phase assignments of error concern conduct specific to the last sentencing jury which is moot, specific penalty-phase jury instructions that
Defendant contends that the trial court erred in refusing to give the following proposed instruction:
“In determining which penalty to impose upon defendant, you may consider the irrevocable nature of the death penalty, as well as any residual doubt you may have as to any of the elements of the offenses for which defendant has been convicted.
“Residual doubt means that doubt that exists as to any of the element of the offenses for which defendant was charged, and exists when, although the evidence suffices to sustain the verdict of conviction of the crime, the evidence nonetheless does not foreclose all doubt as to defendant’s guilt.
“In determining whether residual doubt exists as to defendant’s guilt for purposes of assessing the penalty to be imposed, you may consider any factor creating such doubt, including, but not limited to: defendant’s plea of the circumstantial nature of evidence; not guilty; the possibility of mistake by the judicial system; and the irrevocable nature of the death penalty.”
Defendant argues that this so-called “residual doubt” instruction is a companion to the instructions concerning mitigation and the “fourth question” which should have been, but were not, given by the trial court.
In Wagner II, this court held that the federal constitution requires that a capital sentencing jury be given an adequate opportunity to consider all mitigating evidence and suggested that the sentencing jury be asked a “fourth question.”
Defendant’s argument concerning residual doubt is premised on Wagner II’s reading of federal law. As a matter of federal law, defendant has no right to an instruction concerning residual doubt. Penry v. Lynaugh, supra,
Defendant makes no claim under any state statute or constitutional provision. In a sense, defendant’s requested instruction suggests that there is really a fifth question that the jurors must consider. There is no basis in the law for giving such an instruction. Therefore, the trial court did not err in refusing to instruct the sentencing jury concerning residual doubt.
CONCLUSION
We have considered all of defendant’s guilt-phase assignments of error and have concluded that the trial court did not commit reversible error with respect to any of them. With respect to the penalty phase, the state was not precluded from seeking the death penalty for the crimes charged. However, because the sentencing jury was not asked the so-called “fourth question,” defendant is entitled to a new penalty-phase proceeding. On remand, defendant is not entitled to an instruction on residual doubt.
The judgments of conviction for aggravated murder and aggravated felony murder are affirmed. The sentence of death is vacated. The case is remanded to the circuit court for further proceedings consistent with this opinion.
Notes
Five jurors who sat on the case were aware that defendant had been convicted of killing Smith. Although the evidence in the present case did not include the fact of defendant’s conviction, it did include the events that were the basis of that conviction. In any event, defendant did not specifically challenge any of the five for cause and the trial court determined to its satisfaction that those jurors would decide the case on the evidence and not on what they might have known before the trial. See Patton v. Yount,
Defendant has not argued that the analysis of his state constitutional claim, based on Article I, section 11, differs from the analysis of his federal constitutional claim under Ake v. Oklahoma,
As discussed ante, a prospective juror’s prior knowledge concerning a case does not disqualify the juror unless the juror has “such fixed opinions that [he or she] could not judge impartially the guilt of the defendant.” Patton v. Yount, supra note 1,
Defendant asserts that Garrison v. City of Portland,
Oregon Laws 1961, chapter 444, section (1), with deleted language in brackets and new language italicized, provided in part:
“ORS 136.220 is amended to read:
“136.220 A challenge for implied bias may be taken for any of the following causes and for no other:
“(1) Consanguinity or affinity within the fourth degree to the person alleged to be injured by the crime charged in the indictment or information, to [the person indorsed thereon as the prosecutor] the complainant or to the defendant.
“(2) [Standing in the relation of guardian and ward, attorney and client, master and servant, or landlord and tenant with the defendant or the person alleged to be injured by the crime charged in the indictment or indorsed thereon as the prosecutor, or beingamember of the family, a partner in business with, or in the employment on wages for, either of such persons, or being a surety or bail in the action or otherwise for the defendant.]
‘ ‘Standing in the relation of guardian and ward, attorney and client, master and servant or landlord and tenant with the:
“(a) Defendant;
“(b) Person alleged to be injured by the crime charged in the indictment or information; or
“(c) Complainant.
“(3) Being a member of the family, a partner in business with or in the employment of any person referred to inparagraph (a), (b) or (c) of subsection (2) of this section or a surety or bail in the action or otherwise for the defendant.”
The original bill proposing the amendment of ORS 136.220 provided that “a witness” should be substituted for “the person indorsed thereon as the prosecutor” in ORS 136.220(1). The House Judiciary Committee amended the bill by substituting “the complainant” for “a witness” before reporting it to the floor of the House with a “do pass as amended” recommendation. Minutes, House Judiciary Committee (HB1171), March 2,1961, at p 4. With regard to subsection (2) of ORS 136.220 — the provision at issue here — “the complainant” appeared in both the original bill and the bill enacted by the legislature.
The phrase “the crime charged in the indictment or information” has since been replaced by “the offense charged in the accusatory instrument.” Or Laws 1973, ch 836, § 232.
Although this error is considered more appropriately as a penalty-phase assignment of error, defendant has grouped it with his guilt-phase assignments of error, apparently because the motion was made during the pretrial proceedings. In any event, we will decide this penalty-phase issue, because, if defendant is correct, the state may not seek to impose the death penalty in this case and it would be pointless to remand for a new penalty-phase proceeding.
ORS 163.150 sets forth the procedures for conducting the penalty phase of a trial for aggravated murder. The 1987 version of the statute, which was in effect during both prosecutions of defendant, differed slightly from the 1985 statute, but only in ways not apposite to the present case. ORS 163.150 was amended alsoin 1989 and 1991. Because the trial court in the present case did not submit to the sentencing jury the statutorily authorized “ ‘fourth question,’ i.e., a query whether the death penalty is appropriate for this defendant, considering all aspects of his life and crime,” and such a question is constitutionally required, this case must be remanded for a new sentencing proceeding. Wagner II, supra,
Although defendant, the federal cases, and older Oregon cases refer to the doctrine of “collateral estoppel,” this court has noted that it is more precise to refer to “collateral estoppel” as “issue preclusion.” Drews v. EBI Companies,
This instruction was based on ORS 163.150(1)(b)(B) (1987), which provided for the consideration of mitigating circumstances in connection with the second question. In State v. Wagner,
Defendant, in fact, offered evidence of his good behavior while incarcerated prior to his trial in this case as probative on the issue of future dangerousness. In rebuttal, the state offered evidence, through the testimony of a psychologist, that defendant’s conduct in prison suggested that defendant could be dangerous in the future in a prison society. See State v. Douglas,
The Smith sentencing jury was instructed that it must consider “the extent of the mental and emotional pressure under which the defendant was acting at the time the killing was committed,” in answering the second question. In order to determine defendant’s mental and emotional state at the time of the killings, the juries necessarily would have to examine the circumstances of the aggravated murder of Smith. The sentencing jury in this case was given the same instruction concerning the second question and thus would have to look at the evidence concerning the circumstances of the aggravated murders of the Molalla Forest victims in order to determine defendant’s mental and emotional state at the times of those killings. Hence, the second-question issues in the two cases were not the same.
Although the trial court did not issue final written findings of fact, “we will presume that the facts were decided in a manner consistent with the ultimate conclusion.” Ball v. Gladden,
In Oregon Laws 1991, chapter 830, sections 2 and 3, the legislature amended ORS 163.425 and added ORS 163.427, making first degree sexual abuse a Class B felony, for which an attempt is a Class C felony. ORS 161.405(2)(c).
Even if this court were inclined to set aside the aggravated felony murder/sexual abuse count of the indictment concerning Cervantes’ death, defendant has suffered no harm from its presence in the case and would not be entitled to any relief. Defendant was found guilty of two other counts of aggravated murder for killing Cervantes as well as two counts for each of the other five identified Molalla Forest victims. The evidence establishing the sexual abuse would have been part of the case in any event, because it was also evidence of intentional torture by defendant of Cervantes. Thus, even if the trial court should have dismissed the sexual abuse count, defendant still has been convicted properly of 12 counts of aggravated murder.
Dissenting Opinion
dissenting in part.
I dissent from the remand for a new penalty-phase trial for the reason stated in the first three paragraphs of the dissenting opinion in State v. Williams,
Only the legislative branch may enact penal laws. I dissent.