STATE OF OREGON, Respondent, v. JOSHUA ABRAHAM TURNIDGE, Appellant.
(CC 08C51758; SC S059155)
STATE OF OREGON
May 5, 2016
374 P3d 853
Argued and submitted June 17, 2015, judgment of conviction and sentences of death affirmed May 5, 2016
Susan G. Howe, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson and Timothy A. Sylwester, Assistant Attorneys General.
Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, and Baldwin, Justices, and Linder, Senior Justice pro tempore.*
* Nakamoto, J., did not participate in the consideration or decision of this case.
Defendant and his father were jointly charged and tried on 10 counts of aggravated murder and other felonies arising from their involvement in a bombing at a bank that killed two law enforcement officers and injured another law enforcement officer and a bank employee. A jury found them each guilty on all counts and determined that sentences of death should be imposed. The trial court thereafter entered separate judgments of conviction for defendant and his father, each of which included two sentences of death, one for each murder victim. On direct review under
I. FACTS AND PROCECURAL BACKGROUND
In setting out the facts, we begin with those relating to the bombing itself, followed by information learned from the ensuing investigation. We then describe the resulting charges and the trial. Because a key issue relating to the evidence as a whole involves the trial court‘s denial of a motion for judgment of acquittal, we set out the facts in the light most favorable to the state, including all reasonable inferences that a jury could draw from those facts. State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), cert den, 514 US 1005 (1995); see also State v. Brown, 310 Or 347, 350, 800 P2d 259 (1990) (because jury found defendant guilty, in assessing sufficiency of evidence relating to motion for judgment of acquittal, court viewed evidence in light most favorable to state). We describe additional facts later in this opinion as they relate to particular assignments of error.
Shortly before 10:30 a.m. on Friday, December 12, 2008, a man called a Wells Fargo Bank in Woodburn and told the teller who answered, “If you value your life and the life of your employees, you need to *** get out because I‘m going to kill you, you *** are all going to die.” The caller told the teller to have all employees leave the bank and check the outside garbage area, where they would find a plastic bag containing a cell phone; he explained that he would then call that phone to tell them what to do next. He also stated either that he had called or was going to call a neighboring bank, West Coast Bank, with similar instructions.2 The caller spoke calmly, had no accent, and—in the teller‘s estimation—was likely in his thirties or forties.
The teller called 9-1-1, and detectives from the Woodburn Police Department responded. The detectives checked the outside garbage area and found several large black plastic trash bags and a zipper-style bag containing a cell phone. Concerned that the phone might be an explosive device, they called for bomb technicians. Trooper William Hakim from the Oregon State Police and an FBI special agent responded; they examined and x-rayed the phone and confirmed that it was not an explosive device. Another law enforcement officer then took the phone to the Woodburn Police Department, and Trooper Hakim and the FBI special agent left the scene.
Because the caller had mentioned the neighboring West Coast Bank, a detective called dispatch and confirmed that that bank had reported no threatening phone call. Other detectives on the scene spoke with West Coast Bank employees and checked that bank for suspicious packages. In walking the exterior of West Coast Bank, one detective noticed a large metal box among some bushes, within one to a few feet of an exterior bank window, on a side of the bank that faced a sidewalk and a residential street. The box was painted green and looked like a landscaping utility box or part of a sprinkler system. It was almost square or
In response to police questions about whether the box was recently placed or already had been in that location, a bank employee, Perkett, and the bank branch manager, Taylor, each looked at the box. Perkett lifted it slightly, and Taylor tipped it to a 45-degree angle. A welded, uneven grid with openings to the inside, fashioned from flat stock metal, crossed the underside. Viewed from underneath, looking through that grid, the box appeared mostly hollow. With the box tipped, Taylor could see wires inside the hollow area, as well as what looked like a secured motorcycle battery. He also saw a toggle switch on the outside of the box. Taylor and Perkett told the detective that they had not seen the box before, and Perkett then tried to reach the bank‘s landscaper who had worked at the bank the previous Sunday. After several hours, the landscaper arrived and said that the box was not his and had not been there before, which prompted law enforcement to treat the box as a suspicious device. They photographed it, recalled the bomb squad, and Trooper Hakim again responded. While Trooper Hakim was assessing the device, Chief Scott Russell and Captain Thomas Tennant from the Woodburn Police Department—who had been monitoring the situation throughоut the day—arrived to assist as needed.
Trooper Hakim inspected the device, including turning it upside down and x-raying it, but the x-ray was not conclusive. He ultimately concluded that the device—which, as noted, appeared to be hollow except for the secured motorcycle battery inside—was a “very good hoax device.”3 So that
By then, it was around 5:00 p.m. and was growing dark, and the weather was cold and rainy. To get out of the weather and darkness, Trooper Hakim moved the device inside West Coast Bank, which by then had closed to customers. All employees, except Taylor and Perkett, left the bank; meanwhile, various law enforcement officers moved in and out of the bank. Eventually, only Perkett, Taylor, Trooper Hakim, Chief Russell, and Captain Tennant remained inside the bank, with Captain Tennant assisting Trooper Hakim with the device, which had been placed on the floor with the grid side face-up, and Chief Russell observing from nearby. Taylor went into a conference room to take an incoming phone call, and Perkett, who was standing in the same open area as the others, prepared to leave.
Trooper Hakim and Captain Tennant tried without success to remove bolts that appeared to hold the lid on the device, and then Trooper Hakim used a crowbar to pry on the lid. Hitting either the device or the crowbar with a hammer, he succeeded in slightly moving the lid. He stated, “There, I got it.” A second or so later, the device exploded, causing extensive damage to the immediate area inside the bank and violently projecting shrapnel through the windows, walls, and roof, and outside onto the road and into a nearby parked car and a residence.
Other law enforcement officers working outside the bank rushed inside. Trooper Hakim and Captain Tennant had suffered horrific injuries, and were dead. Chief Russell was alive, but his legs were nearly severed, and he was bleeding profusely from those and other injuries. Perkett suffered a wound to her leg, but was able to walk out of the bank. Taylor, who had been in the conference room, was not injured. Responding law enforcement officers called for emergency medical help for Chief Russell, who was immediately transported to the hospital. He underwent emergency surgery, which resulted in amputation of his right leg. He remained in critical condition for several days due to his multiple injuries, but survived.
Immediately after the bombing, state and federal law enforcement focused the investigation on the cell phone discovered outside Wells Fargo Bank, the preblast photographs of the device—by then, known to be a bomb—and post-blast evidence gathered from West Coast Bank. On the night of the bombing, investigators determined that the cell phone was a prepaid “TracFone” and had been used to call to another TracFone. Various records reviewed that same night revealed that both phones had been purchased at a Walmart and had been activated via the internet early that same morning, at 4:22 a.m. and 4:30 a.m., from a Best Western hotel in north Salem. Records also revealed that the second TracFone (which was never recovered) had been used to place the call to Wells Fargo Bank and to attempt to also place a call around the same timeframe to West Coast Bank. The next day, Saturday, investigators determined that the phones had been purchased at a Walmart in Bend on November 26, 2008, and that airtime cards for them had been purchased at a particular Walmart in Salem shortly after 9:00 a.m. on December 11. Investigators viewed video surveillance from the Salem Walmart showing a Caucasian male purchasing the airtime cards and then leaving the parking lot in an older, light-blue small Chevrolet pickup truck, possibly a LUV model. They were able to make out some, but not all, of the truck‘s license plate numbers.
Also on Saturday, the day after the explosion, and continuing into Sunday, investigators searched various databases to develop a list of registered small Chevrolet pickups of similar age, with similar plate numbers. The search returned a Chevrolet pickup registered to defendant‘s parents. After retrieving a Department of Motor Vehicles (DMV) photograph of defendant‘s father, Bruce Turnidge, investigators determined that he was not the person in the surveillance footage. They then searched the database for individuals associated with Bruce. That led them to defendant. Based on his DMV photograph and identifying information, defendant (unlike Bruce) matched the appearance, height, weight, and apparent age of the person in the video footage. Investigators also obtained video surveillance images from
On Sunday, sometime after 3:30 p.m., state and federal law enforcement officers drove by the Nolan Lane property and set up a distant perimeter. An older blue Chevrolet LUV pickup truck, which matched the truck from the Salem Walmart surveillance footage, was parked in the driveway. A detective from the Keizer Police Department and a lieutenant from the Oregon State Police approached the home and knocked on the door; defendant answered and spoke with them. Among other things, defendant stated that he had learned about the bombing from the news and had not been involved. Following a consent search of the pickup and further conversation—during which defendant stated that he had been in Bend and Medford on December 12, spoke about a biodiesel business that he had with his father, Bruce, and denied any involvement in the bombing—defendant was placed under arrest and transported to the Marion County Sheriff‘s Office.
Meanwhile, investigators learned of another address of interest, on Potts Road in rural Jefferson, where Bruce rented a home and out-buildings that included a garage, an open-bay pole barn, and a closed-bay shop. Within two hours of defendant‘s arrest, sevеral law enforcement officers went to that address. Bruce‘s wife (defendant‘s mother) consented to a search of the house. Officers located Bruce in a room above the garage accessible from an outside entrance. They and Bruce moved to the house, where Bruce spoke at length with an FBI special agent about his political views. Bruce and his wife eventually were asked to leave the property for the night, and a search warrant was obtained.
The next day and continuing for several days, law enforcement executed the search warrant at the Potts Road property. Among other things, investigators particularly looked for items consistent with components of the bomb that were visible in the preblast photographs or that had been
Outside the pole barn, investigators discovered a burn pile containing wires, nuts, and L-shaped metal pieces that all resembled components of the bomb, as well as a vehicle charger used to charge electronic devices, a cell phone battery, computer parts, other metallic objects, and cans of spray paint. Farther away, at an outside picnic area and along a riverbank, investigators found an empty plastic container for Tovex, which is a slurry-type, powerful “high-explosive.”4 They also found sheets of metal and plywood; flat stock metal; a spool of wire; wire crimps; a like-new soldering kit; and an electrical connector box containing wire strippers. The plywood sheet bore grinding marks and welding splatters, and had an outline of green paint that was similar in size and color to the bomb pictured in the preblast photographs. Investigators also found angle iron, expanded metal, and wire all similar to components of the bomb. In a shallow area of the river nearby, a dive team found similar metal pieces; another Tovex container; a slurry-like substance adhered to a rock that was consistent with Tovex; fuse-type blasting caps; a partially burned
In addition to the Potts Road search, investigators searched defendant‘s home at Nolan Lane, where they seized a receipt for two laptop computers that were different from the two computers seized from the Potts Road property. The make and model of the listed laptops later were determined to contain the same component parts as the computer parts found in the river and in the burn pile.
From evidence seized during the searches and recovered from West Coast Bank, together with fragments of bomb components recovered during the autopsies of Captain Tennant and Trooper Hakim, law enforcement investigators learned more about the bomb components and searched for related purchases. They learned that, on November 26, about six minutes after defendant had been recorded on a surveillance video from the Bend Walmart purchasing the TracFones, as well as canned spray paint, a man about the same age as defendant purchased two toggle switches—of the same type visible on the outside of the bomb—from a neighboring auto parts store. Also on that same day, a little more than an hour before those purchases, someone purchased a servo motor—of the same type from which fragments had been discovered at the post-blast
Using the preblast photographs and analyzing the various components recovered from the blast scene and from the autopsies of Captain Tennant and Trooper Hakim, investigators reconstructed the bomb to determine the nature of its design. From the reconstructed bomb, they determined that the real bomb had been a complex one, constructed with scrap-type metal pieces that had been welded, bolted, and otherwise fastened together. As part of its design, the bomb had been mostly hollow, with solid metal sides and what appeared to be a metal lidded top, and then with the flat stock grid crossing the underside. When the bomb was tipped “upside down,” with the flat stock grid facing upwards, a 12-volt battery had been visible in the hollow area, secured to the grid. Also when the bomb was in that position, farther behind the battery at the bottom of the hollow area, a thick piece of metal was visible, running the same width and depth dimensions as the bomb‘s metal top. Investigators described that thick metal piece as a “shelf” inside the bomb‘s structure.5 Two electrical connectors had been attached to a corner of that metal piece, and wire had run from the battery to those connectors. Investigators determined that, behind that thick metal interior “shelf,” several key components had been concealed: a servo motor; two AA batteries; a second internal toggle switch connected to the servo; three to five pounds of the explosive Tovex; and a thick piece of steel that may have encased the explosive. They also surmised
From the various internal components—particularly, the servo motor, which would have operated to accept a remote command—investigators determined that the bomb was designed to detonate remotely, from a distance of several hundred feet to possibly a few miles. Investigators further determined that the bomb ran on two circuits that required both toggle switches to be in the “on” position for detonation to occur. The internal toggle switch, if flipped to the “on” position, initiated a detonator. The external switch, however, operated as a safe-arm switch so that the bomb could be safely handled. Specifically, the two switches worked together in this way: The servo motor, when it received a remote signal, would flip the internal toggle switch, which in turn would initiate the detonator, which in turn would detonate the explosive, depending on the position of the safe-arm switch. If the safe-arm switch were “off,” then flipping the internal switch would have no effect. If, however, the safe-arm switch were “on,” then the detonator would be triggered, and the bomb would explode.
Investigators theorized that, when the bomb was planted outside the bank, the safe-arm switch was placed in the “on” position. Then, while Trooper Hakim and Captain Tennant worked to dismantle the bomb, a stray radio signal operating on the same radio frequency range as a receiver inside the bomb—such as a signal sent from a nearby CB radio or garage door opener—may have signaled the receiver and servo motor to flip the internal switch to “on,” which initiated the detonator and triggered the explosion. Evidence at trial also suggested alternative scenarios: (1) in handling the bomb before the explosion, someone on the scene inadvertently could have flipped the external safe-arm switch to the “on” position, which either would have set the groundwork for the explosion once the internal switch was flipped, or, if that internal switch already had been flipped somehow, immediately would have caused the bomb to detonate; or (2) an interior component itself—such as the servo motor, the internal switch, or a detonator—might have been
In seeking to determine defendant‘s and Bruce‘s whereabouts on December 12, investigators focused on telephone carrier and cell tower records for their personal cell phones, together with records showing the TracFone activations at the Best Western in north Salem, which offered unsecured wireless service accessible from an exterior parking lot. The carrier and cell tower records revealed a call and travel pattern establishing that, sometime after 1:40 a.m. on December 12, defendant left north Salem and traveled south to Jefferson, and then, by 3:56 a.m., both defendant and Bruce travelled away from Jefferson, separately but in the same direction, back north toward Salem, arriving by 4:01 a.m. in the general vicinity of the Best Western. The TracFones then were activated at the Best Western at 4:22 a.m. and 4:30 a.m.
After the TracFones were activated, there was about a three-hour time break in the phone records—during which investigators theorized that defendant and Bruce traveled together, north to Woodburn, and planted the bomb
As to defendant‘s and Bruce‘s respective reactions and demeanors on the evening of and during the days after the bombing, investigators learned from various witnesses that neither acted unusually. Each continued with his ordinary activities and did not display any noticeable change in behavior or affect.
As part of the investigation, law enforcement attempted to determine a possible motive for defendant and Bruce to have built and planted the bomb. That led them to evidence that defendant and Bruce had planned to rob a bank. Specifically, the FBI analyzed a handwritten paper retrieved from a trash can at the Potts Road property—which, based
Investigators also learned from various of defendant‘s and Bruce‘s family members, friends, and acquaintances that they viewed the government—including law enforcement—as over-reaching, requiring ordinary citizens to respond in possibly violent ways. As an example, defendant‘s former fiancée had observed defendant and Bruce react “jubilant[ly]” to news of the 1995 Oklahoma City bombing, which they thought was an appropriate citizen response given earlier events at Ruby Ridge, Idaho, and Waco, Texas. Relatedly, during a hunting trip in early November 2008, defendant and Bruce had agreed that the upcoming presidential transition likely would infringe on their right to bear arms. More generally, for his part, defendant over the years had expressed in intense terms to friends and acquaintances his dislike of police and his distrust of banks.
As noted, defendant told investigators, as well as others, that he had driven to Bend and other Oregon cities on December 12; he also discussed with friends, acquaintances, and others—after his arrest—alternative theories for the bombing and that police had wrongly arrested him. He later testified at trial, however, that he had been driving with Bruce in the Willamette Valley area from the early morning hours on December 12 until midday, although he offered personally exculpatory explanations for each of the critical time periods—such as activation of the TracFones, placement of the bomb, and calling Wells Fargo Bank. Overall, his testimony was to the effect that he had no knowledge of any planning, bomb construction or placement, or attempted robbery. Rather, according to defendant‘s testimony, Bruce alone had planned, built, and planted the bomb; activated the TracFones; and called Wells Fargo Bank. As for the purchases of the TracFones and spray paint, the airtime cards, and the toggle switches, defendant maintained that he had purchased those items at Bruce‘s request, with no knowledge of how Bruce intended to use them. Defendant denied purchasing the servo motor.
In separate, identical indictments, the state jointly charged defendant and Bruce with aggravated murder (10 counts each, including four counts of aggravated felony murder),7 attempted aggravated murder (three counts), conspiracy to commit aggravated murder, first-degree assault, second-degree assault, unlawful manufacture of a destructive device, and unlawful possession of a destructive device. The trial court conducted a joint guilt-phase trial, at which the state presented the evidence generally summarized above. Defendant took the stand in his defense and testified to the effect, also as noted above, that Bruce alone had planned a bank robbery, built and planted the bomb at West Coast Bank, and placed the life-threatening call to Wells Fargo Bank. Unlike defendant, Bruce did not testify at trial. Defendant, together with Bruce, also introduced evidence attempting to show that—in assessing the nature of the bomb and its destructive potential—law enforcement officers had acted negligently or otherwise had deviated from standard operating procedures. Defendant and Bruce relatedly attempted to show that the bomb had exploded as a result of law enforcement manipulation.8
At the conclusion of the joint guilt-phase trial, a jury found both defendant and Bruce guilty on all counts. After separate penalty-phase proceedings under
As noted, defendant raises 151 assignments of error that relate to both the pretrial and guilt phases (but not the penalty phase) of his trial. In a supplemental pro se brief, defendant raises four additional assignments of error. Below, we address the assignments that merit discussion.
II. PRETRIAL PHASE
A. Motion to Sever Trials (Assignment Nos. 1-5)
As just described, defendant and Bruce were charged jointly, in identical indictments, with identical offenses. Before trial, defendant moved to sever his trial from Bruce‘s trial. The state objected, and the trial court denied the motion. During trial, in response to certain evidentiary rulings that defendant viewed as unfavorable to his defense, defendant responded by, among making other motions, renewing his motion to sever, each time summarily and each time unsuccessfully. On review, defendant argues that the trial court‘s rulings were error under
Severance of trials for jointly charged defendants is governed by
“(1) Jointly charged defendants shall be tried jointly unless the court concludes before trial that it is clearly inappropriate to do so and orders that a defendant be tried separately. In reaching its conclusion the court shall strongly consider the victim‘s interest in a joint trial.
“(2) In ruling on a motion by a defendant for severance, the court may order the prosecution to deliver to the court for inspection in camera any statements or confessions made by any defendant that the prosecution intends to introduce in evidence at the trial.”
(Emphasis added.) Central to the parties’ arguments on this issue are their different positions on what circumstances render a joint trial “clearly inappropriate” under that statute. According to defendant, the standard is not a particularly demanding one. The statute does not, for example, expressly require a showing that a joint trial would create a risk of “substantial prejudice” or would give rise to evidentiary or other issues at trial that would violate a statutory or constitutional provision. Under that less-demanding standard, defendant argues that a joint trial was “clearly inappropriate” here because he and Bruce advanced “inconsistent defenses,” the state relied on evidence that was not “mutually admissible” against both of them, and some evidence admitted against Bruce could easily have tainted the jury‘s view of him as well.
The state, relying on State v. Turner, 153 Or App 66, 956 P2d 215, rev den, 327 Or 317 (1998), and other Court of Appeals cases interpreting
We begin by construing the “clearly inappropriate” standard that
In construing a statute, we examine the text of that statute in context and, where appropriate, consider legislative history and pertinent canons of statutory construction. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). The term “clearly inappropriate” is not statutorily defined. Neither is it a legal term of art. We therefore look to its everyday meaning. See Comcast Corp. v. Dept. of Rev., 356 Or 282, 295-96, 337 P3d 768 (2014) (contrasting approach for interpreting plain meaning of legal terms versus lay terms). The words “clearly” and “inappropriate” do have fairly “plain, natural, and ordinary” meanings. See PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (describing meaning to be given to words of ordinary usage). “Clearly” means “without doubt or question.” Webster‘s Third New Int‘l Dictionary 420 (unabridged ed 2002). “Inappropriate” means, of course, “not appropriate,” id. at 1140, which is the opposite of “appropriate,” which means “specially suitable” or “proper.” Id. at 106. As a matter of plain text, then, the “clearly inappropriate” standard requires a determination that, without doubt or question, a joint trial would not be suitable or proper in a particular instance.
The second subsection of the statute provides context that bolsters that understanding.
Defendant, however, points to another statute,
That comparison does not aid defendant, for two reasons. First, as we will describe, the “clearly inappropriate” standard was added to
Still, for added guidance, we turn to the enactment history of
Defendant asserts that, in amending
We therefore construe
In articulating that standard, one aspect of the statutory procedure and standard bears special emphasis. By its express terms,
“When we review a trial court‘s ruling on a motion to sever, *** we examine the decision in light of the arguments asserted and circumstances pertaining at the time the pretrial motion was made. *** Errors that occur during trial may provide grounds for a mistrial motion or for other relief, but they cannot provide the basis for a motion to sever.”
Turner, 153 Or App at 74. As a simple matter of practicality, it is difficult to see how a joint trial can be severed into separate trials once the trial has begun. Even if it could be, however, the statute does not authorize midtrial severance. Therefore, although defendant in this case renewed his severance motion during the trial at several points, the only severance motion and arguments in support that we consider are those that he made pretrial, pursuant to
We turn to the merits of defendant‘s motion. In particular, we consider whether—when defendant made his pretrial motion to sever—the trial court could determine on the record before it that a joint trial was “clearly inappropriate.” In support of his motion, defendant relied, in part, on his claim that the state intended to offer certain statements or confessions made by Bruce that violated defendant‘s confrontation and cross-examination rights under Bruton, 391 US 123. As we have discussed, if defendant were correct in
In Bruton, the United States Supreme Court held that a defendant is denied his or her rights under the Confrontation Clause of the Sixth Amendment when, in a joint trial with a codefendant, the codefendant does not testify, but the codefendant‘s statement implicating the defendant as a participant in a crime is admitted in evidence. 391 US at 126. In so holding, the Supreme Court overruled prior case law holding that jury instructions limiting the use of such evidence were sufficient to cure the prejudice. Id. While acknowledging that juries generally can be expected to follow limiting instructions of that kind, id. at 135, the danger of the jury not doing so in this context was too great:
“[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Not only are the incriminations devastating to the defendant but their credibility is inevitably suspect, a fact recognized when accomplices do take the stand and the jury is instructed to weigh their testimony carefully given the recognized motivation to shift blame onto others. The unreliability of such evidence is intolerably compounded when the alleged accomplice, as here, does not testify and cannot be tested by cross-examination.”
Id. at 135-36 (citations and footnote omitted).
As that passage reveals, the danger that the Court identified was specific to statements made by one defendant that directly incriminated the other defendant, that were not subject to cross-examination, and that could not be cured by a jury instruction. For the Bruton rule to apply, the nontestifying codefendant‘s out-of-court statement must “on its face” incriminate the other defendant. Richardson v. Marsh, 481 US 200, 208-09, 107 S Ct 1702, 95 L Ed 2d 176 (1987). Where the statement does not expressly incriminate the other defendant, and instead becomes incriminating “only when linked with evidence introduced later at trial,” no Bruton problem arises. Richardson, 481 US at 208.
In this case, defendant‘s Bruton argument ran to various out-of-court statements that Bruce had made, which ultimately were admitted into evidence and which we have earlier generally described. See 359 Or at 378 (generally describing statements); see also State v. Turnidge (S059156), 359 Or 507, 511, 373 P3d 138 (2016) (summarizing some statements at issue in more detail). In none of those statements, however, did Bruce confess to or make admissions about the charged crimes. Neither did any of Bruce‘s statements directly implicate defendant in the charged crimes or shift blame for the crimes to defendant. Indeed, the challenged statements did not relate directly to the crimes at all. They revealed, instead, Bruce‘s unfavorable views toward government and law enforcement, which the state offered to demonstrate his motives in committing the crimes. Bruce‘s out-of-court statements did not, as Bruton requires, “on their face” incriminate defendant and did not present a risk of prejudice that was the same as or analogous to the risk that animated the holding in Bruton. The fact that the state intended to introduce Bruce‘s statements at the joint trial therefore did not render the joint trial “clearly inappropriate” under
In addition to his Bruton-based claim, defendant also argued below that the trial court should order separate trials because the state‘s use of Bruce‘s out-of-court statements in a joint trial would, in effect, “taint” him “by association,” notwithstanding any limiting jury instruction to the
We do not agree that the earlier statements that Bruce had made were irrelevant to defendant‘s guilt. Here, the state had ample evidence that Bruce and defendant had committed the crimes together. If, then, the state could prove that Bruce had a motive to commit the crimes (i.e., his anti-government, anti-law enforcement, and anti-establishment sentiments), that would be relevant to show why the crimes were committed, even if the motivation were Bruce‘s, and defendant‘s role were that of a follower or an aide who did not share those views. If that evidence “tainted” defendant in some way, as he argued in support of severance, the taint was not an impermissible one. See generally Zafiro v. United States, 506 US 534, 540, 113 S Ct 933, 122 L Ed 2d 317 (1993) (right to fair trial does not include right to exclude codefendant‘s testimony if relevant). And even if the taint were in some way impermissible, it is the kind of concern that we have long trusted limiting jury instructions to overcome. See generally State v. Reyes, 209 Or 595, 630-31, 308 P2d 182 (1957) (when evidence is admissible for limited purpose, such as to show motive, court should give instruction on request to minimize possible use of evidence by jury for inadmissible purpose).
But more to the point, defendant‘s claim in that regard does not meet the “clearly inappropriate” standard for severance under
The same is true of the final argument that defendant made in support of his motion for severance and that he renews on review. He argued that his and Bruce‘s “respective positions at trial may conflict and may require mutually exclusive defenses, of such a nature that, in viewing the totality of the evidence in the case, the defendant will be denied a fair trial[.]” See generally Rhone v. United States, 365 F2d 980, 981 (DC Cir 1966) (generally noting scenario in which defenses are irreconcilable, presenting danger that jury will unjustifiably infer that conflicting defenses demonstrates guilt of both defendants). By way of example, defendant cites aspects of his and Bruce‘s opening statements, in which his counsel asserted his innocence and pointed to Bruce as the lone perpetrator, while Bruce‘s counsel asserted that defendant was not truthful. Those aspects of the trial record, according to defendant, show that he and Bruce took “inconsistent and hostile positions at trial,” and each was attempting to use the state‘s evidence “to exculpate himself and inculpate the other.”17
In essence, however, the only inconsistency in their defenses was that defendant‘s theory of the case was that Bruce had committed the crimes without defendant‘s assistance, while Bruce, through his not-guilty plea, effectively claimed that he was not involved in the crimes at all. If that kind of inconsistency in the defenses of jointly charged defendants were to render joint trials “clearly inappropriate,” then few, if any, joint trials could ever go forward under
For those reasons, we conclude, as did the trial court, that a joint trial of defendant and Bruce was not “clearly inappropriate” in these circumstances,
B. Motion to Suppress Statements Made to Law Enforcement (Assignment No. 6)
Before trial, defendant moved to suppress the statements that he made to law enforcement when he was questioned at his home, arguing, among other things, that those statements were obtained in violation of his right to counsel under Article I, section 12, of the Oregon Constitution.19 In particular, defendant argued that he was in custody or circumstances sufficiently compelling tо be the equivalent of custody, and, while being questioned in that setting, he invoked his derivative right to counsel, which required law enforcement to immediately cease questioning. The trial court denied that motion, reasoning that the surrounding
On review, defendant renews his argument, but only in part. As he did below, he argues that the circumstances were sufficiently compelling to trigger his derivative right to have counsel present, if he invoked that right, before law enforcement could continue questioning him. Beyond that, however, he does not focus on whether he adequately waived his rights and responded to questions. Rather, his principal argument on review is that he equivocally—rather than unequivocally—invoked his right to counsel, which required law enforcement to clarify whether he wanted to continue speaking without counsel present before asking him further investigatory questions. As we explain below, we agree with the trial court that the circumstances were not compelling within the meaning of
1. Additional facts
We state the facts consistently with the trial court‘s factual findings and its denial of defendant‘s motion to suppress. State v. Shaff, 343 Or 639, 641, 175 P3d 454 (2007). To the extent that the court did not make express findings, we presume that the court decided the facts in the light most favorable to the state. Ball v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968).
As we described earlier, by December 14, the second day after the bombing, investigators had identified defendant as a possible suspect, based on both their review of the Salem Walmart video surveillance footage and defendant‘s association with Bruce, who in turn owned a Chevrolet LUV pickup truck that matched the truck in the footage. Detective Troncosco from the Keizer Police Department and Lieutenant Duvall from the Oregon State Police drove by defendant‘s home on Nolan Lane around 4:00 p.m., and saw a Chevrolet LUV pickup truck, which matched the one in the
Troncosco and Duvall, both wearing plain clothes, knocked on the door. Defendant answered. Troncosco and Duvall explained that they were investigating the Woodburn bank bombing and were talking to individuals who owned pickup trucks. They asked defendant if they could speak with him privately. Defendant agreed to talk, stated that they could talk on the porch, and he stepped outside and closed the door. By then, it was getting dark and snowing, and it was very cold. Troncosco asked defendant if he would be willing to speak in Duvall‘s unmarked car to get out of the weather. Troncosco was also concerned that, with the door shut, he and Duvall could not see whether anyone was inside the house near the door, which presented a safety concern. Defendant agreed to speak in Duvall‘s car, went back inside his house for a few moments, and returned wearing a jacket.
Before the three walked to Duvall‘s car, Troncosco told defendant that he was not under arrest and asked if he had any weapons. Defendant responded that he was unarmed, and he consented to be searched for weapons. Duvall quickly patted down the outside of defendant‘s clothing and confirmed that he was unarmed. Duvall then entered the car on the driver‘s side, defendant sat in the front passenger‘s seat, and Troncosco sat in the back seat. Once inside, defendant asked Troncosco if “he had to talk.” Troncosco again told defendant that he was not under arrest, that he did not have to speak with them, and that he was free to leave. Troncosco also told defendant that, although he was not under arrest, Troncosco would advise him of his rights,
Troncosco began by verifying defendant‘s identity, confirming his name and asking other identifying information. About then, one or two law enforcement officers walked in from the more distant areas, but without weapons drawn. Also by then, defendant‘s fiancée, who had been in the home, had opened the door to watch as defendant was interviewed. One or both of the officers who had emerged from the more distant areas approached defendant‘s front porch, and stood by, casually speaking with defendant‘s fiancée. Defendant‘s fiancée did not see any officer‘s weapon drawn.
At that point, Troncosco asked defendant if he would be willing to speak at the office because they were not in a good setting to conduct the interview. Defendant replied, “This sounds serious. Do I need an attorney?” Troncosco told defendant that he could not offer legal advice and that defendant would need to make that decision himself. Troncosco again explained that law enforcement was contacting several owners of similar trucks and that he was not the only person being contacted. Defendant asked Troncosco a second time whether he should have an attorney, adding that he had nothing to do with the bombing. Troncosco again told defendant that defendant had to decide for himself whether he wanted an attorney present. Troncosco added that the police had spoken with other people who had not thought it necessary to have an attorney, but emphasized that defendant needed to answer that question for himself.
Defendant then proceeded to talk to Troncosco and Duvall in Duvall‘s car. In response to questions, defendant explained, among other things, that he had been driving the blue Chevrolet LUV pickup truck, but Bruce owned it; that defendant had a biodiesel business with Bruce that involved, for defendant, welding and painting metal; and that defendant was trying to get a second job because he and Bruce needed money to expand. Defendant also stated that he had been in Bend, Medford, and Eugene on the day of the bombing, driving Bruce‘s larger white pickup truck, and had
After speaking with defendant for about 18 minutes, Duvall told defendant that he and Troncosco would like to look in his truck. Defendant agreed, saying, “I don‘t care; have at it” and “be my guest.” Troncosco and Duvall gave defendant a consent-to-search card, which he read and signed, stating as he signed it, “I‘ve got nothing to hide.” The three left Duvall‘s car and walked to the truck. Defendant opened the truck, and Troncosco photographed it while defendant stood nearby in the driveway, smoking a cigarette. After photographing the truck, Troncosco and Duvall, out of defendant‘s earshot, agreed that the truck was the one in the surveillance footage.
Troncosco and Duvall then walked over to defendant, who was still standing in the driveway, smoking while it continued to snow. Troncosco told defendant that the driveway was not a good place to talk and asked if defendant would go to their office to continue their conversation. Defendant responded that he did not see any need to continue talking with them because he already had told them everything and had not been involved in the bombing. Troncosco replied that he had some photographs back at his office that defendant might be interested in seeing. Defendant then said, “[T]his sounds serious” and stated that he should have an attorney if he were going to do that. Troncosco asked defendant if he already had an attorney; defendant told Troncosco that he would get one and that they then could talk the next day. Troncosco confirmed that defendant did not want to speak any further without having an attorney and then advised defendant that he was being placed under arrest. Troncosco handcuffed defendant and had him sit in one of the patrol cars while police continued their on-site investigation.
2. Analysis
Here, defendant contends that, although he was not in full custody at the time, his encounter with Troncosco and Duvall effectively placed him in “compelling circumstances,” thus triggering his rights under
Whether the circumstances were compelling for purposes of
We turn to an examination of the facts in light of the principles set out above, mindful that we are bound by the trial court‘s findings if there is evidence to support them. Shaff, 343 Or at 648. Troncosco and Duvall, wearing plain clothes, first spoke with defendant at his front door and on his front porch. A brief time passed, and the three then went to Duvall‘s unmarked patrol car. The car was parked directly in front of defendant‘s home, and defendant sat in the front, as opposed to the back, of the car. From there, the three moved to defendant‘s driveway, where Troncosco and Duvall photographed defendant‘s truck while defendant stood nearby in his driveway, smoking. He later was formally arrested in the driveway. Defendant‘s entire encounter with Troncosco and Duvall occurred within view of his fiancée and at or within close proximity to his home, a place familiar to him. That fact reduces significantly the likelihood that the circumstances were inherently compelling for purposes of the Article I, section 12, analysis. See Shaff, 343 Or at 646 (so explaining; citing representative cases); see also State v. Carlson, 311 Or 201, 204-05, 808 P2d 1002 (1991) (questioning in familiar setting of parking lot of suspect‘s apartment not inherently compelling). Defendant counters that evidence by urging that Troncosco and Duvall “isolated” him from his home, which is characteristic of compelling circumstances. It was defendant, however, who declined Troncosco‘s and Duvall‘s request to speak in his home, and defendant who agreed to be interviewed in Duvall‘s car to get out of the cold. In other words, defendant made the choice to speak privately with Troncosco and Duvall somewhere other than in his home. That is not the kind of police-forced isolation that increases the potential for the circumstances to be compelling.
Equally important to the analysis is the nature of Troncosco‘s and Duvall‘s interactions with defendant. The trial court expressly found that Troncosco and Duvall were “relaxed” in their exchange with defendant, and it implicitly found that they were not overbearing. Consistently with those findings, defendant frequently set boundaries on his interaction with Troncosco and Duvall, and they readily accepted the boundaries that he set. See State v. Johnson, 340 Or 319, 332, 131 P3d 173 (2006), cert den, 549 US 1079 (2006) (setting not compelling, partly because defendant exercised control over interrogation). For example, in responding to Troncosco‘s and Duvall‘s request to enter his home to speak with him, defendant instead said he would speak to them on the porch, and Troncosco and Duvall agreed. Then, when Troncosco and Duvall suggested that they move to Duvall‘s unmarked patrol car to get out of the dark and snowy weather, defendant agreed to that suggestion, but he declined their request to go the state police office to talk, again drawing a boundary that Troncosco and Duvall respected. That give-and-take dynamic between defendant and Troncosco and Duvall continued up to the point when defendant told them that he would not speak with them further until he first consulted an attorney. In short, nothing about Troncosco‘s and Duvall‘s dialogue with or behavior towards defendant was overbearing and, in that sense, coercive.
Defendant argues, however, that the atmosphere was police-dominated because multiple officers had surrounded the perimeter area near defendant‘s home, and those officers were armed and had their weapons drawn while Troncosco
Defendant also urges that the circumstances were compelling because he was unable to terminate his encounter with Troncosco and Duvall. The record provides no support for that assertion, especially when viewed—as we are bound to view it—in the light most favorable to the trial court‘s ruling. The atmosphere was, as the trial court found, relaxed. And, as we have described, Troncosco and Duvall were not overbearing and, to the contrary, they respected defendant‘s preferences and the limitations that he set on their encounter. Beyond that, Troncosco and Duvall repeatedly told defendant that he did not have to talk with them. During their initial encounter with defendant at the front door, for example, Troncosco and Duvall set the tone by asking defendant if he would speak with them and then later asking defendant if he would do so in Duvall‘s car, with defendant agreeing to both requests. Then, before entering Duvall‘s car, Troncosco advised defendant that he was not under arrest. Again, once in the car, Troncosco reminded defendant that he did not have to speak with them and was free to leave, and he also gave defendant formal Miranda warnings, and did so while emphasizing to defendant that he was not, however, under arrest.24 Defendant was thus
Finally, in arguing that the circumstances were compelling, defendant points to the fact that Duvall searched defendant for weapons. That argument again misses the mark. Duvall quickly patted down the outside of defendant‘s clothing with defendant‘s consent, which had been obtained after Troncosco had informed defendant that he was not under arrest and that the search would be limited to a weapons check. After that patdown, defendant sat, unrestrained, in the front seat of an unmarked patrol car parked in front of his home, speaking with Troncosco and Duvall, who were dressed in plain clothes. Viewed in context, Duvall‘s patdown search did not convert the otherwise noncompelling situation into a compelling one.
Based on the totality of the circumstances, we conclude that a reasonable person in defendant‘s position would not have perceived the circumstances of the encounter with Troncosco and Duvall to be compelling for purposes of
C. Excusal of Jurors for Cause and Destruction of Completed Jury Questionnaires (Assignment Nos. 18-41, 44)
During voir dire, the trial court excused several jurors for cause. Following voir dire, at the court‘s direction, the completed juror questionnaires that had been used during voir dire were destroyed. Defendant assigns error to the trial court‘s excusal of three prospective jurors and also to the destruction of the questionnaires. With regard to excusal of the three prospective jurors, defendant contends that the court improperly excused those jurors because of their general objections to the death penalty, in violation of the rule announced in Witherspoon v. Illinois, 391 US 510, 88 S Ct 1770, 20 L Ed 2d 776 (1968), under the
1. Excusal of prospective jurors Hamlin, Porter, and Burns
As noted above, defendant raises a Witherspoon challenge to the trial court‘s excusal of three prospective jurors—Hamlin, Porter, and Burns. In Witherspoon, the Supreme Court held that, under the
Before defendant‘s trial, as part of voir dire, the venire of prospective jurors was notified that the state was seeking the death penalty and that, if the jury found defendant guilty, the jury would be required to answer four additional questions during the penalty phase to determine whether defendant would receive the death penalty, including a fourth question that asked whether defendant “should receive a death sentence.” See
We begin with prospective juror Hamlin. Defense counsel began voir dire by discussing a number of topics, such as the presumption of innocence, jury unanimity, and exposure to pretrial publicity. Defense counsel then asked Hamlin about his view of the death penalty. Hamlin responded, “I disagree with the death penalty on ethical grounds. I * * * believe that people are fallible, and even 12 people could be wrong.” Counsel followed up by asking, “I‘ve read your juror questionnaire, and I guess I view it as—what what‘s important here is, do you think you can follow the law?” Hamlin and defense counsel then had the following exchange:
“JUROR (Hamlin): Maybe I‘m not understanding you here, * * * or not understanding the question, but isn‘t [question] No. 4[, which asks whether a defendant should receive a death sentence,
ORS 163.150(1)(b)(D) ] subjective[?]“[DEFENSE COUNSEL]: You‘re absolutely right, it is a subjective question. There‘s no burden of proof. It‘s up to you to decide. But you have to follow the law, and what that means, I think, is that you have to consider what you‘ve heard. You can‘t go into that jury room and say, Okay, my morals say I can‘t vote for the death penalty and thus I‘m going to just—no matter what I‘ve heard, I‘m just going to answer No. 4 ‘no.’ Does that make sense, what I‘m saying?
“JUROR (Hamlin): Yeah, kind of. I don‘t know how I could answer that question. I‘ve never been placed in that situation. * * *
“[DEFENSE COUNSEL]: I guess as you‘ve taken an oath already, I think that oath is to try your best to follow the law, and I guess what I‘m hearing you saying is that you would try to do that.
“JUROR (Hamlin): I * * * suppose you could say that, yes.”
After that exchange, defense counsel asked other prospective jurors about the questions that they potentially would
“[DEFENSE COUNSEL]: Mr. Hamlin, what about those questions? I think you‘ve told me a little bit about your views on the death penalty. In thinking about it now, do you think you could follow through?
“JUROR (Hamlin): To be honest, I * * * don‘t know. I mean, on one hand, I think following the law is important; but on the other hand, if the law tells me I have to put someone to death, that doesn‘t sit very well with me.”
(Emphasis added.)
One of the prosecutors later followed up on Hamlin‘s answers:
“[PROSECUTOR]: You also indicated on your jury questionnaire that you are opposed to the death penalty, and if I understand it, it is not for religious reasons.
“JUROR (Hamlin): No, it is not.
“[PROSECUTOR]: Now, you‘ve obviously heard the discussion that I had with [a prior juror who had reservations about the death penalty]. When you go back in the jury room, if you find the defendant guilty of aggravated murder—the defendants, I should say, in this case, either one or both—those are the four questions that you‘re going to answer. Could you ever impose a death sentence, knowing that you would have to answer all four of those questions ‘yes‘?
“JUROR (Hamlin): I believe it is possible that I could.
“[PROSECUTOR]: On your jury questionnaire you specifically indicated that you believed it was possible if the prosecution made—I think the words you used were * * * an impassioned argument.
“JUROR (Hamlin): Emotional, I believe.
“[PROSECUTOR]: Emotional. What if the judge instructs you, and I think he will, that essentially emotion doesn‘t play a part in this? You are to consider the evidence dispassionately; that means without passion. Okay? In
other words, you can‘t be emotional. You can‘t be emotional in favor of the victims. You can‘t be emotional in favor of the defendants. Okay? “Knowing that, and the fact that that is the law, that you would have to consider this without emotion, would you be able to do so? Would you be able to deliberate?
“JUROR (Hamlin): No.
“[PROSECUTOR]: Okay, would it be fair to say then, sir, that if you know you cannot consider emotion, you have to render your verdict dispassionately, that you would not be able to follow the law as to those four questions because of your own personal beliefs regarding the death penalty?
“JUROR (Hamlin): I believe that‘s highly likely.”
(Emphasis added.)
At that point, the prosecutor asked that Hamlin be excused for cause. The trial court then asked Hamlin directly, “Are you saying you won‘t follow the law as I instruct you?” Hamlin replied, “I don‘t know.” After seeking further clarification from Hamlin about whether he understood the issue, the court asked, “Are you saying you can‘t do your job?” Hamlin replied, “I‘m saying I don‘t think I could vote to put a man to death.” The court then inquired again about Hamlin‘s ability to follow the law:
“JUROR (Hamlin): I think I could consider the * * * points in question four, but I don‘t know if that would ever lead me to a response of ‘yes.’
“THE COURT: And why is that? Because you just know what you want the answer to be before you have the facts to support it?
“JUROR (Hamlin): I suppose so, yes.
“THE COURT: And do you think that‘s appropriate as a * * * citizen and your obligation under the law?
“JUROR (Hamlin): When it comes to the death penalty, I suppose so.”
(Emphasis added.) The court then excused Hamlin for cause.
On review, defendant urges that Hamlin‘s answers were sufficiently equivocal to preclude his excusal from a
In Hamlin‘s case, the voir dire exchanges quoted above show that Hamlin‘s completed juror questionnaire raised concerns about Hamlin‘s ability or willingness to vote to impose the death penalty. The trial court and both the prosecutor and defense counsel took pains during voir dire to clarify Hamlin‘s position. Although Hamlin‘s position may have been somewhat equivocal at the outset, as the voir dire continued, it became unequivocal: Hamlin conceded that he knew how he would answer the fourth question, even without knowing the facts or knowing whether, under the law, his consideration of the facts would support that answer. And he was candid in saying that, for him, “[w]hen it comes to the death penalty,” he thought that approach was appropriate. For that reason, Hamlin did not think that there were any facts that could lead him to vote “yes” on the fourth question. Hamlin‘s categorical answers provided the trial court with grounds to conclude that Hamlin‘s personal beliefs would prevent or substantially impair his performance of his duties as a juror. Under Witherspoon and Witt, a prospective juror who takes that position may be excused from a capital jury for cause, and the trial court therefore did not abuse its discretion in excusing Hamlin.
Later, the trial court suggested that it was not yet prepared to dismiss Porter for cause because Porter‘s statements about whether she could follow the court‘s instructions were inconsistent. The prosecutor then asked Porter if there were “any way that you could answer ‘yes’ to question four?” Porter replied, “No.” The prosecutor asked her about a statement in her questionnaire that she “could not, no matter what the facts, impose death,” and whether that was her “answer here today?” Porter stated, “Yes.” The following exchange then occurred:
“[PROSECUTOR]: Okay. So again, no matter what the facts, no matter the instructions given to you by the court, you could not vote ‘yes’ to question four?
“JUROR (Porter): I think I will answer ‘no.’
“[PROSECUTOR]: No, you could not.
“JUROR (Porter): I could not.”
The trial court also addressed Porter, noting her inconsistent answers on the juror questionnaire and asking, “Are you telling me that you could not impose the death penalty no matter what?” Porter then explained her views and beliefs at length. Ultimately, Porter maintained that she would respond “no” to the fourth question, and the court excused her for cause.
The trial court‘s decision to excuse Porter, based on Witherspoon and Witt, is supported by the record, which, as set out above, contains numerous references to Porter‘s answers on her completed juror questionnaire and several
The third juror excused for cause was prospective juror Burns. As defense counsel during voir dire began to explore Burns‘s ability to sit on a death penalty case, defense counsel asked, “Mr. Burns, I think from your questionnaire, I can gather what your views of the death penalty are, so I‘m not going to ask you that question. But I guess my question is: Are you able to follow the rules?” Burns replied, “Absolutely.” Later, the prosecutor talked to the prospective jurors about the death penalty, focusing in particular on whether the jurors would be able to answer “yes” to the fourth question. Burns responded:
“JUROR (Burns): * * * I‘m having * * * a [little] trouble. The truth of the matter is that you‘ve kind of gone to the heart of the matter for me, is * * * you get to this point, and the thought of sitting here in judgment of a man on trial for his life just frightens the living daylights out of me. I‘m getting very emotional about it just hearing you talk about it.
“[PROSECUTOR]: It‘s better to do this up front than to find out at the end—
“JUROR (Burns): On the other hand, I have tremendous respect for the law of the land—and I want to say that I could say ‘yes’ to question four. And I think I answered in my questionnaire that the crime would have to be particular[ly] heinous to me in order for me to put a man to death, which is what I‘m doing, in essence.
“[PROSECUTOR]: Yes.
“JUROR (Burns): And it would be very, very tough for me to make that call. That said, if * * * it was heinous enough, I think that I could go to that place, but it scares the hell out of me, just saying it to you.
“[PROSECUTOR]: It shouldn‘t be easy for anyone. * * * I apologize in advance. I don‘t want to press you, but * * * this is my last chance to speak to you about this. I want to be absolutely sure we consider this from all angles.
So, you‘re on the jury. You‘re considering the four questions. There‘s already been a finding of guilt as to aggravated murder. All of the other jurors have answered all of the questions ‘yes,’ and it‘s down to you, and you‘re trying to make those decisions. And in your heart of hearts, you‘re convinced that questions one, two and three have been proved beyond a reasonable doubt. There is no burden of proof on the fourth question. It is simply considering the aggravating and mitigating circumstances and that first question that it poses: Shall a death sentence be imposed [?] Everything is moving forward toward a sentence of death. “If you were convinced that the answer should be ‘yes’ to question four, there have been 47 ‘yes’ votes to this point, and you hold that life in your hands, do you think you‘ll be able to do it?
“JUROR (Burns): I don‘t know.
“[PROSECUTOR]: You * * *
“JUROR (Burns): I mean, I‘m really sort of tripping out as you tell this to me, and * * * the safe way is to say ‘no,’ but in my head I‘m thinking that the right way is to say ‘yes.’ You have to follow the law.
“[PROSECUTOR]: Uh-huh. You understand—you heard what [defense counsel] said, though, that is, that the law is always satisfied with life, and there‘s * * * no formulation of this that ever mandates a sentence of death.
“So, knowing that, knowing that the law will never compel you to return a verdict of death, and you‘re holding * * * that last vote—
“JUROR (Burns): I couldn‘t do it, I couldn‘t do it. I would argue as strong as—first of all, I believe that 30 years [or] life without parole is a far worse punishment than death. I believe putting a man to death in such a situation as this, you‘re * * * doing him a favor, in kind of a macabre sense.
“But I would argue, as strongly as I possibly could with my fellow jurors, not to put this man to death, I think.”
(Emphasis added.)
“I think the rehabilitation or whatever you want to call it was unreasonable by the State. I think [Burns] was clear, he could do it. They just kept pounding on him, pounding on him, pounding on him.
“One of the things he did say is that it depended on—and I‘m going to paraphrase [-] as the fourth question talks about, any circumstances of the offense, and he talked about a heinous offense. So if he considered this a heinous offense, he could say ‘yes’ to that. I think that‘s what he said, and the State just beat him, and that‘s when he said ‘no.’ * * *”
The court disagreed, stating, “[W]ith regard to Mr. Burns, whom I already highlighted that I thought was going to be in, if it came down to the last vote and he was the one, that‘s when he said, ‘No, I won‘t do that.’ Which surprised me, but that—that‘s where he was.”
The situation with prospective juror Burns differs somewhat from those of prospective jurors Hamlin and Porter. Viewed in context, the voir dire quoted above suggests that Burns‘s completed juror questionnaire did not contain answers that either counsel or the court viewed as likely requiring excusal under Witherspoon (or, at least, that some clarifying inquiry was required). In fact, based on the questionnaire alone, the trial court commented that he had marked Burns as “in,” meaning that the court thought that Burns‘s answers would not disqualify him on that basis. But, when questioned at length, Burns‘s position either changed or became more apparent to Burns himself as he attempted to come to terms with how he in fact would feel about imposing death as a sentence. He initially suggested that he would consider imposing the death penalty for a crime that was sufficiently heinous. Then, when pressed specifically about what he would do if his was the final vote on the fourth question, and all the other jurors already had answered all four questions in favor of the death penalty, he ultimately declared that he “couldn‘t do it.”
“The trial court‘s question and Myers‘s response came after defendant[‘s] counsel and the prosecutor had completed their examination of Myers. The trial judge, who had an opportunity to hear Myers‘s responses and to observe his demeanor during the previous questioning, concluded that Myers‘s answers to the judge‘s question (and, by implication, his answers to the prosecutor‘s inquiries) should be believed. In such a case, particularly where the prospective juror has given admittedly contradictory responses, the trial court‘s conclusion with regard to his ‘ultimate qualifications is entitled to great weight,’ where the court had the advantages of ‘observing [his] demeanor, apparent intelligence and candor, all of which are factors in the trial of a challenge for cause.‘”
Id. at 537-38 (quoting State v. Brumfield, 104 Or 506, 528-29, 209 P 120 (1922)); see also Witt, 469 US at 426 (because trial court has opportunity to assess prospective juror‘s demeanor, deference should be paid to trial court in determining whether prospective juror would be unable to apply law faithfully and impartially); White v. Wheeler, 577 US ___, 136 S Ct 456, 461, 193 L Ed 2d 384 (2015) (trial court did not err in excusing prospective juror who initially suggested that he could follow law but eventually stated that his views would prevent him from imposing death penalty).
As a general rule, we accord “great deference” to the trial court‘s assessment of a prospective juror‘s qualifications, because “the trial court has the advantage of observing a challenged prospective juror‘s demeanor, apparent intelligence, and candor.” McAnulty, 356 Or at 463 (internal quotation marks omitted). And we give “greatest deference
In short, the record supports the trial court‘s determination that Hamlin‘s, Porter‘s, and Burns‘s views on the death penalty would interfere with their respective abilities to follow the law. We therefore conclude that the trial court did not abuse its discretion in excusing those prospective jurors under the
2. Destruction of completed juror questionnaires
We turn, then, to the trial court‘s order to destroy the juror questionnaires after voir dire was completed. Defendant contends that, without Hamlin‘s, Porter‘s, and Burns‘s completed questionnaires, this court cannot adequately review whether the trial court properly excused those jurors under Witherspoon and Witt, which, in turn, amounts to a violation of the
a. Additional facts
In advance of voir dire, the prospective jurors were asked to complete written questionnaires for use by counsel and the trial court during jury selection. The trial court included on the blank juror questionnaire form an express statement that, at the conclusion of voir dire, the completed questionnaires would be destroyed. The court did so because it thought that the prospective jurors would feel more comfortable providing candid written answers if they were assured that the completed questionnaires would later be destroyed. Counsel for both parties had an opportunity to review that form before it was given to the prospective jurors to complete, but neither party objected or otherwise raised any concern about the representation on the form that the completed questionnaires would be destroyed.
Instead, defendant raised an objection to the destruction only after the jurors already had completed the questionnaires, arguing at that point that the questionnaires should be preserved for the record on appeal. The state agreed and likewise urged the trial court not to destroy the questionnaires. In response, the trial court voiced concern that the questionnaires would “clog the record.” The
b. Analysis
Defendant first argues that that trial court‘s order to destroy the questionnaires is a ground for per se reversal because it deprived defendant of a record capable of meaningful appellate review, in violation of defendant‘s due process protections. He acknowledges that due process usually requires a showing of prejudice to obtain a reversal of a trial court judgment based on inadequacy of the record. See, e.g., Bransford v. Brown, 806 F2d 83, 86 (6th Cir 1986) (“[T]o demonstrate denial of a fair appeal, petitioner must show prejudice resulting from the missing transcripts.“). He contends, however, that some federal courts have indicated that a defendant‘s burden to show prejudice is relieved when the gоvernment‘s conduct in destroying or failing to preserve information for the record is “invidiously motivated” or made in “bad faith.” See id. at 85-86 (no per se violation of due process right to fair appeal when transcript of jury instructions is simply missing and failure to produce it is not “invidiously motivated“); see also Arizona v. Youngblood, 488 US 51, 57, 109 S Ct 333, 102 L Ed 2d 281 (1988) (under
Even if defendant‘s understanding of the cited cases is correct, they do not assist him here. The cases that defendant cites require a showing of “invidious motivation” or a similar kind of “bad faith.” Defendant did not at trial, and does not now, suggest that the trial court in this case acted with invidious motivation or bad faith in destroying
Neither party disputes what happened in this case or why it happened. The blank questionnaire form represented to the prospective jurors that the completed questionnaires would be destroyed after voir dire. That representation was made so that prospective jurors would provide more forthcoming information relevant to their personal experiences, backgrounds, and biases—information of value to the parties and the trial court in any case, but of particular value in a death penalty case. Both parties had an opportunity to object to the representation that the questionnaires would be destroyed; neither party did. When the trial court later had the questionnaires destroyed, it did so intentionally, but for one principal reason: To keep faith with the representation that it already had made to the prospective jurors and that was in place when they completed their questionnaires. Nothing in the cases that defendant cites suggests a legal rationale that would deem the destruction of the questionnaires in the circumstance of this case to be a per se violation of due process. We therefore reject defendant‘s argument that, even without a showing of actual prejudice, he is entitled under the
Our conclusion that the trial court‘s order destroying the completed juror questionnaires did not per se deprive defendant of due process does not mean that we approve of the trial court‘s action. We recognize only that the trial court was well-intentioned in its reasons for destroying the questionnaires. We do not endorse as appropriate the representation on the form that the questionnaires would be
The question remains, however, whether defendant was in fact prejudiced by the trial court‘s decision to destroy the jury questionnaires, entitling him to reversal under the
The second problem for defendant‘s claim of actual prejudice is that the voir dire itself—which is a matter of record in this case—was the natural way to explore the information on the completed juror questionnaires. The record reveals that the parties in fact used voir dire for that purpose and provides no basis to conclude that the questionnaires, if presеrved, would have revealed anything on review that either was not explored during voir dire or was not effectively superseded by the voir dire record. Throughout voir dire, during which the parties still had full access to the questionnaires, counsel for both sides repeatedly referred to the answers that various prospective jurors had given and explored those answers and made a record of them as appropriate to their examinations of the individual jurors. That occurred in particular during the voir dire examination of the three prospective jurors—Hamlin, Porter, and Burns—that we have already quoted from and discussed at some length. For example, in the examination of Hamlin, defense counsel specifically commented that he had “read [Hamlin‘s] juror questionnaire” and went from that comment to asking Hamlin about his ability to follow the law. The prosecutor, in turn, referred to the fact that Hamlin‘s answers on the questionnaire suggested that he was opposed to the death penalty, which prompted the prosecutor to explore Hamlin‘s views in greater depth through voir dire. And likewise, the prosecutor asked Hamlin specifically about the suggestion on his questionnaire that he might be able to impose a death sentence if the prosecution
Thus, the completed juror questionnaires served their usual purpose in this case: They were a springboard from which the parties—and, as necessary, the trial court—could examine and make a record in the depth necessary on each prospective juror‘s background, experiences, attitudes, and beliefs. In this instance, to the extent that the questionnaires contained information that had bearing on whether particular prospective jurors held views that would prevent or substantially impair their performance of their duties as a juror in a death penalty case, the normal process of voir dire gave the parties a full opportunity to make a record of that information. And, because the parties went through voir dire knowing that the court was not going to preserve the questionnaires for the record, they had every incentive to take full advantage of that opportunity. The record before us has provided us with a meaningful basis to review defendant‘s claims that the trial court erred in excusing Hamlin, Porter, and Burns. We have no reason to conclude that the questionnaires themselves—had they been preserved—would have materially aided our review.28
In asserting that the record is insufficient for that review, and that the destruction of the completed juror questionnaires therefore prejudiced him, defendant principally relies on the Ninth Circuit‘s decision in Ayala v. Wong, 693 F3d 945 (9th Cir 2012), withdrawn and superseded, 730 F3d 831 (9th Cir 2013), amended and superseded, 756 F3d 656 (9th Cir 2014), rev‘d and rem‘d sub nom Davis v. Ayala, 576 U.S. 257, 135 S. Ct. 2187, 192 L. Ed. 2d 323 (2015)
The Ninth Circuit‘s holding in Ayala, 756 F3d 656, does not aid defendant, because of the different kind of challenge to the excusal of prospective jurors that it involved. Ayala involved a so-called Batson claim—that is, a claim that the prosecutor, while articulating a legitimate basis to challenge a prospective juror, in fact did so for impermissible discriminatory reasons, such as race. Batson v. Kentucky, 476 US 79, 106 S Ct 1712, 90 L Ed 2d 69 (1986). As the Ninth Circuit explained, in analyzing a Batson challenge, an appellate court must engage in a “comparative juror analysis” to determine whether a prosecutor‘s reasons for challenging a racially diverse prospective juror were pretextual.31 Ayala,
This case does not involve a racial-discrimination challenge under Batson; rather, it involves a death panel-eligibility challenge under Witherspoon. A Witherspoon challenge asks a different question than does a Batson challenge. A Batson challenge asks whether the prosecutor uniformly requested excusal of all prospective jurors who possessed a specific trait; such a challenge therefore is inherently comparative and entails looking for patterns in the backgrounds and profiles of the jurors that would reveal any hidden bias on a prosecutor‘s part. A Witherspoon challenge, by contrast, asks whether an individual prospective juror‘s views about the death penalty will so hinder that juror‘s judgment that he or she will be unable to follow the oath to consider the facts, follow the law, and decide the case impartially. A Witherspoon challenge therefore is not inherently comparative and does not necessarily entail considering the jury pool in the same aggregate way as does a Batson challenge. In this particular instance, at least, defendant‘s Witherspoon challenge depends on the specific juror‘s responses to the parties’ and the trial court‘s inquiries about each juror‘s individual views on the death penalty. When—as in this case—the record on appellate review shows that the trial court excused a prospective juror because that juror indicated on the record an inability to follow the law and, in an
For those reasons, we conclude that the record permits adequate review of defendant‘s challenges to the excusal of prospective jurors Hamlin, Porter, and Burns, and that the trial court‘s decision to destroy the completed questionnaires, while ill-advised, did not prejudice defendant and does not require reversal under the Due Process Clause.32
D. Evidence of Prior Bad Acts (Assignment No. 114)
1. Additional facts
Defendant next argues that the trial court erred in admitting еvidence that, years earlier, he had called in a bomb threat to a different Woodburn bank. That evidence came from defendant‘s friend, Laughlin, who testified that, in 1995, he had gone to a job site in Woodburn where defendant was working, to meet defendant for lunch. As they prepared to leave the job site for a particular restaurant in Woodburn, defendant told Laughlin that he had just telephoned a bank near that restaurant, told the bank teller who answered that there was a bomb in the bank, and directed the teller to take $50,000 to an outhouse located in a construction area in the bank‘s parking lot. Laughlin and defendant then went to the restaurant and, from there, watched police vehicles arrive at the bank and officers examine the outhouse. The call had been a hoax. The bank involved was not either the Wells Fargo Bank or the West Coast Bank involved in the charged 2008 crimes, but it was near those banks.33
During trial, the state sought to present evidence of the 1995 bomb threat, beginning with an offer of proof, and defendant objected on several grounds. First, he argued that the proffered evidence was insufficient to show that the event actually had occurred. Second, he suggested that the state was offering the evidence as proof of modus operandi and identity, and that the 1995 conduct was insufficiently similar to the 2008 bombing to be relevant for that purpose. Third, defendant argued that the incident was too remote in time to be relevant. Finally, defendant argued that the 1995 bomb threat was not relevant to prove intent. Consistently with its written argument, the state responded that—for some of the charged crimes—the state had to prove that the crimes related to an attempt to rob a bank. For those crimes,
On the basis of those arguments, the trial court revisited and reversed its pretrial ruling. The trial court ruled, based on Johns, that evidence of the 1995 bomb threat was admissible because “it‘s similar, it‘s unique, and it‘s only separated in time.” Consistently with that ruling, the state later introduced Laughlin‘s testimony describing the 1995 incident during its case-in-chief.
2. Parties’ arguments on review
On review, the parties renew the arguments that they made to the trial court. Specifically, both parties rely significantly on the analytical framework announced in Johns to argue their respective positions on the admissibility of the evidence of the 1995 bomb threat.
In addition, both parties also advance supplemental arguments in light of this court‘s recent decision in State v. Williams, 357 Or 1, 346 P3d 455 (2015), which addressed
We address the parties’ respective arguments below. As we will explain, we ultimately conclude that the trial court did not err in applying
3. Analysis
a. OEC 404(3), OEC 403, and OEC 404(4); statutory text and general principles
We begin by setting out the evidentiary rules at issue.
“Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show that the person acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.”
Evidence admitted or excluded under
“In criminal actions, evidence of other crimes, wrongs or acts by the defendant is admissible if relevant except as otherwise provided by:
“(a) [
OEC 406 through412 ] and, to the extent required by theUnited States Constitution or theOregon Constitution , [OEC 403 ];“(b) The rules of evidence relating to privilege and hearsay;
“(c) The
Oregon Constitution ; and“(d) The
United States Constitution .”
b. Williams and its analysis of OEC 404(4)
The defendant in Williams was convicted on two counts of first-degree sexual abuse of a child victim. At trial, the defense theory was essentially that, if the defendant had touched the victim at all (which he disputed), any touching had been inadvertent, instead of for a sexual purpose, as the state was required to prove. 357 Or at 3. The state offered evidence that children‘s underwear had been found secreted at several locations in the defendant‘s home, arguing that that evidence was relevant to demonstrate that he had touched the victim with a sexual purpose and not accidentally. Id. at 4. The defendant asserted that the evidence was not admissible under
This court then considered whether, under
Williams thus answered one question (propensity evidence can be admitted in a child sexual abuse case under
First, this case does not involve child sexual abuse. Thus, the holding in Williams that propensity evidence is relevant in child sexual abuse cases to show that a defendant committed the charged acts is not on point here. Second, this case does not squarely present the issues that Williams specifically reserved. Most notably, unlike Williams, this case does not present the question whether the contested evidence could have been admitted solely for propensity purposes, in reliance on
We therefore decline the parties’ invitations to examine whether our holding in Williams extends to other kinds of propensity evidence not presented by these facts or to consider the circumstances in which such evidence is and is not admissible, consistently with due process.37 As
c. Johns and its analysis of OEC 404(3)
We begin with defendant‘s argument under
The defendant in Johns had been charged with intentional murder after shooting his wife. In his defense, he did not dispute that he was holding the gun when it discharged and his wife was shot. He did claim, however, that the gun had discharged accidentally as he attempted to take it from his wife, who initially had fired the gun when defendant first entered their darkened bedroom. Id. at 537-38. The state offered evidence that the defendant previously had attempted to use a rifle in the course of an assault on his former wife. Id. at 540. This court described that evidence as evidence of “prior acts to prove intent or lack of mistake,” id. at 551, and recognized that theory of relevance as the “doctrine of chances“:
Johns, 301 Or at 552-53 (ellipsis in original). After surveying numerous treatises discussing the doctrine of chances theory of relevance, this court then stated:
“[I]n evaluating prior crime evidence on the issue of intent or absence of mistake, the trial judge should make these determinations:
“(1) Does the present charged act require proof of intent?
“(2) Did the prior act require intent?
“(3) Was the victim in the prior act the same victim or in the same class as the victim in the present case?
“(4) Was the type of prior act the same or similar to the acts involved in the charged crime?
“(5) Were the physical elements of the prior act and the present act similar?”
Id. at 555-56 (emphasis added).
Thus, the particular analytical framework outlined in the quote above was specifically fashioned to determine the relevancy and admissibility of evidence offered to prove a defendant‘s “intent or absence of mistake” under the theory of doctrine of chances—that is, evidence countering a defendant‘s claim that he or she performed the act alleged but did so by mistake. See id. at 550 (describing issue in Johns as “whether the defendant acted with intent and not by mistake or accident“; observing that case did not involve “any
In this case, as discussed later in this opinion (in resolving defendant‘s challenge to the trial court‘s denial of his motion for judgment of acquittal), most of the charges required the state to prove that defendant acted “intentionally.” See 359 Or at 456-58 (so explaining). That does not mean, however, that the state‘s proof of that element was governed by Johns. Prior bad acts evidence can be relevant to a defendant‘s intent on theories other than the doctrine of chances. To give just one example, suppose that a defendant told the victim on one day that he would strangle her to death if she dated another man, and then, one or several days later, he saw her on a date with another man and shot and killed her. In that example, the evidence of the prior threat would be relevant to prove the defendant‘s motive, and perhaps a plan, and, in turn, that he had acted intentionally, even if the defendant‘s theory of the case was not that he had killed the victim by accident (or otherwise with a nonculpable mental state, such as in self-defense). Such evidence would not depend on the doctrine of chances for its logical relevance to those theories on which it permissibly may be admitted, and, because the doctrine of chances would not be at work, the factors that Johns identified would not apply. Admissibility of the prior threat thus would not depend on whether the threatened physical act (to strangle to death) differed from the ultimate physical act that killed the victim (shooting with a gun). Rather, the prior threat would be directly relevant to establish the defendant‘s motive, plan, and willingness to commit the charged crime, and the logical relevance of the evidence as to that purpose would not depend on any inference that the defendant had committed similar past acts with sufficient frequency that it becomes increasingly unlikely—with each new act
The relevance of the evidence of the 1995 bomb threat at issue in this case similarly does not depend on application of the “doctrine of chances.” Defendant did not advance any sort of defense (such as inadvertence or self-defense) that customarily would be countered by a doctrine of chances theory of relevancy. And the state did not offer that evidence to prove “intent” in the “absence of mistake” sense of the term.
d. Proving a plan under OEC 404(3)
We turn to a consideration of the nature of the proof required to render prior bad act evidence relevant and thus admissible for the nonpropensity purpose of proving “plan” under
In its discussion of the relevance of the evidence to prove “plan,” the court principally focused on the scenario in which the state seeks to introduce prior bad act evidence to prove a plan, to permit the jury to infer that a defendant had acted consistently with that plan in committing a subsequent crime. The court first cited John Henry Wigmore, 2 Evidence § 304 (Chadbourne rev 1979), to distinguish between two distinct, nonpropensity uses of prior bad acts evidence, both of which were at issue in Leistiko: (1) use of the evidence to prove intent by negating an asserted innocent state of mind; and (2) use of the evidence to prove a plan or design aimed to show a precedent design that in turn shows, by probability, ““the doing of the act designed.” 352 Or at 188 (quoting Wigmore, 2 Evidence § 304 at 249). In Wigmore‘s view, to be logically relevant to prove the latter, the proponent must show not only a similarity between the prior act and the charged act, but also “such a concurrence of common features that the various acts are naturally to be explained as caused by a general plan of which they are the individual manifestations.” 352 Or at 188 (citing Wigmore, 2 Evidence § 304 at 249 (emphasis from Leistiko omitted)). The court contrasted Wigmore‘s view with a slightly different view set out in Edward J. Imwinkelried, 1 Uncharged Misconduct Evidence § 3:24 (2009). In Imwinkelried‘s view, where the prosecution seeks to establish an inference of a plan or design to prove that a defendant acted consistently with that plan or design, the prior bad acts evidence should be admissible only if sufficient to establish a modus operandi. 352 Or at 188-89 (citing Imwinkelried, 1 Uncharged Misconduct Evidence § 3:24 at 3-163-3-167). Otherwise, the evidence “is vulnerable to the claim that the prior bad acts are merely propensity evidence.” 352 Or at 188; see also
Ultimately, this court in Leistiko did not have to decide between Wigmore‘s or Imwinkelried‘s views, because both sources required—in the context of showing a plan or design aimed to establish, by probability, the commission of charged crime—“something more than the similarity required for other crimes evidence to be admissible to prove intent is necessary for it to be admissible to prove a plan.” 352 Or at 189. The challenged evidence in Leistiko was not sufficiently similar for it to be relevant and thus admissible to provide intent; a fortiori, that evidence was not sufficient to prove plan under either Wigmore‘s or Imwinkelried‘s views. Id.
In reaching that conclusion, this court specifically highlighted the distinction that Imwinkelried made between prior bad acts evidence that is in the nature of a “spurious plan,” as opposed to a “true plan.” 352 Or at 188 n 13. Evidence of a “spurious plan” is, as just described, prior bad act evidence offered to show that a defendant engaged in a pattern or systematic course of conduct from which the existence of a plan is to be inferred. Imwinkelried, Uncharged Misconduct Evidence § 3:24 at 3-161-3-163; see also Leistiko, 352 Or at 188 n 13 (describing “spurious plan” evidence as evidence of series of prior similar acts offered to establish plan or design to commit those acts). In a “true plan” scenario, on the other hand, the prosecution offers prior bad act evidence to show that the defendant “in fact and in mind formed a plan[,] including the charged and uncharged crimes as stages in the plan‘s execution.” Imwinkelried, Uncharged Misconduct Evidence § 3:22 at 3-147.39 In other words, the challenged evidence is proof of part of the planning process (even if it is a bad act itself) and establishes one or several preliminary steps that culminate in the commission of a charged
Unlike Leistiko, this case involves “true plan,” not “spurious plan,” evidence. Here, the state did not introduce evidence of the 1995 bomb threat to show, first, that defendant had a plan in 1995 to commit a bank robbery using a bomb and, because he had such a plan on a past occasion, the jury should infer that he acted consistently with that plan by also later committing the 2008 bombing. If that were the state‘s theory, then, under Leistiko, the relevancy of the 1995 bomb threat would require some heightened degree of similarity between the two incidents.42 Instead, the state has argued that the 1995 bomb threat showed evidence of a trial run of a bank robbery. That qualified as “true plan” evidence, as described by Imwinkelried. The 1995 bomb threat (under the state‘s theory) was an actual preparatory step in the commission of the later, 2008 bank bombing, one that aided defendant in gathering information about how the bank and law enforcement personnel would respond to a caller who claimed that a bomb had been planted outside the bank. The heightened degree of similarity between the prior bad act and the charged crime required to establish the relevancy of a “spurious plan“—as explained and applied in
In that regard, several aspects of the 1995 bomb threat that we earlier described show that that evidence was logically probative to prove that defendant had made the threat as a preliminary step (that is, a trial run) to accomplishing the charged crimes in this case. See Imwinkelried, Uncharged Misconduct Evidence § 3:22 at 3-147 (in true plan case, test is whether prior crime evidence is logically relevant to show that defendant formed a plan with both uncharged and charged crimes as stages in plan‘s execution). Both the 1995 threat and the current crimes involved banks in the small town of Woodburn, located in the same general area; indeed, the jury could have found from evidence presented during the state‘s offer of proof and admitted in the record that all three bank locations were within view of the restaurant from which defendant and Laughlin had watched police respond to the 1995 bomb threat. The 1995 incident also supports the inference that, in placing the bomb in 2008, defendant and Bruce purposely selected that same general location—conveniently located near Interstate 5—which was familiar to defendant from the 1995 incident. Also, both incidents involved threatening calls made to bank tellers with instructions to go to specific locations outside, but in the immediate vicinity of, the banks in question, which, again, suggests that the 1995 incident served as trial run for the later planting of a real bomb. Finally, defendant learned from the 1995 bomb threat the nature of the police response when a life-threatening call is placed to a bank. It is true, as defendant urges, that there was a significant lapse of time between the two events. But in the case of “true plan” evidence, that does not necessarily detract from the relevancy of the evidence. As long as it is logical to infer that the past act was a preparatory step in the commission of the charged crimes—and here, it is—the prior steps of a plan do not have to be proximate in time to the charged crimes to be
In short, the evidence of the 1995 bomb threat qualified as “true plan” evidence. Because it was relevant for that nonpropensity purpose, the trial court properly held under
e. Balancing under OEC 403
As discussed earlier, if a trial court determines that prior bad acts evidence is relevant to a nonpropensity purpose under
To be sure, as defendant observes, the trial court did not specifically articulate its findings in terms of the “probative” versus “prejudicial” value of the evidence. The trial court, did, however, refer to factors that play into the balancing analysis. The court noted—necessarily on the “prejudice” side of the equation—that the 1995 bomb threat incident was remote in time. See Johns, 301 Or at 555 (“As to the time element, the closer in time of the prior act to the act charged, the greater the probative value; the more remote, the less probative value.“). The court also noted—necessarily on the “probative” side of the equation—the high degree of similarity between the 1995 incident and the charged crimes. See id. (“[T]he less similarity, the less probative value.“). Moreover, when the trial court at the pretrial motion in limine hearing gave the state leave to later ask it to reconsider its ruling on the admissibility of the 1995 bomb threat evidence, the court expressly declared that, if it did reverse its ruling, it would admit that evidence only if it determined that the evidence was relevant; the court further noted that the balancing test set out in
f. Limiting jury instruction under Leistiko
Finally, we consider defendant‘s argument that, under Leistiko, 352 Or 172, the trial court was required sua sponte to give the jury a particular limiting instruction and that its failure to do so amounted to plain error. The state
In Leistiko, the challenged evidence was relevant for a nonpropensity purpose under only a doctrine of chances theory. There, the defendant was charged with the forcible rape of three women; in his defense, the defendant did not concede sexual contact with all three women, but he asserted that, if the contact had occurred, it had been consensual. 352 Or at 177. To show forcible compulsion and rebut defendant‘s claim of consent, the state offered evidence that, on a separate and distinct occasion that was not part of the charges that the state had brought, the defendant had engaged in forcible sexual intercourse with a different woman. Although the defendant‘s consent defense differed somewhat from an “absence of mistake” defense described in the “doctrine of chances” discussion from Johns, it similarly involved a contention that the defendant—if he committed the charged acts at all—did not do so with a culpable mental state. Accordingly, this court specifically addressed the “intent” argument in Leistiko in terms of the “doctrine of chances.” Id. at 185. In rejecting the state‘s argument that the disputed evidence had been properly admitted under the doctrine of chances, this court observed that “the doctrine of chances rests on the proposition that the defendant either concedes the act that requires proof of a mental state or the trial court instructs the jury not to consider uncharged misconduct evidence offered to prove intent unless and until the jury finds the act that requires proof of intent to have been done and is proceeding to determine intent.” Id. (emphasis added).44 Defendant argues that Leistiko controls here, so that the trial court was required to sua sponte instruct the jury that it could not consider the evidence of the 1995 bomb
However, consistently with our earlier discussion, although a Leistiko-styled limiting instruction may be required when prior bad acts evidence is offered to prove “intent” or “absence of mistake” under the doctrine of chances theory of relevancy, such an instruction is not required when prior bad acts evidence is admitted for other relevant purposes. Leistiko, in effect, was predicated on the fact that, under the doctrine of chances, the prior bad act is only conditionally relevant—that is, its relevancy depends on whether the factfinder first agrees that the defendant committed the charged criminal act, which it can do if the defendant concedes as much or if, before considering the prior bad act evidence, the factfinder resolves any dispute of fact on the point against the defendant. 352 Or at 185-86. That same rationale does not generally apply to other theories on which prior bad acts may be relevant, however. Modus operandi or “signature crime” evidence is illustrative. The point of requiring a high degree of similarity between a defendant‘s past criminal acts and the charged acts is to establish identity—that is, that the defendant is the perpetrator of the crime. See, e.g., State v. Johnson, 313 Or 189, 197, 832 P2d 443 (1992) (when prior bad acts are sufficiently similar to charged acts to give rise to an inference of “signature crime,” factfinder can infer defendant‘s identity as perpetrator of charged offense). Given that purpose, the factfinder must necessarily consider such evidence as part of determining whether the defendant committed the actus reus, not afterwards.
So, too, here. As we have concluded, the 1995 bomb threat evidence went to defendant‘s affirmative plan to rob a bank, a relevant and admissible purpose under
III. GUILT PHASE
A. Evidence of Defendant‘s Views About Law Enforcement and Other Political and Related Beliefs (Assignment Nos. 45-48)
As earlier described, during the joint guilt-phase trial, the state introduced the testimony of several witnesses who testified about defendant‘s anti-establishment political views, including his negative views toward law enforcement. On review, defendant challenges the admission of testimony of six of those witnesses, raising a relevancy argument under
1. Additional facts, witness testimony, and preservation
Before trial, defendant moved in limine to exclude evidence of the 1995 bomb threat incident, described earlier. In resolving that motion, the trial court agreed that the evidence was not admissible and precluded the state from mentioning that incident in its opening statement, but gave the state leave to revisit the issue during trial. In response to the court‘s ruling, the state asked if the ruling extended to other anticipated testimony, from additional witnesses, about statements that defendant and Bruce had made over the years expressing their political and related views. The court then clarified that its ruling was directed to only the 1995 bomb threat evidence. Defendant did not object to the limited scope of the court‘s ruling and thus did not preserve any pretrial challenge to the anticipated evidence of his political and related views. In effect, before trial, defendant‘s
At trial, the state introduced testimony about defendant‘s views from several witnesses, beginning with Sherwood. Sherwood testified that defendant had stated that he had no respect for law enforcement, had made disparaging statements about police, and was concerned about the upcoming presidential election and its effect on his right to bear arms and the stability of government. Defendant did not object to that testimony at any point; his challenge to that testimony on review therefore is not preserved, and we do not address it.
Next, the state introduced testimony from McLaughlin. McLaughlin first testified to a derogatory statement that defendant had made about women generally. Defendant objected on relevancy grounds, and the trial court overruled the objection. Defendant did not object on First Amendment grounds. Consequently, defendant‘s relevancy challenge—but not any First Amendment challenge—to that part of McLaughlin‘s testimony is preserved and properly before us on review. As we note below, however, even if the trial court erred in admitting that testimony, any such error was harmless. 359 Or at 449 n 46.
McLaughlin next testified to statements that defendant had made reflecting his negative views of government generally, banks and law enforcement more specifically, and the then-leading Democratic candidates for president, including statements disparaging one candidate‘s gender and another‘s race. Defendant did not object to that testimony, and nothing in his earlier objection to McLaughlin‘s testimony relating to defendant‘s derogatory statement about women can be construed as raising a general objection to the rest of McLaughlin‘s testimony. Defendant‘s challenge to those latter aspects of McLaughlin‘s testimony—describing defendant‘s views of government, banks, law enforcement, and the presidential candidates—therefore is not preserved, and we do not address it. See State v. Clemente-Perez, 357 Or 745, 752, 359 P3d 232 (2015) (citing State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000), for
Later, the state introduced testimony from Laughlin about the 1995 bomb threat incident, as described above. As the state prepared to ask Laughlin about defendant‘s views of law enforcement more generally, defendant objected on relevancy grounds, also citing the
After Laughlin testified, the state introduced testimony from three more witnesses whose testimony defendant challenges on review. Defendant‘s standing objection during Laughlin‘s testimony operated to preserve his relevancy and First Amendment challenges to the testimony of those three witnesses. The first additional witness was Warner, who was an employee at an establishment where defendant had been a regular morning coffee customer. Warner had told defendant that she had obtained a new job working for a 9-1-1 call center, to which defendant had replied that he would not be able to work with police every day and that, if he had a job like that, “he would have to kill someone because he fucking hated police.” After Warner later quit her 9-1-1 job, defendant told her, “I knew you weren‘t a fucking Nazi.” Another witness, Wood, who had worked in 2008 as an assistant for Bruce‘s brother, testified that defendant quickly went from cordial to agitated when she told him that she previously had worked for another state‘s public safety department and that her husband worked in corrections; defendant declared that he hated officers, who he said should “go deal with the illegal immigrants that were breaking the law instead of the law abiding white men.”
2. Relevancy under the Oregon Evidence Code
We turn to defendant‘s challenges to the testimony to which he did object—that is, the testimony of Laughlin, Warner, Wood, and Chasteen—beginning with defendant‘s relevancy argument under
In contrast to Flett, this court in State v. Hayward, 327 Or 397, 963 P2d 667 (1998), and State v. Brumwell, 350 Or 93, 105, 249 P3d 965 (2011), cert den, 565 US 1127, 132 S Ct 1028 (2012), determined that a connection between contested evidence and the defendants’ motives and intent could be logically inferred, given the nature of the evidence as evaluated in light of the circumstances of the charged crimes. Those defendants together with other codefendants, some of whom considered themselves satanists, had
Here, as in the cases just summarized, the question is whether a connection between the disputed evidence of defendant‘s anti-government views—offered by witnesses Laughlin, Warner, Wood, and Chasteen—and the state‘s theory about defendant‘s motive can be logically inferred. The state asserts that the evidence was relevant to prove defendant‘s animus toward law enforcement officers, which in turn demonstrated a motive from which the jury reasonably could infer defendant‘s intent to engage in actions aimed at killing or harming officers. On review of the record, and evaluating the contested evidence in light of the circumstances of the crimes, we agree with the state. As described earlier—and as we discuss later in added detail—the state presented evidence from which the jury could find that defendant, together with Bruce, committed the following acts, which led to the deaths of Captain Tennant and Trooper Hakim, and the critical injuries to Chief Russell: Defendant purchased component parts for a highly explosive bomb; he built such a bomb; he planted the bomb at West Coast Bank; and he called and issued the threats to Wells Fargo Bank and West Coast Bank, thereby drawing law enforcement to the scene to search for suspicious packages. At trial, defendant disputed not just whether he took those actions at all; he also disputed whether, even if he took them, he did so with the intent to cause death or injury to anyone. The evidence of defendant‘s anti-establishment
3. First Amendment
Defendant relatedly argues that, even if the evidence was relevant and admissible under
Unlike in Dawson, the state‘s collective proof in this case showed why defendant‘s anti-government views and hostile attitude toward law enforcement were relevant to the issues being tried during the guilt phase. In seeking to prove that defendant intentionally committed the charged crimes—which involved building and placing a highly explosive bomb outside a bank, with law enforcement drawn to the scene as a result of a threatening phone call—the state sought to prove that defendant was motivated by his anti-establishment views and his negative attitudes toward law enforcement. Because the disputed evidence was logically connected to, and thus relevant to, an issue at trial, its admission did not violate the
B. Motion for Judgment of Acquittal, Proof of “Intent,” “Causation,” and “Personally” Elements; Related Jury Instructions (Assignment Nos. 119-137)
1. Additional procedural facts, statutory provisions, and parties’ general arguments on review
At the close of the state‘s case, defendant moved for judgment of acquittal. As pertinent to the issues that
The standard by which we review a denial of a motion for judgment of acquittal is a familiar one. In testing whether the record is sufficient to support a jury‘s verdict, we view the evidence in the light most favorable to the state, drawing all reasonable inferences and credibility choices in the state‘s favor. State v. Lupoli, 348 Or 346, 366, 234 P3d 117 (2010); Cunningham, 320 Or at 63. Frequently, however, a defendant‘s motion for judgment of acquittal also frames threshold disputes over whether some fact is an element of a charged crime or the legal meaning of an element (issues that often are framed as well by the defendant‘s requested jury instructions). When legal disputes are encompassed in the arguments for and against a motion for judgment of acquittal, we resolve them as we would any other legal question—that is, we determine and announce the correct rules of law that apply. Cf. State v. Gonzalez-Valenzuela, 358 Or 451, 456, 365 P3d 116 (2015) (parties’ dispute over adequacy of evidence involved disagreement over meaning of statutory terms, which court resolved as legal issue of statutory construction).
Under Oregon‘s Criminal Code, there are four basic levels of homicide offenses. In ascending order in terms of the seriousness of the offense and the severity of the penalty, those levels are criminally negligent homicide (
Beginning with that baseline, a person commits criminal homicide when, without justification or excuse, the person “causes” the death of another human being with any of four mental states—intentionally, knowingly, recklessly, or with criminal negligence.
Finally, murder elevates to aggravated murder when a person commits intentional murder under specified circumstances. Those circumstances include three that were the basis for six of the aggravated murder charges in this case: the murder of more than one victim in the same criminal episode,
Relying on that lack of evidence, and in combination with certain legal arguments as to the nature of the elements that the state had to prove, defendant contends that, as a matter of law, (1) the state established at most that defendant acted recklessly, not intentionally; (2) some superseding factor (such as a stray signal or the victims’ own negligence or recklessness) detonated the bomb and that factor, not defendant‘s conduct, “caused” the victims’ deaths; and (3) defendant therefore likewise did not “personally” commit the homicides, as the aggravated felony murder counts required. We take up each of those arguments in turn, together with defendant‘s related legal arguments about the elements and his proposed jury instructions.
2. Proof of intent, analysis
As just described, common to all the aggravated murder charges against defendant was the allegation that defendant acted “intentionally” in causing the victims’ deaths. In support of his motion for judgment of acquittal, defendant urged that, to satisfy the intent element, the state had to prove that he acted with a conscious objective to kill the “specific people” that he allegedly killed (Captain Tennant and Trooper Hakim). Defendant further maintained that the state‘s evidence was insufficient for a reasonable jury to find that he “intended to kill *** anyone, let alone a particular human being.” Defendant therefore reasoned that, even if the state did not have to prove that defendant had a specific victim in mind and, instead, had to prove only a more general intent to kill, the evidence did not establish even that general intent. Rather, according to defendant, the state‘s evidence at most permitted the jury to find that defendant had acted with a reckless
We begin by examining the mental state of “intentionally” in the context of the homicide statutes. In Oregon, criminal liability generally requires the commission of an act that is combined with a culpable mental state. State v. Rutley, 343 Or 368, 373, 171 P3d 361 (2007). For most Oregon criminal offenses, the culpable mental state is either intentionally, knowingly, recklessly, or criminally negligent. See generally State v. Crosby, 342 Or 419, 427-28, 154 P3d 97 (2007) (discussing general mental state requirements of Oregon criminal statutes). Each of those mental states is expressly defined by statute. See
“‘Intentionally’ or ‘with intent,’ when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.”
“‘Recklessly,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists.”
For criminal homicide, which (again) is the baseline for murder and aggravated murder, the mental state element “ha[s] as its object ‘causing the death’ of another human being.” Crosby, 342 Or at 433-34; see also State v. Woodman, 341 Or 105, 118-19, 138 P3d 1 (2006) (for intentional murder, intent applies to “causing the death” of the victim). Death is a “result” for purposes of the mental state elements. Crosby, 342 Or at 430-31. Thus, a person commits criminal homicide “intentionally” if the person acts “with a conscious objective” that his or her actions would result in the death of another human being or otherwise engages in conduct “intended to cause the death of another.” Woodman, 341 Or at 119. A person commits criminal homicide “recklessly,” by contrast, if the person was “aware of and consciously disregard[ed] a substantial and unjustifiable risk of causing *** death.” Crosby, 342 Or at 431 (internal quotation marks omitted).54
As a threshold matter, we reject defendant‘s position that the intent required for murder and aggravated murder generally is an intent to cause the death of a specifically identified person. The plain text of the statutes does not support defendant‘s position. Criminal homicide is committed when, with any of the four accompanying mental states, a person causes the death of “another human being.”
In context, that conclusion is all the stronger. Criminal homicide consists of causing the death of “another human being” regardless of the culpable mental state with which it is committed—for example, regardless whether the person acts with criminal negligence or intentionally. If the victim‘s specific identity is an aspect of the described result, it would be an element for all levels of homicide, not just intentional homicide. That would mean, for example, that a person would commit criminally negligent homicide only if the person failed to be aware of a substantial and unjustifiable risk of causing the death of a spеcifically identifiable person. See
We turn to defendant‘s remaining argument—that, on this record, the evidence at most supported a finding that defendant acted recklessly, not intentionally. For the “intent” element of the various counts of aggravated murder, the trial court advised the jury that a person acts intentionally if that person “acts with a conscious objective to cause a particular result,” which, in the context of the aggravated murder charges, meant that the person “acts with a conscious objective to cause the death of another human being.” Defendant did not at trial, and does not on review, take issue with that instruction. Defendant argues only that the evidence that the state produced was inadequate, as a matter of law, to permit a reasonable jury to find that he acted with that conscious objective.
The crux of defendant‘s challenge to the factual sufficiency of the evidence is that, because the state presented
“[t]here was no evidence that defendant directed the explosion in this case: there was no evidence that he lit a fuse; pulled a trigger; ordered someone to pull a trigger; or set up the device in such a way that it would inevitably trigger.”
As a result, in defendant‘s view, the state‘s evidence and its theory of guilt invited the jury to infer an intent to kill from the fact that defendant, in the course of a robbery attempt, planted a “dangerous weapon” in a public place and then “abandoned” it there, even if it might not inevitably explode. Without evidence that defendant triggered the bomb‘s detonation or planned for events to play out exactly as they did, defendant insists that the jury could not find that his actions were “consciously directed at causing the explosion and deaths.”58 At most, in defendant‘s view, the state proved that he acted recklessly by leaving a dangerous instrumentality in a public place, indifferent to the risk that leaving it there posed.
We have already recited the evidence in detail at the outset of our opinion. But by way of summary, and viewed most favorably to the state, the jury reasonably could have found the following. First and most essentially, defendant, together with Bruce, designed, built, planted, and left the bomb at West Coast Bank. As to the nature of the bomb, it was sophisticated and complex. It contained—in a concealed area—three to five pounds of a dangerous high explosive that was readily capable of causing devastation and death. The explosive was set high in the structure of the bomb, so that, upright on the ground as it was placed outside the bank, the blast would go farther and with more force than if the explosive were directly on the ground. Because the explosive was encased in a metal box—with additional thick pieces of metal and steel inside—on detonation, the metal structure and internal metal and steel would blast apart into ragged fragments that would be violently projected into any nearby person, object, or building. In designing and building the bomb, defendant, together with Bruce, had ensured their own safety while handling it, by installing an external safe-arm switch that first had to be flipped for the bomb to be armed and ready for detonation. In short, by its inherent nature, the bomb was dangerous to handle, even for someone who knew what it was and how it was designed, and the bomb had a single purpose: Massive destruction.
Equally significantly, the evidence permitted the jury to find that the bomb, although designed to be deadly, was also designed to appear to be fake—a hoax device, safe for handling. With its purposefully green-painted exterior
The jury could further find that, once the bomb was planted outside West Coast Bank, defendant then called Wells Fargo Bank, issuing direct threats and explicit instructions to bank employees, intending to draw law enforcement to both banks. And the jury could infer that responding law enforcement played directly into defendant‘s hands. That is, defendant, with his distrust and dislike of government, wanted law enforcement officers to do exactly what they did—conclude that the bomb was a hoax and attempt to process it as a nonexplosive device. Meanwhile, though, the safe-arm switch was not protecting them, as the jury could have found that it did while defendant and Bruce handled it. In all, the jury could find from the evidence that defendant had laid a trap for law enforcement officers and others, and had done so successfully.
That was an ample basis on which the jury could reasonably infer that defendant, in planning, building, and planting the bomb, acted with the “conscious objective” of causing the death of one or more other human beings. See generally State v. Allison, 325 Or 585, 590 n 5, 941 P2d 1017 (1997) (mental state may—and often must—be inferred from evidence of acts taken and surrounding circumstances); Rose, 311 Or at 282 (intent rarely susceptible to direct proof). To be sure, if the evidence had been that defendant had “lit a fuse; pulled a trigger; [or] ordered someone to pull a trigger” that detonated the bomb, the inference that defendant intended to cause death would be all the stronger. But the fact that the state could have had a stronger case—one that might have all but eliminated any competing inference that defendant might want the jury to draw—does not mean that the state‘s proof was not sufficient to defeat defendant‘s motion for judgment of acquittal. From the evidence of the bomb‘s
Finally, defendant makes much of the prosecutor‘s statement in closing argument to the jury that it “doesn‘t matter” whether defendant or some other force had triggered the bomb‘s detonation, focusing instead on defendant‘s acts in building the bomb and planting it in a public place. Relying on a limited excerpt from the prosecutor‘s closing, defendant urges that the prosecutor invited the jury to find defendant guilty of aggravated murder based merely on defendant having engaged in intentional conduct that ”recklessly resulted” in a death. (Emphasis in original.)
In testing the evidence for sufficiency, we review the evidence, not the parties’ arguments, to determine what facts a reasonable jury could find. Even so, defendant‘s characterization of the prosecutor‘s argument does not accurately portray it. The prosecutor emphasized the facts that we have summarized above (along with others, and all in greater detail), told the jury that the trial court would instruct them that “intentionally” requires that a person act “with a conscious objective to cause a particular result,” and repeatedly urged the jury to conclude from the circumstances as a whole that defendant and Bruce designed the bomb to kill and to kill more than one person, intended it to explode, and planted it at the bank with the plan and intent to kill. The prosecutor argued to the jury that, for defendant (and Bruce), the explosion was, in their minds, “their big McVeigh moment.” The only part of the plan that went awry, he continued, was that the bomb was taken inside the
To summarize, defendant was not entitled to a judgment of acquittal on the theory that the state, to satisfy the “intentionally” element of the various aggravated murder charges, had to prove that defendant intended to kill Captain Tennant and Trooper Hakim specifically, as opposed to intending to kill whomever was in harm‘s way of their lethal bomb.59 Neither was defendant entitled to a judgment of acquittal on the theory that, as a matter of law, the evidence supported his guilt only on a theory that he acted recklessly, not intentionally, so that he was guilty of at most manslaughter. The trial court therefore did not err in denying defendant‘s motion for judgment of acquittal on the ground that the state failed to prove intent under
3. Proof of causation, analysis
Defendant‘s second ground for his motion for judgment of acquittal was that the state failed to prove that defendant engaged in conduct that had “cause[d]” the death of another, as required for the aggravated murder charges (as well as several of the lesser charges). In support of his
On review to this court, defendant essentially renews the arguments that he made to the trial court. In response, the state takes issue with defendant‘s premise that the “cause” element of Oregon‘s homicide statutes encompasses “legal cause” as well as factual cause. In the state‘s view, defendant incorrectly focuses on only the “final act” when, instead, principles of causation operate to hold him responsible for setting in motion a “chain of events” that was intended to cause and did cause death.
The parties’ arguments thus frame two principal questions. The first is whether, to “cause” the death of another human being under the criminal homicide statute, the legislature intended the causal element to encompass the concept of “legal” or “proximate” cause, as well as actual cause (or factual cause or cause-in-fact). The second question arises only if we conclude that the answer to the first is “yes.” Then, the question is: What is the test for proximate or legal cause in this context, and did the state‘s evidence fail to satisfy it as a matter of law, entitling defendant to a judgment of acquittal on most of the charges, including all the aggravated murder charges? After determining the
“The law has long considered causation a hybrid concept, consisting of two constituent parts: actual cause and legal cause [also termed proximate cause].” Burrage v. U.S., 571 US __, 134 S Ct 881, 887, 187 L Ed 2d 715 (2014) (citing H. Hart & A. Honore, Causation in the Law 104 (1959)).60 Actual cause is simple cause-in-fact—that is, one thing happened and, because it did, something else happened. To say that a person “caused” harm to another expresses, at least for most purposes in the law, the idea that, “but for” a person‘s act or conduct, the harm would not have happened:
“[The “but for” rule of causation] may be stated as follows: The defendant‘s conduct is a cause of the event if the event would not have occurred but for that conduct; conversely, the defendant‘s conduct is not a cause of the event, if the event would not have occurred without it.”
W. Page Keeton, Prosser and Keeton on The Law of Torts § 41, 265-68 (5th ed 1984) (Prosser & Keeton);61 accord Joshi v. Providence Health System, 342 Or 152, 161-62, 149 P3d 1164 (2006) (citing
Legal or proximate cause, in contrast, expresses a policy judgment as to whether conduct that factually caused harm should result in liability or responsibility. The idea generally is that some conduct, although an actual cause of harm, nevertheless should not result in liability or responsibility for that harm. “[T]o say that one event was a proximate cause of another means that it was not just any cause, but one with a sufficient connection to the result.” Paroline v. U.S., __ US __, 134 S Ct 1710, 1719, 188 L Ed 2d 714 (2014) (emphasis added). Proximate cause doctrine has been a product of incremental common-law development, with the courts announcing and modifying the appropriate limits of liability over time. And although the doctrine has developed principally in the area of civil tort law and negligence in particular, in theory it extends to the analysis of causation for crimes that require “not merely conduct but also a specified result of conduct.” LaFave, 1 Substantive Criminal Law
That backdrop brings us to the interpretative issue before us: Did the legislature intend the “causation” element in the criminal homicide statute (“causes the death of another,”
In Petersen, the defendant and a friend agreed to participate in a “drag race” on a public street. Each had a passenger in his vehicle. In the course of the race, the two approached an intersection at high speed. The defendant, who was in the lead, slowed and stopped; his friend did not. As his friend passed the defendant and went through the intersection at high speed, a truck crossing the intersection collided with the friend‘s car, killing both the friend and the friend‘s passenger. Id. at 167 (describing some factual details and incorporating those set forth in Court of Appeals opinion); State v. Petersen, 17 Or App 478, 484-86, 522 P2d 912 (1974) (setting out facts in full). The defendant in Petersen was charged with and convicted of second-degree manslaughter by having recklessly “cause[d] the death of another human being.”
The issue in Petersen was whether the defendant was entitled to a judgment of acquittal on the theory that his participation in the drag race was not the “legal cause” of the two deaths. Petersen, 17 Or App at 489. On appeal to the Court of Appeals, the defendant drew from civil tort concepts of proximate cause, intervening cause, and foreseeability of harm to argue that his friend‘s recklessness had been a “supervening cause” of the deaths and, more generally, that his friend‘s and the passenger‘s voluntary participation in the reckless activity of drag racing should relieve him of criminal liability for their deaths. Id. at 489-90. The majority rejected his position, concluding that the “words of the statutes are inclusive” and provided for “no exception,” so that, as long as the defendant‘s conduct was a cause-in-fact of the deaths (which the majority concluded that it was), criminal liability attached. Id. at 490-91.
Chief Judge Schwab dissented. In his view, the concept of “legal causation“—which he described as not an issue of causation at all, but one of criminal responsibility for
Petersen then came to this court on review, and the court resolved the case summarily. It adopted Chief Judge Schwab‘s dissent “as the opinion of this court,” without elaboration. The court merely characterized the dissent as “expressing the opinion that
More than 30 years later, in Murray, 343 Or 48, this court revisited the meaning of “causes” for purposes of the Criminal Code. Murray involved a prosecution for third-degree assault, which had, as an element, “[r]ecklessly causes serious physical injury to another.”
Unlike in Petersen, however, this court approached the issue in Murray as one of statutory interpretation. Using its interpretative methodology from PGE, 317 Or at 610-12,
“The word ‘cause’ is not defined in the criminal statutes. It is, however, a word of common usage, which we presume the legislature intended to be given its plain, natural, and ordinary meaning. *** The dictionary defines the verb ‘cause’ as follows: ‘1: to serve as a cause or occasion of: bring into existence: MAKE (careless driving *** accidents) *** 2: to effect by command, authority or force.’ Webster‘s Third New Int‘l Dictionary 356 (unabridged ed 2002).”
Murray, 343 Or at 52. The court further observed that the third-degree assault statute does not express any limit on criminal responsibility based on the victim‘s role or mental state, or otherwise “carve out an exception for harm done to willing participants in the conduct.” Id. at 52. From the text of the statute, the court concluded that a person “causes” serious physical injury to another, within the meaning of the third-degree assault statute, if the person “brings about, makes, or effects by force the serious injury of another person with a dangerous weapon, no matter the role of the other person in the reckless conduct.” Id.
The court in Murray did not ignore the holding in Petersen. Although Petersen had involved a charge under the manslaughter, not the assault, statute, the court viewed Petersen as authoritative on the meaning of the word “cause” in the context of a criminal offense that has, as a statutory element, conduct that causes a result described in the statute. Murray, 343 Or at 55. And although Petersen had been grounded in policy considerations and had not followed anything akin to the later-announced PGE approach to statutory interpretation, the court considered itself “bound” to follow Petersen as a matter of stare decisis, because the legislature had not changed the statute at issue in that case in response to the court‘s holding. Murray, 343 Or at 55.63 It therefore turned
After describing the facts in Petersen and Chief Judge Schwab‘s dissent, the court in Murray sharpened the focus to “what was actually before the court in Petersen and what the court actually held there.” Id. at 55. The court observed:
“In Petersen, the defendant‘s conduct—even if it was reckless—did not cause the victim‘s death; the defendant‘s contribution was limited to participation in the speed contest. The victim was killed when a different person—the driver of the car in which the victim was riding—recklessly chose to speed into a busy intersection.”
Id. Likewise, the court pointed out, various examples that Chief Judge Schwab had given in his dissenting opinion—in which he similarly would have concluded that there was no “legal causation“—also were not ones “in which a potential defendant, by his or her own conduct other than mere participation in thе risky activity, caused a victim‘s death.”64 Id. at 55-56. The court therefore read Petersen—based on Chief Judge Schwab‘s dissent and this court‘s adoption of it—as standing for only the proposition that “the mere fact that two people both participate in reckless conduct at the same time and place does not mean that one of the participants necessarily brings about, makes, or effects by force a harm to the other participant“; for a defendant‘s actions to cause that harm “requires something more.” Id. at 56. What Petersen did not hold, the court emphasized, was that someone whose conduct did in fact “bring about, make, or effect by force an injury to or the death of another” could escape criminal liability for that conduct on the basis that the victim voluntarily
In essence, this court in Murray concluded that what was missing in Petersen was evidence of actual causation. Mutual participation in a risky activity may mean that the participants’ reckless conduct coincides in “time and place” with the harm, but that is not enough to be a cause-in-fact of an injury—that is, conduct that “brings about, makes, or effects by force” that injury. Id. Turning to the facts before it, the court in Murray observed that “it is undisputed that, in that sense, [the] defendant caused [the victim‘s] serious physical injuries; he stipulated that he was driving recklessly and that his reckless driving led directly to the crash that injured [the victim].” Id. Because the defendant‘s reckless conduct of driving and crashing the car at 90 miles per hour was a factual cause of the victim‘s injuries, the defendant was guilty of third-degree assault, regardless of whether the victim‘s own recklessness was also a cause.
After Murray, no room remains to argue that “cause,” as used in this statutory context, requires legal or proximate causation, as well as causation-in-fact. In that respect, Murray did not mark a departure in the role of proximate or legal cause in Oregon case law, but instead fell into line with both long-standing and evolving precedents.
In Oregon criminal cases specifically, proximate cause doctrine—as a concept distinct from factual causation that limits responsibility for otherwise culpable conduct that is a cause-in-fact of harm—has not played an appreciable role in the analysis of criminal responsibility. In particular, this court has never held that it has the authority or responsibility to invoke common-law proximate cause principles to relieve a defendant of criminal responsibility for culpable conduct that in fact caused harm as proscribed by a criminal statute. Our cases instead suggest the opposite. See generally State v. Ramos, 358 Or 581, 595, 368 P3d 446 (2016) (legislature determines criminal responsibility based on proscribed conduct and mental state); State v. Boag, 154 Or 354, 359-60, 59 P2d 396 (1936) (trial court properly refused to instruct jury that intoxicated driving must be without due care to be “proximate cause” of accident, where conduct
Nor is there any basis to conclude that proximate cause concepts were introduced into the criminal law with the 1971 adoption of Oregon‘s revised Criminal Code, which enacted the current criminal homicide statutory provisions, including the “causes” wording. The 1971 revised criminal homicide provisions were based principally on those of the Model Penal Code. See Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 88, 86 (July 1970) (so stating); see also Model Penal Code, §§ 210.1-210.4 (Proposed Official Draft 1962) (setting out homicide offenses). Thus, under both the Model Penal Code and Oregon‘s 1971 revised code, criminal homicide—the baseline offense for the elevated homicide offenses—is defined as “caus[ing] the death of another human being” with
As importantly, when Oregon‘s revised Criminal Code was drafted and enacted, this court, in the area of civil tort law, had abolished not only the terms but also the concept, of “proximate” and “legal” cause. See Lasley v. Combined Transport, Inc., 351 Or 1, 6-7, 261 P3d 1215 (2011) (citing cases for proposition).68 Thus, for decades, “cause” in
“Causation in Oregon law refers to causation in fact, that is to say, whether someone examining the event without regard to legal consequences would conclude that the allegedly faulty conduct or condition in fact played a role in its occurrence.”
Sandford v. Chev. Div. Gen. Motors, 292 Or 590, 606, 642 P2d 624 (1982) (so holding and citing cases; emphasis added). The legislature adopted Oregon‘s 1971 revised Criminal Code against the backdrop of that general common-law development. Consequently, in interpreting the meaning of the term “cause” for purposes of Oregon‘s homicide offenses, even if we were to assume that “the legislature intended its legal meaning,” rather than common and ordinary meaning, as we did in Murray, the meaning would be the same: Cause means cause-in-fact.69 See Joshi, 342 Or at 158 (so holding in civil wrongful death action; statutory element of causing death of another requires only causation in fact).
Consequently, we adhere to our holding in Murray, which in turn clarified the holding in Petersen and reaffirmed
As to whether the jury in this case reasonably could find defendant‘s conduct to have been а cause-in-fact of Captain Tennant‘s and Trooper Hakim‘s deaths, defendant did not at trial, and does not on review, argue that the evidence in this case was insufficient as a matter of law. Nor would such an argument have merit. The chain of causation in this case was simple and direct. Viewed in the light most favorable to the state, a reasonable jury could have found that defendant, together with Bruce, designed, built, and planted a highly lethal bomb outside a bank; he then made sure that bank employees would know that they were in danger, so that law enforcement would respond. The trap was thus laid. The bomb exploded; two victims died from the blast; two more were injured, but survived; and one of those survivors suffered permanent disability from his injuries. The test of causation for most circumstances is whether, “but for” the defendant‘s conduct, the event would not have occurred. Joshi, 342 Or at 161 (discussing test; explaining that it fits all but unusual circumstances). Here, had defendant not designed, built, and planted the bomb at the bank, there would have been no explosion, and no one would have died or been injured. The state‘s evidence of defendant‘s role in building and planting the bomb, as well as placing the life-threatening call, provided
For those reasons, defendant was not entitled to a judgment of acquittal on the aggravated murder counts on the theory that the state was required to prove that his conduct was both a legal as well as factual cause of death. Because the evidence was sufficient to show that defendant‘s conduct was a cause-in-fact of Captain Tennant‘s and Trooper Hakim‘s deaths, the trial court properly denied defendant‘s motion for judgment of acquittal.
4. Jury instructions on causation, analysis
After the trial court denied defendant‘s motion for judgment of acquittal on the “legal causation” ground, and before the case was submitted to the jury, defendant requested jury instructions that would have directed the jury to resolve the causation element on proximate or legal cause types of theories. Those instructions approached causation ultimately as a relative concept, one that turned on the degree to which defendant‘s conduct was the factual cause of harm, as compared to any other contributing factor that the jury might determine was also a cause-in-fact of the harm.
To that end, defendant‘s proposed instructions were a mix of theories and concepts, including concepts of “substantial factor,” “superseding cause,” “intervening cause,” “reckless conduct of a third party,” “proximate cause,” and the reasonable foreseeability of the result. Several proffered instructions would have told the jury that, to “constitute aggravated murder” or “intentional homicide,” or otherwise to find that a death or injury was “intentionally caused” by the defendant, “[t]he burden rests on the state to prove that the defendant‘s conduct was the proximate cause of the death or injuries.” (Emphasis added.) One instruction would have advised the jury that it was a “defense to homicide” if the death was caused by an “independent intervening act or omission of the deceased” that defendant “could not reasonably have anticipated as likely to happen.” Another, rather than
Each of defendant‘s variously worded proposed instructions injected concepts into the assessment of “cause” that did not belong there. As we have concluded, the “causes” element of criminal homicide, which in turn is an element of intentional murder and aggravated murder requires proof of a factual causation only; “proximate cause” is not part of the analysis. Neither does factual causation depend on a comparison of a defendant‘s causal role with that of the victim or some third party. As Murray held, a defendant‘s conduct “causes” a result if it brings about, makes, or effects by force that result, “no matter the role” of another person and regardless of other person‘s reckless participation. 343 Or at 52, 56; see also State v. Newberg et al., 129 Or 564, 573-75, 278 P 568 (1929) (for crimes, like torts, third person‘s concurrent or contributory causal conduct does not relieve defendant of responsibility for causing harm).
The same is true of the concepts of “foreseeability” that defendant‘s proposed instructions would have injected into the analysis—that is, whether defendant should have reasonably anticipated an intervening cause, such as Trooper Hakim‘s efforts to dismantle the bomb. As with the proximate cause and comparative cause aspects of defendant‘s proposed instructions, foreseeability is not a concept of causation. Causation is “an assessment of whether a particular act or omission in fact resulted in the particular harm that a plaintiff suffered—it turns on what retrospectively did happen.” Towe v. Sacagawea, Inc., 357 Or 74, 87, 347 P3d 766 (2015) (emphasis in original; internal quotation marks omitted). Foreseeability, on the other hand, is “a prediction of the risk that an act or omission will result in a particular kind
of harm—it turns on what prospectively might happen.” Id. (same). The concept of foreseeability has potential relevance to crimes (as well as civil torts) that have recklessness or negligence as a mental state, both of which turn on a prospective risk assessment.71 But defendant requested his special “causation” instructions only in the context of the charges of intentionally committed conduct—intentional aggravated murder in particular. Whatever the propriety of a special instruction on foreseeability for a crime that has recklessness or negligence as a mental state—an issue not before us here—foreseeability has no place in assessing, first, factual causatiоn, and second, responsibility for the intended consequences of a defendant‘s act. Cf. American Fed. Teachers v. Oregon Taxpayers United, 345 Or 1, 16-17, 189 P3d 9 (2008) (for ORICO violation, person who intends consequences of act is liable for act, regardless of how remote or attenuated those consequences); Restatement (Third) of Torts § 5 (“An actor who intentionally causes physical harm is subject to liability for that harm.“), § 33 (“An actor who intentionally causes harm is subject to liability for that harm even if it was unlikely to occur.“).72
5. Proof of personally committing homicide, analysis
The final prong of defendant‘s motion for judgment of acquittal took issue, as earlier described, with whether the state‘s proof satisfied the “personally” element required for aggravated felony murder (counts 7 through 10). As explained earlier, felony murder is committed when a defendant or an accomplice, if any, causes the death of another person in the course of committing certain enumerated felony crimes.
On that aspect of defendant‘s argument, the parties do not dispute the applicable law.74 Both parties rely extensively on this court‘s decision in State v. Link, 346 Or 187, 208 P3d 936 (2009), which considered the meaning of “personally” in the context of aggravated felony murder.
In Link, the defendant and several accomplices planned to steal a car belonging to the victim, who was the mother of one of the accomplices. The defendant told the other accomplices that they would have to kill the victim to prevent her from reporting their theft. The group devised several ways to carry out the murder and then waited for the victim to arrive home. Two accomplices hid inside with broken wine bottles; defendant waited outside. When the victim arrived home and went inside, the accomplices inside struck her several times. She attempted to flee. The defendant, who saw her run out the back door, told the others that she looked “really bad” and one of them needed to shoot her. One of the defendant‘s accomplices then shot and killed the victim. 346 Or at 190-91.
At issue in Link was whether the trial court had erred in denying the defendant‘s motion for judgment of acquittal, based on the state‘s purported failure to prove that he “personally” had committed the homicide in the course of committing first-degree robbery, as aggravated felony murder (
What elevates the crime to aggravated felony murder is the “even more stringent” requirement that a defendant “personally” as well as intentionally play a causal role in the death of another person. Id. at 206 (discussing
The court in Link understood Nefstad to stand for two propositions: First, for aggravated felony murder, the defendant must participate in the murder itself, not just the underlying felony; and second, physically assisting another person in committing the murder—such as by restraining the victim so that the other can deal the fatal blow—is sufficient to satisfy the “personally” requirement. Link, 346 Or at 208. This court in Link had “no quarrel with either conclusion, but neither answer[ed]” the question that the court faced on the facts before it: “[G]iven that [the] defendant did not perform the act of homicide himself, nor physically act to restrain the victim so that she could not avoid being shot, was his participation in the murder sufficient to establish that he committed the murder personally?” Id. The court rejected the state‘s argument that a defendant “personally” commits the homicide if he or she has an “actual role in causing death.” Having an actual role in causing death is
The court in Link therefore explored in greater depth the meaning of the word “personally.” As a matter of its common and ordinary meaning, the court concluded that, in the context of aggravated felony murder, “an individual ‘personally *** commit[s]’ murder when he or she does or performs the act in question, the act of homicide, in a personal manner.” Id. at 210 (internal quotation marks omitted). In turn, a homicidal act is done or performed in a personal manner if a defendant “performs it in person without the intervention of another,” or performs it “direct from [the defendant] to [the victim],” or, simply, performs the act “himself or herself.” Id. (brackets in original; internal quotation marks omitted).
The court in Link also examined the legislative history of the aggravated murder statute generally,
“‘The insertion of the word “personal[ly]” *** was made to get at the person who deliberately committed murder in the course of a felony but not any of the other individuals who may have participated in the course of the felony. (Whether it be robbery or theft or whatever.) What is meant *** is that the person must have pulled the trigger or used the knife or what have you, himself ***‘”
Link, 346 Or at 210 (quoting Nefstad, 309 Or at 540 n 8 (quoting Minutes, Senate Judiciary Committee, HB 2011, May 31, 1977, at 3 (statement of Edward Sullivan, chairman of Governor‘s Task Force on Corrections))).
This court in Link ultimately concluded that, “from the structure of the murder statutes, and from the wording and legislative history of the aggravated murder statute,” to
“That does not mean that the defendant must have acted alone or that the act of homicide need be a solitary physical act, or limited to the final fatal act. As in Nefstad, people acting together each may ‘personally *** commit[]’ the physical act of homicide. And, as in Nefstad, it may take a confluence of physical acts to effectuate the act of homicide.”
On the record in Link, the court concluded that a jury could not find the “personally” element of aggravated murder satisfied. The court reasoned that “the act of homicide was one act—the act of shooting—committed by one person—[the defendant‘s accomplice].” Id. at 211. The defendant had not shot the victim himself and had not been physically present when his accomplice shot the victim. And although the defendant had encouraged and even directed the shooting, the evidence fell short of establishing that the defendant‘s accomplice was “so completely within [the] defendant‘s control” as to be the equivalent of “an instrument to accomplish [the] defendant‘s purpose.” Id. The court therefore did not decide whether a defendant‘s control over another person who commits the only homicidal act involved could satisfy the “personally” element. It was enough to conclude that, on the record before it, that circumstance was not presented. Id. at 211-12.
In this case, in contending that the state‘s evidence was not sufficient to prove that he “personally” committed the homicides, defendant emphasizes the lack of evidence that he committed an act that triggered the bomb‘s detonation or otherwise had the ability to control any other possible triggering event (such as a third party‘s handling of the bomb or a stray radio signal). Defendant therefore urges that he did not, and legally could not have, “personally” caused the bomb to explode. The state, in response, focuses on the physical acts that a jury could find that defendant did take—including designing, building, and planting the bomb outside the bank. Those actions, in the state‘s view, were enough to satisfy the “personally”
We agree with the state. This is not a case, as Link was, in which there is only “one homicidal act.” Instead, the state‘s evidence showed that the homicidal conduct here was cumulative in nature and composed of sequential acts. The homicidal conduct began with the design and construction of the bomb and continued with its placement outside West Coast Bank, under circumstances in which, the jury reasonably could infer, defendant had armed it and left it in a lethal state, poised to kill as intended. Defendant then took the further step of calling in the threat to Wells Fargo Bank, which drew attention, and law enforcement, to the bomb. This court emphasized in Link that, to commit the murder personally, the “act of homicide” need not be “a solitary physical act, or limited to the final fatal act.” Id. at 210. The “act of homicide” in this case, unlike the act in Link, did not consist of the solitary act of one person shooting at and killing another. Instead, it consisted of a sequence of subsidiary, skilled, and purposeful actions required to construct a sophisticated and lethal bomb that, through its appearance as a hoax, served as a trap. It was more akin to the example in Nefstad, where one person holds another, while someone else deals the fatal blow. Here, though, the jury could find that, instead of physically holding a victim down, defendant lured the murder victims into dealing with something that, through defendant‘s own physical conduct, was disguised to look benign when in fact it was armed and deadly. And instead of cooperating with, goading, or commanding an independent accomplice into dealing the fatal blow, as happened in Link, defendant, with Bruce, designed the bomb in such a way that any number of other forces could detonate it, rendering someone else his unknowing and innocent agent for what was just the “final fatal act” in the homicidal sequence of actions. 346 Or at 210.
By way of analogy, had defendant and Bruce designed, built, and planted an armed landmine under the ground outside the bank, then called in a bomb threat designed to prompt law enforcement officials or others to inadvertently step on the landmine while looking for a bomb,
The state‘s evidence was therefore sufficient to submit to the jury the question whether defendant “personally” played a causal role in the victims’ deaths, as required for the four charges of aggravated felony murder. The trial court did not err in denying defendant‘s motion for judgment of acquittal on that ground.
C. Jury Instructions and Verdict Form, “Acquittal-First” (Assignment Nos. 147-148)
1. Additional procedural facts and defendant‘s argument on review
Defendant next argues that, with respect to the ten aggravated murder charges, as well as the two assault charges, the trial court erred by giving the jury a so-called “acquittal-first” jury instruction based on
“The jury shall first consider the charged offense. Only if the jury finds the defendant not guilty of the charged offense may the jury consider a lesser included offense. If there is more than one lesser included offense, the jury shall consider the lesser included offenses in order of seriousness. The jury may consider a less serious lesser included offense only after finding the defendant not guilty of any more serious lesser included offenses.”
On counts 1 through 6 (intentional murder committed under certain aggravating circumstances), the trial court separately advised the jury on each count that the charged crime of aggravated murder had “lesser included offenses of the crimes of manslaughter in the first degree and manslaughter in the second degree,” and explained the elements of those offenses. The court then instructed the jury:
“When you deliberate, you should first consider the charged offense of aggravated murder. Only if you find the defendant not guilty of the charged offense, you may consider the lesser included offense of manslaughter in the first degree. Only if you find the defendant not guilty of the lesser included offense of manslaughter in the first degree may you consider the additional lesser included offense of manslaughter in the second degree.”
The trial court similarly instructed the jury on counts 7 through 10 (aggravated felony murder) that, as to each count, the charged crime had “a lesser included offense [of] the crime of felony murder” and that, when deliberating, it should first consider the charged offense of aggravated murder and only consider the lesser included offense of felony murder if it found defendant not guilty of the charged offense. The court gave parallel instructions on the two assault charges.77 After giving the jury those instructions, the court provided a verdict form to the jury that did not require the jury to render any verdict on the lesser-included offenses.
Defendant challenges the constitutionality of
As context for our analysis, we begin by examining the Oregon cases that led to the adoption of
A uniform jury instruction was later devised based on that ruling, one that this court endorsed in State v. Allen, 301 Or 35, 717 P2d 1178 (1986). In doing so, this court acknowledged that, until the Court of Appeals decision in Ogden, the alternative “acquittal-first” instruction that the trial court gave in Ogden had been “the standard instruction given in this state for over 75 years” and was used in many other state and federal jurisdictions. Id. at 38-39. This court viewed that former long-standing instruction as having “inherent problems,” however. Id. at 39. The court cited studies showing that jurors who initially voted in the minority were more apt to change their votes than majority voters were likely to be persuaded to switch to the minority position. Relying on those studies, the court observed that an “‘acquittal first’ instruction exacerbates the risk of coerced decisions, a risk that is probably inherent in any jury deliberation.” Id. at 40. The court concluded that “[t]he [new uniform] instruction and the majority opinion in
In 1997, the legislature amended
Defendant challenges the constitutionality of
Beck involved an Alabama statute that provided that, when a defendant is charged with the capital offense of intentional felony murder, the jury may not be instructed on the lesser-included offense of felony murder. “Instead, the jury is given the choice of either convicting the defendant of the capital crime, in which case it is required to impose the death penalty, or acquitting him, thus allowing him to escape all penalties for his alleged participation in the crime.” 447 U.S. at 628-29.79 The defendant argued, and the
The Supreme Court began its analysis by noting that, at common law, a jury could find a defendant “guilty of any lesser offense necessarily included in the offense charged.” Id. at 633. The Court recognized that the common-law rule could “be beneficiаl to the defendant because it affords the jury a less drastic alternative than the choice between conviction of the offense charged and acquittal.” Id.; see also id. at 634 (“[P]roviding the jury with the ‘third option’ of convicting on a lesser included offense ensures that the jury will accord the defendant the full benefit of the reasonable-doubt standard[.]“). The Court further noted the near-universality of the requirement in American jurisdictions that lesser-included instructions be given. Id. at 635-36. The Court continued:
“While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense—but leaves some doubt with respect to an element that would justify conviction of a capital offense—the failure to give the jury the ‘third option’ of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.”
Defendant argues that the same concerns as those identified in Beck—that is, the coercive pressure on the jury and the risk of an unwarranted conviction—exist when a jury is instructed on a lesser-included offense but told that it must first reach a verdict on the charged offense before considering the lesser-included offense. Just as this court
An acquittal-first instruction that directs the jury, consistently with
“[t]here may be circumstances in which the elements of the charged crime are clearer when they are viewed in contrast with the elements of a lesser-included offense. So, for instance, an instruction on the elements of a lesser-included offense may disclose a legal distinction that is not otherwise patent and that would be particularly helpful to the jury in deciding whether the defendant is in fact guilty of the charged offense.”
Unlike the jury in Beck, the jury in this case was not faced with having to choose between convicting defendant of the charged crimes and acquitting him outright. When the jury in this case retired to deliberate, it had been fully instructed on the elements of all the lesser-included offenses as well as the greater, charged offenses. The acquittal-first instruction, moreover, ensured that the jury knew that the “third option“—the consideration of the lesser-included offenses—would come into play if the jury were not satisfied that the state had proved the charged crimes beyond a reasonable doubt. The instruction directed the order of the jury‘s deliberations, requiring it to first consider and reach a verdict on the charged crimes before considering the lesser-included offenses. Such an instruction does not carry the coercive force and undue risk of an unwarranted conviction that concerned the Court in Beck.
Although we recognize, as in Allen, that an acquittal-first instruction places some constraint on how a jury deliberates, that constraint does not rise to the level of a violation of either the Eighth Amendment or the Due Process Clause of the Fourteenth Amendment. The trial court therefore correctly gave the acquittal-first instruction as required by
1. Additional procedural facts and defendant‘s argument on review
In addition to the special instructions discussed earlier in connection with defendant‘s arguments on intent and causation more generally, defendant also asked the trial court to advise the jury that,
“[i]n those counts where the state has charged the defendant acted ‘intentionally[,]’ the state must prove beyond a reasonable doubt that the defendant acted with intent as to every material element of the charged offense.”
Defendant argued to the trial court that that proposed instruction was necessary because, to prove aggravated murder as charged in counts 1 through 6, the state had to prove not only that defendant acted with an intent to cause death, but also that defendant acted with intent as to each “material element,” including the aggravating factors charged in those counts. As we earlier described, counts 1 and 2 were based on the aggravating factor that there was more than one murder victim in a single criminal episode (
The trial court refused to give defendant‘s proposed instruction. On review, defendant asserts that the trial court‘s refusal was error, arguing that he was entitled to the instruction for each of the three alleged aggravating factors involved. The state responds in turn, likewise examining each of the three alleged aggravating factors and urging that defendant was not entitled to the instruction as to any of the three.
In our analysis below, we examine whether, for counts 1 and 2, the state was required to prove that defendant acted with the intent to cause the death of more than one murder victim in the same criminal episode. As we will explain, we conclude that the aggravated murder statute did not impose that requirement.82 Because it did not, our analysis ends there. Defendant‘s proposed instruction, which was not specific to the different alleged aggravating factors in the six counts, would have been legally incorrect as to counts 1 and 2; the trial court therefore properly did not give the instruction.
2. Analysis
The parties do not dispute the essential legal principles that guide our analysis.
“Except as provided in
ORS 161.105 , a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.”
As this court has observed, that statute states the general, but “somewhat circular,” rule that a culpable mental state is required for each material element of an offense that “necessarily” requires a culpable mental state. State v. Rainoldi, 351 Or 486, 490, 268 P3d 568 (2011). Even if the material element is one that necessarily requires a mental state, however, another statute—
We assume, for purposes of analysis, that
That much alone is a powerful indication that no culpable mental state applies to the enumerated factors generally, for two reasons. First, the legislature expressly provided for a mental state element—intentionally—and it specifically tied that mental state to the result of causing death, as we have already discussed at length. Unless the legislature similarly tied that or some other culpable mental state to the aggravating factor elements as well (which it did, but not for this one, as we discuss shortly), that alone strongly points to a conclusion, at least as an initial matter, that no mental state attaches to those other elements.
But a second aspect of the text, one that relates to the “nature of the element,” leads to the same initial conclusion. When the legislature makes an element an “attendant circumstance” to the commission of an offense, as contrasted with an aspect of the prohibited conduct, the element generally does not require proof of a mental state, unless, of course, the legislature indicates otherwise. Rainoldi, 351 Or at 494. For any particular element, to determine which it is—an attendant circumstance or an aspect of the prohibited conduct—this court often must examine the element in the context of the statutory offense. See, e.g., Rutley, 343 Or at 376-77 (for offense of knowing delivery of controlled substance within 1,000 feet of school, proximity tо school is attendant circumstance, not something that defendant logically must know); State v. Miller, 309 Or 362, 366, 788 P2d 974 (1990) (for offense of driving intoxicated, intoxication is attendant circumstance that describes defendant‘s
Our conclusion is bolstered by a closer examination of the particular aggravating circumstance on which counts 1 and 2 were based, especially in the context of the other aggravating circumstances enumerated in the statute. Under
In those respects, the “more than one murder victim” aggravating circumstance stands in stark contrast to certain of the other enumerated circumstances set out
Nothing in the legislative history and the overall purpose of the statute leads us to a different conclusion. For the “more than one murder victim” aggravating circumstance, the legislative history is not particularly illuminating. It reveals only that the legislature sought to separately elevate and identify, as an aggravating circumstance, the killing of more than one murder victim during a single “crime spree.”85 Beyond that, the legislative history is significant principally for what it does not show—it does not contain any suggestion that, contrary to the plain import of the text, the legislature intended to require proof that a defendant have the conscious objective to kill more than one
For those reasons, we reject defendant‘s argument that, on counts 1 and 2, which charged aggravated murder under
As explained earlier, in addition to his arguments directed to counts 1 and 2, defendant also argues on review that the trial court erred in not giving his proposed instruction as to counts 3 and 4 (police officer as murder victim, when murder related to performance of official duties), and counts 5 and 6 (murder by means of an explosive). But defendant‘s proposed instruction did not separately apply to each set of duplicate counts for each victim; instead, it would have applied to all charges requiring proof of intent, including all six counts of aggravated murder based on particular circumstances listed in
IV. OTHER ASSIGNMENTS OF ERROR
We have considered all the remaining assignments of error raised in defendant‘s brief on direct review, as well as those raised in defendant‘s supplemental pro se brief. We conclude that those assignments are either without merit, were not preserved and did not present issues involving plain error, or otherwise are resolved by previous cases, such that full discussion of them would not benefit the bench, the bar, or the public. We therefore reject those assignments without further discussion.
V. CONCLUSION
We reject all assignments of error that defendant raises as to both pretrial rulings and the rulings during the guilt phase of his trial for aggravated murder and other charges. Defendant raises no assignments of error relating to the trial court‘s imposition of two sentences of death for the murders of Captain Tennant and Trooper Hakim. Accordingly, we affirm the trial court‘s judgment of conviction and sentences of death.
The judgment of conviction and sentences of death are affirmed.
Notes
- Two or more deaths in the same criminal episode,
ORS 163.095(1)(d) ; - Death of a police officer,
ORS 163.095(2)(a)(A) ; - Death by explosive device,
ORS 163.095(2)(c) ; - Felony murder, criminal mischief (explosive device),
ORS 163.095(2)(d) ,ORS 163.115(1)(b)(B) ; and - Felony murder, robbery,
ORS 163.095(2)(d) ,ORS 163.115(1)(b)(G) .
“Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society;
“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by the deceased; and
“(D) Whether the defendant should receive a death sentence.”
Relatedly, prior bad acts evidence offered to demonstrate “knowledge” might or might not require similarities to the charged crime to be logically relevant. The state might, for example, offer evidence that a person charged with burglary had knowledge of an alarm system by showing that he had previously burgled a location with a similar alarm system. But it might also offer evidence showing that he had stolen a book that explained and provided diagrams of how to disarm such an alarm system. The burglary of the first location would bear significant similarities to the second and would be relevant because of those similarities. The theft, on the other hand, would bear little resemblance to the charged conduct, but that fact would not detract from its logical relevance given the subject matter of the theft.
“(1) [With exceptions that do not apply here], criminal homicide constitutes murder:
“(a) When it is committed intentionally ***; [or]
“(b) When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit ***, the person, or another participant if there be any, causes the death of a person other than one of the participants:
*****
“(B) Criminal mischief in the first degree by means of an explosive as defined in
*****
“(G) Robbery in the first degree as defined in
*****”
See also“*** ‘[A]ggravated murder’ means murder as defined in
“(1) ***
*****
“(d) There was more than one murder victim in the same criminal episode as defined in
*****
“(2)(a) The victim was one of the following and the murder was related to the performance of the victim‘s official duties in the justice system:
“(A) A police officer as defined in
*****
“(c) The defendant committed murder by means of an explosive as defined in
“(d) Notwithstanding
*****”
One difficulty with extending the common-law doctrine of proximate cause in the criminal law context is that criminal offenses, unlike torts, usually are defined by statute. Thus, the inquiry in the criminal law area is one of legislative intent. Interpreting general causation elements of statutory schemes to encompass “proximate cause” concepts raises its own set of issues. See Sandra F. Sperino, Statutory Proximate Cause, 88 Notre Dame L Rev 1199, 1232-43 (2013) (discussing range of problems posed by implying proximate cause concepts into statutory terms of general causation).
“[T]he law of causation under existing practice is so ill-defined and confused that it offers little or no aid either to the courts or to the juries in the solution of the problems of liability ***. The principal source of confusion is the treatment of causation, both as a factual concept, i.e., as to whether defendant‘s conduct is physically connected with the injury, and as a liability concept, i.e., as to whether, under the circumstances, the defendant should be held liable for the injury he caused.”
(Emphasis in original.) Justice O‘Connell urged that “causation” should be understood to be “a pure question of fact,” one that “calls for no judgment as to whether [the] defendant is to be held liable for what he factually caused.” Id. at 540. The majority of the court was not ready to so quickly make that shift in the court‘s common law doctrine. Id. at 518. But the court called the doctrine into question in a series of cases that followed in the next few years. See, e.g., Babler Bros. v. Pac. Intermountain, 244 Or 459, 463, 415 P2d 735 (1966) (describing proximate cause as “an opaque way” of limiting legal consequences for conduct that causes harm, one that sheds little light in difficult cases, and results in courts “hiding the ball“). And the doctrine was dealt its final blow in Stewart v. Jefferson Plywood Co., 255 Or 603, 606-07, 469 P2d 783 (1970) (discarding rubric of proximate or legal cause), one year before the legislature enacted the revised 1971 Oregon Criminal Code.
“Mike, who suffered from manic depression, was injured while walking through a high-school parking lot by a bomb that exploded. The homemade bomb was placed there by Dick and Anna with the intent that it explode and harm those in the vicinity. A year after he was injured by the bomb, Mike committed suicide. The administrator of Mike‘s estate sues Dick and Anna within the applicable limitations period. Damages for Mike‘s death may be found by the factfinder to be within the scope of Dick‘s and Anna‘s liability for their intentional conduct. However, before Dick and Anna may be found liable for Mike‘s death, the factfinder must determine that the injury from the bomb was a factual cause of Mike‘s suicide.”
Id. § 33 comment e at 565. The problem posed by that example is one оf cause-in-fact only, not one of liability or responsibility for harm intended and actually caused, no matter how unlikely the manner in which the intended harm occurs.